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Conference Announcements: Barcelona Workshop on Global Governance; Queen Mary, London Conference on “Authority in a Transnational Age”

Published on September 15, 2013        Author: 

1) IBEI (Institut Barcelona d’Estudis Internacionals) and ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) are organizing the second edition of the Barcelona Workshop on Global Governance, an international workshop to discuss the institutional design of global governance, on 9 & 10 January 2014. The workshop brings together scholars from international relations, international law and related disciplines; its focus this year is on networks in global governance. The aim is to examine the potential and limitations of network approaches, as well as the challenges that networked governance at the global level can pose in terms of effectiveness, accountability and democracy. Confirmed keynote speakers include Deborah Avant (University of Denver), Miles E. Kahler (University of California San Diego) and Magnus Thor Torfasson (Harvard Business School) 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 by 27 September 2013 to info {at} bcnwgg(.)net. Further information is available here .

2) The Centre for Law and Society in a Global Context, at Queen Mary,  University of London, is hosting a Modern Law Review Seminar, on 8-9  November 2013, on the theme: ‘Authority in a Transnational Age’. The  conference offers a multi-disciplinary inquiry – combining philosophy,  sociology, anthropology and history – into how the increasingly transnational context of regulation challenges the concept of authority. Speakers are: Leslie Green, Michel Troper, Matthias Kumm, Neil Walker, Nico Krisch, Paul Schiff Berman, Sally Falk Moore, Roger Cotterrell, Werner Menski, Patrick Glenn, Horatia Muir Watt and Gralf-Peter Calliess. The program, including booking information, is available here .

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Convicted CIA Agent Seeks Pardon from Italian President

Published on September 13, 2013        Author: 

Mr Robert Seldon Lady, one of the CIA agents convicted in absentia in Italy for their involvement in the abduction/rendition of Abu Omar, has petitioned the President of Italy for pardon. The letter is available here, and is a fascinating read (not least because the guy’s (real?) last name is Lady, his middle name reminds me of one of my favourite sci-fi characters, and we can actually see a copy of a CIA agent’s passport). He supports his request with a number of arguments: that he could not properly defend himself as that would require the unauthorized disclosure of classified information; that he was acting under orders and with legal advice that his actions were lawful; and perhaps most interestingly that Italy itself is invoking before Indian courts the functional immunity of its agents who killed a couple of Indian fishermen, essentially asking Italy to apply the same theory on immunity at home that it wishes to apply abroad.

Indeed, earlier this year the Italian president had pardoned US Air Force Colonel Joseph Romano, the only non-CIA employee who was convicted in the Abu Omar affair (BBC News article). From what I can tell the President’s official decision to pardon Romano is not available online, but the presidency press release is available here in Italian. The President invoked inter alia the change in US policy by the Obama administration, the purpose for which Romano was acting in the context of the 9/11 attacks, and the changed normative situation in Italy in respect of immunity regarding crimes committed on Italian soil by NATO troops. We’ll see whether the President will treat Mr Lady in the same way, but if he does it would be hard to see why any of the other 21 CIA agents should not receive pardons as well.

For more background and our earlier coverage, see in particular this post by Francesco Messineo and his JICJ article cited therein, as well as these posts by Dapo on the immunity of the CIA agents, and the posts on the Indian affair by Douglas Guilfoyle and Hari Sankar.

 

Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Published on September 12, 2013        Author: 

Sir Daniel Bethlehem KCMG QCsir-daniel-bethlehem is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.

The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention.  Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally. 

There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence).  The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.  This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.

The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling.  As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case.  Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law.  In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic.  The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy. Read the rest of this entry…

 

Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part II

Published on September 11, 2013        Author: 

PersuasionIn my last post, I noted several gaps in the literature on legal persuasion, notably the reasons actors make legal arguments, the forms those arguments take, and their effectiveness.  In this post, I want to express a few views on the first two of these questions, based on research that reflects my experience in-house at several international institutions whose mission includes encouraging compliance with international norms.  In brief,  I’ve tried to develop a theory under which an international actor (government, NGO, non-state actor, corporation, etc.) seeking to persuade another actor to comply makes decisions about the sort of strategy it will use based on four inputs:

  • Ÿ the nature of the compliance dispute;
  • Ÿ the parties to the dispute;
  • Ÿ the institutional setting for the persuasive process; and
  • Ÿ the traits and sense of identity of the persuading entity.

