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New Addition to our Team of Editors

Published on April 11, 2017        Author: 

It is such a pleasure to announce that Anthea Roberts has accepted the invitation to join the team of EJIL:Talk! Contributing Editors. Anthea is an Associate Professor at the School of Regulation and Global Governance (RegNet) at the Australian National University.

Before returning to Australia, Anthea was an Associate Professor at the London School of Economics, a Visiting Professor at Harvard Law School and a Professor at Columbia Law School. In addition to her ANU appointment, she is also a Visiting Professor on the Masters of International Dispute Settlement at the Graduate Institute and the University of Geneva. Anthea is a leading voice across many areas of public international law, having published on the sources of international law, investment treaty law and arbitration, use of force, jurisdiction, among other topics, in the leading international law journals. She has twice been awarded the annual Francis Deák Prize for the best article published in the American Journal of International Law by a younger scholar .

In addition to being on the editorial board of the European Journal of International Law, she is also on the editorial board of the American Journal of International Law, the Journal of World Trade and Investment, and ICSID Review. She is also a Contributing Editor for the International Economic and Policy Law Blog and a Reporter for the Restatement (Fourth) of the Foreign Relations Law of the United States. Before beginning her academic career, Anthea worked in private legal practice, served as an Associate to the Chief Justice of the Australian High Court and clerked at the International Court of Justice.

Anthea has already written a number of posts for EJIL:Talk! (see here and here), including that of yesterday. We very much welcome her contributions to the blog! Read the rest of this entry…

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The International Legal Framework Regulating Armed Drones

Published on March 25, 2017        Author: 

Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, Read the rest of this entry…

 

Applications for Revision of the International Court of Justice Judgments: The Curious “Case” for Revision of the Bosnian Genocide Judgment

Published on March 13, 2017        Author: 

Last Thursday, the President of the International Court of Justice (ICJ) made a statement announcing that the Court was “not properly” seised of a request for revision of the Court’s merits Judgment of 26 February 2007 in the Bosnian Genocide Convention Case (Bosnia and Herzegovina v. Serbia). The key question was whether the request for revision should have been considered as one made by Bosnia and Herzegovina and this depended on whether the person who made the request was to be considered as Agent for Bosnia. In coming to its decision not to take any action with regard to the request for revision, the Court concluded “that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”.

In effect, the Court rejected the request for revision on the grounds that the person who claimed to be the Agent for Bosnia, Mr. Sakib Softić, had not in fact been appointed as Agent by the state for the purpose of these particular proceedings. Mr Softić had been appointed the Agent for Bosnia, in 2002, in the original Bosnian Genocide Convention case. The present controversy surrounding his authority arose from the nature of the Presidency of Bosnia – the Head of State – which is not a single individual but rather composed of 3 individuals: one Bosniac, one Serb and one Croat. As it emerged from separate letters written to the Court by each of the members of the Presidency, no decision was made by the Presidency to request revision and only the Bosniac member of the Presidency, Mr. Bakir Izetbegović, was of the view that the appointment of Mr Softić as Agent in the original case remained valid.

Whether the Court was right to reject the “request” for revision in this case depends on whether a request for revision is to be considered as a new case as opposed to a separate phase of a previous case. If a request for revision is simply a separate phase of a prior case – a form of incidental proceedings – then the authority of the previous Agent would extend to that new phase as Agents exercise their functions throughout a case, unless they are replaced by the state. However, if a request for revision is a new case the Court would be right to require a new indication from the state as to who the Agent is, thus impliedly confirming that the state has authorised the initiation of those new proceedings.

In my view, the Court was right to hold, if only implicitly, that requests for revision are new proceedings and not simply continuations of a previous case. There is a qualitative difference between a request for revision (or indeed interpretation) of a prior judgment arising from proceedings that have essentially concluded with the case removed from the Court’s list of pending cases, on the one hand, and the initiation of incidental proceedings (such as provisional measures for interim protection or making preliminary objections) in an on-going case, on the other hand. Read the rest of this entry…

 

Practitioners’ Guide to Human Rights Law in Armed Conflict

Published on January 15, 2017        Author: 

The questions whether, when and how international human rights law applies to the activities of armed forces during armed conflict have been the subject of much discussion and litigation in the past couple of decades. It is now clear “that the protection offered by human rights conventions does not cease in case of armed conflict . . .” (International Court of Justice, Advisory Opinion on the Israeli Wall in Palestine (2004), para. 106).

