In association with the International Commission of Jurists

July 2013

15 Jul

Israeli Prime Minister Benjamin Netanyahu has said that Iran is moving "closer and closer" to building a nuclear weapon and warned that his country may have to act. Netanyahu also phoned Palestinian president Mahmoud Abbas to try to resume peace talks, stalled now for three years. The Appeals Chamber of the ICTY has overturned a Trial Chamber decision acquiting Radovan Karadzic of...

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14 Jul

Calls for Papers The Netherlands Yearbook of International Law has issued a call for papers for its 2014 edition on the topic of Between Pragmatism and Predictability: Temporariness in International Law. Abstracts, between 300-500 words in length, should be sent to nyil@asser.nl by August 15, 2013, accompanied by a short resume. Successful applicants will be informed by late August, and must submit their papers...

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13 Jul

This week on Opinio Juris, we kicked off our inaugural Emerging Voices symposium with a post by Christopher Warren on the disciplinary fragmentation between law and other areas of the humanities. Fragmentation between different investment regimes prompted Maninder Malli to argue for minilateral approaches in international investment law as a middle ground between atomized BITs and unattainable multilateral initiatives. In his post,...

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12 Jul

Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims. The Plaintiffs asked for the UN to respond within 60...

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12 Jul

[Otto Spijkers is Assistant Professor of Public International Law at Utrecht University and Arron Honniball is a Student of the LL.M. Public International Law at Utrecht University] As the Millennium Development Goals (MDGs) approach their target date of 2015, the international community has begun developing post-2015 goals; the Sustainable Development Goals (SDGs). A number of concurrent work streams were established, including the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (HLP). It was emphasised throughout the resulting report of the HLP and at the launch event on May 30, 2013 that various global public consultations shaped that report and will continue to shape the SDGs development process. In this post we wish to assess whether there is a meaningful opportunity for global public participation in the formulation of the SDGs. Are citizens, individually or organized, provided with an opportunity to influence the development, implementation and/or evaluation of the SDGs? For international lawyers and political scientists, it is especially interesting to look at this “experiment” in global public participation. Are we witnessing the start of a new process of global policy-making, with global public consultation as one of its principal steps? Such process would proceed roughly as follows: First the UN conducts a global public consultation; then a group of experts use the results of the consultation as the basis for a comprehensive report, and this report is then the basis of a UN-led negotiation process, which will ultimately lead to commitments accepted by the community of States.
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12 Jul

ICRC and ASIL's Lieber Society on the Law of Armed Conflict are hosting what looks to be a great event celebrating the 150th anniversary of the ICRC and the Lieber Code, Tuesday, July 23, 2013, 3:00 p.m. at the American Red Cross historical building, 430 17th Street NW, Washington DC. The event features John Fabian Witt, author of the...

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11 Jul

International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides.  Here's the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict.  To ensure open communication we need diplomats who feel...

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11 Jul

Today, the U.S. Department of State released the 2012 edition of its Digest of U.S. practice in international law (for a brief history of these Digests see the accompanying press release here).  Under the editorship of CarrieLyn D. Guymon, the Digest addresses a number of key international legal developments from 2012, including the U.S. response to the crisis in Syria...

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11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
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11 Jul

Bosnia is set to bury the bodies of 409 newly discovered victims of the Srebrenica massacre, including a baby boy, on the 18th anniversary of the atrocity in which about 8,000 Muslims were slaughtered. The US Navy has tested a new kind of drone, an autonomous model that flew and landed on an aircraft carrier without human intervention. Japan's nuclear regulator says it...

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10 Jul

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.] The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]). The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits. All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states - including members of the Council of Europe - impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
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10 Jul

I am a huge fan of Human Rights Watch's Ken Roth, but his description of the specific-direction requirement in yesterday's New York Times is not simply misleading, it's flat-out wrong. Here are the relevant paragraphs of his op-ed (emphasis mine): Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had...

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