In association with the International Commission of Jurists

May 2013

28 May

[Dr Seline Trevisanut is a Marie Curie Fellow and Assistant Professor at the Netherlands Institute for the Law of the Sea (NILOS)] Cross-posted at SHARES Blog. On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011 (for comments, see here and here). After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. During the 16 days route, survivors told that they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help (see Resolution 1872 of the Parliamentary Assembly of the Council of Europe). The priest alerted the Italian Maritime Regional Coordination Centre, which located the migrants’ vessel and sent out many calls to the ships in the area. Pursuant to survivors’ testimonies, on about the tenth day of their voyage, when half of the passengers were dead, a large aircraft carrier or helicopter-carrying vessel (probably involved in the NATO’s Operation Unified Protector, which was on going at that time off the Libyan shores) sailed near to the boat, close enough for the survivors to see the sailors on board looking at them with binoculars and taking photos. But no one rescued them. Flag states and coastal states have a duty to render assistance to persons found at sea in the danger of being lost and people in distress (Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS)). This core obligation under both treaty law (see also the 1974 Convention on the Safety of Life at Sea (SOLAS Convention), the 1979 Search and Rescue Convention (SAR Convention) and the 1989 International Convention on Salvage) and customary law applies in any maritime zone and in relation to any activity there performed. While implementing this duty states can either perform directly the search and rescue (SAR) operations, namely through their own SAR services, or ask a vessel, which is located in the proximity of the endangered persons, be it any merchant ship or the state vessel of another country, to perform the rescue operation. The texts here mentioned expressly refers to states, flag or coastal. Practice however offers more and more examples of police activities performed under the command of an international organization or a supranational body. A question then arises:
  • who are the bearers of the obligation? Namely, are those ‘entities’ (such as NATO) bound by the duty to render assistance?
The answer could be affirmative only if we consider that the duty to render assistance under customary international law has a wider scope of application ratione personae, if compared with the same obligation under treaty law. The practice however does not allow yet such a conclusion. Another question raised by recent practice concerns the recipient of the obligation:
  • Is the duty to render assistance a purely inter-state obligation or does it entail a right to be rescued for people in distress at sea?
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28 May

The African Union has accused the ICC of targeting Africans on the basis of race and it called for an end to prosecution of Kenya's president and his deputy over crimes against humanity. Fighting rages on in Syria and more reports of the use of chemical weapons by Syria's President Al-Assad have surfaced as well. The EU has lifted its arms embargo...

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27 May

Irini Papanicolopulu highlights the important and sometimes central role that non-state actors have in the whaling disputes between Japan and Australia.  Invoking the traditional lens of international law, she considers whether the actions of Sea Shepherd Conservation Society (SSCS) or the Institute for Cetacean Research can implicate state responsibility. Her conclusion is properly uncertain given the murky relationships between Australia...

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27 May

[Dr Irini Papanicolopulu is a Lecturer at the University of Glasgow and Senior Research Fellow at the University of Milano-Bicocca] Cross-posted at SHARES blog. Whaling disputes are multifaceted. While Australia and Japan are confronting each other in The Hague (see the post by Natalie Klein), Sea Shepherd Conservation Society (SSCS), an American NGO, and the Institute of Cetacean Research (ICR), a Japanese research institution, fight strenuously in court and at sea. Following the moratorium on commercial whaling decided by the International Whaling Commission in 1984, Japan has licensed ICR to conduct research projects involving the killing of numerous whales. ICR activities, however, are increasingly physically hampered by SSCS vessels, which harass ICR vessels on the high seas. As already noted on this blog, in February the U.S. Court of Appeals for the Ninth Circuit reversed a lower court and granted ICR a preliminary injunction against SSCS, defining the latter as ‘pirates’. And while ICR is threatening contempt action against them, SSCS for their part have initiated proceedings in front of a Dutch judge for violation of environmental laws by ICR. The fight between SSCS and ICR reserves many dramatic turns and much suspense but ... is there any room for issues of international responsibility in a case that pits one private entity against another private entity? Is not this a matter for domestic jurisdiction or, at most, an issue for conflicts of law? Not entirely: the presence of actors other than States adds complexity to issues of international responsibility and raises a number of questions. Two strands are significant. In the first place, the presence of individuals does not automatically rule out the State. States always act through individuals or other entities, their organs, and they can endorse or support the conduct of subjects other than their own organs. If Japan endorses or supports the acts of ICR, or if Australia supports the activities of SSCS, the States can incur responsibility directly, for breach of international obligations. In the second place, the dispute between SSCS and ICR raises issues relating to the subjectivity of non-state actors at the international level, and the extent to which they may make use of, or be subject to, the rules regulating international responsibility. From among the many issues involving whaling disputes and international responsibility, I will briefly address three.
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27 May

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.] Cross-posted at SHARES blog. Natalie Klein has drawn attention to a longstanding weakness in those fields of international law, including international environmental law, devoted to serve collective interests, in matching obligations with rules of responsibility for their breach. The law of...