However, what has been less clear is when those protections apply, especially when the state concerned is acting outside its territory, and how human rights law is to be applied in armed conflict. With regard to the latter question, one of the key issues is the relationship between human rights law, as it applies in conflict, and international humanitarian law as the law specifically designed for application in conflict. In the literature, and even in the case law, most attention has focussed on the when question (the question of applicability of human rights law) rather than the how question (the method and mode of application of human rights law). However, given that it is undoubtedly the case that there are circumstances when human rights law applies in armed conflict, even extraterritorially, the focus on the former set of questions, has led to an unfortunate lack of guidance as to how to apply (and to think about the application) of human rights law in situations of conflict.

Towards the end of last year, Oxford University Press published the Practitioners’ Guide to Human Rights in Law Armed Conflict (Murray, Akande, Garraway, Hampson, Lubell & Wilmhurst), a book that arises out of a project carried out by Chatham House under the leadership of Elizabeth Wilmhurst. The aim of this book is to provide guidance not only on when human rights law applies in situations of conflict, but, more importantly, on how it is to be applied.  As the Introduction to the book sets out, “The book is concerned primarily with giving guidance to the armed forces for the conduct and preparation of military operations.” (p. 2) However, it should be of assistance to all those who have to think about the application of human rights law in conflict – government officials, lawyers appearing before courts, members of non-governmental organizations and judges.

The book is divided into two parts. The first part (Chapters 1-4) provides an overview of human rights law, when it applies extraterritorially (ch. 3) and its relationship to the law of armed conflict (ch. 4). The second part (Chapters 5-17) provides detailed guidance on how human rights law applies to a range of issues that arise in armed conflict, eg the conduct of hostilities and targeting (ch. 5); weapons (ch. 7); prisoners of war and internment (ch. 8); occupation (ch. 10); and cyber operations (ch. 15). Read the rest of this entry…

 

The UK Attorney-General on the Modern Law of Self-Defence

Published on January 11, 2017        Author: 

Later today, the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP will deliver a speech at the International Institute for Strategic Studies, in London, on “The Modern Law of Self-Defence”. The speech will be significant as the advert indicates that the Attorney General will “set out the UK’s position on the application of international law on self-defence, in particular the concept of ‘imminence’ in the context of the ongoing and developing threat that we face from non-state-actor terrorist groups.”

As readers will likely know from the Chilcott Inquiry relating to the war in Iraq, as well as developments regarding the UK’s use of force in Libya and Syria, the UK Attorney-General has the ultimate responsibility for advising the government on the legality, under international law, of the use of force. It has also become standard practice since the war in Iraq for a summary of the Attorney-General’s advice to be presented to Parliament before Parliament votes on whether to authorise the use of force (a vote which is now required by constitutional convention).

I am happy to report that the text of the speech will be posted on this blog as soon as the AG has finished delivery of the speech at 6pm UK time. In addition, over the coming days there will be discussion on EJIL:Talk! of the issues raised by the speech, with a number of contributors weighing on the significance of the points made by the AG.  Read the rest of this entry…

 

Most Read Posts 2016

Published on January 1, 2017        Author: 

Happy New Year to all EJIL:Talk readers! In many ways, 2016 was a remarkable year for international law. It is hard to pick a standout event or development but perhaps 2016 will be remembered as the year when international lawyers began to think seriously, across the board, about the legal processes relating to how states exit from international commitments. It is probably fair to say that international lawyers have spent far more time thinking about the processes by which international law obligations are imposed on states and other actors than on the processes by which those international law commitments might cease to be binding.  The UK’s Brexit referendum of June 2016 means we now have to think about how the UK unwinds from its membership of the EU. The notices of withdrawal from the ICC Statute by South Africa, Burundi, and the Gambia also raise questions about treaty withdrawal. Then the election in the US of Donald Trump raises the prospect of US withdrawal from a range of treaties dealing with climate change, trade and the Iranian nuclear deal. All of this might suggest that research into issues relating to treaty withdrawal would constitute a profitable research agenda for 2017! All of these were covered on this blog in 2016 but clearly there will be more to say.

I would like to thank all of our readers but also all of those who wrote posts on EJIL:Talk! in 2016! Below is a list of the posts that were most read in 2016. Some of these posts were written in earlier years.

