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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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Human Rights Adrift from Natural Law: A Review of Itamar Mann’s ‘Humanity at Sea’

Published on August 3, 2017        Author: 

What is the source of human rights law?  Itamar Mann’s new book, Humanity at Sea: Maritime Migration and the Foundations of International Law, offers a thoughtful and original answer to this age-old question.  He suggests that human rights law is neither positive law nor natural law, but rather a “commitment to paradoxically and counterfactually regard some form of imperative as extra-political.” (13)  Mann argues that this imperative originates in a dyadic (rather than collective) encounter with the presence of another person, presenting the “universal boatperson” to illustrate this concept. (12-13)

The book is structured as a series of rich case studies, which Mann utilizes exceptionally effectively.  Through exegesis and context, he provides new understanding of and insights into familiar situations and cases, including the stories of Jewish displaced persons traveling to Palestine, refugees fleeing Vietnam by boat, Haitians pursuing protection in the United States, and African migrants seeking safety on the shores of Europe.  We see here both the political theorist and the human rights reporter in action, drawing in the reader with detailed and fascinating stories, and drawing out the theoretical implications in provocative new ways.  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 Introduces “Humanity at Sea”

Published on August 2, 2017        Author: 

Legal and political discussion around maritime migration began long before the current crisis. In 1976, a speaker at the American Society of International Law annual meeting warned his listeners of a surge of migrants that will land on beaches in the early 21st century: “The little old ladies in tennis shoes will bring them tea and toast – at first [But] What will the Australians do when the number reaches one million or two or three?”

When I started to ponder Humanity at Sea about a decade ago, migrants at the maritime crossings between the “developed” and the “developing” worlds had already generated significant interest among commentators.  But these earlier conversations did not prepare for the events of the so-called refugee crisis, and the media’s near-obsession with the subject. The images we all saw starting from August 2015 chillingly rendered real what I initially thought of as a metaphor — bare and extreme – for the most basic dilemma about human rights: where do human rights come from?

In the book, I argue that human rights obligations cannot emanate from consent to human rights treaties, as voluntarist and positivist accounts of human rights would argue. 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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The Relationship of the 2017 Treaty on the Prohibition of Nuclear Weapons with other Agreements: Ambiguity, Complementarity, or Conflict?

Published on August 1, 2017        Author: 

As discussed in Dan Joyner’s recent blog entry, the Treaty on the Prohibition of Nuclear Weapons was adopted by 122 States at a United Nations diplomatic conference in New York on 7 July 2017. Article 18 of the Treaty addresses its “relationship with other agreements”. There is, though, an ongoing debate as to the implications of this provision. On 7 July 2017, following the adoption of the Treaty by participating states in the United Nations diplomatic conference, Singapore (the sole abstention) stated in its explanation of vote that phrasing in the article was “ambiguous”. In this blog entry, I argue that this claim is unfounded.

Article 18 is based on a corresponding provision in Article 26(1) of the 2013 Arms Trade Treaty (ATT), the intent of which was to ensure that ATT states parties could adopt, or be party to, treaties and other binding agreements governing the trade in conventional arms and ammunition but that they could not lawfully implement any provisions under these other agreements if the obligations therein were inconsistent with their obligations in the ATT.

In the first draft of the Treaty on the Prohibition of Nuclear Weapons (22 May 2017), it was stipulated in Article 19 that it “does not affect the rights and obligations of the States Parties under the Treaty on the Non-Proliferation of Nuclear Weapons”. Thus, it was apparent from the outset that the relationship between the future Treaty and the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) could be a bone of contention during the negotiations. This was borne out in practice in the June–July 2017 diplomatic conference.

With respect to relevant “obligations”, Article 1(b) and (c) of the Treaty on the Prohibition of Nuclear Weapons, as adopted, is taken verbatim from Articles I and II of the NPT, respectively. In addition, although the precise formulations differ, there are clear prohibitions on assisting any of the prohibited activities in both the NPT and the Treaty on the Prohibition of Nuclear Weapons. Read the rest of this entry…

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Filed under: Arms Control, Nuclear Weapons
 
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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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Announcements: CfP ESIL Prague-Nottingham Symposium; New Additions to the UN Audiovisual Library of International Law; UN GGE Recommendations on Responsible State Behavior in Cyberspace; Vacancy Lecturer in International Trade Law

Published on July 30, 2017        Author: 

1. Call for Papers – ESIL Prague-Nottingham Symposium: Non-UN Sanctions and International Law. On 5 May 2017, the first one-day event of the ESIL Prague–Nottingham Symposium on Non-UN Sanctions and International Law took place in Prague. The Symposium was co-organized by the Centre for International Law of the Institute of International Relations in Prague, the Czech Republic, and the Nottingham International Law and Security Centre of the University of Nottingham, the United Kingdom. The Prague event was kindly hosted by the Ministry of Foreign Affairs of the Czech Republic in the splendid venues of the baroque Czernin Palace in the vicinity of the Prague Castle. The second one-day event of the Symposium will take place on 10 November 2017 in Nottingham. The Call for Papers is now available. Extended deadline for submissions: 14 August 2017. Successful applicants will be notified by 1 September 2017.

2. 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 Professor Alain Pellet on “The History of International Law and the Role of Sovereignty” and “L’histoire du droit international et du rôle de la souveraineté” as well as by Professor Anne Lagerwall on “The Principle ex injuria jus non oritur in International Law” and “Le principe ex injuria jus non oritur en droit international”.

3. Consultation on How to Implement the UN GGE Recommendations on Responsible State Behavior in Cyberspace. Together with the ICT4Peace Foundation, Leiden University’s The Hague Program for Cyber Norms is conducting an open consultation on how to best implement the UN Group of Governmental Experts’ (UN GGE) recommendations on responsible State behavior in cyberspace. In its 2015 (U.N. Doc. A/70/174, July 22, 2015) the UN GGE proposed 11 voluntary, non-binding norms on cooperation, mutual assistance, information exchange, respect for Human Rights, integrity of the supply chain, and critical infrastructure protection. Since then, there has been little public debate on these norms. The Call for commentary and implementation guidelines can be found here. Interested parties from academia, civil society, the corporate world and public administration are invited to contribute to this commentary. The open consultation will be conducted between 01.06.2017 – 30.09.2017. To participate, please send your questions, comments, recommendations to the Project Coordinator, Mr. Walle Bos.

4. Vacancy: Lecturer/Senior Lecturer in International Trade Law – Closing 30 July. Victoria University of Wellington’s Faculty of Law (New Zealand) have a permanent position available at Lecturer or Senior Lecturer level in international trade law. The Faculty, which is already strong in international law teaching and research, seeks a colleague who will teach in the recently established Master of International Trade, a pan-University degree that includes teachers from across the university including the Schools of Law, Economics and Finance, International Relations, and Development Studies. Victoria University of Wellington’s Faculty of Law is one of New Zealand’s oldest and most respected law schools, and is ranked 46th in the world according to the 2017 QS rankings and first in the country for research quality under the PBRF (Performance Based Research Fund) evaluation system. Applications close on 30 July 2017. The job advertisement and role descriptions can be found here.

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Filed under: Announcements and Events
 
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Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

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The Treaty on the Prohibition of Nuclear Weapons

Published on July 26, 2017        Author: 

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance. Read the rest of this entry…

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