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International Commissions of Inquiry as a Template for a MH17 Tribunal ? A Reply to Jan Lemnitzer

Published on February 9, 2017        Author: 

In his essay on ‘International Commissions of Inquiry and the North Sea incident: a model for a MH17 tribunal?’ Jan Lemnitzer makes the argument that the origins of commissions of inquiry (COIs) dealing with international criminal law are deep-rooted, dating back well before the Hague Conventions of 1899 and 1907. Presenting the Doggerbank inquiry as a de facto criminal trial, he disputes that contemporary commissions of inquiry should be seen as distinct from the Hague tradition as some scholars, including myself, have argued. In addition, Lemnitzer believes that a MH17 tribunal premised on the historical precedent of the Doggerbank inquiry offers the most promising avenue for justice especially also given the similarity of the position of Russia in both situations. I have truly appreciated Lemnitzer’s indepth account of the Doggerbank inquiry, including his analysis of the politics leading up to the inquiry as well as his points on the reception and subsequent framing of the inquiry’s outcome. Yet, as I will set out in this reply, I do not agree with some of Lemnitzer’s overarching arguments regarding Doggerbank as a precedent, the genealogy of commissions of inquiry and their present-day possibilities as such arguments fail to distinguish between different models of inquiry on the one hand and between inquiry and criminal investigation on the other.

The Pluriformity of Commissions of Inquiry

As Jan Lemnitzer indicates in the opening sentence of his article, commissions of inquiry (COIs) “have recently begun to feature more prominently in academic and political debate”, and I would add, they bourgeon in actual practice. Read the rest of this entry…

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The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

Published on February 8, 2017        Author: 

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas. Read the rest of this entry…

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Engaging with Theory – Why Bother?

Published on February 7, 2017        Author: 

I may be biased, as theory is currently my main area of practice (here and here), but I am deeply convinced that (international) lawyers should engage more with theory.

One of the peculiar features of the official discourse of international law is to look down at theory. I once heard a colleague say that the Faculty should hire more ‘hard’ lawyers and less ‘soft’ lawyers. I reacted with bewilderment at such a novel qualification, asking what he meant. He said that hard law was the real law that is practised in courtrooms and for which there is a high demand in the market. All those people dealing with soft law, such as ‘theory, human rights and the like’, should only have a secondary role in a serious legal curriculum. Rather than being just a peculiar interpretation of soft law, my colleague’s statement hardly hid a conspicuous cultural bias against theory and intellectual activities.

By the same token, yet another colleague of mine once lay claim to be in need of more assistants compared to his other colleagues on the basis that she taught ‘hard black letter law courses’ and not some ‘wishy-washy’ theory ones. Admittedly, the opposite can also be true. I can perfectly well envisage a sectarian group of international law theorists looking down with contempt at all those practitioners who have not read Foucault, Marx and Koskenniemi (please do not attach any particular significance to this random choice of names!). Yet, there is no doubt that in the traditional discourse of international law the still predominant attitude is to vilify theoretical and philosophical investigations and to consider as relevant only the doctrinal conceptualisation of existing concepts and categories.

The fact that international practice seems to be considered by many as the ultimate form of disciplinary recognition is reflective of a profession that for a long time has denigrated intellectual inquiries that go beyond the mere systematisation and rationalisation of legal materials. The scope for critical inquiry and the development of alternative theoretical approaches to international law is a relatively recent phenomenon, and its overall impact on the discipline’s canons and self-perception still to be fully appreciated. Read the rest of this entry…

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Editorial: The Case for a Kinder, Gentler Brexit

Published on February 6, 2017        Author: 

Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? Read the rest of this entry…

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Announcements: UN Audiovisual Library of International Law; Refugee Crisis and International Criminal Law; CfA Transregional Academy; Course for Junior Prosecutors on International Criminal Justice; International Cultural Heritage Law Summer School

Published on February 5, 2017        Author: 

1. New additions to the UN Audiovisual Library of International Law.  The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Judge Kenneth Keith on “The Advisory Jurisdiction of the International Court of Justice” and Professor Donald Rothwell on “The Law of the Sea and the Polar Regions”.

2. City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity? City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities on Monday 13 February 2017 at 18:00. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

3. Call for Applications: Transregional Academy. The Forum Transregionale Studien and the Max Weber Stiftung – Deutsche Geisteswissenschaftliche Institute im Ausland invite doctoral and postdoctoral researchers to apply for a transregional academy on the topic of redistribution and law. A call for applications has been issued for the forum, entitled “Redistribution and the Law in an Antagonistic World”, to be held on 21-30 August 2017 in Berlin. The application deadline is 12 March 2017. Further information can be found here and the call for applications can be found here. Read the rest of this entry…

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Filed under: Announcements and Events
 

The Polisario case: Do EU fundamental rights matter for EU trade policies?

