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New Issue of EJIL (Vol. 26: No. 2) Out Tomorrow

Published on September 7, 2015        Author: 

The latest issue of the European Journal of International Law will be published tomorrow. Beginning today, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial in the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

Articles

Bernard M. Hoekman and Petros C. Mavroidis, WTO ‘à la carte’ or ‘menu du jour’? Assessing the Case for More Plurilateral Agreements [full text available without subscription]

Kirsty Gover, Settler-­‐state Political Theory, ‘CANZUS’ and the UN Declaration on the Rights of Indigenous Peoples

Ilias Bantekas, Land Rights in Nineteenth-Century Ottoman State Succession Treaties

Oren Perez, The Hybrid Legal-­‐Scientific Dynamic of Transnational Scientific Institutions

Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion [full text available without subscription]

New Voices: A Selection from the Third Annual Junior Faculty Forum for International Law

Guy Fiti Sinclair, State Formation, Liberal Reform and the Growth of International Organizations

Ilias Plakokefalos, Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Daniel Joyce, Internet Freedom and Human Rights Read the rest of this entry…

 
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Announcements: 14th Annual Colloquium of the IUCN Academy of Environmental Law; University of Luxembourg conference on ‘the European Union as an Actor in International Economic Law’; 11th Annual Conference of the European Society of International Law

Published on September 5, 2015        Author: 

1. 14th Annual Colloquium of the IUCN Academy of Environmental Law. PluriCourts, Center of Excellence for the Study of the Legitimacy of International Courts and Tribunals at the University of Oslo, will host the 14th Annual Colloquium of the IUCN Academy of Environmental Law from 20-25 June 2016. For further information, see here. The theme of the Colloquium is “The Environment in Court – Environmental protection in national and international courts, tribunals, and compliance mechanisms”.

In the context of the Sustainable Developments Goals, Principle 10 of the Rio Declaration, as well as the Aarhus Convention, the idea of strengthening an environmental rule of law through access to justice has gathered considerable momentum. This Colloquium seeks to address both procedural and substantive aspects of environmental adjudication, in national, regional and international courts and tribunals, as well as non-compliance mechanisms of multilateral environmental treaties.

2. University of Luxembourg conference  on ‘the European Union as an Actor in International Economic Law’. On 1-2 October 2015, the University of Luxembourg, in cooperation with the T.M.C. Asser Instituut and with the support of the Fonds National de la Recherche Luxembourg, will be hosting a conference on ‘the European Union as an Actor in International Economic Law’. Read the rest of this entry…

Filed under: Announcements and Events
 
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The Drowning Child

Published on September 3, 2015        Author: 

If you haven’t already – read, look, and weep. Then reflect, perhaps, on why and how it is that such images are able to penetrate the walls we erect to shield ourselves from an uncomfortable reality, even while we are rationally fully aware of that reality. Having done so, I could not help but remember this other, hypothetical drowning child (see also here and here):

To challenge my students to think about the ethics of what we owe to people in need, I ask them to imagine that their route to the university takes them past a shallow pond. One morning, I say to them, you notice a child has fallen in and appears to be drowning. To wade in and pull the child out would be easy but it will mean that you get your clothes wet and muddy, and by the time you go home and change you will have missed your first class.

I then ask the students: do you have any obligation to rescue the child? Unanimously, the students say they do. The importance of saving a child so far outweighs the cost of getting one’s clothes muddy and missing a class, that they refuse to consider it any kind of excuse for not saving the child. Does it make a difference, I ask, that there are other people walking past the pond who would equally be able to rescue the child but are not doing so? No, the students reply, the fact that others are not doing what they ought to do is no reason why I should not do what I ought to do.

