Home 2013 April (Page 2)

The Tallinn Manual on the International Law applicable to Cyber Warfare

Published on April 15, 2013        Author: 

Liis Vihul is the Tallinn Manual Project Manager, NATO Cooperative Cyber Defence Centre of Excellence, Tallinn, Estonia.

Although scholars began to assess how international law applies in the cyber context during the late 1990s, it was not until the 2007 cyber operations directed at Estonia that the international community became fully sensitised to the subject. For the first time, it became publicly clear that cyber operations are a powerful tool for conveying political or strategic messages by States, non-State groups and individual hackers.  The operations also made the international community aware of how cyber operations could be used to dramatically disrupt life in a country.

The incidents led in part to the establishment of the NATO Cooperative Cyber Defence Centre of Excellence (NATO CCD COE), an international military organisation located in Tallinn, the capital of Estonia.  The Centre is a partnership between eleven States.

In late 2009, NATO CCD COE invited a group of twenty international law scholars and operational legal advisers (the International Group of Experts), under the directorship of Professor Michael Schmitt of the United States Naval War College, to conduct a three year research project examining the norms applicable during cyber warfare. The product of this effort is the “Tallinn Manual on the International Law Applicable to Cyber Warfare”, published in March by Cambridge University Press.

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Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic

Published on April 13, 2013        Author: 

Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva.

The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. At a time when the situation in Syria was still marked by the crackdown of regime forces on protesters, the Human Rights Council decided in August 2011 to establish a Commission of Inquiry. The Commission is mandated to investigate all alleged violations of international human rights law since March 2011, to establish facts, and to identify perpetrators in order to ensure accountability in the future. Documenting human rights violations at the different stages of the crisis, the Commission of Inquiry made some remarkable findings, particularly on the law applicable to acts of violence committed by opposition forces. First, in a situation where international humanitarian law did not apply because the Commission was unable to establish the existence of an armed conflict, it found that armed groups were bound by human rights obligations constituting peremptory international law. Second, in its recent report of February 2013, the Commission found armed groups in violation of Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

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The Law Applicable to Peacekeepers Deployed in Situations where there is No Armed Conflict

Published on April 10, 2013        Author: 

Siobhán Wills  is Professor of Law at the University of Ulster, Northern Ireland.

I have been researching the peacekeeping operation in Haiti, MINUSTAH, and in doing so coming up against a problem that I would appreciate the  thoughts of EJIL:Talk! readers on. There have been a number of incidents that have raised complaints of excessive use of force and counter arguments that the force was not excessive.  My query is simply ‘what law applies’ to the peacekeeping mission (in particular in the context of the use of force) given that there is not, and never was, an armed conflict in Haiti. When the Security Council authorises use of force (whether in an enforcement action against a State or in a peacekeeping operation) I assume that the coalitions of the willing or UN troops undertaking the action must exercise their authority to use force in accordance with international law. But if there is no armed conflict what law governs peacekeepers’ use of force under Chapter VII?

Reports and commentaries by MINUSTAH personnel suggest that the commanders of MINUSTAH, and their political advisors at the UN, and advisors from the US, France and Canada, believe that since MINUSTAH has a Chapter VII mandate they can use whatever force they deem necessary to carry out that mandate so long as they comply with their Rules of Engagement (ROE). However, presumably the ROE must be drafted to fit within the constraints of the applicable international law framework. MINUSTAH’s ROE are not publicly available but the language used in MINUSTAH reports and commentaries suggests that International Humanitarian Law (IHL) is the overall governing framework within which the mission believes it ought to be operating. (Certainly mission personnel do not appear to be thinking within a Law Enforcement framework and frequent references to ‘collateral damage’ suggest an IHL framework). This would not be surprising since IHL is the law in which peacekeepers are primarily trained ie when peacekeepers initiate use of force they do so within a legal framework (they don’t make up their own rules just because they have a Chapter VII mandate) and that framework is normally IHL.

I have not spoken to anyone from MINUSTAH but I have spoken to commanders that have served in UN peacekeeping missions in other countries where there is no armed conflict (UNMIL in particular) and their view is that, regardless of whether or not there is an armed conflict in the country to which they are deployed, if the mission has a Chapter VII mandate it may use whatever force is necessary to carry out that mandate; and when the mission does use force for this purpose IHL becomes applicable to that particular operation.

I have sympathy for commanders trying to carry out their tasks under a Chapter VII mandate in a violent and volatile situation; but I do not understand how (or on what basis) IHL can be applicable where there is no armed conflict. Read the rest of this entry…


What is the Meaning of “Consensus” in International Decision Making?

