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Ukraine Takes Russia to the International Court of Justice: Will It Work?

ejiltalk.org - Thu, 01/26/2017 - 09:30

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Although the choice of the conventions as a jurisdictional basis is rather peculiar, it is explained by the fact that none of the treaties ratified by Russia and Ukraine provide for a jurisdictional basis to address the real issue at stake i.e. the unlawful use of force. Therefore, Ukraine followed in the footsteps of Georgia and alleged the breach of CERD, claiming Russia’s denial of rights – accorded by CERD Convention – to non-Russian ethnic groups, such as the Crimean Tatar and ethnic Ukrainian communities in Crimea. The jurisdictional basis for Ukraine’s action before the ICJ could be found in Article 22 of CERD:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in his Convention, shall at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

When the same article was invoked by Georgia as a jurisdictional basis for its claims, Russia argued that Georgia did not honour the procedural requirements in CERD. It contended that Georgia failed to adduce evidence demonstrating that it attempted to negotiate or employ any other mechanisms provided for in CERD to resolve the dispute. The Court upheld Russia’s preliminary objection and dismissed the case on procedural grounds, concluding that Georgia neither attempted to negotiate CERD-related matters with the Russian Federation nor invoked any other procedures expressly provided for in CERD to settle the dispute (ICJ Georgia v Russia, paras 182-183).

Ukrainian officials have earlier stated that they were building up the case against Russia by attempting to negotiate in good faith with Russia over the alleged violations of both conventions, which is the prerequisite for bringing the case before the ICJ. Judging by Russia’s response to Ukraine’s lawsuit in the commentary posted by the Russian MFA, Russia clearly has a different perception of Ukraine’s negotiation attempts. It maintains that despite Russia’s “genuine” attempts to clarify the nature of Ukraine’s claims with respect to the alleged violations of the UN Terrorism Financing Convention, it encountered “persistent unwillingness of Ukrainian authorities to engage in the substantive dialogue”, which “ultimately ended with Ukraine’s unilateral withdrawal from consultations”. Russia also stated that Ukraine dismissed the prospect of settling the dispute through an independent arbitration tribunal and claimed that “Ukraine does not seek to settle the dispute, but rather attempts to find any excuse to bring the case before the ICJ”. The settlement of dispute provided for in the Terrorism Financing Convention differs from the settlement mechanism provided for in CERD. Article 24 of the Terrorism Financing Convention reads as follows: “any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration”. The same article imposes the six-month period from the date of the request for arbitration, during which the arbitration mechanism for the dispute should be in place, before the case could be brought up before the ICJ.

As to Ukraine’s claims on the violation of CERD, Russia maintained that it engaged in the dialogue with Ukraine in good faith, however, Ukraine “showed the lack of interest in the substantive discussion of the issues at dispute”. Russia submits that it suggested to Ukraine to compare Russian and Ukrainian legislation on racial discrimination “in order to find a common understanding of the best way to protect the people’s rights and substantively deal with each specific situation”. It is not entirely clear what exactly Russia was trying to get out of the suggested “comparative exercise”, as the parties had to attempt to negotiate their way out of the impasse, rather than exchange best practices on the implementation of the Convention. Russia also claimed that it encouraged Ukraine to review its practices with respect to the implementation of the Convention in Crimea “prior to its reunification with Russia”. It is clear that Russia advanced a flipside argument and, in doing so, attempted to divert the attention from the current issues at stake. It also maintains that Ukraine ignored its questions regarding the rights of the Russian and Russian speaking population in Ukraine, which are not relevant to the current dispute.

Although negotiations were attempted, the parties do not seem to have communicated about the same issues which form basis for Ukraine’s action before the ICJ. The ICJ judges will have to evaluate whether negotiations within the meaning of both conventions indeed have taken place. A helpful guidance could be found in the case of Georgia v Russia, in which the ICJ construed what constitutes negotiations and to what extent they have to be pursued before it can be concluded that the requisite preconditions for bringing the case before the ICJ have been met:

Negotiations entail more than the plain opposition of legal views or interests between two parties (…). As such, the concept of “negotiations” (…) requires (…) a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute (ICJ Georgia v Russia, para. 157).

Proving that that both parties made a genuine attempt to engage in discussions, with a view of resolving the impasse, may prove to be a stumbling block in the proceedings. Of course, an attempt to negotiate does not have to lead to an actual agreement (ICJ Georgia v Russia, para. 158). However, the absence of evidence demonstrating a “genuine attempt to negotiate” would translate into the failure to meet the required preconditions. In the situations “where negotiations are attempted or have commenced”, the preconditions would be considered to be met “when there has been a failure of negotiations, or when negotiations have become futile or deadlocked” (ICJ Georgia v Russia, para. 159). Russia’s litigation strategy would most probably be to undermine Ukraine’s attempts to negotiate as being genuine. Ukraine would most likely maintain that the negotiations have become futile or deadlocked. The ICJ judges will have a difficult task to ascertain whether the procedural preconditions have been met given a highly politicised context, which underlines the ongoing dispute.

Substantive Law Issues

With respect to the violations of the Terrorism Financing Convention, Ukraine alleged that since 2014 Russia has escalated its interference in Ukrainian domestic affairs by “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens”. Ukraine submitted that by instigating and sustaining an armed insurrection in eastern Ukraine, Russia violated fundamental principles of international law enshrined in the Convention. In light of the on-going armed conflict in eastern Ukraine, which has been recognised by the ICRC, various international NGOs and more recently by the ICC Prosecutor as being governed by the rules of international humanitarian law, one cannot help but wonder whether the choice of the convention is the right one. Although the government of Ukraine treats rebels who are fighting in eastern Ukraine as “terrorists”, the international community has described the situation in Ukraine as “hybrid warfare” where an international armed conflict runs in parallel to a non-international armed conflict. As the response to Ukraine’s claims with respect to the violation of the Convention, Russia maintains that Ukraine did not provide any information that was supportive of its allegations on the breach of the Convention. It also hinted that the situation in eastern Ukraine is governed by the rules of international humanitarian law, questioning Ukraine’s treatment of the DPR and the LPR representatives as “terrorists” in light of their earlier participation in the Minsk process with the view to resolve the dispute. The same objection on substantive law will be inevitably advanced by Russia in the ICJ. Ukraine’s rationale behind invoking the Convention as a jurisdictional basis is well understood, however, the prospect of the ICJ going into the substance of those claims is very slim, since a more accurate description of the situation in eastern Ukraine would be the violation of the rules and customs of war.

Ukraine has better chances to succeed with its claims under CERD. With respect to the violations of CERD, Ukraine argued that after Russia seized Crimea by military force and attempted to legitimize its act of aggression through the illegal referendum, it created a climate of violence and intimidation against non-Russian speakers in Crimea that violates their rights under CERD. In its response, Russia evades to address the issues of the impact of the annexation of Crimea on the rights of non-Russian ethnic groups in Crimea by stating that it “pays great attention compliance with its obligations under CERD”. If the Court were to proceed with the examination of Ukraine’s claims under CERD, it would not be able to rule narrowly on the issues pertinent to the violations of CERD, without addressing the context in which the alleged breaches have taken place. However, the Court will not provide answers that Ukraine wants to hear on the use of force and the legality of Crimea’s unilateral cessation, as it is limited to the examination of claims that strictly fall within CERD. If Ukraine wants to get answers to those questions, it should consider lobbying for the initiation of advisory proceedings before the ICJ at the request of the UNGA. If this were to happen, it is hoped that the UNGA learnt from the Kosovo advisory proceedings and the question to be submitted for consideration to the ICJ would be broad enough for the Court to give some meaningful answers and clarify the state of international law today (on the ICJ Kosovo advisory proceedings, see earlier Akande’s and Milanovic’s posts).

On My Way Out IV – Teaching

ejiltalk.org - Wed, 01/25/2017 - 10:00

I have almost reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some Do’s and Don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears ask yourself why so many experienced and seasoned academics still fall into the trap. In previous Editorials I addressed the art of delivering a conference paper, the management of one’s scholarly agenda and the pitfalls of editing or contributing to edited books. I turn here to the issue of teaching.

To put it mildly, there is considerable ambiguity, even ambivalence, in the messages, explicit and implicit, that a young university teacher receives upon starting his or her academic career as regards teaching. To be sure, much lip service is paid to the importance of teaching as part of the academic duties of the young teacher. Practice varies but in several systems, especially in the early stages of one’s career, the title itself provides an indication: Instructor, Lecturer (even Senior Lecturer) and in several languages the title Professor itself indicates primarily the teaching function. Applicants are oftentimes required to provide a Statement on Teaching and in some systems there is a requirement and in others it is desirable to provide, in addition to a scholarly portfolio, demonstration of some ‘teaching practice’.

But consider the following, almost universal, paradox. To receive a position as a kindergarten teacher, an elementary school teacher or a high school teacher, in most jurisdictions the applicant would have to have undergone specialized training – in addition to any subject-matter university degree he or she may have earned – to occupy a position of such individual and collective responsibility. The exception? University teachers. There are very, very few universities around the world that require any measure of formal training in the art and science of university teaching. A doctorate has become an almost universal requirement for teaching in our field – the USA being the glaring exception (as regards law). It is a requirement in practically all other disciplines in the USA. And yet typically a doctorate programme is training for research, not for teaching.

In appointing entry-level university teachers, the screening process focuses almost entirely on the scholarly and intellectual achievements and prospects of the candidate. Even where, as mentioned above, a demonstration of some ‘teaching experience’ is required, it is limited to just that – a demonstration of so many hours of teaching experience. Good teaching? Bad teaching? Successful teaching (and what does that mean?) are not part of the investigation. The requirement is almost invariably purely formal. Whether you wish to count the above as ‘explicit’ or ‘implicit’ I leave to you, but the message is clear enough.

The assumption is that one would have ‘picked up’ teaching skills from one’s experience as a student – a very problematic assumption. To be sure, all of us, with no exception, experienced as students teachers of wildly different qualities – great scholars who were awful teachers and run of the mill scholars who were wonderful teachers, and mostly a general mean of mediocrity – OK teachers. As students, we often are unable to differentiate in our minds between likeable and popular teachers and good teaching. Student evaluations, the form of which is copied from one institution to another, are rarely designed with the same care and professionalism that would be given to similar questionnaires in a serious social science research project, with attention to the classical biases of that investigative medium. They are oftentimes little more than popularity tests and rarely supplemented by additional verification techniques, unless you count the sporadic ‘class visits’ by another faculty member in the run up to, say, a tenure procedure – the visitor himself or herself (very often an awful or mediocre teacher themselves) – as a meaningful verification. From my experience as a University President, and having examined some cases in depth, I am confident that student evaluations – important as they are as one indicator – are also rife with false positives and negatives.

That aside, even if one takes one’s student experience of an excellent teacher or teachers as a role model for one’s own teaching, one soon discovers, as no doubt many of you have, that it is one thing to have been taught by an excellent teacher; it is quite another to learn and know how to do the same without some guidance or even instruction. I may take, as an art student, my inspiration from a great painter. Does that mean that with nothing more than that I can simply paint as he or she painted?

Many institutions offer a variety of teaching clinics, but these are almost invariably voluntary and not a requirement in the formation of young (or older) academics. In the professions, lawyers and doctors, among others, are required to undertake ‘continuing education’ (of variable quality) but not in our profession, that of university teachers.

I think it is fair to say that in the academic profession, teaching is one of the least professional dimensions of the university. The matter is particularly acute – at times tragic – when, indeed, it comes to doctoral supervision. There is, with few exceptions (Denmark being one), no training for supervisors of doctoral students – the future teachers in universities. I regularly give workshops, around the world, on writing a doctorate in law. They are well attended, and the feedback I receive from the attendees is mostly positive, sometimes very positive. I always offer a special workshop for supervisors. Rarely is the offer picked up, the attitude being ‘I have supervised x number of students; no one is going to teach me how to be a supervisor’.

But the problem goes beyond the ubiquitous absence of serious professional training for the teaching dimension of the academic profession.

In the measurable tangibles of academic progress – salaries, promotion, leave, appointment to another (more ‘prestigious’) university – teaching is always mentioned but in reality it hardly counts, unless one is truly catastrophic in the class room (a rare occasion, the norm is, as mentioned, ‘OK teaching’). What counts today is publication record, the laughable measures of ‘impact’ of one’s scholarship, and fundraising, all of which are typically assessed by a variety of very problematic quantitative indicators. Scholarship is the gold standard for academic career success. One of the highest prizes? A Research Chair which will absolve one from the duty of teaching so that one can dedicate oneself entirely to scholarly, more important, pursuits.

The impact of money is particularly pernicious. It is understandable that in a system in which universities must rely on fundraising to receive financial breathing space,, the result is a series of incentives that overlook teaching.

But has anyone actually bothered to evaluate, especially in our discipline, the relative public good to society of the increasing and in my opinion excessive weight given to ‘scholarly production’ of oftentimes fungible articles, the average readership of which is humiliatingly low, and the diminution in the importance of teaching as a central purpose of the university? I can only give an intuitive evaluation but I doubt if a serious evaluation of such would justify the current discrepancy between the two.

There is another assumption at work here: either that a good scholar will be a good teacher (patently false) or, at least, that if someone is not a good scholar he or she cannot be a good teacher. There is a kernel of hard truth in this last proposition. Good teaching is not just or even primarily about smooth and clear delivery, charisma, etc. It is what you teach which is at least an absolutely necessary condition for good teaching and not simply how you teach it. But even here I want to add a caveat – which is about what counts as a good scholar. I have had wonderful teachers and I have some wonderful colleagues who are extraordinary teachers, and yet whilst they have published little – though of very high quality – they are at the same time veritably great scholars. They read, they think about what they read, they are knowledgeable and learned, deep and thoughtful, though their H Factor or Impact Factor might not reflect this. There is some virtue, surely, in reading widely and deeply and not just producing paper after paper that few read and that provide questionable added value. In the Jewish tradition the highest accolade a scholar may receive is to be regarded as a wise/knowledgeable pupil. (Talmid Chacham). Many of them publish scantily, but they educate generations of students, many subsequent giants in the field, who owe so much to these wise/knowledgeable ‘pupils’.

