magnify
Home Archive for category "EJIL Analysis" (Page 4)

The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.  

Read the rest of this entry…

Print Friendly, PDF & Email
 

The Salisbury Attack: Don’t Forget Human Rights

Published on March 15, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

Print Friendly, PDF & Email
 

An International Use of Force in Salisbury?

Published on March 14, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

Print Friendly, PDF & Email
 

Do We Need Another Database of International Law Documents?

Published on March 12, 2018        Author: , and
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Online databases and repositories appear to be the new golden calf of law publishers which have invested a lot of money in these new academic products. Some publishers secured an early lead position in this market while others are now catching up. From the perspective of the academics that contribute to the developments of such tools, the market still appears to be in development and below saturation. Yet, it cannot be excluded that the continued development of databases ends up cannibalizing publishers’ other, more traditional, products, such as reference books and law reports. This is however a debate for another day. For now, it suffices to note that users — whether students, researchers, practitioners — seem to value international law databases; at least as long as their institution can afford to provide them with access thereto.

It is against this backdrop that the recent launch of Oxford International Organizations (OXIO) – which was celebrated on the occasion of a well attended event hosted by the Graduate Institute in Geneva – raises the question of what epistemic and practical gaps which this new database of documents and annotations specifically dedicated to international organizations can potentially fill. This is why, in the following paragraphs, we inquire into some of the disciplinary assumptions upon which the development of such a product rests, especially in relation to the law of international organizations (1), as well as the concrete benefits which users can draw from OXIO (2).

Consolidating the Law of International Organizations? Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on Do We Need Another Database of International Law Documents?

Turbulent Times for the International Rule of Law: A Reply

Published on March 9, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Note from the Editors:  This post concludes our first EJIL:Talk! Contributing Editors’ Debate, where our distinguished Contributing Editors lent their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (Wednesday’s post here), and Lorna McGregor (yesterday’s post here) for thought-provoking responses throughout this past week’s Debate.

I am grateful for the thoughtful comments this week by Lorna McGregor, Monica Hakimi and Christian Tams on my initial post. It is first worth noting that all three colleagues use in the headlines of their comments the notion of ‘turbulent times’ respectively ‘decline and crisis’ which indicates, at least in my view, that there is at least a certain intuition (as Christian Tams put it) that the international legal order (to use yet another maritime metaphor) currently has to navigate through heavy weather. This in and of itself seems to warrant the research agenda I have tried to lay out in my initial post.

Yet, while to some extent the comments have, at least partially, focused on what approaches or strategies are appropriate to eventually overcome any alleged ‘decline’ in the international rule of law, I continue to believe that the foremost question is, first, as to whether we indeed, if so to what extent, and in which areas of international law in particular, we currently face such decline.

In that regard I fully share the almost obvious position that any such determination requires much more research than what can even be hinted at in a short blog contribution like the one I have written. As a matter of fact such analysis must be nuanced (what areas of international are most concerned and why), multifaceted, interdisciplinary, and must focus, inter alia, on challenges for institutions that form the cornerstone of modern international law such as international organizations (providing for fora for interstate cooperation and the regulation of problems of international concern) and international courts and tribunals (providing for legally binding third party dispute settlement of international disputes).

Yet, it is certainly a truism that a mere quantitative approach does not suffice since, to paraphrase the example used by Christian Tams, one single withdrawal from the Rome Statute would probably at least be a more relevant sign than ten withdrawals from the 1968 Vienna Convention on Road Signs and Signals (as important the latter is for the daily routine of cross-boundary traffic). In particular, as part of a more qualitative approach, one needs to have a look whether the current perceived ‘turbulences’ have also by now reached the more fundamental layers of international law, i.e. meta-rules such as the ones on sources, State responsibility, State immunity, treaty interpretation, or res judicata effect of international court decisions must be abided by the parties involved, to name but a few, the general acceptance of which is indispensable for a functioning international legal system. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Thickening of the International Rule of Law in ‘Turbulent’ Times

Published on March 8, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The Thickening of the International Rule of Law in ‘Turbulent’ Times

Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

Print Friendly, PDF & Email
 

International Law in “Turbulent Times,” Part II

Published on March 6, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In my previous post, I argued that international law does not foster cooperation at the expense of conflict. It fosters both simultaneously. It helps the participants overcome their differences and achieve a shared agenda, while helping them have and sharpen their disputes. The two kinds of interactions are symbiotic, not antithetical, so the fact that international law cannot stop global actors from inflaming or continuing to have a conflict is not good evidence of its weakness or decline; international law itself enables such interactions. Below, I take my argument a step farther. I claim that the conflicts that are had through international law are not just something to grin and bear; they are often quite productive for the legal project. I then return to the central question that Andreas posed: how might we assess whether international law is in decline?

Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on International Law in “Turbulent Times,” Part II

International Law in “Turbulent Times,” Part I

Published on March 6, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil-analysis/page/4
LINKEDIN

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s interesting post raises foundational questions about international law’s role in the global order. In suggesting that international law is in decline, he assumes a particular vision of what international law does or should do, and thus of how we might evaluate its decay. The vision seems familiar. Many contend that the role of international law is to help global actors curb their disputes and promote their common interests, policies, or values. Of course, these actors will at times disagree. But according to this view, conflicts—normative disputes that manifest in materially relevant ways—are impediments to international law or problems for international law to overcome. They detract from or betray the limits of international law, at least insofar as they persist without final or authoritative resolution.

For example, Andreas suggests that states’ noncompliance with judicial decisions is evidence of international law’s weakness or decline. It shows that international law cannot effectively or legitimately resolve a dispute that is impeding the realization of the prescribed (and presumably shared) agenda. He thus ends his post by arguing that, “in turbulent times,” like the current one, international lawyers and legal scholars ought to insist that the law be applied as it is, and ought not push it in more contentious, value-laden directions that would further destabilize it.

Below and in a follow-up post, I draw on two of my recent articles to explain why that vision for international law is flawed. I then use this analysis to bring into sharper focus one of the principal challenges that international law now confronts.

Read the rest of this entry…

Print Friendly, PDF & Email