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Irish Yearbook of International Law – Call for Papers – Symposium Issue Climate Justice in International Law

Published on June 29, 2012        Author: 

The Editors of the Irish Yearbook of International Law invite submissions for a special symposium issue on Climate Justice in International Law.  Papers on the following themes (and others) are welcome:

(1) Climate Justice, Regulation and Risk ; (2) Concepts of Justice, International Law and Climate Change; (3) Climate Justice, Equity and Rights ; (4) Global Governance, global institutions and international environmental law ; (5) Climate Justice – Right to Development; Climate Justice, Migration  and Asylum

Symposium articles should not exceed 12,000 words in length and should not be published or under consideration for publication elsewhere. Selected papers will appear in Vol VI of the Yearbook.

In addition to symposium articles, papers on general issues of international law are welcome for the ‘Articles’ sections and reviewed on an ongoing basis.   Read the rest of this entry…

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Karadzic Trial Chamber Finds No Genocide in Bosnia but for Srebrenica

Published on June 28, 2012        Author: 

Today the ICTY Trial Chamber trying Radovan Karadzic, the former president of the Bosnian Serbs, delivered an oral order on the defendant’s ‘no case to answer’ motion for acquittal under Rule 98 bis of the ICTY RPE, under which the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The standard for doing so is whether a reasonable trier of fact could be satisfied beyond a reasonable doubt of the accused’s criminal responsibility on a particular count of the indictment.

A press release on the order is available here. A formal written decision will follow. In a nutshell – and this is hardly news – the Chamber upheld 10 counts of the indictment, finding that a reasonable trier of fact could be satisfied beyond a reasonable doubt that Karadzic was criminally responsible through a JCE for the crimes alleged, including the Srebrenica genocide. What is news, however, is that the Chamber granted Karadzic’s motion with respect to the count charging him with genocide outside Srebrenica in July 1995, in selected other municipalities in Bosnia:

Read the rest of this entry…


Thinking about Tom Franck’s Thoughts

Published on June 27, 2012        Author: 

Tom Franck, University of Glasgow Honorary LLD graduation, July 2004

Professor Thomas Franck died on 27 May 2009.  He was a good friend and I remember him fondly.  I would probably remember a lot more had he not made such killer martinis.  Very dry, straight-up, with a twist.  This was meant to have been posted on the anniversary of his death, but the exigencies of exam marking and a trip to Scotland for my brother’s wedding delayed matters.  Tom would no doubt be amused that I got lost along the way and was late, as usual.

My colleague, Dr Catriona Drew, and I organised a memorial conference at SOAS on the first anniversary of Tom’s death.  This is a rewritten version of one of the papers I gave that day.  Tom, I think, played a variety of roles in his publications.  At times, he commented, writing pithy short articles, especially for the American Journal, analysing developments.  At other times, he was what could truly be called a publicist, taking international law out of our invisible academy to other interested groups, to reach out to people who are not like us—for instance, to domestic judges as well as to those civilians who have never been lawyers.  There were also his more lengthy academic expositions of substantive issues.  He wrote for diverse audiences on diverse topics.  As Dickens would have said, he did the police in different voices.  (But, believe me, when he tried to do a Scots voice it was atrocious—more like a squeaky Boston–Irish.) Read the rest of this entry…

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Kiobel: The US steals the headlines in first round of supplemental briefs on universal civil jurisdiction under the Alien Tort Statute

Published on June 26, 2012        Author: 

In an earlier post, I considered the US Supreme Court’s re-argument order in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The order concerned whether US federal courts may rely on the Alien Tort Statute (“ATS”) to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?

Earlier this month, the petitioners, a group of 12 Nigerian victims of crimes against humanity, filed their supplemental opening brief on this issue. Nine amicus briefs in support of the petitioners and four amicus briefs in support of neither party were also filed with the US Supreme Court.

In this post, I discuss the amicus brief filed by the US government. The US brief raises a number of interesting issues, in particular the extent to which theUS government has changed its position in respect of the permissibility and limits of universal civil jurisdiction under the ATS, particularly in comparison with US briefs submitted in earlier ATS cases, as well as the failure of the State Department to sign the brief. After considering these issues, I offer a critique of the US brief, focusing in particular on the failure of theUS to substantiate its assertion that universal civil jurisdiction does not violate international law. I conclude by analysing the submissions put forward in other supplemental briefs in support of this assertion.

The US Supplemental Brief – A Change of Position?

