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Initial Thoughts on the UK Attorney General’s Self-Defence Speech

ejiltalk.org - Fri, 01/13/2017 - 09:30

This is part of a series of posts discussing the UK Attorney General’s speech on the Modern Law of Self-Defence. See also the other posts in the series by Monica Hakimi and Marko Milanovic.

It’s a pleasure to be able to contribute to this EJIL:Talk! discussion of the speech this week by the UK Attorney General, Jeremy Wright QC MP, on “The Modern Law of Self-Defence”. There are two elements of the speech that strike me as especially notable, and on which I’d like to give my initial thoughts here: the invocation of the so-called ‘unwilling or unable’ test and, particularly, the meaning of ‘imminence’ in relation to anticipatory self-defence.

Unwilling or Unable

The explicit acceptance by the UK of the ‘unwilling or unable’ concept, while brief, is a conspicuous feature of the Attorney General’s speech. The speech roots itself in tradition, with nods to the power and weight of history (stretching right back to the 1795 Jay Treaty, as well as, of course, including the obligatory self-back-patting over Britain’s role in the end of the international slave trade). However, there’s no hiding the novelty of the UK’s acceptance of the hugely controversial notion of responding to armed attacks (actual or imminent) even in cases where there is no ‘host state’ involvement whatsoever, simply on the basis of the unwillingness or inability of the state to prevent a non-state actor attack. The US has espoused the ‘unwilling or unable’ doctrine for years, of course, but the UK has not, at least not explicitly.

Admittedly, the Attorney General’s speech is not the first British invocation of unwilling or unable. In November 2015, David Cameron, then Prime Minister, argued before Parliament that the UK’s action in Syria was justified because “the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq” (as well as making the same assertion, the same week, in a memorandum to the Foreign Affairs Select Committee). However, these statements by the Prime Minister were the first clear articulations of the British acceptance of an unwilling or unable test, and were expressed very specifically in relation to action taken against ISIS in Syria. To my knowledge, the Attorney General’s speech acts as the first unequivocal confirmation that the UK has adopted unwilling or unable in genere. This is not a surprising fact, of course, but – to my mind – it is not a positive one either.

Put simply, and leaving aside policy, like Kevin Jon Heller (and many others) I remain unconvinced that state practice supports an unwilling or unable test in relation to self-defence actions taken against non-state actors (and, by unavoidable extension, the state(s) on/from which they are operating). The question of whether the law should allow for military action in such circumstances is a different matter: one that I will unapologetically sidestep. As the law stands, though, for my money, it does not.

The Meaning of Imminence

Although the Attorney General stated that the focus of his speech was “the law of self-defence, in particular against non-state actors”, and while the brief references to unwilling and unable are striking, the main substantive contribution of the speech, in my view, is its attempt to engage with the concept of imminence in relation to anticipatory action: an issue that, legally, is actually just as relevant to anticipatory action against states sensu stricto as it is to action against non-state actors.

While there are those who maintain that any form of anticipatory action is unlawful unless an armed attack has occurred [see, e.g., Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010), 407-411], it is fair to say that the majority of states and commentators now accept that anticipatory action may, exceptionally, be lawful if an armed attack is imminent. It is well-known that the UK takes this position: as the Attorney General states, “the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the ‘inherent right’…to use force in self-defence against an ‘imminent’ armed attack…”.

The problem with the conclusion – assuming that one accepts it – that international law allows for anticipatory action in self-defence in relation only to imminent attacks is that it tells us very little unless it is clear what is meant by imminence. This problem isn’t new, but it remains crucial: if imminence is the standard, then we need to know what it requires as a matter of law. As I have noted elsewhere [(2015) 2 Journal on the Use of Force and International Law 97, 104-105], there have been relatively few serious attempts to engage with not merely the need for imminence but also the meaning of imminence in relation to anticipatory self-defence. Having said that, one excellent recent consideration of this question appeared in Noam Lubell’s chapter in Marc Weller’s impressive Handbook [‘The Problem of Imminence in an Uncertain World’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP, 2015) 695]; another perspective on the issue can be found in Sir Daniel Bethlehem’s piece in the American Journal of International Law [(2012) 106 AJIL 769] (upon which the Attorney General relies heavily). Nonetheless, there remain comparatively few such attempts to put meat on imminence’s bones.

It is, therefore, commendable (and pleasing) that the Attorney General – on behalf of the UK Government more generally – has attempted to tackle this question explicitly, and to set out a position on it at a level of depth not previously done by the UK (or most other states). However, as Monica Hakimi has already noted in her contribution to this discussion of the Attorney General’s speech, “the devil is very much in the details here.” In essence, in approaching the question of what ‘imminence’ entails, the Attorney General repeats and endorses Sir Daniel’s 5 criteria for the (context-specific) evaluation of whether an attack is imminent. These criteria have been set out and discussed in both Monica’s post and that of Marko Milanovic, so I won’t repeat them again here.

Nonetheless, I will say that I agree with Marko that the restatement of these criteria does not meaningfully break new ground (at least in terms of the argument made, irrespective of whether one accepts it), and that I concur with both Monica and Marko that the criteria are unclear and open to interpretation (when has it ever been otherwise when it comes to interpretations of ad bellum standards?). In particular, the Bethlehem criteria potentially allow for the use of force against threats that are temporally remote, especially if the effects of the threat materialising would be significant (again, as discussed by Monica Hakimi). That seems rather too open-ended to me. Moreover, I find the Attorney General’s restatement of another claim made by Sir Daniel in relation to imminence in his AJIL piece especially troubling:

“[t]he absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”

The Attorney General doesn’t merely repeat this statement, he is explicit that it both “reflects and draws upon what has been a settled position of successive British Governments” and “must be right”.

Personally, I think the Wright/Bethlehem position here goes further than other recent notable formulations of imminence (such as Lubell’s notion that the attack needs to be “specific and identifiable” [supra, 702], or the statement of the Georgia Commission that there must be “an objectively verifiable, concretely imminent attack” [Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, vol I (2008) 254]). I find it difficult to reconcile the need for a specific, identifiable and concrete imminent attack with the argument that all that is required is a general finding that there will be an imminent attack of some kind, somewhere. As a policy matter, for me, the UK’s understanding of imminence as presented by the Attorney General allows for too much eye-of-the-beholder discretion and, thus, is open to abuse. And, as a legal matter, I’m not at all sure such a reading of imminence is supported by state practice (other than by the usual suspects that the Attorney General identifies – the US, Canada, Australia and New Zealand – and a handful of others). This, thus, feels to me more a statement of what the UK would like imminence to mean, not what it actually means.

Those who take a traditional position on the law governing self-defence (sometimes, somewhat reductively, called ‘restrictionists’) may well applaud the reaffirmation by the Attorney General of the UK’s long-maintained view that ‘non-imminent’/pre-emptive self-defence is unlawful. I certainly do. But, in practice, the implications of this position are contingent on the adopted understanding of imminence. The Attorney General is very careful to state that the UK’s “approach does not…in any way dispense with the concept of imminence.” However, it is worth recalling that the infamous US National Security Strategy of 2002 didn’t either, at least terminologically. While imminence was to all intents and purposes abandoned by the US’s ‘Bush Doctrine’, the 2002 National Security Strategy actually argued that the US “must adapt the concept of imminent threat”: the US didn’t claim that imminence wasn’t the standard, it just interpreted it in a way that went beyond all recognition.

While the interpretation of imminence presented by the Attorney General – based on Sir Daniel’s formulation – obviously doesn’t come close to the unrestricted credibility-bypass of the Bush Doctrine, and while I’m pleased that a genuine effort has been made by the UK Government to spell out what it sees imminence as entailing, I nonetheless have concerns about the wide scope of interpretation that it allows, especially in the context of ‘imminent’ attacks that cannot be pinpointed, even loosely, to a specific time or target.

What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

ejiltalk.org - Thu, 01/12/2017 - 13:00

Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

The UK’s Most Recent Volley on Defensive Force

ejiltalk.org - Thu, 01/12/2017 - 08:30

The legal position that Attorney General Wright presented yesterday is similar to the one that the United States has advanced in recent years. Here’s what I take to be the core elements of the UK claim:

  • The use of force is sometimes permissible to defend against an imminent attack. For an attack to be imminent, the threat must actually be operational: “It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.”
  • The attack’s imminence is part of why defensive force is necessary. But imminence alone does not make it necessary. For defensive force to be necessary, other options for defending against the anticipated attack, including law enforcement options, must be inadequate.
  • Defensive force is permitted against an imminent attack, even if the perpetrators are not state agents. Where non-state actors are involved, the relevant inquiry is whether the attack is being planned in another state that is unable or unwilling to prevent it.

I have three initial reactions to Wright’s speech. First, I applaud him for articulating an official UK position on this area of international law. The United States has, of course, pushed hard to advance novel legal positions to justify its counterterrorism operations. But other states have repeatedly responded to the U.S. claims and practice with silence, at least publicly. That dynamic undercuts the law’s (perceived or actual) relevance. International law can’t adequately serve its functions if states stop using it to engage with one another and communicate their expectations—and to do so even, perhaps especially, when they disagree. So, I would encourage other states to follow Wright’s lead and be more forthright about their own legal positions on the contours of the right to use defensive force.

Second, I think the devil is very much in the details here—in the application of the UK’s position to concrete cases. Drawing on Sir Daniel Bethlehem’s piece in the American Journal of International Law [(2012) 106 AJIL 769], Wright list several factors that might be relevant to determining whether an attack is imminent and grounds for the use of defensive force. These factors include:

  1. The nature and immediacy of the threat;
  2. The probability of an attack;
  3. Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  4. The likely scale and damage of the anticipated attack; and
  5. The likelihood that there will be other opportunities to take effective, less injurious action to defend against the attack.

It is not clear how these factors relate to one another, or how much weight any particular one carries. Take the third factor—that an anticipated attack is part of a pattern of armed activity. If this factor is treated as uniquely relevant or weighty, then the UK’s position might not be especially novel. Under the so-called “pinprick” or “accumulation of events” theory that many international lawyers already endorse, multiple small-scale attacks can be considered collectively for purposes of the right to respond with defensive force. Thus, an anticipatory operation might easily be characterized as responsive—not as preventing a future attack but as responding to the ones that have already been committed.

But now look at the fourth and fifth factors. In the context of weapons of mass destruction, these factors might justify even very early strikes, like the reported attack by Israel on a partially constructed nuclear reactor in Syria in 2007. If Syria developed nuclear weapons and used them against Israel, Israel would undoubtedly suffer enormous damage (factor 4). And the most effective, least injurious way for Israel to defend against that possibility might have been for it to act early, before Syria actually developed nuclear weapons (factor 5). Standing alone, then, these factors for assessing imminence are potentially expansive. The question is how and to what extent they are limited either by other factors or by the claim that any anticipatory action is impermissible unless the threat is operational. More clarity on that question would be extremely useful to defining the legal constraints on anticipatory actions.

Finally, Wright’s speech might contain a clue about the UK’s position on the application of international human rights law (IHRL) and international humanitarian law (IHL) in this context. As close observers know, the UK government has been somewhat cagey on this question. Here’s what I take to be the relevant text in Wright’s speech:

“Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror. When we take such action, we must do so in accordance with international law including international humanitarian law.”

The “last resort” language sounds in IHRL. But notice that Wright specifically referenced IHL and not IHRL. Reading between the lines, I’d say that he is hedging his bets but ultimately suggesting that, when the United Kingdom uses force in self-defense, IHRL either does not apply or is defined by IHL. That view of IHRL would be contentious in at least some cases in which it might be applied. (It’s worth noting that, although Wright says in the above-quoted text that lethal action is permissible only when “there is no other option,” he elsewhere uses slightly looser language—saying that the relevant standard is whether defensive action is “the only feasible means to effectively disrupt [the] attacks.”)

The Modern Law of Self-Defence

ejiltalk.org - Wed, 01/11/2017 - 17:55

Text of the speech delivered this evening by United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP, at the International Institute for Strategic Studies, London on “The Modern Law of Self-Defence”:

Introduction

Thank you to the International Institute for Strategic Studies for hosting us today.

The Institute’s Mission Statement sets out its aim to promote ‘the development of sound policies that further global peace and security, and maintain civilised international relations.’

For my part, I welcome the opportunity to speak to you on an international question which is one of the most serious any government can face – when is it lawful for a state to use force – always a last resort and only where it is necessary.

Today I want to talk specifically about when it is lawful to use force in self-defence – whether of the UK, or of our allies. And I want to set out, in greater detail than the Government has before, how the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors.

I don’t need to remind this audience that the UK is a world leader in promoting, defending and shaping international law. In the 19th Century as modern international law was being formed, it was the UK (in 1807) that helped outlaw and end the international slave trade and then slavery itself.[1] It was diplomatic correspondence between the United Kingdom and the United States which followed the Caroline Incident of 1837 that defined the parameters of the concept of imminence, as it was understood at that time and to which I will return.[2] It was the UK, with the US, which agreed to international arbitration as a means for the settlement of international disputes in the Jay Treaty of 1795.[3]  Our commitment to defending and shaping international law is undimmed since then. The UK was a founding member of the League of Nations and the United Nations, as well as an original signatory to the Kellogg-Briand Pact[4], Ottawa Treaty[5] and the Rome Statute.[6] And we are one of the biggest contributors of funding to the International Criminal Court.[7] We are also the only permanent member of the UN Security Council that recognises the compulsory jurisdiction of the International Court of Justice[8], and we remain one of the largest contributing states to the International Committee of the Red Cross[9], supporting it in its endeavours to promote and strengthen international humanitarian law.

As the latest in a long line of Attorneys General, I follow in a tradition of advocating, celebrating and participating in a rules-based international order. On several occasions in its history, the United Kingdom has subjected itself voluntarily to the jurisdiction of various international tribunals. My predecessors and I have appeared before a variety of international tribunals on behalf of the UK. And while we do not win every point in every case, I believe this personal investment demonstrates the commitment to international law of those who have done my job.

Of course, consistent with our commitment to that rules-based international order, the UK may on occasion decide to withdraw from a particular international agreement. You may have noticed that the British public has asked us to do so recently, with regard to one such set of agreements. The government is acting on that mandate, through the process of withdrawal from the European Union, and is doing so in accordance with Article 50 of the Treaty on European Union – in other words, in a manner fully compliant with international law. That is the nature of the country we are, and the nature of our commitment to the Rule of Law.

There are few more fundamental rules of international law than the prohibition of the use of force and the right of self-defence, defined in customary international law and codified in important respects in the UN Charter.[10]

The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so. International law sets the framework for any action taken by Sovereign States overseas, and the UK acts in accordance with it.

Today, I want to spell out how we ensure that we do so.

It is exceptional for an Attorney General to speak in any way about matters upon which he or she advises. The long-standing Law Officers’ Convention makes clear that the Government does not disclose the content or even the fact of Law Officers’ advice without consent of the Law Officers. This is to ensure the Government has access to full and frank legal advice, and also to reflect collective Cabinet responsibility in decision making.

That said, I have authorised disclosure of the fact that I have advised on the use of armed force in self-defence on two occasions. The first was made public by the former Prime Minister in his statement to Parliament in September 2014 in relation to the use of force against Daesh in the collective self-defence of Iraq.[11] The second was in 2015 in relation to a strike against Reyaad Khan, the British national who was a member of Daesh, and who was killed by UK forces because of the threat that he posed to the UK.[12]

But those disclosures were exceptional situations, and I am not here today to discuss the application of the Law Officers’ Convention, or specific cases of the use of force by the UK.

What I want to do is talk about some of the criteria that I and my predecessors have used in determining whether a particular proposed course of action is lawful.

The law of self-defence – foundations

I appreciate that this will of course be very familiar territory for a large number of you here today, but let me start by summarising briefly the law on the use of force.

To be clear, today I address only the law relevant to the resort to the use of armed force (jus ad bellum), and not the law which applies to the conduct of military operations (jus in bello). As you know, the starting point is that the use of force is prohibited under Article 2(4) of the UN Charter.[13] That is such a fundamental tenet of the post 1945 world order that it is considered by many to be a peremptory norm from which no derogation is permissible.

Even so, there are clear exceptions to that prohibition, both in the UN Charter itself and, in the United Kingdom’s view, in customary international law. Under the UN Charter, armed force may be used both pursuant to a Chapter VII authorisation by the UN Security Council and in individual or collective self-defence under Article 51 of the UN Charter.[14] The UK also recognises humanitarian intervention as a potential legal basis for the use of force in certain exceptional circumstances.

