Home 2013 February

Drones, Battlefields, and Asking the Right Questions

Published on February 28, 2013        Author: 

Noam Lubell is Reader in Law, University of Essex. He can be followed on Twitter @nlubell.

Not only is the debate over the use of unmanned aerial vehicles (drones) not going away, it appears to be consistently growing, with ever new examinations and reports. It tends to encompass – and sometimes unnecessarily conflate – a number of issues, including:

  • The advantages, disadvantages and legality of the drone technology itself, e.g. should there be restrictions on remote controlled (or moving on to autonomous) methods of warfare.
  • The manner in which the use of drones appears to further the concept of a ‘global battlefield’, and a ‘global war against Al-Qaida’ (or ‘war on terror’, take your pick).
  • The ius ad bellum aspects in relation to drone strikes on the territory of another state.
  • The adherence to the law of armed conflict – if and when it applies – in specific drone strikes, especially concerning the status of individuals killed by drone strikes, and rules on indiscriminate attacks and proportionality.
  • Accountability for drone strikes and transparency over their use.
  • The applicability of international human rights law to drone strikes. In the US this point has taken on an extra US-centric twist, with regard to constitutional law and powers, and the implications with regard to US citizens.

There are obvious links between these issues and they all affect each other in a myriad of ways, but any examination of the international law applicable to drone strikes must also understand that the above all need to be taken into account and given separate attention, before any attempt is made to assess the overall picture of legality. Clearly there’s no room to cover all the above in adequate detail in this one post, but I would like to briefly address the second point above, and the way it links to some of the other issues.

Read the rest of this entry…


More Great Piracy Facts in U.S. Courts: Private Ends Edition

Published on February 28, 2013        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

 On Monday, the Ninth Circuit issued an opinion reversing the lower court and enjoining the Sea Shepherds of Whale Wars fame from coming within 500m of Japanese whaling vessels. In Cetacean v. Sea Shepherds, Judge Kozinski found, in the context of a request for a preliminary injunction in a civil action under the Alien Tort Statute, that the Sea Shepherds were likely committing piracy under UNCLOS. Judge Kozinski also found that the Sea Shepherds were violating the SUA Convention and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).

 Just as United States v. Ali presents excellent facts to test the limits of a high seas requirement for facilitators, Cetacean v. Sea Shepherds presents excellent facts to test the limits of the private ends requirement.

Some commentary has been written about the opinion already, and positions range from Kevin Jon Heller’s on Opinion Juris that Judge Kozinski “should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources” to Eugene Kontorovich’s on the Volokh Conspiracy that Judge Kozinski’s reasoning “is obviously correct.”

In reality, the question is closer than either Kevin or Eugene suggest. There are two competing conceptions of what constitutes “private ends,” and both have significant support in the drafting history. Whether the actions of the Sea Shepherds constitute piracy jure gentium depends on which of these interpretations carries the day.

Read the rest of this entry…

Filed under: EJIL Analysis, Piracy

Russian Prisons: Still inhuman, Still degrading

Published on February 27, 2013        Author: 

Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan

This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.

The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention. Read the rest of this entry…


EJIL Reservations Symposium – Jean Monnet Papers

Published on February 25, 2013        Author: 

I am happy to announce that the EJIL will be publishing a symposium on the International Law Commisssion’s Guide to Practice on Reservations to Treaties.  The symposium was edited by Linos-Alexandre Sicilianos and myself, and features contributions from Alain Pellet, Michael Wood, Daniel Mueller, and Ineta Ziemele and Lasma Liede. It will most likely be coming out in issue 3 of this year’s volume of the Journal, but because of the symposium’s topicality we have decided to post the unedited drafts online in the meantime, as part of NYU’s Jean Monnet Working Papers Series.  Comments are of course welcome, and we will likely be hosting a further discussion on the symposium on the blog once the final papers come out in the Journal.

After a short introduction by the editors, in which we reflect on the Guide’s innovative approach to the validity of reservations, the Symposium begins with a general presentation by Special Rapporteur Alain Pellet, giving a clear (and often critical picture) of the process followed within the Commission, focusing both on its more orthodox aspects and on the specificities (and novelties) of the instrument adopted. The Special Rapporteur then gives us his own views on the main issues, the solutions adopted and any deadlocks within the Commission in respect of each Part of the Guide. He deals inter alia with the questions of the validity and invalidity of reservations, politically controversial cases such as general ‘sharia’ reservations, and the establishment of reservations. In short, the piece presents and defends the general conceptual framework and innovations of the Guide.

Sir Michael Wood, a member of the ILC who was very active on the issue of reservations, examines the institutional aspects of the Guide: the role of depositaries (regretting that the Guide to practice does not take a more progressive stance in this respect); assessment of validity of reservations by dispute settlement and treaty monitoring bodies (giving his own view about this highly debated issue); the series of nine conclusions on the ‘reservations dialogue’ (appearing as an annex to the Guidelines); and finally the ILC recommendation to the UN General Assembly on mechanisms of assistance in relation to reservations (an innovative idea largely inspired by the relevant practice of the Council of Europe).

Judge Ineta Ziemele of the European Court of Human Rights and Lasma Liede, a lawyer in the Court’s Registry, examine in detail a topic that we have already touched upon, i.e. reservations to human rights treaties. They focus on the specific characteristics of such treaties, on the approach adopted mainly by the European Court, but also by other universal and regional human rights bodies, before examining in some detail the response of the ILC throughout its work on the Guide, and how rather than being confrontational it ultimately adopted a conciliatory approach.

