EJIL: Talk!

Happy New Year & Most Read Posts of 2015

Published on December 31, 2015 Author: Dapo Akande

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As 2015 comes to an end and we enter into 2016, I would like to wish our readers a Happy New Year! I also take the opportunity to provide you with a list of the 20 most read posts for 2015. The information used in compiling the list is from Google Analytics, which tell us which gives us information about the number of times pages on the blog are viewed. The posts listed below were not all written in 2015 but were the ones accessed most frequently in 2015. In fact, nearly half of the posts in the list below were not written in 2015. It is encouraging to see that readers come to blog not just to access current material but that pieces are regarded as having some enduring value. We strive to cover a range of areas of international law on the blog, and the list below, contains pieces with diverse subject matter. However, it is noticeable that right at the top of this list of most read posts, there is a concentration on pieces that touch on the use of force and armed conflict. The list below is reverse order, with the top 10 posts below the fold:

20) On the Entirely Predictable Outcome of Croatia v. Serbia, Marko Milanovic

19) Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ, Antonios Tzanakopoulos (2013)

18) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller

17) European Hypocrisy: TTIP and ISDS, Joseph Weiler

16) Double Duty at the ICC, Daphné Richemond-Barak

15) The Grand Chamber Judgment in Hassan v UK, Lawrence Hill-Cawthorne (2014)

14) The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State” Kai Ambos

13) European Court Decides Al-Skeini and Al-Jedda Marko Milanovic (2011)

12) Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2) Arman Sarvarian & Rudy Baker

11) Espionage & Good Faith in Treaty Negotiations: East Timor v Australia Dapo Akande & Kate Mitchell (2014) Read the rest of this entry…

Filed under: EJIL Analysis

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A Preview of a Prequel: Roger O’Keefe’s Inaugural Lecture

Published on December 30, 2015 Author: Dapo Akande

Early in the New Year, we will have the pleasure of posting Roger O’Keefe’s inaugural lecture, roger-okeefe delivered earlier month, at University College London. In the lecture, “Curriculum Vitae. A Prequel“, Roger:

“tease[s] out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet”.

The lecture is very much in the vein of Roger’s masterful piece: “Once upon a time there was a gap” from about 5 years ago. It is a wonderfully written piece that will have you laughing out loud. Watch out for the cameo appearances made by real life academics (departed and still living – including editors of blogs) as well as judges. The genius of the piece lies in the fact that as much as it is a humorous piece, it is also a most thoughtful piece about international law theory and methodology. It should cause readers to reflect on issues like the role and function of international law (and indeed of international lawyers). Those of you who enjoyed “Once upon A time there was a gap” will surely enjoy this new piece. I would encourage you to re-read the earlier piece to whet the appetite. Those who have not enjoyed the previous piece, well, that can only be because you have not yet read it. So you should also read that earlier piece and look out for the tale about D. H. G. H.-G. Salamander!

Filed under: Announcements and Events, EJIL Analysis

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New EJIL:Live Extra! Joseph Weiler and Lorna McGregor Discuss the Adequacy of ADR to Deal with Human Rights Issues

Published on December 29, 2015 Author: Geraldo Vidigal

The latest in our EJIL:Live! podcast series features an extended conversation between Professor Joseph Weiler, Editor-in-Chief of EJIL, and Professor Lorna McGregor of the University of Essex, whose ground-breaking article, “Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR”, appears in EJIL, Volume 26, Issue 3. The conversation delves deeply into the issues raised by her article, providing an extremely useful complement to the article itself.

Filed under: EJIL Analysis, EJIL: Live!, Human Rights

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Announcements: Lecturer position at University of Glasgow; Harvard Law School Visiting Fellows Program

Published on December 28, 2015 Author: Mary Guest

1. Lecturer position at University of Glasgow. The University of Glasgow (School of Law) is looking to hire a lecturer in international law. The job description can be found here and the closing date for applications is 19 January 2016.