That is to frame the issue. But it is the law of self-defence, in particular against non-state actors, which I want to discuss today.

In relation to self-defence, let us remind ourselves of the striking terms of that exception under Article 51 which provides that:

‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.’

Of course, such action in self-defence can be individual or collective – in other words, in defence of ourselves alone or of our friends and allies.[15] The classic example of the latter is Article 5 of the North Atlantic Treaty 1949, whereby state parties agree that an armed attack against one of them is to be considered an armed attack against all of them.[16]

Like many other states, the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the ‘inherent right’ – as it’s described in Article 51 – to use force in self-defence against an ‘imminent’ armed attack, referring back to customary international law.

As you know, any use of force in self-defence under Article 51 must be both necessary and proportionate to the threat. A part of the assessment of necessity, where an attack has not yet taken place, is that the attack must be imminent for states to take action. To put it simply, is action necessary now?

The principles of the modern law on imminence are almost universally accepted as having their origins in the diplomatic correspondence of 1842 following the Caroline Incident five years earlier, to which I have already referred.[17]

The facts, well known to everyone here I am sure, were as follows. On 29th December 1837, a party of militia commanded by the Royal Navy crossed the border between British Canada and the United States and seized a steamboat called The Caroline which had been commandeered by a group of American sympathisers with the Canadian rebellion against British rule.

Although The Caroline was not at that moment engaged in a direct assault on British territory, the British commander believed she had previously been used to transport weapons to the rebels, and judged that destruction of the Caroline would both prevent further supplies from reaching the rebels and deprive them of access to the Canadian mainland. The Caroline was set on fire and sent over Niagara Falls, killing two in the process.

Later, correspondence was exchanged between the US Government and ours in which the legality of the Caroline Incident was debated. This resulted in the first known statement of the law on anticipatory self-defence. Imminence was described in the Caroline case as a threatened attack which was ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation.’

In the years that followed that incident 180 years ago, it became firmly established that measures taken in self-defence must be both necessary and proportionate to alleviate the threat.

 

Contemporary developments

The UK and others have acted many times in reliance on the inherent customary international law right of individual and collective self-defence. The UK relied upon self-defence to free the Falkland Islands in 1982. The UK was part of the US-led coalition that took action against Al Qaida and the Taliban in Afghanistan in 2001[18] and it is currently operating in Iraq and Syria on the basis of self-defence.[19]

And while the fundamental principles of the law remain, the way the law is applied has not stood still since 1837, as is only to be expected given both the passage of time and changes in the nature of armed conflict. International law is not static and is capable of adapting to modern developments and new realities. In my view, this capacity to adapt is both positive and necessary. It ensures that we are able to lawfully and effectively respond to changing scenarios and needs in a principled way, applying the law in a way that recognises the world we live in now. Being unable to do so could weaken the rules-based international order.

The phenomenon of international terrorism, for example, has caused the international community to apply the law to new circumstances.

Of course, it is right, and worth restating, that we deal with those committing terrorist attacks by means of a criminal justice response, where we can. As stated in the Chatham House Principles of International Law on the Use of Force by States in Self-Defence: ‘For action in self-defence to be ‘necessary’, it must first be clear that measures of law enforcement would not be sufficient.’[20] The importance of law enforcement measures is also emphasised in the Leiden Policy Recommendations on Counter-Terrorism and International Law.[21] We fully support strengthening the capability to prosecute such offences domestically and internationally. Indeed, in September, the Foreign Secretary, in collaboration with the Foreign Ministers of Iraq and Belgium launched a global campaign at the United Nations to bring Daesh to justice.[22]   A major strand of this campaign is domestic and international criminal accountability for Daesh crimes.

But the situation we face today does not always allow for the possibility of using criminal law enforcement measures to stop attacks – when attacks are planned from outside our territory and where the host state is unable or unwilling to act.

As evidence of international law’s capacity to change, the tragic events of 9/11 proved a catalyst to new applications of international legal principles.

Following the attacks, the UN Security Council unanimously adopted resolutions expressing the Council’s readiness to take all necessary steps to respond to the attacks and confirmed that self-defence could be justified in relation to non-state actors.[23]

Many states now hold the view, and have acted on the basis, that the inherent right of self-defence extends to the use of force against non-state actors, and includes the right to use force in response to both an actual and an imminent armed attack by that non-state actor.[24]

A number of states have also confirmed their view that self-defence is available as a legal basis where the state from whose territory the actual or imminent armed attack emanates is unable or unwilling to prevent the attack or is not in effective control of the relevant part of its territory.[25]

And the principles of self-defence against attacks by non-state actors are now being applied in an era where non-state actors can occupy territory, and launch or direct murderous attacks.

The threat we face

So, one of the real-world legal questions we face today is not so much who threatens an armed attack, but the standards by which we judge whether such an attack is imminent, allowing a lawful response by way of self-defence.

It is obvious that much has changed since 1837. We are a long way from being able to see troops massing on the horizon. The frontline has irretrievably altered.

And much has changed even since the immediate response to 9/11.

Today the challenges for those seeking to protect our national security are much greater. We have seen new types of attacks around the globe, including in Europe, Africa, and the Middle East.

At the time of 9/11, social media, Facebook, Twitter, WhatsApp and the like, did not exist.

Technology was far less mobile. Now it is used to evade law enforcement, to conceal those who would do us harm, and to inspire attacks around the world that previously would have taken months of planning. Those earlier attacks would have had to overcome the logistical hurdles and law enforcement barriers that come from crossing borders. Now, an individual so inclined can watch a video on YouTube, source an instruction manual on homemade explosives on the Dark Web, and act on whatever misconceived ideology they have absorbed, all in a short space of time, without travelling abroad and without direct communication with any established organisational leadership.

The world is changing fast and we must be sure the law is keeping up.

Where there is an identified direct and imminent threat to the UK or British interests abroad, the UK has always maintained it will take action to counter that threat. Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror.

When we take such action, we must do so in accordance with international law including international humanitarian law. And that means having a clear understanding of when the threshold is met to justify such action.

Applying the law to that threat

So how does the law on imminence apply to the threat we face?

During my evidence to the House of Commons Justice Select Committee in September last year, I was asked about the standard the Government applies to the concept of self-defence when taking such action.

I said that something ‘we… need to think about as a society… is what imminence means in the context of a terrorist threat, compared with back in the 1830s’[26] when the customary international law test was set down following the Caroline Incident. When do we now say a threat of an armed attack is sufficiently imminent to trigger a state’s right to use force in self-defence?

I was speaking in the wake of the attacks in Mumbai, Nairobi, and Sousse, but prior to the Paris attacks last November, and a number of more recent attacks around the world. That question surely needs thinking about all the more today.

So let me set out the UK Government’s position on that question – namely what “imminence” means in the context of the current and evolving terrorist threat.

The Government has a primary duty to protect the lives of its citizens. But as I have said already, it must do this whilst also upholding the rule of law, and only use lethal force where there is a clear legal basis for doing so.

There have been a number of useful attempts to provide further guidance on the concept of imminence since 9/11, including the Chatham House principles in 2005[27] and the Leiden Policy Recommendations in 2010.[28]

In 2012 Sir Daniel Bethlehem, former Legal Adviser to the Foreign and Commonwealth Office set out in an article published in the American Journal of International Law a series of principles that warrant serious reflection.[29] The one I would like to focus on here is the series of factors that he identified should be taken into account when assessing imminence. That paper, and the principles he set out more generally, were informed by detailed official-level discussions between foreign ministry, defence ministry, and military legal advisers from a number of states who have operational experience in these matters. I think Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

In answering those questions, we are of course guided by our diplomats, military analysts and intelligence agencies in analysing and verifying the basis for our judgment. Where appropriate, the National Security Council takes the decision on the UK’s approach, with the benefit of legal advice where necessary from the Attorney General. We also work with partners in assessing threats. In accordance with the Chatham House principles, it is crucial that we make these assessments ‘in good faith and on the basis of sound evidence’ in order to have a sufficient level of confidence to justify action.[30]

Another observation by Sir Daniel, as part of Principle 8 addressing imminence, also warrants comment, namely:

‘[t]he absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of a right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.’[31]

This statement reflects and draws upon what has been a settled position of successive British Governments.

Sir Daniel’s formulation must be right. In a world where a small number of committed plotters may be seeking to inspire, enable and direct attacks around the world, and indeed have a proven track record of doing so, we will not always know where and when an attack will take place, or the precise nature of the attack. But where the evidence supports an assessment that an attack is imminent it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack. Apart from anything else, our enemies will not always have fixed plans. They are often opportunists. To be clear, this approach does not, however, in any way dispense with the concept of imminence. The reason I have chosen to discuss this subject at such length is because the UK takes its responsibilities to carry out robust imminence assessments in this context very seriously.

I am setting out today in more detail than the Government has before the substance of the legal arguments, but the UK’s view that this is the correct interpretation of the law is long-standing.

Members of previous governments and other states also support this approach.

In February, I attended a meeting of the Quintet of Attorneys General in Washington (namely Attorneys General from the US, Canada, Australia, New Zealand and the UK).[32] The application of the international law requirements for self-defence, including imminence, was on the agenda for discussion, and we agreed to continue discussions in this regard.

The appreciation of imminence set out in Principle 8 was endorsed publicly by the United States in a speech by Brian Egan, the Legal Adviser to the US State Department, in April of last year.[33]

So this is UK leadership in action – working with our international partners to advance the security of our nation and of others, within a legal framework. It is leadership with practical benefits, too – because if we know that others share a common understanding of the legal tests to be met that allows us to work together more effectively.

And nowhere does effective collaboration remain more important to our security, and the security of the world, than in the relationship between the UK and our key allies.

We should not expect every state to agree with us. For example, although the limits and safeguards built into the doctrine are clear, we need to be aware of the legitimate concerns of some states, states which are worried about the abuse of international law by aggressive neighbours who threaten their sovereignty. But what we are talking about is an application of the existing law to new threats; the application of international law to a changing world. So let me be clear that the approach I am setting out, based on the settled position of successive British governments, is a very long way from supporting any notion of a doctrine of pre-emptive strikes against threats that are more remote and even further from seeking to diminish the importance of a rules-based international order. I am not suggesting that the threshold for military force be watered down, and I am certainly not suggesting we adopt an analysis which amounts to a Global War on Terror paradigm. It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.   I have no interest in making it easy to resort to the use of force – military action should never be taken lightly. But states do need to be able to take necessary and proportionate action where there is clear evidence that armed attacks are being planned and directed against them, and where it is the only feasible means to effectively disrupt those attacks.

 

Closing remarks

International law binds the UK, both as a central tenet of our constitutional framework and as a distinct legal regime at the international level. Our actions will rightly be subject to intense public scrutiny on the world stage, and international law is crucial in framing and defending those actions. We rightly pride ourselves on being advocates for, and acting within, a rules-based approach. The interest we take in this and the example we set matter because it is in the UK’s interests, as well as those of the wider world, that all states understand and comply with international law.

But no part of the law stands still. Whether made by legislators or developed by judges, our domestic law has always had to deal with new challenges our country faces. It has recognised new forms of criminality and removed some things from the ambit of the criminal courts as our attitudes to them change. It has found new ways to protect the rights of the vulnerable as new threats to those rights emerge. It has sought to protect our most ancient freedoms from the most modern dangers.

Those of us who are proud to be lawyers are proud to be so not because we hold to an archaic and immutable code but because we are part of a legal system that can and does adapt to deal with the cases of the future.

And it’s clear that the application of international law has also evolved to respond to the threats now faced around the world.

In domestic law, governments propose changes to statutes, seek the consent of parliaments, and respond to judgments made by courts that set precedents. Without a legislature and without ready recourse to courts, international law is necessarily different.

This places states in a unique position, in which the law is shaped, in significant part, by what those states do, and a clear understanding of why they do it.

That is why speeches like this one need to be made. Not to complain that international law cannot keep pace with the danger the world faces today, but to argue that it can, that it does, and that it has.

To make clear, that for the United Kingdom, our determination to keep our streets and our citizens safe does not diminish the commitment to a rules-based international order the world has come to expect of us. And to say proudly that however far outside the law our attackers may go, we must defend ourselves and defeat them within the law.

Annex 1 – List of notifications lodged by states with the United Nations Security Council in relation to the exercise of their right of self-defence against Daesh

State Date(s) Reference Number(s) Link(s) USA 23 September 2014 S/2014/695 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_695.pdf UK 25 November 2014, 7 September 2015 and 3 December 2015 S/2014/851, S/2015/688, S/2015/928 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2014_851.pdf

 

http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_688.pdf

 

http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_928.pdf Turkey 22 February 2015 and 24 July 2015 S/2015/127, S/2015/563 https://www.justsecurity.org/wp-content/uploads/2015/12/Turkey-Article-51-Letter-Syria-02222015.pdf

 

http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_563.pdf Canada 31 March 2015 S/2015/221 https://www.justsecurity.org/wp-content/uploads/2015/12/Canada-Article-51-Letter-Syria-03312015.pdf France 8 September 2015 S/2015/745 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_745.pdf Australia 9 September 2015 S/2015/693 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_693.pdf Germany 10 December 2015 S/2015/946 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_946.pdf Denmark 11 January 2016 S/2016/34 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2016_34.pdf Norway 3 June 2016 S/2016/513 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2016_513.pdf Belgium 7 June 2016 S/2016/523 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/S_2016_523.pdf

[1] http://www.parliament.uk/about/living-heritage/transformingsociety/tradeindustry/slavetrade/overview/parliament-abolishes-the-slave-trade/

[2] Caroline case, 29 BFSP 1137; 30 BFSP 195

[3] The Jay Treaty <http://avalon.law.yale.edu/18th_century/jay.asp>

[4] The Kellogg-Briand Pact <http://avalon.law.yale.edu/20th_century/kbpact.asp>

[5] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction <http://www.un.org/Depts/mine/UNDocs/ban_trty.htm>

[6] Rome Statute of the International Criminal Court <https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>

[7] Annual Update to Parliament on UK Support and Funding for International Criminal Justice: Written statement – HCWS111 <https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-07-21/HCWS111/ >

[8] Declarations Recognising the Jurisdiction of the Court as Compulsory <http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3>

[9] International Committee of the Red Cross, Annual Report 2015, pp. 572-573 <https://www.icrc.org/en/document/annual-report-2015-icrc >

[10] The Charter of the United Nations <http://www.un.org/en/charter-united-nations/>

[11] HC Deb, 26 September 2014, column 1263 <http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140926/debtext/140926-0001.htm >

[12] HC Deb, 7 September 2015, column 26 < http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150907/debtext/150907-0001.htm >

[13] The Charter of the United Nations, Chapter I <http://www.un.org/en/sections/un-charter/chapter-i/index.html>

[14] The Charter of the United Nations, Chapter VII <http://www.un.org/en/sections/un-charter/chapter-vii/index.html>

[15] The UK’s position is that for collective self-defence to be engaged there does not need to be a direct threat to the assisting state. The victim state (which is subject to the threat of an imminent armed attack) must have sought the assistance of the assisting state.

[16] The North Atlantic Treaty <http://www.nato.int/cps/en/natohq/official_texts_17120.htm>

[17] Caroline case, 29 BFSP 1137; 30 BFSP 195

[18] The UK’s position is that whether a threat is imminent is something which falls to be assessed by reference to the threat itself. A UNSCR acknowledging the existence of a threat, but not providing a legal basis for action under Chapter VII, would not remove the need for a State to be satisfied that there is a threat of an imminent armed attack.

