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Announcements: SIEL-Hart Prize in International Economic Law; American University Washington College of Law LLM

Published on October 6, 2019        Author: 
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1. Submissions for the SIEL-Hart Prize in International Economic Law. The SIEL–Hart Prize is awarded every two years to an outstanding unpublished manuscript by an early career scholar in the field of International Economic Law. The winner of the SIEL–Hart Prize will receive a contract for publication within the Hart series Studies in International Trade and Investment Law; a £250 Hart book voucher; a SIEL bursary of up to £750 to cover travel and accommodation expenses to, and waiver of the registration fee for, the 2020 SIEL Global Conference (to be held in Milan, July 2020). Full details about the prize can be found here. Deadline for submissions is 1 December 2019.

2. American University Washington College of Law LLM. The LL.M. in International Human Rights and Humanitarian Law at the American University Washington College of Law is accepting applications for the hybrid and online programs starting this January. Students will benefit from a flexible curriculum focused on over 20 human rights doctrinal courses offered every year and taught by expert faculty. Deadline to apply is 1 December, classes start January 2020. Apply here

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International Civil Servants and Their Unexplored Role in International Law

Published on October 3, 2019        Author: 
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2019 marks the centenary of the foundation of the League of Nations. While the early intergovernmental organizations (IOs) founded before WWI were often staffed by seconded officials, Eric Drummond, the British diplomat and the first Secretary-General of the League, set the ground for creation of an ‘international’ secretariat, composed of professional public servants of various backgrounds, who were ready to commit to the goals of the League and carry out their functions under the sole direction of a non-national leader. The concepts and approaches introduced by Drummond were later inherited by the United Nations and other IOs. Later on, the second UN Secretary General Dag Hammarskjöld played a major role in concertizing the concepts and principles of international civil service, introducing ‘independence’ and ‘international responsibility’, as the pillars of the work of the secretariat.

Today, the backbone of international bureaucracies are individuals with expertise and diplomatic tact, who altogether constitute a unique body of human resources known as ‘international civil servants’. International civil servants perform their duties in complex legal and political environments; in refugee camps, humanitarian missions, post-conflict administrations, and sometimes in calmer environment of headquarters. The status, rights and obligations of employees of IOs are rooted in the constituent instruments of their respective organizations, concluded under international law. However, this is not a one-way road. Indeed, international civil servants actively contribute to formation of international norms, monitor and report on their implementation at macro and micro levels. In a broader perspective, they collectively shape the vision of ‘good life’ for the world population, using an expert language, which enhances the persuasive force of their narratives. Nevertheless, the role of individuals behind the wheels of IOs in development of international law is, to a great extent, absent from the international legal discourse. A better understanding of the changes in international law necessitates an in-depth inquiry into the role of international civil servants in constructing the narratives that influence the spheres of global and national governance. Read the rest of this entry…

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“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

Published on October 2, 2019        Author: 
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“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

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France Speaks Out on IHL and Cyber Operations: Part II

Published on October 1, 2019        Author: 
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In the first part of this post I discussed the position paper’s articulation of the views of France on the applicability of IHL to cyber operations, on the classification of armed conflicts, and on their geographical scope in the cyber context. In this part I will examine the position paper’s views on the concept of “attack,” on the conduct of hostilities and on data as an object.

The Meaning of the Term “Attack”

The issue of the meaning of the term “attack” has occupied center stage from the very inception of legal thinking about cyber operations during an armed conflict. It is a critical one because most key IHL “conduct of hostilities” rules are framed in terms of attacks – it is prohibited to direct “attacks” against civilians or civilian objects (distinction), an “attack” expected to cause collateral damage that is excessive to the anticipated military advantage is prohibited (proportionality), parties must take precautions in “attack” to minimize harm to civilians (precautions in attack), etc.  These prohibitions, limitations, and requirements beg the question of when a cyber operation qualifies as an “attack” such that the rules govern it.

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France Speaks Out on IHL and Cyber Operations: Part I

Published on September 30, 2019        Author: 
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The French Ministry of the Armies (formerly the Ministry of Defense) has recently released Droit International Appliqué aux Opérations dans le Cyberspace (International Law Applicable to Operations in Cyberspace), the most comprehensive statement on the applicability of international law (IHL) to cyber operations by any State to date.  The position paper dealt definitively with many of the current unsettled issues at the forefront of governmental and scholarly discussions.

This two-part post builds on an earlier post at Just Security in which I examined the position paper’s treatment of the relationship between peacetime international law, including that set forth in the UN Charter regarding uses of force, and hostile cyber operations. The focus here, by contrast, is on France’s views as to how IHL applies in the cyber context. Key topics addressed in the paper include the applicability of IHL in cyberspace; classification and geography of cyber conflict; the meaning of the term “attack” in the cyber context; the legal nature of data during an armed conflict; and other significant IHL prohibitions, limitations, and requirements on cyber operations.

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Announcements: CfS Cyber Law Toolkit; UN Audiovisual Library of International Law; Socially Responsible Foreign Investment Conference

Published on September 29, 2019        Author: 
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1. Call for Submissions: Cyber Law Toolkit. Cyber Law Toolkit, the leading interactive web-based resource on the international law of cyber operations, is inviting submissions for its next general update in 2020. Successful authors will be awarded an honorarium. The Toolkit consists of a number of hypothetical scenarios, each of which contains a description of cyber incidents inspired by real-world examples and accompanied by detailed legal analysis. To keep pace with the recent developments in the cyber security domain and remain relevant source of help for practitioners and scholars alike, the Toolkit is regularly updated. The project team welcomes proposals for new scenarios to be included in the 2020 Toolkit update. This call for submissions is open until 1 November 2019. For more information, see the full text of the call
 
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. José Antonio Burneo Labrín on “International Criminal Law: its development and genealogy“ (in Spanish), and Mr. Roberto Fernando Claros Abarca on “The International Legal Subjectivity of the Investor: Reflections on Counterclaims in Investor-State Arbitration“ (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.
 