Published on April 8, 2013        Author: 

On 28 March, the negotiators at the Final UN Diplomatic Conference on the Arms Trade Treaty failed to adopt the Arms Trade Treaty (see BBC report here) by consensus.  A few days later the Arms Trade Treaty was adopted by the United Nations General Assembly (by a vote of 154 in favour, three against and 23 abstentions – for a really useful account of the negotiations see the Arms Trade Treaty Legal Blog). At the Diplomatic Conference, the rules of procedure required that the treaty be adopted by “consensus”. However, at the end of that conference, Syria, Iran and North Korea objected to the text. According to the bloggers at the ATT Legal Blog there then ensued a discussion of whether the objection by these three States could stand in the way of the adoption of the treaty by consensus, with some States taking the view that acceptance of the text by the overwhelming majority of States was sufficient to establish consensus despite the expressed opposition of three States. However, the President of the Conference ruled that there was no consensus and that the treaty could not be adopted.

The wranglings about the meaning of “consensus” have a broad importance for decision-making with regard to treaties and in other international conferences. Since the 1970s it has become standard practice in many important diplomatic conferences that decisions are taken, where possible, by consensus. Although this procedural device is ubiquitous, as well as being important for the way in which international law is made, the arguments at the ATT conference lay bare the ambiguity that lies at the heart of this concept. There is no consensus on the meaning of “consensus”. The consensus procedure is an important device for achieving broad based agreement on international treaties. It is therefore important to have some clarity on what it means. Lack of clarity on the procedure might well have an adverse impact on the process by which treaties and other international decisions are reached with the result that the substantive outcomes might be less desirable.

The ATT Legal Blog reports that:

Mexico said that the overwhelming majority of States were in a position to adopt the treaty text. Mexico suggested to proceed to the adoption of the text as there is no established definition of the term “consensus” in the United Nations. Nigeria supported Mexico. Japan also supported Mexico. Costa Rica then supported Mexico’s statement. Chile then supported Mexico’s statement. Colombia “resolutely” supported Mexico. Read the rest of this entry…


James Stewart on Perisic

Published on April 7, 2013        Author: 

Readers might be interested in James Stewart’s analysis on OJ (here and here) of the ICTY Appeals Chamber’s Perisic judgment – James is rightly highly critical of the Chamber’s analysis with regard to aiding and abetting liability and specific direction. For my own take on the judgment and an outline of the issues see my earlier post here.

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Published on April 7, 2013        Author: 

On 11/12 April, the Schools of Law of the University of Glasgow and Queen Mary, University of London, together with the Ministry of Foreign Affairs of Poland, are hosting a workshop entitled ‘Structural Challenges Facing International Organisations: Re-Assessing the League of Nations’ (Lincoln’s Inn Fields, London). The workshop will discuss key challenges facing international organisations, such as the tension between coherence and wide membership and the balance to be struck between stability and reform. It does so by looking at the example of the League of Nations as the first attempt at ‘world organisation’. The keynote address on ‘Lessons from the League of Nations’ will be by Mr Stephen Mathias, UN Assistant Secretary-General for Legal Affairs (New York). To attend, please register here or email Christian J. Tams at christian.tams {at}

Filed under: EJIL Analysis
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EJIL and EJIL:Talk!

Published on April 6, 2013        Author: 

On a regular basis I am asked about the relationship between EJIL and its (very successful) blog, EJIL: Talk! There is a substantive dimension to the question and a procedural-management dimension which I will address in turn.

EJIL and EJIL: Talk! The Substantive Relationship. The internet has changed scholarship in profound ways, mostly positive, some negative, and has also changed the function and identity of scholarly journals. I recall the days when at EJIL we would scurry around to find someone who would write a quick comment, to appear in the next issue when, say, the ICJ or Appellate Body of the WTO (yes, EJIL never considered international economic law as a stepson) handed down a decision. Today, by the time the next issue appears, there will be endless commentary on the net and, in all likelihood, a few SSRN papers as well. In some ways, this has been liberating, since it has enabled EJIL to focus on the deeper and longer lasting contributions  ̶ the standard yardstick we apply to any submission in this regard is: Will this be interesting, so far as we can tell, in five years from now? Anything less than that we consider ephemera. We do not publish case notes as such or ‘recent developments’, but we are very happy with our occasional series, ‘Critical Review of International Jurisprudence’ and ‘Critical Review of International Governance’, which usually take the form of a review of a line of cases or of a certain international legal praxis, with a view not only of informing, but also conceptualizing and evaluating. We believe these contributions also have lasting value.

The push to establish EJIL: Talk! came from our conviction that the authors and readers of EJIL are among the most qualified to offer reflection and commentary on a more immediate and ongoing basis  ̶  a commentary which had been squeezed out of EJIL as explained above. Blogging seemed a promising avenue. We surveyed the blogosphere and drew some conclusions as to the identity of EJIL: Talk! It would be semi-moderated, meaning that a first posting would have to be approved by the blog masters, who would also reserve the right to remove or suggest amendments to inappropriate postings. We would not practise content censorship except in extreme situations  ̶  verified libel or opinions universally accepted as beyond the pale, such as holocaust denial and the like. But we would be quite severe as to the tone of EJIL: Talk!, insisting that all submissions and comments (!) be sober in tone and, even when in serious disagreement with an interlocutor, respectful in idiom. When it comes to content itself we welcome the radical and innovative  ̶  there have been some spectacular postings of this nature. When it comes to manner of expression we prefer to err on the side of stodginess. We have seen too many blogs descend into shouting matches and worse. On one or two occasions I think we have come close to the line, e.g. some of the commentary following our Armenia Genocide exchange (see here and here). I have asked the blog masters to be vigilant.