[19] HC Deb, 26 November 2015, Columns 1489-1494 < http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm151126/debtext/151126-0001.htm#15112625000002 >

[20] ‘The Chatham House Principles of International Law on the Use of Force by States in Self-Defence ’, The International and Comparative Law Quarterly, Vol. 55, No. 4 (2006), pp. 963-972

[21] Nico Schrijver and Larissa van den Herik, ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’, Netherlands International Law Review, Vol. 57 No. 3 (2010), pp. 531-550

[22] Speech by UK Foreign Secretary Boris Johnson on Bringing Daesh to Justice at the 71st United Nations General Assembly ministerial week, 19 September 2016 <https://www.gov.uk/government/speeches/our-aim-has-got-to-be-justice-for-all-of-daeshs-victims>

[23] United Nations Security Council Resolution 1368, United Nations Security Council Resolution 1373 and United Nations Security Council Resolution 1377 < http://www.un.org/Docs/scres/2001/sc2001.htm >

[24] See, for example, the table attached at Annex 1 listing notifications lodged by states with the United Nations Security Council in relation to the exercise of their right of self-defence against Daesh

[25] Elena Chachko and Ashley Deeks, ‘Who is on Board with “Unwilling or Unable”?’, Lawfare, 10 October 2016 <https://www.lawfareblog.com/who-board-unwilling-or-unable>

[26] Oral evidence: The Work of the Attorney General, HC 409 <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/the-work-of-the-attorney-general/oral/21698.html >

[27] ‘The Chatham House Principles of International Law on the Use of Force by States in Self-Defence ’, The International and Comparative Law Quarterly, Vol. 55, No. 4 (2006), pp. 963-972

[28] Nico Schrijver and Larissa van den Herik, ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’, Netherlands International Law Review, Vol. 57 No. 3 (2010), pp. 531-550

[29] Daniel Bethlehem, ‘Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Non-state Actors’, 106 American Journal of International Law 769 (2012)

[30] The Chatham House Principles of International Law on the Use of Force by States in Self-Defence ’, The International and Comparative Law Quarterly, Vol. 55, No. 4 (2006), pp. 963-972

[31] Daniel Bethlehem, ‘Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Non-state Actors’, 106 American Journal of International Law 769 (2012)

[32] Five Country Ministerial and Quintet of Attorneys General Joint Communiqué <http://www.dhs.gov/news/2016/02/18/five-country-ministerial-and-quintet-attorneys-general-joint-communique>

[33] Brian J. Egan, ‘International Law, Legal Diplomacy, and the Counter-ISIL Campaign’, American Society of International Law, Washington DC, 1 April 2016 <https://www.state.gov/s/l/releases/remarks/255493.htm>

 

The UK Attorney-General on the Modern Law of Self-Defence

ejiltalk.org - Wed, 01/11/2017 - 09:00

Later today, the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP will deliver a speech at the International Institute for Strategic Studies, in London, on “The Modern Law of Self-Defence”. The speech will be significant as the advert indicates that the Attorney General will “set out the UK’s position on the application of international law on self-defence, in particular the concept of ‘imminence’ in the context of the ongoing and developing threat that we face from non-state-actor terrorist groups.”

As readers will likely know from the Chilcott Inquiry relating to the war in Iraq, as well as developments regarding the UK’s use of force in Libya and Syria, the UK Attorney-General has the ultimate responsibility for advising the government on the legality, under international law, of the use of force. It has also become standard practice since the war in Iraq for a summary of the Attorney-General’s advice to be presented to Parliament before Parliament votes on whether to authorise the use of force (a vote which is now required by constitutional convention).

I am happy to report that the text of the speech will be posted on this blog as soon as the AG has finished delivery of the speech at 6pm UK time. In addition, over the coming days there will be discussion on EJIL:Talk! of the issues raised by the speech, with a number of contributors weighing on the significance of the points made by the AG. 

 

How Much Public International Law Scholarship is There?

ejiltalk.org - Tue, 01/10/2017 - 09:00

Two years ago I started to try and keep track of and categorize all of the PIL books published in a year. That yielded a figure of about 400 in English, French, and German. I wanted to count journal articles too but soon realized it was too big a job and one I couldn’t justify spending time on. Add to that the increasing number of well-researched blog posts and even for professional scholars just keeping up with all that is published must be daunting.

In the hope of providing a solution we have been developing a web-based tool to help scholars spend less time finding out what has been published on a topic and more time analysing and assessing it. The fruit of our labour is called ResearchTrack which provides information about newly published scholarship with links to the originals where access to the full content may be available, and will cover outputs from all publishers. We are opening it up to the public from today. The current version is a free “beta” version i.e. it is being used for a pilot study (running to the end of February 2017) during which we will hope to get lots of feedback about the overall usefulness of the idea and how we can improve it for a permanent version (should there prove to be sufficient interest). The pilot phase has two disciplines: Public International Law and International Relations.

Coverage

In terms of coverage we track books, journal articles, and substantive blog pieces. During this pilot phase it only covers English language materials systematically but I would like to hear from any teams who might be interested in helping us to broaden out. Our team of external editors decide whether something merits inclusion based purely on whether it is potentially of interest to a PIL researcher; inclusion does not reflect an assessment of quality.

Antecedents

I should acknowledge the existence of other projects which have also attempted to fill this need. One is the now defunct Weekly International Law Digest produced by Don Anton which listed in a weekly PDF everything that had come out in PIL, and the other of course is the still active International Law Reporter run by the indefatigable Jacob Katz Cogan.

ResearchTrack differs from the latter in that our team of editors tags everything with subjects from our taxonomy of 300+ items and adds filters for geography. Users register and then personalize their data feed by choosing which topics they wish to track. You can choose as many topics as you want and easily add or remove new ones. Whenever you log in you will see a number showing you how many new items have been published in your areas of interest. Our hope is that in addition to being useful for tracking the latest scholarship it will over time become a way of building up a literature review on any given topic.

Pilot Phase

During the pilot phase which will run until the end of February 2017 we invite all PIL researchers to register, try it out, and tell us what you think. We are particularly keen on feedback about coverage (are we missing anything), types of content (what, besides books, blogs, and journals would you like to see tracked), usability of the site, and of course bugs. There is a feedback page (accessed by clicking on the arrow at the bottom of the page which opens up a small panel of options) or feel free to email me directly at john.louth {at} oup(.)com var mailNode = document.getElementById('emob-wbua.ybhgu@bhc.pbz-98'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6A%6F%68%6E%2E%6C%6F%75%74%68%40%6F%75%70%2E%63%6F%6D"); tNode = document.createTextNode("john.louth {at} oup(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-wbua.ybhgu@bhc.pbz-98"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular

ejiltalk.org - Mon, 01/09/2017 - 09:00

As I have read commentary on the recently adopted resolution by the U.N. Security Council (Resolution 2334) addressing Israeli settlements in the occupied territories, I’ve noticed a number of commentators who appear to assume that, since this resolution was not explicitly adopted in exercise of the Council’s Chapter VII powers, therefore all of its operative provisions are per se legally non-binding. Orde Kittrie, writing over at Lawfare, seems to make this assumption clear when he writes:

“Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity.”

I thought this would be a good opportunity to write briefly to clarify that the legal obligation for U.N. Charter states parties to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not contingent upon the Council’s acting in exercise of its Chapter VII powers. Any decision of the Security Council is legally binding upon all U.N. member states, whether or not the text of the resolution explicitly references Chapter VII.

Rather, the key question for determining whether a particular provision of a Security Council resolution is legally binding on member states (i.e. whether the provision is a “decision” of the Security Council), including the specific addressee of the resolution, is whether the Council has chosen to use words within the provision indicating its intent to create a legally binding obligation.

The International Court of Justice made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. There, the Court was considering the juridical implications of provisions of Security Council Resolution 276, which had similarly been adopted with no textual indication that the Council was acting in exercise of its Chapter VII powers. The Court held that:

“It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. . . It has also be contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. (Para 113-114)”

Applying this test for determining bindingness, the Court determined that the provisions in operative paragraphs 2 and 5 of Resolution 276 were legally binding on all U.N. member states. This included the determination by the Council in operative paragraph 2 that the presence of South African forces on the territory of Namibia was unlawful, and the Council’s call in operative paragraph 5 for all states to refrain from any dealings with South Africa that were inconsistent with this determination.

The question of which words will indicate the Council’s intent to create binding obligation is one that has been discussed in scholarly literature, though honestly not as much as the topic deserves. I recently engaged in an analysis of this subject in Chapter 6 (Pgs. 195-198) of my book on Iran’s nuclear program.

It is interesting to note in this context that in the Namibia advisory opinion, the Court found to be legally binding a provision (operative paragraph 5) which began with the words “Calls upon all States . . . ” Most scholarly commentary over the succeeding decades (including mine) has, however, categorized “calls upon” language as legally non-binding. So there would appear to be some room for disagreement over which words fall into which category.

Moving from general principles to the particular case of Security Council Resolution 2334, by far most of the resolution’s operative paragraphs do utilize words and phrases such as “calls upon,” “reaffirms,” “underlines,” and “stresses,” which are generally (with the above caveat from the Namibia case) understood not to indicate an intention on the part of the Council to create binding legal obligation for U.N. member states or for the specific addressee of the resolution. There is one exception, however. Operative paragraph 2 states that the Council:

“Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard.”

The word “demand” in this provision sticks out. “Demand” is a word that has been used by the Council to command an addressee to abide by its obligations existing independently in international law. An example of its use in this context is found in operative paragraph 17 of Resolution 687 (1991), in which the Council:

“demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt”

However, the word “demand” has also been used by the Council to create new legally binding obligations for an addressee, in contexts in which there does not exist a relevant obligation elsewhere in international law. The best example of its use in this way is in operative paragraph 2 of Resolution 1696 (2006), wherein the Council:

“Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA;”

So how should we understand the use of the term “demand” in operative paragraph 2 of Resolution 2334? The substance of the demand that the Council makes in this provision is not new. The Security Council has enjoined Israel to discontinue settlement building in the occupied territories on a number of prior occasions, including in operative paragraph 3 of Resolution 446 (1979), and operative paragraph 6 of Resolution 465 (1980). However, in both of these prior examples the injunction was framed with the term “calls upon.” Resolution 2334 is, as far as I can tell, the first time in which the word “demand” has been used by the Council in association with the injunction to discontinue settlement building.

Is this escalation in wording by the Council legally significant? If so in what way? Again, when “demand” has been used by the Council in the past, it has either been to add the Security Council’s own command to an already existing international legal obligation by the addressee, or to create a new legal obligation for the addressee where one does not already exist.

So does Israel have an already existing international legal obligation to discontinue settlement building in the occupied territories, to which the Council is simply adding its own command here?  There would seem to be a strong basis for this argument in the determination by the International Court of Justice in its 2004 Wall advisory opinion that, under international humanitarian law, Israel’s settlements in the occupied territories are illegal, with the clear implication that Israel’s international legal responsibility requires their cessation and dismantlement.

So if the Council’s demand in Resolution 2334 is read, as seems most persuasive, as adding the Council’s own command to Israel to abide by its independently existing legal obligations under international humanitarian law, what juridical effect, if any, does the Council’s own demand have?

It could be argued that the Council’s demand acts to create a “topped up” legal obligation, i.e. one that is based on the already existing one (here grounded in international humanitarian law) but which, by operation of the Council’s demand, is additionally made part of the addressee’s U.N. Charter obligations which, pursuant to U.N. Charter Article 103, would prevail over obligations under any other international agreement.

Is that what the Council meant to do in this case? Is that why they changed the injunction from one called for to one demanded?

I’m not sure it’s clear what the Council meant by adding the word “demand” here. But we do know from the Namibia advisory opinion that the words used by the Council in its resolutions do matter for legal analysis. We also know that it is possible for provisions in a Council resolution not textually linked to Chapter VII to be legally binding.

I will refrain from reaching here a conclusion about operative paragraph 2 of Resolution 2334. But I definitely don’t think that one can conclusorily determine that Resolution 2234 does not create, or at least add to the juridical character of, legally binding obligations for Israel.

Announcements: Workshop on the Use of “Authorities” in International Dispute Settlement; CfP – Solidarity and the Promotion of Peace and Security

ejiltalk.org - Sun, 01/08/2017 - 11:00

1. Workshop on the Use of “Authorities” in International Dispute Settlementc. Young scholars and PhD candidates interested in empirical methods in international law are invited to submit expressions of interest for this workshop on the use of “authorities” in international dispute settlement. The workshop will not involve the publication of papers, although works-in-progress will be discussed by the participants. By bringing together young and established scholars using empirical methods, this workshop aspires to provide inspiration and practical guidance. The workshop, funded by the British Academy, is organised by Dr Michael Waibel and will take place on 20 March 2017, at the Lauterpacht Centre for International Law at the University of Cambridge. Expressions of interest shall be sent to Damien Charlotin (dc655 {at} cam.ac(.)uk var mailNode = document.getElementById('emob-qp655@pnz.np.hx-81'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%64%63%36%35%35%40%63%61%6D%2E%61%63%2E%75%6B"); tNode = document.createTextNode("dc655 {at} cam.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-qp655@pnz.np.hx-81"); mailNode.parentNode.replaceChild(linkNode, mailNode); ) by 10 January 2017 with a description of your research interests and how they relate to the theme of the workshop, plus a CV with a list of publications. The organizer will let applicants know by 20 January 2017 about the outcome of their application. 

2. Call for Papers: Solidarity and the Promotion of Peace and Security. The ESIL Interest Group on Peace and Security will submit a proposal for a panel on “Solidarity and the Promotion of Peace and Security” during the 13th ESIL Annual Conference in Naples (7 – 9 September 2017). This panel will invite papers that address the following questions: 1. What is the nature and what are the ethical foundations of the principle of solidarity? 2. What are the implications of the constitutional reading of the principle of solidarity? 3. What specific responsibilities are attached to the principle of solidarity?; 4. How does solidarity contribute to the effective realisation of public goods? 5. What are the specific expressions of solidarity in the fields of jus ad bellum and jus in bello? Please submit an abstract in PDF (in English or French) of no more than 800 words by 24:00 on 16 January 2017 (London-UK time) to: theodore.christakis@univ-grenoble-alpes.frstarski {at} mpil(.)de var mailNode = document.getElementById('emob-fgnefxv@zcvy.qr-73'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%74%61%72%73%6B%69%40%6D%70%69%6C%2E%64%65"); tNode = document.createTextNode("starski {at} mpil(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-fgnefxv@zcvy.qr-73"); mailNode.parentNode.replaceChild(linkNode, mailNode); nicholas.tsagourias@sheffield.ac.uk. Applicants will be informed of the selection committee’s decision no later than 27 January 2017.  The following information must be provided with each abstract: the author’s name, contact details, affiliation and as well as brief CV listing relevant publications.

Identifying the Language of Peace: Developing the Practical and Theoretical Framework of Peace-Making

ejiltalk.org - Wed, 01/04/2017 - 12:00

After a year which saw an unprecedented number of people displaced by violent conflict, and peace processes suffering setback after setback, from the repeated ceasefire violations reported in Yemen to the difficult process of bridging differences in Syria, faith in peace-making appears to be at its lowest. But when faced with the devastating impact of conflicts around the world, there can be no question of the need to redouble the efforts directed at achieving negotiated peace; as illustrated by the case of Colombia, peace is attainable even in the most entrenched of conflicts. In most cases, redoubling efforts requires going back to the drawing board, reframing issues and suggesting different approaches in order to create novel solutions to seemingly intractable problems. In such cases, the ability to draw on the practice of previous agreements drafted in similar situations may prove invaluable to the process; but without a consolidated and issue-based digest of such previous practice, this means having to spend days combing through possibly hundreds of documents (often on very short notice) each time, while there is still a chance of missing at least some of the relevant results.

Furthermore, identifying the range of options utilised in previous practice is only the first step; the negotiating parties must then consider whether these approaches comply with, or appear to depart from, international law. This in itself can be a cause of great controversy within peace-making processes: for instance, is it legal for peace agreements to grant blanket amnesties, including to (suspected) war criminals? Such controversies, as well as the ever-growing attention to concepts such as lex pacificatoria and jus post bellum, highlight the need to clarify the underlying relationship between peace and international law in specific areas.

It is in response to these concerns that the Language of Peace research tool – launched at the UN Secretariat in New York on Tuesday, 6 December 2016 – was developed, allowing instant search capability across the provisions of around 1,000 peace agreements, categorized according to the issues they address, from negotiating agendas through human rights to power-sharing arrangements. This post identifies two areas in which Language of Peace seeks to contribute to the development of international peace-making.

The Research Gap in Peace-Making: The Origins of Language of Peace

Before Language of Peace, those involved in peace-making processes had no consolidated, analytical digest of peace agreement practice. Beyond valuable personal experience, mediators were almost invariably required to research settlement options afresh each time a dispute arose. Depending on the range of issues to be covered in the prospective peace agreement, from a simple ceasefire to a comprehensive peace settlement, collating and analysing the burgeoning previous practice could be extremely time-consuming. Language of Peace eliminates this repetitive and tedious research by providing a search tool through which past solutions and options adopted in the provisions of previous peace agreements can be accessed within seconds.

In order to ensure that it addresses the needs arising in the field, Language of Peace – part of the Legal Tools for Peace-Making Project at the University of Cambridge – was developed in collaboration with the UN Department of Political Affairs, incorporating feedback received over the course of several months from the Mediation Support Unit and its Standby Team of experts, as well as from the Project’s own practitioner and academic advisory boards, which includes members from the EU and the OAS.

