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The Jus ad Bellum and the Airstrikes in Yemen: Double Standards for Decamping Presidents?

Published on April 30, 2015        Author: 

A democratically elected president has lost control of his country and fears for his safety. He flees and seeks refuge in a more powerful neighbouring State. He writes a letter as the legitimate President, inviting his host State to take military action against the insurgents who have forced him into exile. The host State does so. Will such a situation meet with condemnation or support from the international community? Does it depend on whether the President’s name is Yanukovych or Hadi, and the intervening State is Russia or Saudi Arabia?

Russia’s Sputnik news agency has been quick the draw the parallels between the Russian intervention in Ukraine in 2014 (the jus ad bellum aspects of which have previously been discussed on this blog, including by myself – see here, here and here) and the continuing Saudi-led intervention in Yemen in 2015, seeking to highlight the divergent reaction to two seemingly very similar situations to skewer alleged Western hypocrisy. In contrast, the US State Department’s spokesperson, Marie Harf, denied the parallels between the two cases when quizzed about the issue at a press briefing:

QUESTION: … People have been asking why is it that the president, the Yemeni president, who fled from his capital, remains legitimate in your eyes.

HARF: Well, I think —

QUESTION: Whereas, like another president who fled. (Laughter.) […]

. . .

HARF: It’s completely different.

QUESTION: My question is the same. The similarities between the two cases are striking.

HARF: In that there aren’t many? […]

QUESTION: There are a lot, I think, but anyways —

HARF:Okay. We can agree to disagree.

This blog post is a tentative exploration of the issues raised by a comparison of the two cases. Are there clear standards for identifying the government of a State, for the purpose of determining who can validly consent to military action on the State’s behalf, or are these standards malleable enough that powerful States can produce whatever legal outcome they want? Read the rest of this entry…

Filed under: Government, Use of Force
 
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New EJIL:Live Extra! Joseph Weiler and Dapo Akande Discuss the Relationship Between IHL and IHRL

Published on April 29, 2015        Author: 

The EJIL: Live Extras series comprises short video conversations with leading international law scholars. In our latest EJIL: Live Extra! Joseph Weiler and Dapo Akande of the University of Oxford discuss the relationship between international humanitarian law and international human rights law.

 

Filed under: Announcements and Events, EJIL: Live!
 
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Individual Compensation Reloaded: German Liability for Unlawful Acts in Bello

Published on April 29, 2015        Author: 

On 30 April, the Appeals Court of Cologne will rule on whether Germany has to pay compensation to victims of an airstrike in Afghanistan. Its judgment is likely to consolidate the new German approach to questions of compensation for armed activities which – given the increasing relevance of litigation about armed conflicts – merits a brief treatment.

Background

In 2009, a German colonel ordered an airstrike against two fuel trucks that were stuck on a sandbank near the NATO camp in Kunduz/Afghanistan. Due to the tense situation in Kunduz, he assumed that the fuel or the trucks could be used for a bomb against ISAF units and thus represented an imminent threat. The airstrike caused the death of 142 individuals. Because many among the victims were civilians, it has become the most controversial modern operation involving the German Armed Forces (leading, amongst other things, to the resignation of a minister of government, criminal investigations and the establishment of a parliamentary investigation).

Seeking compensation for damages on the basis of domestic rules of governmental liability (Amtshaftung), victims filed a claim against the Federal Republic of Germany. In 2013, the Court of First Instance in Bonn rejected the claim (for details see my article in the JICJ). Although it held that governmental liability in principle applies to acts in bello, the Court concluded that the colonel did not breach his official duty to comply with international humanitarian law. A press release, summarizing the oral proceedings and the taking of evidence issued in March, indicates that the Cologne Appeals Court intends to uphold the result of the Court of First Instance.

As I have argued elsewhere (see JICJ article, at p 631-633), the legal assessment made by the Court of First Instance is questionable in several respects. Most importantly, it seems that the colonel did not comply with the customary rule encompassed in Art. 57 (2), a (i) AP I. He failed to do everything feasible to verify that the objectives of the attack were neither civilians nor civilian objects. Certainly, the level of precaution necessary depends on the specific circumstances of the attack. However, in this case the fact that trucks had been stuck for seven hours, and thus did not represent an imminent threat, was not sufficiently taken into account. The adoption of the first instance court’s assessment by the Court of Appeals would therefore be problematic.

While the two courts’ interpretation and application of rules of international humanitarian law is highly fact-dependent, a preliminary aspect is of more general relevance, and highlights the particular approach obtaining under German law: on what basis can Germany be held responsible, before domestic courts, for alleged violations of international humanitarian law? Read the rest of this entry…

Filed under: Armed Conflict, International Humanitarian Law, International Law and Domestic Law
 

Reminder: ESIL Annual Conference 2015, Oslo – Early Bird Registration

Published on April 27, 2015        Author: 

ESIL Annual Conference 2015, Oslo – Registration: early bird fees applicable until 30 April 2015

The 11th Annual Conference of the European Society of International Law (Oslo, September 10-12, 2015) will be hosted by the University of Oslo’s PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order.