2. Harvard Law School Visiting Fellows Program. The Human Rights Program at Harvard Law School invites applications from scholars, advocates and/or practitioners to be in residence for a period of one or two semesters, to take a step back and conduct a serious scholarly inquiry into the field of human rights. Visiting fellows are usually scholars with a substantial background in human rights, or experienced activists, and preference is given to candidates working on a project related to UN treaty bodies. No more than four appointments for the 2016-17 academic year are expected. Visiting Fellows generally are self-funded, although some limited financial support is available through the Eleanor Roosevelt Fellowship. Additional information may be found here. The deadline for applications is 12 February 2016. Applications are available here.

Filed under: Announcements and Events

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Principle or pragmatism? The Supreme Court’s judgment in Keyu and others v Secretary of State for Foreign & Commonwealth Affairs

Published on December 24, 2015 Author: Harriet Moynihan

On 25 November, the Supreme Court held in Keyu and Others v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 69 that the Foreign & Commonwealth Office was not under a duty, under Article 2 ECHR or domestic law, to hold an inquiry into the circumstances in which 24 unarmed rubber plantation workers were shot dead by British soldiers in 1948 during the emergency in Malaya. The issue in question, of when a state is under a duty to investigate historical events under Article 2 or 3 of the European Convention on Human Rights (ECHR), is increasingly relevant in a myriad of contexts today, including the holding of fresh inquests where new evidence has emerged (see the High Court of Northern Ireland’s recent judgment in Finucane’s (Geraldine) Application), accountability for death and mistreatment in the British colonies (see the Mau Mau litigation) and the prosecution of sexual offences carried out years ago. So what does Keyu add to this developing area?

The claim was brought under several grounds, and the judgment contains interesting dicta on a number of issues, including whether the Wednesbury ‘reasonableness test’ should be replaced by a proportionality test (on which there has been commentary elsewhere, see here), and the extent to which UK human rights jurisprudence should ‘mirror’ that of the ECtHR with regard to temporal jurisdiction. But the main argument in the case, and the focus of this post, is the claim brought under Article 2 ECHR. On this the Court was unanimous, albeit for different reasons.

The ECtHR’s criteria on temporal jurisdiction

In examining the Article 2 claim, the Supreme Court had to apply the complex and unique rules created by the European Court of Human Rights (ECtHR) to circumscribe the limits of its temporal jurisdiction in relation to deaths that took place before the state concerned became a party to the ECHR. The ECtHR has held that while it will not have jurisdiction ratione temporis over the substantive interference of Article 2 involved in such deaths by virtue of the non-retroactivity principle, the procedural obligation to conduct an effective investigation into the deaths is detachable from the substantive interference for the purposes of its jurisdiction ratione temporis (Silih v Slovenia). Read the rest of this entry…

Filed under: European Convention on Human Rights, Right to Life

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UK Parliamentary Inquiry into UK Policy on the Use of Drones for Targeted Killing

Published on December 23, 2015 Author: Dapo Akande

In August this year, the United Kingdom carried out a drone strike in Syria for the purpose of targeting a member of ISIS (see previous discussion on this blog here and here). At the end of October, the Joint Committee on Human Rights of the UK’s Parliament launched an inquiry into the UK government’s policy on the use of drones for targeted killing. Unlike the US, which has published a white paper setting out the legal framework for the US of lethal force against US citizens who are senior members of Al Qaeda, the UK had not previously set out its policy for the use of lethal force in areas outside of active hostilities. The inquiry by the Joint Committee (joint because its membership is drawn both from the House of Commons and the House of Lords) is not particularly directed at the drone strikes that occurred this past summer but has a more general focus. It is intended to tease out the following issues:

clarification of the Government’s policy and its legal basis
the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence
accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?)

The Joint Committee invited the submission of written evidence as part of its inquiry and you can find the evidence submitted to the Committee here. That evidence came from a range of sources, including academics and civil society. Christof Heyns (the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions), Lawrence Hill-Cawthorne, Thompson Chengeta and I put in a written submission which is essentially an article that we are writing on “The Right to Life and the International Law Framework Regulating the Use of Armed Drones” – but which starts with a 7 page summary of the article. That article is a much expanded version of the Report that Christof presented to the UN General Assembly on 25 October 2013, (UN Doc, A/68/30532).