The headline development from this round of filings is undoubtedly the new position set out by the US government in its supplemental brief. Contrary to its earlier support of the petitioners, the US now argues that the Supreme Court should not allow the human rights claims in Kiobel to proceed. Read the rest of this entry…


New ESIL website and launch of ESIL Reflections

Published on June 25, 2012        Author: 

The European Society of International Law has now launched its brand new website – readers should take a look here. The ESIL website will be updated more and more frequently with new content, thus repaying regular visit.

In that regard, the Society has launched a new electronic publication – the ESIL Reflections, edited by Andre Nollkaemper, Jan Klabbers and Thomas Skouteris. The first Reflection is by Laurence Helfer, discussing the Brighton Declaration on the reform of the ECtHR. Reflections are generally conceived as being less formal than a journal article, but somewhat more formal than a blog piece. And while we are still happy to receive submissiosn for EJIL: Talk that are about 2,500 words max in size, we invite authors to consider whether submitting such larger pieces to Reflections might be a better idea instead, as the blog would like to encourage shorter and snappier posts from its regular and ad hoc contributors alike.  Readers are invited to get in touch with the Reflections’ editors, particularly Andre Nollkaemper who will be serving as editor-in-chief, if they wish to submit a piece.

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Julian Assange and Diplomatic Asylum

Published on June 24, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg and an associate tenant at 3 Hare Court, London .

In taking refuge in the Ecuadorian embassy in London, Julian Assange joins a long list of individuals who have sought asylum in foreign embassies.  Recent examples include Chongqing police chief Wang Lijun in the US consulate in Chengdu, and blind Chinese dissident Chen Guangcheng in the US embassy in Beijing.  However, although embassy premises are legally inviolable, general international law does not recognise a right of diplomatic asylum.  Even if Ecuador does grant Assange asylum, the UK will not be obliged to grant him safe passage out of the country.

In 1949, Victor Raúl Haya de la Torre, leader of the Peruvian APRA movement, sought refuge in the Colombian embassy in Lima.  The dispute between Colombia and Peru as to whether he could be granted diplomatic asylum went twice to the International Court of Justice in The Hague. In its judgment in the Asylum Case, the Court ruled that no general rule in international law existed permitting States to grant diplomatic asylum; a legal basis had to be established in each particular case.  Read the rest of this entry…


Stockton IHL/LOAC research portal

Published on June 22, 2012        Author: 

Readers might be interested in the launch of Stockton, an IHL/LOAC research portal made by the US Naval War College. The announcement is below:

The US Naval War College’s International Law Department is pleased to announce the launch of Stockton, our new LOAC/IHL e-Portal (

Named after Admiral Charles H. Stockton, an early Naval War College President and author of the US Navy’s first law of armed conflict manual, Stockton is intended as an easily accessible “one-stop” research tool for practitioners and academics working on law of armed conflict issues.  It is designed to serve as a single point from which you may conduct most of your on-line research into LOAC issues.  The e-portal contains links to commonly used websites useful for such research, and contains pdfs of frequently used treaties, military manuals and case law.  We will also post important recently released documents on the home page that are especially relevant or difficult to find.  For instance, we have just posted the ICRC’s Occupation report.

Designed by Ms. Sasha Radin, a visiting Fellow in the Department from Melbourne University, “Stockton” is a very much a work in progress. We would appreciate any suggestions on how to improve the e-portal. For questions and suggestions, or to provide documents or links for inclusion, please contact Ms. Radin (Sasha.radin {at} usnwc(.)edu).

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Countermeasures vs. Collective Security? The EU Sanctions Against Iran

Published on June 22, 2012        Author: 

 Pierre-Emmanuel Dupont, is a lawyer based in Paris,France. His practice is centered on public international law and international investment. His article “Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran” will appear shortly in (2012) 17 Journal of Conflict and Security Law but is now available here

The additional sanctions agreed in early 2012 by the European Union against Iran in relation to its nuclear program (see Council Decision 2012/35/CFSP of  23 January 2012, and Council Regulation 267/2012 of 23 March 2012), including an embargo on imports of Iranian oil and the freeze of assets of the Iranian Central Bank, go well beyond those mandated by the successive UN Security Council resolutions (Res. 1737 (2006); 1747 (2007); 1803 (2008) and 1929 (2010); for a comprehensive analysis of Res. 1737 and Res. 1929, see e.g. D H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown Journal of International Law 225-257, at 238-248.). Given their unprecedented extent, they raise various specific issues regarding their lawfulness under international law. I have written an article (a prepublication version of which is available here) in the forthcoming issue of the Journal of Conflict and Security Law, which aims at characterizing these measures. In this piece I argue that the EU measures cannot be characterised as measures of retorsion or as sanctions. Rather they are to be regarded as countermeasures. However, characterising these measures as such raises the question whether it is open to States or regional organizations to take countermeasures in circumstances where the UN Security Council has already adopted measures under Chapter VII of the Charter.

