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France Speaks Out on IHL and Cyber Operations: Part I

Published on September 30, 2019        Author: 

The French Ministry of the Armies (formerly the Ministry of Defense) has recently released Droit International Appliqué aux Opérations dans le Cyberspace (International Law Applicable to Operations in Cyberspace), the most comprehensive statement on the applicability of international law (IHL) to cyber operations by any State to date.  The position paper dealt definitively with many of the current unsettled issues at the forefront of governmental and scholarly discussions.

This two-part post builds on an earlier post at Just Security in which I examined the position paper’s treatment of the relationship between peacetime international law, including that set forth in the UN Charter regarding uses of force, and hostile cyber operations. The focus here, by contrast, is on France’s views as to how IHL applies in the cyber context. Key topics addressed in the paper include the applicability of IHL in cyberspace; classification and geography of cyber conflict; the meaning of the term “attack” in the cyber context; the legal nature of data during an armed conflict; and other significant IHL prohibitions, limitations, and requirements on cyber operations.

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Announcements: CfS Cyber Law Toolkit; UN Audiovisual Library of International Law; Socially Responsible Foreign Investment Conference

Published on September 29, 2019        Author: 
1. Call for Submissions: Cyber Law Toolkit. Cyber Law Toolkit, the leading interactive web-based resource on the international law of cyber operations, is inviting submissions for its next general update in 2020. Successful authors will be awarded an honorarium. The Toolkit consists of a number of hypothetical scenarios, each of which contains a description of cyber incidents inspired by real-world examples and accompanied by detailed legal analysis. To keep pace with the recent developments in the cyber security domain and remain relevant source of help for practitioners and scholars alike, the Toolkit is regularly updated. The project team welcomes proposals for new scenarios to be included in the 2020 Toolkit update. This call for submissions is open until 1 November 2019. For more information, see the full text of the call
 
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. José Antonio Burneo Labrín on “International Criminal Law: its development and genealogy“ (in Spanish), and Mr. Roberto Fernando Claros Abarca on “The International Legal Subjectivity of the Investor: Reflections on Counterclaims in Investor-State Arbitration“ (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.
 
3. Socially Responsible Foreign Investment Conference. On October 24 and 25, Católica Global School of Law and the European Society of International Law are organizing an international conference on Socially Responsible Foreign Investment, which will take place in Lisbon, at the campus of Universidade Católica Portuguesa | Católica Global School of Law. The conference is directed to scholars and practitioners interested in such topics as investment law or human rights and business, and specially for those interested in testing new legal tools for a changing world. Attendance is free, but subject to registration here.
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Was there the Third World in Geneva in 1949?

Published on September 26, 2019        Author: 

This year marks the 70th anniversary of the four Geneva Conventions of 1949. The importance that has been attached to the four Geneva Conventions (GCs) in the last seven decades is discernible from their universal acceptance. Since their adoption hardly there has been an armed conflict situation where the discussions have not involved the issues related to the Geneva Conventions. Development of the law of armed conflicts did not stop with the adoption of the GCs as later on Additional Protocols of 1977 (AP I and AP II), and 2005 (AP III) were adopted. Despite the fairly comprehensive nature of the GCs, the Additional Protocols were found to be necessary. One of the important reasons for the adoption of the APs, particularly AP I and AP II, was the coming into existence of the newly independent third world States and the need for accommodating their concerns. It is true that newly independent third world States were more in number in 1977 and made a significant difference to the APs, like the recognition of national liberation movements as international armed conflicts in AP I. It is also true that there were not many States from the third world at the time of negotiations on GCs. However, a plain assertion of these facts ignores a critical and historically contingent role of the third world States who participated in the negotiations on GCs in 1949.

Historical accounts of the GCs often state that the GCs were largely negotiated by the European States as less number of States participated from the third world (Giovanni Mantilla, The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols, p. 39). This situation is often compared with the AP I and AP II negotiations in the 1970s where there was more number of newly independent third world States, and therefore their influence was manifest on the outcome of the diplomatic conference. This narrative presents the absence of the third world States as an important reason for the prominent role gained by the European States in 1949. This narrative further demonstrates that the presence of more number of third world States in 1977 made a significant impact on AP I and AP II, like in the form of inclusion of national liberation movements and the modification of combatant status. This plain equivalence, while attempting to present the apparent facts, tends to ignore the unsuccessful attempts of the third world States in bringing to the fore their concerns during the negotiation process in 1949. Problematized from a third world perspective, this equivalence also has the potential to present the ideological divide between the third world and the first world as a question of mere presence and absence and formal participation.

