The Oxford Martin School Programme on Human Rights for Future Generations is seeking three Postdoctoral Research Fellows. This interdisciplinary research programme, which I will co-direct, will commence in January 2013 and will focus on the extent to which human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity: armed conflict, poverty and environmental change. This programme is a collaboration of academics in the Faculty of Law, the Faculty of Philosophy, and the Department of Politics and International Relations, at the University of Oxford. The Research Fellows will have completed (or be about to to complete) a doctorate in Law, Philosophy, Politics or International Relations. Each of the posts is for three years starting in January 2013 or as soon as possible thereafter.
Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.
On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.
In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood. Read the rest of this entry…
Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?
Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…
Julian Assange gave an interview to the BBC yesterday – available here – which I commend to readers; it’s only 10 minutes long. Assange has of course had a long history of Messianic self-victimization and refusing to submit to legal process in Sweden and the UK on charges of sexual assault. I won’t even go into the momentous irony of a supposed champion for the freedom of speech taking refuge in the embassy of a country whose regime is generally not regarded as being very friendly to said freedom, or indeed of that country criticising the UK as imperialist whilst simultaneously violating the UK’s sovereignty by unlawfully harbouring a fugitive from justice. But while this BBC interview is a continuation of a long tradition on his part, I must say that until I had watched it I had not realized just how absolutely awful and cringe-worthy Assange is as a human being – he was not simply uncivil to the unfortunate BBC journalist interviewing him (herself admittedly not say an Edward R. Murrow), but was a first rate, frothing at the mouth kind of bully. His frequently completely uncritical supporters may want to take note.
My favourite moment in the interview comes at about 3:35 when he says, apparently as conclusive evidence that the UK Supreme Court decision dismissing his appeal against extradition to Sweden was completely wrong, that ‘in two academic articles [holding up two fingers] the Cambridge International Law Journal has condemned the findings of the Supreme Court.’ He is in fact referring to these two blog posts by Tiina Pajuste and Cameron Miles (both of which I recommend, who are rightly critical of the Court’s application of Art. 31(3)(b) VCLT) on the website of the Cambridge Journal of International and Comparative Law (on whose academic review board I happily sit, in the spirit of full disclosure). Now how adorable is that? Abscoding from the law on the pretext that the decision of the highest court in the land was criticized in a blog post or two. I see much potential here!
(For our previous coverage of the Assange saga and the analysis of the pertinent legal issues readers can click on ‘Diplomatic Asylum’ in the categories tab below).
Women on Board: The EU Commission’s Proposal for a Directive on Improving the Gender Balance among Non-Executive Directors of Companies Listed on Stock Exchanges and Related Measures
Anne Peters is Professor of International and Constitutional Law, University of Basel, and currently fellow at the Wissenschaftskolleg Berlin.
1. Background and core contents of the proposed Directive
On 14 November 2012, the EU Commission tabled a proposal for a Directive on a highly sensitive issue and did so without using the ‘Q-word’ (COM(2012) 614 final). The Commission bases its proposal on Art. 157(3)TFEU which empowers the EU to adopt ‘measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’. The proposed Directive requires that
‘Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 percent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.’ (Art. 4(1)).
The Directive further holds that
‘In order to attain the objective laid down in paragraph 1, Member States shall ensure that, in the selection of non-executive directors, priority shall be given to the candidate of the under-represented sex if that candidate is equally qualified as a candidate of the other sex in terms of suitability, competence and professional performance, unless an objective assessment taking account of all criteria specific to the individual candidates tilts the balance in favour of the candidate of the other sex.’ (Art. 4(3)).
The proposed Directive is equally applicable to various board structures for listed companies that exist in member states, both to dual systems (separate management and supervisory boards) and to unitary systems combining management and supervisory functions.
Measures to improve the gender balance through quotas are highly controversial both politically and in legally. Many states of the world have been experimenting with quotas for women in public employment/civil service and for political elections/party lists. Imposing by law quotas for women onto the business sector raises additional legal issues, because such legislation interferes with the business actors’ rights of property, economic freedom, and the freedom of association. Reacting to the conspicuously meagre presence of female managers, some EU member states, notably Norway and Denmark, have already introduced quotas, goals, or reserved seats in the boards of companies’ management positions. In other states such as Germany, such a policy is totally contested. This post sketches out the main legal issues hoping to trigger further debate.