Through this innovative tool, users can search according to 226 issues, organised under 26 main issue headings, and refine their search according to a number of filters such as signatories, region, date range and conflict type. Additionally, the tool contains a word search function which allows users to search by word or phrase as an alternative to the issue area search, or as a method of further refining existing searches. Search results can subsequently be bookmarked and exported in either PDF or DOCX format. Furthermore, in order to provide information about the broader context of provisions on a particular issue, and as part of the Cambridge-UN collaboration, Language of Peace is linked to the UN Peacemaker database, which contains full text PDF documents of the agreements.

Language of Peace also addresses the difficulties presently faced by non-state parties to peace negotiations. Specifically, it alleviates the imbalance of power inherent in negotiations between non-state actors and central governments, arising from the fact that the former lacks the extensive administrative apparatus at the disposal of the latter. The search tool provides non-state actors with ready access to past practice, enabling them to articulate their grievances in a negotiable form. Through analysis of such practice, parties can propose constructive approaches and options to find common ground on contested issues, which can assist them to move beyond deadlocks arising from emotive assertions and counter-assertions. Language of Peace can therefore help to transform or reframe negotiations by equipping all parties with an open-access tool containing decades of peace agreement practice.

Bridging Theory and Practice in International Peace-Making: The Use of Language of Peace in Academia

Language of Peace has also been developed with an eye to enhancing academic research at the intersection of law, practice and policy in international peace-making. From a legal perspective, Language of Peace presents the practice which underpins and cuts across theoretical debates on jus post bellum and lex pacficatoria, offering potential to identify where international law potentially conflicts with, and/or influences, peace-making processes. Additionally, the research tool can be viewed as an access point into a rich deposit of potential customary practice, raising questions about the international legal status of obligations contained within peace agreements. Going beyond the discipline of law, Language of Peace captures valuable source material for inter-disciplinary research comparing the approaches taken in peace agreements with their subsequent implementation.

From Language of Peace to Legal Tools for Peace-Making

Beyond its status as a standalone tool which aims to contribute to the theoretical and practical development of international peace-making, Language of Peace is part of the broader Legal Tools for Peace-Making project. The project team is also working on 26 case studies corresponding to the main issue areas identified in Language of Peace. The case studies analyse the approaches taken in previous peace processes, identifiable within source material generated by Language of Peace, against the backdrop of international law. By doing so, they aim to identify the range of options available to parties on a particular issue by reference to international legal obligations, while also considering the extent to which peace agreement practice complies with or diverges from international law. By the conclusion of the Legal Tools for Peace-Making project, the case studies will become available online, and aim to be a valuable resource for mediators and a starting point for further academic research on the influence of international law and customary practice of peace-making.

Alongside the case studies, the scope and functionalities of Language of Peace will continue to be developed and refined; we would be delighted to receive feedback at legaltoolsproject {at} lcil.cam.ac(.)uk var mailNode = document.getElementById('emob-yrtnygbbyfcebwrpg@ypvy.pnz.np.hx-67'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6C%65%67%61%6C%74%6F%6F%6C%73%70%72%6F%6A%65%63%74%40%6C%63%69%6C%2E%63%61%6D%2E%61%63%2E%75%6B"); tNode = document.createTextNode("legaltoolsproject {at} lcil.cam.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-yrtnygbbyfcebwrpg@ypvy.pnz.np.hx-67"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

Trumping International Law? Implications of the 2016 US presidential election for the international legal order

ejiltalk.org - Tue, 01/03/2017 - 10:00

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order [See Krieger/Nolte, The International Rule of Law – Rise or Decline?]

During the last 25 years international law has seen significant developments which led many observers to suggest that it has changed its character. These developments consisted in a higher degree of institutionalisation and a tighter network of rules. International law witnessed the conclusion of key multilateral treaties, the widening and deepening of the legal protection of the individual as well as a rise of international adjudicatory bodies and adjudication more generally. Since the 1990s many international lawyers shared a certain expectation that these processes would continue. The evolving understanding of basic legal concepts, such as international community, right to democratic governance or universal human rights standards relied on the idea that international law would be developing in a specific direction. The perception of this direction was strongly influenced by a liberal view of the State and the international order where global governance substitutes the State.

For some years, this idea has increasingly been confronted with important indications for a challenge to, or a change of direction of, international law. Thus, it is quite likely that some of the shifts we will witness are changes we may have witnessed under Hillary Clinton’s presidency, too. But it is the strong symbolism that may make Trump’s election work like a kind of fire accelerant for the lingering shifts in the global order. It is not unlikely that in the coming years the international legal system, as it has been carved out since 1990, will be subjected to a kind of stress test. As a result we may see which parts of it are resilient and which parts have not yet crystalized into firmly established legal rules. We may be prompted to reconsider the role that international law plays in the global order and assess whether it is being transformed into a type of international law different than the one which has developed since 1990 or even 1945.

I would like to highlight three major fields where I assume that we will witness such shifts and where we will test the resilience of international law: the danger of a domino effect for multilateral institutions, the rejection of certain liberal values on a global scale, and the emergence of a new power concert. When speaking of shifts I do not intend to convey any normative judgment on whether these transformations are desirable or whether international law is ‘inherently good or bad’, needs to be preserved or should be abandoned.

Danger of a domino effect for multilateral institutions

Trump’s intention to withdraw from symbolically important multilateral treaties, such as the Paris Agreement, does not stand alone. It fits into last year’s long list of setbacks for core international institutions, such as the EU and Brexit, the withdrawal of South Africa, Burundi and Gambia from the ICC or Russia’s withdrawal of its signature from the Rome Statute. Even if negotiations will result in a soft Brexit and even though Russia would probably not have submitted to the jurisdiction of the ICC anyway, what is important here is the signal which these developments send. It is not inconceivable that the Brexit at least contributed to South Africa’s decision to withdraw from the ICC. For decades a withdrawal from major multilateral treaties or institutions seemed a taboo. Upon the introduction of the withdrawal clause into the EU treaties most European lawyers argued that this was a dead letter rule. This perception has dramatically changed. In this light, the Russian withdrawal of its signature must above all be seen as an invitation to join and to push for the momentum of withdrawals. Such a momentum would gain even more power if Trump realized his intentions.

While we will probably not see waves of withdrawals, making withdrawals a realistic perspective may alter conditions for renegotiating the fabrics of multilateral agreements. The danger that numerous States might withdraw will enlarge the room for negotiations and strengthen the impact of smaller States. In the current climate, options for African States to change certain settings within the ICC fabric have become much more realistic. A recent EJIL:Talk! post argued that, at the 2016 Assembly of States Parties in The Hague, possible shifts in interpretations became visible which might considerably reverse the debates, for instance with a view to head of state immunities. A realistic threat of withdrawal may also affect courts’ jurisprudence and foster more cautious sovereignty- or consent-based interpretations of international law.

Rejection of certain liberal values and related political concepts

Another field where we may see major shifts concerns those rules which are seen to enshrine liberal values. But again, the election of Trump may only accelerate developments which are already underway.

A pertinent example are those human rights which are not firmly established within western societies themselves, such as LGTBI rights or women’s rights, in particular reproductive rights. After all, parts of the populist agenda are directed against such liberal values. Changes at the level of national and international law may mutually reinforce each other. With the case Roe v Wade the US Supreme Court influenced the interpretation of reproductive rights world-wide. Thus the impact of the Trump administration on the composition of the Court is not only of concern for the United States. Transnational advocacy and global constitutionalism may not only work in favour of liberal rights. Faith-based conservative US-related NGOs have increasingly acted as an amicus curiae in the proceedings before the European Court of Human Rights, inter alia in cases concerning LGTBI rights. The UN Human Rights Council has dealt with the topic of traditional values where Russia and states with a strong Catholic or Muslim background advocated for an interpretation of human rights in the light of such values [e.g. UN Doc. A/HRC/RES/16/3]. Another example may be the recent UN debate on the mandate of the Independent Expert on Sexual Orientation and Gender Identity. The mandate faced resistance from African States. It is not unlikely that with the Trump administration we will witness new and uncommon alliances of movements rejecting certain liberal values on a global scale.

Moreover, the whole debate on R2P and liberal interventionism may undergo significant changes. It was one of Trump’s explicit policy goals to ‘end the current strategy of nation-building and regime change’. In his foreign policy speech of 27 April 2016 Trump said: ‘Finally, I will work with our allies to reinvigorate Western values and institutions. Instead of trying to spread ‘universal values’ that not everyone shares, we should understand that strengthening and promoting Western civilization and its accomplishments will do more to inspire positive reforms around the world than military interventions.’ But again, such a change is already underway. There are many voices assuming that a significant amount of the state-building efforts in the last decade are not sustainable. Ever since the controversial military operation in Libya, China and Russia are highly critical of the concept of an international responsibility to protect since they fear R2P is used as a pretext for regime change. Discussions in the Institut de Droit International suggest that the concept of humanitarian intervention has not been established as a legally recognized exception to the prohibition of the use of force.

These developments do not imply that humanitarian concerns and human rights will not matter any longer but rather that we may see more clearly which of the interpretations furthered by what actors have crystalized into universally accepted legal rules and which relied on the power of the US and other Western States in the unipolar period of the 1990s. What was part of a certain historically contingent political discourse and what will remain as a legal rule in a medium-term perspective? Stephan Hopgood, for example, has argued that the remainder of the whole R2P debate will boil down to the concept of ‘civilian protection’.

Further challenges may be ahead for the most fundamental community interests of the international legal order. Trump apparently advocates a policy of closer co-operation with Russian President Putin. This is said to imply lifting sanctions against Russia despite the purported annexation of Crimea. If the United States under President Trump even recognized Russian sovereignty over Crimea, the symbolism of this act would entail severe negative repercussion for international law. After all, the United States introduced the 1932 Stimson doctrine on non-recognition into international law. It is still a central part to the whole complex of the prohibition of the use of force. A decision by the US to violate the duty of non-recognition would amplify the process of norm erosion in this field. Already in 2013, UN GA Res 68/262 calling upon states not to recognize any alterations of the status of Crimea was only passed with 100 yes-votes, 11 no-votes and 58 abstentions including Brazil, India, and South Africa.

A new power concert

If, finally, Trump’s America First approach should indeed signal the end of a US-led international (legal) order we might witness the emergence of a new power concert. Discourses on a multi- or zeropolar world had already foreshadowed such a development. After all, not only the approach of the US Administration will affect the global order, but also the manner in which other actors respond to it. China’s increasing willingness to influence international law-making processes and Russia’s policy in Eastern Europe are witnesses to changes which may foster the return of a balance of power model built on separate spheres of influence. It is telling that Trump’s 2016 foreign policy speech contains language reminiscent of the wording used in times of the international law of peaceful co-existence.

So, will the international legal order just turn ‘back to normal’? Were the last 25 years an historical exception, rather than the rule of a constant progressive development of international law? If this should be the case, at least there is no instant need to develop new legal institutions as in 1919 or 1945. The institutions and the law are there to deal even with a different global order and to restrain power within such a power concert. After all, the UN Charter was conceived for such a situation.

Most Read Posts 2016

ejiltalk.org - Sun, 01/01/2017 - 11:00

Happy New Year to all EJIL:Talk readers! In many ways, 2016 was a remarkable year for international law. It is hard to pick a standout event or development but perhaps 2016 will be remembered as the year when international lawyers began to think seriously, across the board, about the legal processes relating to how states exit from international commitments. It is probably fair to say that international lawyers have spent far more time thinking about the processes by which international law obligations are imposed on states and other actors than on the processes by which those international law commitments might cease to be binding.  The UK’s Brexit referendum of June 2016 means we now have to think about how the UK unwinds from its membership of the EU. The notices of withdrawal from the ICC Statute by South Africa, Burundi, and the Gambia also raise questions about treaty withdrawal. Then the election in the US of Donald Trump raises the prospect of US withdrawal from a range of treaties dealing with climate change, trade and the Iranian nuclear deal. All of this might suggest that research into issues relating to treaty withdrawal would constitute a profitable research agenda for 2017! All of these were covered on this blog in 2016 but clearly there will be more to say.

I would like to thank all of our readers but also all of those who wrote posts on EJIL:Talk! in 2016! Below is a list of the posts that were most read in 2016. Some of these posts were written in earlier years.

20) After Trump: China and Russia move from norm-takers to shapers of the international legal order, Anne Peters (2016)

19) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller (2015)

18) A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism, Olivier Corten (2016)

17) Grand Chamber Judgment in Al-Dulimi v. Switzerland, Marko Milanovic (2016)

16) Russia and China Challenge the Western Hegemony in the Interpretation of International Law, Lauri Mälksoo (2016)

15) Turkey’s Derogation from the ECHR – What to Expect?, Martin Scheinin (2016)

14) On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap, Joseph Weiler (2016)

13) Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, Marko Milanovic (2010)

12) The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?, Dapo Akande (2016)

11) ICTY Convicts Radovan Karadzic, Marko Milanovic (2016)

10) European Court Decides Al-Skeini and Al-Jedda, Marko Milanovic (2011)

9) The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary), Adil Ahmad Hague (2016)

8) European Court decides A and others v. United Kingdom, Marko Milanovic (2009)

7) Brexit and International Law, Jed Odermatt (2016)

6) Trumpocalypse Now, Marko Milanovic (2016)

5) Ukraine vs. Russia in International Courts and Tribunals, Gaiane Nuridzhanyan (2016)

4) Philippines v China: first thoughts on the Award in the South China Seas Case, Douglas Guilfoyle (2016)

3) Julian Assange and the UN Working Group on Arbitrary Detention, Matthew Happold (2016)

2) So, you want to do a PhD in international law?, Douglas Guilfolye (2012)

1) The Constructive Ambiguity of the Security Council’s ISIS Resolution, Dapo Akande & Marko Milanovic (2015)

Readings 2016: On the Fringes of International Law

ejiltalk.org - Fri, 12/30/2016 - 11:00

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have André Nollkaempe’s selection.

The five titles on my 2016 list of books relate to international law in very different ways. What they have in common is that they are not so much concerned with the substance of international law, but rather with questions relating to its emergence and the practical implications of international law. Sometimes books that hardly use the language of international law can be most illuminating for international lawyers.

Peter Wadhams, A Farewell to Ice. A Report from the Arctic (Allen Lane, 2016)

Peter Wadhams’ A Farewell to Ice masterfully shows how the liberties of international law impact on climate change and result in a thinning and retreating of polar ice with scary speed and consequences. Wadhams, a polar researcher in Cambridge, notes that ‘we have created an ocean where there was once an ice sheet’ and that this is ‘[m]an’s first major achievement in reshaping the face of his planet’. Wadhams pictures a particularly glooming scenario for 2035, when the Arctic seabeds – permafrost from the last ice age – will melt and release massive methane plumes that are over 20 times more effective in raising global temperature than all the CO2 we have focused on. The book sketches powerful images of floods, fires, droughts, storms, and inundation of low-lying areas –with dramatic consequences for human habitation and lives. While international law has facilitated and legitimized the policies leading to these consequences, Wadhams vests some hope in international law; he sees the Paris Agreement as a sign of common will to act. Yet, much more is needed to avert the gloomy consequences of climate change – mainly research and investment in new technologies (wind, wave, solar, tidal and nuclear energy) need to be incentivized. Post-US elections this is not a happy reading, but one that is needed to compel us to action.

Christina Lamb, Farewell Kabul: From Afghanistan to a More Dangerous World (Harper Collins, 2015)

A quite different, yet equally sombre assessment of the result of international policies is Christina Lamb’s Farewell Kabul: From Afghanistan to a More Dangerous World. This is a war journal in the best sense of the term, reflecting more than 25 years of reporting experience in the region. The book provides a very sobering account of the post-9/11 military adventures of the United States and its allies. Much has been written on why and how international law should be construed so as to allow for these attacks on ‘non-state actors’. This book displays the total mismatch between the policy ambitions underlying this liberal reading of international law and the actual results. The initial aim of the attacks (rooting out terrorism) was never accomplished. Multiple new aims were formulated, with ever less clear legal bases and with equally little success. The book provides a compelling case-study of ill-conceived attempts to build democracy and the rule of law and to strengthen women’s rights; objectives that moreover failed to connect to the interests of the local population – who above all hoped for security and food. Lamb connects the larger implications. Afghanistan led to Iraq, Iraq led to ISIS, and all the previous failures led to inaction in Syria. It is a must read for those international lawyers who plead, with noble intentions, for a liberal construction of international law so as to allow for foreign interventions.