Be all this as it may, the signalling of the career structure, implicit or explicit is here, too, abundantly clear. The ambitious young scholar (and note how the terminology so often shifts from teacher to scholar) is incentivized to spend his or her energy, creativity and time in building as impressive a scholarly portfolio (judged by those very same quantitative indicators), whereas teaching becomes a necessary chore not to say a de facto necessary evil – something that has to be done on the margin of that which really counts. So yes, there is some measure of exaggeration in the above, but I have employed such to drive home a point that I think is essentially true. If nothing else it is sad because so many young academics value teaching and enjoy it in a variety of ways.

Far be it for me to deride the importance of scholarship, but I do want to extol some of the virtues of teaching. Essentially, it is all a question of balance, if you want, of proportionality. Our scholarship is occasionally important. And for the world of knowledge as a whole it is crucial. But we should consider ourselves lucky if in a life of scholarship we are able to produce a few pieces that are neither ephemeral nor fungible and that leave some enduring impact. A lot of what we write, maybe even most, does not reach that standard and carries an opportunity cost, the cost oftentimes being our unwillingness or inability to dedicate the necessary amount of time, creative thinking and intellectual energy to our role as teachers.

At the risk of sounding sanctimonious, teaching is probably the most noble – giving – aspect of our profession (which is not to disregard the ego-caressing dimension of such.) The experience of teaching and educating, as many will attest, can be deeply satisfying and rewarding in the purest sense of these words.

There are also less noble pay offs.

If we are at all interested in leaving a ‘legacy’ – and a university career is one of the few workplaces where one can on occasion leave a legacy – it is much more likely to be in the minds and memories of our students than in the world of scholarship.

At a deeper level it is a question of self-understanding of our role and identity. I have tried to be a good scholar but I have almost always regarded my vocation to be that of a teacher and educator, with the concomitant investment of time, resources and self. I do not for one minute think that it is a less noble vocation – as I said, it is a question of measure and balance. It is regrettable that in the reality of contemporary academic life, for reasons alluded to above, the burden of incentives skews this balance so much in one direction.

There is no single model of what counts as good teaching and, more common in the United States than, say, Europe, is the uplifting experience of law students who do not only learn different law subjects from different teachers, but different ways of learning those law subjects from teachers whose conception of teaching and learning is as diverse as the subject matter they teach.

One might legitimately think that this is an impractical exhortation, given the system of incentives and values that underlie so much of university life today. In an earlier piece (‘On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap’), I offered some advice to young scholars on how they might intelligently negotiate these pressures.

Nonetheless, apart from a general exhortation to Take Teaching Seriously as an integral and desirable part of one’s vocation and to remember that the classroom is oftentimes the harbinger of wonderful ideas that will feed into one’s scholarship, I do want to give some hopefully useful practical pointers to young teachers.

The most common ‘error’ lies in the conception of the good course, which is about to be taught. I want my students to end the course both knowing the subject matter and understanding it deeply; and I want them to achieve the above in an interesting and engaging manner. I think this is how many a young teacher will approach their course preparation. And rightly so. But here are some add-ons, some indispensable spices for this basic dish.

Law is a dynamic discipline in a very empirical and concrete way – new legislation, new cases, new treaties, new sources, new understandings, new social and other sensibilities. If I teach my IL or Con Law or Ad Law course in the first year, by the time the students graduate, and throughout their lives, what we covered will become increasingly irrelevant or outdated in terms of material knowledge. So I consciously need to build into the course the didactic elements that will enable my students to become lifelong auto-didacts. This can be done in a variety of ways, but it should not be done only through osmosis. Learning to read treaties or legislation, and other sources, critically and analytically, has to be consciously built in. It is hard, though perhaps not impossible, to achieve such if everything is spoon-fed. So the necessary tools have to be employed, either in the classroom or through homework, or both. Hermeneutics is at the heart of legal thinking – yet in few schools if any are our students given formal training in hermeneutics. I certainly received none and I studied and taught in some of the finest. So it has to happen in each and every class room. (Two to four hours on Articles 31 and 32 of the Vienna Convention do not meet the bill …). So again, how do I design my course so that I am comfortable not only that my students know and understand the subject I am teaching, but that they acquire this particular tool that is so ubiquitous in all legal discourse?

There are specialized courses in legal research and writing – laywering courses they are sometimes called. But there are specificities to each subject that will not be covered by these generic courses – and need to be built into one’s own. We teach, train and educate not professors but future practising lawyers – in some ways each of our classes has to be, too, a lawyering class. I make heavy use of the professional reference librarians and actually ask them to give a couple of classes, especially on the use of online resources, including a couple of practicums with research assignments designed to exercise the students’ online skills.

You may not agree with all or any of the above. As I have said, there is no unique model to what is good teaching. But I hope I have at least convinced you that it is worth your while, alone or with colleagues, to sit down and make such a checklist of didactic and heuristic objectives that you believe are important and then spend time and thought on how these may best be built into your course.

Finally, a few idiosyncratic ideas that have served me (and hopefully my students) well over the years.

  • It is hard for me to imagine any course on any subject that would be taught effectively entirely by frontal lecturing or entirely by interactive teaching. Balancing the two is in my view almost indispensable. One or two practicums – be it moot courting, simulated negotiations, etc., are equally useful and very gratifying to the students.
  • At the end of each course, I destroy my teaching notes. Thus, in the following year I can prepare afresh for class – reading the assignments as do the students, and coming up with novel or new ideas. It also helps you to appear fresh and engaged. On several occasions my Research Assistants have pointed out that I analysed the same text differently in the preceding year. I took that as a vindication and compliment.
  • When you ask a question in class and are met with that familiar silence, I often tell the students: take a few minutes, talk to each other, and then I ask the question again. At that point there is a far greater willingness to ‘risk’ an answer and the answers and discussion are usually better.
  • I am a conscientious objector to PowerPoint, not because I am an anti-technology Neanderthal, but because I believe it produces a schematic mind set and a class that becomes like a bar exam preparation course rather than an exercise in exciting and subtle thinking. I know there will be many objections to this, but I suppose you cannot teach an old dog new tricks.
  • All my exams are ‘take aways’ – I have never administered an in-class exam. I want the students to have time to think and draft, rethink, revise and submit. I am not concerned with cheating. The students sign an honour statement and the exam is so challenging and time consuming that the ability to get external help is limited.
  • In my exams I always tell the students that there will be one question that will cover material we did not examine in class. I assign the material before the exam and use this to test but also to demonstrate to the students that they have learned to digest new materials without the help of the classroom. I also say that in the questions that will address material covered in class, there will be points or issues that were not discussed in class – memory and digestion are not enough; even the exam is an occasion for critical and creative employment of the legal imagination. But most importantly it helps condition the way students understand the process of teaching and learning during the class.
  • After the exam I distribute a detailed memo – not a model answer but an analysis of the issues and especially of common errors or omissions which indicate where students may have lost points. I will post one such memo on EJIL: Talk!.
  • I disallow the use of laptops in the class – unless the class involves the use of online resources – and, more extremely, I disallow note-taking. For each session of the class there are three designated note-takers (who rotate) and whose notes I review and then post on the class website. The rationale is simple: we teach law, and not stenography. And the business of taking down notes means that whenever a question is asked, the typical reply is – ‘can you repeat the question?’ – since the student is busy writing down what was said a few seconds earlier. Being able to dedicate oneself entirely to following the class without the burden of note-taking makes a considerable difference. Some students are sceptical at first (‘note-taking helps me think …’) but after a trial period of a couple of weeks almost all become converts. Those who don’t are of course excused and may happily practise their stenography.

I could add a lot – but my intention is not to provide a manual for teachers but rather to put what I think is a serious issue squarely on the agenda and encourage discussion, debate and hopefully push back a trend that undermines a central facet of what the university is about, and who we are.

Embrace teaching!

EJIL: In this Issue; Emma Thomas – May the Force Be With You!; EJIL Roll of Honour

ejiltalk.org - Tue, 01/24/2017 - 15:30

This issue opens with an EJIL: Keynote article, in which Philippe Sands contemplates the ends (and end) of judicialization. Based on his lecture at the 2015 ESIL annual conference in Oslo, it forms a fitting introduction to an issue that addresses overarching questions of legitimacy in international law, from the reception of international law in Asia to strong reactions to the idea of global governance by the WTO judiciary. An EJIL: Live! interview with Philippe Sands (posted earlier this week) complements the article.

This issue’s first regular article is Vincent Chetail’s critique of the dominant narrative of migration control, drawing on early doctrines of the law of nations regarding the free movement of persons across borders, and thus offering an innovative path for rethinking this critical contemporary issue. In another example of looking back in order to confront difficult issues of today, Jan Lemnitzer draws on original archival research to propose the adoption of an adversarial model of a commission of inquiry for investigating the downing of flight MH17.

We are pleased to present in this issue a Symposium comprising three articles giving attention to international law in Asia. Simon Chesterman explores the reasons for Asia’s under-participation and under-representation in international law and institutions, and predicts greater convergence and presence of Asia in global governance. Melissa Loja looks to archival records in order to shed new light on one of the most pressing questions of international law in Asia: the Senkaku/Diaoyu Islands dispute. And Zhiguanq Yin’s article focuses on the translation of international law in the 19th century into China, thereby questioning the universality of Euro-centric jurisprudence.

A second Symposium in this issue focuses on the recent Whaling Case decision of the International Court of Justice. Following a brief introduction by Enzo Cannizzaro, Jean d’Aspremont uses the decision as a platform to analyse the distinction, or lack thereof, between the doctrines of sources and interpretation. Stefan Raffeiner then reflects on the relevance of organ practice and subsequent practice of states acting in international organizations to treaty interpretation, teasing out the issues raised in relation to Articles 31-32 of the Vienna Convention on the Law of Treaties. Enzo Cannizzaro bookends the symposium with a commentary on the contribution of the Whaling Case to our understanding of the interplay between the doctrines of proportionality and margin of appreciation.

In Roaming Charges, we focus on the young and the old, and the stories of lives told through the intense gaze of the subjects in these photographs.

We close the articles section of the Journal with an Afterword. In his Foreword in this year’s first issue, Robert Howse reflected on the first two decades of the WTO Appellate Body. Here, we present a collection of critical responses to Howse’s landmark article, from Hélène Ruiz Fabri, Bernard Hoekman, Andrew Lang, Petros Mavroidis, and Joost Pauwelyn, with a rejoinder by Howse.

We continue our rubric, Re-lecture, with essays by Anne-Charlotte Martineau and Oliver Lepsius, focusing respectively on George Scelle and Hans Kelsen.

Finally, our Last Page poem, by Alex Shattock, humorously shares some truths about our discipline in ‘Dinner Party Conversation’.

Emma Thomas – May the Force Be With You!

The EJIL Editors have made every effort over the years in relations with our publisher, Oxford University Press, to obtain the very best for our authors and readers, including the most author-friendly copyright terms and reasonably priced subscription rates. This has not always made for easy and tension-free relations. Yet for the past seven years Emma Thomas, OUP’s formidable senior publisher in charge of EJIL, has succeeded in navigating the stormy waters that our requests have at times created and has, with extraordinary ability, managed to look after EJIL’s best interests without of course sacrificing OUP’s. Emma is leaving OUP now to take up a new career challenge and we at EJIL wish her the very best of success. We are losing an impressive colleague and a warm and generous friend.

EJIL Roll of Honour

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2016:

Amanda Alexander, Philip Alston, Roozbeh Baker, Virginie Barral, Robert Beckman, Richard Bellamy, Gabriella Blum, David Caron, Rose Cecily, Hilary Charlesworth, Steve Charnovitz, Vincent Chetail, Roger Clark, Kaitlin Cordes, Kristina Daugirdas, Kevin Davis, Oliver Diggelmann, Jeffrey Dunoff, Francesco Francioni, Bryant Garth, Marlies Glasius, Leena Grover, Hans Morten Haugen, Kevin Heller, Gleider Hernández, Loveday Hodson, Robert Howse, Andrew Hurrell, Jörg Kammerhofer, Michael Karayanni, Helen Keller, Sara Kendall, Tarun Khaitan, Claus Kress, David Kretzmer, Dino Kritsiotis, Andreas Kulick, Shashank Kumar, Jurgen Kurtz, Charles Leben, Randall Lesaffer, Mikael Madsen, Debora Malito, Triestino Mariniello, Giuseppe Martinico, Walter Mattli, Robert McCorquodale, John McCrudden, Lorna McGregor, David McGrogan, Frédéric Mégret, Naz Modirzadeh, Sonia Morano-Foadi, John Morss, Samuel Moyn, Liam Murphy, Stephen Neff, Anne Orford, Federico Ortino, Martins Paparinskis, Andreas Paulus, Clint Peinhardt, Teresa Phelps, Ilias Plakokefalos, Sergio Puig, Dirk Pulkowski, Morten Rasmussen, Kal Raustiala, Nicole Roughan, Cedric M.J. Ryngaert, Harm Schepel, Thomas Schultz, Joanne Scott, Kirsten Sellars, Eran Shamir-Borer, Sandesh Sivakumaran, Oisin Suttle, Katie Sykes, Anastasia Telesetsky, Jaime Tijmes, Antonios Tzanakopoulos, Antoine Vauchez, Jochen von Bernstorff, Armin von Bogdandy, Ana Filipa Vrdoljak, Michael Waibel, Kenneth Watkin, Stephen Weatherill, Ramses Wessel, Reinmar Wolff, Ingrid Wuerth, Claus Zimmerman.

New Issue of EJIL (Vol. 27 (2016) No. 4) – Out Next Week

ejiltalk.org - Tue, 01/24/2017 - 12:20

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

On My Way Out IV – Teaching; Emma Thomas – May the Force Be with You!; EJIL Roll of Honour; In this Issue

EJIL: Keynote

Philippe Sands, Reflections on International Judicialization

Articles

Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel

Jan Martin Lemnitzer, International Commissions of Inquiry and the North Sea Incident: A Model for an MH17 Tribunal?

