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Home Archive for category "Study of International Law" (Page 4)

The scope of ICC jurisdiction over the crime of aggression: a different perspective

Published on September 29, 2017        Author: 

In his post of 26 June 2017 Dapo Akande asks:

“Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter proprio motu?”

Why does the answer to this question matter? “No” means that an ICC state party that has ratified the amendments will enjoy the Court’s judicial protection only if it falls victim to aggression by one of the other (currently) 33 ratifying states. It would be an opt-in regime for potential aggressor states, and in fact, they could at any time later opt-out again (opt-in-opt-out). “Yes” means that such protection extends to aggression committed by any of the 123 other ICC states parties – of course with the significant caveat they can still opt out. That would be an opt-out regime. All of this of course only in the absence of a referral by the UN Security Council, which would make state consent a moot point.

The issue is currently discussed by ICC states parties in view of the activation decision to be taken in December 2017. I am therefore happy to explain why I think the answer is “yes”, even though Dapo gave a thoughtful argument for “no”. Read the rest of this entry…

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

Published on September 27, 2017        Author: 

Over the coming weeks, three blogs – IntercrossEJIL:Talk!, and Lawfare – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Fifth Annual Transatlantic Workshop on International Law and Armed Conflict, which was held at the European University Institute in Florence in late July. As in previous years, the workshop brought together a group of academic, military, and governmental experts from both sides of the Atlantic. The roundtable, held under the Chatham House Rule, was held over two days and examined contemporary questions of international law relating to military operations.

This summer, there a particular emphasis on issues arising from the ICRC’s updated commentaries to the 1949 Geneva Conventions. The publication of the updated commentaries provided an opportunity to revisit some of the core issues that relate to the obligations of parties to conflicts under Common Article1 (the obligation to respect and ensure respect), issues relating to classification of situations of violence as non-international or international armed conflicts under Common Articles 2 and 3, as well as issues relating to humanitarian access which arise under Common Article 3 and Common Articles 9/9/9/10 of the Conventions. The sessions also examined protection of the wounded and sick; cyberspace and the LOAC; and the Common Article 3 concept of non-state armed groups.

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. Each blog post represents the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented.

Intercross kicked off the series yesterday with a post from Marten Zwanenburg (Netherlands Ministry of Foreign Affairs) on “The Obligation to ‘Ensure Respect’ for IHL: The Debate Continues” (available here). Read the rest of this entry…

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International Law or Comity?  Exploring whether Grace Mugabe can successfully claim immunity for crimes committed on foreign soil.

Published on September 4, 2017        Author: 

Background Facts

On 14 August 2017 various news sites reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman. A court hearing to obtain a statement from Mrs Mugabe was scheduled for the 15th but she failed to appear. On the evening of the 16th the Government of Zimbabwe directed a note verbale to the South African government invoking diplomatic immunity on her behalf and stating that Mrs Mugabe’s itinerary in South Africa included amongst private matters her attendance and participation at the scheduled SADC Heads of States/Governments Summit and other Bi-lateral Diplomatic Meetings.

The question which has gripped lawyers and laymen alike is whether or not Mrs Mugabe can successfully claim any kind of immunity under international law to shield herself from arrest and prosecution.  Media reports asserted that Mrs Mugabe claimed “diplomatic” immunity”. However, as the spouse of a sitting Head of State, ordinarily resident in Zimbabwe, Mrs Mugabe cannot be considered a diplomatic agent and is not entitled to the protections afforded under the Vienna Convention on Diplomatic Relations (VCDR). Customary international law also confers personal immunity on some state officials. This personal immunity is extensive in scope, and wide enough to cover both official and private acts by heads of state, heads of government and foreign ministers as the Arrest Warrant Case  points out. As Mrs Mugabe does not fall within any of the categories above, she cannot claim personal immunity. In addition, customary international law accords, functional immunity in relation to acts performed in an official capacity. This immunity covers the official acts of all state officials and of those who act on behalf of the state.  It is determined by reference to the nature of the acts in question rather than the particular office of the official who performed them. However, the alleged assault by Mrs Mugabe was not undertaken in the performance of any official duty and functional immunity is unavailable in relation to that act.

This post considers whether the Mrs Mugabe may have been entitled to immunity, while in South Africa, as the spouse of a head of state. The post first considers whether the spouse of a representative to SADC, an international organization, may be entitled to immunity. It then explores the immunity of family members of state officials on special missions and of heads of states. Read the rest of this entry…

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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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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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