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Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 21, 2016        Author: 

In late July, a group of academic, military, and governmental experts from both sides of the Atlantic gathered at the University of Oxford for the fourth annual “Transatlantic Workshop on International Law and Armed Conflict”. The roundtable, held under the Chatham House Rule, and which this year included participants from Australia was held over two days and examined contemporary questions of international law relating to military operations.

This year’s event placed a particular emphasis not only on some substantive issues relating to the conduct of hostilities (such as targeting of “war sustaining” objects and the principle of proportionality), but on procedural obligations arising under the law of armed conflict. The procedural obligations discussed include the obligations of parties: to engage in review of the lawfulness of detentions in the armed conflict; to guarantee fair trials for those prosecuted for offences related to the conflict; and to investigate suspected violations of the law of armed conflict. Discussion of these procedural obligations focused on the content and scope of these obligations. The sessions also examined the extent to which these obligations apply to (and are capable of being fulfilled in) non-international armed conflicts and non-state armed groups. Inevitably, the sessions also considered the relationship between the procedural obligations imposed by international humanitarian law and those which may arise under international human rights law. To what extent should the latter inform the former?

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post represent’s the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented. The blogposts focus almost exclusively on procedural obligations in the law of armed conflict. In addition, there will be a post on the principle of proportionality under IHL. Although proportionality imposes a substantive obligation on parties not to cause damage or casualties which are excessive in relation to the anticipated military advantage, arguably, the attempts to achieve conformity with this obligation tend to be effected through particular processes and procedures . Read the rest of this entry…

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

Published on December 4, 2015        Author: 

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

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

The Paris red herring

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

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2015 ESIL Annual Conference Final Lecture: Developments in Geopolitics – The End(s) of Judicialization?

Published on October 12, 2015        Author: 

Editors Note: The European Society of International Law held the 2015 ESIL Annual Conference from 10–12 September 2015 on “The Judicialization of International Law – A Mixed Blessing?” The event, hosted by the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, took place at the University of Oslo. For the Final Lecture, Professor Philippe Sands QC (University College London) discussed “Developments in Geopolitics – The End(s) of Judicialization?”. This post is a précis (summary) of the lecture as prepared by the Editors of EJIL: Talk! and reviewed by Professor Sands; the lecture may be viewed in full here. The full lecture, with all references and citations added, and a short Afterword, will be published in the European Journal of International Law. Full details of the conference are available on the conference website, including recordings of selected sessions.

In the summer of 2014 I spent three weeks in The Hague, in the company of a man who was 100 years old. Professor Vladimir Ibler, who was born in 1913 in Zagreb, was one of my co-counsel during the hearings in the arbitration proceedings between Croatia and Slovenia, heard in the Peace Palace. Each morning he and I walked slowly up the central staircase of the Peace Palace, and then down it later in the afternoon: past the statue of lady justice, to and from the Japanese room, where the hearing took place. Professor Ibler, who was diminutive in height but certainly not in presence or character, would muse about the state of the world, of international law, and of international courts. “When I was born there were none”, he said to me, “and now there are so many that I cannot keep up with them all. What are they all for? What do they all mean?” The questions were never answered of course, but from his cheery disposition I always felt he retained a sense of hope. A centenarian who lived a life that was touched by Emperor Franz Josef, Hitler, Stalin and Tito was easily able to seize on the possibility of courts as an alternative to war, which is of course the principal end of judicialization. He was hopeful too that Croatia and Slovenia would finally be able to resolve their dispute, by arbitration proceedings under the auspices of the Permanent Court of Arbitration (PCA).

Yet he also sounded a note of caution. I interviewed him in June 2014 more formally for a profile I was asked to write for the Financial Times magazine. “I learnt in my life not to come to fast conclusions”, he told me.

“I was very happy in a lawyers office in Zagreb from 1937 to 1939, working with Mr Korsky, and then the Nazis just shot him. I think that being in a lawyer’s office you can make certain conclusions about people and about human relationships, and you can learn certain things. And what I learnt is not to be very quick to make conclusions, but reflect all the time.”

Wise advice from a man who had reached the age of 100.

Was it a good idea to refer the dispute between Croatia and Slovenia to an international arbitral tribunal, I asked. “Yes”, he replied, but added: “What I am sceptical of is some of the judges that were appointed to the court, I am not entirely convinced that the tribunal has been totally independent.” He paused. “It seems there are some invisible forces. There are justices and there are injustices.” Recent events have caused me to go back to that conversation. Read the rest of this entry…

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Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 9, 2015        Author: 

Over the next few weeks, three blog –  Lawfare, InterCross (the blog of the ICRC) and EJIL:Talk! – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Third Transatlantic Workshop on International Law and Armed Conflict, which was held at the University of Oxford this summer. As with previous years, the Transatlantic Workshop brought together senior government officials, senior military lawyers and leading academics from the United Kingdom, United States, Canada, Israel and Switzerland. The two day workshop focuses each year on a range of critical issues in the law of armed conflict. This summer, there was a particular focus at the workshop on the judicial application of international humanitarian law, with sessions dedicated to the application of the law of armed conflict by human rights tribunals; international criminal tribunals; and by national courts. In addition, the workshop also engaged in discussions on direct participation in hostilities; humanitarian access in armed conflict; and foreign intervention in non-international armed conflicts.