Symposium: Focus on Asia

Simon Chesterman, Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures

Melissa H. Loja, Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute between China and Japan over the Senkaku/Diaoyu Islands

Zhiguang Yin, Heavenly Principles? The Translation of International Law in 19th-century China and the Constitution of Universality

Symposium: Whaling in the Antarctic

Enzo Cannizzaro, Whaling into a Spider Web? The Multiple International Restraints to States’ Sovereignty

Jean d’Aspremont, The International Court of Justice, the Whales and the Blurring of the Lines between Sources and Interpretation

Stefan Raffeiner, Organ Practice in the Whaling Case: Consensus and Dissent between Subsequent Practice, Other Practice and a Duty to Give Due Regard

Enzo Cannizzaro, Proportionality and Margin of Appreciation in the Whaling Case: Reconciling Antithetical Doctrines?

Roaming Charges

Moments of Dignity: The Young and the Old

Afterword: Robert Howse and His Critics

Hélène Ruiz Fabri, The WTO Appellate Body or Judicial Power Unleashed: Sketches from the Procedural Side of the Story

Bernard Hoekman, The World Trade Order: Global Governance by Judiciary?

Andrew Lang, The Judicial Sensibility of the WTO Appellate Body

Petros C. Mavroidis, The Gang that Couldn’t Shoot Straight: The Not So Magnificent Seven of the WTO Appellate Body

Joost Pauwelyn, The WTO 20 Years On: ‘Global Governance by Judiciary’ or, Rather, Member-driven Settlement of (Some) Trade Disputes between (Some) WTO Members?

Robert Howse, The WTO 20 Years On: A Reply to the Responses

 Re-lecture

Anne-Charlotte Martineau, George Scelle’s Study of the Slave Trade: French Solidarism Revisited

Oliver Lepsius, Hans Kelsen on Dante Alighieri’s Political Philosophy

Book Reviews

 Steven R. Ratner. The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (David Roth-Isigkeit)

Arnulf Becker Lorca. Mestizo International Law: A Global Intellectual History 1842–1933 (Jochen von Bernstorff)

Louise Chappell. The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (Anna von Gall)

The Last Page

Alex Shattock, ‘Dinner Party Conversation

France Legislates on State Immunity from Execution: How to kill two birds with one stone?

ejiltalk.org - Mon, 01/23/2017 - 15:00

France has never legislated on State immunity to the same extent as the US, UK and other countries. Instead, sovereign immunity under customary international law has been mainly governed by case law, save for two little known provisions: Article 111-1 of the civil enforcement procedures code providing for the principle of immunity of domestic and foreign public entities, and Article 153-1 of the monetary and financial code providing for the immunity of foreign central banks and monetary authorities. Even though France ratified the United Nations Convention on Jurisdictional Immunities of State and their Property of 2004 (UNCSI) with Law No. 2011-734 of June 28, 2011, contrary to Japan, Spain and Sweden, France did not incorporate the Convention into domestic law. The recent decision to incorporate only Articles 18, 19 and 21 of UNCSI on immunity from execution was rather motivated by the fact that, first, the jurisprudence of the Cour de cassation had become unpredictable and, second, the French government was embroiled in diplomatic complications with foreign States. With two Articles of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and modernising economic activity of December 9, 2016, France has, on the one hand, purported to codify customary law on State immunity from execution, as reflected in UNCSI, (Article 59), a provision portrayed by its opponents as the “Putin amendment” made specifically to respond to the Russian law of 2015 which threatens to deprive foreign states of their immunity if they ignore Russia’s immunity, in particular with regard to seizures made following the aftermath of the Yukos award. On the other hand, it has enacted specific rules on execution proceedings against foreign States undertaken by so-called “vulture funds” as had been the case with the famous NML capital Ltd. v. Argentina litigation (Article 60).

This post will focus on the first of these two provisions, Article 59. Its new requirement on judicial prior authorisation for post-judgment measures of constraint, under which a creditor can no longer go directly to a bailiff to perform a seizure, has been the main bone of contention for the Bill’s opponents due to the fact that there is no mention of it in UNCSI.

The Bill was suppressed twice during the legislative process because members of Parliament expressed their concerns, inter alia, about the real possibility for the creditor to obtain an effective execution as well as the creation of a situation of impunity for foreign States. Emmanuel Gaillard declared in June 2016 in the economic newspaper Les Echos that this provision would render any attachments against foreign States quasi-impossible. Despite its eventful journey, the provision was reintroduced by the government and ultimately adopted by both houses of the Parlement. Article 24, which became Article 59, introduced three new articles into the civil enforcement procedures code.

Has France, which adopted the restrictive doctrine of State immunity from execution in 1984 and ratified in 2011 UNCSI, in fact returned to an absolute doctrine of State immunity from execution? No. But if France is positioning itself to strengthen the means of protection for foreign States, one must ask whether it is in compliance with the right to a fair trial, including the right to judicial execution, guaranteed by the ECHR? Among other things, Article 59 also modifies conditions relating to execution itself and attempts to clarify the law on State immunity waivers following two revisions of the jurisprudence made by the Cour de cassation within two years.

Generalising prior judicial authorisation

First, “[p]rovisional measures or enforcement measures cannot be carried out with regard to property belonging to a foreign State except with the prior authorisation of a judge issued via an order made on request by the creditor” (Art. L. 111-1-1).

The Government contended that customary international law, as reflected in Articles 18 and 19 of UNCSI, provides an immunity from pre-judgment and post-judgment measures of constraint with few exceptions. In recent years, France has appeared to offer less protection to property of foreign States, which risked France incurring international responsibility and facing significant diplomatic consequences. Yet, France, under customary international law, is bound by an obligation of result and cannot perform this obligation if it gives creditors the possibility to seize foreign State property, including immune property, before a judge can supervise the validity of such a measure. A prior judicial authorisation, which already existed for provisional measures, would solve this issue according to the government. During the parliamentary debates, Michel Sapin, the Minister of Economy and Finances, acknowledged that this requirement was nowhere in the 2004 Convention but at the same time, that it was not in contradiction to it either. Belgium too resorts to prior judicial authorisation. Moreover, a prior authorisation does not remove the creditor’s right to an enforcement. To seek an order made on request in French law is a swift and ex parte procedure. Thus, the foreign State becomes aware of the procedure when the authorisation is granted (or denied) and consequently cannot move available property abroad to avoid attachment. The Government rejected the option to have an adversarial process for it would negate any element of surprise at the expense of the creditor. Quoting the ECHR in the 2001 Al-Adsani case, the French government asserted that the limitation reflects rules of international law on immunities and constitutes as such a proportionate limitation to the right to a judicial execution.

Before the law came into force, 60 senators requested the Conseil Constitutionnel, the highest court on constitutional matters, to assess whether Article 59 conformed to the right to a judicial execution and to an effective remedy guaranteed in Article 16 of the Declaration of Human and Civil Rights of 1789, “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution”, to which express reference is made in the preamble of the French Constitution. The Government argued that Article 59 needed no modification in order to comply with the Constitution.

On December 8, 2016, the Conseil gave its decision No. 2016-741 DC, holding that Article 59 was in compliance with the French Constitution. According to an established jurisprudence, the decision was limited to domestic law and did not mention customary international law, UNCSI or even the ECHR. But, the reasoning of the Conseil was similar to that of the ECHR on limitations to the right to a fair trial: a legitimate purpose and a proportionality test. Indeed, for the Conseil, the legislative branch has jurisdiction to determine the fundamental principles under which the rights of creditors and debtors should be articulated (§ 67). Here, the legislative branch sought to protect property of foreign public persons and, in particular, to ensure greater judicial supervision of property belonging to foreign States which benefits from immunity from execution (§ 69). It is without prejudice that measures of constraint remain available when a foreign State consents or when the property sought is used or destined to be used for other than government non-commercial purposes (§ 70). Besides, the way the prior authorisation is granted, as explained by the Government, prevents any removal of property abroad (§ 72). To conclude, the judge whose mission is to authorise a measure of constraint only makes sure the legal requirements surrounding this measure are fulfilled (§ 73).

Overturning the classical Eurodif jurisprudence

Second, Article 59 means French law not only says goodbye to pre-judgment measures of constraint on commercial property, but also to its classic Eurodif line of jurisprudence:

“[p]rovisional measures or enforcement measures with regard to a property belonging to a foreign State cannot be authorised by a judge except to the extent that one of the following conditions is met : 1° The State concerned has expressly consented to the taking of such a measure as indicated ; 2° The State concerned has allocated or earmarked this property for the satisfaction of the claim which is the object of that proceeding ; 3° Where a judgment or an arbitral award has been decided against the State concerned and the property in question is specifically in use or intended for use by the State for other than government non-commercial purposes and has a connection with the entity against which the proceeding was directed. For the purposes of applying the 3°, the following categories, in particular, of property of a State shall be considered as property specifically in use or intended for use by the State for government non-commercial purposes : a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences ; b) property of a military character or used or intended for use in the performance of military functions ; c) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale ; d) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale ; e) tax and social claims of the State.” (Art. L. 111-1-2).

As in the US or in the UK, provisional measures cannot be adopted before a judgment or an arbitral award has been decided except if the defendant State has expressly consented to the measure. After a judicial decision has been delivered, in Eurodif, the Cour de cassation declared that no immunity was granted for property that “was connected to a private law economic or commercial activity which was the subject-matter of the proceeding before the court”. Article 59 certainly saves the criteria the ICJ acknowledged in 2012 as customary being that property is only immune when used for purposes falling within a foreign State’s sovereign functions. And to examples drawn from the non-exhaustive list of Article 21 of the UNSCI, the provision adds, as a legacy of the fierce litigation involving NML capital Ltd. and French companies, Total and Air France, a new category of immune property: tax and social claims owed to the foreign State. However, a connection between the property and the claim is not required to implement a post-judgment measure of constraint. The only required connection is with the “entity against which the proceeding was directed”. Though, it is unfortunate that the legislator did not incorporate the definition of the foreign State under Article 2 of UNCSI as well as the understanding with respect to Article 19 which gives a definition of what amounts to an entity under the new connection requirement. UNCSI defines an “entity” as “the State as an independent legal personality, a constituent unit of a federal State, a subdivision of a State, an agency or instrumentality of a State or other entity, which enjoys independent legal personality.” This greatly reduces chances of enforcement or the range of property available against a State. It must be borne in mind that foreign States often exercise commercial activities via separate entities i.e. State-owned enterprises. In the absence of clarification, would Article 59 mean execution against a foreign State vested with municipal legal personality or international legal personality and therefore embrace property belonging to separated entities?

Limiting waivers with respect to diplomatic property

Third, Article 59 provides that “[p]rovisional measures or enforcement measures cannot be carried out with regard to property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of foreign States or their consular posts, special missions or their missions to international organizations except where the States concerned have expressly and specifically consented to the taking of such measures as indicated” (Art. L. 111-1-3, emphasis added).

A waiver with regard to State immunity from execution can be express (“The State concerned has expressly consented to the taking of such a measure as indicated”) or tacit (“The State concerned has allocated or earmarked this property for the satisfaction of the claim which is the object of that proceeding”) as long as it does not involve diplomatic property. A waiver on diplomatic property must be express and specific meaning a State must list this category of property in the waiver clause. The condition of specificity had been introduced into French law in 2011 by the Cour de cassation with respect to diplomatic bank accounts and extended in 2013 to all State immune property i.e. property used for purposes falling within a foreign State’s sovereign functions. However, in 2015, in the Commisimpex case, the same judge gave a different interpretation of customary international law and removed this condition. With Article 59, France returns to the 2011 position. Michel Sapin, made clear during the parliamentary debate that property strictly used for diplomatic purposes should absolutely be protected. According to the French government, there is a specific immunity, under Article 22 of the Vienna Convention on Diplomatic Relations of 1961, customary law and Article 21 of UNCSI which applies to diplomatic property including bank accounts. An express and specific waiver for diplomatic property is, according to the government, supported by State practice in Germany, Belgium, Australia and the US and respects the creditor’s right to an effective remedy under the ECHR.

Conclusion

On the face of it, the aforesaid legislative modifications would probably prevent future diplomatic difficulties with foreign States in default and in the Yukos case reduce tensions with Russia. Still, if the French Government aimed at both clarifying the rules concerning the protection granted to State property as well as protecting the possibility for victims to execute on State property not covered by immunity, for various reasons, Article 59 does not settle the controversial matter of immunity from execution. Thus, in light of creditors’ difficulty in France to meet the burden of proof in absence of any discovery measures that property is not immune, it remains to be seen what the Cour de cassation will decide on prior judicial authorisation in specific cases, one of its duties being to control the compliance of legislative provisions with international law, and if its interpretation would be sanctioned by the European court. In this respect, it is worth noting that on 1 October 2015, a French court of appeal in a civil case already held that prior judicial authorisation regarding a measure of constraint on property of the Iraqi central bank did not infringe either the law as reflected in UNCSI or Article 6, § 1, of the ECHR. Likewise, about the issue of an express and specific waiver on diplomatic property, will the Cour de cassation yield to the legislature or refuse to espouse the government’s view on customary international law? What will the Strasbourg court eventually decide on the French position? Here are some questions to think about.

I would like to specifically thank Dr Philippa Webb for her ongoing support and the helpful suggestions and revisions she made to my work.

New EJIL:Live! Interview with Philippe Sands on his New Book, East West Street: On the Origins of Genocide and Crimes Against Humanity

ejiltalk.org - Mon, 01/23/2017 - 10:30

In this episode of EJIL:Live! Professor Philippe Sands, whose article on “Reflections on International Judicialization” appears in EJIL vol. 27, no. 4, speaks with the Editor-in-Chief of the Journal, Professor Joseph Weiler. Unlike other editions of EJIL: Live!, this episode offers a fascinating and moving discussion of Sands’ remarkable new book, East West Street: On the Origins of Genocide and Crimes Against Humanity.