20) After Trump: China and Russia move from norm-takers to shapers of the international legal order, Anne Peters (2016)

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

18) A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism, Olivier Corten (2016)

17) Grand Chamber Judgment in Al-Dulimi v. Switzerland, Marko Milanovic (2016)

16) Russia and China Challenge the Western Hegemony in the Interpretation of International Law, Lauri Mälksoo (2016)

15) Turkey’s Derogation from the ECHR – What to Expect?, Martin Scheinin (2016)

14) On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap, Joseph Weiler (2016)

13) Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, Marko Milanovic (2010)

12) The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?, Dapo Akande (2016)

11) ICTY Convicts Radovan Karadzic, Marko Milanovic (2016)

10) European Court Decides Al-Skeini and Al-Jedda, Marko Milanovic (2011) Read the rest of this entry…

 
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Chatham House Paper on Aiding and Assisting by States

Published on November 28, 2016        Author: 

When states engage in armed conflict today, it is often the case that they do so with some support from other states. The same is true with respect to counter-terrorism efforts. That support may come in many forms: from being part of a coalition that engages in actual fighting; to logistical support that enables the fighting to take place; to supply of weapons; to intelligence sharing; or capacity building in one shape or another. One only has to look at the network of state assistance to other states on all sides of the conflict in Syria, and also in Yemen. A couple of weeks ago Chatham House published a paper –  “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism” – that I would like to commend to readers. The paper, authored by Harriet Moynihan who is Associate Fellow in the International Law Programme at Chatham House, seeks to set out:

“a clear statement of the law on aiding and assisting as it stands, with particular regard to its application in situations of armed conflict and counterterrorism. The paper also aims to provide guidance to governments on best practice in their cooperation in armed conflict and counterrorism, taking into account the legal and policy issues raised by the various rules in this area.” (para. 6)

A central question addressed in the paper is: when will a state that provides assistance that is used by another state to carry out actions that are wrongful in international law, responsible for assisting that wrongful act? The paper addresses this issue by first considering (in Chapter 2) the general rule that is established with regarding to aiding and assisting in Article 16 of the International Law Commission’s Articles on the Responsibility of States 2001. Chapter 3 then pays some attention to more specific rules of international law that deal with aiding and abetting, eg Common Article 1 of the 1949 Geneva Conventions, some treaties dealing with weapons transfers and some applicable rules of international humanitarian law.

Much of the analysis in Chapter 2 deals with the tricky question of the mental element that must be fulfilled in order to establish a breach of Article 16 of the ILC Articles on State Responsibility. Read the rest of this entry…

 

Outcome of 2016 Elections to the International Law Commission + Trivia Questions

Published on November 5, 2016        Author: 

On Thursday the United Nations General Assembly (GA) elected the individuals who will serve in the International Law Commission (ILC) for the five year term beginning in 2017. The Commission, which is a subsidiary organ of the GA, has a mandate to assist in the codification and progressive development of international law. It is composed of 34 members who serve in their individual capacities.  The outcome of the elections held on Thursday can be viewed here. A number of excellent academic international lawyers were elected to the Commission for the first time, most notably August Reinisch (Austria), Charles Jalloh (Sierra Leone) and Claudio Grossman (Chile) who all have impressive academic credentials as well significant practical experience of international law.  The Commission will benefit from their addition. However, as is often the case with UN elections, there are some surprises in the result, with some excellent academic international lawyers also failing to be elected to the Commission, particularly Mathias Forteau (France), Chester Brown (Australia) , Tiya Maluwa (Malawi), and Marcelo Kohen (Argentina) – all of whom also have impressive academic credentials and significant practical experience of international law.

There is a very marginal improvement in the position of women on the ILC. There will be three four women on the ILC, with Patrica Galvão Teles (Portugal), Marja Lehto (Finland), and Nilüfer Oral (Turkey)  joining Concepción Escobar Hernández (Spain) who was re-elected. It is very worrying that in the history of the Commission, only 6 7 women have been members and this is the first time that 3 more than 2 women will be serving together. Still, even on the new Commission,  fewer only slightly more than 10% of its members will be women. (Update: corrections in italics because of the comments below)

One other remarkable feature of the elections just concluded was that two of those nominated for the ILC in this round were previously judges on international tribunals. Read the rest of this entry…

 

Editorial Changes at EJIL:Talk!

Published on November 1, 2016        Author: 
Monica Hakimi

Monica Hakimi

It is a pleasure to announce additions to the team of editors at EJIL:Talk! We are delighted to announce three new Contributing Editors to the blog. They are:

Monica Hakimi who is Professor of Law at the University of Michigan School of Law where she was until recently, Associate Dean for Academic Programming. She previously served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State where, in addition to other tasks, she served as counsel before the Iran-U.S. Claims Tribunal and worked on cases before the International Court of Justice and U.S. federal courts and agencies.