Rossana Deplano, The Strategic Use of International Law by the United Nations Security Council – An Empirical Study (Springer, 2015)

Much closer to international law is Rossana Deplano’s The Strategic Use of International Law by the United Nations Security Council – An Empirical Study . This book is not without shortcomings, but deserves a place on this list as it is an all too rare attempt to bring empirical legal studies to international law. In 2016 the dominant features of international law are still doctrinal, normative, critical, historical, and theoretical. Empirical enquiries into what international law accomplishes in practice remain rare. Deplano supplements the many doctrinal studies on the Security Council with an empirical study that seeks to establish the extent to which, if any, international law is able to limit the discretionary powers of the SC, and how the practices of the Council contribute to the development of international law. The study demonstrates the bias of the SC towards international terrorism and protection of women, children and civilians, and its ignorance of other issues. The book also shows the benefit of combining empirical with normative work on international law, as it uses the data to propose a new theory of self-imposed duties in a few areas, which ‘may redefine the very idea of international peace and security’. Parts of the study remain somewhat flat, but overall the book definitively sets out a path worth following.

David Sloss, The Death of Treaty Supremacy. An Invisible Constitutional Change (Oxford University Press, 2016)

A more traditional volume is David Sloss’ The Death of Treaty Supremacy. An Invisible Constitutional Change. The book tells a powerful story of constitutional law changes through practice, and of how written constitutional law can mislead ignorant observers. Every student who tries to understand the complex relations between international law and domestic law in the US will start with art. VI of the US Constitution, proclaiming that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’ While there was a time when this provision actually governed and explained practice, few provisions could leave one more ill-prepared for an understanding of the role of treaties in the US legal system. The book details how without formal amendment, in practice major limits were imposed on the actual effect of treaties, most of all in the form of the non-self-executing treaties doctrine. This constitutional change reflected a political struggle, triggered by a 1950 decision of a California court to use the human rights provisions of the UN Charter to invalidate a state law that discriminated against Japanese nationals. While amendments that sought to prevent such rulings were proposed but never passed, the supporters of change achieved their goals through de facto constitutional change, with the result that state governments are allowed to violate treaty obligations including international human rights obligations. The larger message is that to understand how international law does or does not constrain national policy requires much more than a cursory look at formal provision, and that one needs to understand the domestic politics that inform the actual application of such rules.

Philippe Sands, East West Street. On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016)

Finally, there is Philippe Sands’ masterful East West Street. I will not be the only one to include the book in the list of favorites, but the book deserves multiple praise. The power of the book is above all its evocation of the personal stories that propel international law. The concepts of ‘crimes against humanity’ and ‘genocide’ are not concepts that are ‘out there’, waiting to be applied, but were conceived, developed and applied by individuals with a personal stake and with personal ambitions. Placed in the city of Lviv, Sands reconstructs the stories of Lemkin and Lauterpacht, who lived and studied in this city with its history of extermination of Jews. Along separate paths, they contributed to the development of the concepts of genocide and crimes against humanity, to connect again in the Nurnberg trials. What makes the book particularly enthralling is that it links the personal stories of Lauterpacht and Lemkin with that of Sands’ grandparents. East West Street drives home how personal histories matter in the development of the law – and how they can result in exceptional scholarship.

Readings 2016: On Politics and Ethics and Love

ejiltalk.org - Thu, 12/29/2016 - 12:00

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have Jan Klabbers’ selection.

Alice Kaplan, The Collaborator: The Trial and Execution of Robert Brasillach (The University of Chicago Press, 2000)

Aristotle already knew that people are political animals. Yet, he also realized that people are ethical beings, and for him, there was no necessary conflict between the two: the ethically flourishing person was one who was intensely and seriously political. In our days, however, that understanding has all but disappeared, with much political debate collapsing into partisan positions where it is considered more important to keep the ranks closed and emerge victorious over opponents than doing the right thing or somehow finding a decent compromise. Whether on debates within Britain on membership of the EU, whether in US presidential elections, or whether in discussions in the ‘comments’ section on EJIL: Talk!, political debate is rarely genuine these days.

This is one reason why the story of Robert Brasillach is so interesting, and it is told extremely well in Alice Kaplan’s The Collaborator. Brasillach was a young French novelist, strongly drawn to Nazism before and during World War II, and seriously collaborating with the Nazis – so much so, that he would urge them not to forget to send children to the gas chambers as well. Not surprisingly, after the war he was prosecuted and found guilty of collaboration, and sentenced to death. At this point some people started a campaign to commute the death sentence and, again not surprisingly, many on the political left in post-war French refused to sign up.

The surprising thing, however, is that one of the signatories of the petition to commute the death sentence was Albert Camus, who had become famous as a novelist, playwright and a resistance authority during the war, and was politically about as far removed from Brasillach as was humanly possible. There may have been many personal reasons for Camus’ decision to sign the petition (he had a visceral repulsion for the death penalty, e.g.), but the story also suggests something about the connection between ethics and politics that we have lost track of. Camus, here as on other occasions, refused to be a fellow traveller; he made up his own mind, and let his political action be guided not by considerations of electoral or popular support, and not by toeing the party line, but by his own thought –and it is at least possible to argue that what made him such an influential figure was precisely his ethical stance.

Kaplan pays relatively little attention to Camus’ attitude in the matter (although she later wrote the Introduction to Camus’ Algerian Chronicles (2013), where the same blend of ethics and politics comes out: see here for my discussion on this) instead, she writes with empathy, understanding and yet firm judgment the story of Brasillach’s life, how he came to be a Nazi, the relationship between prosecutor and defense lawyer, and what happened after the war. Kaplan’s is a fine story, eminently readable, but it is also more than that: through the lens of focusing on a single individual, she captures an entire nation and its ambivalence towards good and evil, and tells a story that should resonate today.

Andres Rigo Sureda, International Investment Arbitration: Judging under Uncertainty (Cambridge University Press, 2012)

One of the books from which I learned most this year was the short set of Lauterpacht lectures given by Andrés Rigo Sureda a few years ago on bilateral investment treaties. Partly this is, of course, simply because I did not know too much about investment law to begin with, but partly also because of Rigo Sureda’s handling of the topic. His focus rests on the uncertainty of large chunks of investment law, which is as much subject to political considerations as anything else. In doing so, Rigo Sureda (formerly of the World Bank, and hitherto known to me predominantly as the author of one of the classic studies on self-determination) has wise words to say on such topics as interpretation and the triangular legal structure of investment treaties. And he does so with great economy, in less than 150 pages.

Raimond Gaita, A Common Humanity: Thinking about Love and Truth and Justice (Routledge, 2000)

Highly inspirational is Raimond Gaita’s A Common Humanity: Thinking about Love and Truth and Justice. Gaita is an Australian moral philosopher, and his book is a set of meditations on a variety of topics, ranging from genocide to university education and much, much else besides. Gaita is difficult to pigeonhole: he is not a consequentialist (and he has some well-chosen words for his consequentialist compatriot Peter Singer) and is highly critical of Kantian ethics as well, in particular its undergirding rationalism. One of the themes running through the book is that of preciousness: if we all treat each other as precious (rather than as fellow rational beings, or in terms of dignity), then the world might actually become a decent place. And I was particularly pleased to see him remark that inspirational teaching owes something to love: love of the topic, and love of the profession. This is something you cannot achieve with a set of slides and a syllabus of pre-assigned readings, and something you cannot fake by means of adopting a public persona. Gaita does not, sensibly, exclude the possibility that one can be a good teacher without love of the topic, but is skeptical about the possibility of being inspirational without love – and somehow that sounds just about right. Gaita’s book is, in many respects, a bit unorthodox: even as produced it departs from the regular format (smaller than most academic books, almost pocket-sized). It is also, for a tract on moral philosophy, remarkably accessibly written, even if not structured as a classic and systematic study. And note the subtitle, with its comma-less enumeration. Somehow, all this captures the spirit of the book very well: a set of meditations, loosely yet intimately connected, to keep returning to.

Neil Walker, Intimations of Global Law (Cambridge University Press, 2014)

The final academic work on my list this year is Neil Walker’s Intimations of Global Law. The book’s main purpose is to try and make some sense of all the parallel discussions going on involving such concepts and ideas as global constitutionalism, transnational law, global administrative law, and global governance. All have their adherents, but few can meaningfully describe what they mean. Walker’s insightful move now is to take the discussion to a different level of analysis, discussing these different ideas and concepts as manifestations of two broad approaches, (convergence-promoting on the one hand, divergence- accommodating on the other), actually making some sense of the similarities and distinctions between them and often highlighting the politics behind them.

In a sense, Walker’s move – shifting the level of analysis to a higher terrain – is a classic move, and much utilized in critical legal scholarship in order to survey and criticize the terrain underneath. What sets Walker apart though from much critical scholarship is that his is not limited to being an intellectual exercise, pointing out internal contradictions perhaps accompanied by a vague and non-descript plea to change track, but also contains a serious engagement with global law, following the intuition that this is something that will not go away, and that the lawyerly discipline will need to come to terms with if it wishes to continue to play a meaningful role in social relations. And law, so Walker suggests without spelling it out, is too important a cultural artifact to just have it be replaced by something else – it comes (potentially, at any rate) with safeguards (e.g., about participation) that its alternatives lack.

Kees van Beijnum, De offers (De Bezige Bij, 2014)

Bert Röling, the Dutch judge at the Tokyo Tribunal in the late 1940s, must be one of the very few international lawyers to whom novels are devoted (the only other example that immediately comes to mind is F.F. de Martens, the protagonist in Jaan Kross, Professor Martens’ Departure (1984)). He played a small and rather caricatured cameo in one of the classic Dutch novels, W.F. Hermans’ Onder professoren (‘Amongst professors’, published in 1975), but is one of the main characters in Kees van Beijnum’s wonderful De offers (‘The sacrifices’) (thanks to Nico Schrijver for bringing it to my attention). De offers tells the story of a more or less fictional Dutch judge at the Tokyo Tribunal, whose main hobbies include playing tennis and playing the piano, and who otherwise too is nearly indistinguishable from Röling – one of the few main differences I have been able to spot with the real Röling is that the latter taught at Utrecht University before being sent to Tokyo, whereas the fictional judge (Judge Brink) taught at Leiden University – perhaps a cruel joke on the part of the author. (In fact, the story goes that Röling’s contrarian attitude may be partly what cost him the professorship in Leiden, with the Dutch foreign policy establishment disapproving of his behaviour in Tokyo as well as his condemnation of Dutch colonial policies. Hence, he spent most of his academic career at Groningen University, far away from the corridors of power. See further the biographical account written by his son Hugo Röling, De rechter die geen ontzag had (’The irreverent judge’, 2014).)

The book is partly about Brink’s ethical dilemma in global politics: he recognized the political nature of the Tokyo trials, and was reluctant to cooperate and find defendants guilty of crimes against peace which, he felt, had not been criminal yet when the war started. Moreover, he felt that it was too simple to hold Japanese political leaders responsible just for having been government members during the war – at the very least, one should wonder whether they did not actively try to exercise damage control.

But the book is about much, much more. The two other protagonists are Michiko, Judge Brink’s lover with whom he has an extra-marital son, and Michiko’s cousin Hideki, who served in the Japanese army in China and returned as an invalid. Through them, Van Beijnum weaves a story of betrayal and loyalty and love, and passion and opportunism and revenge, touching upon such great political topics as war and peace, decolonization, and reconstruction, but also the microcosmic human aspects. Heartbreaking is the passage where Michiko meets her elderly former neighbor after the war, with both having lost their immediate families and their homes and pretty much everything else, and yet both suggesting that they are the lucky ones. Van Beijnum moreover (and this is a major feat) manages to evoke Japan in his writing style which, at its best, is reminiscent of the great Yasunari Kawabata.

Perhaps most tantalizingly, Van Beijnum suggests that ethical demands are strongly situational and that unity of the virtues (a very Aristotelian point) is oh so difficult to achieve: Judge Brink ends up, one could say, doing justice (however ineffectual) to the accused in Tokyo, but not to Michiko, not to their son, and not to Hideki, and not to his wife and children back in Holland either. There can clearly be considerable ethical tensions between the public and private persona, as Camus’ life also illustrates. But merely toeing the party line is never a solution.

Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?

ejiltalk.org - Wed, 12/28/2016 - 11:00

On 8 December 2016, in the case of Zihni v. Turkey, (App. No. 59061/16) the European Court of Human Rights (hereinafter “the Court”) rejected a second application arising out of alleged violations in Turkey in the aftermath of the attempted coup on 15 July 2016.

The Court’s dismissal of the complaint for failure to exhaust available domestic remedies (Article 35 of the European Convention on Human Rights – hereinafter “the Convention”) is consistent with its 17 November 2016 decision in the case of Mercan v. Turkey (App. No. 56511/16), so it came as no surprise. In the Mercan case, the Court similarly dismissed the application, which concerned the unlawfulness, length and conditions of a judge’s pre-trial detention in the absence of any evidence.

In Zihni v. Turkey, the applicant was suspended from his duties as a school’s deputy headmaster on 25 July 2016 and subsequently dismissed from public service, together with 50,874 other civil servants, by the list appended to the Decree no. 672 on 1 September 2016, on account of his alleged “membership of, affiliation, link or connection” to terrorist organizations.

The application before the Court in Zihni cited numerous rights violations: (1) lack of access to a court (Article 6, Article 13 and Article 15); (2) no punishment without law (Article 7); (3) violation of the right to respect for his family life (Article 8); and (4) discrimination on account of his dismissal (Article 14).

While the basis of the Court’s dismissal in each case articulates a settled rule for admissibility to the Court’s jurisdiction, both decisions ring hollow in the context of the so-called availability of domestic remedies in present-day Turkey. No doubt that the state of emergency casts these cases in a somewhat different light, but even under such circumstances the fundamental rights at issue in these cases are not novel to the Court. What the Court may have failed to appreciate is that these dismissals may effectively deprive the applicants of any meaningful justice whatsoever, by requiring that they first try to navigate the legal chaos in Turkey.

In Zihni v. Turkey, the applicant lodged his application without having first brought proceedings before the national courts including an individual application before the Turkish Constitutional Court (hereinafter “the TCC”). To explain his failure to do so, the applicant asserted that no effective remedies capable of allowing him to challenge his dismissal before the national courts were available since the measures taken by decree-law within the framework of the state of emergency would not be subject to appeal. He also claimed that the TCC was not in a position to reach an effective decision impartially, referring to a decision by the TCC on 9 August in which it decided to dismiss two of its members. Nevertheless, in the Zihni case, the Court ruled that (para.30) there were no special circumstances absolving the applicant from the obligation to exercise the domestic remedies available to him under Turkish law, namely an administrative action and an individual appeal to the Constitutional Court.

Yet, in the past, the Court, when assessing whether certain domestic remedies were effective, has examined the positions of the parties involved in great detail, also taking into account the reports and reactions of domestic institutions as well as international institutions. (Salah Sheekh v. the Netherlands, among many others). In both the Mercan and Zihni cases, however, the Court has failed to assess the actual – rather than theoretical – availability or accessibility of domestic remedies. Instead, without any further inquiry or accompanying analysis the Court simply accepted the accessibility to, and effectiveness of, domestic remedies in Turkey as fact. In light of recent events, it seems that the Court – by requiring these applicants to seek domestic remedies – is elevating form over substance, in effect depriving them of any realistic opportunity to seek meaningful justice.

In doing so, the Court has ignored the opinions and memoranda of the organs of the Council of Europe, and NGO reports. Thus, in a recent memorandum, the Council of Europe Commissioner for Human Rights noted that he was informed personally by the Turkish Minister of Justice that persons whose names are annexed to decrees are considered to be dismissed by a law, and therefore do not have a judicial remedy. The Commissioner also concludes that it would be a ‘significant challenge’ for Turkey to prove that:

“even in a context where close to 3,500 members of the judiciary have been dismissed and thousands imprisoned, Turkish courts can still provide effective remedies for potential human rights violations caused by arbitrary measures taken by the executive or the administration, or even by the judiciary itself.”

Later on, in its recent opinion of 12 December, the Council of Europe’s Venice Commission regrets that the dismissals (in the appended lists) “apparently” are not subject to judicial review by Turkish ordinary courts. It is also meaningful that the Venice Commission discusses (paras.195-216) that even “the accessibility of the judicial review remains a matter of controversy”, let alone the effectiveness thereof.

