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Home Archive for category "EJIL Book Discussion"

Oppenheim’s International Law: United Nations

Published on October 16, 2017        Author: 

October 2017 marks the publication of a new two-volume work under the prestigious ‘Oppenheim’ banner, Oppenheim’s International Law: United Nations. It traces the evolution of the United Nations and the legal issues it daily faces. It is also an essential tool for practitioners as they address the legal problems of today at the United Nations.Image result for oppenheims international law united nations

In 1992, Sir Robert Jennings and Sir Arthur Watts, to great acclaim, had published the 9th edition of Oppenheim’s International Law, Volume I: Peace. It had taken them long years to prepare. The eighth edition, prepared by Sir Hersch Lauterpacht, had been published in 1955.

In 1994, I received an unexpected letter from Sir Robert Jennings and Sir Arthur Watts. In it they informed me that in the Preface to the 8th edition of Oppenheim, it had been envisaged that one day a volume of that great work would need to address the new phenomenon of international organizations. A new volume would be required for this work, which they invited me to undertake.

I was, of course, hugely honoured by this invitation, though I realised from the outset that the amount of work it would involve was enormous. I was at that time Professor of International Law at the London School of Economics and Political Science, in practice at the Bar as a silk, and a member of the UN Human Rights Committee under the International Covenant on Civil and Political Rights. There seemed not a spare moment, and I was increasingly wondering how I could continue both as an academic and at the Bar, and whether one of these strands to my life should go. But this suggestion that I should prepare a new Oppenheim was too great an honour to decline.

Apart from pressures of work and time, there was another aspect that worried me greatly. By the early nineties there were already some wonderful books on legal aspects of international organizations. In particular, Henry G. Schermers’ International Institutional Law, seemed to me to have fully covered the ground, in a scholarly and comprehensive way.

Jennings and Watts had a short reply to that anxiety: ‘This is not to be a book about constitutions, statutes and rules’, they said. ‘It is to be about how things really are’. Legal reality, they explained, is what is required for a practitioners’ book – and what has distinguished Oppenheim from other legal texts is that it is a practitioners’ book (albeit of interest to academics). Read the rest of this entry…

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A Response: The Child in International Refugee Law

Published on September 1, 2017        Author: 

I am grateful to each of the participants for engaging with The Child in International Refugee Law in such a thoughtful way.

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”. Read the rest of this entry…

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Review: Jason Pobjoy’s Book, The Child in International Refugee Law

Published on August 31, 2017        Author: , and

Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction. Read the rest of this entry…

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Persecuting Children: How the Convention on the Rights of the Child has pushed the evolution of refugee law

Published on August 31, 2017        Author: 

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

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Treaty Interpretation and The Child in International Refugee Law

Published on August 30, 2017        Author: 

Jason Pobjoy explains in The Child in International Refugee Law (CUP 2017) how the rule set out in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the ‘general rule of interpretation’, in his words, ‘comprises a single holistic “rule” of interpretation’, and that the adoption, by the International Law Commission (ILC),

of a “single, closely integrated rule”’ underscores the need to look beyond a literal construction of the text and to consider the terms of the treaty in light of their object and purposes, in their context and taking into account subsequent extrinsic sources (p 34).

He goes on to explain that this ‘rejection of strict literalism has found favour in domestic refugee jurisprudence’ and then sets out how Articles 31–33 mandate a ‘systemic approach’ to the interpretation and application of the Refugee Convention, with the Convention on the Rights of the Child naturally playing a particularly important role (p 34–43). It is extremely well done.

This approach, clearly and convincingly set out in Chapter 1 of the book, is undoubtedly correct. It is of a feather with the dictum of the International Court of Justice in Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, according to which a treaty ‘does not operate in a vacuum’ but rather ‘in the context of a wider framework of legal rules of which it forms only a part’ (ICJ Rep 1980, p 73, 76, para 10). Against this background, the book in Chapter 6 develops the argument that the Convention on the Rights of the Child is a complementary source of protection for children, going into some detail on state practice to make out the argument.

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Child Refugees and International Law: Legal Imagination in the Service of Others

Published on August 30, 2017        Author: 

What is seen and experienced often determines outcomes, in law as elsewhere. Background assumptions about the world (including legal texts) can distort the interpretation and application of norms. Partial perspectives render invisible what should be obvious or perhaps what only becomes obvious with revised theories and concepts. As Jason Pobjoy makes plain in his outstanding book, there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection. Refugee law makes no distinctions based on age; in theory a child who meets the Convention definition is every bit a refugee as an adult. This absence, of course, cuts both ways; it does not make explicit textual provision for the particular circumstances of children either. All refugees are not however treated equally, and in practice there are pervasive problems of visibility and incorrect assessment (Jason Pobjoy, The Child in International Refugee Law, (2017, Cambridge University Press) 5).

