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Abkhazia Defeats Panjab in Overtime for ConIFA World Football Cup

by Chris Borgen

I know Opinio Juris is probably not where you come for sports updates but this is the result of the ConIFA World Football Cup, a tournament among unrecognized regimes, minorities, and stateless peoples.

For more on ConIFA, statehood, and nationalism, see my post from last week.  In short, the ConIFA competition may be an attempt not only to boost morale within unrecognized regimes, ethnic enclaves, and stateless people, but also remind the rest of the world of the claims that these groups have, be they claims of statehood or simply a desire to be recognized to exist as a people. Consider the following from an article posted by Al Jazeera:

…CONIFA’s president Per-Anders Blind explained how this World Cup has nothing to do with politics and borders.

“Our aim is to show that football can be a tool to bring our members to the global stage. We all have the same right to exist,” he said.

Chewing on a little pouch of “snus’, a Swedish chewing tobacco, Blind described how the idea for the CONIFA World Cup was inspired by his own life experience.

“My father is a reindeer herder in the Swedish and Norwegian mountains. I was born and raised as part of a group of forgotten people, the Sami, and endured discrimination because of that.”

Blind’s comments are reminiscent of the Olympic ideal to “use sport to foster peace and reconciliation, underlining the power of the Games to promote tolerance and solidarity among the participants, fans and people all over the world.”  Perhaps the founders of ConIFA were frustrated that membership international sports organizations such as the International Olympic Committee and (particularly relevant to ConIFA) FIFA, was too intertwined with statehood to extend these ideals to unrecognized regimes and stateless peoples. As the ConIFA website states, echoming the Olympic ideal,

CONIFA aims to build bridges between people, nations, minorities and isolated regions all over the world through friendship, culture and the joy of playing football. CONIFA works for the development of affiliated members and is committed to fair play and the eradication of racism.

But it can be difficult to set aside issues of politics, borders, and laws when the membership of ConIFA is practically defined by its tension with existing borders, politics,and/ or laws. While the structures of the International Olympic Committee and FIFA may favor recognized states, the tournament organization of ConIFA itself steps from the sports field into the arena of high politics.   Abkhazia, the Georgian breakaway region, not only won the tournament but was also the host. While the tournament may be a morale-booster for the population of Abkhazia, it was played in territory that Georgia views was taken from it by a Russian military invasion.   The Al Jazeera article notes that:

Georgian officials have complained that the CONIFA tournament is illegal since it it lacks Georgia’s authorisation within what it considers to be its territorial boundary. According to Georgian law, participants entering Abkhazia through Russia would be entering Georgian territory illegally.

The ConIFA World Football Cup symbolizes different things for different people. For some, it is an affirmation that they, too, matter. For others, the tournament is affront to the rule of law. And for some, it might just be a chance to watch the home team play a game of soccer. In any case, though, it matters.

Videos and summaries of the games are available at the ConIFA website. (And, by the way, Northern Cyprus beat ConIFA heavyweights Padania for the third place trophy.)

Should the U.S. Approve a Commercial Moon Mining Venture?

by Chris Borgen

Well, Julian beat me to the punch by a few minutes, but here’s my take…

The Wall Street Journal reports:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

It also would provide the biggest federal boost yet for unmanned commercial space exploration and, potentially, the first in an array of for-profit ventures throughout the solar system.

Moon Express is a company looking towards extracting resources from the moon. They explain on their website:

Most of the elements that are rare on Earth are believed to have originated from space, and are largely on the surface of the Moon. Reaching for the Moon in a new paradigm of commercial economic endeavor is key to unlocking knowledge and resources that will help propel us into our future as a space faring species.

There are a variety of different business models for the growing commercial space industry. Some companies are focused on providing launch services for ferrying cargo and crew to orbit and beyond (SpaceX, United Launch Alliance), others have models based space “tourism” (Virgin Galactic), or providing the modular building blocks of space habitats (Bigelow Aerospace) or extracting resources from asteroids or the moon (Planetary Resources, Moon Express). It is this last business model, resource extraction,  that particularly challenges existing regulatory structures, the Outer Space Treaty and  the Moon Agreement.

The U.S. is not a party of the Moon Agreement. However, it is important to note that the Agreement states, in part:

Article 11

1.       The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 of this article.

2.       The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3.       Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article…

7.       The main purposes of the international regime to be established shall include:

           (a)    The orderly and safe development of the natural resources of the moon;

           (b)    The rational management of those resources;

           (c)    The expansion of opportunities in the use of those resources;

           (d)    An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

[Emphases added.]