I consider EJIL: Talk! to be very successful by a number of yardsticks. Read the rest of this entry…

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The Strange Case of Dr. Ivana Radačić

Published on April 5, 2013        Author: 

I have never met Dr. Radačić, but we have published a piece by her in EJIL. Her career has hit a road block for reasons which, I believe, are of interest to the definition, scope and place of international legal scholarship within the academy and to the processes with which careers are made or unmade.

In Croatia, apparently the first step in an academic career is to obtain the title of Research Associate/Lecturer, the qualification for which are, inter alia, having a Ph.D and the publication of at least six scholarly articles.

Now comes the rub: one has to be a Research Associate/Lecturer in a specific branch of law which corresponds to the departmental divisions within the overall faculties – in our case the faculties of law. Getting this title in Croatia involves a two-stage process: a positive assessment by a law faculty, which is then sent for approval (or otherwise) to the National Committee of Law.

Here is a sample of titles in English which form part of Dr. Radačić’s corpus of work. Most of them can be found on the web:

•        Gender Equality Jurisprudence of the ECHR  ̶ which we published in EJIL

•        The European Court Approach to Sex Discrimination  ̶ European Gender Equality Law Review

•        Feminism and Human Rights – The Inclusive Approach to Interpreting International Human Rights Law  – UCL Jurisprudence Review

•        Rape Cases in the Jurisprudence of the European Court of Human Rights  – European Human Rights Law Review

•        Religious Symbols in Educational Institutions – Jurisprudence of the ECHR  – Religion and Human Rights Review

•        The Margin of Appreciation, Consensus, Morality and the Rights of Vulnerable Groups – Zb. Prav. fak. Rij.

•        Human Rights of Women and the Public/Private divide in International Human Rights Law – Croatia Yearbook of European Law and Policy.

In 2009 a committee of the Law Faculty of Zagreb confirmed that Dr. Radačić met the criteria for scientific appointment, but in the interdisciplinary field of gender studies and not under any recognized branch of law  ̶  including international law. This of course left her in a blind alleyway.  More recently, in January 2012, the Osijek Law School confirmed that her work did fall within the branch of international law, even though some of it could also come under family law or criminal law. They made a positive recommendation, but it was turned down this time by a majority decision of the National Committee, stating that her work did not fall within the field of international law. This Committee was apparently composed in part by members of the Zagreb faculty who had either been part of the earlier (negative) process or had publicly expressed opinions on her non-suitability. The National Committee does not publish a ‘motivation’ for its decision. ‘Kafkaesque’ is the term that comes to my mind.

 Dr. Radačić has started legal proceedings in Croatia – but the windmills of justice are notoriously slow and the (understandable) reluctance of courts to intervene in academic decisions is well known. I am not holding my breath. Read the rest of this entry…

Filed under: Editorials

Looking Back at EJIL 2012 – The Stats

Published on April 4, 2013        Author: 

This is the time of year when we look back and collate some statistics on the publication record of EJIL.

Here is a new statistic. In a previous Editorial (‘Demystifying the Editorial Process’), I explained that the Editorial Board did not regard EJIL as a mere refereeing service of the unsolicited submissions which arrive week in, week out. We also like proactively to explore areas of international law, raise questions, set scholarly agendas typically by commissioned symposia. We believe that this approach is what gives EJIL its distinct identity. I ‘guesstimated’ that the balance between solicited and unsolicited pieces was more or less half and half. Here are the hard numbers for 2012:

  • Solicited pieces: 23 for a total of 361 published pages
  • Unsolicited pieces: 25 for a total of 588 published pages.

We continue to think that we strike the right balance; let us know if you think otherwise.

Now to our ‘normal’ stats for 2012. A brief reminder: data for published articles reflects submissions and acceptances which in part took place the year before.


The percentage of submissions by women rose in 2012 to 33%, 12 percentage points higher than in 2011. Read the rest of this entry…

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Changes in the Masthead – Our Scientific Advisory Board

Published on April 4, 2013        Author: 

Some years ago our Board of Editors took the decision to involve a broader range of scholars in the running of our Journal by establishing a Scientific Advisory Board.  That decision has paid off. The intellectual and creative participation of this group of committed scholars has contributed in very positive ways to the development of our Journal. The time has come to refresh our Scientific Advisory Board.   We thank Vera Gowlland Debbas and Linos-Alexander Sicilianos for their valuable service to EJIL and we welcome a new group of members: Veronika Bilková, Laurence Boisson de Chazournes, Enzo Cannizzaro, Diane Desierto, Helen Keller, Doreen Lustig, Anthea Roberts and Christian Tams. Dapo Akande and Iain Scobbie, who also act as blog masters for EJIL: Talk!, will remain on the SAB, and we thank them for their continuing service.

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