The conversation takes viewers along the many paths of research and discovery that Sands took in writing the book, beginning from a chance invitation to deliver a lecture in Lviv in 2010. In the conversation, as in the book, Sands explores the geographical “coincidence” of his own grandfather as well as Hersch Lauterpacht, founder of the concept of crimes against humanity, and Raphael Lemkin, who invented the concept of genocide, having their origins in the small town of Lviv. He notes that the big lesson he learnt from writing the book is that in order to understand the concepts we deal with in international law, we have to understand personal histories.

Announcements: CfP Annual Conference on WTO Law; Frankfurt Investment Law Workshop 2017; CfP Conference of the Australian and New Zealand Society of International Law; CfS UCL Journal of Law and Jurisprudence

ejiltalk.org - Sun, 01/22/2017 - 14:30

1. Graduate Institute’s Centre for Trade and Economic Integration and Georgetown University’s Institute of International Economic Law Annual Conference Call for Papers. The Graduate Institute’s Centre for Trade and Economic Integration and Georgetown University’s Institute of International Economic Law are proud to present a call for papers for the Annual Conference on WTO Law, to be held in Geneva from June 9-10, 2017. For details, please see the announcement here.

2. Frankfurt Investment Law Workshop 2017: Oceans and Space: New Frontiers in Investment Protection? For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. With activities ranging from energy production at sea via deep seabed mining to space mining, spacefaring and space tourism, areas beyond territorial sovereignty increasingly attract foreign investment. These investments raise questions that go to the core of investment law, but have so far hardly been explored, such as: How are commercial activities on the oceans or in space protected against political risk? What law, if any, protects them, and how does it balance commercial interests against regulatory concerns? How can disputes be settled in an effective and balanced manner? The 2017 Frankfurt Investment Law Workshop will offer a systematic analysis of these issues by inquiring into traditional sources of investment protection, and by addressing the interaction of the law of the sea, space law and international investment law. The Workshop will bring together academics and practitioners. The Workshop program is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see here, here, here and here. If you are interested in attending, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de var mailNode = document.getElementById('emob-F.Fpuvzcs@whe.hav-senaxsheg.qr-31'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%53%2E%53%63%68%69%6D%70%66%40%6A%75%72%2E%75%6E%69%2D%66%72%61%6E%6B%66%75%72%74%2E%64%65"); tNode = document.createTextNode("S.Schimpf {at} jur.uni-frankfurt(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-F.Fpuvzcs@whe.hav-senaxsheg.qr-31"); mailNode.parentNode.replaceChild(linkNode, mailNode); by 28 February 2017.

3. 25th Annual Conference of the Australian and New Zealand Society of International Law Call for Papers. A Call for Papers has been announced for the 25th Annual Conference of the Australian and New Zealand Society of International Law,  which is on the subject of “Sustaining the International Legal Order in an Era of Rising Nationalism.” The Conference will take place from Thursday 29 June to Saturday 1 July 2017 at Hotel QT Canberra, 1 London Circuit, Canberra, Australia. The Conference Organising Committee invites proposals for papers to be presented at the conference, either individually, or as a panel. The deadline for paper and panel proposals is 24 February 2017. For further details please see here.

4. UCL Journal of Law and Jurisprudence Call for Submissions. The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Editorial Board is pleased to call for submissions for the second issue of 2017 on the theme of ‘Crisis and the Law’. The topic is broadly conceived, covering a range of political, economic, social, environmental and cultural issues, and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be crisis-related. The Journal seeks to publish pieces that either articulate the concept of crisis within the law or how the law deals with current crises. Articles which challenge existing boundaries in law or jurisprudence or how legal institutions work and are shaped by crises are also welcome. We accept articles of 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with OSCOLA. Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 14 April 2017. For further information and guidelines for authors please see our website or contact the Academic Editors (ucljlj {at} ucl.ac(.)uk var mailNode = document.getElementById('emob-hpywyw@hpy.np.hx-91'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%75%63%6C%6A%6C%6A%40%75%63%6C%2E%61%63%2E%75%6B"); tNode = document.createTextNode("ucljlj {at} ucl.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-hpywyw@hpy.np.hx-91"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

ejiltalk.org - Fri, 01/20/2017 - 14:00

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice.

The issue shot to prominence when the UN Sanctions Committee (UNSC) began to impose sanctions (asset freezes, travel bans etc.) on individuals, with more drastic individual impact. In its famous judgment Kadi and Al Barakaat v Commission and Council, the Court of Justice of the EU (CJEU) held that it was obliged to review the EU law measure implementing a UNSC Resolution imposing sanctions, which in principle enjoyed primacy under the UN Charter. Part of the justification was that the complaints avenue offered by the UN did not offer the ‘guarantees of judicial protection’: the process was diplomatic, without an independent arbiter; and the individual did not have access, even in restricted form, to the evidence justifying their inclusion on the sanctions list (at [322-325]). Judges of the Supreme Court of the UK (Ahmed v HM Treasury) also noted the deficiencies (see e.g. at [81]).

So began a concerted effort to improve the UN system. Reforms created the ‘Ombudsperson’ institution, which could receive individual complaints from listed individuals, see some of the evidence (without communicating it to the individual) and recommend an individual’s de-listing. Yet the courts have been exacting in their assessment and have so far found the procedure insufficient.

The ECtHR first so held in Nada v Switzerland of 2012. The Swiss courts declined to hear Mr Nada’s claim against national measures implementing a UN travel ban, confining him to a tiny Italian enclave within Switzerland. The ECtHR found that the Swiss courts’ refusal deprived him of a remedy in respect of the Article 8 violation so constituted, adopting the Swiss courts’ own acknowledgment that the ‘delisting procedure at the [UN] level, even after its improvement (…), could not be regarded as an effective remedy within the meaning of Article 13 [ECHR]’ (at [211]). The CJEU followed suit in its ‘Kadi II’ judgment (2013), finding that judicial review at EU level was all the more essential as the procedure at the UN level still did not offer ’the guarantees of judicial protection’ (at [133]).

The newer case-law is thus more prescriptive, suggesting that municipal (national or regional) judicial review may be asserted if an effective remedy akin to judicial protection is not available at the international level. That evolution was logical, given the nature UN sanctions. They have draconian impact and – for precisely that reason – hold an important place in the anti-terrorism response; yet, there are concerns about the provenance of the evidence used to support them (in 2009 a UN Special Rapporteur warned that some may derive from torture); and, as Lord Rodger said in Ahmed, there is an “obvious danger” that, in a minority of cases, “States will use listing as a convenient means of crippling political opponents” (at [181]). All of which calls for a genuinely effective system of access to justice to consider individual cases of alleged misuse, inadvertent or deliberate. That is the legal context in which INTERPOL, and its internal complaints panel, the CCF, should be examined.

The case of INTERPOL and the need for remedies

INTERPOL is an international body which operates a system of ‘wanted person’ notices, or “Red Notices”: electronic alerts circulated at the request of one of its 190 member countries’ ‘National Central Bureaux’ (NCB), requesting a person’s arrest with a view to extradition. Effectively the alert creates some external effects for domestic arrest warrant. A Red Notice has no binding force, but in practice many countries’ police will arrest on this basis alone. The Red Notice thus has considerable impact upon the individual: arrest at international border points and less tangible, but perhaps equally serious, effects such as the inability to travel, the distress of being ‘wanted’, reputational harm (especially for those whose mugshots feature on INTERPOL’s website) and so on.

INTERPOL is required to abide by the ‘Spirit of the Universal Declaration of Human Rights’ under Article 2 of its Constitution. And clearly, when it facilitates the legitimate apprehension of a fugitive fleeing justice, its interference with any such rights is plainly justified. However, Fair Trials’ 2013 report Strengthening INTERPOL (which the author wrote) revealed how this system is sadly often used to limit the activities of journalists, activists and the like (in the author’s experience, often refugees from Turkey, Russia and Central Asia). Business disputes may also result in Red Notices based on charges which have little to do with ordinary, neutral law enforcement. By assisting in such cases, the report argued, INTERPOL may be taken outside its legitimate mandate and the impact on the individual will amount to an infringement of their rights. Which raises the issue of remedies.

Remedies in respect of Red Notices

The individual subject to a Red Notice can tackle some effects of the Red Notice when they happen via national courts (e.g. some form of judicial review if they arrested). And, clearly, a remedy may lie against the underlying arrest warrant in the country that issued it. Yet, the ongoing effect of a Red Notice is attributable to INTERPOL, which, though it relies on the information supplied by the NCB, is alone competent for issuing and maintaining Red Notices. In the Arrest Warrant case, the International Court of Justice suggested that circulation of an INTERPOL alert alone created legally recognisable (inchoate) effects. In respect of this purely international-level act, a remedy is required.

Yet, INTERPOL enjoys the same immunities from court process as other IOs. It is protected from suit in France, where its seat is, by a Headquarters Agreement. As far as is publicly known, attempts to sue it in the national courts have failed. That document also contains a provision allocating individual disputes to the Permanent Court of Arbitration in The Hague, though the avenue remains essentially untested. For all intents and purposes, the key avenue of redress is the CCF, a panel sitting in Lyon which can hear applications from individuals wanted under Red Notices and whose decisions can lead to their removal, usually the immediate remedy sought. Clearly, by virtue of the principles above, this panel has a dual function: a forum for individuals to seek remedies, but also, in its previous Chairman’s candid words, ‘a strategic tool to preserve INTERPOL’s judicial immunity’.

However, in 2013, the CCF was universally criticised for the ineffective recourse it offered (see Part III of Strengthening INTERPOL for the detail): its proceedings took years; its members had insufficient expertise; its decisions were insufficiently reasoned – literally one-page, cryptic letters with no substantive reasoning at all – and not formally binding on INTERPOL; and, perhaps the worst feature for the practising lawyer, the evidence put forward by countries seeking to justify maintaining their red notices was not disclosed to the individuals challenging them. (For a clear example of the problem at this time, see the case of Petr Silaev in Part III of Strengthening INTERPOL (at [222]).)

A host of international bodies such as the Parliamentary Assembly Council of Europe (PACE), OSCE Parliamentary Assembly and the EU became aware of the issue and called upon INTERPOL to improve its game and ensure better access to justice for those affected by abuses (see here). With the judicial trend shown by Kadi, Nada and similar cases, and the flaws of its own internal remedies system increasingly glaring, INTERPOL’s own immunity looked to be on increasingly shaky ground.

So began a number of steps to improve matters. In 2014 INTERPOL appointed an ex ECtHR judge and international organisations law specialist, Prof. Nina Vajic, to Chair of the CCF. In the same year, it announced a Working Group that would study the issue and make reform recommendations. Over 2015, decisions issued by the CCF began to include more detailed explanation of the procedure it had followed and matters it had taken into consideration (though they were still short on the key aspect: how the rules were applied to the facts). An Exchange of Letters of 2016 between INTERPOL and the French government amending the HQA also sought to oust the jurisdiction of the Permanent Court of Arbitration so far as red notice disputes are concerned, effectively isolating the CCF as the one and only remedy. The 2016 reforms strengthening the CCF itself are the intended pièce de résistance.

Assessing the 2016 reforms

The Statute adopts a number of the recommendations in Strengthening INTERPOL. Among others: a separate Requests Chamber is to be created; time frames will be restricted; the CCF’s decisions are to be reasoned and binding; the panel will now all be lawyers with backgrounds in more relevant topics; and there is to be a clearer basis for seeking interim remedies (e.g. suspension of a Red Notice). Each of these would appear, prima facie, to tick boxes identified by the above case-law. But it is helpful to consider one aspect in greater detail, as an example: Article 35 of the CCF Statute, governing the exchange of evidence in CCF proceedings. This is a criterion in in light of the above case-law.

Article 35(1) creates a principle of mutual access to evidence for the applicant and the NCB behind the Red Notice. It is one of INTERPOL’s historical features that information sent to INTERPOL belongs to NCB that provided it, and can only be disclosed with its permission. NCBs could thus supply information to the CCF to support their case for maintaining a Red Notice, and yet decline for it to be disclosed. Fair Trials has therefore welcomed the shift in emphasis presented by Article 35(1).

Yet, Article 35(2) reiterates the need for consultation prior to disclosure, so the old approach is not consigned to history (in reality, such a reform might require changes in national laws). Article 35(3) clarifies the basis on which NCBs may object to disclosure, including the (understandable) need to protect the confidentiality of an investigation. The issue is of course what happens when an objection is raised, which is governed by Article 35(4). The provision envisages a balance being struck between the exception invoked and defence rights, e.g. by the disclosure of a summary in lieu of the actual evidence. It also suggests that ‘the failure to establish a justification will not lead to disclosure of the evidence [as the CCF has no such power], but may be taken into account by the CCF in deciding on the request’. The final words seem to suggest that the CCF may be slow to rely on evidence whose withholding an NCB cannot properly justify. But an NCB might argue, a contrario, that if it can convince the CCF an exception is established, there is no limit upon the reliance the CCF may place on this (undisclosed and unseen) evidence. Article 35(4) offers no clear answer on this point.

It is instructive to compare the approach of Article 35(4) with recent case-law of the CJEU on disclosure of evidence in security-related cases (e.g. Kadi II and Case C-300/11 ZZ). The cases hold that, if an authority resisting disclosure of sensitive material cannot put forward a valid justification, then either the authority should consent to its disclosure, or it cannot be relied upon at all by the court (so far, so similar). If, on the other hand, a justification does exist, then the balance must be struck: some disclosure should be achieved, e.g. by the use of summaries and the disclosure of the ‘essence’ of the grounds; and the person’s inability to comment on the undisclosed evidence must be factored in when deciding upon its probative value. Article 35(4) is, prima facie, less protective or at least less exhaustive than this, inevitably leaving gaps for the CCF to fill by interpretation and practice.