This annual competition sponsored by the Academy on Human Rights and Humanitarian Law at American University Washington College of Law seeks to stimulate the production of scholarly work in international human rights law.
The 2013 topic is The Rights of Lesbian, Gay, Bisexual and Transgendered People and International Human Rights Law. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review.
The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. The Award in each case will consist of:
- a scholarship to the Academy’s Program of Advanced Studies
- travel expenses to Washington D.C.
- housing at the university dorms
- a per diem for living expenses
Natasha Simonsen is a graduate student in the Faculty of Law, University of Oxford
Earlier this month, the UK’s Special Immigration Appeals Commission (‘SIAC’) ordered the release from detention of controversial Jordanian-born cleric Abu Qatada. SIAC held that he could not be deported to Jordan, because there was a ‘real risk’ that evidence obtained by torture would be admitted against him in proceedings in Jordanian courts (read the judgment here). The cleric was released on highly restrictive bail conditions on Tuesday of last week, and the scale of public outrage was such that police had to intervene to protect him from protesters outside his home. The Home Secretary may appeal the decision, and there are new rumours that Abu Qatada plans to sue the government for damages for wrongful imprisonment. This post addresses the implications of SIAC’s decision for the exclusionary rule for evidence obtained by torture.
The Strasbourg Court’s decision
To fully explain the SIAC decision we must return to the European Court of Human Rights’ decision in Abu Qatada v UK from January of this year. To the exasperation ofmany British politicians, including the Prime Minister, in that case the Strasbourg Court held that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. The two key witnesses against him had been beaten on the soles of their feet to extract confessions—a torture technique known as falanga—and the Jordanian State Security Court was unlikely to exclude such evidence [at 285 in the judgment]. This meant, in the Strasbourg Court’s view, that there was a ‘real risk’ that Abu Qatada would face a flagrantly unfair trial in breach of Article 6 of the Convention. The Court used strong language, stating that that ‘the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial’ [at 267]. Elsewhere in the judgment, the Court stressed that the exclusionary rule was inextricably bound up with the rule of law . Read the rest of this entry…
Once again, a new maritime drug smuggling case raises interesting questions of international law and its implications for national prosecutions.
Back in 2010 I blogged on Medvedyev: a European Court of Human Rights case finding that an ad hoc agreement between France and Cambodia was an insufficient legal basis for France to prosecute drug smuggler. The agreement for France to board the vessel and assume jurisdiction over the offences discovered was concluded by diplomatic note and valid at international law, but it was a defective basis of jurisdiction in European human rights law because (inter alia) it lacked a required quality of “foreseeability”. (That is, the Cambodian nationals in question could not have predicted they would become subject to French law).
In more recent developments, I am grateful to Ilias Bantekas for drawing to my attention the US Court of Appeals (11th Circuit) decision in US v Bellaizac-Hurtado (6 November 2012).
This opening follows the announcement that their longtime Assistant Dean, Virginia Gordan, will be retiring. The announcement is here. This is a great opportunity for someone interested in serving as an academic administrator at one the top institutions for international, comparative, and foreign law.
On 14 November 2012 Argentina filed a Request for provisional measures before the International Tribunal of the Law of the Sea (ITLOS) based in Hamburg, Germany in accordance with Article 290(5) of the United Nations Convention on the Law of the Sea (UNCLOS), requesting Ghana to release the frigate ARA Libertad, a sailing training vessel of the Argentine Navy. For the background of the case relating to Argentina’s default on its external debt in 2001 see my previous EJIL:Talk! post. This brief post will touch upon certain jurisdictional and substantive issues of the case, with particular emphasis on the jurisdictional framework established by the UNCLOS, the question of jurisdiction, and the scope of Argentina’s waiver with regard to enforcement immunity of warships.
Some Jurisdictional Aspects of the Case: The Forum
Although the case relates to the seizure of a vessel, it should be stressed that the case in question is a provisional measures case and not a prompt release case (Article 292 UNCLOS) which constitute the majority of the cases decided by the ITLOS so far. Where there is no agreement regarding which court or tribunal should decide on the prescription of provisional measures, the ITLOS will decide on the matter, provided that proceedings are already initiated before an arbitral tribunal (Article 290 UNCLOS). Read the rest of this entry…