Julian and others discussed similar provision in the Outer Space Treaty in relation to asteroid mining in  these posts and  comments: 1, 2.

Based on this text,  some have argued that one cannot mine the Moon or asteroids for private profit.  Julian has set out in his posts an interpretation of the OST language that would allow private ventures.  Others, such as Richard Bilder, have concluded that the regulatory uncertainties regarding mining the Moon argues in favor of constructing a clear multilateral legal regime.

International law can play an important role in this burgeoning field. Rather than attempting to ban such mining enterprises, international law can provide a framework so that such ventures can have greater certainty and better assess risks, as well as have certain limits on their activities. A multilateral agreement can recognize the property rights of companies extracting resources, define where resources can and cannot be extracted, define a regime of noninterference among mining ventures (there are broader noninterference norms in the existing OST and Moon Agreement), and so on. Such an agreement would appreciate the opportunities of this new frontier of exploration and economic activity but also provide some reasonable bounds to avoid conflict, avoid the wasteful degradation of asteroids or the moon, and ban certain activities that could endanger the public. I am skeptical of any attempts, though, at large-scale wealth redistribution. That did not work in the UN Convention on the Law of the Sea (and needlessly hampered the acceptance of an important treaty)  and I see no reason why there would be a different outcome here.

This is why the U.S.’s taking a step forward to approve a private mission my a moon mining company has significant implications.  The Journal continues:

The expected decision, said the people familiar with the details, is expected to set important legal and diplomatic precedents for how Washington will ensure such nongovernmental projects comply with longstanding international space treaties. The principles are likely to apply to future spacecraft whose potential purposes range from mining asteroids to tracking space debris.

Approval of a formal launch license for the second half of 2017 is still months away…

But this is only the first of many steps that U.S. companies may be taking in private space exploration. Elon Musk has announced that SpaceX plans to send an uncrewed lander to Mars around 2018 and a crewed mission around 2026. If that timetable holds, and if states do not jumpstart their Mars programs then the first person on Mars will have been sent by a private company, not a national space program (The key word, of course, being “if.”) I believe the current NASA scenario is to land a crew sometimes in the mid 2030’s.

Although US companies are currently the main actors in these private space ventures, that will not always be the case.  These are early days, still. The “commercial space race” is still among toddlers. But those baby steps quickly become small steps. And then giant leaps.

To answer the question of the title of this post: should the U.S. approve this commercial moon mining venture? If it meets U.S. regulatory requirements and in the absence of clear international law to the contrary: Yes.

But it is also in the interest of American companies, and the US as a whole, to clarify multilateral regulations concerning the commercial exploitation of the Moon and other celestial bodies.  Now is the time to define some ground rules for everyone in the space race.

 

U.S. Government Prepares to Approve First Private Space Expedition to the Moon

by Julian Ku

This is big.  Huge, even. From the Wall Street Journal:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

The main obstacles to this commercial moon mission are not technical or financial. The main problem appears to be legal.  First, the U.S. government must approve the launch (this appears to be happening soon).  Second, the U.S. and the world need to figure out how to regulate commercial exploitation of the moon, because companies like “Moon Express” are not in this for the science alone.  The Moon Treaty seems to prohibit any commercial exploitation of the Moon’s resources under Article 11 (“[N]atural resources of the moon… shall [not] become the property of any ..person”), but the U.S. never ratified it and neither did any of the other major spacefaring nations.

So we are left to the “Outer Space” treaty, which the U.S. did join, but which has much less emphatic limitations on commercial development of celestial resources (as I argued here and here).  I think it is safe to say commercial exploitation of the moon and asteroids is going to happen sooner than we think (starting next year?).  The law will have to catch up later.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