Hence, while assuming that the number of States that participated from the third world was less, however, their participation and interventions during the negotiations convey emerging solidarity among the third world States(though African, Asian and Latin American States constituted almost half of the 59 participating States at the diplomatic conference). Their interventions provided a critique of the developed or the first world on several issues and underlined the similarities between the third world States. This pointed towards emerging third world solidarity which was carried forward to the later years and decades at the multilateral fora. This emerging dualism of first world critique and third world solidarity in the international law making process was evidently witnessed on some of the crucial issues of the Geneva Conventions. Two issues are analyzed here to substantiate the above arguments: These are common article 3 and the red cross emblem. Read the rest of this entry…

 

Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

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Announcements: Guidelines on Investigating Violations of International Humanitarian Law – Law, Policy, and Good Practice; UN Audiovisual Library of International Law; CfP Glasginburgh (Glasgow-Edinburgh); CfA Yearbook of International Disaster Law

Published on September 22, 2019        Author: 

1. Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice. The International Committee of the Red Cross and the Geneva Academy of IHL and HR have published “Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice.” The first document of its kind in this area addresses, among other things, when an investigation should be triggered, the different types of investigations, and the international principles and standards necessary for an effective investigation in armed conflict. The text is divided into a General Introduction and 16 Guidelines each followed by a commentary and is copiously sourced. The authors are Noam Lubell, Jelena Pejic, and Claire Simmons. The guidelines can be found here on the ICRC website and here on the Geneva Academy website. 

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms Frida María Armas Pfirter on “The Continental Shelf and its Outer Limits” (in English and Spanish), and Ms Chiara Giorgetti on “International Claims Commissions” (in English). A new resources page has been launched for the 2020 editions of the  Jean-Pictet Competition. The 33rd and 34th editions of the Competition will take place in Denpasar (Indonesia) in February-March 2020. More information is available at the competition website. The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

3. Call for Papers: Glasginburgh (Glasgow-Edinburgh) 2020. Announcing the second conference in this collaboration, which will be held at the University of Glasgow on Monday 8 – Tuesday 9 of June 2020. The aim is to explore the relationship between international law and questions of “distribution” – broadly conceived. The two-day event will promote a dialogue about the myriad of ways in which current ‘distributions’ inform or even determine the development of international law, and how, in turn, the practices of international legal institutions may impact upon distributions of income, resources, and power in the world. Applications are welcomed from the critical, doctrinal and visionary traditions of international law enabling a serious scholarly reflection on this topic. Abstracts of 500 words should be sent to glasginburgh {at} gmail(.)com by 30 November 2019. For more information see the full call for papers. Read the rest of this entry…

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UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting

Published on September 20, 2019        Author:  and

On 17 July 2019, South Africa made its submission to UNCITRAL on investor–state dispute settlement (ISDS) reform in which it seeks a “paradigm-shift” in investment law. In keeping with our description of South Africa as a “widener” in the UNCITRAL debates, the submission brings a wide-angle lens to the negotiations, first placing ISDS in a broader context and then discussing a multitude of possible reforms, several of which have not been on the UNCITRAL agenda so far. Time will tell whether South Africa seeks to get other states to rally around its cause, but for now its submission represents an important anchor in the incremental/structural/paradigmatic reform dynamics.

  1. Toward a New Paradigm for Investment Treaties and ISDS

The South African submission starts from first principles, by describing the ideological foundations on which investment treaties rest. It highlights that investment treaties were tied to a narrow vision of development that prioritized “economic growth through the free market, individual property and free flow of capital” and limited the role of a state to “securing property rights to optimize market development.” Read the rest of this entry…

 
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Qatar’s Reservations to the ICCPR: Anything new under the VCLT Sun?

