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Belgium’s Article 51 Letter to the Security Council [UPDATED]

Published on June 17, 2016        Author: 

On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.

Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.

Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.

UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.

In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.

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Three New ICJ Cases Filed, Including Iran v. United States

Published on June 16, 2016        Author: 

In some ten days the International Court of Justice got three new cases on its docket. First, on 6 June Chile instituted proceedings against Bolivia with regard to a dispute concerning the status and use of the waters of the “Silala River system.” The jurisdictional basis of the case is the compromissory clause in the Pact of Bogota, and the cases raises issues of international watercourses and environmental law.

Second, on 14 June Equatorial Guinea instituted proceedings against France with regard to the immunity from criminal jurisdiction of its Second Vice-President in charge of State Defence and Security, and the legal status of the building which houses its Embassy in France. The Guinean Vice-President is under investigation for corruption offences by French authorities, on the basis that he invested the proceeds of that corruption in France. French prosecutorial and judicial authorities have held that he has no claim to immunity. The building in question was first bought by the Vice-President and then sold by him to the Guinean Embassy; French authorities assert that it is not protected by immunity since it was bought out of the proceeds of the offences for the which the Vice-President in being prosecuted for, and is not part of the diplomatic mission. The jurisdictional basis for the case is the compromissory clauses in the protocol to the Vienna Convention on Diplomatic Relations and the UN Convention against Transnational Organized Crime.

Finally, yesterday Iran instituted proceedings against the United States in a dispute concerning alleged violations of the 1955 Treaty of Amity, and on the basis of the compromissory clause in that Treaty. The case essentially concerns the alleged US failure to respect the immunity of the Iranian Central Bank/Bank Markazi and other Iranian entities, as well as other rights conferred by the Treaty (the Court will not have jurisdiction for violations of customary international law directly, but only insofar as these rules are referred to or assist in the interpretation of the provisions of the Treaty). Enforcement proceedings have been brought in the US against these Iranian entities for Iran’s involvement in terrorist activities; see more on the whole affair the previous post by Victor Grandaubert.

 

Back to the Lawless Jungle? The Vulnerability of EU Anti-Dumping Measures against China after December 2016

Published on June 15, 2016        Author: 

In a previous post, I argued that the European Union would violate its WTO obligations under the WTO Anti-Dumping Agreement (ADA) if EU anti-dumping investigators will continue to apply ‘non-market economy’ (NME) treatment of Chinese exports in AD investigations under the EU Anti-Dumping Regulation (ADR) after December 11, 2016. It is on that day that Art.15(a)(ii) of China’s Accession Protocol (CAP) expires. Until that date, Art.15(a)(ii) provides WTO members with the right to use non-standard price comparison methodologies to determine whether and to what extent Chinese exports have been ‘dumped’ onto a third country market. The provision has served as a legal basis for a highly effective trade defense remedy that allows for the imposition of extraordinarily steep anti-dumping duties against Chinese exports, and Chinese exports of steel products and solar panels in particular. After the expiration of the said provision, the adoption of EU AD measures against China that are based on the use of non-standard price and cost comparison methodologies will be highly vulnerable to legal challenge in WTO Dispute Settlement (DS) proceedings in Geneva. This conclusion, however, does not prejudge the legality of AD measures that the EU has (or will have) adopted against Chinese producers prior to the December deadline. The question about the post-2016 legality of already existing EU AD measures that are “not based on a strict comparison with domestic prices or costs in China” (Art.15(a)(ii) CAP), is particularly relevant in context of the rising amount of new EU AD measures and investigations against Chinese producers of steel and solar panels that the EU has imposed and initiated in the last 18 months. It is this very question that is subject to analysis in this post.

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UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

Published on June 13, 2016        Author: 

Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

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Announcements: Vacancies for PIL Assistant Professors; Disaster Law Essay Contest; Society of International Economic Law Conference; Second Annual Lecture of the Human Rights Centre; Intensive Course on Social Rights; BIICL Brexit Event; BIICL Senior Research Fellow Vacancy

Published on June 12, 2016        Author: 
1. Leiden University Vacancies for PIL Assistant Professors. The Grotius Centre for International Legal Studies at The University of Leiden has two full-time vacancies for assistant professors in Public International Law. Further details can be found here and here. The application deadline is 21 June 2016.

