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Sir Elihu Lauterpacht: A Celebration of His Life and Work

Published on October 25, 2017        Author: 

A memorial symposium celebrating the life and work of Sir Eli Lauterpacht was held at the Faculty of Law in Cambridge on Friday, October 13, 2017, followed the next day by a memorial service in the chapel of Trinity College, Cambridge.  Both were extremely well attended, with about 200 people at the symposium and more at the memorial service.  Trinity College chapel was packed, with the congregation over-spilling into the antechapel.  It was touching to see how many people had come from all over the globe to pay their respects.  A record of both the symposium and service will be created in due course on the Squire Law Library’s Eminent Scholars Archive.

Judge Christopher Greenwood and President Steven Schwebel delivered eulogies at the memorial service. Chris told me that it was the first time in years that he had written out a speech rather than just rely on notes. Eli’s youngest child, Conan ended his eulogy with one of Eli’s favourite jokes about the priest, the vicar, and the rabbi trying to convert a bear to their religion.  This was characteristic of both the symposium and service, which were affectionate and humorous, reflecting Eli’s personality and love of jokes.          

The organisers of the academic symposium which examined Eli’s professional life were clear: no–one who had been asked to talk had refused, and acceptances had been immediate. Read the rest of this entry…

 
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Celebrating Professor Sir Elihu Lauterpacht CBE QC LLD, 13 July1928–8 February 2017: When Death Becomes Really Personal

Published on February 14, 2017        Author: 

I had just returned from work on 9 February when I received a text message from my good friend and colleague Jean d’Aspremont. He asked if I had heard the “sad news about Eli Lauterpacht”. Jean did not need to be explicit. I knew that Eli had been ill for some time. I knew that Jean was telling me that Eli had died. I disregarded my plans for dinner and poured myself a serious whisky to start to toast Eli, and to recall my fond memories of him–the man, the mentor, the teacher. Because Eli was a man who deserves to be toasted. A man to be celebrated for so many reasons. A man well worth remembering, professionally and personally, but above all else with affection.

But let us start with the basic professional biography: the only child of Rachel and Hersch Lauterpacht, he was born in London in 1928. Educated at various private schools in the UK and USA, he became a student at Trinity College, Cambridge, in 1945, initially reading history before switching to law, completing the undergraduate law tripos in 1949, and then the postgraduate LLB and his bar exams in 1950, when he was also awarded the Whewell Scholarship. He was called to the bar in Gray’s Inn in 1950, where he became a bencher in 1983. He was awarded a CBE in1989, and knighted in 1998. Despite the demands of his busy practice, he retained a serious foot in academia. He initially taught part-time at both the LSE and Cambridge, but in 1953 he returned to Cambridge to lecture in law. He was appointed as Reader in 1981, established the Research Centre in International Law in 1983, which he directed until 1995, and became a Honorary Professor in 1994. These are brief bones of a busy life lived long and well. The Cambridge Eminent Scholars Archive contains a more detailed biography, transcripts of interviews with Eli, as well as photographs and the video of a lecture, International Law: Reflections and Recollections, which he delivered in 2012 at the Research Centre, which by then had been renamed the Lauterpacht Research Centre in honour of both Eli and his father.

The father and son were very different lawyers: while both were manifestly talented, Eli maintained a much closer focus on practice and advocacy in the application of international law in contrast to his father’s more academic and conceptual concerns. This is not to deny that Eli has left a lasting academic legacy: from a classic early work on munitions de guerre (32 British Yearbook 218 (1955-56)), through perceptive lectures in 1976 at the Hague Academy on international organisations whose title, “The Development of the Law of International Organisations By International Courts”, echoed that of one of his father’s most influential monographs, to analyses of international arbitration later in his career. Read the rest of this entry…

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Strange Angel: Some Reflections on War

Published on December 14, 2015        Author: 