UK Memo to the Committee

The UK Government submitted a 4 page memo to the Joint Committee setting out its response to the issues raised by the Committee. That memo sets out very briefly the UK’s policy on the use of lethal force. Much of what is says is very familiar and simply restates the position of the UK government on a number of important issues regarding the use of force: Read the rest of this entry…

Filed under: EJIL Analysis, Self Defence, Use of Force

Tags: drones

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The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

Published on December 22, 2015 Author: Stevie Martin

In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, Human Rights, Torture

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Russia Defies Strasbourg: Is Contagion Spreading?

Published on December 19, 2015 Author: Philip Leach and Alice Donald

These are undoubtedly troubled times for the European human rights system. We have written previously about the risks that the toxic anti-Strasbourg rhetoric from certain quarters in the UK (frequently, but not exclusively, focused on the question of prisoner voting rights) might have contagious consequences further afield. In his memorandum to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill in October 2013, Council of Europe Human Rights Commissioner Nils Muižnieks issued an ominous warning that continued non-compliance with the Hirst and Greens judgments:

‘…would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system’.

Ed Bates has recently linked the UK Government’s inaction with the failure to implement cases such as Ilgar Mammadov v Azerbaijan, which concerned the politically-motivated prosecution of an opposition politician, as a result of which the Committee of Ministers has called for his release: ‘It seems hard to resist the conclusion that the continued failure to implement Hirst…saps the Convention’s authority…’

Minister for Human Rights Dominic Raab was unrepentant, arguing that it was a ‘matter of democratic principle’ to maintain the ban on prisoner voting ‘for the foreseeable future’. The next examination of the case by the Committee of Ministers may now be up to a year away.

The uncertainty over the UK’s position vis-à-vis the European Convention on Human Rights (ECHR) will linger into the new year, because of the further delays in the publication of the government’s proposals for a ‘British bill of rights’ and its continuing equivocation. When asked recently (of all days, on human rights day…) whether the government would rule out introducing legislation that would ‘purport to relieve’ the UK from its obligation to comply with Strasbourg judgments – as proposed in the Conservative Party consultation document released by former Justice Secretary Chris Grayling – the Minister of State, Lord Faulks, replied: ‘While we want to remain part of the ECHR, we will not stay at any cost’.

David Cameron had also previously refused to rule out withdrawal. Read the rest of this entry…

Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Human Rights

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Announcements: Pluricourts Call for Papers – Strengthening the Validity of International Criminal Tribunals

Published on December 19, 2015 Author: Mary Guest

Pluricourts at the University of Oslo are pleased to announce a call for papers for their conference entitled ‘Strengthening the Validity of International Criminal Tribunals’ which will take place in Oslo on 29 – 30 August 2016. The conference will explore different controversies surrounding the field of international criminal law and seeks practical solutions to make international criminal justice more effective and relevant. They are interested in hearing perspectives from both practitioners and scholars, and welcome contributions from different disciplines. Abstracts are to be submitted by 29 February 2016. Further details can be found on here.

Filed under: Announcements and Events

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Self-defense Operations Against Armed Groups and the Jus in Bello

Published on December 16, 2015 Author: Tilman Rodenhäuser

The Paris shootings and France’s reaction have once again triggered debate on states’ right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the ‘unwilling or unable’ test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marko Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person’s right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis, International Humanitarian Law, Iraq, Non-State Actors, Self Defence, Syria, Terrorism, Use of Force

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Happy New Year & Most Read Posts of 2015

A Preview of a Prequel: Roger O’Keefe’s Inaugural Lecture

New EJIL:Live Extra! Joseph Weiler and Lorna McGregor Discuss the Adequacy of ADR to Deal with Human Rights Issues

Announcements: Lecturer position at University of Glasgow; Harvard Law School Visiting Fellows Program

Principle or pragmatism? The Supreme Court’s judgment in Keyu and others v Secretary of State for Foreign & Commonwealth Affairs

UK Parliamentary Inquiry into UK Policy on the Use of Drones for Targeted Killing

The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

Russia Defies Strasbourg: Is Contagion Spreading?

Announcements: Pluricourts Call for Papers – Strengthening the Validity of International Criminal Tribunals

Self-defense Operations Against Armed Groups and the Jus in Bello

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