2. Disaster Law Essay Contest. This annual contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), and the International Disaster Law Project (IDL) of the Universities of Bologna, Pisa Sant’Anna, Roma Tre and Uninettuno. The contest is open to students enrolled in an undergraduate or graduate degree program (as an LL.M. or PhD candidate) at any university at the time of submission. Essays may examine any issue related to law and disasters, but must do so either from a comparative or an international law perspective, or both. Submissions may range from 5,000 to 10,000 words. The deadline for submissions is 31 August 2016. For further info see here.

3. The Society of International Economic Law Conference. The Society of International Economic Law (SIEL) is organising its fifth Biennial Global Conference – International Economic Law in a Diverse World – on 7-9 July 2016 at the University of Witwatersrand, in Johannesburg, South Africa. In addition to 24 panel sessions, poster presentations and a roundtable discussion, the Conference programme includes three keynote addresses: (1) Prof James Thuo Gathii “Africa and the Disciplines of International Economic Law: Taking Stock and Moving Forward”; (2) Prof Donald McRae “International Trade Law and International Investment Law: Sub-sets of International Law or Self-contained Regime?”; and (3) Prof Laurence Boisson de Chazournes “Dispute Settlement in a Diverse World”. The current (draft) programme is available here. To register for the conference see here. Current registration rates will only be in effect until 15 June.

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Honour for Professor Colin Warbrick

Published on June 11, 2016        Author: 

I am delighted to note that Professor Colin Warbrick, Emeritus Professor at the University of Birmingham and longtime Professor of International Law at the University of Durham has been appointed in the Queen’s Birthday Honours list as “Companion of the Most Distinguished Order of St Michael and St George” (see here). So from now he is Professor Colin Warbrick CMG.Prof-Colin-Warbrick

For all who know Colin and who know his work, this appointment will immediately be recognised as a well deserved honour. Awards in the Most Distinguished Order of St Michael and St George are for service rendered internationally or in a foreign country and in Colin’s case, he is appointed CMG “for services to international law”. Those services to international law are indeed considerable. He has written on a wide range of areas of international law with some of his best known and most influential work dealing with issues of statehood and recognition, the application of international law in domestic law, and human rights law. He is a co-author of Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights (OUP) now in its 3rd edition. For many years he was editor of the “Current Developments: Public International Law” section of the International and Comparative Law Quarterly, contributing many insightful pieces himself to that section.  He is also a member of the editorial committee of the British Yearbook of International Law and has had joint responsibility for the “United Kingdom Materials on International Law 2013” section of the Yearbook for quite some years. In those roles in the ICLQ and the BYIL Colin has done more than most to bring to light the reality of how international law works and develops, as well as to subject the big issues of the day to powerful international legal analysis. In addition to his scholarship, Colin has also acted as a consultant to international organizations like the Council of Europe and the Organization for Security and Cooperation in Europe, and was a specialist adviser to the Select Committee on the Constitution of the House of Lords. Read the rest of this entry…

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ECHR Jurisdiction and Mass Surveillance: Scrutinising the UK Investigatory Power Tribunal’s Recent Ruling

Published on June 9, 2016        Author: 

Last week, as discussed in a post by Marko Milanovic, the UK Investigatory Powers Tribunal (IPT) ruled that it lacked jurisdiction under the European Convention of Human Rights (ECHR) to adjudicate Article 8 and 10 claims brought by persons “situated outside” of the UK (para. 60). The IPT is a specialised judicial body that hears complaints about surveillance by public bodies, including British security and intelligence agencies. IPT decisions are not subject to direct appeal in the UK. We are therefore likely to see this ruling quickly challenged before the European Court of Human Rights (ECtHR).

