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Announcements: Chatham House Event – Protecting Civilians; iCourts and PluriCourts PhD Summer School; CfP Human Rights Working Paper Series; CELI Peace Talks Series; CfP The ‘Greek Case’ in the Council of Europe; Global Fellowship Applications for New York University School of Law; Vacancy at Max Planck Institute; CfS UCL Journal of Law and Jurisprudence; The Era of Disintegration Conference; Launch of Odysseus Academic Network PhD Catalogue

Published on October 28, 2018        Author: 
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1. Chatham House Event: Protecting Civilians – When is ‘Incidental Harm’ Excessive? Geneva Launch. There have been large numbers of civilian deaths in the armed conflicts in Yemen and Syria. Is international humanitarian law being ignored? This meeting will take place on 14 December 2018, 10:00am to 11:30am, at the Graduate Institute, Chemin Eugène-Rigot 2, 1202 Geneva, Switzerland. This meeting coincides with the launch of a Chatham House research paper on the incidental harm side of the proportionality assessment which belligerents are legally required to make. The panel at the meeting will consider the types of harm that fall within the scope of proportionality assessments, what constitutes ‘excessive’ harm and measures that belligerents can take to give effect to the rule on  proportionality. This event will be followed by a reception. See here for more information and to register.

2. iCourts and PluriCourts PhD Summer School. The Centre of Excellence for International Courts (iCourts) and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) are again hosting a high-level summer school for PhD students working on international courts in their social and political context. We particularly welcome students whose PhD thesis involves a strong focus on methods and interdisciplinary. The summer school will be hosted from 17 June – 21 June 2019 at iCourts, Karen Blixens Plads 16, DK-2300 Copenhagen S. The deadline for submission is 1 February 2019. See here and here for more information about the summer school 2019.

3. Human Rights Working Paper Series Call for Papers. Dedicated to interdisciplinary and critical dialogue on international human rights law and discourse, the Rapoport Center’s Working Paper Series (WPS) publishes innovative papers by established and early-career researchers as well as practitioners. The goal is to provide a productive environment for debate about human rights among academics, policymakers, activists, practitioners, and the public. Authors from all disciplines and institutions are welcome to submit papers on any topic related to human rights. Publication in the WPS does not preclude future publication elsewhere; in fact, many of our working papers have since been published in academic journals and edited volumes. For the 2018-9 series, the Editorial Committee is accepting submissions on a rolling basis. For more information, please see here or contact rcwps {at} law.utexas(.)edu. The full call for papers is here
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New EJIL: Live! Interview with Professor Bhupinder Chimni on his Life and Life Work

Published on October 26, 2018        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Bhupinder Chimni, Professor of International Law at the School of International Studies, Jawaharlal Nehru University, Delhi, India. The interview, rather than discussing a specific article, looks at the life and the life work of Professor B.S. Chimni.

The conversation ranges across many subjects, including the influences that shaped Prof. Chimni’s life and thought, the meaning, significance and influence of the TWAIL movement, legal education in India, his writings on international refugee law and scholarly projects for the future. EJIL vol. 29(2) features a review essay by Dr Akbar Rasulov on Professor Chimni’s most recent book, “International Law and World Order: A Critique of Contemporary Approaches”, which viewers are also invited to read. The interview was recorded at the National University of Singapore.

 

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The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Primer

Published on October 26, 2018        Author: , and
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On 3 October 2018, the five Arctic Ocean coastal States (Canada, Denmark (acting on behalf of Greenland and the Faroe Islands), Norway, Russia, and the United States – the ‘A5’) together with China, the European Union (EU), Iceland, Japan, and South Korea (which together with the A5 form the so-called ‘A5+5’) signed the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement or CAOFA) in Ilulissat, Greenland. In this post, we provide a brief introduction to the CAOFA, highlighting a number of salient issues which we discuss in much greater detail in a forthcoming article (V.J. Schatz, A. Proelss & N. Liu, The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Critical Analysis (2019) International Journal of Marine and Coastal Law).

