In this article we re-describe the relationship between international law and the nation-state, reversing the usual imagined directionality of the flow between the two. At its most provocative, our argument is that rather than international law being a creation of the state, making the state is an ongoing project of international law. In the article, we draw on the example of the institutionalised project of development to illuminate the ways in which international law creates, and maintains nation-states, and then recirculates from a point ‘within’ them.
Saturday, June 2, 2018
Efrony & Shany: A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyber Operations and Subsequent State Practice
The Tallinn Manuals represent a notable attempt by prominent international lawyers to facilitate the regulation of cyber operations by international law. In this article, we attempt to evaluate the degree to which international law, as reflected inter alia in the Tallinn Manuals, is influencing now and is likely to influence in the near future State conduct. This evaluation is based on mapping the principal reactions to the Tallinn Rules found in the academic and professional legal discourse, and – more significantly – through investigation of a 11 major incidents occurring after the first Tallinn Manual was published, which appeared to invite the application of international jus ad bellum and jus in bello norms. Our principal findings are that there appears to be only limited support in actual State practice and opinio juris for certain key Rules in the Tallinn Manuals. More significantly, several States heavily engaged in cyber operations appear at this point in time to have a limited interest in promoting legal certainty regarding the regulation of cyberspace.
- Philippe Cavalieros & Janet (Hyun Jeong) Kim, Emergency Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations
- Wolfgang Kühn & Hanneke van Oeveren, The Full Recovery of Third-Party Funding Costs in Arbitration: To Be or Not to Be?
- Patrick Dumberry, State Succession to BITs in the Context of the Transfer of Territory of Macao to China: Lessons Learned from the Sanum Saga
- Olga Sendetska, Arbitrating Antitrust Damages Claims: Access to Arbitration
- Jingzhou Tao & Mariana Zhong, China’s 2017 Reform of Its Arbitration-Related Court Review Mechanism with a Focus on Improving Chinese Courts’ Prior-Reporting System
Die Arbeit widmet sich der Analyse des Gesetzlichkeitsprinzips im Völkerstrafrecht. Der Autor arbeitet die internationale Entwicklung dieses Grundsatzes heraus, berücksichtigend, dass dieses komplexe Thema mit der Legitimität der Ausübung der Strafgewalt auf internationaler Ebene unmittelbar verbunden ist. Ausgangspunkt der Untersuchung ist ein Rechtsvergleich des Rückwirkungsverbots im englischen und deutschen Strafrecht. Der Autor schlägt eine spezifische Konzeption der völkerstrafrechtlichen Legalität vor und entwickelt einen Mindeststandard hinsichtlich des Gesetzlichkeitsprinzips für das Völkerstrafrecht, der auch für praktizierende Juristen von Bedeutung ist. Darüber hinaus liefert die Publikation eine theoretische Fundierung der internationalen Legalität, die zugleich einen Beitrag zur Begründung des Völkerstrafrechts bildet.
Friday, June 1, 2018
Call for Papers: The EU as a Global Actor in Maritime Security: Competences—Obligations—Accountability
Talmon: The Obligation to Investigate and to Cooperate with Investigations of Unlawful Cross-Border Killings under Article 2 of the European Convention on Human Rights
Article 2 of the European Convention of Human Rights requires High Contracting Parties to take appropriate steps to safeguard the lives of those within their jurisdiction, and to conduct investigations into unlawful killings. Each year, hundreds of suspects of unlawful killings flee the country of their crime. This raises the question of whether in such cross-border situations both the High Contracting Party where the killing occurred and the High Contracting Party where a suspect or evidence of the crime is present are under an obligation under Article 2 to investigate the killing and to cooperate with each other’s investigation, and whether the High Contracting Party to which a suspect has fled is under an obligation to extradite the suspect.
In Güzelyurtlu v. Cyprus and Turkey the European Court of Human Rights (Third Section) held that both respondents were under an obligation to investigate a murder and to cooperate with each other’s murder investigation where there are cross-border elements to an incident of unlawful violence leading to loss of life.