These inputs will affect all aspects of its persuasive strategy — the timing of the intervention (i.e., the ripeness issue), the specific institutional players it will deploy (e.g., high vs. low-level actors), as well as the substantive content of the argumentation — including, of course, its legal component. (image: illustration of a scene from the novel Persuasion, entitled, “The Unwelcome Hints of Mr. Shepherd, His Agent,” credit)

The legal arguments used by the persuader – the outputs — will also fall along four dimensions.  Those arguments will vary according to what I have termed their:

  • publicity (from secret all the way to public);
  • density (from sparse in terms of detailed legal interpretation all the way to thick with it);
  • tone (from gentle and educative all the way to confrontational); and, most critically for our purposes,
  • directness.

By directness, I mean the centrality that law will assume within the argument for compliance.  The concept of directness helps us understand the nuances of legal argumentation as a way to promote law compliance.  Three options for directness are possible, where, let’s say, X is the behavior required by the law. (I am simplifying based on a notion of law as imposing obligations.) Read the rest of this entry…

 
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Mapping the Debates about Syria

Published on September 10, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

International lawyers are fortunate to be well-served by a number of very well informed and thoughtful blogs. Whether just throwing out an idea for discussion or undertaking a detailed survey of a topic it seems to me that we need to start taking seriously the idea that they are making a lasting contribution to scholarship. This seems especially true in the case of Syria.

The sharp increase in scholarly commentary that has appeared online since the chemical attack on 21 August has added much needed nuance and authority to more general press coverage of the issues. At the same time such a sudden torrent carries the risk of overwhelming our abilities to keep track of what has been said.

To counter this I have created a “Debate Map” on a freely available page within the Oxford Public International Law site which indexes discussions by scholars of the public international law aspects of the debates over military intervention in Syria that have appeared in blogs and newspaper articles (plus two forthcoming journal articles and one recently published article).

It is organized by topic and within each topic I give the date, the author, where it was posted or published, and a brief description of what arguments are being discussed or put forward. It only covers English language materials, focuses on public international law questions (not domestic constitutional law questions). Not every single post that has appeared is included – if two posts are on the same topic but one merely flags up the questions whilst the other one attempts to solve them I have only included the latter post.

Intended users include scholars who want to see what has been written about so far (either just to keep track or to plan their own writing), and lecturers and librarians preparing guides for student discussion. It also might help scholars who want to write a blog post to see where there are gaps in what has been written on.

The aim is to keep this up to date and in due course it will reference published articles and even books. I would be very happy to receive feedback on whether such a  resource is useful, if you feel I have missed something (I cannot guarantee that I will include it of course), or if you have suggestions about the structure of the Map. That can be done by emailing me at john.louth {at} oup(.)com .

If the concept is considered useful I would also be keen on hearing any suggestions for further Maps that people would like to see.

 

Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part I

Published on September 10, 2013        Author: 

Steve RatnerSteven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.

Persuasion is at the heart of the lawyer’s – including the international lawyer’s – task.  The lawyer may be persuading a decisionmaker of the merits of her client’s case; or persuading another party, or even her own client, of the need to follow the law; or persuading lawyers on the other side, or even her own side, of the best legal strategy to pursue to resolve a problem.  For the international lawyer, like the domestic lawyer, most of that persuasion takes place outside any courtroom, whether in negotiations, hearings, private meetings, or public statements.  Those institutions or individuals making the decisions on a client’s interests are far more likely to be regulatory or political actors than they are to be judges – particularly in the international context, where the nuts and bolts of legal claim and counterclaim are still beyond judicial scrutiny. Critical to the lawyer’s role in that process of persuasion is the question of whether, in those settings, a legal argument really works – whether it actually convinces the audience.

Lawyers do not generally ask this question when it comes to courts.  We assume that international and domestic courts will be persuaded by legal arguments because their mandate is to decide cases based on the law alone – such that we’d question their legitimacy if they overtly set aside legal arguments in favor of non-legal arguments (moral, economic, or otherwise, though there can be recourse to ex aequo et bono).  And we would all be guilty of malpractice if we did not present that best legal argument to a court.

But what about the lawyer’s role in persuading all those non-judicial actors – the ones that are more likely to make a difference to the client’s interest?  In the international realm, whatever the client, lawyers have to persuade governments, international organizations, powerful nonstate actors, and the general public.  Beyond the client’s interests, as international lawyers, we are also presumably committed to the idea that international actors follow the rules.  If an actor is violating the law or contemplating doing so, do we know what works to convince it to stop doing so?  How helpful is legal argumentation? Read the rest of this entry…

 

Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica

Published on September 8, 2013        Author: 

Tom Dannenbaum is a Visiting Lecturer in Law and Robina Foundation Human Rights Fellow at Yale Law School and a PhD candidate at Princeton University.