As to effective access to a domestic remedy in the form of an administrative action, the Court notes that (para.24):

“In its judgment of 4 November 2016, the Supreme Administrative Court had examined an application for judicial review lodged by a judge who had been dismissed following a decision issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667. Although the Supreme Administrative Court had found that it did not have jurisdiction to examine the merits of that application, it had remitted the case to the first-instance court, holding that it was primarily for the administrative courts to examine such applications.”

As regards to the question of whether administrative courts can be regarded as an effective remedy and afforded a reasonable prospect of success, the decision of Trabzon Administrative Court on 30 September might be in point. The Trabzon Court rejected a case concerning the dismissal of a schoolteacher in the state of emergency context in which it found that the decrees (Kanun Hükmünde Kararnameler, KHK) are the functional equivalent of legislative actions (not administrative actions) and therefore, cannot be subjected to judicial review by administrative courts. Thus, while administrative courts are theoretically seemingly capable of providing an appropriate remedy, in practice, there is little if any chance of success.

With regard to the individual application mechanism of the TCC, the Court still views it as being effective and impartial. In both the Zihni and Mercan cases, the Court clearly stated that the arguments submitted by the applicants were insufficient to cast doubt on the effectiveness of the TCC, noting that the fears of the applicants as to the impartiality of the TCC’s judges (based on the dismissal decision) does not, prima facie, relieve an applicant of the obligation to lodge an application before that court.

The Court, however, has failed to elaborate this assertion. Rather it sufficed citing a number of judgements of the TCC, which predate the state of emergency decrees and the subsequent “hands off” decision of the TCC, in support of its position (e.g. a judgment of the TCC rendered on 25 February 2016 concerning journalists Erdem Gül and Can Dündar).

Is that a reasonable assessment by the Court? It is true that, starting in late 2014, the TCC has ruled in support of the fundamental rights and freedoms; but those decisions are unreliable predictors of how or whether the TCC would perform similarly meaningful legal review in assessing alleged rights violations in the context of state of emergency decrees. Nor does it ensure impartiality in the face of the Turkish government’s crisis mentality that has led to far-reaching measures that disregard fundamental human rights.

Moreover, in its decision of 9 August, the TCC dismissed two of its members based solely on ”the information from the social circle” and “the common conviction formed by the members of the TCC”. The relevant question for the Court then becomes: How can the TCC provide an effective remedy for massive dismissals when the same court dismissed its own members based entirely on ‘information’ and ‘conviction’ without verifiable evidence? Does this reasoning not cast substantial doubt on the impartiality and thus, the effectiveness of the TCC? These questions should have been clearly answered by the Court.

Also relevant is that on 12 October, the TCC rejected the appeals (here and here both in Turkish) seeking annulment of a number of provisions of the emergency decrees. The TCC ruled that it has no jurisdiction to review the constitutionality of emergency decrees (in abstracto) under Article 148 of the Turkish Constitution. This decision is acknowledged by the Court in Zihni case, where it states that (para.12):

“…the fact that the [Turkish] Constitutional Court had ruled on the constitutionality of a law, in the context of a challenge to constitutionality, did not prevent members of the public from lodging an individual appeal before that court against specific decisions taken in application of the provisions of that particular [decree] law.”

As the Court correctly points out, according to Article 148 § 3 of the Turkish Constitution, the TCC is competent to examine the implementation of emergency decrees through the individual application mechanism after exhaustion of the ordinary remedies. Now that the Supreme Administrative Court of Turkey has held that the first-instance administrative courts will examine the dismissals, the TCC will most likely reject, for non-exhaustion of ordinary legal remedies, the more than 60,000 currently pending cases arising from the emergency decrees since 15 July. If, as expected, the TCC refers those cases to the administrative courts, individual application mechanism to the TCC may well prove to be wholly ineffective. It will result in extraordinary delays that, judging from the Trabzon Court’s decision, will ultimately be of no avail, theoretically then permitting individual application to the TCC. In such a scenario, even under the most favourable circumstances, the TCC would be unable to provide appropriate remedies in a timely fashion.

In conclusion, the Court’s reasoning in Zihni and Mercan raises serious questions. Did the risk of a significant increase in the Court’s docket (with more than 3,000 cases are currently pending) influence the Court to adopt such a narrow approach? Without question, there is potential for a flood of applications to the Court from Turkey. Or did the larger context of a state of emergency influence the Court’s decision? Examination of case law deriving from the Convention reveals that the Court has steadily afforded a wide margin of appreciation to the presence of an emergency and to the nature and scope of the derogations necessary to avert it. It is possible that the Court would have interpreted the procedural constraints on access to justice differently if the application were not related to the measures taken in a state of emergency context.

Nonetheless, and leaving aside the legitimacy of the state of emergency measures in Turkey generally, the dismissals of Zihni and Mercan based on a failure to exhaust domestic remedies may be subject to criticism due to the uncritical assumptions implicit as to accessibility and availability of such remedies. It is an open question as to whether such domestic remedies are truly “effective and available” in today’s Turkey, a question that the Court has failed to answer.

Readings 2016: The Odds Are There to Beat

ejiltalk.org - Tue, 12/27/2016 - 13:00

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Today we have Jean d’Aspremont’s selection.

Every year, when we as Editors of EJIL conduct the retrospective (and somewhat introspective) exercise of looking back at the books we have read over the previous 12 months, I always find myself bewildered by the imbalance between the rather modest amount of books I have perused and the huge number of articles I have thoroughly digested. It seems that, in my own practice of consuming legal scholarship, the number of pages of legal literature I read in scholarly books is not commensurate with the substantially higher number of pages of journal articles. Although I am short of empirical data relating to such patterns of behaviour, I surmise that this may be a widespread reading practice among international lawyers. My feeling is that international lawyers read articles – not to mention blog posts and tweets – by the hundreds while seriously reading only a dozen books every year. This disproportion is not alleviated by the fact, already highlighted by Sarah Nouwen last year that we actually read very few books cover to cover.

This imbalance warrants some attention as I do not think that international lawyers’ substantially higher consumption of article-based legal scholarship over book-based literature can be explained solely by size. After all, many books nowadays are rather thin – which, in some respects, is a good thing! – and many articles, especially in the Anglo-American tradition, are rather lengthy – which, in some other respects, is regrettable. I also suspect that the imbalance between books and articles in the reading practice of international lawyers has not always been so great. I would guess that there were times when the legal literature read by international lawyers was more or less evenly spread between books and journal articles, not to mention the pre-periodical era when scholarship was exclusively found in books.

I am tempted to ascribe the pattern of reading behaviour described above to a series of very practical parameters. First, the accessibility of journal articles, whether through open access databases (SSRN, academia.edu, etc) or through the online platforms of the main publishers is most probably instrumental in their dominance as a container of legal literature. Second, it is likely that the portability of journal articles and the extent to which they are easily read on a tablet or folded in a laptop case bears upon their success as well. In that sense, being more accessible – at least in the wealthy parts of the world – and being more portable, journal articles would seem to be a more convenient container of scholarship, especially for those international lawyers who are often on the road or in the air. Thirdly, and probably most importantly, it cannot be excluded that the imbalance between books and articles in the reading practice of international lawyers reflects the very configuration of the profession of international legal academics. Indeed, it may be that the growing diversity of tasks assigned (there are days I would say “dumped on”) to 21st-century academics makes the reading of journal articles much easier to accommodate. Often a one-hour lull between meetings or lectures, a one-hour flight, a one-hour escape to a coffee place, or simply a rainy Sunday afternoon suffices to seriously make one’s way through an article. In my view, the profession as a whole is organized in a way that is favourable to the consumption of scholarly articles rather than books, and this was not always the case. Whether extracting scholarship and inspiration from articles rather than books is conducive to better intellectual self-development and better scholarship is of course open to question, a question that does not need to be taken on here. It remains, however, that, for all sorts of reasons, books remain cherished and their publication continues to be highly regarded. And this is probably why the exercise carried out here is dear to EJIL.

This year, I have selected three books, two books in French and one book in English. Since what I make of these books inevitably hinges on the project(s) in which I was engaged at the time of their reading, mention is made, as much as possible, of the backdrop against which the reading was conducted.

Fuad Zarbiyev, Le Discours interprétatif en droit international contemporain (Bruylant, 2015)

The treatment of interpretation in international legal scholarship often collapses into either dogmatic and mechanical ‘rulism’ (i.e. the reification of the rules on interpretation and the idealization of their constraining power) or some crude cynicism (i.e. the denial of the constraints born by the rules on interpretation and the demotion of Article 31 of the Vienna Convention to an Airport Luggage Wrapping Machine). In this context, Fuad Zarbiyev’s work stands out as one of the rare truly theoretical studies of the phenomenon of interpretation in international law. It comes, together with works like those of Bianchi or Venzke, to offset the dearth of theoretical engagement with hermeneutics in international legal scholarship. Zarbiyev interestingly ascribes the theoretical nonchalance of international lawyers to the Vienna Convention on the Law of Treaties, which seems to have provided them with a comfort zone within which it is no longer necessary to engage with the theoretical questions of interpretation, not even the abiding question of the interpretation of the rules on interpretation themselves. By Zarbiyev’s account, the Vienna Convention is the culprit for this “relachement de la pensée critique” (p. 13). Zarbiyev provides a genealogical account of the design of the modes of interpretation as they have come to be known and practised today, reviewing the successive interventions in the shaping thereof by a great number of actors over the centuries (e.g. Grotius, Pufendorf, Wolff, Vattel, the Institut de Droit international, the International Law Commission). By virtue of a discussion that shows great mastery of critical works but also of literary philosophy (Derrida, Bourdieu, Ricoeur, Fish, etc), and explicitly inspired by Nietsche’s philosophy with a hammer, Zarbiyev goes after some of the main contemporary presuppositions of international lawyers in terms of hermeneutics. After completing the reading of his remarkable study, there is barely anything left of the textualism allegedly promoted by the Vienna Convention on the Law of Treaties and cultivated by the International Court of Justice. The fetishism towards judges that commonly accompanies international lawyers’ hermeneutic practice – to an extent unheard of in domestic systems according to Zarbiyev – is similarly dealt a lethal blow. Both of these two common patterns of international legal discourses are simply torn to pieces. Last but not least, Zarbiyev’s work is a model and deserves praise for the confidence and diligence with which it assembles a conceptual and analytical framework of its own by borrowing from a wide variety of traditions of legal thought and social sciences, without feeling the need to show membership to a specific tradition or school of thought or any fear of incommensurability. In building his conceptual and evaluative framework, Zarbiyev shows that international lawyers should not necessarily perceive themselves as prisoners of one single school or package of methods and that they can simply cherry pick. Zarbiyev demonstrates that we can compose our own evaluative tools outside all the methodological packages currently on offer – and recognized – in international legal scholarship. In doing so, Zarbiyev helps us understand that the much celebrated notion of methodological consistency is overrated, also reminding us of the kinship between theory and methodology. The result is a solid and original set of methodological choices which, interestingly, shares with Fish an emphasis on the interpreter. In composing his conceptual framework, Fuad Zarbiyev incidentally reminds international lawyers that the paternity of the notion of ‘interpretive community – so popular among international lawyers – does not lie with Stanley Fish but with Josiah Royce, who introduced it in his work on the Christian religion (J. Royce, The Problems of Christianity, New York, Mcmillan Company, 1914).

François Ost, Raconter la Loi. Aux Sources de l’Imaginaire Juridique (Odile Jacob, 2004)

In his study of the imaginary of law, François Ost revisits the way in which some key myths of Western culture (the episode of the Sinai and the Exile, Agamemnon, Antigone, Robinson Crusoe, Faust, etc.) have treated law as an idea or an institution, thereby astutely bridging the study of myths and legal theory. Thanks to his well-known literary erudition, the author perceptively narrates those stories that have shaped the culture of many international lawyers in the Western world and, hence, sheds light on how the mythical treatment of law may still inform our contemporary understanding thereof. Approaching Ost’s work in relation to my current exploration of the belief system at work in international legal thought and practice and the centrality of self-referentiality in legal reasoning, my attention was drawn to two specific features of the myths examined in this book. First, I was struck, not by the extent to which self-referentiality – understood as one’s invention of one’s own origins – is central to the very structure of myths, but more by the disdain with which these (self-referential) myths treat the self-referentiality of law. This is well-illustrated by Ost’s discussion of the casting of the Golden Calf construed as a contract without law that cannot not constitute law proper. In most Western myths, law thus appears as thought outside self-referentiality. Whilst I believe law – and international law – must invent their own origin to uphold their claim to authority and cannot work without self-referentiality, it is not surprising that self-referentiality in law, even in Western mythology, is constantly obfuscated. To produce its thrust, self-referentiality cannot reveal itself. Second, my attention was drawn to Ost’s accounts of the constant re-writing process of myths over time; such rewriting often going as far as unwriting, i.e. a re-writing that turns the myth on its head and reverses the politics thereof. This phenomenon is not different from the constant re-writing of the main doctrines of international law and the adjustment of their politics. More interesting is Ost’s contention that, even when myths are unwritten, such unwriting still occurs within the tradition of the original myth from which emancipation is not possible. McIntyre is of course in the air and it is very tempting to draw a parallel with the key doctrines of international law which are similarly perpetuated through writing, re-writing, and unwriting.

Thomas Schultz, Transnational Legality. Stateless Law and International Arbitration (Oxford University Press, 2014)

The relationship between international lawyers and theory has often made me think of the anxious attitude of French-speaking people toward foreign languages. Indeed, it is common for the latter to dare to utter a few sentences only once they have the assurance that they have mastered 2000 words of the foreign language and run no risk of embarrassment. In my view, the same holds for international lawyers and legal theory, the latter having become the turf of a well-guarded club of mutually referencing scholars who are unrivalled in the sophistication of their language and their citations of esoteric works, thereby making all international lawyers feel like French-speakers trying to speak a foreign language.

Thomas Schultz’ study appropriately signals that it is time for international legal scholars to cease being daunted by theory and grow confident and unashamed of using theoretical and jurisprudential tools. I accordingly mention this book here not because of the well-known erudition of its author and its informed contribution to the state of the knowledge on international arbitration but for its treatment of jurisprudential debates for the sake of self-reflection about a field that has long been wary of theory and self-reflection. It is true that, on substance, the book may be grappling with a slightly overblown phenomenon, i.e. the reduction of (international) law to state law. For my part, I have always thought of such an association as a straw man of convenience for self-declared reformists of international law. Yet, this is not the point I wish to debate here. In my view, Schultz’s book is a very welcome attempt to disrupt a discipline, its modes of engagement as well as the way in which it distributes and organizes argumentative spaces and areas of expertise.

The valuable disruption brought about by Schultz can be summarized as follows. First, Schultz imports a theoretical apparatus into the scholarship on international dispute resolution, which had traditionally been marked by pragmatism, aversion to theory and judge fetishism. The author is very clear about his revolutionary ambitions and it is worth quoting him here:

International arbitration, and more generally international dispute settlement, is commonly represented as a technical field, as a subject-matter that is all about procedural technicalities and black letter law intricacies. This must stop. We cannot shy away from our social responsibilities by taking refuge in the mechanics of the law. Dispute settlement, at heart, is anything but a dry, technical, mechanical field (p. 6).

Second, Thomas Schultz’ work is subversive, not only in relation to the field of international dispute resolution but also vis-à-vis legal theorists themselves. Indeed, he attempts to vulgarize theory – something which someone of his stature can afford to do – and make it accessible to a much wider audience. This is a daunting but very laudable task. Legal theory is too important to remain inaccessible to the masses. Legal theory cannot be the privileged tool of thought of a small coterie whose members cite one another with a view to excluding others and preserving their monopoly. Most interestingly, Schultz uses jurisprudence without turning his book into a jurisprudential work. This means that he ingeniously falls short of a quest for the essence of law and its attributes, but rather resorts to jurisprudence for the sake of self-reflection. If there is a future for the use of jurisprudence in international legal thought, it must be somewhere along the trail blazed by Schultz in his book on statelessness in international arbitration.

One final remark is warranted. The enthusiasm voiced in these lines for the type of disruptive projects as that attempted by Schultz is not oblivious of the obstacles that such audacity will necessarily come up against. The aversion of Schultz’ colleagues for anything that is not meant to be practical or does not emanate from a judge should not be underestimated, just like the defensive tactics of theorists to salvage their monopoly. Yet, in scholarship, success probably matters less than the attempt. At the end of the day, the odds are there to beat and one can only welcome exercises of disruption whose formative value should never be underestimated.