The philosopher and cultural critic Walter Benjamin owned a print, Angelus novus, by Paul Klee. In his essay, Theses on the philosophy of history, Benjamin’s Ninth Thesis recalled that it depicted:

An angel…who looks as though he were about to distance himself from something which he is staring at. His eyes are opened wide, his mouth stands open and his wings are outstretched. The Angel of History must look just so. His face is turned towards the past. Where we see the appearance of a chain of events, he sees one single catastrophe, which unceasingly piles rubble on top of rubble and hurls it before his feet. He would like to pause for a moment…to awaken the dead and to piece together what has been smashed. But a storm is blowing from Paradise, it has caught itself up in his wings and is so strong that the Angel can no longer close them. The storm drives him irresistibly into the future, to which his back is turned, while the rubble-heap before him grows sky-high. That which we call progress, is this storm.

This image and idea has been influential in philosophy and culture, for example, check out this song by Laurie Anderson.

A while ago, I was asked to write some reflections on war and international law. Deadlines whooshed past, but it is finally finished. International law, at least traditionally, saw war and peace as mutually exclusive—“there is no middle ground between war and peace” (Grotius, De iure belli ac pacis (1625) Book III, Ch.XXI, 1), although this dichotomy predated Grotius by centuries. At least since the end of the First World War, peace has been seen as the normal condition in international relations, with war characterised as an abnormal state of affairs. But what is the function of war in the international community? Read the rest of this entry…

 
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Prolonged Occupation and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally

Published on June 16, 2015        Author: 

I recently gave a paper on prolonged occupation at a UN Roundtable on Legal Aspects of the Question of Palestine.  In the law of armed conflict, the notion of “prolonged occupation” is absent from the governing international instruments.  It has been little discussed in commentaries, and Adam Roberts cautions that attempting to define the notion of prolonged occupations “is likely to be a pointless quest” (see 84 AJIL 44 (1990) 47)), but Israel’s High Court has employed it in a number of decisions.

The UN meeting in the Hague was perhaps a timely meeting given the outcome of the recent Israeli elections which brought into office a government which includes some ministers who are opposed to the existence of any Palestinian State and others who are opening calling for the annexation of the West Bank.  Despite the urging of President Obama, the guidelines for the new coalition government contain no commitment towards a Palestinian State.  The conclusion of the Oslo Accords and subsequently the Roadmap for Peace masked the reality of Israel’s occupation of Palestine with the figleaf of a negotiated process between ostensible equals which, under the Roadmap, was meant to have led to a comprehensive settlement of the Israel-Palestine conflict ten years ago.  As the outlook of the current Israeli government appears adverse to negotiation, this should put the fact of occupation back on the table.

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The Francis Lieber Prize

Published on October 23, 2014        Author: 

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

Criteria:  Any work in the English language published during 2014 or whose publication is in proof at the time of submission may be nominated for this prize.  The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit:  Competitors must be 35 years old or younger on 31 December 2014. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors.  Submissions from outside the United States are welcomed.

Submission:  Submissions, including a letter or message of nomination, must be received by 9 January 2015.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail.

Printed submissions must be sent to Professor Iain Scobbie, School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester  M13 9PL, United Kingdom

Electronic submissions must be sent to iain.scobbie[at]manchester.ac.uk. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2015.

In 2014, the winners were:

Dr Russell Buchan, for his book, “International law and the construction of the liberal peace,” published by Hart.

Professor Anna Spain, for her article, “The UN Security Council’s duty to decide”, 4 Harvard National Security Journal 320 (2013).

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The UK House of Commons calls for Palestine to be recognised as a State.