Background

The backdrop to this litigation is convoluted. I sketch out the context in this post as I believe it will enrich discussion of the jurisdictional issues which are at the heart of this dispute. In 2013, following the Snowden disclosures, Privacy International, together with nine other NGOs, filed a case before the IPT challenging two aspects of the UK’s surveillance regime. First, the claimants challenged UK access to the communications of persons located within the UK collected by the US National Security Agency (NSA) under PRISM and Upstream. Under PRISM, the NSA collected data from US companies including Yahoo and Google. Under Upstream, the NSA intercepted data in bulk from hundreds of undersea fibre optic cables. Second, the claimants challenged Tempora, the British counterpart to Upstream, under which the Government Communications Headquarters (GCHQ) intercepted data in bulk from over 200 cables landing in the UK.

In February 2015, the IPT found that US-UK intelligence sharing – pursuant to PRISM and Upstream – was unlawful prior to 5 December 2014 because the legal framework governing it was hidden from the public (according to the IPT, that framework was sufficiently disclosed over the course of the proceedings so as to render the sharing of intelligence legal from that point forward). Read the rest of this entry…

 

The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life

Published on June 7, 2016        Author: 

In November 2015, the African Commission on Human and Peoples’ Rights (African Commission) adopted General Comment (GC) no. 3 on the right to life. The GC deals with a variety of issues surrounding the right to life, inter alia the death penalty, use of force in law enforcement and armed conflict, investigations and accountability, and extraterritoriality. The GC also considers the relationship between the African Charter on Human and Peoples’ Rights (ACHPR) and international humanitarian law (IHL):

“32. In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law. This law does not prohibit the use of force in hostilities against lawful targets (for example combatants or civilians directly participating in hostilities) if necessary from a military perspective, provided that, in all circumstances, the rules of distinction, proportionality and precaution in attack are observed. Any violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life.”

This statement is interesting in respect of three elements: the concept of ‘arbitrariness’ with regard to acts of deprivation of life in armed conflict; the interpretive principle employed to connect the ACHPR and IHL; and the legal consequences arising from IHL violations when human rights law also applies. Before taking a closer look at all these points, it should be clarified that the conclusions drawn concern the IHL and human rights obligations of States, and do not necessarily extend to those of non-State actors.

Arbitrary Deprivations of Life in Armed Conflict

In the first place, the African Commission asserted that to determine whether a deprivation of life is arbitrary in armed conflict – and therefore in violation of Article 4 ACHPR – it is necessary to make reference to IHL. Such a stance echoes the International Court of Justice’s (ICJ) dictum in the Nuclear Weapons advisory opinion (para 25). The relevant rules the African Commission identified are those concerning the use of force against individuals and the principles of distinction, proportionality and precautions in attack, which apply in both international and non-international armed conflicts (Articles 48, 51, 57 AP I; 13 AP II; CIHL Study). That the protection of the right to life in connection to hostilities requires taking IHL rules into account has long been affirmed by human rights treaty bodies, particularly the Inter-American Commission and Court (inter alia IAComHR Abella, para 161; IACtHR Santo Domingo Massacre, paras 211‒236; also HRCtee Draft GC 36, para 63). Thus, the African Commission’s GC 3 consolidated an established interpretive trend, according to which IHL provides the yardstick to evaluate when use of force in the conduct of hostilities amounts to arbitrary deprivation of life in violation of relevant human rights norms.

The Principle of Systemic Integration

The second point worthy of note is that the African Commission refrained from invoking lex specialis to read the interplay between IHL and human rights law. Lex specialis, both an interpretive principle and a conflict-solution technique, indicates that:

“if a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former” (ILC Fragmentation Report, para 56).

 The ICJ employed it to contend that either an IHL specific norm (Nuclear Weapons, para 25) or IHL as a legal regime (Wall, para 106) is lex specialis with regard to human rights law. The lex specialis principle has been at times employed by the Inter-American Commission (inter alia Coard, para 42; Gregoria Herminia, para 20), whereas none of the other international bodies have resorted to it. Notably, the ICJ did not invoke it in a successive case where it dealt with the interplay between the two bodies of law (Armed Activities, para 216).