In a couple of posts in 2011, I discussed two nearly identical Hague Court of Appeal judgments on the liability of the Netherlands for the actions of Dutchbat at Srebrenica (see here and here). On Friday, the Dutch Supreme Court upheld both of those judgments. In what follows I’ll reference the Nuhanović decision.

The judgments are important on their own terms, but they are also significant in their implications for the Mothers of Srebrenica litigation against the Netherlands, particularly following the judgment of the European Court of Human Rights this summer upholding the Dutch courts’ acceptance of UN immunity in that context. Coincidentally, Dapo and Manuel Ventura posted on the ECtHR’s decision in Mothers of Srebrenica within minutes of the Dutch Supreme Court’s Nuhanović judgment. I connect back to their post below.

The Supreme Court affirmed the Court of Appeal’s strong approach to dual attribution, holding that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (such that it, too, could be attributed with the wrongdoing). (para 3.11.2). Relatedly, the Court also affirmed the power-to-prevent standard discussed in the second of my earlier posts (paras 3.11.3, 3.12.2, 3.12.3). I have advocated this standard at greater length elsewhere (here and here).

The aspect of Friday’s judgment that did the most work in going beyond the reasoning of the Court of Appeal was the Supreme Court’s discussion of extraterritoriality. It elaborated on two points in this respect (acknowledging explicitly that its discussion on this amounted to obiter dictum).

Read the rest of this entry…

 

Announcements and Events: Conferences in Copenhagen and Cagliari

Published on September 7, 2013        Author: 

1.  The iCourts & Freedom Rights Project, Copenhagen announces a “Conference on the Future Role of the European Court of Human Rights” to be held 15 November 2013. The conference addresses the question of what the role of the ECtHR should – and could – be in the contemporary and future protection of human rights in Europe.  It brings together a distinct group distinguished European judges and renowned scholars from the field of human rights to debate these questions and suggest ways forward for the ECtHR. More information is available at the conference website.

2. The University of Cagliari announces the conference, “Natural Resources Grabbing: Erosion or Legitimate Exercise of State Sovereignty?,” to be held in Cagliari, Italy, 4-5 October 2013. Additional details are available at the conference website. For further information, contact angelica.bonfanti AT unimi DOT it.

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Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Published on September 6, 2013        Author: 

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…

 

Immunity ratione materiae from extradition proceedings: A rejoinder to Thiago Braz Jardim Oliveira

Published on September 5, 2013        Author: 

Roger O’Keefe is University Senior Lecturer and Deputy Director of the Lauterpacht Research Centre for International Law, University of Cambridge.

Before I engage with the substance of Thiago Braz Jardim Oliveira’s excellent reply to my British Yearbook of International Law casenote and Oxford talk (available here) on the Khurts Bat case, I would like to thank him for bringing both to the attention of a far wider audience than they have likely enjoyed until now. We all spend ages working on these things while others are stopping to smell the flowers, often only for the fruits of our labours to lie unread or unheard by all bar those on whom we pull a weapon. So muito obrigado, Thiago.

By way of rejoinder to what Thiago says, I will make only a few brief points.

Any proceedings before a court are by definition judicial proceedings, whether or not they involve the adjudication of the legality of given acts. In those legal systems where a request for extradition is dealt with, at least at a preliminary stage, by a court (and I have always laboured under the belief that this was what made extradition ‘extradition’, as opposed to mere executive surrender of custody), extradition involves judicial proceedings. Where extradition involves judicial proceedings, these proceedings are of a criminal character—that is, they are heard by a criminal court, often in the form of a magistrate, rather than by a civil or administrative court. In short, extradition proceedings, where they take place, are criminal proceedings.

The fact that extradition may not involve judicial proceedings in every legal system (although, again, I had always thought that judicial involvement was the touchstone of extradition) does not mean that international law should not take those extradition proceedings that do occur for what they are, namely judicial proceedings, specifically criminal proceedings. In other words, with respect to states where extradition proceedings do take place, it stands to reason that international law should regulate the availability of those same procedural immunities whose availability it regulates in the context of other criminal proceedings. Read the rest of this entry…