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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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The Killer Whales of The Hague

Published on August 28, 2014        Author: 

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. Read the rest of this entry…

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On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

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Developing the International Legal Order or Fomenting Doctrinal Confusion? A Comment on The International Court of Justice and the Judicial Function

Published on August 26, 2014        Author: 

In The International Court of Justice and the Judicial Function, Gleider Hernández offers us an insightful historical narrative and theoretical perspective on the judicial function assumed by the ICJ. According to Gleider, many of the controversies on the bench, resulting at times in contradictory decisions and half-way compromise formulas, stem from an ideological struggle between conflicting institutional goals and competing visions of international law. Hence, the tension between the need to resolve specific disputes and the Court’s interest in developing international law may influence the choice of an interpretive theory to fill in normative gaps and address legal ambiguities; the tension between a state-centered and an international community-based understanding of international law may influence the Court’s decisions on the scope of application of the erga omnes principle; and the tension between the need to preserve judicial propriety and the interest in partaking in the project of maintaining the international legal order may explain, for instance, inconsistencies in the Court’s approach to questions of jurisdiction and locus standi.

Collective decision-making

In this comment, I wish to expand upon two aspects of the conflicting goals, competing functions and doctrinal tensions discussed in the book: the manner in which ICJ judgments are formulated and the effects of outside pressures on the Court. The deliberative process is the subject of Chapter IV of the book. Using, no doubt, some insights he was able to develop while serving as a legal clerk for ICJ judges, Gleider presents the process of formulating an ICJ judgment as a collective exercise in which judges “share collective responsibility both for the voting result and the expression of the judgment”. (p. 105) Such a process may have the merits of increasing the probability of getting the correct outcome (on the basis of the Condorcet Jury Theorem). However, it suffers from a “doctrinal paradox”attendant to the aggregation of judgments emanating from different doctrinal premises. That is, it may simultaneously reflect a meeting of judicial minds on the outcome of the case, and a disagreement on the legal basis underlying the said outcome, resulting in judgments lacking in doctrinal coherence or clarity.

Because of its collective decision-making dynamics, the Court’s judgments may actually exacerbate the confusion generated by the existence of competing goals, world visions, role perceptions, etc. The availability of an initial draft formulated by a small drafting committee does not provide a full remedy to the doctrinal paradox problem, as the composition of the drafting committee changes from case to case, and is thus likely to generate doctrinal paradoxes vis-à-vis earlier decisions whose doctrinal premises the new members of the committee do not fully share. Furthermore, the need for attaining a broad-as-possible consensus during judicial deliberations leads to a process of revising the initial draft, which may detract from its coherence and clarity, sometimes resulting in a final text that Gleider describes as characterized by a “lack of intellectual or logical cohesion”, and as “puzzling” and “emasculating”. (p. 108) Such a result may invite serious criticisms and chip away at the Court’s legitimacy in the eyes of important constituencies. International courts whose judgments-drafting processes are driven by powerful secretariats may thus be better situated than the ICJ to generate clear, coherent and persuasive judgments, which form over time a jurisprudence constante. The more focused mandate of certain specialized courts, such as the ECtHR or the ICC, also facilitates the process of prioritizing goals and identifying a constituency. That, in turn, reduces their risk of becoming entangled in the doctrinal paradox. Read the rest of this entry…

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The International Court of Justice and the Judicial Function: Introduction

Published on August 25, 2014        Author: 

GHernandezsmlGleider I Hernández is (from 1st October) Senior Lecturer in Law at Durham University.

I am much obliged to the editors of EJIL:Talk! for hosting the online discussion of my recently-published book, The International Court of Justice and the Judicial Function. I am also grateful to Professors Mary Ellen O’Connell, Iain Scobbie and Yuval Shany for taking the time to engage with the book and its arguments in their capacity of discussants. Their reactions will be posted later this week; for now, I wish in the following paragraphs to lay out the principal arguments developed in the book, and to set the stage for the discussion that will follow.