Commentators have extensively analysed, debated and criticised the use of lex specialis in relation to the interaction between IHL and human rights law (inter alia Prud’homme; Hampson, 558‒562; Milanović, Ch 5). Interestingly, some scholars highlighted that in Nuclear Weapons the ICJ did not actually employ lex specialis, but rather another principle of interpretation: systemic integration (d’Aspremont and Tranchez, 238‒241; similarly Gowlland-Debbas, 361). This principle, which is found in Article 31(3)(c) VCLT, provides that in the interpretation of a treaty:

 “[t]here shall be taken into account […] any relevant rules of international law applicable in the relations between the parties”.

 I find this viewpoint particularly convincing. When the ICJ stated that:

 “[t]he test of what is an arbitrary deprivation of life […] falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict” (Nuclear Weapons, para 25),

 it actually made use of systemic integration under the guise of lex specialis (d’Aspremont and Tranchez, 238). Indeed, it interpreted a human rights provision taking into account IHL rules, which is an application of the principle of systemic integration.

International bodies have constantly employed this principle to connect IHL and human rights law rules. They have done so implicitly (HRCtee GC 31, para 11), or by expressly invoking Article 31(3)(c) VCLT (IAComHR Molina, para 121; ECtHR Hassan, para 102), or on the basis of equivalent provisions included in their constitutive instruments, such as Article 29 ACHR (IACtHR Ituango Massacres, para 179) or Articles 60‒61 ACHPR (AComHPR DRC v Burundi et al, para 70). In GC 3, the African Commission followed the same path:

 “During the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law.” (para 13).

 It thereby confirmed that systemic integration, not lex specialis, is the appropriate interpretive principle to operationalise the relationship between norms of IHL and human rights law.

Concurrent Violations of IHL and Human Rights Law

The last point concerns the closing sentence of the above-quoted passage, in which the African Commission affirmed that an attack causing death in violation of IHL rules amounts to an arbitrary deprivation of life. This is a remarkable statement. For the first time, a human rights treaty body made it explicit that, when human rights law norms are placed in the background to favour the application of IHL norms, a breach of the latter entails a violation of the former. A similar reasoning may be found in the Human Rights Committee’s Draft GC 36 (para 63), not yet adopted, whereas it could only be inferred from previous case law (IACtHR Santo Domingo Massacre, paras 230, 237; ECtHR Hassan, para 105, with reference to the right to personal liberty). This constitutes the logical conclusion of the interpretive choice according to which the arbitrariness of a deprivation of life in armed conflict is to be determined with reference to IHL. Of course, the presupposition is that an act is simultaneously in breach of IHL and human rights law. The use of dum-dum bullets, for example, violates IHL but not necessarily human rights law.

In my opinion, it is possible to extract a more general principle concerning the relationship between rules of IHL and human rights law. In instances of norms competition, when a prohibitive human rights law norm is placed in the background in favour of a permissive IHL norm, a violation of the prevailing IHL norm entails a corresponding violation of the background human rights law norm. The result is that the latter re-emerges, bringing along relevant normative consequences. I will just consider here the implications this has for the right to a remedy.

Remedies in Armed Conflict

Individual reparations claims for alleged IHL violations often fail when directly brought in a State’s domestic courts (e.g. Varvarin case). This owes to the uncertainty surrounding the right to reparation under IHL. Articles 3 HC IV, 91 AP I, and corresponding customary rules provide that a State must pay compensation for the breaches of IHL it is responsible for. Several scholars contend that these norms grant victims a right to reparation directly enforceable at domestic level (Kalshoven, 835‒836; Zegveld, 512). State practice and case law is inconsistent in that regard, yet most domestic courts tend to deny such an entitlement to individuals (for an account, CIHL Study, 544‒545;  Henn, 617‒623). However, when a breach of IHL also results in a violation of human rights law, victims may seek redress on the basis of the latter.