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27 May

[Dr Natalie Klein is Professor and Dean of Macquarie Law School, Australia] Cross-posted at SHARES blog. One of the most successful environmental campaigns was captured by the slogan of ‘Save the Whales’. It was apparently when the Australian Prime Minister’s daughter returned home from school sporting a Save the Whales badge that the initial impetus was provided for Australia to shift from pro-whaling nation to anti-whaling. Over the decades, we have seen a fundamental change in the legal regulation of whaling: from minimal regulation and maximum exploitation to a zero-catch quota (colloquially known as the moratorium) on commercial whaling under the International Convention for the Regulation of Whaling (ICRW). There has been resistance to this moratorium – from those states that never agreed to the imposition of a moratorium and those states that seem to thwart the moratorium by conducting commercial whaling under the guise of legally permissible scientific whaling, as Australia asserts Japan is doing.  If we are to maintain legal standards in the conduct of whaling then how can states be held responsible? In considering the intersection of the law of responsibility in relation to whaling, there is an initial question as to whom the obligation is owed?
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27 May

This week we are delighted to bring you a symposium exploring the intersection between the law of responsibility and the law of the sea.   The motivation for this symposium is twofold: First, although there is long interaction between the law of the sea and the law of responsibility, the law of the sea has become an area where the intersection is of...

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27 May

The government of Colombia and representatives of the FARC say they have reached a deal on land reform, one of the most contentious items in their protracted peace negotiations. Syria's foreign minister has said that his government will take part in a peace conference in Geneva, terming it a "good opportunity for a political solution" to the civil war in Syria. Though it is still too...

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26 May

A number of people have responded to my drone posts (see here and here) by arguing that the "near certainty" standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past -- a new targeting standard, not an old one. If that's the case, someone needs to tell the Secretary of State. Here is what John Kerry...

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26 May

Calls for Papers A call for papers has been issued for a workshop and publication on "Natural resources grabbing: erosion or legitimate exercise of State sovereignty?” 4th and 5th October 2013 at the University of Cagliari (Sardinia, Italy). Deadline for submissions of abstracts is 15 June 2013. The growing demand for natural resources has triggered a “race” to their exploitation and possession, especially in developing...

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25 May

Though I'm as much caught up in the drones debate du jour as anyone here at OJ, there are other pressing matters internationally, and one of them is olive oil.  I've blogged about EVOO adulteration in the past year, but the current contretemps is different.  EU regulators want to require that restaurants serve olive oil at the table in sealed individual servings (I guess a little bit like the little sealed catsup bottles one sometimes sees in restaurants in the USA) rather than the common practice of serving olive oil, for dipping bread or what-have-you, in little decanters.  The concern is partly health and food safety, but it also appears to be a press by agricultural interests to force the use of labeled olive oil, which will presumably have the effect of pushing up consumer awareness (yes, if - big if - what's on the label is true), price (definitely), and quality (maybe, maybe not). So, as reported in the New York Times a few days ago (it appears the rule has been shelved for now):

The measure, which would have required that restaurants serve olive oil in sealed, clearly labeled and nonreusable containers, was meant to guarantee hygiene, according to the European Commission, the union’s executive body, which originally drafted the rules. It said the labeling would ensure the quality and authenticity of olive oils and also offer suppliers an opportunity to promote brand awareness, backers said. And the measure stood to benefit European olive growers, mostly clustered around the Mediterranean, in some of the countries hardest hit by the crisis in the euro zone. Fifteen of the union’s 27 governments supported the rule, including the major producers, Italy, Greece, Spain and Portugal. Portugal has had similar measures in place since 2005. But governments in the non-olive-producing north, including Germany, were opposed. Britain abstained.

The pushback was on classic EU terms, I guess we could say: Complaints that this sort of thing should never reach the level of the EU, and that individual states could deal with this kind of thing on their own:

The reaction was severe. Prime Minister Mark Rutte of the Netherlands condemned the measure, calling it “too bizarre for words” and not at all green. Criticism was particularly harsh in Britain, often the first among critics of the European Union’s reach. The olive oil rule was “exactly the sort of area that the European Union needs to get right out of, in my view,” Prime Minister David Cameron of Britain said Wednesday after a meeting of the bloc’s leaders in Brussels. “It shouldn’t even be on the table,” he said, immediately begging forgiveness for the wordplay.

Food safety is only partly the issue; from the standpoint of Europe's olive oil producers, the much bigger issue is brand recognition and quality assurance - assuring quality and authenticity of olive oils served, which is also to say, raising the price.  But here the EU runs into a quite different problem; restaurants refilling olive oil bottles with oils of lesser quality is the least of the concerns about EVOO authenticity and quality.  I've blogged in the past about the surprising (at least to me as an international business transactions professor) fact of massive adulteration of "extra virgin olive oil" both inside the EU and in the global export market.  It's adulterated with either lower grade olive oil, or else the oil itself is mostly low grade olive oil heated to take out the bad flavors (heated oil is essentially flavorless), or else different plant oils altogether (such as cottonseed oil.  It overwhelmingly happens at the producer, wholesaler, or distributor level, before it leaves the EU; it's pretty clear that the supermarkets, even specialty store chains such as Whole Foods, whether in the US or Europe, have no idea that the product is not what it says.  

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25 May

This week on Opinio Juris, drone strikes unsurprisingly took center stage. In anticipation of President Obama's speech, Jonathan Horowitz contributed a guest post on their human rights impact and Ken pointed to his new essay arguing the case for drone strikes. Deborah linked to the transcript of the speech here, and pointed to two things she liked about it. Deborah also discussed the White House Fact Sheet on Use...

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