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Joint Blog Series on International Law and Armed Conflict: Jann Kleffner on ‘Wounded and Sick and the Proportionality Assessment’

Published on October 13, 2017        Author: 
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The final installment of our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick and the Proportionality Assessment’- by Jann Kleffner (Swedish Defence University) is now available on Intercross

Here’s a taster of Jann’s post:

For all wounded and sick other than civilian ones, the question looms large how that obligation to respect and protect in all circumstances can be squared with the absence of such persons from the collateral damage side of the proportionality equation. The following possibilities present themselves.

Option 1The obligation to respect and protect such wounded and sick in all circumstances could be interpreted to mean that any incidental harm to them falls foul of the obligation and hence constitutes a violation of the law of armed conflict.

[…]

Option 2: The right of parties to an armed conflict to attack lawful targets could be understood to supersede the obligation to respect and protect the wounded and sick other than civilian ones.

[…]

Option 3The obligation to respect and protect could be interpreted to require a proportionality assessment in which incidental harm to wounded and sick other than civilian ones is legally assimilated to harm to civilians.

Read the rest of the post over on Intercross.

 

Thanks to all who participated in this joint blog series. Special thanks to post authors, readers and commentators, and to our partners over at Intercross and Lawfare. 

 

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The Public Law Approach in the Practice of Investment Treaty Arbitration

Published on January 22, 2014        Author: 
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In my last post, I discussed how comparative public law methodology could inform the resolution of investor-State disputes and thus help to reform the system from within. This may sound like a view from the ivory tower. In this post I will first discuss why arbitrators have an incentive to make use of such a methodology and, second, point to existing cases in which tribunals have already adopted a comparative public law framework.

System-Internal Reform and Identity Change

The success of using comparative public law as a system-internal reform strategy depends on the extent to which those active in practice endorse it. Enculturating public law thinking will need an identity change among arbitrators, arbitral institutions, annulment committees, and disputing parties. But why should a change in thinking take place, if there is nobody who coerces arbitrators to incorporate public law thinking or parties to develop their submissions on the basis of comparative public law? Do arbitrators not even have an incentive to keep the system running in a way that it maximizes the benefits of investors as claimants, and in turn, the arbitrators’ own interest in being reappointed? This is what critics like Gus Van Harten argue. In his view,

the novel situation in which claims can be brought by only one class of parties, and only the other class can be found to have violated the treaty, provides investment treaty arbitrators (including those who are state-appointed) with an incentive to favour claimants in order to advance the interests of the industry and their position within it.

Appointment of Arbitrators as a Source of Change

My view is different. I think that the one-off nature of arbitration and the appointment mechanism for arbitrators have a great potential for bringing change to the system. Read the rest of this entry…

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Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I

Published on November 1, 2013        Author: 
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Introduction: The draft GA resolution on privacy on the Internet

At the end of October 2013, a draft General Assembly resolution calling for the right to privacy on the Internet was sponsored by Brazil and Germany. (photo: a panopticon, credit)

The draft resolution reaffirms the human right to privacy. It calls upon states to take measures to put an end to violations of these rights (operative para. 4 b), calls upon states to review their procedures, practices and legislation concerning the extra-territorial surveillance of private communications (para. 4 b) and calls upon states to establish independent oversight mechanisms capable of ensuring the transparency and accountability of state surveillance of communications (para. 4 d).

Although the draft resolution does not mention the United States or the National Security Agency (NSA), it is indirectly reacting against the NSA’s recent espionage and surveillance activities conducted in a number of European states, including France, Italy, and Spain. This two-part post will focus on surveillance of German officials including the chancellor Angela Merkel and of ordinary persons in Germany by way of example. Spying on government officials concerns general international law, which will be the focus of Part I of this post. Part II will focus on the bugging of the communication of private persons, which implicates human rights law.

Breach of international law vis-à-vis the surveilled states

The interception of communication by government officials, agents, and authorities seems to constitute espionage. However, there are no specific international law norms that would contain or regulate espionage.