This paper shows that the findings of the Court were mistaken and that in the absence of any special features only the High Contracting Party where the unlawful killing occurred is under an obligation under Article 2 to investigate and to cooperate with the investigations of foreign police and judicial authorities. The paper also establishes that the obligation to cooperate under Article 2 must be determined by reference to the High Contracting Parties’ existing international legal rights and obligations in the area of mutual assistance in criminal matters and that Article 2 does not give rise to any new independent substantive obligation, in particular, an obligation to extradite.
This book covers the relationship between the jurisdictional immunities of States and international organizations, addressing their similarities and dissimilarities. Their relationship with diplomatic immunity is also examined. It considers that the immunity of international organizations was historically conceived in terms of State immunity. The major aim of this book is to clarify the conceptual confusion that has often marred the understanding of the law of the, different but interrelated, jurisdictional immunities of both States and international organizations. The approach is to holistically analyze and synthesize select and relevant opinions of international and national courts. To achieve this, the book focuses more on what the law is than on what it should be. An understanding of the law is more useful to a practitioner than a criticism of it. The book is not an exegesis on everything immunity. The jurisdictional immunities of heads of State and of diplomats are beyond the scope of this book, and are only tangentially examined. The book concludes by making the case that the jurisdictional immunities of States and international organizations are not only sustainable but also necessary for international relations and cooperation. The author intends to position the book to be of use both to scholars and practicing lawyers and legal advisers in government and international organizations, as well as to lawyers whose practice concerns issues and laws of privileges and immunities.
Sivakumaran: Armed Conflict-Related Detention of Particularly Vulnerable Persons: Challenges and Possibilities
Persons detained for reasons related to an armed conflict are in a vulnerable position. Deprived of their liberty, they are at the mercy of their captors. Certain groups of detainees are particularly vulnerable. Additionally, the way in which non-international armed conflicts are fought can make it difficult for some parties to the conflict to comply with the rules benefiting particularly vulnerable detainees. This Article identifies groups of particularly vulnerable detainees and analyzes the general and special protections that are afforded to them under the conventional and customary international law of armed conflict. It then considers the realities of detention in armed conflict and sets out different ways in which these realities can be balanced with the importance of the protections for vulnerable groups. Finally, drawing on the law of international armed conflict, the Article considers how possibilities including the release and repatriation of particularly vulnerable detainees and the accommodation of such detainees in a third State could be implemented in a non-international armed conflict.
Thursday, May 31, 2018
van Sliedregt: The ILC Draft Convention on Crimes Against Humanity - Criminalization Under National Law
This paper discusses Article 6 of the International Law Commission's (ILC) draft articles on crimes against humanity, which deals with criminalization of crimes against humanity in national law. The provision uses neutral and generic terms to describe criminal responsibility. This is appropriate for a treaty like the one which could result from the ILC articles, where it would be left to state parties to enact legislation and to align criminal responsibility for crimes against humanity to existing legal concepts in domestic law. Article 6 is a broad provision, yet it leaves a few gaps. This contribution suggests the insertion and explicit recognition of conspiracy as entailing criminal responsibility for crimes against humanity. Moreover, it proposes a modification of the superior orders defence, allowing reliance on the defence for non-manifestly unlawful orders. The clause on liability of legal persons is welcomed, whereas the provision on superior responsibility is criticized. The latter, mirroring Article 28 of the International Criminal Court's (ICC) Statute, is at the moment vague and unclear. Thus, drafters are encouraged to adopt a 'splitting solution', recognizing a number of separate superior responsibility concepts.