Background

The CAOFA’s raison d’être is summarized in the preamble of the Agreement:

Recognizing that until recently ice has generally covered the high seas portion of the central Arctic Ocean on a year-round basis, which has made fishing in those waters impossible, but that ice coverage in that area has diminished in recent years;

Acknowledging that, while the central Arctic Ocean ecosystems have been relatively unexposed to human activities, those ecosystems are changing due to climate change and other phenomena, and that the effects of these changes are not well understood; […]

Believing that commercial fishing is unlikely to become viable in the high seas portion of the central Arctic Ocean in the near future […]

In line with what the preamble states, the objective of the CAOFA is:

to prevent unregulated fishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks (Article 2).

Indeed, the high seas portion of the central Arctic Ocean (CAO) has previously not been subject to a comprehensive regional fisheries agreement. As shown on the map below (own copyright), only the southern tip of the CAO falls within the Convention Area of the North-East Atlantic Fisheries Commission (NEAFC). Other relevant regional fisheries management organizations (RFMOs) and arrangements (RFMAs) lack either a geographical or substantive mandate for comprehensive fisheries regulation in the CAO. On the other hand, the global legal regime for high seas fisheries applies to the CAO. The A5 admitted as much in their 2008 Ilulissat Declaration by expressing support for the existing global framework provided by “the law of the sea [as] a solid foundation for responsible management by the five coastal States”. The most important global instruments, which are also expressly referred to in the CAOFA’s preamble, are the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1995 UN Fish Stocks Agreement (UNFSA) and the 1995 Code of Conduct for Responsible Fisheries. Read the rest of this entry…

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Filed under: EJIL Analysis, Law of the Sea
 

Un-caging the Bear? A Case Study in Cyber Opinio Juris and Unintended Consequences

Published on October 24, 2018        Author:  and
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On October 4, the United Kingdom’s National Cyber Security Centre (NCSC), a division of the GCHQ, issued a news release attributing multiple cyber campaigns to Russia’s military intelligence service, the GRU. They were, according to the NCSC, designed to ‘undermine [the] international sporting institution WADA [World Anti-Doping Agency], disrupt transport systems in Ukraine, destabilise democracies and target businesses’.

The release was notable in two regards. As the campaigns were conducted by the GRU, an organ of the Russian government, Russia is legally responsible under the law of State responsibility for any violations of international law that may have occurred. Second, the release stated that the operations were ‘conducted in flagrant violation of international law’. Indeed, Foreign Secretary Jeremy Hunt, whom the release quoted, observed, ‘[t]his pattern of behaviour demonstrates their desire to operate without regard to international law or established norms and to do so with a feeling of impunity and without consequences’. 

Unfortunately, neither the NCSC nor the Foreign Secretary delineated those rules of international law that Russia allegedly violated or otherwise undermined. In this post, we attempt to tease loose the legal significance of the operations by measuring them against the recently enunciated UK positions on international law in the cyber context. Attorney General Jeremy Wright set forth these positions in a 23 May Chatham House speech. We first highlight the UK approach to the key international law prohibitions that are relevant vis-à-vis the Russian operations. Second, we assess the operations themselves against the UK position on these legal rules. Finally, we conclude by making the point that legal policy decisions with respect to cyberspace may prove a double-edged sword. Compelling reasons may exist for adopting particular positions regarding international law norms in cyberspace, but seldom are those positions cost-free. In particular, we suggest that the United Kingdom’s rejection of a rule requiring respect for the sovereignty of other States eliminates its most defensible basis for arguing that the Russian cyber campaigns undermined international law. Other States should bear this in mind before following suit.

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Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

Published on October 23, 2018        Author: 
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On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. Read the rest of this entry…

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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
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Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

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Announcements: Corruption, Democracy and Human Rights Conference; CfS Melbourne Journal of International Law; CfP Redistributive Human Rights? Workshop; CfP International Community Law Review Journal; CfP Journal of International Humanitarian Legal Studies; CfP The Rule of Law in Cyberspace; Universal Declaration of Human Rights at 70 Conference

Published on October 21, 2018        Author: 
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1. Corruption, Democracy and Human Rights Conference. This two-day international conference will be on Corruption, Democracy and Human Rights: exploring new avenues in the fight against corruption. The conference will be hosted by the European University Institute in Florence on 20 – 21 June 2019. The deadline for submission of abstracts is 26 February 2019. See the conference website for more details. Enquiries or abstract submissions should be made to Corruption2019 {at} port.ac(.)uk.

2. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 20(1).MJIL is a peer-reviewed academic journal based at the University of Melbourne that publishes innovative scholarly research and critical examination of issues in international law. In addition to considering general international law pieces, volume 20(1) will have a special focus on science and technology in international law. The deadline for submissions is 31 January 2019. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au. For more information, please see here

3. Call for Papers: Redistributive Human Rights? Workshop. 31 January – 1 February 2019, Faculty of Law, University of New South Wales (Australia). This workshop aims to consider the different ways in which the language and frameworks of human rights have been deployed and mobilized both to make redistribute justice claims or to contest economic inequalities, but also to close down political discussions around distributional questions and crush Third World demands for global wealth redistribution. We hope to interrogate, why and how, at specific moments and in specific places, human rights movements and NGOs operated as either “powerless companions” or as “fellow travellers” to elitist economic agendas as well as to excavate moments when rights movements committed to companionships of solidarity based on building the power of the marginalized. We invite papers that seek to understand the historical, political and economic conditions in which rights frameworks function. Please send a 400 word abstract of your proposed paper to the workshop organisers at: j[dot]dehm[at]latrobe.edu.au by Monday 12 November 2018. Further information is available here

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Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

Published on October 19, 2018        Author: 
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A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. Read the rest of this entry…

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Announcements: CfP Dornburg Workshop – A Review of Current Trends in Foreign Relations Law; CIL Post-Doctoral Fellowships

Published on October 14, 2018        Author: 
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1. CfP Dornburg Workshop ‘A Review of Current Trends in Foreign Relations Law’Professors Helmut Philipp Aust (Freie Universität Berlin) and Thomas Kleinlein (Friedrich Schiller University Jena) will convene a workshop on ‘Current Trends in Foreign Relations Law’ at Dornburg Castle on 9 – 10 May 2019. A keynote lecture will be given by Professor Campbell McLachlan, QC, University of Wellington. Scholars interested in presenting a paper are invited to submit an abstract by 15 November 2018. For further information please see the Call for Papers

2. 2 Year Post-Doctoral Fellowships for Academic Years 2019-21 (September 2019 – August 2021). CIL invites applications for Post-Doctoral Fellowship positions commencing in Academic Year 2019/20. We seek applications from those with expertise in international economic law or international trade law, international investment law, comparative constitutional law, and law and transnational crime. Applications are particularly sought from those with or interested in developing a research interest in the emerging trade and investment regime in the Asia-Pacific region, notably the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Regional Comprehensive Economic Partnership, or the Belt and Road initiative. For more details, see here

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The Renegotiated “NAFTA”: What Is In It for Labor Rights?

Published on October 11, 2018        Author:  and
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On 1 October 2018, the draft text of the United States-Mexico-Canada Agreement (Draft USMCA), the North American Free Trade Agreement (NAFTA)’s successor, was published on the official website of the United States Trade Representative. The Agreement has still some way to go though, including extensive legal ‘scrubbing’ by national authorities and, most importantly, approval by the corresponding national legislatures, which is likely to give rise to intense controversies. Much of the debate surrounding the Agreement so far has revolved around its labor implications, with US Trade Representative Robert Lighthizer stating that the renegotiations’ objective was, among others, “to better serve the interests of our workers”.

Against this backdrop, this post takes a look at the Draft USMCA’s labor rights dimension. It analyzes the Draft USMCA’s Labor Chapter and also reviews certain other chapters that are relevant from a labor rights perspective. The main argument is that, while the Draft USMCA entails some interesting legal innovations, the opportunity to address the main structural problems of US trade agreements to date in terms oflabor rights has largely been missed.

What is new in Draft USMCA’s Labor Chapter?

When the NAFTA was adopted in 1993, one of its novelties was the accompanying labor side agreement, which is still in force. At its core, it required parties to enforce their own domestic labor law, set up a Commission for Labor Cooperation, and established a complaint mechanism for third parties. It also allowed, in certain cases, for state-to-state arbitral dispute settlement with possibilities to impose limited fines as a last resort measure. The fate of NAFTA’s labor side agreement, which the Draft USMCA, as it stands, does not refer to, remains unclear.

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