Last but not least, Daniel Mueller, researcher at the CEDIN and assistant to the Special Rapporteur in his work on reservations, skillfully analyses a technical but also very practical topic: reservations and time. He focuses on premature and late formulations of reservations as well as on premature and late formulation of objections. Mueller thus explains how the Guide tries to put ‘some order into the chaos and the uncertainties resulting from the Vienna regime.’ He regrets the ‘absolute position’ of the ILC to exclude all reservations formulated prematurely, while praising the Commission for adopting a more flexible stance in respect of late reservations. He also examines the so-called ‘pre-emptive objections’ (in fact a negotiation tool), while admitting that a late objection cannot unmake consent expressed or assumed according to the terms of the Vienna Convention.

We hope the contributions that follow will shed light on the debates that took place and the solutions adopted over almost two decades of work by the ILC. We are sure that they will be read for many years to come, and would like to warmly thank the contributors for their participation.

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Abortion on Demand and the European Convention on Human Rights

Published on February 23, 2013        Author: 

Director of the European Centre for Law and Justice (ECLJ), Expert at the Council of Europe. This article synthesises a section of a study on “Abortion and the European Convention on Human Rights” that will be published in the coming weeks.

The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or the health of the pregnant woman was endangered, or when the pregnancy was the consequence of a rape. The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman.

Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e. the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention. Read the rest of this entry…



Published on February 21, 2013        Author: 

PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the Faculty of Law, University of Oslo announces Postdoctoral Research Fellows in Political Science, Law, and Political Philosophy/Political Theory. See more here. Deadline for applications: March 5, 2013.


The Asian Society for International Law announces a call for papers for their 4th biennial conference. Details here.


The Graduate Program ‘Law and Economics of Money and Finance’ together with the Cluster of Excellence ‘Normative Orders’ at Goethe University Frankfurt are convening the international and interdisciplinary symposium ‘10 Years Equator Principles: Fragment of a Normative Sustainability Order or Business as Usual?’ in order to mark the tenth anniversary of the adoption of the Equator Principles. Bringing together experts on the Equator Principles from academia, the finance industry and civil society, the symposium will assess the Equator Principles’ impact on project finance and, more broadly, sustainable finance and CSR. The symposium will take place on 14/15 March 2013 at the House of Finance of Goethe University Frankfurt. For the symposium program please see here.

The speakers of this year’s symposium are: Foster Deibert (Portigon), Christian Förster (Goethe University), Johan Frijns (Bank Track), Reidar Kvam (International Finance Corporation /World Bank Group), Suellen Lambert Lazarus (Independent Consultant),Ariel Meyerstein (University of California, Berkeley), Niamh O’Sullivan (University of Amsterdam), Bert Scholtens (University of Groningen), Josef Wieland (University of Applied Sciences Konstanz), Cynthia Williams (University of Illinois).


Filed under: EJIL Reports
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Programme of the ESIL Research Forum in Amsterdam

Published on February 19, 2013        Author: 

The full programme of the 2013 Research Forum of the European Society of International Law (ESIL) is now available here. The Forum will reflect on the theme ‘International Law as a Profession’ and will take place in the historical centre of the city of Amsterdam on 23-25 May 2013. Confirmed speakers in the (semi) plenaries include: Samantha Besson, Jochen von Bernstorff, James Crawford, Joan Donoghue, Pierre-Marie Dupuy, Shaheed Fatima, David Kennedy, Anne Orford and Andreas Paulus. The programme also features 15 panels that will discuss cutting edge research- as well as practice-oriented topics by both young and more established scholars. Please register promptly at as the number of seats is limited and the number of participants is increasing swiftly.

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Jobs at Keele

Published on February 19, 2013        Author: 

The University of Keele is recruiting two lecturers and one senior lecturer. The positions are open to any area of law, including international law (adverts here and here).

Filed under: EJIL Reports
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EU–UK–Scotland: How Two Referenda Created a Complicated Love Triangle

Published on February 18, 2013        Author: 

Jure Vidmar is Leverhulme Early Career Fellow in the Oxford Law Faculty, and Research Fellow, St Johns College, University of Oxford. His book Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice will be published in March 2013.

As has already been noted on this blog (here and here) Professors Alan Boyle and James Crawford recently drafted an opinion on the international legal consequences of the Scottish referendum on independence. The Boyle/Crawford argumentation is very straightforward and, in my view, a conventional and uncontroversial account of the applicable international legal framework. However, I see one potential problem which was not (or could not) be considered in the Opinion drafted in December last year. In January 2013, Prime Minister Cameron announced another referendum; this one would be on the UK exiting the EU. Which UK would exit – the one with or the one without Scotland?

It is true that this referendum is not a legal reality at this stage and is merely a political pledge to be fulfilled should the Conservatives win at general elections. But with this possibility on the table, it is not entirely possible to separate the two referenda. Given the special nature of the EU, it is arguable that Scots now no longer know for what kind of an arrangement they are voting if they choose to stay in the UK. Or to put it differently, Scots do not know whether a vote for the UK is also vote to stay in the EU. And this may well be problematic under international law which requires that terms of a referendum on independence should be clear and unambiguous.

What if you are a Scottish voter who does not care about the UK but would vote against independence mainly (or only) because you do not want Scotland to be out of the EU and you do not want to lose your EU citizenship? How do you vote? If you support the UK, you might be out of the EU in the very near future anyway – because of the other referendum. What is more, if the UK eventually leaves the EU, it is quite likely that a vote for Scottish independence would have been a vote for the EU. Indeed, it is more likely that Scotland would join in due course than that the UK, if it left, would re-enter any time soon. So, if you are a Scottish voter and motivated by Scotland staying in the EU; how should you vote in 2014? Assuming you are not a fortune teller and cannot predict what would happen in 2017, you do not know. In 2014, Scots might be asked to go off the deep end without being assured that there is water in the pool. This is precisely what the clarity standards regarding independence referenda try to prevent. Read the rest of this entry…

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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…

Filed under: States and Statehood
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