Writing this book, and of course the doctoral thesis on which its foundation rests, was inspired by the desire to explore and better theorise the role of judicial institutions within the actual practice of international law. Certainly, formal sources theory maintains the subsidiary character for judicial decisions as a source of international law, and for doctrinal and policy reasons, this is an important point to retain. However, that legal fiction sits uneasily with the powerful normative role that international lawyers ascribe in practice to judicial decisions of certain international courts, and foremost of all of these, the ICJ (‘the Court’). One may observe such reliance in the practices of States, international legal practitioners, international organisations, and non-governmental actors; and it is perhaps most evident in the textbooks and teaching materials we legal scholars use to teach international law. Rather than up-end sources theory in favour of a purely sociological description of the importance of judicial decisions, I have chosen instead to focus on the normative force of judicial decisions. By applying concretely a legal rule or norm to a given set of facts in an authoritative fashion, judicial institutions can possess a centrifugal character, contributing to the normative content of a legal rule, foreclosing competing interpretations, and influencing future practice. Even if not formally legal sources, the effects described are law-creative under all but the most restrictive definitions of lawmaking.

The book thus proceeds to analyse the Court as a case study of sorts, a heuristic device through which to analyse and consider the manner in which a judicial institution perceives of its own function within the international legal system, and the manner in which it constructs its claim to authority within that system. A part of understanding that claim is to understand how the Court situates itself. The Court finds itself constrained by a number of factors: the United Nations Charter of which its Statute is an annexe; its limited, optional jurisdiction ratione personae over States (and only States); the selection procedures and elections conducted under the aegis of the General Assembly and the Security Council. Rather than conduct a thought experiment over what reforms would engender greater accountability or effectiveness, however, I chose to focus on how these various constraints come to define the Court’s understanding of its role. Read the rest of this entry…

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Discussion of Gleider Hernández’s The International Court of Justice and the Judicial Function

Published on August 25, 2014        Author: 

This wHernandez Bookeek we will be hosting a discussion of Gleider Hernández’s book The International Court of Justice and the Judicial Function, recently published by Oxford University Press. The book has been shortlisted for the Birks Book Prize by the Society of Legal Scholars.

Gleider is (from 1st October) Senior Lecturer in Law at Durham University and a former Associate Legal Officer at the International Court of Justice, acting from 2008-2010 as Law Clerk to Vice-President Peter Tomka and Judge Bruno Simma. He completed his D.Phil at the University of Oxford in 2010 under the supervision of Professor Sir Franklin Berman. His research interests lie within the general area of public international law, and particularly relate to international legal theory (nature and sources of international law), international dispute settlement, and the law and practice of international institutions. Gleider is a member of the Academic Review Board of the Cambridge Journal of International and Comparative Law. His book will be subjected to careful scrutiny this week by Mary Ellen O’Connell (Notre Dame), Iain Scobbie (Manchester), and Yuval Shany (The Hebrew University of Jerusalem). We are grateful to all four for agreeing to have this discussion here.

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Announcements: BIICL International Law Course; Conference in Dresden on Future of Trade and Investment Law

Published on August 23, 2014        Author: 

1. International Law in Practice is a four-day programme run by the British Institute of International and Comparative Law (BIICL), which provides a broad introduction to key issues in international and comparative law – from public to private and from commercial to human rights. The course is unique in that it introduces participants to international law, as broadly understood and as it arises in practice. Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, and students who are about to commence a postgraduate degree in aspects of international law. The course is accredited for 28.5 CPD points. For more details and to book online, please visit the BIICL website.

2. On 23rd and 24th October 2014 the Dresden Research Centre for International Economic Law and the affiliated research project “Global TranSAXion” will be hosting a conference on “Mega-Regionals and the Future of International Trade and Investment Law”. The conference offers a forum to discuss the content and structure of the preferential trade agreements currently under negotiation between some of the world’s major trading partners. The main focus is on the Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP). Further information about the conference, the registration and the venue can be found here.

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Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

Published on August 22, 2014        Author: 

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. Read the rest of this entry…

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