The conference is entitled “The Judicialization of International Law – A Mixed Blessing ?”. The conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. The conference will feature plenary sessions, fora with invited speakers, and a number of agorae with selected speakers. Invited speakers include current and former judges of various international courts, as well as legal practitioners and scholars of several disciplines.

Early bird registration fees are applicable until 30 April 2015. Please visit the conference website for more information.

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Announcements: CfP on Int’l Health Law; Int’l Energy Law Summer Course: Extended Registration Deadline (Thessaloniki); Int’l Law and Time Conference (Geneva)

Published on April 25, 2015        Author: 

1.  The Groningen Journal of International Law is now taking abstracts for its Volume III, Issue II on International Health Law. Deadline for submissions is 1 May 2015, and more information is available here.

2.  The Kalliopi Koufa Foundation on the Promotion of International Law and Human Rights organizes the inaugural session of the Thessaloniki Summer Courses on International Law and Human Rights from 1 to 10 July 2015 in Thessaloniki, Greece, on the topic of “International Aspects and Issues of Energy Law”. The programme is open to advanced law students, researchers and practitioners. The Faculty of this 10-day intensive course on international energy law includes Catherine Redgwell (Oxford), August Reinisch(Vienna), Andreas Ziegler (Lausanne), Andrea Bjorklund (McGill), Anastasia Strati (Brussels), Danae Azaria (UCL). The inaugural lesson will be given by Christos Rozakis (President of the Administrative Court of the CoE). There will be also a series of seminars on the geopolitics of energy. The registration deadline has been extended until 15 May 2015. The registration fee is 300 euros. For more information including the provisional programme, please visit here.

3.  Conference on International Law and Time (12-13 June 2015) – Registration Open. The Graduate Institute of International and Development Studies, Geneva (IHEID), International Law Department holds a conference entitled “International Law and Time” in Geneva, Switzerland, from 12-13 June 2015. Registration for the conference is now open. For more information please visit the conference website or email lawconference {at} graduateinstitute(.)ch. The conference is intended to create an opportunity to reflect and debate the fundamentals of international law in depth as time is an inherent component of many of the most important international law concepts. Time, however, also fundamentally determines international law as a field. The notion of time cuts across themes to provide context and sensitivity to the shifting values of international society. International law has been in constant dynamic change since its inception. Capturing and understanding this change in time is one of the discipline’s fundamental challenges, as is the difficulty of working with the constantly changing materiae of international law in practice. Panels will address the significance, measurement and narratives of time, as well as their impact on international law.

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Are Human Rights Hurting Migrants at Sea?

Published on April 24, 2015        Author: 

Every year hundreds of thousands of irregular migrants, including asylum seekers and refugees, cross the Mediterranean Sea to enter Europe. More than 200.000 are thought to have crossed in 2014, reaching the coasts of Italy, Greece, Spain, Malta and Cyprus.

The reasons for the crossing are obvious. Some migrants flee conflict and persecution; others simply seek a better life in Europe. Regardless of motivations, crossing is not without perils. The UNHCR estimates that 3.500 lives were lost in 2014 while more than two thousand people have died since 1 January 2015.

After more than 300 migrants drowned near the island of Lampedusa in 2013, the Italian Government established the so-called Operation Mare Nostrum. Mare Nostrum was a humanitarian success. The International Organization for Migration applauded the “heroic work of Italy’s maritime forces”, which rescued some 100.000 people between 2013 and 2014. Despite widespread praise, Mare Nostrum ended in October 2014.

In its place, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (known by the more palatable name Frontex) established operation Triton. Read the rest of this entry…

Filed under: Council of Europe, EJIL Analysis, European Convention on Human Rights, Extraterritorial Application, Law of the Sea, Migration
 

The Fog of Law

Published on April 21, 2015        Author: 

Eirik Bjorge and Marko Milanovic have written trenchant critiques of the Policy Exchange Report: Clearing the Fog of Law. They have pointed out the Report’s flaws with regard to the travaux of the Convention, the intention of the drafters, the evolution of the case-law on extraterritoriality, and the relationship between human rights law and the law of war. I wish to add three small points to the discussion.

First, it is worth dwelling on the Report’s subtitle: ‘Saving our Armed Forces from Defeat by Judicial Diktat.’ All of us who write, whether in the academy or policy-circles, face the challenge of thinking up interesting titles for our pieces, predominantly in the hope that they will be read. We are not always successful. But to retreat to hysterical overstatement is no solution, especially when it rests on flawed analysis and insufficiently motivated argument. Leaving aside the strained relationship between the parochial ‘our’ in the sub-title and the purposes of academic freedom, the Report produces little evidence of any real threat of grave defeat. We are simply told that the ‘spectre’ of the ‘imperial judiciary’ now ‘haunts’ commanders; that the departure from the European Court of Human Rights’ decision in Bankovic and its decision in Al-Jedda entail ‘human rights imperialism’ and ‘judicial imperialism’ respectively; and that the UK Supreme Court’s decision in Smith has already ‘compromised the warfighting capabilities of the British Armed Forces.’