Once we are all clear about our obligations to rescue the drowning child in front of us, I ask: would it make any difference if the child were far away, in another country perhaps, but similarly in danger of death, and equally within your means to save, at no great cost – and absolutely no danger – to yourself? Virtually all agree that distance and nationality make no moral difference to the situation. I then point out that we are all in that situation of the person passing the shallow pond: we can all save lives of people, both children and adults, who would otherwise die, and we can do so at a very small cost to us: the cost of a new CD, a shirt or a night out at a restaurant or concert, can mean the difference between life and death to more than one person somewhere in the world – and overseas aid agencies like Oxfam overcome the problem of acting at a distance.

At this point the students raise various practical difficulties. Can we be sure that our donation will really get to the people who need it? Doesn’t most aid get swallowed up in administrative costs, or waste, or downright corruption? Isn’t the real problem the growing world population, and is there any point in saving lives until the problem has been solved? These questions can all be answered: but I also point out that even if a substantial proportion of our donations were wasted, the cost to us of making the donation is so small, compared to the benefits that it provides when it, or some of it, does get through to those who need our help, that we would still be saving lives at a small cost to ourselves – even if aid organizations were much less efficient than they actually are.

I have always found this argument in its essence to be incredibly compelling, even if I am no utilitarian, and even if Singer’s argument when brought to its fullest is far too demanding of most of us. But even so, as the “migrant” crisis is sweeping Europe, as children are drowning on its shores, I feel that some people who are not moved by the big picture (like this guy) might, perhaps, be moved if they were asked a smaller, more human-scale question: what would you do if you saw a child drowning in a pond?

 

UN Peace Operations: Tracking the Shift from Peacekeeping to Peace Enforcement and State-Building

Published on September 2, 2015        Author: 

On June 16, the UN secretary General’s High-Level Independent Panel released its eagerly awaited review of UN-mandated peacekeeping: ‘Uniting our Strengths for Peace’. A comprehensive assessment of the UN’s evolving role in conflict management and a detailed set of reforms to its peacekeeping architecture, the report has already generated thoughtful analysis, with many observers highlighting the Panel’s principal conclusion that “lasting peace is achieved not through military and technical engagements, but through political solutions” (Executive Summary). This post examines three significant trends in peacekeeping mandates – the use of force, state-building and criminal jurisdiction – which will likely remain contested aspects of UN-mandated conflict resolution going forward. Against the backdrop of the report’s main findings, it argues that the UN’s large-scale operations increasingly blur the lines between political mediation and classical peace-keeping on the one hand, and peace-building, peace enforcement and state-building on the other.

As is well known, peacekeeping missions have operated in increasingly hostile environments since the end of the Cold War. Beginning with the Balkans, Rwanda and Somalia in the 1990s, peacekeepers have often been deployed to areas with little or no peace to keep, while taking on a continuously expanding set of peace-building tasks. This trend has only intensified in the last few years, starting with the UN’s longstanding mission in the Democratic Republic of Congo (MONUSCO), its revamped mission in South Sudan (UNMISS), as well as newly established missions in Mali (MINUSMA) and in the Central African Republic (MINUSCA).

Yet, despite its expanding role in conflict-management, a striking feature of recent UN operations has been the Security Council’s practice of enshrining the classic principles of peacekeeping into mission mandates. Starting with the 2013 renewal of MONUSCO’s mandate, the Security Council has consistently re-affirmed the ‘trinity of virtues’ – impartiality, host state consent and non-use of force beyond self-defence and defence of the mission mandate – in the preambles of its largest peacekeeping operations (DRC: 2013, 2014, 2015; Mali: 2013, 2014, 2015; CAR: 2014, 2015; South Sudan: 2014, 2015). Although their status under international law remains contested, the three classic principles are grounded in an (almost) by-gone era of conflict-management, where UN peacekeepers monitored mutually agreed cease-fires.