Spying has been more common (and more acceptable under international law) during war and under the international rules of armed conflict. If the United States seek to justify their surveillance activities by pointing to the “global war on terror” or, to use the term employed by former US legal adviser Harold Koh, “armed conflict with Al Qaeda, as well as the Taliban and associated forces”, the US would first have to show that there is indeed, in Germany, an armed conflict of this type. This seems difficult to demonstrate because the geographic and substantive nexus to the battlefield is lacking. Read the rest of this entry…

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Belgium v. Senegal: Did the Court End the Dispute between the Parties?

Published on July 25, 2012        Author: 
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Inna Uchkunova, New Bulgarian University (LLM) is a Member of the International Moot Court Competition Association.

The Judgment in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) is the first in the history of the International Court of Justice (“ICJ”) in which it found that a State had standing based on obligations erga omnes partes. Before that, the PCIJ had only once to pronounce on this question in the 1928 Wimbledon case. In para. 68 of its judgment the Court stated, inter alia, that:

The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case.

The Court’s reference in the judgment to the Barcelona Traction case may create confusion as to the difference between obligations erga omnes partes (Article 48(1)(a) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) “owed to a group” of States and erga omnes obligations (per se) which are “owed to the international community as a whole” (Article 48(1)(b)).  The ARSIWA Commentary clarifies that the name “owed to the international community as a whole” was preferred over erga omnes in order to avoid confusion “with obligations owed to all the parties to a treaty.” The better view seems, therefore, to be that obligations erga omnes partes exist in the case of treaties such as the CAT or the Genocide convention, while obligations erga omnes form part of customary law.

Article 48 ARSIWA represents progressive development, but the Court in East Timor did not rule out standing deriving from obligations erga omnes either. It merely stated that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.” (para. 29) In that case the Court lacked jurisdiction based on the Monetary Gold principle. It remains to be seen whether erga omnes skeptics are to be proven right or wrong.

  Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis’ Rejoinder

Published on June 19, 2012        Author: 
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In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another”.

Insofar as comparative law is considered merely as an opportunity to “learn” from municipal legal systems, then the matter is relatively uncontroversial. A perhaps more controversial question, however, is: how are the lessons learnt from comparative law to be used?

While some authors, on the one hand, have suggested that the lessons from comparative law may provide safeguards against judges who attempt to legitimate a posteriori a solution that they have already chosen (see Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, Journal of International Criminal Justice (2003)).

On the other hand, some commentators have suggested that comparative law may be used for precisely the converse reason. Judge Cassese, for instance, intimated that:

Mon experience est que souvent le droit compare est utilise pour confirmer une solution que l’on avait déjà trouvée.(cited in Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, in the Global Community Yearbook of International Law and Jurisprudence (2002)).

It is perhaps this apprehension which explains Judge Cassese’s categorical stance in Erdemović, in relation to the acceptance by the Tribunal of a guilty plea. While the Tribunal concluded that it could restrict its search solely to common law adversarial systems from which the rule was derived, Judge Cassese insisted that such a narrow inquiry was unacceptable. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Published on June 15, 2012        Author: 
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Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the identification of general principles of international law that is quite different from the one I described as being the current dominant approach, and rather similar to the approach that I propose in my paper. Central to my argument is that comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another. The approach taken by Judge Shahabuddeen in Furundzija, and adopted by Aldo, seems compatible with the one I advance. I would propose the adoption of a more modest goal: rather than hoping to find ‘a common underlying sense of what is just in the circumstances’ as Judge Shahabuddeen would have it, I would suggest the identification of a reasonable, and reasonably just, solution to a legal problem. Nevertheless, Judge Shahabuddeen’s approach moves sharply away from a mechanical, or functional, approach to borrowing from municipal legal systems. I am less confident than Aldo regarding the extent to which this principle is reflected in what most international judges do, and what legal scholars say they ought to do, when it comes to general principles, though judges on international criminal tribunals are moving in interesting and promising directions.

I am not convinced that Aldo’s approach to comparative law provides appropriate guidance to international judges looking to learn from municipal law. Schmitthoff’s approach to comparative law, adopted by Aldo, is problematic in my view. I agree with Schmitthoff that comparative law is better described as a comparison among reactions of legal systems to a problem than as a comparison between legal rules and institutions, but I find that the second stage, the utilization of the results obtained, is question-begging. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Published on June 1, 2012        Author: 
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Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.