Second, there is an obvious disjuncture in the Report between cases such as Smith involving British troops and cases such as Al-Skeini involving foreign citizens. In response to the second class of cases, the authors argue that their intention isn’t to make the law fall silent amid the clash of arms but to apply and strengthen the laws of war. In response to the first class – Smith and its ilk – this is not an option: there is no Geneva Convention V for the Amelioration of the Rights of State Parties’ Own Soldiers. Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis, European Court of Human Rights, Human Rights
 

The Law and Politics of the Kosovo Advisory Opinion

Published on April 20, 2015        Author: 

The Law and Politics of the Kosovo Advisory OpinionI’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.

Here are the blurb and the ToC:

This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.

Read the rest of this entry…

Filed under: EJIL Analysis, EJIL Book Discussion, International Court of Justice, States and Statehood
 

Announcements: Human Rights Integration Conference (Ghent); ICC Summer School (Galway); Conference on ECHR & General Int’l Law (Strasbourg); Gary Born’s ESIL Lecture Online; New EJIL:Live! Episode Online; Seminar on Public Int’l Law and EU Law (London); Int’l Law MOOC

Published on April 18, 2015        Author: 

1.  On 9-11 December 2015, the Human Rights Integration network will organize an international conference in Ghent to explore the foundations and implications of human rights fragmentation and integration, entitled ‘The Global Challenge of Human Rights Integration-Towards a Users’ Perspective’. As a political and ethical project, human rights are one, indivisible and universal. As law however, they are fragmented. Human rights law today is characterized by the simultaneous existence of a large variety of norms, developed by numerous actors, at different geographical levels, addressing similar or different topics, individuals and groups. As a result, human rights scholarship often focuses on one or more specific rights, target groups or jurisdictions, which in turn contributes to creating a fragmented, compartmentalized view of human rights law. However, rights holders, duty bearers and other ‘users’ of human rights are confronted simultaneously with multiple layers of human rights law, amongst which there is generally little coordination. For justice seekers, the complex architecture of human rights may create opportunities as well as obstacles. The starting proposition of the conference organizers is that it is highly relevant for human rights scholars to add an integrated perspective of human rights law to our work. This implies studying not only separate norms or mechanisms, but also their simultaneous application, what that implies for the users of human rights law, and how these users deal with that reality. The conference intends to facilitate a dialogue among legal and socio-legal perspectives on human rights fragmentation and integration. Through this dialogue, the conceptual, theoretical and methodological foundations of human rights fragmentation and integration will be refined and the legal and practical implications of human rights fragmentation and integration will be studied. For more information on the conference see here.

2.  The Irish Centre for Human Rights is hosting its annual International Criminal Court Summer School from 15-19 June 2015 at NUI Galway. An early bird registration fee of €400 is available before 20 April 2015 (registration costs €450 after this date). To register and for more information, please see here.

3.  The European Convention on Human Rights and General International Law. A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars. More information here. Read the rest of this entry…

Filed under: Announcements and Events
 
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Mauritius v. UK: Chagos Marine Protected Area Unlawful

Published on April 17, 2015        Author: 

On 1 April 2010, the UK declared the world’s largest Marine Protected Area (MPA) around the Chagos Archipelago. The Archipelago is one of 14 remaining British overseas territories, administered by the UK as the British Indian Ocean Territory (BIOT). In contrast to other British overseas territories such as the Falklands/Malvinas and Gibraltar, BIOT is not on the UN list of non-self-governing territories. There is currently no permanent local population because the UK cleared the archipelago of the Chagossians between 1968 and 1973.

Mauritius and the UK both claim sovereignty over the Chagos Archipelago. The largest island of the Chagos Archipelago – Diego Garcia – has since the late 1960s housed the most important US military base in the Indian Ocean. The UK leased the island for defense purposes to the US in 1966, prior to Mauritian independence in 1968. The 50-year lease of Diego Garcia is due to be renewed in 2016.

In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK), a tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) issued its award on 18 March 2015. The tribunal found that the UK’s declaration of the MPA disregarded Mauritius’ rights, rendering the MPA unlawful. The award raises the prospect that the renewal of the lease in 2016 will require the UK to meaningfully consult Mauritius.

Mauritius made four submissions to the tribunal:

First: The UK was not entitled to declare a MPA because it was not a coastal state under UNCLOS (the ‘sovereignty claim’, according to the UK)

Second: The UK was prevented from unilaterally declaring the MPA due to Mauritius’ rights as a coastal state under UNCLOS

Third: The UK may not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any full submission to the Commission that Mauritius may make

Fourth: The UK’s declaration of the MPA was incompatible with substantive and procedural obligations under UNCLOS

The jurisdictional part of the award is centered on whether the four submissions concern the ‘interpretation or application of UNCLOS’ under Article 288 UNCLOS. This blog entry concentrates on the merits as regards the Fourth Submission. Read the rest of this entry…

Filed under: EJIL Analysis, Indigenous Peoples, Inter-State Arbitration, Law of the Sea, Self-Determination, States and Statehood
 
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