That is a significant thing: the CCF, until recently a rudimentary data protection panel, assuming a quasi-judicial role and interpreting the rules in light of general principles. To be clear, INTERPOL (including the CCF) is legally autonomous and operates in a sui generis context, so the above EU principles have no binding value. But they are one articulation of general ‘effective remedy’ standards, and a yardstick which a local (e.g. French) court might look to when asked to uphold INTERPOL’s immunity. The 2016 speech of the CCF Chair accompanying launch of the CCF Statute, referring to the need for an ‘effective remedy’, suggests such principles will guide the CCF. But a quasi-judicial body must be assessed by reference to its practice – as reflected in the wording of its decisions. So the savvy observer may welcome the CCF Statute but will want to see what the CCF does with it.

Conclusion

Access to justice is only one part of the puzzle. The underlying problem with INTERPOL abuse lies in the substance of the rules: not least Article 3 of INTERPOL’s Constitution (not otherwise discussed here for simplicity), the key ‘neutrality’ rule whose interpretation is a matter of debate (see Part II of Strengthening INTERPOL). A recent – commendable – policy adopted to protect refugees announced in 2015 did not address the issue of what should happen to Red Notices when one or more extradition courts finds the case politically-motivated (i.e. the inclusion of a footnote on the Red Notice or its removal outright). Article 2 itself needs clarifying. These issues were not addressed by the 2016 reforms and need the attention of INTERPOL’s Office of Legal Affairs in the first instance.

None the less, INTERPOL should be commended for making a serious effort to improve the CCF so that individuals can better enforce the current rules against INTERPOL. But caution is needed. The example of the disclosure regime in the CCF’s new Statute underlines this. It is important that PACE, whose Legal Affairs Committee is currently reviewing INTERPOL’s work, does not accept the reforms at face value and makes its approval conditional upon their effective implementation in practice. Continued work will be needed by Fair Trials and its supporters to monitor this. The CCF, for its part, has every incentive to make a success of the reforms: it will thereby ensure better protection for individual rights, and strengthen INTERPOL’s ability to discharge its important law-enforcement function safe in the independence that follows from its judicial immunity. Time and litigation will tell.

Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

ejiltalk.org - Fri, 01/20/2017 - 09:00

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides.

More specifically, it has been claimed that Security Council resolution 242 (1967) in contrast thereto, given the English wording of para. 1 lit (i) of Security Council resolution 242 (1967), which referred to the withdrawal of Israeli armed forces “from territories occupied in the recent conflict” (“rather than from the territories occupied in the recent conflict”), did not have in mind a complete withdrawal from all territories then occupied; and that accordingly Security Council resolution 2334 (2016) allegedly  “contains elements that attempt to modify Resolution 242”. While the debate as to the meaning of the relevant part of Security Council 242 (1967) has been ongoing ever since its very adoption, it might be worth recalling (but less frequently noted) that the French text of Security Council 242 (1967) refers to the withdrawal “des territories occupés” rather than from ‘de territories occupés’, i.e. did already then contemplate a complete withdrawal.

What is however more relevant when it comes to Security Council resolution 2334 (2334) is that, rather than merely ‘taking note of’ or ‘recalling’ prior Security Council resolutions, it instead ‘reaffirms’ those, including, in particular, reaffirming Security Council resolution 242 (1967). That in turn presupposes that it was the understanding of the Security Council, when adopting Security Council resolution 2334 (2016), and also that of the States participating in the vote, that both, the content of Security Council resolution 242 (1967) and that of Security Council resolution 2334 (2016) are compatible with each other. Put otherwise, subsequent Security Council practice, as now enshrined in Security Council 2334 (2016), therefore contradicts the claim that Security Council 242 (1967) had only envisaged a partial withdrawal from the territories that came under Israeli effective control on 1967, i.e. the West Bank, the Gaza strip, as well as East Jerusalem.

It is also worth noting in passing that the French version of preambular paragraph 5 of Security Council resolution 2334 (2016), when mentioning the Green Line, refers to “les frontières de [the boundaries of] 1967”, further upscaling the legal relevance of this demarcation line.

  1. Security Council resolution 2334 (2016) and the acquisition of territory by force

Security Council resolution 2334 (2016) also reaffirms inter alia Security Council resolutions 476 (1980) and 478 (1980) which, just like Security Council resolution 242 (1967), had already emphasized respectively reaffirmed that “the acquisition of territory by war [Security Council resolution 242]/ the acquisition of territory by force [Security Council resolutions 476 and 478] is inadmissible”. This prior determination is now further reiterated, if ever there was need, in preambular paragraph 2 of Security Council resolution 2334 (2016). Given the context of Security Council resolution 2334 (2016), and further given prior relevant Security Council resolutions, and in line with Principle 1 of General Assembly resolution 2625 (XXV) ‘Friendly Relations’, this statement by the Security Council reconfirms that already in 1967 even an otherwise legal use of military force combined with the exercise of effective control over territory cannot lead to title to territory.

  1. International legal status of the territories east of the Green Line

Just like previous Security Council resolutions Security Council resolution 2334 (2016) confirms that the West Bank, as well as East Jerusalem, are occupied territory within the meaning of international humanitarian law and that, besides, the 4th Geneva Convention applies to these areas.

This is particularly legally relevant as far as the current and ongoing proceedings before the ICC are concerned since the Security Council thereby, once again, refutes the claim made by Israel that the 4th Geneva Convention does not de jure apply to that very area. While, to state the obvious, the organs of the ICC are not bound by such legal determinations made by the Security Council, it will at the very least carry significant weight on the matter. By the same token, it will also set aside any possible claim by alleged offenders that they had bona fide taken a legally tenable position as to the non-applicability of the 4th Geneva Convention.

It might be also noted in passing that, in any event, given the very location of Art. 8 para. 2 lit b) lit. viii) Rome Statute  in that part of Art. 8 Rome Statute dealing with other serious violations of international humanitarian law, rather than in the part on serious violations of the Geneva Conventions, Art. 8 para. 2 lit b) lit. viii) Rome Statute might be interpreted as solely presupposing the existence of a situation of belligerent occupation, the existence of which is acknowledged by Israel, but not necessarily also require the de jure applicability of the 4th Geneva Convention. This would eventually render the question of the de jure applicability of the 4th Geneva Convention moot anyhow, when it comes to the Rome Statute.

What is also particularly striking is that Security Council resolution 2334 (2016), when addressing the legal status of the West Bank and East-Jerusalem, does not refer anymore to the occupied “Palestinian territories” in the plural but, like other organs of the United Nations beforehand, instead now also rather refers to the occupied “Palestinian territory” in the singular (“du territoire Palestinien” respectivly ‘le territoire palestinien” in the French text). This in turn presupposes that, while obviously not amounting to a recognition of a state, the Security Council hereby has taken the position that there exists at least a Palestinian entity with a defined ‘territory’ rather than merely some ‘Palestinian territories’.

At the same time, it is also worth noting that preambular paragraph 7 of Security Council resolution 2334 (2016), with its reference to the “Palestinian Authority Security Forces”, seems to assume that the Palestinian Authority continues to exist, the acknowledgment of the existence of the State of Palestine by the General Assembly of the United Nations notwithstanding.

  1. Issue of ‘secure and recognized borders’

Security Council 2334 (2016), just like previously Security Council resolution 242 (1967), and rightly so, stresses the right of both parties of the conflict to live “within secure and recognized boundaries/ borders”, the change in terminology from ‘boundaries’ (Security Council resolution 242) to ‘borders’ (Security Council resolution 2334) being of no legal relevance. That notion of ‘secure borders’ had, ever since the adoption of Security Council resolution 242 (1967), been closely intertwined with the issue to what extent any possible Israeli withdrawal ought to take place.

Security Council 2334 (2016) however now assumes that all territories beyond the Green Line (including East Jerusalem) are Palestinian territory and that the Security Council “will not recognize any changes to the 4 June 1967 lines (…) other than those agreed by the parties through negotiations”.

This in turn means that it is the considered view of the Security Council, as well as that of its members that the well-founded requirement of secure borders may also be reached and guaranteed without a permanent Israeli military presence on the ground beyond these very lines, subject obviously to a negotiated final settlement between the two sides, the international military presence on the Sinai agreed in the Israeli-Egyptian peace agreement being a possible model at hand.

  1. Notion of ‘transfer’ of population and its impact on ongoing ICC proceedings

In preambular paragraph 4 of Security Council resolution 2334 (2016), the Security Council condemns the “transfer of Israeli settlers” as constituting a “violation of international humanitarian law” This cannot but be understood as a reference to Art. 49 para. 6 4th Geneva Convention to which Security Council resolution 2334 (2016) had already alluded to in its preambular paragraph 3.

This determination, by the Security Council, is of particular relevance when it comes to the currently ongoing proceedings before the ICC triggered by the Palestinian accession to the Rome Statute and its parallel decleration accepting the ICC’S jurisdiction under Art. 12 para. 3 Rome Statute. As is well-known, there are claims that any ‘voluntary’ movement of Israeli nationals to the occupied Palestinian territory, even when triggered or facilitated by State-sponsored incentives such as e.g. tax subsidies, does not amount to a transfer within the meaning of Art. 49 para. 6 4th Geneva Convention. Accordingly, the argument goes, the addition of the words “direct or indirect” in Art. 8 para. 2, lit b) viii) Rome Statute was allegedly not in line with customary international law, and hence, the argument continues, such provision might not be opposable to possible Israeli indictees, Israel not being a party of the Rome Statute.

For one, and regardless of Security Council resolution 2334 (2016), one cannot but note first the fact that Israel had at one point signed the Rome Statute and might, by that very fact, have at the very least lost its status as a persistent objector as to the very norm now contested.

More specifically with regard to Security Council resolution 2334 (2016), it is particularly relevant that mere incentives by the State of Israel leading to, or encouraging, the creation of settlements, and the ensuing movement of Israeli nationals to the occupied Palestinian territory are now considered by the Security Council and its members as constituting a ‘transfer’ of population as such as already defined in Art. 49 para. 6 4th Geneva Convention. Accordingly, from the Security Council’s perspective, as now contained in Security Council resolution 2334 (2016), the addition of the words “directly or indirectly’ in Art. 8 para. 2 lit. b viii) Rome Statute is of a merely declaratory character. Put otherwise, in its perception, the very notion of ‘transfer’, as already contained in Art. 49 para. 6 4th Geneva Convention encompasses ‘indirect transfers’, a view also already e.g. reflected in the German Code of Crimes against International Law and the official governmental exposé introducing the bill at the time to the German parliament. It accordingly seems that Security Council resolution 2334 (2016) might have rendered the argument as to the incompatibility of Art. 8 para. 2 lit. b viii) Rome Statute with Art. 49 para. 6 4th Geneva Convention, and customary law and the ensuing issue of its opposability moot.

  1. Non-recognition of attempted unilateral changes of the legal status of the occupied Palestinian territory

On various occasions Security Council resolution 2334 (2016) makes it clear that the “establishment by Israel of settlements in the Palestinian territory (…) has no legal validity (‘aucun fondement en droit’), that the Security Council “will not recognize any changes to the 4 June 1967 lines (…) other than those agreed by the parties”, and finally calls upon states “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

The Security Council hereby acts in line with, and reconfirms, the customary norm having been codified in Art. 41 para. 2 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, the content of which the ICJ had also referred to in its 2004 advisory opinion as to the ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’. Even if the mere request (“Calls upon …”) by the Security Council does not oblige United Nations members States to act accordingly, it at the very least provides another layer of legal justification for states following the approach proposed in operative paragraph 5 of Security Council resolution 2334 (2016). Put otherwise, regardless of an otherwise existing justification under general international law to e.g. not treat goods from the occupied Palestinian territory as ‘Israeli goods’, third states may now also rely on this call by the Security Council to act in such a manner.

  1. Security Council resolution 2334 (2016) and the quest for a negotiated final status arrangement

It has been claimed (see here) that Security Council resolution 2334 “undermines the basic obligation of the Oslo Accords, signed by the PLO and witnessed by the United States (as well as the EU, Russia, Egypt and others), that the permanent status of the territories, the issues of Jerusalem, and borders are to be negotiated”. Yet, it suffices to note that Security Council resolution 2334 (2016) on various places reiterates the need for a negotiated solution. As a matter of fact, in line with the general obligation for states arising under Art. 2 (3) and 33 UN Charter, as well as under general international law to settle their disputes by peaceful means, Security Council resolution 2334 (2016) formally contemplates in its operative paragraph 3 changes to the 4 June 1967 lines (“frontières du 4 juin 1967”) as “agreed by the parties through negotiations”.

Besides, operative paragraph 8 of Security Council resolution 2334 (2016) calls upon all parties “to launch credible negotiations on all final status issues in the Middle East”, which issues under the Oslo agreements ought to cover inter alia “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.” Hence, apart from the fact that the Security Council as such, nor any indeed any of the  then members of the Security Council, are technically bound by the Oslo agreements, Security Council resolution 2334 (2016) is also substance-wise fully in line with the bilateral agreements previously concluded by the two sides.

  1. Terrorism and the issue of violence

Certainly not the least important parts of Security Council resolution 2334 (2016) are both, preambular paragraph 7, which recalls the “obligation under the Quartet Roadmap for the Palestinian Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities”, as well as operative paragraph 6 which generally calls for “steps to be taken to prevent acts of violence against civilians, including acts of terror”.

Given that Palestine has so far not yet acceded to any of the major conventions dealing with the matter, the call for “compliance with obligations under international law for the strengthening  of ongoing efforts to combat terrorism” seems to, maybe even primarily refer to obligations under relevant Security Council resolutions such as, in particular Security Council resolution 1373 (2001). In that respect it is worth noting that the addressee of e.g. Securty Council resolution 11373 (2001) are “all States”.

  1. Concluding remarks

While Security Council resolution 2334 (2016) might have not changed the situation on the ground for a iota, it has laid the legal foundation for possible further steps to be taken by the international community in order to induce the parties to the Palestinian-Israeli conflict to move forward with a possible solution for their enduring conflict.

It is also worth noting that the Joint Declaration adopted by the recent Conference for Peace in the Middle East of 15 January 2017 convened by France, and its approximately 70 participating States, had specifically “welcomed international efforts to advance Middle East peace, including the adoption of United Nations Security Council resolution 2334 on 23 December 2016”. It remains to be seen whether other actors, such as the ICC, but also e.g. FIFA, will take the content of Security Council resolution 2334 (2016) similarly into account in their own practice.

