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Home Archive for category "Study of International Law"

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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Review of Itamar Mann’s ‘Humanity at Sea’

Published on August 4, 2017        Author: 

Itamar Mann’s Humanity at Sea is bold, engaging, and wide-ranging. Perhaps most importantly, it is not afraid to confront standard clichés about the conceptual underpinnings and normative architecture of international refugee law and international human rights law. In addition to specifically legal sources, it marshals a wide range of materials from a number of disciplines, particularly moral and political philosophy, in order to develop an original argument about the centrality of the refugee “encounter”—the physical and symbolic meeting between those seeking protection and those empowered to accept or reject them—to the nature of human rights generally.

On Mann’s account, human rights are non-positive norms of universal value or implication; they cannot be reduced to the rights and duties enumerated in conventional human rights instruments, whether domestic or international. Far from being ineffective or of merely marginal significance, they are one of the two “foundations” of international law, the other being sovereignty. Read the rest of this entry…

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Encounters and their Consequences: A Review of Itamar Mann’s “Humanity at Sea”

Published on August 3, 2017        Author: 

Humanity at Sea explores the outer frontiers and inner tensions of human rights law in its treatment of migrants who, intercepted at sea, challenge the interpretive boundaries of international law as well as the literal boundaries of states.

In providing an impressive and often moving overview of legal and administrative responses to migrants at sea, Mann also seeks to offer a “new theory of human rights” (p.6). The jurisprudential focus lies with whether states can be obligated to assist. Though international law confers a duty of rescue on the high seas, that duty extends only to immediate emergency assistance: once out of physical danger, it would not prevent migrants from being returned to their home territories.  By contrast, the duty of non-refoulement, which compels states not to “expel or return” migrants to territories where they could be persecuted (Art. 33, 1951 Refugee Convention), has traditionally been interpreted to apply only to receiving states’ territories, not to interception outside territorial waters on the high seas.

Mann’s theory provides a framework for understanding how states may come to extend this obligation, through a more general conceptualization of how new human rights come to be recognized. Whereas international legal thought has oscillated between positive law and natural law as a basis for state obligation, Mann’s innovation is to reject this dyad.  Read the rest of this entry…

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Book Discussion: Itamar Mann’s “Humanity at Sea: Maritime Migration and the Foundations of International Law”

Published on August 2, 2017        Author: 

The blog is happy to announce that over the next few days, we will host a discussion of Itamar Mann’s ‘Humanity Sea: Maritime Migration and the Foundations of International Law‘.

Itamar is a senior lecturer at the University of Haifa, Faculty of Law, where he teaches and researches in the areas of public international law, political theory, human rights, migration and refugee law, and environmental law. He is also a legal advisor for the Global Legal Action Network.

We will kick of the discussion this afternoon with an introduction by the author. Over the next few days, we will have posts on the book from Jaya Ramji-Nogales, Umut ÖzsuChantal Thomas, and Thomas Gammeltoft-Hansen. Itamar will then bring the discussion to a close with his concluding remarks.

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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A Possible Approach to Transitional Double Hatting in Investor-State Arbitration

Published on July 31, 2017        Author: 

In a recent ESIL Reflection, Malcolm Langford, Daniel Behn and Runar Hilleren Lie examine “The Ethics and Empirics of Double Hatting” in investor-state arbitration. (For the full article, see the Journal of International Economic Law). They found that a total of 47% of the cases they studied involved at least one arbitrator simultaneously acting as legal counsel. They also showed that the practice of double hatting is dominated by many of the most powerful and influential arbitrators in the system (who are often referred to as forming the system’s “core”). In some cases, double hatting occurs as a younger counsel transitions into being an arbitrator. But, “empirically, double hatting is more a norm than transition,” they conclude.

To me, there is a difference between the argument against double hatting in the core and in the periphery of the system. In the core of the most well established arbitrators, I think that the argument against double hatting in investor-state arbitration is strong. But in the periphery, when dealing with relatively new arbitrators or those with few appointments who are transitioning within the system, I think that a more nuanced approach is required. Why? Read the rest of this entry…

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The Data-Driven Future of International Law

Published on July 25, 2017        Author: , and

Data is not only fueling the economy, but has also become an increasingly important driver of empirical legal research. Three reasons are chiefly responsible for this. First, the internet, better search engines and bigger databases today put more international law data from treaties to disputes or arbitrators at a scholar’s disposal than ever before. Second, researchers are beginning to treat the primary material of law – legal texts – as data. By conceiving text as data and transforming it into numerical representation using natural language processing techniques, scholars can analyze more written material than they could ever read. Third, neighboring disciplines, including legal informatics, computer science or the digital humanities, provide international lawyers with new tools for digesting large amounts of legal data including through machine learning and artificial intelligence.

In a Special Issue for the Journal of International Economic Law we are beginning to explore this new data-driven frontier in empirical legal scholarship. We have been fortunate to assemble strong contributions that engage with major international economic law debates through a data-driven lens using state-of-the-art empirical techniques. In this blog post, we want set out the main issues that, we believe, are raised by this new frontier of empirical scholarship. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part II

Published on May 18, 2017        Author: 

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part I

Published on May 17, 2017        Author: 

Part I of a Two-Part Post

There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:

  • The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
  • The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
  • The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
  • The supposedly inevitable abuse of the doctrine.

The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see herehere, here, here and here).

That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion. Read the rest of this entry…

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Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

Published on April 28, 2017        Author: 

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this criticism is misguided because it confuses the role of states as disputing parties and as treaty parties. States have dual roles in the investment treaty system: they are treaty parties with a legitimate interest in the interpretation and application of their treaties and they are disputing parties with a desire to avoid liability in particular cases. When it comes to questions of institutional design, I think that we need to adopt a treaty party framework of analysis, not a disputing party one.

In a particular dispute, an investor can appoint one arbitrator and a state can appoint another. Once a case is filed, it is hardly surprising that both disputing parties would seek to appoint arbitrators who are broadly sympathetic to their positions. This tends to generate polarization within the field with arbitrators often being thought of (whether accurately or not) as having either a “pro-investor” or a “pro-state” bias. This division helps to explain why, when judged from the perspective of the dispute resolution framework, investors and members of the arbitral community have raised concerns that having tribunals selected by states only would lead to biased results. This is so even though neither the claimant investor nor the respondent state would appoint the particular tribunal members tasked with hearing the case.

When it comes to institutional design, however, we need to shift our focus from the disputing party framework to the treaty party framework. Read the rest of this entry…

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