Pobjoy does a remarkable job in highlighting the deficiencies (for example, the evidence of the low number of references by domestic decision-makers to the UN Convention on the Rights of the Child) while also mapping out, with admirable precision, credible ways forward. Pobjoy thus unearths the lip-service often paid to the best interests of the child principle when compared with hard facts, but also charts a course for those globally and locally who genuinely want to take the rights of the child seriously within the international refugee protection framework.

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An Introduction: The Child in International Refugee Law

Published on August 29, 2017        Author: 

I want to start by expressing my thanks to the editors of EJIL: Talk! for arranging this book discussion, and to Deborah Anker (with Nancy Kelly and John Willshire Carrera), Eirik Bjorge, Mary Crock, and Colin Harvey for agreeing to participate in the discussion. The participants are all leaders in their fields, and I am privileged that they have agreed to engage with The Child in International Refugee Law.

It is a sad reality that the horrors faced by refugee children – both in their country of origin, and in their attempt to secure international protection in a host State – continue to dominate our news feeds. In the past month alone, we have seen damning reports of Australia’s offshore processing regime, which has involved the transfer and detention of children, and, in some cases, the separation of children from their parents; reports that thousands of Syrian children in Jordan’s Za’atari camp are being deprived of an education; and reports that over 10,000 child migrants went missing in Europe last year. As Harvey recognises in his contribution, “there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection”. The need for change is heightened by the reality that childhood is a wasting asset. As Goodwin-Gill recently observed, “[c]hildhood, once lost, is never recovered”.

The premise underlying The Child in International Refugee Law is that international law has an important role to play in securing greater protection for refugee children. As Beth Simmons persuasively argues, international law provides a “rights based framework to supplement the protective framework that has a much longer history in many societies”. It is particularly important in the context of children, with the Convention on the Rights of the Child (“CRC”) providing a “lever to give … would-be advocates influence over policies likely to have an important impact on the well-being of those who are not able to organize and speak for themselves” (Simmons, Mobilizing for Human Rights (2009) 307).

The central thesis of the book is that the 1951 Refugee Convention is capable of responding in a sophisticated and principled way to refugee claims brought by children. More specifically, the CRC has an important role to play in both informing and supplementing the 1951 Refugee Convention.

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Announcement: Book Discussion on Jason Pobjoy’s “The Child in International Refugee Law”

Published on August 29, 2017        Author: 

The blog is happy to announce that over the next few days, we will host a discussion of Jason Pobjoy’s new book, The Child in International Refugee Law. Jason Pobjoy is a barrister at Blackstone Chambers, where he has a broad practice including public and human rights law, refugee and immigration law and public international law. He is a Research Associate at the Refugee Studies Centre, University of Oxford.

Jason will open the discussion this afternoon with an introduction to the text . This will be followed by posts from Colin Harvey, Eirik Bjorge, Mary Crock, and Deborah Anker with Nancy Kelly & John Willshire Carrera. Jason will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

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Itamar Mann Concludes the Discussion on “Humanity at Sea”

Published on August 7, 2017        Author: 

This symposium brought together four of my favorite scholars to engage with Humanity at Sea, and I couldn’t be more thankful. I learned a great deal from each of the reviews and entirely agree with Jaya Ramji-Nogales when she writes, in an understatement, that they leave me with “ongoing questions to address.” I will only begin to lift the burden here.

The Place of Human Rights  

If human rights are to be conceptualized around a dyadic encounter, asks Chantal Thomas, must this encounter be a physical one? “Perhaps the horrific reports of Mediterranean crossings on television or in other media might stage a form of virtual encounter […] that serves as the catalyst for generating human rights.” In the book, I try to provide a starting point for approaching such questions.

Chapter 5 examines the use of surveillance systems and other technologies both by states engaged in “migration management”– and by migrants, refugees, and smugglers. Using such technologies, relevant actors re-construct and manipulate the physical encounter at sea (which is discussed in previous chapters). They are thus able to partake in the transformation of human rights jurisdiction. Since I completed the book, the use of these technologies has developed quickly and there are many more examples to discuss: Read the rest of this entry…

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Tarnished Hospitality: Reflections on Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

What men, what monsters, what inhuman race,

What laws, what barbarous customs of the place,

Shut up a desert shore to drowning men,

And drive us to the cruel seas again.

The above verse, recounting the plea of the Trojan refugee Aeneas to queen Dido when washed ashore in present-day Libya, repeatedly comes to mind when reading Itamar Mann’s new book, Humanity at Sea. Like Mann’s volume, this part of Vergil’s Aeneid (Dryden’s translation, I, 760-63) zooms in on the basic norms governing the encounter between the powerful and the dispossessed. An encounter that, if with a somewhat reversal of cast, is played out thousands and thousands of times these years as refugees and migrants try to cross the very same waters.

Mann’s inductive approach is not shy of ambition, however. A proper understanding of the encounter between the ‘universal boat person’ and the naval authorities, we are told, holds the keys to an entire theory of human rights. His core argument, that at the heart of human right lies a dyadic encounter quite distinct from both the constitutional and intergovernmental approaches forwarded by positive international law, is both simple and compelling. Read the rest of this entry…

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