Published on February 3, 2017        Author: 

On 10 December 2015, the General Court of the European Union (GC) rendered a judgment in the Council v. Front Polisario case that was revolutionary in many regards: not only did a national liberalization movement successfully challenge an EU trade agreement, the Court also considered the EU Charter of Fundamental Rights (CFR) applicable to non-EU citizens on a non EU-territory and in the context of trade policies (see previously, Geraldo Vidigal in EJILTalk).

A month ago and a year later, the European Court of Justice (ECJ) quashed the decision of the GC and denied legal standing for the Front Polisario. However, the door for a role of EU fundamental rights as a benchmark for EU trade policies is not yet closed. To the contrary, the ECJ’s conclusions brought to the fore an ugly truth that shows that the extraterritorial effects of EU trade policies are in urgent need of closer scrutiny.

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In memoriam: Professor Sir Nigel Rodley

Published on February 2, 2017        Author: 

There are international lawyers who make outstanding contributions to their fields. And there are international lawyers who actually create the fields we study and insert life into them.

Professor Sir Nigel Rodley was both.

Nigel’s scholarly interests long focused on the place of human rights in international law and the development of human rights law within international law.

nigel_rodley_landscapeHis early work on international law was at the intersection of the law on the use of force and human rights. His 1973 American Journal of International Law article, co-authored with Tom Franck, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force remains the authoritative piece on the legality of unilateral humanitarian intervention under international law. His 1979 piece ‘Enhancing Global Human Rights’ in Foreign Affairs, co-authored with Louis Henkin, Richard Falk and Jorge Dominguez, asked how global human rights could be enhanced against the background of UN human rights treaties coming into force.

Nigel’s contribution to human rights in international law continued throughout his career. By the end of the 1980s, Nigel focused on the role of the International Court of Justice in advancing human rights in international law. His 1992 edited book To Loose the Bands of Wickedness: International Intervention In Defence of Human Rights – the astute and witty title as always a hallmark of Nigel’s writing – was one of the first to spot the then unexpected sea change in the involvement of the Security Council in humanitarian interventions. In 2007, revisiting humanitarian intervention in the aftermath of Kosovo in an article we co-authored, Nigel perceptively outlined the methodological challenges of international law in legalizing humanitarian intervention.

It goes without saying that general international law and how human rights figure in it would have benefited from more contributions from Nigel. His calling, however, was elsewhere. Read the rest of this entry…

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Rattling Sabers to Save Democracy in The Gambia

Published on February 1, 2017        Author: 

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections. Read the rest of this entry…

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Filed under: EJIL Analysis, Use of Force
 

Economic Nationalism in a New Age for International Economic Law: Recalling Warnings of Ludwig von Mises and the Austrian School

Published on January 30, 2017        Author: 

International economic law developments barely one month into 2017 have been nothing short of tectonic this side of the Atlantic. From US President Trump’s first executive action to withdraw the United States from the unratified Trans-Pacific Partnership; his subsequent announcement (later called mainly an option) to impose a 20% border tax on Mexican imports into the United States to finance a wall between the two countries; a declared initiative to renegotiate the North American Free Trade Agreement (NAFTA) that was signed under the administration of Republican President George Bush; unprecedented changes to the United States National Security Council removing the nation’s top military, intelligence, and security advisers to only permit regular attendance for White House chief strategist Steve Bannon and more limited attendance of the chairman of the Joint Chiefs of Staff and the Director of National Intelligence; threats of punitive tariffs against China and accusations of illegal currency manipulation; to last Friday’s latest executive order announcing a travel ban against individuals from seven predominantly Muslim states (approximately 218 million persons) and the 4-month suspension of any refugee entry, as a possible first step to a broader ban – it is becoming all too clear that barely ten days into the new presidency, the United States will not be above reversing, abandoning, disregarding, or defecting from any of the established rules and institutions of international economic law, through extraordinary actions and reversals that have scarcely any or no inter-agency vetting and consultation, and significantly, with the new president declining to divest himself from all business interests or to introduce transparency and consultation measures even as these political-security-economic policy reversals continue to be formulated with relative opacity. The Dow Jones industrial averages and NASDAQ composite index both dropped with the sudden rush to sell off US equities, and American private companies have taken to hiring crisis management and communication firms for the new age of undisclosed and sudden economic policy reversals, reviewing operations and mergers against possible charges of being “Anti-American”.

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