Published on October 14, 2014        Author: 

Yesterday, the UK House of Commons overwhelmingly adopted a resolution, by 274 votes to 12, which stated that “this House believes that the government should recognise the state of Palestine alongside the state of Israel”, which was amended to include the words “as a contribution to securing a negotiated two-state solution”. This resolution (or motion) is not binding on the government whose official policy is that it “reserves the right to recognise a Palestinian state bilaterally at the moment of our choosing and when it can best help bring about peace”. Government ministers did not vote on the motion in accordance with a long—standing procedural policy that they do not vote on motions introduced by backbenchers (members of Parliament who do not hold ministerial office), and a number of pro—Israeli MPs were absent from the debate, as well as much of the Conservative Party.

The House of Commons debate recalls that in the UN General Assembly when it adopted Resolution 67/19 ((29 November 2012) which “accord[ed] to Palestine non-member observer State status in the United Nations”. The voting for this resolution was 138—9, 41 abstentions (including the UK). The implications of that resolution were discussed in this blog, eg, here, here, and here.

The House of Commons vote is essentially symbolic rather than determinative, and the BBC has reported that a former Foreign Secretary, Sir Malcolm Rifkind, who supports a two—State solution in the Israel—Palestine conflict stated during the debate:

“Symbolism sometimes has a purpose, it sometimes has a role, but I have to say you do not recognise a state which has not yet got the fundamental ingredients that a state requires if it’s going to carry out its international functions and therefore, at the very least, I would respectfully suggest this motion is premature.”

Ha’aretz, one of the leading Israeli newspapers, in its report on the vote, noted that Israel’s ambassador to the UK, Daniel Taub, decided not to give interviews in advance of the vote, in an attempt to ensure that because there was no official acknowledgment by Israel, this would undercut its importance.

The symbolism of this motion, however, goes beyond the vote and beyond the Chamber of the House of Commons. It might well reverberate in international circles, and Ha’aretz has also reported that the UK ambassador to Israel, Matthew Gould, while restating that the vote would not alter the government’s view on recognition, that the issues raised by this debate should not be ignored:

“Separate from the narrow question of recognition, I am concerned in the long run about the shift in public opinion in the U.K. and beyond towards Israel,” [says Gould.] “Israel lost support after this summer’s conflict, and after the series of announcements on settlements. This Parliamentary vote is a sign of the way the wind is blowing, and will continue to blow without any progress towards peace.”

 

UK House of Commons debate on the use of force in Iraq, 26 September 2014

Published on September 25, 2014        Author: 

On September 26th, the UK House of Commons will debate a Parliamentary motion which seeks to authorise:

Her Majesty’s government, working with allies, in supporting the government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq.

The motion expressly states that it does not endorse air strikes in Syria, the authorisation for which would require a separate vote in Parliament, and that the government will not deploy UK troops in ground combat operations. The text of the motion is here. The UK government’s legal position is that there is “a clear and unequivocal legal basis for deployment of UK forces”.  A summary of this position is here.

So what do you think?

 

The Killer Whales of The Hague

Published on August 28, 2014        Author: 

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. Read the rest of this entry…

 
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Lieber Prize 2014: Call for Submissions

Published on November 10, 2013        Author: 

It’s that time of the year again…

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

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Why is David Cameron in this blog’s attic, naughtily rattling my cage?

Published on September 2, 2013        Author: 

You might remember me.  I am the editor who doesn’t write much, and I have been less engaged here than I would have liked for the past few months as I am in the process of moving to Manchester.  I did prepare an entry on the legal nonsense currently being spewed, principally by the UK, on forcible intervention in Syria, but Dapo posted first (here and here and here) and, to be honest, he did so extremely well.  I can add little to what he has said.

On the other hand, as someone said in the comments to one of Dapo’s posts, at least international law is being discussed in the UK parliament.  It is a pity that the government has been doing this so blatantly badly.  Former Australian foreign minister Gareth Evans, who was central in formulating the responsibility to protect doctrine, has apparently accused the UK government of “making things up as it goes along”.   On a brighter note, the House of Commons rejected the government’s motion that would have opened the door to possible UK intervention in Syria, by 285 votes to 272, with 91 members of parliament absent.  Read the rest of this entry…