EJIL: Live! Episode 13- Chesterman’s Article, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures”

ejiltalk.org - Thu, 01/19/2017 - 11:30

A new episode of EJIL: Live!, the Journal’s official podcast, is now available. In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Simon Chesterman, Dean and Professor at the National University of Singapore, about his article, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures”, which appears in EJIL, Volume 27, Issue 4.

The conversation takes up the issues advanced by Chesterman in his article on Asia’s ambivalence to international law and institutions, and explores them further. Taking as its starting point the paradox of Asia benefiting most from international law and global governance institutions whilst remaining the least likely to participate in such institutions, the conversation looks at the historical and other reasons for this ambivalence and moves on to discuss possible futures for the involvement of Asian states in international law institutions.

The interview was recorded at the National University of Singapore.

 

International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

ejiltalk.org - Thu, 01/19/2017 - 09:00

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this join Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian.

Professor Antony Anghie also makes an important point about power in his historical survey. The Asian states that fought for the New International Economic Order (NIEO), he argues, had a vision but no power; by contrast, the Asian states that have power today lack any comparable alternative vision. Professor B.S. Chimni similarly suggests that the lack of a regional organization in Asia may be attributed to the fact that no Asian state has had the combination of material capability and legitimacy necessary to lead the formation of such an entity.

These observations about power go beyond the standard challenge to international law of its claim to being “law”. They recall far older critiques of the rule of law even in its domestic context: that it reifies power relations and thus is naturally embraced by whoever benefits most from the system. (It does and it is.) Nevertheless, as even the Marxist historian E.P. Thompson recognized, the rule of law remains an “unqualified human good” for its ability, nonetheless, to impose effective inhibitions upon power and defend against power’s all-intrusive claims.

So it is, I would contend, at the international level. Smaller states (like Singapore) are naturally most enthusiastic about the rule of law, but even larger ones (like China) are progressively seeing that it is in their enlightened self-interest to embrace such a world order, much as the United States did following the conclusion of the Second World War — a moment when its relative power was, arguably, at its greatest.

2      History

Turning to history, Professor Anghie rightly notes the incompleteness of my account of the achievements and failures of Asian states in their efforts to engage with international law. I concede that I do not do this rich history justice — though blame surely lies also with EJIL’s word limit. Some of this deficiency will be remedied in a forthcoming Handbook of International Law in Asia and the Pacific that I am editing for Oxford University Press together with Judge Hisashi Owada and Professor Ben Saul (and to which Professor Anghie is contributing a chapter).

As Judge Jin-Hyun Paik emphasizes, that history continues. It would be a mistake, for example, to assume that Asian states’ attitudes towards international law are static. As he shows in his own survey of international adjudication, those attitudes are clearly evolving. From relative non-engagement with the Permanent Court of International Justice, the movement has been from infrequent respondents to occasional applicants before the International Court of Justice and other tribunals, with important recent instances of Asian states consenting to litigate sovereignty disputes. Though Asian states remain the least likely to accept compulsory jurisdiction or appear in international tribunals, he demonstrates that the willingness to do both is increasing.

3      Method

The article attempts to downplay any grand claims about “Asia” and “international law” that might be inferred from the title. Nevertheless, such work is intended to be examined for its method as well as its conclusions.

Professor Chimni rightly warns of the dangers of cultural essentialism, geographical determinism, and materialist reductionism. (He generously gives me a pass on a fourth pitfall of orientalism.) His point that Asian states’ economic interactions play an important role in constructing their world view is well taken. He also emphasizes that reluctance to sign onto a given international regime need not imply opposition to its objectives, giving the example of Asian states’ treatment of millions of refugees.

Professor Robert McCorquodale queries the use of “Asia” as a category, in particular the relative absence of the Pacific and the Middle East from my analysis. Judge Paik also stresses the diversity of Asia, highlighting in particular the relative openness of East Asia to international cooperation. These are fair observations and the attitudes of the various sub-regions of Asia would bear further study. (For my own views on Southeast Asia, see this recent work on ASEAN.) Professor McCorquodale also suggests that the role of non-state actors might be a fertile line of inquiry — particularly the role played by business entities, given the relative willingness of Asian states to accept binding agreements in the area of trade and investment.

At a more fundamental level, Judge Xue queries whether the premise of the article — that Asian states benefit most from a world ordered by law — is properly made out. Claiming that the economic success of Asian states is due to international law and institutions may be a bit “self-conscious of the discipline”. She is surely correct that internal as well as external factors were responsible, but I would still argue that international law was necessary if not sufficient for the prosperity and stability that Asia now enjoys.

4      Futures

Judge Xue concludes that, while Asia should not be expected to carry on the role of “rule-taker”, there is some way to go before it becomes a meaningful “rule-maker”. In particular, she questions my declinist account of the United States, writing that it “is and will continue to be the dominant Power in the region.” On the issue of whether international law will become more representative and more democratic, she proposes that this challenge needs to be directed at the West as much as at the East.

On this last point, Professor Benvenisti suggests that President-elect Trump (who takes office shortly after this post goes live), embraces a conservative view of international law that is consistent with the Five Principles embraced by China and India for half a century, recently reaffirmed in the joint declaration by Russia and China. I suspect he is correct, but President Trump has routinely contradicted previously articulated positions and I am wary of joining the ranks of those who predicted what he would do and failed.

Though it is often invoked, there is no Chinese curse that means: “May you live in interesting times”. Provenance notwithstanding, there is no doubt that the coming years will be interesting. It is my hope that my article and this symposium will encourage greater analysis of how power is shaped by law and vice-versa, how history influences the present, and how research can better prepare us for whatever the future may bring.

Thank you, once again, to the organizers of this symposium and to Judges Xue and Paik, and Professors Anghie, Benvenisti, Chimni, and McCorquodale for taking the time to offer their thoughtful and thought-provoking responses. This is clearly not the end of this conversation, or even the beginning of the end. But it is, perhaps, the end of the beginning.

The UK Supreme Court’s Blockbuster Decision in Belhaj

ejiltalk.org - Wed, 01/18/2017 - 16:55

The UK Supreme Court has resoundingly rejected the contention that state immunity and/or foreign act of state barred courts from hearing claims of UK complicity in abduction and torture. The judgment in Belhaj & Rahmatullah (No 1) v Straw & Ors [2017] UKSC 3 – just one of three “blockbuster” decisions handed down in yesterday’s bonanza- has finally cleared the way for these important claims to be tried.

The facts of the cases are well known (and are set out in more detail in this post on the Court of Appeal’s judgment). In short, Abdul-Hakim Belhaj and his pregnant wife allege that UK security services cooperated with US and Libyan authorities in their unlawful rendition in 2004 and their subsequent detention and torture. Mr Rahmatullah, a Pakistani national, was detained by UK forces in Iraq, also in 2004, before being transferred to the custody of US forces, at whose hands he was allegedly tortured. Mr Belhaj was detained by the Gaddafi regime for six years; Mr Rahmatullah was held at Bagram air base for ten years.

There are many striking features of the Supreme Court’s judgment. These include Lord Sumption’s careful discussion of jus cogens; the surprisingly short shrift given to the government’s argument based on state immunity; and the strident dismissal of the argument that UK courts should refrain from adjudicating on foreign acts of state where doing so would embarrass the UK in its international relations (per Lord Mance at [11](iv)(d)]; Lord Neuberger at [134]; and Lord Sumption at [241]). In these brief initial comments, I focus on the doctrine of foreign act of state, which was characterised differently by each of Lord Mance, Lord Sumption and Lord Neuberger (notwithstanding that they agreed in the result).

To the extent that the opinions differ on foreign act of state, it is Lord Neuberger’s view that binds, since he attracted Lord Wilson, Lady Hale and Lord Clarke to his side. So, a majority, but by a hair’s breadth: in their brief, almost parenthetical opinion, Lady Hale and Lord Clarke described Lord Mance and Lord Neuberger as having reached “the same conclusion… for essentially the same reasons”. That word, “essentially”, is capable of masking quite a lot, as the discussion which follows will show.

Lord Mance and Lord Neuberger identified three types of foreign act of state:

  • The rule of private international law that a foreign state’s legislation is normally treated as valid insofar as it affects movable or immovable property within the foreign state’s jurisdiction;
  • The rule that a domestic court will not normally question the validity of a foreign governmental act in respect of property within the foreign state’s jurisdiction (both Lord Mance and Lord Neuberger expressed reservations as to the existence of this second rule. If it did exist, the rule “is and should be limited to acts relating to property within the jurisdiction of the foreign state” (per Lord Mance) [§11(iv)(a)]);
  • The rule of non-justiciability or judicial abstention whereby a domestic court will not adjudicate upon sovereign acts committed by a foreign state abroad (per Lord Mance at [40]; per Lord Neuberger at [123]).

The third rule was the critical issue in this case, and it was here that the differences between Lord Mance and Lord Neuberger were most pronounced.

For Lord Mance, detention in the context of an armed conflict overseas could in some circumstances constitute a foreign act of state. However, the arbitrary rendition, detention and severe mistreatment at issue in these cases “goes far beyond any conduct previously recognised as requiring judicial abstention” (at [97]). In view of “the nature and seriousness of the infringements of individual fundamental rights involved”, the fact that the appellants were allegedly complicit, rather than the prime actors, in the conduct alleged, did not constitute a basis on which domestic courts should abstain from adjudicating (per Lord Mance at [102]).

For Lord Neuberger, the acts alleged in these cases would never have been within the scope of the third rule. In contrast to cases requiring judicial abstention, here there was “no suggestion that there was some sort of formal or high-level agreement or treaty between any of the states involved which governed the cooperation between the executives of the various countries concerned” (at [167]). But even if the third rule had applied, that rule was subject to a public policy exception. Lord Neuberger did not define the scope of that exception, but noted that “any treatment which amounts to a breach of jus cogens or peremptory norms would almost always fall within [it]” (at [168]). While Lord Neuberger described Lord Sumption’s analysis of jus cogens as “impressive” (at [168]), he fell short of a full-throated endorsement. In Lord Neuberger’s view, the domestic origin of foreign act of state rendered it unnecessary for claimants to show that their treatment contravened a jus cogens norm to fall within the public policy exception.

In contrast to Lord Mance and Lord Neuberger, Lord Sumption considered the doctrine of foreign act of state to be comprised of two principles (at [227]):

  1. The first principle, which he labelled “municipal law act of state”, comprises the first two types of foreign act of state identified by Lord Mance, and it is necessarily limited territorially (at [235]-[236]). Municipal law act of state is the rule that “English courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts under its own law” (at [228]). Unlike Lord Mance and Lord Neuberger, Lord Sumption considered that “personal injury and other wrongs against the person inflicted by the agents of a foreign state are as much capable of being acts of state as the destruction or detention of property” (at [231]). This rule (subject to any exceptions) applies to the acts of Malaysia and Thailand against Mr Belhaj and Mrs Boudchar insofar as those acts were taken within their respective jurisdictions (at [233]).
  2. The second principle, which Lord Sumption labelled “international law act of state”, broadly corresponds to Lord Mance’s third type of foreign act of state. It is the rule that “English courts will not adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states” (at [234]). This principle applies “wherever the relevant act of the foreign state occurs” and is not territorially limited (at [237]). This rule (subject to any exceptions) applies to the acts alleged against US officials in the present cases (at [238]).

For Lord Sumption, both limbs of the doctrine were capable of application “only where the invalidity or unlawfulness of the state’s sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it” (at [240]). In the present case, the unlawfulness of the acts alleged against foreign states was “essential to the pleaded causes of action” (at [242]). Prima facie, then, the doctrine applied.

However, Lord Sumption held that there was an exception. Neither limb of the doctrine could apply where it “would be contrary to the fundamental requirements of justice administered by an English court” (at [262]). This exception covered allegations of torture and complicity in torture (at [268]), and detention without legal basis or recourse to the courts (at [272], [278]). However, it does not necessarily apply to ill-treatment falling short of torture, which does not have the same claim to jus cogens status (at [280]).

In view of their conclusion that the foreign act of state doctrine did not apply to these claims, it was not necessary for Lord Mance or Lord Neuberger to decide whether that doctrine was inconsistent with Article 6 ECHR (per Lord Mance at [11(v)(b)]; Lord Neuberger did not expressly say as much, but it follows from his reasoning).

However, Lord Sumption’s conclusion that ill-treatment falling short of torture was outside the scope of the exception to foreign act of state, meant that the question of the compatibility of that doctrine with Article 6 did arise. Nevertheless, he quickly rejected that contention: applying Roche v United Kingdom (2005) 42 EHRR 30 Lord Sumption held that foreign act of state was “a rule of substantive law which operates as a limitation on the subject-matter jurisdiction of the English court” (at [282]).

The unanimous rejection of foreign act of state in Belhaj & Rahmatullah (No 1) makes the related judgment on Crown act of state in Rahmatullah (No 2) all the more surprising. In that judgment, which was also handed down yesterday, a different panel of seven judges unanimously held that the doctrine of Crown act of state is in principle available as a defence to tort claims arising from the detention and transfer of the claimants by UK forces in Iraq and Afghanistan. The reasoning in that judgment—which is in many respects unsatisfactory—I will leave for another day. 

Nevertheless, it is 12 years since Mr Belhaj, Mrs Boudchar and Mr Rahmatullah allege they were detained, abducted and tortured. If UK secret services, and/or the then foreign secretary, were complicit in those abuses, it is high time that they were hauled before the courts. Yesterday’s judgment brings that outcome closer. To that extent at least, it should be applauded.

Asian States’ Participation in International Adjudication: Comments

ejiltalk.org - Wed, 01/18/2017 - 10:00

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting on Monday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Asia is a vast region and encompasses more States and a larger population than any other region in the world. Asia also presents historical, linguistic, cultural, and religious diversity, as well as wide-ranging stages of political evolution and economic development. Asia indeed defies an easy definition. It is therefore difficult to speak, in a general term, of Asia with respect to any subject. International law and institutions are no exception. There is a wide variation in Asian States’ engagement with international law and institutions. For example, many States in East Asia are actively participate in various international regimes and attach great importance to international cooperation. On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States. It should also be pointed out that Asian States’ attitudes towards international law and institutions are not static but evolving. In this comment, I will confine myself to Asian States’ participation in international adjudication, which may be considered one of the most revealing yardsticks to measure their attitudes toward international law and institutions.