Lorna McGregor

Lorna McGregor

Lorna McGregor, who is Professor at the University of Essex Law School where she is also Director of the Human Rights Centre at Essex University. Lorna is Co-Chair of the European Society of International Law’s Interest Group on Human Rights and a Commissioner of the UK Equality and Human Rights Commission. She is currently leading a number of funded research projects including acting as Co-Director of an ESRC Large Grant on Technology, Big Data and Human Rights; Principal Investigator of a Nuffield-funded project on the role of National Human Rights Institutions in Complaints-Handling; and a Co-Investigator on a British Academy Newton Fund grant on The Effects of International Human Rights Law on Public International Law and its Sub-Branches.

Andreas Zimmermann

Andreas Zimmermann

Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany, and Director of the Potsdam Centre of Human Rights. He has advised the German government in various capacities including being a member of the Advisory Board of the German Ministry of Foreign Affairs on United Nations issues as well as of the Advisory Board on International Law. He has been counsel in several cases before the International Court of Justice and inter-State arbitration. Has also been judge ad hoc at the European Court of Human Rights.

They have written in the European Journal of International Law and are previous contributors to the  blog. We look forward to their contributions over the coming months and years. Remaining on the team of contributing editors are Anne Peters and Christian Tams.

Rotating off the team of contributing editors are Matthew Happold and Antonios Tzanakopoulos. We owe a debt of gratitude to Matthew and Antonios for their contributions to the blog over the past few years. We hope they will continue to write for the blog as guest contributors.

We are also very grateful indeed to Iain Scobbie whose tenure as a co-editor of the blog ended earlier this year. Also leaving us earlier this year was Geraldo Vidigal who gave really valuable service as Associate Editor before moving on to take up a position in the Legal Service of the World Trade Organization.

Geraldo was replaced as Associate Editor by Dr Helen McDermott who is a research fellow at the Individualisation of War project at the European University Institute, an Associate of the Oxford Martin Programme on Human Rights for Future Generations and a Visiting Fellow at the Blavatnik School of Government at the University of Oxford.

We welcome the new members of the team!

Filed under: EJIL
 
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Launch of Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict

Published on October 31, 2016        Author: 

In many, if not most, armed conflicts, far more deaths occur as a result of the humanitarian crisis created by the conflict rather than from hostilities or the use of force (see this useful study, at p. 842). In addition to those who die as a result of a lack of food, water, access to medical care or adequate sanitation, untold suffering is caused in conflicts across the globe to millions of other civilians. However, in many recent conflicts humanitarian actors have faced serious challenges in delivering much-needed relief supplies and services to civilians in need. The United Nations Secretary-General, in his recent reports to the Security Council on the Protection of Civilians, has identified improving access for humanitarian operation as one of the five “core challenges” to enhancing the protection of civilians in armed conflict (see eg S/2012/376 (paras. 57-63); S/2015/453 (para. 7). In a November 2013 report to the Security Council [S/2013/689, para. 80], the Secretary General called for further analysis of the issue of arbitrary withholding of consent to humanitarian operations and the consequences thereof. He instructed the UN Office for the Coordination of Humanitarian Affairs (OCHA) to engage with a range of actors to examine the relevant rules and options for guidance in this area. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations (both of which I co-direct) to carry out this exercise. We engaged in a series of expert consultations which took place in Oxford, in addition to informal discussions in Geneva and New York with officials from a number of international agencies and NGOs, with the aim of providing a restatement of the international law rules.

This process has resulted in the production of the Oxford Guidance on the Law Relating to Humanitarian Relief Operation in Situations of Armed Conflict (which is available here). It was a pleasure to launch the Oxford Guidance at UN Headquarters in New York last week, and also in Washington DC. In his May 2016 report [S/2016/447, para. 34] report to the Security Council on the Protection of Civilians, the Secretary General stated that:

“The forthcoming Oxford guidance on the law relating to humanitarian relief operations in situations of armed conflict, which the Office for the Coordination of Humanitarian Affairs commissioned on my request, should enhance understanding of such a legal framework and inform policies to improve humanitarian access.”

This point was reiterated in the Foreword to the Guidance by the UN Under-Secretary General for Humanitarian Affairs who stated that:

“The present Guidance will assist a variety of actors concerned with humanitarian relief operations, including parties to armed conflict, other states, international and non-governmental organizations seeking to provide humanitarian assistance, the United Nations Security Council and General Assembly and other relevant bodies, legal practitioners, scholars and the media.”

Read the rest of this entry…

 
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