3. Socially Responsible Foreign Investment Conference. On October 24 and 25, Católica Global School of Law and the European Society of International Law are organizing an international conference on Socially Responsible Foreign Investment, which will take place in Lisbon, at the campus of Universidade Católica Portuguesa | Católica Global School of Law. The conference is directed to scholars and practitioners interested in such topics as investment law or human rights and business, and specially for those interested in testing new legal tools for a changing world. Attendance is free, but subject to registration here.
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Was there the Third World in Geneva in 1949?

Published on September 26, 2019        Author: 
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This year marks the 70th anniversary of the four Geneva Conventions of 1949. The importance that has been attached to the four Geneva Conventions (GCs) in the last seven decades is discernible from their universal acceptance. Since their adoption hardly there has been an armed conflict situation where the discussions have not involved the issues related to the Geneva Conventions. Development of the law of armed conflicts did not stop with the adoption of the GCs as later on Additional Protocols of 1977 (AP I and AP II), and 2005 (AP III) were adopted. Despite the fairly comprehensive nature of the GCs, the Additional Protocols were found to be necessary. One of the important reasons for the adoption of the APs, particularly AP I and AP II, was the coming into existence of the newly independent third world States and the need for accommodating their concerns. It is true that newly independent third world States were more in number in 1977 and made a significant difference to the APs, like the recognition of national liberation movements as international armed conflicts in AP I. It is also true that there were not many States from the third world at the time of negotiations on GCs. However, a plain assertion of these facts ignores a critical and historically contingent role of the third world States who participated in the negotiations on GCs in 1949.

Historical accounts of the GCs often state that the GCs were largely negotiated by the European States as less number of States participated from the third world (Giovanni Mantilla, The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols, p. 39). This situation is often compared with the AP I and AP II negotiations in the 1970s where there was more number of newly independent third world States, and therefore their influence was manifest on the outcome of the diplomatic conference. This narrative presents the absence of the third world States as an important reason for the prominent role gained by the European States in 1949. This narrative further demonstrates that the presence of more number of third world States in 1977 made a significant impact on AP I and AP II, like in the form of inclusion of national liberation movements and the modification of combatant status. This plain equivalence, while attempting to present the apparent facts, tends to ignore the unsuccessful attempts of the third world States in bringing to the fore their concerns during the negotiation process in 1949. Problematized from a third world perspective, this equivalence also has the potential to present the ideological divide between the third world and the first world as a question of mere presence and absence and formal participation.

Hence, while assuming that the number of States that participated from the third world was less, however, their participation and interventions during the negotiations convey emerging solidarity among the third world States(though African, Asian and Latin American States constituted almost half of the 59 participating States at the diplomatic conference). Their interventions provided a critique of the developed or the first world on several issues and underlined the similarities between the third world States. This pointed towards emerging third world solidarity which was carried forward to the later years and decades at the multilateral fora. This emerging dualism of first world critique and third world solidarity in the international law making process was evidently witnessed on some of the crucial issues of the Geneva Conventions. Two issues are analyzed here to substantiate the above arguments: These are common article 3 and the red cross emblem. Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 
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In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 
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On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

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Announcements: Guidelines on Investigating Violations of International Humanitarian Law – Law, Policy, and Good Practice; UN Audiovisual Library of International Law; CfP Glasginburgh (Glasgow-Edinburgh); CfA Yearbook of International Disaster Law

Published on September 22, 2019        Author: 
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1. Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice. The International Committee of the Red Cross and the Geneva Academy of IHL and HR have published “Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice.” The first document of its kind in this area addresses, among other things, when an investigation should be triggered, the different types of investigations, and the international principles and standards necessary for an effective investigation in armed conflict. The text is divided into a General Introduction and 16 Guidelines each followed by a commentary and is copiously sourced. The authors are Noam Lubell, Jelena Pejic, and Claire Simmons. The guidelines can be found here on the ICRC website and here on the Geneva Academy website. 

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms Frida María Armas Pfirter on “The Continental Shelf and its Outer Limits” (in English and Spanish), and Ms Chiara Giorgetti on “International Claims Commissions” (in English). A new resources page has been launched for the 2020 editions of the  Jean-Pictet Competition. The 33rd and 34th editions of the Competition will take place in Denpasar (Indonesia) in February-March 2020. More information is available at the competition website. The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

3. Call for Papers: Glasginburgh (Glasgow-Edinburgh) 2020. Announcing the second conference in this collaboration, which will be held at the University of Glasgow on Monday 8 – Tuesday 9 of June 2020. The aim is to explore the relationship between international law and questions of “distribution” – broadly conceived. The two-day event will promote a dialogue about the myriad of ways in which current ‘distributions’ inform or even determine the development of international law, and how, in turn, the practices of international legal institutions may impact upon distributions of income, resources, and power in the world. Applications are welcomed from the critical, doctrinal and visionary traditions of international law enabling a serious scholarly reflection on this topic. Abstracts of 500 words should be sent to glasginburgh {at} gmail(.)com by 30 November 2019. For more information see the full call for papers. Read the rest of this entry…

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