Announcements: Emile Noël Fellowship Program; UN Audiovisual Library of International Law; Challenging Human Rights Disenchantment Conference; CfP Business and Human Rights – International Law Challenges, European Responses Conference

ejiltalk.org - Sat, 12/24/2016 - 16:45

1. Emile Noël Fellowship Program Applications. The Jean Monnet Center at NYU School of Law is currently accepting applications for its Emile Noël Fellowship Program for AY 2017/18. A limited number of fellowships are available. The deadline for applications is 17 January 2017.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Mark Weston Janis on “The Invention of “International Law”: Jeremy Bentham and His 1789 Refashioning of the Classical “Law of Nations”” and Professor Susan Karamanian on “The Intersection of Public International Law and Private International Law”.

3. Challenging Human Rights Disenchantment Conference. The Sussex Centre for Human Rights Research is holding an interdisciplinary conference on 27 January 2017 on the subject of ‘Challenging human rights disenchantment 50 years on from the ICCPR and ICESCR’. Keynote addresses will be given by Sir Nigel Rodley (University of Essex), Mona Rishwami (UN Office of the High Commissioner for Human Rights), Andrew Clapham (Geneva Graduate Institute of International and Development Studies) and Pamela Palmater (Ryerson University, Canada). More information, including details about registration and conference fees, can be found on the conference website.

4. Call for Papers – Business and Human Rights: International Law Challenges, European Responses Conference. Transnational business activities are important drivers of growth for developing and the least-developed countries. However, they can also negatively impact the enjoyment of human rights. The relationship that exists between the development of business activities and the protection of human rights is addressed by international law. Moreover, as the parent companies of many multinational enterprises are incorporated on the territory of European countries, the latter’s domestic legislation and the EU legal framework are worthy of examination. This Conference, to be held on 29 – 30 May 2017 at the Università Degli Studi di Milano, aims at identifying the solutions offered in Europe to Business & Human Rights (B&HR) international law issues and at providing an overall assessment of their effectiveness. For further information, see here. The deadline for submission of abstracts is 31 January 2017.

Ten Good Reads for Christmas – Editor-in-Chief’s Choices for 2016

ejiltalk.org - Fri, 12/23/2016 - 10:00

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalised accounts of the reading experiences of our Board members. We begin with our Editor-in-Chief’s selection.

As is now our custom, I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – seven in all – are actually all relatively recent. Though typically I list the books in no particular order, I make an exception this time for the first in the list, Philippe Sand’s East West Street.

Philippe Sand, East West Street (Knopf, 2016)

East West Street is simply a must read; forgive the cliché for a book which is the opposite of cliché. It is both a Law Book and Book about the Law, as the subtitle indicates: On the Origins of Genocide and Crimes Against Humanity. But it is so much more. It has novel-like qualities (and a very fine novel at that) in weaving together the lives of its various protagonists as well as being an altogether not kitschy personal roots exploration of the author, Philippe Sands himself. He is not only author but decidedly one of the protagonists. It is not exactly a page-turner – that would actually diminish the quality and achievement of Sands, but despite its considerable length, it is hard to put down. You will learn a lot, become wiser and be moved in more ways than one. Last year I sang the praise of Sebald. Sand’s book has Sebald qualities and there is no higher praise in my evaluative vocabulary.

Mario Vargas Llosa, Travesuras de la niña mala (Alfaguara, 2006)

Travesuras de la niña mala by Nobel Prize winner Mario Vargas Llosa was an easy choice, even if I typically prefer his essayistic writing to his novels. It is a very traditional novel in style – which is one of its attractions. You will not be struggling with post-modernist experimentation, which is wonderful when it works (not often) and awful when it does not (frequently). The story begins with the first love of a 14 year-old (the dates, at least, correspond to Vargas Llosa’s own time line). It is no less than marvellous the ability of a 70 year-old to describe with such delicate and empathetic precision the mental world of the young protagonist – el niño bueno – whose enduring love affair with the complex and compelling niña mala the novel tracks. Not a ‘masterpiece’ but a piece of wonderful writing by a master that will stick in your mind.

Patrick Pasture, Imagining European Unity Since 1000 AD (Palgrave Macmillan, 2015)

Imagining European Unity Since 1000 AD is an expensive book – and sadly so because it deserves to be much more widely read than will be the case with this price tag. Patrick Pasture combines history with historiography in a compelling narrative that has a strong critical, at times even acerbic, tint. It is learned, impressively so, without being boring for even a single page, and it is subversive since it shows the dark sides of the noble quest for peace – an inbuilt tendency of the integration project to suppress diversity and to dominate. The current circumstance of Europe gives it a particularly sharp edge. A good read.

Ricardo de Ángel Yágüez, ¿Es Bello el Derecho?  (Civitas, 2016)

¿Es Bello el Derecho? by Ricardo de Ángel Yágüez is the kind of book that one does not, even should not, read cover to cover in one gulp. It is a smorgasbord that one can savour not only from the author’s own thoughtful reflections on the aesthetics of law but no less from his inspired and instructive anthology of academic and artistic illustrations of such. As a ‘nomist’ I have always seen the beauty of Nomos (as well as its ugliness and insufferable boringness) in its content – otherwise how could you work your way through even one page of the 7000-page Talmud? As a common law lawyer I once referred to procedure as the poetry of the law, perverse as that may sound. There is much evidence in this book to show that I am not alone in such thinking. But I never contemplated a legal aesthetic in the manner we associate such with beaux arts. Well here is a correction to that.

Olivier Dupéré, Constitution et droit international (Institut Universitaire Varenne, 2016)

Books resulting from a journée d’études, this one taking place at the University of Bordeaux back in 2013, are usually uneven in quality, poorly edited, if at all, and creaky in the mutual fit of the various contributions. Count this one as something of an exception. I cannot assess how it will be judged by our French colleagues, but, if like me, you yourself are creaky in your overall grasp of the historiography of French public law thinking in the 20th century, you will I expect, like me, find this book not just illuminating but close to indispensable. It is also one of those rare cases where reproduction of some elements of the discussion in the journée d’études actually makes sense and enhances the overall utility and even pleasure of the book. Another good read.

David Bellos, Georges Perec: A Life in Words: A Biography (D.R. Godine, 1993)

This recommendation is a two-for-the-price-of-one. If you are not familiar with the work of Perec, hang your head in shame or be thrilled with anticipation of the delights that await you. Delight is, perhaps, not the mot juste for there is a definite darkness to both his life and his work. It is difficult to know where to start. I would not begin with what is considered, justly, his masterpiece Life, A User’s Manual. It makes sense to read that after acquaintance with his shorter, more accessible work. W, or the Memory of Childhood is autobiographical (to a point), poignant and compelling. You will not put it down once you begin. The word ‘delight’ would be appropriate for La Disparition, which is a French language novel which manages not once to use the letter e – can you imagine that? (And even more beguiling is the success of Gilbert Adair in translating the novel into English without the letter e either. I have a prized translation into Italian which manages the same feat too). Les Revenentes is a short novella in which the only vowel used is e. (I am unaware of a translation of that into English). Both, the first more than the second, are actually subtle and even profound works. Three is much more to choose from. It is, thus, with surprise that I discovered, only this year, David Bellos’ 1993 biography. For those of you who are familiar with the work of Perec, this biography is so worth reading by an author who demonstrates a profound understanding of the work (he is one of Perec’s translators) and the life. It prompted me to go back to W and read it with an altogether new understanding.

Monica Garcia-Salmones Rovira, The Project of Positivism in International Law (Oxford University Press, 2014)

The Project of Positivism in International Law by Monica Garcia-Salmones Rovira is another victim of excessive pricing and thus her book has not received in my view the attention that it merits. It is a reworking of the author’s extraordinary doctoral dissertation written under the supervision of Martti Koskenniemi: Full Disclosure– I was the ‘opponent’ (an archaic and both serious and endearing practice in Finnish doctoral defences) of the dissertation and its external examiner. It is not an easy read – dense and detailed. But it is worth the effort in not only understanding a trend that dominated international law for most of the 20th century but also for the insight it gives into the work of Kelsen and Oppenheimer.

Julio Ramón Ribeyro Zúñiga, La palabra del mudo (Seix Barral, 2010)

One does not think of Rebeyro in quite the same breath as, say, Borges or Cortazar. But he, too, is a master of the short story. He is at his vicious (yes) best in describing the social – whether at work or at home. You cannot help but laugh somewhat discomfortingly with him at his ‘victims’, because want it or not, you too are an object of his ironic arrows. He is without peer in exploring the mood and circumstance of disappointment – but the breeziness of the writing, the irony and the humour take the sting out of these often profound observations of the human condition. Many of his stories have been translated into English – if you want to start somewhere look for Té literario – it is one long chuckle all through this short piece. You will certainly go back for more.

Marise Cremona, David Kleimann, Joris Larik, Rena Lee, Pascal Vennesson, ASEAN’s External Agreements: Law, Practice and the Quest for Collective Action (Cambridge University Press, 2015)

Pieter Jan Kuijper, James Mathis, Natalie Morris, From Treaty-making to Treaty-breaking: Models for ASEAN External Trade Agreements (Cambridge University Press, 2015)

These two monographs are part of the multivolume series ‘Integration through Law: The Role of Law and the Rule of Law in ASEAN Integration’ of which I am Editor alongside Dr Hsien-Li Tan. There is generally speaking a dearth of research and knowledge concerning the legal dimensions of ASEAN and even more so when it comes to the rich practice of ASEAN treaty-making. I single out these books because together they not only close this academic lacuna in this area of ASEAN studies but they veritably constitute the field ex nihilo. Read together they provide structure, create categories and identify cognitive and policy challenges which the at times erratic and ad-hoc nature of the practice throws up. I single them out, too, because they are of considerable utility given the stasis of the WTO and the turn to regional and mega-regional organizations in international (economic) law. In this respect they will be for some time to come an essential conceptual reference point.

Mary Oliver, Felicity: Poems (Penguin Press, 2015)

Like my recommendation of Travesuras de la niña mala, it is hard to make a mistake with celebrated and beloved poet Mary Oliver. She has been writing for as long as I remember reading poetry in English. If you are ‘… in the mood for love’ you will find both elation and melancholy, introspection and precision in her recent collection. It is hard for me to imagine that anyone will not find something to be purified by, to read and reread with quiet contemplation. A very perfect gift.

Author’s Response: The Politics of Gender Justice at the ICC: Legacies and Legitimacy

ejiltalk.org - Thu, 12/22/2016 - 09:00

I am immensely grateful to the EJIL:Talk! Editors for sponsoring this discussion and to Mark Drumbl, Patricia Viseur Sellers and Valerie Oosterveld for their thoughtful and detailed responses to my book The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. It is a true honour for me to have had these three esteemed international law experts carefully read and comment on my work. Their eloquent responses captured aspects of my argument better than I ever could, and I thank them for helping me to think more clearly about how the different facets of the book speak to various audiences, and the work that still needs to be done in understanding gender and other intersecting injustices under ICL.

I was heartened that both Patricia and Valerie responded favourably to my positioning as a ‘critical friend’ of the ICC, and the ICL feminist legal project more broadly. Immersing myself in the critical feminist law literature in recent years, I quickly realised many of its core critiques are similar to those of some feminist political scientists and sociologists who regard feminist engagement with ‘the state’ as a dangerous project, likely only to lead to co-option and shoring up a patriarchal institution (see my analysis of these debates here). While not dismissing the limitations, compromises, challenges, and indeed losses that can come with engagement with any aspect of the law – including ICL – I have also felt some unease with arguments that recommend rejecting the feminist legal project in its entirety. This comes from my deep pragmatic impulse. If gender justice advocates withdraw from engagement with powerful institutions – be they courts, state bureaucracies, or legislatures – these institutions won’t stop regulating our lives. However, in the absence of feminists holding them to account, such institutions may well do a much worse job of addressing gender injustices manifested through misrecognition, misrepresentation and maldistribution. To my mind, walking away from the feminist legal project (or indeed the political or bureaucratic one) is in my view a backward step. I think the more difficult path is to enter the fray, to persist in seeking out institutional ‘soft spots’, to push for and build on incremental changes – that in themselves can be transformative – and to attempt to hold the line when the next inevitable wave of resistance and backlash occurs.

As Patricia and Valerie highlighted in their comments, it is important not to see feminist engagement with the law in dichotomous win/loss terms, including as Valerie rightly points, in relation to the definition of gender in the Rome Statute. Whereas many feminist critics have criticized the definition as a comprehensive failure for gender justice advocates, Patricia rightly notes that I do not deem the outcome as fatal. Instead, as Patricia explains, I draw upon Valerie’s “subtly voiced” notion of ““constructed ambiguities” that exist even in the face of a less than salient win or a terse compromise”. Constructive ambiguities, as Valerie’s work has shown, and as I point out in the book, can cut both ways. At the ICC, these ambiguities have helped in developing a gendered understanding of representation and of reparations and assistance through the Trust Fund for Victims. However, as yet they have done little to improve gender recognition, including through an interpretation of the definition of gender agreed to at Rome, or as Valerie points out, a range of other crimes, including forced marriage or gender persecution. Moreover, the extent to which these ambiguities have been exploited in ways that improve gender justice has largely been dependent on the presence or absence of focused and forceful gender justice advocates –including, it should be noted, Patricia and Valerie themselves, Judge Odio Benito, Prosecutor Bensouda, Brigid Inder, and key organisations such as the Women’s Caucus followed by the Women’s Initiatives for Gender Justice – operating within and outside the ICC. In it has mattered to the achievement of gender just outcomes that there have been feminist voices in and around the ICC in its early years.

These concepts of critical friendship and constructive ambiguity help me to address Mark’s question: “Why is it, then [given its retributive focus], that advocates for gender equality invest greatly in the prosecutorialism of an international penal institution?” With this and his subsequent questions, Mark makes important points, which requires more detailed responses than I can provide here, but I will give three brief reactions. First, I think we need to remember that a prosecutorial strategy is not the sole or even primary focus of feminist action in seeking conflict and post-conflict justice. Gender justice strategies are multi-pronged, with feminists strongly invested in seeking justice through transitional justice mechanisms (see Ni Aolain, Haynes and Cahn for examples), as well as in peace processes and in conflict prevention, as the exhaustive efforts around the Women Peace and Security agenda demonstrate.

Second, I think Mark is right in intimating that feminists have engaged with international criminal law as a pragmatic response to the development of international tribunals including the ICC, and  as I discuss in the book, speaks to the ‘nestedness’ of the Court in the broader system of international relations. As the Court was coming into being, feminists were organising across international legal venues, including the ad hoc tribunals and more broadly through the UN Beijing Platform for Action. As Valerie has argued elsewhere, with the ICC: ‘we came to the conclusion that the train is in the station, the train is leaving the station, if we do not jump on the train right now, what is going to be the outcome?’ For those active in the international feminist community at the time, engagement with the Court was risky, but for many not engaging was riskier.

Third, it seems a reasonable proposition that victims of all crimes, including sexual and gender-based violence, should have access to access to all available accountability venues, including retributive processes given they are and are likely to remain an ongoing feature of the international and national legal landscape.  As ICTY Prosecutors Serge Brammertz and Michelle Jarvis demonstrate in their excellent edited collection on prosecutions for conflict related sexual violence, through trial and error, international tribunals are gradually learning how to contextualize conflict related sexual violence and to appreciate how it is integral rather than incidental to other acts of violence. With this deeper understanding comes a better chance of successful prosecutions for SGBV, resulting in the end of impunity for perpetrators and better recognition of the harms suffered by victims. In a more perfect world, we might also see the expressive power of prosecutions, and their ability to deter the commission of these sexual and gender-based violent acts in future conflict. Even so, such an approach will only ever be one strategy among many for seeking to prevent and seek justice for conflict-related sexual and gender related violence, and, ultimately, to understand and undo the gendered foundations of the law.

My final response relates to the issue raised by all three commentators about the approach to gender taken in The Politics of Gender Justice at the International Criminal Court. I agree with Patricia’s comment that ‘the book under-develops the impact of inter-sectional fault lines other than gender’; my reading of gender was a relatively narrow one, and was focused on the effect of gender legacies primarily on women. I explain in the book that I think this approach to gender is an important first step, but I agree that as a result, the book doesn’t capture how these legacies also affect men – including through privilege and through the enactment of different gender biases on male victims of sexual violence for instance. Nor does it address how gender intersects with other identities, including sexuality or race. As Mark points out, my book also doesn’t speak directly to the issue of female perpetrators. As this is a matter yet to come before the ICC, there wasn’t an opportunity to provide a detailed discussion, but with the possibility of a case coming before the Court against former First Lady of Côte d’Ivoire, Simone Gbagbo, it could become a very salient concern in future. (As a side note, I look forward with great anticipation for the imminent release of Laura Sjoberg’s new book on this topic, Women as Wartime Rapists).