All major human rights treaties include a provision concerning the right to an effective remedy (e.g. Articles 7(1)(a) ACHPR; 2(3) ICCPR), which translates to a State obligation to provide individuals with both procedural and substantive domestic remedies (AComHPR GC 3, para. 7). Victims may seek redress for human rights violations first in domestic courts and, if that fails and where possible, with the relevant human rights treaty body. The acknowledgment that a breach of the IHL targeting rules resulting in death amounts to an arbitrary deprivation of life opens the way to individuals for obtaining redress for IHL violations via the right to a remedy under human rights law. This may expand even further. The Inter-American Court indeed held that an attack which fails to comply with IHL rules and endangers the civilian population may amount to a breach of the rights to life and personal integrity (Article 4‒5 ACHR), even if nobody is killed or injured (Santo Domingo Massacre, paras 236‒237; similarly HRCtee Draft GC 36, para 63).

Outlook

The impact of the African Commission’s GC is possibly manifold. On the international plane, it may encourage other treaty bodies to make similarly general statements, so to consolidate the interpretation that, in the conduct of hostilities, the right to life is not violated as long as relevant IHL rules are complied with. A similar construal may extend to the right to liberty and security detention of civilians in armed conflict (in this vein ECtHR Hassan, paras 105‒106). At the national level, this perspective may persuade judges to consider whether alleged IHL breaches also amount to human rights violations, which would allow victims to bring claims directly in domestic courts. Overall, the African Commission’s GC may constitute a significant contribution to strengthen the enforcement of victims’ right to reparation for both IHL and human rights violations in armed conflict.

 

Announcements: iCourts Doing Justice to Truth; LADI New Issue and Section; Human Rights in the Extractive Industries Conference; 2nd All Art and Cultural Heritage Law Conference; A Journal on Law and Integration New Issue

Published on June 5, 2016        Author: 

1. Doing Justice to Truth: Taking Stock of the Epistemic Critique of International Criminal Tribunals. iCourts – Centre of Excellence for International Courts – is convening a conference on 9 – 10 June 2016 in Copenhagen focusing on the epistemic critique of international criminal tribunals. The conference brings together leading scholars in a range of fields to reflect on the various critiques that have been raised concerning the truth-finding capabilities of international criminal tribunals. iCourts invites those interested in attending the conference to register on the conference website here. The full programme including abstracts is accessible here.

2. New Issue and New Multimedia Section: Revista Latinoamericana de Derecho Internacional. Di Tella University, from Argentina, is delighted to announce that the fourth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI) is now available online. The Journal is the first Latin American publication devoted to promoting the discussion of general topics of public international law from different perspectives in the region. LADI’s fourth issue includes articles by William Schabas, Roberto Gargarella, and Alejandro Chehtman, as well as discussions about international criminal law in the Americas, the role of international law in the early history of Latin America, and foreign debt restructuring, amongst others. It can be found here.  

3. Human Rights in the Extractive Industries Conference. The international conference “Human Rights in the Extractive Industries: Conflicts and Regulatory Responses” convened by Markus Krajewski and Isabel Feichtner is taking place at Goethe University Frankfurt from 20-22 July 2016. More information can be found here and a flyer can be downloaded here.

4. Second All Art and Cultural Heritage Law Conference. The Art-Law Centre and the UNESCO Chair in “The International Law of the Protection of Cultural Heritage” are proud to invite you to participate in the second “All Art and Cultural Heritage Law” conference, to be held on 24 – 25 June 2016 at the University of Geneva. The conference will be dealing with two themes: cultural heritage in the crossfire, and the relationship between law and ethics in the field of cultural heritage. It will also present some national and regional experiences regarding the implementation of cultural heritage law. The programme is here. To register please click here.

5. European Papers – A Journal on Law and Integration New Issue. European Papers – A Journal on Law and Integration’s first issue in the 2016 Volume is now available online, and can be viewed here. The new issue includes an Editorial on Disintegration through Law. Disintegration is also the dominant motive of the Overview of Christian Joerges. Jan Klabbers provides reflections on the ethos of the EU, Carol Harlow on the legitimacy of European lawmaking, Christophe Hillion on the protection of human rights in the CFSP, and Dimitry Kochenov and Martijn van den Brink on the consequences of secessions from EU Member States. James Hathaway, Bruno Nascimbene, Paula García Andrade, Clemens Kaupa and Alberto Miglio also provide contributions.

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The Supremacy of International Law? – Part Two

Published on June 3, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

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