Published on September 19, 2019        Author: 

On 21 May 2018, Qatar become the third country in the Gulf region to ratify the International Covenant on Civil and Political Rights (ICCPR). This followed Kuwait in 1996 and Bahrain in 2006. Qatar’s ratification came with a long list of reservations and statements. That these reservations and statements have similarities to those of its two neighbors in the Gulf region may suggest that there was not much new in them. Yet, they are novel in two respects. First, they are the first ICCPR reservations and statements that can be assessed under the ‘Vienna plus regime’ adopted by the International Law Commission in 2011. There have been ICCPR ratifications post-2011, but none of these had reservations. Second, Qatar’s reservations have attracted objections from 21 states – the largest number to date. As such, the case of Qatar also provides an opportunity to consider the extent to which the objecting states cohere with the guidelines provided by the ILC.

Qatar’s reservations to the ICCPR

At the time it ratified the ICCPR Qatar entered two reservations. These are to Article 3 (equal rights of men and women to enjoy Covenant rights) and to Article 23 (4) (equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution).

The reservation to Article 3 indicates that the line of succession to the throne is governed by Article 8 of the Constitution of Qatar. The Constitution only permits male members of the royal family to be in the line of succession. Qatar justifies its reservation to Article 23(4) under a presumption of incompatibility with Islamic Sharia, which is the main source of legislation under the Qatari Constitution.

Qatar also entered five interpretive statements to the ICCPR. These concern the definition of inhuman and degrading punishment (Article 7), freedom to have or adopt a religion or belief (Article 18), the marriageable age for men and women (Article 23.2), the definition of trade unions (Article 22) and the protection of the rights of religious minorities (Article 27).

For the first three of these statements, Qatar indicated that its interpretations of Articles 7, 18 and 23 will be guided by Islamic Sharia and, in the case of any conflict, the Sharia will prevail. Concerning the definition of trade unions, Qatar stated that this will be interpreted with reference to its labour law and national legislation. Qatar further stated that the protection of the rights of persons from religious minorities under Article 27 will be respected to the extent that ‘they do not violate the rules of public order and public morals, the protection of public safe[t]y and public health, or the rights of and basic freedoms of others’. Read the rest of this entry…

 

Drone Attacks on Saudi Aramco Oil Installations

Published on September 17, 2019        Author: 

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not yet clear who was responsible for what he described as a “wanton violation of international law”’.

Regardless of who is responsible, the attacks are unlawful for a variety of reasons. For several of those same reasons and others, however, Saudi Arabia has no right to use military force outside its territory in a response. The limits on other states responding with military force or other forms of coercion are equally restricted. Lawful responses are available, ones that would avoid further ‘wanton’ law violations.

The important starting place of the analysis is with the fact that the Houthi rebels are not the government in effective control of Yemen, so they do not qualify as having authority to use military force on the basis of the one relevant justification in this case, United Nations Charter exception to Article 2(4), Article 51. The fact Saudi Arabia has been attacking them in Yemen does not give rise to their right to attack Saudi Arabia.

The most accurate characterization of the Houthis is as a belligerent party engaged in internal armed conflict or civil war from which all non-Yemeni armed groups—state or nonstate—are barred. Saudi Arabia has apparently based its participation in the Yemeni civil war on an invitation from Abdrabbuh Mansur Hadi. Hadi, however, fled and thereby lost effective control or status as the government in March 2015. The conflict remains undecided with the Houthis holding the capital Sanaa as well as territory that is home to more than half the population. While Hadi continues to claim ‘international recognition’ plus Yemen’s seat in the United Nations, under international law, the government for purposes of authorizing force in self-defence must for practical reasons and reasons of self-determination be based on the effective control rule as applied in the Tinoco Claims Arbitration (1 U.N. Rep. Int’l Arb. Awards 369 (1923). Read the rest of this entry…

 

Announcing our Second EJIL Symposium June 2020: Call for Papers on Inequality and International Law

Published on September 16, 2019        Author: 

International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.

We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.  

The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.

Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.

Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?

The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:

Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.

International Economic Law:Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.

Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?

Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?

Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?

After ‘After Hegemony’: The emergence of  Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world’s hegemonic power have triggered new approaches to international law making in recent years.  These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future? 

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020

Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)euby 1 November 2019.

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