With a potentially transformative mandate, the ICC has an important role in the broader matrix of international justice and accountability to ‘surface’ gender biased assumptions of the law and to end impunity for sexual and gender-based crimes. The ICC is still a very new institution, just entering its adolescence. As we receive news of key African states, including South Africa and Burundi, indicating their intention to withdraw from the Rome Statute, we can only hope that the Court survives into adulthood to advance both gender justice, and in Mark’s terms, ‘other fault-lines of gruesome injustice’.

Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes. Book Discussion

ejiltalk.org - Wed, 12/21/2016 - 09:00

Louise Chappell unpacks how gender justice advocacy at the International Criminal Court contests the gendered legacies of international criminal law. Deploying a feminist institutionalist framework, Chappell provides an anatomy of these advocacy efforts in the establishment of the Rome Statute regime as well as in the ICC’s actual operations. Chappell offers a detailed road-map of gender at the ICC, and does so through a powerful (and seamless) synthesis of qualitative, quantitative, and expository methodologies. In short: her superb book is a must-read.

Chappell unfurls how gender advocacy nested within the ICC. The ICC, assuredly, is not an island. Concerns about gender justice animate the work of other international courts and tribunals. Both concurrently and previously to the ICC, these other tribunals advanced goals of equal representation in international institutions and criminalized acts of gender- and sexual-based violence. The ICTY, for example, confirmed in Furundžija that rape and other forms of sexual violence in armed conflict are war crimes. It also ruled that rape and sexual violence could constitute the actus reus of torture. The ICTR held in Akayesu that rape can constitute genocide as an act integral to the destruction of a group.  Furthermore, as Darryl Robinson and Gillian MacNeill note, in addition to defining rape the two ad hoc tribunals also ‘recognized many other forms of sexual and gender based violence, including sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature.’ The ad hoc tribunals also developed procedural rules of evidence that promoted gender justice by protecting witnesses who came forward to testify. Finally, the Special Court for Sierra Leone merits mention. Its ground-breaking work on sexual slavery and forced marriage as an ‘other inhumane act’ has informed the proceedings currently underway at the ICC against the LRA’s Dominic Ongwen.

Gender justice at the ICC cannot be disentangled from gender justice in the enforcement of international criminal law generally. Building on developments from outside its institutional parameters, the ICC also has actuated broader understandings of sexual and gender-based violence prosecuted within its jurisdictional remit. The 2016 Bemba trial judgment, for example, condemns sexual crimes committed against men and boys.

Gender justice initiatives at the ICC remain entwined with other advocacy movements. Notable in this regard is the push for children’s rights. The pairing of women’s rights with children’s rights – while perhaps seeming somewhat odd – does reflect the historical association, in Diane Marie Amann’s words (cited by Chappell),  of ‘women and children as bystanders, beings not fully conscious of the world around them’ within the Groatian Weltanschauung.

Chappell excels at setting out how gender advocacy experienced success – at times groundbreaking, but often mixed – at the ICC. As Serge Brammertz and Michelle Jarvis demonstrate in their recent edited volume, accountability for sexual violence still remains a work-in-progress. Nonetheless, gender has assumed a rightfully crucial place. To borrow conceptually from Christine Schwöbel-Patel, gender justice now infuses the aesthetics of international criminal law.  For Chappell:

[T]he ICC’s gender justice constituency […] is an important audience given the influential role it played during Rome Statute negotiations and throughout the early years of its implementation. For the ICC to lose the support of this constituency because of poor performance would create a serious legitimacy crisis.

Chappell catalyzes gender justice as ‘the yardstick by which the performance of the ICC is to be measured’ (5).

This move raises a number of interesting questions. The ICC is a criminal court. Its goal, first and foremost, is to determine the guilt or innocence of a very small number of accused in accordance with agreed-upon rules of due process. The primary outputs of a criminal court are convictions and sentences. It is hoped that by punishing offenders deontological goals of retribution, consequentialist goals of deterrence, and expressive goals of the value of law will be promoted. Yet criminal courts are punitive, repressive, and coercive institutions that are seen by many activists as accoutrements to exploitative hierarchies and endemic discrimination within the neo-liberal state. In fact, at the domestic level, human right activists tend to be wary of criminal courts and frequently preoccupy themselves with the rights of the defense. Why is it, then, that advocates for gender equality invest greatly in the prosecutorialism of an international penal institution? Is it because the ICC was coming into existence – regardless –  so it’s best to make it the best it can be; or because it is felt that criminal courts are a first-best place to achieve goals of dignity, empowerment, and equality for women? If the latter, then, should criminal courts and jailhouses serve more of a role in domestic rights enforcement? If the former, then, does investing so much in the ICC divert from other strategies and institutions that could promote equality?

Relatedly: Why is it that gender justice has succeeded in infusing the mandate of the ICC to a richer extent than other fault-lines of gruesome injustice, such as (dis)ability, sexual orientation, colonialism, indigeneity, socio-economic disenfranchisement, racism, environmental welfare, and corporate responsibility?  It is only very recently, for example, that the ICC Prosecutor has begun to talk seriously about environmental justice and corporate land-grabs, not to mention cultural crimes.

Chappel’s book focuses on women as witnesses to the violence of others, women as victims of the violence of others, and on women who investigate, prosecute, judge, administer reparations, and otherwise serve within international criminal justice institutions.

But what about women who perpetrate violence, including genocide, crimes against humanity, and war crimes?

Here, essentialisms, taboos, and stereotype abound.

A handful of women have faced international prosecution. Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development, is one prominent example. I have elsewhere argued that, while ICTR judges manicured a cardboard perspective that detached her from her sex and gender, media reports and litigation strategies cooked crude tropes. She, along with her sympathizers, relied upon her status as a woman, mother, and grandmother to ridicule the charges against her as absurd, implausible, or farcical: how could a maternal figure commit genocide, in particular exhort the mass rape of other women including by her own son? Nyiramasuhuko’s critics invoked her gender in the most punitive sense by insisting that her violence was all the worse, and her character all the more depraved, because she was a woman, mother, and grandmother: the fact that she committed these crimes rendered her more deviantly deserving of recrimination and punishment than a man.

Media curry caricatures to sensationalize and spectacularize. Hence, similar dynamics infect other discussions of women perpetrators, both today and historically. Animalistic language often arises. Irma Greise, a female SS guard convicted in the British military trial at Belsen, was lampooned in the media as the ‘beautiful beast’. Greise – twenty-two years old at the time – was executed by hanging on 13 December 1945.

Francisco de Goya y Lucientes also deploys the term ‘beast’ in his series Desastres de la Guerra (‘The Disasters of War’), created between 1810 and 1820 yet published only after his death. The eighty-two etchings and aquatints depict scenes of Spaniards fighting against Napoleon’s forces who had invaded Spain in 1808.  Goya did not laud heroism in his work. He laid bare war’s destructive effects. Even more so than Peter Paul Rubens, whose work regales the cover of Chapell’s book, Goya saw nothing but horror in war; and, again unlike Rubens, Goya portrayed women – civilian women, at the lowest ebb of power – as attackers, defenders, and assaulters. Goya titled his print depicting Spanish women fighting to protect themselves and their children from French soldiers ‘And they are like wild beasts’ (Y son fieras). For Goya, as for the journalists who derided Greise, women thereby became feral and rabid. Here it is in all its grimness, Plate 5 from the series:

With some exceptions – here and here and here, for instance – relatively little is known about women perpetrators of international crimes. It is important to learn more.  Without learning more, and without decoupling these conversations from salacious tropes of wild women or pitiful tropes of distressed women, the etiology of mass atrocity will remain poorly understood, along with the role of masculinities and femininities in the metastasis of collective violence.

 

Gender Justice Legacies at the ICC. Book Discussion

ejiltalk.org - Tue, 12/20/2016 - 14:00

Louise Chappell’s The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is a wonderfully-written account of the recent history of the International Criminal Court’s (ICC’s) role in promoting gender-inclusive justice. Her book demonstrates deep thinking and cogent analysis. It brings together three strands of political and legal theory – gender justice, feminist institutionalism, and the legitimacy of international organizations – to provide a unique analytical perspective on the mandate of the ICC and its implementation of the gender-related provisions in the Rome Statute. Ultimately, her interdisciplinary analysis provides a convincing analysis of gender-related developments within the Rome Statute and within the ICC.

Adopting a definition of gender justice from social theorist Nancy Fraser (p. 5), Chappell approaches the term from three directions: redistribution; identity recognition; and representation. Quoting Fraser, Chappell explains that redistribution focuses on addressing women’s exploitation, deprivation and marginalization (p. 6). Recognition involves instilling institutional patterns that express equal respect and opportunity for women and men (p. 6). Representation is focused on creating new rules and structures of inclusion, often through procedural means (p. 6).

Throughout the book, Chappell approaches her analysis from the point of view of “critical friendship”. Chappell and Mackay define critical friends as those who offer “sympathetic critique and make contextual judgment. They celebrate the ‘small wins’ that feminist insiders may make against the odds, and expose the gendered obstacles and power asymmetries that blunt reformist potential” (p. 9). This situates Chappell in a middle position between those who strongly critique the involvement with, and decisions taken by, feminist actors in the creation and implementation of international criminal courts and tribunals (such as Halley) and those who champion these same institutions. I see much value in this position of “critical friendship”. It allows Chappell to examine the ICC in the realistic and temporal context within which the Rome Statute was negotiated, and to recognize the confines of the Statute’s implementation and the Court’s operation. At the same time, the position of critical friendship permits Chappell to identify where inroads made at each of these stages can lead to incremental change in favour of gender-sensitive forms of criminal justice.

In this post, I wish to focus on two issues that were raised in Chappell’s book, but not developed in detail. First, I wish to comment upon the legacy surrounding the definition of the term “gender” adopted during the Rome Statute negotiations. That definition states, in article 7(3): “The term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Chappell examines the negotiations in some detail in chapter 2. As she discusses, and as I have described here and here, the negotiations on the term “gender” were contentious and polarized between states supportive of a multidimensional understanding of gender and conservative states wishing to restrict the term to mean biological sex. The negotiations resulted in the adoption of a definition that recognized that gender is socially-constructed, while at the same time remaining opaque on how that social construction is to interact with the phrase “two sexes, male and female”. This is an example of a diplomatic move, referred to as resort to contructive ambiguity, used in many treaty negotiations to seemingly bring contrasting views together for agreement. As I have described, “each side gained vague language that can simultaneously mean different things to different people. They also both lost some certainty, in that the actual interpretation was left to the Prosecutor and, ultimately, the judges of the ICC”.

Chappell underscores that this “emergence of an imperfect blueprint” shaped the future path of the ICC (p. 47). While Chappell only hints at this, in my view the legacy of the contentious negotiations created initial uncertainty among ICC staff and officials as to the meaning of gender in the ICC context. This made them reluctant to use the term in contexts in which it might be challenged by defence counsel. Indeed, one senior ICC official confided to me years ago that many were unsure what to make of the definition, if it meant more than “women”. Chappell comments on this conflation of “gender” with “women” as a misrecognition (using Fraser’s definition) (p. 90). She could have gone further to argue here, as she does elsewhere, that, in an effort to avoid an exploration of article 7(3), those within the ICC turned to “remembering the old” and “forgetting the new” for many years (p. 127). In other words, they largely preferred stay in the safe confines of conflating “gender” and “women” than to press beyond into the realm of socially-constructed norms of maleness and femaleness. As Chappell notes, the exception was the Trust Fund for Victims, which was an early adopter of a sociological understanding of gender in its programming (p. 152).

In 2010, the Office of the Prosecutor finally appeared ready to confront article 7(3) by charging Callixte Mbarushimana with, inter alia, the crime against humanity of gender-based persecution. However, that opportunity to explain the meaning of gender to the Court was cut short by the dismissal of the case at the Confirmation of Charges stage. Chappell labels this as another example of misrecognition (p. 122). This failure seemed to put a chill on further persecution charges based on gender.

This apparent reluctance to tackle the complexities of gender changed, however, with the release by the ICC’s Office of the Prosecutor of its 2014 Policy Paper on Sexual and Gender-Based Crimes. Chappell situates the issuance of this Policy Paper in the framework of recognition, arguing that it is an example of “revisability” – in this case, of the Office of the Prosecutor recognizing its initial missteps and redirecting its future path (p. 124-6). I agree with her that this is an example of revision and redirection within the Office of the Prosecutor, and would add that this is particularly so with respect to the article 7(3) definition. I consider the Policy Paper’s discussion of the definition of the term “gender” to be both confirmatory and revolutionary in its understanding of the wide-ranging impact of socially-constructed gender norms.

The Policy Paper reiterates the official definition of gender stated in article 7(3) of the Rome Statute, and interprets that definition as “acknowledging the social construction of gender, and the accompanying roles, behaviours, activities and attributes assigned to women and men, and to girls and boys” (p. 3). The Office of the Prosecutor also defines the terms “gender-based crimes” and “gender perspective” in a manner to acknowledge the deep influence of gendered norms on both. The term “gender-based crimes” is described as crimes “committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender” (p. 3). The Office of the Prosecutor explains “gender perspective” as “an understanding of the differences in status, power, roles and needs between males and females, and the impact of gender on people’s opportunities and interactions” (p. 6). While this Policy Paper cannot bind the Court, it takes a groundbreaking step toward a nuanced and fulsome recognition of gender norms. Consequently, Chappell would undoubtedly acknowledge that this is a significant step away from misrecognition, as she does for other aspects of the Policy Paper (p. 124-6).

The second theme I wish to explore in relation to Chappell’s book relates to a violation sometimes referred to as forced marriage (or conjugal slavery). Chappell skillfully explains the negotiations around the inclusion of a number of sexual and gender-based violations in the Rome Statute as crimes against humanity and war crimes, and indicates that the inclusion of these violations is a form of recognition (p. 92-97). One gender legacy she does not explore in this section relates to forced marriage, but it demonstrates the “spatial nest” (p. 93) in which the Rome Statute negotiations occurred. At the time of the Rome Statute negotiations, there was no legal recognition of forced marriage as a violation separate from any of the recognized sexual and gender-based violations under international criminal law, particularly rape and sexual slavery. Commentators at the time referred to forced marriage as a form of sexual slavery (e.g. this 1996 Human Rights Watch report). Thus, states did not include forced marriage as a separately-named violation in the Rome Statute.

The Special Court for Sierra Leone later examined forced marriage in detail and indicated that it is not solely a sexual violation: in the context of Sierra Leone, it was a violation encompassing highly gendered forms of forced labour such as forced cooking, cleaning, portering, child-bearing and child-rearing, as well as sexual slavery (see here and here for my commentary on these cases). In other words, the Special Court identified forced marriage as a gender-based crime. Despite this evolution in the understanding of forced marriage within international criminal law, and perhaps because of the lack of certainty over the exact parameters of the crime, the ICC’s Prosecutor was reluctant to stray beyond the legacy of the 1998 understanding of forced marriage as sexual slavery. This is reflected in the Katanga case, in which forced marriage in the conflict in the Democratic Republic of Congo was labelled as sexual slavery (E.g. in para. 431 of the 2008 Decision on the Confirmation of Charges). This reluctance is also evident in the Policy Paper on Sexual and Gender-Based Crimes, which does not engage with forced marriage, but does discuss sexual slavery. However, in another example of the Prosecutor’s willingness to alter her strategies around gender-based crimes, which Chappell terms “revisability”, the Prosecutor charged forced marriage (under the crime against humanity of ‘other inhumane acts’) in the Ongwen case, and this characterization was upheld in the Decision on the Confirmation of Charges at, inter alia, paras 87-95. Such revisability is key to reinforcing the expressive function of international criminal law, particularly in recognizing the gendered nature of specific crimes.

In sum, Chappell’s book represents a significant and noteworthy contribition to the literature on the ICC specifically and gender justice more generally. Clearly, there is still work to be done to examine – and sometimes undo – negative gender legacies within the ICC and other sites of interpretation in international criminal law. In my view, Chappell’s volume should be read by all those interested in the ICC, whether practitioners or academics, and not just the sub-group of those interested in gender issues within international criminal law.

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