Much has been said about the Asian States’ passivity towards international law and institutions. Various explanations have been given for such reticence, ranging from the Asian culture and tradition which prefer virtue and harmony to law and adjudication to the prevailing distrust of the law and institutions which were essentially a product of the Western civilization (and thus perceived to be biased in favour of the West) and in whose creation and developments Asian states did not play significant roles.

At least in terms of the number of disputes submitted to international adjudication and their political and legal context, it would be difficult to characterize the attitude of Asian States toward international law and adjudication as positive. For example, there had been only three cases involving Asian states that had been referred to the Permanent Court of International Justice during its entire period of activities (S.S. Wimbledon, 1923; Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1928; Interpretation of the Statute of the Memel Territory, 1932). The picture was not much different in the subsequent early period of the International Court of Justice (ICJ), during which many Asian States obtained independence mostly from the Western colonial powers. Iran was the first Asian State to appear before the ICJ in 1952 in the Anglo-Iranian Oil Co. case but Iran was taken to the Court by the United Kingdom. The Court eventually found that it lacked jurisdiction to entertain the dispute. Then India was the next Asian State to appear before the Court in the case concerning Right of Passage over Indian Territory in 1955. However, India was also taken to the Court by Portugal. In 1959, Cambodia instituted the proceedings against Thailand in the Temple of Preah Vihear case, and that was the first case involving the two Asian States before the ICJ. Subsequently in the 1970s, India and Pakistan were involved in the two cases before the Court (Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), 1972; Case concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973). In the 1980s, Iran was involved in two disputes with the United States before the ICJ. However, those instances were rather exceptions than the rules (US Dipolmatic and Consular Staff in Teheran (USA v. Iran), 1980; Aerial Incident of 3 July 1988 (Iran v. USA), 1989-1996 (discontinuance)).

However, significant changes have taken place to the passive attitude of Asian States over the past two decades. Now Asian states are more willing to resort to international legal approach to the problems or disputes they are involved in. Their confidence in international law and institutions is clearly reflected in the number and nature of disputes that have been submitted to international adjudication in the past two decades or so. During this period, thirteen cases involving Asian States have been submitted to the International Court of Justice (Certain Phosphate Lands in Nauru (Nauru v. Australia), 1992; Aerial Incident of 10 August 1999 (India v. Pakistan), 2000; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001;Sovereignty over Pulau Litigan and Pulau Sipadan (Indonsia/Malyasia), 2002; Sovereignty over Pedra Branca, Middle Rocks and South Ledge (Malaysia/Singapore), 2008; Request for Interpretation of the Judgment in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), 2011; Whaling in the Antarctic (Australia v. Japan), 2014; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. UK; Marshall Islands v. India; Marshall Islands v. Pakistan), 2016; Certain Iranian Assets (Iran v. USA) (pending)) and another seven cases to the International Tribunal for the Law of the Sea (ITLOS), a specialized court created in 1996 to deal with the law of the sea disputes (Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan), provisional measures; Case concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), provisional measures; Hoshinmaru case (Japan v. Russian Federation), prompt release; Tomimaru case (Japan v. Russian Federation), prompt release; Case concerning the Maritime Boundary Delimitation in the Bay of Bengal (Bangladesh/Myanmar), 2012; Enrica Lexie case (Italy v. India), 2015). Several other cases have also been submitted to arbitral tribunals, the latest example of which is the South China Sea Arbitration between Philippines and China.

Apart from the number of the cases, their nature also demands some attention. Among those twenty cases, three cases brought before the ICJ concerned the sovereignty disputes; namely, Sovereignty over Pulau Litigan and Pulau Sipadan between Indonesia and Malaysia, Sovereignty over Pedra Branca, Middle Rocks and South Ledge between Malaysia and Singapore, and Maritime Delimitation and Territorial Questions between Qatar and Bahrain. One case brought before the ITLOS was concerned with maritime boundary delimitation. In fact, the case concerning the maritime boundary delimitation between Bangladesh and Myanmar in the Bay of Bengal was the first East Asian maritime delimitation case that has been submitted to international adjudication. This has been a rather remarkable development, as sovereignty or boundary disputes are considered to be a very sensitive matter and of grave importance, and as the East Asian States were perceived to guard their sovereignty very dearly and not to leave such matters with the third party binding settlement. In addition, disputes concerning the use of force or nuclear disarmament, politically sensitive matters, have also been referred to adjudication.

It is also noteworthy that unlike in the past it was Asian States that instituted the proceedings against mostly non-Asian States. Those cases include: before the ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Oil Platforms (Iran v. USA), Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Island v. UK), and the latest Certain Iranian Assets (Iran v. USA); before the ITLOS, Tomimaru case (Japan v. Russia) and Hoshinmaru case (Japan v. Russia).

The new activism of Asian States may be understood in the broader context of fundamental changes that have taken place to international relations. The end of the Cold War, globalization and interdependence, and more aggressive pursuit of national interests may have influenced their perspectives on international law and international adjudication. Boosted by the successful economic development and political democratization, many States in Asia are now more confident about themselves and more readily accept the rule of law not only as a guiding principle for domestic governance but also as an important instrument of foreign policy. Many relatively smaller or weaker States now begin to see the utility of international law and adjudication as a means to protect their interests against their bigger or stronger neighbours.

In addition, it should be pointed out that Asian States are no longer outsiders in the international law-making or law-applying process but have become major stakeholders in the international community. While they suffered from inexperience and the lack of expertise in the early periods of their participation in international institutions, many Asian States have now overcome such initial difficulties. Commensurate with their growing economic and political power, they have increased their voice in the international decision-making process and have considerably overcome the suspicion and mistrust they used to hold toward the international legal system.

The supposed cultural factor in explaining the Asian or East Asian reluctance toward international law or adjudication should not be exaggerated. While Confucian cultural legacy, which does not favour the third party binding settlement of disputes on the basis of law, lingers in many parts of Asia, it is almost universal that amicable solution through negotiation or mediation is preferred to, and should thus be sought before, the recourse to adjudication. There is nothing particularly Asian about this general disinclination of adjudication.

What really matters is, therefore, whether Asian States would consider the recourse to international law and adjudication as serving their national interests and helping to preserve their values. The answer to this question in turn depends, to a large extent, on their perception of the law to be applied and the institutions to interpret and apply such law. Given the current level of Asian participation in the law-making and law-applying process, one can be cautiously optimistic about its more active participation in and contribution to international adjudication in the years to come.

A Trio of Blockbuster Judgments from the UK Supreme Court

ejiltalk.org - Tue, 01/17/2017 - 13:18

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

First, like the judges of the High Court and the Court of Appeal before them, the justices of the Supreme Court generally thought that, unlike in international armed conflicts, in non-international armed conflicts IHL does NOT positively authorize detention/deprivation of liberty. Second, unlike the lower courts, the justices of the Supreme Court were not prepared to make an explicit holding to that effect, probably because they saw the matter as evolving and that a customary rule authorizing detention could eventually emerge, and because they could resolve the case on other grounds. Third, those other grounds were detention authority provided by the resolutions of the Security Council as applied to a NIAC. Lord Sumption essentially chose to expand by analogy the European Court’s Hassan judgment, which was expressly confined to IACs and in which the Court held that IHL-authorized detention was not incompatible with Article 5(1) ECHR, to detention in NIACs as well, but ONLY when positive authority for detention existed under some other part of international law, like a UNSC resolution. Here the chief difficulty that the Supreme Court majority has is not only in the express terms of Hassan, but in the approach taken to the interpretation of UNSC resolutions by the ECtHR in Al-Jedda and subsequent cases dealing with Article 103 of the Charter.

As I understand it, Lord Sumption’s chain of reasoning seems to be as follows:

(1) The ECtHR was prepared in Hassan to depart from the strict language of Article 5(1) and carve out an exception for preventive detention authorized by IHL in IACs;

(2) There is no good reason why the same approach couldn’t be applied when detention is authorized by some other norm of international law, like a UNSC resolution;

(3) The UNSC resolutions in this case can be interpreted as authorizing detention in Iraq and Afghanistan, through the use of the ‘all necessary means/measures’ formula;

(4) The approach of the ECtHR in Al-Jedda can be distinguished because it was about whether the UK had an obligation to detain, rather than simply an authorization, since this was key for the (in)operation of Article 103 of the UN Charter; that approach should also not be followed because Article 5(1) does not reflect a universal human rights standard but a regional one, since the ICCPR uses a much looser arbitrariness formula, and because the interpretation of UNSC resolutions should also be universal, i.e. they should mean the same thing for all states;

(5) Accordingly, the majority does a Hassan-like carveout from Article 5(1) for detention in NIACs, but ONLY when such detention is authorized by the UNSC.

To be honest, I find point (4) rather weak – or at least very open to challenge – mainly for the reasons given by Lord Reed in his dissent. Moreover the majority does not provide a rigorous doctrinal explanation of the carveout it is doing from Article 5(1) – remember that this is not being done through the usual suspects, such as lex specialis and Article 103. In fact I’d say that the majority’s holding is directly contrary to the ECtHR’s judgment in Al-Jedda which expressly found a violation of Article 5(1), while in Hassan the Court did not appear to have departed from Al-Jedda. It thus seems inevitable that this case will find its epilogue in Strasbourg. But even more importantly, if I was the UK government I would not feel too comfortable with the win in this case, because of the very specific chain of reasoning on which it was predicated. The skepticism of the justices on the general point about whether IHL authorizes detention in NIACs means that whenever the UK or any other European state intervenes abroad in a NIAC in which the UNSC did not provide authorization (and that will be most of them, as e.g. in Syria), the UK would still need some further domestic or international legal basis in order to detain (and there again I’d press the derogation point).

In any event, we will have further commentary soon.

Clarity and Ambivalence: Asia and International Law

ejiltalk.org - Tue, 01/17/2017 - 10:00

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting yesterday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

One of the important developments in international law in the past few decades has been the increased understanding of approaches to it that do not arise from Western industrialised states. The work of scholars such as Anthony Angie, Lauri Mälksoo, Sundhya Pahuja, Balakrishnan Rajagopal, and others have been important in this regard. Therefore, the article by Simon Chesterman on ‘Asia’s Ambivalence about International Law and International Institutions: Past, Present and Future’ in the EJIL  is a timely engagement with an important aspect of this understanding.

Simon establishes the main issues very well and clearly. A combination of colonialism, treaty-making, recognition and armed conflict is shown to have created an ambivalence by key Asian states towards international law and international institutions. He offers a helpful and nuanced analysis without creating a false dichotomy between ‘Western’ and ‘Asian’ views. It is a pity that his article must have been finalised before 25 June 2016 when the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law. This Declaration has been seen as being a rejection of a view that these two states have a problematic relationship with international law and an assertion of an approach based on state sovereignty and non-intervention, as well showing broader differences on the international constitutional order: see here.

My main hesitation about this valuable article is the definition of ‘Asia’. Simon defines it as being ‘the 53 members of the Asia-Pacific Group at the UN’. However, he ignores the Pacific members (such as Fiji and Papua New Guinea) of this grouping and the Middle Eastern members (such as Iraq, Lebanon and Saudi Arabia), which together comprise nearly 45% of this group. This calls into question some of his reliance on figures and tables about Asia-Pacific participation in international institutions. For example, in the Pacific sub-region, some of the reluctance to ratify treaties and engage in international institutions may be due to their own institutional and human capacity. It would also have been interesting to learn more about the approaches of Singapore and Malaysia, which are economic powers in the region, and have appeared to take a very formalist approach to international law.

Simon’s analysis that the resistance to participation and representation by Asian states in international institutions, may simply be a ‘rational response… they take the benefits of the network of institutions and obligations without submitting themselves to its forms and procedures’. His concern is that this situation is not sustainable and suggests that a ‘convergence’ of approaches may be the way forward.

He also thinks that the Asian views may be consistent, at least in the area of human rights, within a pluralist approach to international law, rather than being a challenge to international law. I agree that global legal pluralism may be an appropriate methodology to consider this apparent diversity of approaches. However, what is missing in the article is an acknowledgement of the role of non-state actors, especially corporations, in the responses of states in the region to international law, which also forms part of this pluralist approach. While he notes the ‘relative acceptability of changes that promote commercial activity’ by Asian states, this cannot be ignored in the sweep of developments in international legal approaches in the region. Indeed, the acceptance by Brunei, Japan, Malaysia, Singapore and Vietnam of the Trans-Pacific Partnership on Trade (although threatened by Donald Trump) is indicative of a willingness to enter relatively restrictive agreements (in terms of state sovereignty) in trade and investment areas. Much of this pressure to agree to such restrictions is pressed by corporations as part of their requirement for an increased rule of law for foreign direct investment. This may also prove to be a factor in any settlement of the South China Sea situation, as corporations want clarity of maritime boundaries for their own investment purposes.

Simon Chesterman has set out a broad and insightful picture of the approaches by key Asian states to international law and international institutions. This is valuable and I hope it encourages the publication of further research which delves into other sub-regions and into specific aspects of international law.

Will the Asian Vision of International Law become Dominant in 2017?

ejiltalk.org - Mon, 01/16/2017 - 13:00

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

As Chesterman notes, if the Asian states share common ground, it is the international-law-wary Five Principles of Peaceful Coexistence that include “mutual respect for each other’s territorial integrity and sovereignty” and “mutual non-interference in each other’s internal affairs.” Chesterman offers the important assessment that these principles might offer the grounding for “a substantive impact of the rise of Asian powers” which he interprets as “embody[ing] a very traditional notion of sovereignty.” But this, for Chesterman, is only a “fairly modest” challenge to “the modern international legal order.”