According to the ILC, a retorsion  is ‘unfriendly’ conduct ‘which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’ (see Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts, in 2001 ILC Yearbook II(2), at 128). While it is true that measures restricting or impeding trade relations (in general or in specific areas), such as an embargo, are a typical example, often quoted, of retorsion (see ILC Commentaries on State Responsibility Articles at 128), it remains that, as it has been rightly noted, measures of the kind of those enacted by the EU in January 2012 ‘go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran’ (N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue, (2009) 42 Vanderbilt Journal of Transnational Law 1393-1442, at 1397). Indeed, in this case, the EU measures actually imply non-performance of various international legal obligations owed to Iran, for instance treaty commitments under BITs (see e.g. Iran-Germany BIT, 1965, Iran-France BIT, 2003). It may also be considered that the oil embargo, and in particular the mandatory termination of existing contracts related to import, purchase and transport of petrochemical products, raises prima facie an issue of compliance with a customary standard of investment protection. Read the rest of this entry…


Award of Compensation by International Tribunals in Inter-State Cases: ICJ Decision in the Diallo Case – UPDATED

Published on June 21, 2012        Author: 

UPDATE: See below for answers to my trivia question asking  for cases where compensation was awarded by an international tribunal to one State for violation by another State of international law other than cases of diplomatic protection.

This week, the International Court of Justice decided that the Democratic Republic of Congo is obliged to pay $95,000 to the Republic of Guinea for material and non-material injury arising out of the DRC’s violations of the human rights of a national of Guinea. The case was an old fashioned case of diplomatic protection brought by one State in respect of violations of international law committed towards its nationals by another State. The ICJ decided the case on the merits in 2010 and held that while DRC had violated the rights of Mr Diallo under the International Covenant on Civil and Political Rights and under the African Charter of Human Rights. In 2007, the Court rejected the admissibility of claims brought by Guinea on behalf of companies/firms in which Mr Diallo had an interest. I have a comment about this recent judgment and will then pose a couple of question to readers. The questions will form part of what I hope will be a regular series of trivia questions about international law on the blog. I will have more to say about that series in a future post. For now, let me say that we have a prize on offer to induce you to take part in answering the questions. Read the rest of this entry…


ICC Pre-Trial Chamber Suspends Libya’s Obligation to Surrender Saif Gaddafi and Asserts Application of ICC Statute to Libya

Published on June 20, 2012        Author: 

Over the past few months, I have written a number of posts on whether Libya would be entitled to suspend (or postpone) its obligation to surrender Saif Gaddafi to the ICC in the event of Libya challenging the admissibility of ICC proceedings (see here, here, here , here and here). In what I thought was a great and really productive exchange of views,I debated the issue with Kevin Jon Heller at Opinio Juris and Jens David Ohlin at LieberCode. In April, the ICC Pre-Trial Chamber rejected Libya’s application to suspend the obligation to surrender Saif Gaddafi holding that although Libya had, at that stage, indicated its intention to challenge admissibility of the case, it had not actually done so. In May, Libya did file a challenge to the admissibility of the proceedings (which has been discussed here on EJIL:Talk!). Earlier this month, the Pre-Trial Chamber held that as a result of Libya’s admissibility challenge, Libya is entitled, under Article 95 of the ICC Statute to postpone its obligation to surrender Saif Gaddafi to the ICC. That suspension of the obligation of surrender will last until the ICC determines the validity of the admissibility challenge.

ICC’s Pre-Trial Chamber took the same position as I took in my blog posts on the issue and in my recent article in the Journal of International Criminal Justice. In fact, the chamber addressed the issue in pretty much the same way as I have, structuring their decision in a similar way to me and using similar arguments. In terms of the structure of the decision, the chamber first addressed the question of whether and how the ICC Statute applies to the obligation of cooperation in cases of a Security Council referral. Then the Chamber addressed the question whether Article 95 of the Statute applies to the obligation of surrender.

With regard to the application of the ICC Statute in case of UN Security Council referrals, the chamber reiterated its earlier decision that:

“the legal framework of the Statute applies in the situations referred by the Security Council in Libya and Darfur, Sudan, including its complementarity and cooperation regimes.” (para. 28)

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