The first post in the series – “Direct Participation in Hostilities- What are the Issues and Where are the Controversies?” – by Marco Sassoli (University of Geneva) is now available on InterCross. In his concluding paragraph he argues that:sassoli_marco220

” . . . it is this preliminary question whether and in which circumstances someone who is not a combatant may be targeted even while not DPH [taking a direct part in hostilities] that is at the heart of the controversies surrounding the ICRC DPH Guidance, rather than the question of what conduct actually constitutes direct participation. On this latter question the Guidance has suggested a definition. Today several experts and officials criticize some aspects of this definition. Experts representing militaries are however mostly obsessed by – and object to – first, the application, by the ICRC, of the principle of military necessity to the targeting of individuals directly participating in hostilities and second, by what they refer to as the ‘revolving door’ phenomenon. That a civilian regains protection once s/he no longer directly participates, regardless of whether s/he may possibly directly participate in the future, is however, an unavoidable result of the clear wording of Article 51(3) of Protocol I and of Art. 13(3) of Protocol II. If the fact of having directly participated in hostilities once or several times had the effect of turning civilians into combatants or members of armed groups, the crucial criteria relevant to determining whether an individual is a member of an armed group – belonging, responsibility and command – would become irrelevant. From a pragmatic point of view, I wonder how a soldier confronted with a civilian not directly participating can be expected to know that the individual did previously engage in direct participation and/or is likely to do so again. To make such speculations the basis for decisions over life or death is dangerous, including for the great majority of harmless civilians.”

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Creating Conduits: Summary Report of the First Annual Oxford Investment Claims Summer Academy, St. Anne’s College (Oxford)

This July 13-14, Oxford University Press and Investment Claims convened the First Annual Oxford Investment Claims Summer Academy at St. Anne’s College, the University of Oxford. Co-chaired by Diane Desierto, Ian Laird, and Frederic Sourgens, the Academy brought together a select expert group of academic and practitioner delegates to discuss the legitimacy of investor-state arbitration in the context of continuous and often virulent political criticism. The method and structure of the Academy departed from a traditional presentation format. Instead, the Academy as the first gathering of experts of its kind acted as a laboratory for open and rapid discussion of frontier issues among all participants. As a result of this format, the Academy constructively explored both traditional text-based and context-sensitive solutions for these frontier issues. ICJ Judge James Crawford’s keynote address to the delegates aptly captured the spirit of the open and critical discussion when noting that while there is little in the way of feasible alternative to investor-state arbitration and much to lose by its abolition. Bench, bar, and ivory tower must find it in them to become better stewards of this mode of international dispute resolution. In particular, there is an urgent need to address weaknesses made visible by the first two decades of sustained arbitral and annulment jurisprudence. With the depth of engagement at the inaugural session, the co-chairs are planning to hold the Academy again in the summer of 2016.

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Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…

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Call for Papers: “Human Rights and the Dark Side of Globalisation: Transnational law enforcement and migration control”

Published on May 25, 2013        Author: 

Danish Institute for International Studies, 9-10 December 2013.

Globalisation and the promotion of human rights are often assumed to walk hand in hand as increased interdependence favours rights-based governance and global communication means that human rights abuses are reported in real time. Yet, there is a flip side to this relationship. States, and especially more resourceful States, are themselves making increasing use of the possibilities afforded by processes linked to globalisation. Hitherto public exercises of authority like policing, detention and other law enforcement activities are today increasingly exercised extraterritorially, delegated to non-state actors or outsourced to foreign governments. This workshop examines the continued viability of international human rights law in the face of e.g. offshore detention schemes, private military contractors and the exercise of migration control abroad.

Confirmed keynote speakers include: André Nollkaemper, Mark Gibney, Francois Crepeau, Gregor Noll, Elspeth Guild and Marko Milanovic. Details here.

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Call for Papers: Natural Resource Grabbing

Published on May 25, 2013        Author: 

Call for papers: “Natural resources grabbing: erosion or legitimate exercise of State sovereignty?” 4th and 5th October 2013, University of Cagliari (Sardinia, Italy);  deadline for submissions of abstracts: 15 June 2013. The growing demand for natural resources has triggered a “race” to their exploitation and possession, especially in developing countries. This research project aims at addressing, from an international law perspective, this very complex challenge for the international community. Details here.

 

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ICJ Call for Papers

Published on May 9, 2013        Author: 

The International Court of Justice has issued a call for papers for a panel at its conference on the centenary of the Peace Palace in September. This is probably a first for the Court (at least I can’t remember it issuing a call for papers before), and the selection of the papers will be made by a panel of three of the Court’s judges. Appropriately enough, the Court seems to be accepting submissions only by snail mail. Details here.

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Pluricourts Call for Papers – Legitimacy and Effectiveness of International Criminal Courts

Published on May 9, 2013        Author: 

This conference seeks papers pursuing empirical, normative, comparative or theoretical approaches to the study of ICTs, and welcomes contributions from law and social science, including philosophy, sociology, criminology, psychology and history. Details here.

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