The Five Principles of Peaceful Coexistence were first enunciated during in 1954 by China and India and at the time reflected the Cold War era sensitivities of key but still under-developed third world countries. As such, Chesterman is right to suggest that they could serve as the lowest common denominator for a diverse but increasingly powerful continent. But whether that common denominator could encourage international cooperation is a different question altogether that Chesterman rightly leaves open. It is significant that the same Five Principles were made centre stage in the June 2016 joint “Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law.” While this declaration might be taken to reflect the contemporary Asian vision for international law, it is invoked by these two powers as an alternative to the Western one by offering a vision for an old-new global rule of law international law that eschews among others:

“any interference by States in the internal affairs of other States with the aim of forging change of legitimate governments [and] extraterritorial application of national law by States not in conformity with international law.”

All indications suggest that the new US Administration led by President Trump will subscribe to these principles. The Asian Century might then coalesce around a common vision of international law, but one that is less likely to deepen international cooperation, embrace democratic accountability in global governance or commit to protecting human rights and promoting global welfare.

Regardless of previous and contemporary weariness among Asian states toward international law, it is inevitable that reliance by Asian governments on the tools and institutions of international law will increase in ways that reflect their changing needs and capabilities. The prospects for the future are not necessarily dim for constituencies in and outside Asia. It was ultimately China’s joining the US in their joint endorsement of the Paris climate change agreement that led to its adoption. In the context of water management, China has been moving from the position of an aloof upper riparian to that of an engaged neighbor. As Particia Wouter noted, while in 1997 China voted against the adoption of the UN Convention on the Law of the Non-navigational Uses of International Watercourses, it recently sought to address its heavy reliance on its diminishing water resources by engaging with its riparian neighbors on the basis of:

“dialogue, consultation and peaceful negotiations,… crafted around the notion of restricted territorial sovereignty – a view that has been expressed both in legal scholarship and confirmed in foreign policy statements under China’s new leadership.”

As examples Wouter refers to the Sino-Kazakhstan Joint Declaration on Further Deepening Comprehensive Strategic Partnership, and to a memorandum of understanding between the respective Chinese and Indian Ministries of Water Resources concerning the “Strengthening Cooperation on Trans-border Rivers,” both concluded in 2013. In that MoU and also in the China-India Joint Statement, India recognized its “deep appreciation” for China’s commitment, as the upper riparian, to make available data on and emergency management of the trans-border rivers. The two sides also agreed “to further strengthen cooperation and … work together on provision of flood-season hydrological data and emergency management.” Ruby Moynihan and Bjørn-Oliver Magsig note that “few experts would have considered it possible for China and India to ever agree on sharing information regarding the state of their glaciers” and regard that MoU as a “trust-building” measure that “is a valid step towards a more regional approach to freshwater interaction.”

Chesterman’s piece was completed in January 2016, and as we all know, 2016 was not just any other year. In January 2016 Chesterman thought that “the likelihood of a radically different approach to global governance seems low,” although he acknowledged that “the traditional view of sovereignty espoused by many Asian states may slow the expansion of human rights and other norms, although it does not look set to reverse them completely.” Let us hope that Chesterman is correct in this prediction.

Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! mini-symposium

ejiltalk.org - Mon, 01/16/2017 - 06:00

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application.

Part two assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant. It is, but history offers at best a partial explanation of the current situation. Ongoing ambivalence towards international law and institutions can also be attributed to the diversity of the continent, power disparities among its member states, and the absence of “push” factors driving greater integration or organization.

Finally, part three attempts to project possible future developments based on three different scenarios. These are referred to as status quo, divergence, and convergence. The article argues that the status quo — in which the most populous and (increasingly) powerful region on the planet has the least stake in its rules and governance structures — is unsustainable. A crucial element of that argument is that the rise of Asia is today complemented by the decline of the West, in particular a decline in the willingness and the ability of the United States to play its role as both a shining “city upon a hill“ and an enforcer of global norms.

Arguments about Asia’s rise and America’s decline are hardly new. Yet the current assertiveness of the Chinese government with respect to its perceived interests in the South China Sea — including the recent deployment of its only aircraft carrier — may herald a strategic inflection in international relations, with inevitable consequences for the form and the content of international law. Still more striking was the victory of a wildcard candidate in the US presidential election who campaigned on an explicit message of American decline and neo-isolationism, peppered with anti-establishment and illiberal rhetoric, who takes office at the end of this week on 20 January 2017. (The European analogue is, of course, the existential crisis of a plurality of the British public voting to express their own ambivalence about international law and institutions.)

A more nuanced example may be found in the Chinese white paper released last week (11 January 2017) on Asia-Pacific Security Cooperation. The paper reiterates China’s commitment to the Five Principles of Peaceful Coexistence, but also draws a distinction between large states and small ones. Major countries, the white paper notes, should treat the strategic intentions of others “in an objective and rational manner”; small and medium-sized countries, for their part, are enjoined to avoid “tak[ing] sides among big countries.” On the broader question of international law, the paper states that:

“[i]nternational and regional rules should be discussed, formulated and observed by all countries concerned, rather than being dictated by any particular country. Rules of individual countries should not automatically become ‘international rules,’ still less should individual countries be allowed to violate the lawful rights and interests of others under the pretext of ‘rule of law.’”

With regard to the South China Sea issue, China reaffirms in the white paper its commitment to the UN Convention on the Law of the Sea (UNCLOS), but states that disputes over territories and maritime rights should be resolved through “respect[ing] historical facts and seek[ing] a peaceful solution through negotiation and consultation”. Interestingly, the document makes no reference to the infamous nine-dash line, though it does state that China has “indisputable sovereignty over the Nansha [Spratly] Islands and their adjacent waters”. Any effort to “internationalize and judicialize” the South China Sea issue, the paper goes on to say, will “only make it harder to resolve the issue, and endanger regional peace and stability.”

Such developments are, I think, broadly consistent with the argument put forward in my article. The rise of Asia in general and China in particular will see changes in the form and the content of international law — the white paper refers multiple times to a “new model of international relations” — but this will be an adaptation of existing norms and structures to a new reality rather than a rejection of those norms and structures. Evolution, then, rather than revolution.

* * *

Academic writing generally seeks to take the long view. If there is a virtue to a profession sometimes said to exist in an ivory tower, it is that one hopes to offer some perspective beyond what is in the current news cycle — a respite from the relentless presentism of the “new”. I can therefore take no credit for the fact that well after my piece for the current EJIL was completed — and even after this generous symposium had been prepared by Opinio Juris and EJIL:Talk! — there would be such a confluence of genuine news events that resonate with arguments put forward in the article. It is a sad coda that the symposium also follows soon after the passing of one of the truly great international lawyers from Asia — Christopher Weeramantry, a Sri Lankan scholar who served as Vice President of the International Court of Justice.

The full article is available here in draft form, the final version appearing later this month in EJIL. I am enormously grateful to the convenors of this symposium and the distinguished jurists who have agreed to participate. I look forward to their responses, from which I know I will learn much.

Joint Symposium with Opinio Juris: Simon Chesterman’s ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures’

ejiltalk.org - Mon, 01/16/2017 - 05:00

This week we will be jointly hosting a symposium with Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law.

Today, both blogs will feature an opening post by Simon Chesterman. We will then host a post by Eyal Benvenisti, which will be followed by a post on Opinio Juris by Tony Anghie. On Tuesday, EJIL:Talk! will feature a contribution by Robert McCorquodale and Opinio Juris will feature B.S. Chimni’s thoughts. This will be followed on Wednesday with articles by Judge Jin-Hyun Paik (EJIL:Talk!) and Judge Xue Hanqin (Opinio Juris). Finally, on Thursday, Simon Chesterman’s closing remarks will feature on both blogs.

We thank all of those who have contributed to this fascinating symposium.

Practitioners’ Guide to Human Rights Law in Armed Conflict

ejiltalk.org - Sun, 01/15/2017 - 12:00

The questions whether, when and how international human rights law applies to the activities of armed forces during armed conflict have been the subject of much discussion and litigation in the past couple of decades. It is now clear “that the protection offered by human rights conventions does not cease in case of armed conflict . . .” (International Court of Justice, Advisory Opinion on the Israeli Wall in Palestine (2004), para. 106).

However, what has been less clear is when those protections apply, especially when the state concerned is acting outside its territory, and how human rights law is to be applied in armed conflict. With regard to the latter question, one of the key issues is the relationship between human rights law, as it applies in conflict, and international humanitarian law as the law specifically designed for application in conflict. In the literature, and even in the case law, most attention has focussed on the when question (the question of applicability of human rights law) rather than the how question (the method and mode of application of human rights law). However, given that it is undoubtedly the case that there are circumstances when human rights law applies in armed conflict, even extraterritorially, the focus on the former set of questions, has led to an unfortunate lack of guidance as to how to apply (and to think about the application) of human rights law in situations of conflict.

Towards the end of last year, Oxford University Press published the Practitioners’ Guide to Human Rights in Law Armed Conflict (Murray, Akande, Garraway, Hampson, Lubell & Wilmhurst), a book that arises out of a project carried out by Chatham House under the leadership of Elizabeth Wilmhurst. The aim of this book is to provide guidance not only on when human rights law applies in situations of conflict, but, more importantly, on how it is to be applied.  As the Introduction to the book sets out, “The book is concerned primarily with giving guidance to the armed forces for the conduct and preparation of military operations.” (p. 2) However, it should be of assistance to all those who have to think about the application of human rights law in conflict – government officials, lawyers appearing before courts, members of non-governmental organizations and judges.

The book is divided into two parts. The first part (Chapters 1-4) provides an overview of human rights law, when it applies extraterritorially (ch. 3) and its relationship to the law of armed conflict (ch. 4). The second part (Chapters 5-17) provides detailed guidance on how human rights law applies to a range of issues that arise in armed conflict, eg the conduct of hostilities and targeting (ch. 5); weapons (ch. 7); prisoners of war and internment (ch. 8); occupation (ch. 10); and cyber operations (ch. 15).

The key chapters in Part 1 are chapters 3 and 4. As set out in the book’s introduction:

“Chapter 3  . . . explains the approach taken in the book on the important question of the extra-territorial reach of international human rights law. It considers the circumstances in which an individual who is outside the territory of the State will be found to be within its jurisdiction such as to create human rights obligations for the State with respect to that person. The chapter sets out the different categories of extra-territorial jurisdiction that have been found by international and national courts applying human rights law, distinguishing between the those cases where the State has human rights obligations because of its control of a territory on the one hand and, on the other, cases where State agents exercise authority and control over an individual such as to bring the person within the jurisdiction of the State. As with other chapters, Chapter 3 seeks to identify trends in case law and to apply how the underlying rationale for those trends is likely to be applied in future. It emphasises that a finding that human rights law applies extraterritorially does not mean that all of the State’s human rights treaty obligations apply with respect to a particular situation. With the exception of operations within a State’s own territory and situations of occupation, human rights obligations can be ‘divided and tailored’ such that only those human rights obligations relevant to the situation are applicable.

Chapter 4 is key to the understanding of the rest of the book, concerning as it does the relationship between international human rights law and the law of armed conflict. It does not address the huge amount of academic debate about the relationship between these two bodies of law, but identifies key trends in the international case law leading to conclusions relevant to interpreting one body of law in the light of the other, to overcoming conflicting obligations in the two bodies of law and determining how to accommodate them or to give one body of law priority. For the purpose of the specific guidance given in the second part of the book a distinction is made in Chapter 4 . . . between what are termed ‘active hostilities’ and what are termed ‘security operations’. These terms are used whether the armed conflict in question is international or non-international, or a situation of occupation. Once an armed conflict exists, the ‘active hostilities’ framework and the ‘security operations’ framework are used to determine how the law of armed conflict and international human rights law are to be applied in the most appropriate manner, in light of the situation. As chapter 4 explains, the ‘active hostilities’ framework regulates situations in which it can be seen, on the basis of the international human rights decisions, that the law of armed conflict provides the primary legal framework. In so-called ‘security operations’ international human rights law provides the primary framework.

It may be that not every reader of this book will agree with all of the propositions contained in the introductory chapters described above. We nevertheless hope that the reader will persevere to the second part, to see that the approach in Part I can indeed be applied to specific issues of armed conflict in a practical and workable manner. The second part of the book provides practical guidance to the armed forces on the application of international human rights law, taken as appropriate with the law of armed conflict. Chapters 5 to 16 aim to provide practical guidance for the military lawyer, the judge and the practitioner on whether to give one body of law rather than the other the primary role in relation to a number of different topics. For this purpose, the book uses the frameworks of ‘active hostilities’ and ‘security operations’ which are explained above.”

It is worth saying something about the nature of the book because the process by which it was written is unsual, though that may well be one of its main strengths. The book is very much a collaborative product with contributions by a number of people. However, it is not an edited volume, with particular individuals responsible for particular chapters. Although each draft was initially prepared by one person, everyone had input into all the chapters. Again the Introduction says it best:

“The project on which the book is based evolved through a process of discussion among a group of lawyers and practitioners meeting at Chatham House. The draft chapters in Part II were written by Daragh Murray, while Charles Garraway prepared the first draft of chapter 1, and Francoise Hampson did the same in relation to chapter 4. All chapters were then subject to scrutiny and discussion by all of the editors of the book. This was therefore a collegiate exercise. It is often in the nature of such exercises that not every member of the group will agree with every word that is written; this is the case here, particularly in relation to the introductory chapters in the first part of the book. The group was joined from time to time, in relation to the second part of the book, by a representative of government lawyers. No view expressed in this book can be attributed in any way to them. Thanks are due to Ian Park, Visiting Fellow, Harvard Law School, who provided first drafts of two chapters and to Hester Waddams, doctoral researcher, Essex University School of Law, for her careful work on various chapters.”

Finally, Chatham House is hosting a launch of the book this Wednesday at 5.30pm. We hope that many of you will be able to make it.

 

Announcements: New additions to the UN Audiovisual Library of International Law

ejiltalk.org - Sun, 01/15/2017 - 12:00

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 Guide to Practice on Reservations to Treaties” in English and French.

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