Read the rest of this entry…

 

Two Wrongs Don’t Make a Right: Ukraine Retaliates for Savchenko in Violation of IHL

Published on September 1, 2015        Author: 

In our post concerning Ukrainian military pilot Nadiya Savchenko, which can be found here, Anne Quintin and I addressed the International Humanitarian Law (IHL) implications of Russia’s detention and prosecution of the officer, whose ongoing murder trial is postponed pending the outcome of a change of venue motion by the defence. Meanwhile, Ukraine has thrown a judicial rock of its own by detaining two Russian officers – Evgeny Erofeev and Aleksandr Aleksandrov – who face charges of terrorism and aggression in Kiev in the coming weeks. In this post, I would like to identify the contradictions of Ukraine’s positions with respect to the two situations, as well as its concomitant IHL violations, and to address the possibility of reconciling Ukraine’s rhetoric and practice with the rules of IHL.

On or about May 16 2015, two wounded fighters who identified themselves as officers of the Russian army were captured by Ukraine’s Armed Forces (UAF) following a firefight near Lugansk that resulted in the death of one Ukrainian soldier. The detainees were immediately treated and subsequently evacuated to Kiev, where they remain hospitalized to this day. Several days after their capture, both were indicted under Article 258 of the Ukrainian Penal Code (UPC) for their participation in the commission of a terrorist act, organized and carried out by the Lugansk People’s Republic (LPR), resulting in death. Notably, there appears to be no evidence, or allegations, that the Ukrainian soldier was killed in violation of IHL. Most recently, a charge of aggression under Article 437 of the UPC was added to the terrorism charge.

On May 21, the Security Services of Ukraine confirmed that Erofeev was captain, and Aleksandrov sergeant, of the 3rd Brigade of the Special Forces of the Military Intelligence Directorate of the Main Staff of the Armed Forces of the Russian Federation (Russian abbreviation ‘GRU’), with its base in Tolyatti, Russia. Numerous video and newspaper interviews given by the officers revealed that: they were so-called ‘contracted’ (kontraktniki) Special Forces of the GRU deployed to Ukraine on 6 March 2015 in the battalion numbering 220 soldiers; they were dispatched on orders from their superiors who promised double their usual pay; that on the day of their capture their unit, comprised entirely of Russian troops, was stationed near Lugansk and was spotted by the UAF during a reconnaissance mission, prompting a gunfire exchange. Against this evidence, Russia has not relented in its denials of the involvement of Russia’s armed forces in the fighting in Donbass. In fact, on July 21, the Ministry of Defense of Russia declared that even though the two officers underwent military service in Russia, the events in Ukraine linked to them ‘took place after their discharge from military service and were not connected to it.’ On some accounts, the relatives of the accused have confirmed that the soldiers were indeed discharged. Consistent with this storyline, the LPR has maintained that Erofeev and Alexandrov are members of its own police force with no affiliation to the Russian armed forces. Read the rest of this entry…

 
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A Question on Spying and Legal Ethics

Published on September 1, 2015        Author: 

In the wake of the scandal regarding the Croatia/Slovenia arbitration, but also the spats between Australia and East Timor, I have been left wondering with an ethical question: say you are counsel for one of the parties in a case before the ICJ or in an arbitration (but you are not the relevant government’s employee). Imagine if your client comes to you with a document that they could only have obtained by spying on the other party in the proceedings – say a draft of the opposing counsel’s pleadings, or a particularly important piece of undisclosed evidence in the case. Would it be ethical for you to rely on such a document? Would you, say, read your opponent’s draft pleadings? Would it make any difference whether the spying is done against the adversary state or against your opposing counsel directly?

NB: I’m not interested in how the court or tribunal would decide on any issue of admissibility; all I care about is the ethical dimension. For the avoidance of doubt, this is not a dilemma I’m currently facing or ever had to face. But my impression is that this sort of stuff must happen occasionally. Having been involved in some interstate cases, I know that some parties take reasonable security measures (e.g. send drafts or documents only in an encrypted format), while others take virtually none. In this post-Snowden era, such spying would seem trivially easy for many intelligence agencies, especially if no dedicated security measures are in place – the Slovenian arbitrator and agent providing an abject lesson.

Comments from readers much appreciated; anonymous comments with regard to this particular post are welcome.

 
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