- Monica Hakimi, The Jus ad Bellum’s Regulatory Form
- Kevin Jon Heller, Specially-Affected States and the Formation of Custom
- Notes and Comments
- Shelly Aviv Yeini, The Specially-Affecting States Doctrine
- Christine Gray, The 2017 Judicial Activity of the International Court of Justice
- International Decisions
- Jill I. Goldenziel, Khlaifia and Others v. Italy
- Ángel R. Oquendo, STC 3729/2017. Upon Unconstitutionality Actions 3729, 3751; Against Legislative Bill Bulletin No. 9895-11
- Jason Rudall, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
- Contemporary Practice of the United States Relating to International Law
- Jean Galbraith, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- Anna Spain Bradley, reviewing The Internationalists: How A Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J. Shapiro
- Peter D. Trooboff & Mawuse Barker-Vormawor, reviewing Courts Without Borders: Law, Politics and U.S. Extraterritoriality, by Tonya L. Putnam
- Richard Falk, reviewing Eutopia: New Philosophy and New Law for a Troubled World, by Philip Allott
- Gary Solis, reviewing Military Trials of War Criminals in the Netherlands East Indies 1946–1949, by Fred L. Borch
Wednesday, May 30, 2018
In its Award of 29 October 2015 on Jurisdiction and Admissibility the Tribunal in the South China Sea Arbitration between the Philippines and China reserved consideration of its jurisdiction to rule on eight of the Philippines’ 15 submissions to the merits phase of the proceedings. In its final award of 12 July 2016 the Tribunal decided that it had jurisdiction to consider the matters raised in all but two outstanding submissions and that all claims set out in these submissions were admissible. This paper critically examines the Tribunal’s final ruling on jurisdiction and admissibility. It attempts to understand the Chinese position on the Tribunal’s lack of jurisdiction and put it into a legal framework. The paper is based on extensive archival research shedding new light on the drafting of various provisions of the United Nations Convention on the Law of the Sea. It is shown that the Tribunal’s findings on jurisdiction are seriously flawed, that questions of admissibility have been neglected, and that the Award is, in parts, technically deficient.
- Mikael Rask Madsen, Pola Cebulak, & Micha Wiebusch, Special Issue – Resistance to International Courts Introduction and Conclusion
- Mikael Rask Madsen, Pola Cebulak, & Micha Wiebusch, Backlash against international courts: explaining the forms and patterns of resistance to international courts
- Jed Odermatt, Patterns of avoidance: political questions before international courts
- Ximena Soley & Silvia Steininger, Parting ways or lashing back? Withdrawals, backlash and the Inter-American Court of Human Rights
- Andreas Hofmann, Resistance against the Court of Justice of the European Union
- Salvatore Caserta & Pola Cebulak, The limits of international adjudication: authority and resistance of regional economic courts in times of crisis
- Tom Gerald Daly & Micha Wiebusch, The African Court on Human and Peoples' Rights: mapping resistance against a young court
Brunner: Der „DARIO“ - Artikelentwurf über die Verantwortlichkeit Internationaler Organisationen: Eine kritische Analyse
Aufgrund der zunehmenden Bedeutung von Internationalen Organisationen (IO) ist deren Verantwortlichkeit für völkerrechtswidrige Handlungen mittlerweile eine zentrale dogmatische Frage des Allgemeinen Völkerrechts und auch in der Praxis von größter Relevanz. Insofern befasst sich auch die ILC seit 2002 mit dieser Thematik und präsentierte 2011 den Artikelentwurf über die Verantwortlichkeit Internationaler Organisationen (DARIO). Der Autor bietet nicht nur einen Überblick über das grundlegende Konzept der Verantwortlichkeit von IO, sondern analysiert vor allem auch die Kritik und die bestehenden Sonderfälle sowie praktischen Herausforderungen. Nicht zuletzt versucht das Buch, auch die künftige Entwicklung des DARIO und die Kodifikationsreife der Thematik zu evaluieren.
- Richard Nobles & David Schiff, Trials and Miscarriages: an evolutionary socio-historical analysis
- Hayli Millar & Yvon Dandurand, The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities
- Alexandra Adams, Sexual Slavery: Do We Need This Crime in Addition to Enslavement?
Tuesday, May 29, 2018
The language and logic of humanitarianism occupy an increasingly central place in international law. Humanitarian reason has shaped the ideology, practice, and technologies of international law over the past century, including through the re-description of the laws of war as international humanitarian law, the framing of mass displacement and armed conflict as ‘humanitarian’ crises, the use of humanitarian justifications for intervention, occupation, and detention, and the representation of international law as an expression of the conscience of humanity.
For some, this trend is clearly positive – international law is reimagined as humanity’s law, humanity as the alpha and omega of international law. Yet critics have pointed to the dark side of these developments and of the humanitarian logic operating within international law, arguing that consolidation of the laws of war has served the interests of powerful groups and states at key moments of potential challenge to existing systems of rule, humanitarianism has been taken up as a language to rationalise the violence of certain forms of occupation, intervention, and warfare, international humanitarian law has displaced other more constraining forms of law as the world becomes imagined as a global battlefield, humanitarian NGOs have served as a fifth column that has enabled particular forms of social transformation and constrained others, and a supposedly impartial humanitarianism has displaced politics.