 1. Introduction

This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of  inquiry to a single, specific legal system.

2. Comparative Law And The Ad Hoc Tribunals

In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that  “The  first  phase  consists  in  examining  the  reaction  of  a number  of  legal  systems  to  an  individual  legal  problem.  The second stage is concerned with the utilization of the results obtained  in  the  first  phase,  and  this  utilization  can  be  effected for a great variety of reasons.”

This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.

A. The Application Of Comparative Law By The Ad Hoc Tribunals

Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)

1. Comparative Law And Customary International Law

The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…

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General Principles and Comparative Law

Published on May 31, 2012        Author: 
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Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous. Another possible explanation is the highly unsatisfactory nature, both in theory and in practice, of the methodology currently applied to identify general principles of law. The debates at the international level regarding general principles map onto those at the municipal level concerning the ‘borrowing’ of rules from one legal system by another. It makes sense, therefore, to look into the controversies over ‘borrowing’ that play out in scholarship on comparative law, in order to gain some insights into the difficulties generated by the source general principles of law, as well as ways of alleviating these difficulties. I argue that particular attention ought to be paid to strands of comparative law scholarship which take issue with a functional approach – to put it starkly, an approach that treats legal rules as pieces that can be extracted from one machine and inserted into another – and which place emphasis on the processes through which legal systems can learn from one another.

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Discussion of Jaye Ellis “General Principles and Comparative Law”

Published on May 31, 2012        Author: 
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Over the next few days, we will be hosting a discussion of one of the articles published in the last issue of the 2011 volume of European Journal of International Law. That issue included a paper by Jaye Ellis on “General Principles and Comparative Law”. Jaye is Associate Professor of Law and Associate Dean at McGill University’s Faculty of Law. Jaye posts a short  overview of her article later today. Tomorrow, Aldo Zammit Borda who is currently a PhD candidate at Trinity College, Dublin but formerly First Secretary at the Ministry of Foreign Affairs of Malta, and Legal Editor, Commonwealth Secretariat, London will comment on Prof. Ellis’ article. Readers are invited to join in the conversation.

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Questioning the Peremptory Status of the Prohibition of the Use of Force

Published on March 17, 2011        Author: 
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Dr James A. Green is lecturer in law at the University of Reading School of Law.

The prohibition of the unilateral use of force, as set out most crucially in Article 2(4) of the UN Charter, is often seen as the archetypal example of a jus cogens norm. Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character, as does the International Law Commission and the International Court of Justice.  It is understandable that a plethora of commentators have perceived the prohibition as a peremptory norm: the use of military force usually involves the systematic killing of human beings, often on a vast scale.  An underlying rationale for the entire jus cogens concept is the desire to impose some kind of fundamental standard of common values upon state interaction and to strengthen the effectiveness of international law in certain areas of common concern.  On this basis, the prohibition of the use of force is exactly the sort of norm that should be peremptory. Coupled with the fact that jus cogens and the jus ad bellum share common natural law underpinnings, one might view them as a perfect conceptual fit.

In ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215-257, I challenge this widely held view: is the prohibition of the use of force in fact a jus cogens norm?  The desirability of peremptory norms, and, indeed, their very existence, has been questioned in the literature, but it was not my aim in the Article to debate the existence of jus cogens norms per se.  Without making a value judgment as to the desirability of peremptory norms, the view is taken that there is certainly enough evidence to suggest that states have accepted the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.

Based on this starting point, the Article does not argue that the prohibition is necessarily a norm that has failed to achieve peremptory status.  Rather, the intention is to demonstrate that there are significant difficulties with such a conclusion and that, as a result, the widespread uncritical acceptance of the prohibition as a jus cogens norm is concerning.  The aim is to test the prohibition against the criteria for the establishment of peremptory status—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

By way of background, then, the Article sets out in more detail the legal criteria for identifying a peremptory norm of international law, and goes on to consider the majority view—prevalent in the literature—that the prohibition of the use of force is such a norm.  A number of problems with the conclusion that the prohibition is jus cogens are then set out.  The question of whether the prohibition is suitable, or even capable, of being viewed as a jus cogens norm is examined through various points of focus.

Read the rest of this entry…

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