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Blockbuster Strasbourg Judgment on Surveillance in Russia

Published on December 7, 2015        Author: 

Last Friday a unanimous Grand Chamber of the European Court delivered a hugely important judgment in Roman Zakharov v. Russia, no. 47143/06, in which it found serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications. This is set to be a leading Strasbourg authority on assessing the compliance of surveillance measures with human rights law, a topic we’ve already extensively discussed on the blog. This judgment important for a number of reasons.

First, because a unanimous Grand Chamber reaffirmed much of relatively older or Chamber-based case law, and applied the principles it identified robustly. This provides an important indication that the Court remains acutely aware of the dangers surveillance programs possibly pose to democratic societies, and that it will also scrutinize such programs robustly in the cases shortly coming before it, e.g. against the United Kingdom. I must say that I was particularly struck by how the Russian judge in the Court, Judge Dedov, concluded his concurring opinion with a quote from Edward Snowden – with the added irony of Snowden still continuing his sojourn in Russia, the very country whose regulatory system of surveillance the Court exposed as so sorely inadequate.

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Announcements: Frankfurt Investment Law Workshop; NYU School of Law Fellowships; CfP Building Consensus on European Consensus; 5th Annual Junior Faculty Forum for International Law

Published on December 6, 2015        Author: 

1. Frankfurt Investment Law Workshop: ICSID at 50: Investment Arbitration as a Motor of General International Law? For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. This next workshop will run from 11-12 March 2016 and asks whether and to what extent international investment law and investor-State arbitration are ‘motors of general international law’? Contributions to this workshop focus on three areas in which investment law and arbitration might be seen as a motor of legal development: the law of dispute settlement, the law of treaties, and state responsibility. The program is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see herehere and here. If you are interested in participating, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de by 28 February 2016.

2. New York University School of Law Fellowships. New York University School of Law is currently accepting applications for the the following fellowships: (1) the Global Fellows Program, which offers an opportunity for academics, practitioners, government officials and post‐doctoral scholars from around the world to spend a semester or academic year in residence at NYU School of Law. The deadline for applications is 11 January 2016. See here for more information and to apply. Questions should be sent to law.globalvisitors {at} nyu(.)edu; (2) the Emile Noël Fellowship Program, the principle objective of which is scholarship and the advancement of research on the themes prioritized by the Jean Monnet Center for International and Regional Economic Law & Justice. For more information and to apply see here. The deadline for applications is 11 January 2016. Questions should be sent to JeanMonnet {at} nyu(.)edu; and (3) the Visiting Doctoral Researcher Program. Visiting Doctoral Researchers are doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. The deadline for applications is 15 February 2016. See here for more information and to apply. Questions should be sent to jsdcoordinator {at} nyu(.)edu.

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A “Legally Binding Treaty” or Not? The Wrong Question for Paris Climate Summit

Published on December 4, 2015        Author: 

Both media and negotiators are spending an inordinate amount of time on whether the Paris climate summit starting this week should lead to a “legally binding treaty”. For the EU Commission, it “must be”. For US Secretary of State John Kerry “definitely not”.

For realist scholars of international relations this obsession is puzzling. In the absence of an international police force, why care about whether a commitment is legally binding? For international lawyers, in contrast, it seems to confirm the self-standing moral authority of their discipline. Why else would politicians hackle about bindingness?

The Paris red herring

Yet, “to treaty or not to treaty” is really not the question. Paris will certainly be a treaty and not be a treaty. Read the rest of this entry…

 

How the Ambiguity of Resolution 2249 Does Its Work

Published on December 3, 2015        Author: 

Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.

When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”

Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:

It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.

And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)

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Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 

Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

 

Induction, Assertion and the Limits of the Existing Methodologies to Identify Customary International Law

Published on December 2, 2015        Author: 

Professor Talmon’s article on the methodologies employed by the International Court of Justice to ascertain custom is as important as it is timely now that the International Law Commission is advancing with its study on the identification of customary international law. To contribute to the debate, I propose to elaborate on a crucial question that the piece raises. Why is it that the Court so often resorts to ‘asserting’ customary international law instead of providing more robust reasoning to back up the rules that it identifies? Though the precise reasons why the Court takes the approach it does are a matter for speculation, I suspect that this has to do with limitations that are inherent to the standard methodology to establish custom (the ‘inductive method’, to use Professor Talmon’s terminology), in the shaping of which the Court itself has played a large part.

As Professor Talmon suggests, systemic reasoning – argument by principle and argument by analogy – has been a major catalyst for development in international law, filling gaps that would be left behind if the inductive method were applied. Yet, the inductive method is the best accepted methodology to identify custom insofar as it encapsulates the prevailing view as to what is required by the ‘rule of recognition’ of international law.

The problem with that ‘rule of recognition’ is that it does not allow us to reach any firm conclusions as to the existence of particular rules of custom. That becomes clear when one dissects the inductive method as defined and applied by the International Court. Read the rest of this entry…

 

Methodology and Misdirection: Custom and the ICJ

Published on December 1, 2015        Author: 

In Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, Stefan Talmon revisits the old debate over inductive and deductive methods for finding customary international law (CIL) to see whether we can now, fifty years after the original debates, learn any lessons about whether, when, and how the International Court of Justice uses each. What Talmon finds is that there are no clear patterns in how the ICJ uses each method, and that in fact, it is a third method, assertion, that best exemplifies the Court’s approach. What Talmon only hints at though are much broader lessons—that the ICJ’s failure to adopt a clear methodology for finding customary international law is only a symptom of a much broader problem, that the ICJ has never articulated a clear, coherent explanation of its authority to interpret customary international law or for whom. The ICJ’s efforts to find customary international law may simply be incoherent, a mirage, or even impossible.

The questions that Talmon’s study begs are why. Why isn’t the ICJ more interested in developing a clear methodology and why are there no patterns in the ICJ’s use of deductive or inductive methods? And why aren’t states more concerned? Why haven’t states demanded a clear methodology before treating ICJ decisions on custom as authoritative?

Methodology as Justification

Starting with the first question, the lack of clear methodology hints that the ICJ’s choice of induction, deduction, or assertion has little to do with methodology and everything to do with justification. When the Court invokes each one, it is attempting to justify its authority to interpret or find rules of CIL. Assertion makes this clearest—in the absence of any real evidence of a customary rule, the Court justifies it rules with appeals to “obviousness.” As Talmon wisely observes, both inductive and deductive methods are claims of derivative authority—the Court is not “making” or “choosing” a rule, but merely “finding” the rule made by states themselves in their interaction with one another. This is true whether the Court counts practice and weighs opinio juris or attempts to deduce a specific rule from recognized more general ones. It also tracks the requirement of article 38 of the ICJ Statute that the Court apply “international custom, as evidence of general practice accepted as law.” In essence, the Court‘s claim is that it is simply stepping into the shoes of states and making the same judgment they would make about specific rules and actions.

Negotiated Law and Adjudicated Law

The problem reflected in the ICJ’s methodological muddle is that this task may be impossible and the justification something of a fib. A court cannot step into a state’s shoes. A court forced to find a rule to decide a case is engaged in a fundamentally different activity than a state discerning a rule to guide its actions or jockeying for its favoured interpretation in relations with other states. Read the rest of this entry…

 
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