This conference, to be held over three days at Melbourne Law School in 2018, will bring together scholars working in law, history, international relations, and political theory to think critically about the ideology, institutions, practices, and technologies that condition modern humanitarianism and its relation to international law.
Multinational military operations [MNMO] occur in different emanations: They might involve the concerted action of states – (ad hoc) ‘coalitions of the willing’ – participating in a joint military operation in which every state retains command over its troops (‘national command model’) or a ‘multinational integrated command’ is established or – in another variant – national contingents are subjected to the lead or domination of a specific state (‘framework nation’ or ‘lead nation’ model). Furthermore such coalitions may act with the authorization of an international organization [IO] or within its institutional setting under its lead or under the lead of one IO which might be in turn authorized by another IO. The plurality of actors involved and the intricate web of different spheres of authority and control characterizing MNMO pose considerable challenges in terms of ‘accountability’. This contribution is dedicated to their illustration and shall simultaneously critically reflect on the specific schemes international law offers to address the ‘pluriverse’ of ‘accountability problems’ arising when states and IO act together militarily.
After sketching the conceptual contours of ‘accountability’ [I.] as well as the specific features of MNMO that account for the difficulties to hold relevant actors accountable [II.], this contribution will in its main part turn to rules on the ‘international legal responsibility’ of states and IO – a genuinely legal scheme which realizes – ‘accountability’ [III.] before closing with final observations [IV.].
Ullrich: The Law of the International Civil Service: Institutional Law and Practice in International Organisations
Gerhard Ullrich provides an overall review of the employment law of international intergovernmental organisations. In the first part of the book, he explains the basics of employment law and provides statistical data. He comments extensively on the privileges and immunities of international officials. The core of the book is dedicated to the examination of the legal sources for international civil service law. Here, the international administrative tribunals' case law on the general principles of law occupies a particularly broad area. A second legal source are the structures and elements of the statutory employment in international organisations. The author finally comments on the system of legal protection for the staff of the international civil service.
Despite the differences in the employment laws across international organisations, in many aspects it is more than justified today to speak of a unity of the law of the international civil service within diversity. This trend continues. With his overall presentation of the law of the international civil service, Gerhard Ullrich makes an important practice-oriented and legal-dogmatic contribution to this increasingly important part of international institutional law.
Call for Papers - Yearbook of International Humanitarian Law, Vol. 21 (2018)
General theme: Weapons Law
Due: October 2018
In recent years numerous developments have again highlighted the importance of Weapons Law for preventing and regulating armed conflict. The use of chemical weapons in Syria, the ups-and-downs of the Iranian Nuclear Deal or the policies of the current US administration brought NBC weapons back to public attention. The conclusion of the Treaty on the Prohibition of Nuclear Weapons raised high hopes among civil society actors and numerous States but faces rejection by nuclear weapon States. Dual use questions in life-science research have provoked political and ethical debates in numerous member States of the Biological Weapons Convention.
Thus, Volume 21 of the Yearbook of International Humanitarian Law (YIHL) will focus on the general theme: ‘Weapons Law’. Submissions can address the use of weapons in contemporary and future armed conflicts, recent developments in the context of the Biological Weapons Convention and Rome Statute, and ongoing debates on technical developments in cyberspace and with regard to drones and autonomous weapons. The YIHL aims to look at this theme from a variety of perspectives and thus invites submissions from authors with a strict lex lata as well as a lex ferenda perspective, an operational or technical focus, as well as an ethical, philosophical or political science point of view.
Moreover, there is, of course, the possibility to submit articles on international humanitarian law topics not related to the general theme ‘Weapons Law’.
Interested authors should send their submission before 1 October 2018 to the Managing Editor of the YIHL, Dr. Christophe Paulussen: email@example.com. Articles should be submitted in conformity with the YIHL guidelines. The Editorial Board aims to publish Vol. 21 (2018) at the end of the ensuing year, in December 2019 at the latest.