Weekly News Wrap: Monday, May 30, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Planning for Detention

by Deborah Pearlstein

Picking up on Jens’ post about the Administration’s apparent lack of plans for holding detainees picked up in Iraq/Syria, I too found the Times report troubling. In part I suspect it was because I was immediately reminded of one of the findings of the many Pentagon investigative reports issued after the revelations of torture at Abu Ghraib and other U.S. detention facilities in Iraq. All apart from criticisms of changes in policy and legal interpretation, some of the harshest blame for the widespread nature of the abuse was the total failure of preparation. In particular, according to the report prepared by Lt. Gen. Anthony R. Jones, tasked with investigating the Abu Ghraib Prison and the 205th Military Intelligence Brigade in Iraq: “[P]re-war planning [did] not include[] planning for detainee operations.” The finding always seemed stunning to me, given the months long (or longer) lead up to the 2003 invasion, and the certainty from the beginning that the war was going to involve a significant U.S. commitment of resources, including ground troops. But the Pentagon was of course then laboring under Defense Secretary Rumsfeld’s preference for keeping forces light, insisting that it was possible to minimize the amount of supplies and surrounding support required to overthrow the regime. Of all the lessons out of the 2003 invasion and the years that followed, it seemed to me the failure of that attack-now-plan-later approach was among the clearest.

The latest U.S. engagement in Iraq and Syria is of course in key respects different. U.S. troops are there, we have maintained, to support the Iraqis in their efforts against ISIL. Our commitment of ground “personnel” has been steadily growing (making Congress’ failure to authorize the use of force in this new conflict even more problematic than it already was), but it is far, far from anything like the 2003 invasion and prolonged occupation. All the same, it is not as though we don’t have a series of models from past conflicts for how to handle the inevitable detention problem – models ranging from our own establishment of vast detention operations (in, e.g. World War II and after 9/11) to shared arrangements with allies (in, e.g. Vietnam and the 1991 Gulf War). All of these models have had issues, but some far far fewer than others. I got curious a few years back so finally did some digging and wrote up this little survey. Here, for example, is 1991 in sum.

Between January 22, 1991, when the first prisoner was captured, and May 2, 1991, when the United States transferred the final prisoner from its custody, U.S. detention facilities processed nearly 70,000 detainees, including through the use of battlefield hearings on prisoner status pursuant to Article 5 of the Geneva Convention (III)…. At the outset of hostilities, the United States quickly secured military-to-military agreements with allies France and the United Kingdom, setting forth the process to be followed by any capturing forces in processing prisoners of war or other detainees, initially through U.S. detention or medical facilities in theater. Although American military police and combat engineers raced to build prison facilities in theater from scratch, the United States also undertook a separate agreement with Saudi Arabia that authorized the subsequent transfer of many of these prisoners to existing Saudi facilities. By the end of the conflict, more than 35,000 prisoners were held in U.S. facilities, with 63,000 more held in Saudi Arabia…. Ultimately, the vast majority of prisoners in Saudi Arabia were repatriated to Iraq under ICRC auspices after Saddam Hussein issued a general amnesty. In all events, all prisoners had been transferred from U.S. custody by May 2, 1991. On August 23, the ICRC announced that the repatriation of Iraqi prisoners was complete. And the ICRC concluded that the “treatment of Iraqi prisoners of war by U.S. forces was the best compliance with the Geneva Conventions by any nation in any conflict in history.”

Don’t be misled, there were plenty of issues post-1991 (including controversy surrounding the resettlement of some Iraqi prisoners/refugees in the United States, described elsewhere in the piece), and plenty more differences between that conflict and this. But particularly as this Administration barrels toward transition, with no chance U.S. involvement in the region will have come to an end by January, now’s the time to put pen to paper with the allies, in the region and beyond, who share the anti-ISIL goal. Securing commitments, to resources and to upholding the detainee protections required by law, is tough. But not nearly as tough as paying the human rights and strategic costs of detention without a plan.

No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

Everybody Has Friends, Why Not the ICC: On the Court’s Power to Appoint Amicus Curiae Prosecutors

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor on the Bemba, et. al case]

A month ago the ICC Trial Chamber V(A) vacated without prejudice the charges of crimes against humanity against the sitting Kenyan Vice-President William Ruto. This case involved intense cross-parties allegations of witness tampering. Some of these allegations have been found serious enough to substantiate a warrant of arrest against a former journalist Walter Barasa, who is suspected of having influenced or sought to influence several persons to withdraw as Prosecution witnesses.

At trial, the Ruto Defense alerted the Prosecution and the Chamber to the conduct of certain Prosecution witnesses that, in its view, might be constitutive of offences against the administration of justice, to no avail. On May 2, 2016, it decided to take these allegations to the next level. It requested in essence that the Trial Chamber directs the Prosecutor to appoint an amicus to investigate several Prosecution witnesses, intermediaries and officials for the possible violations of article 70 of the Rome Statute.

The Office of the Prosecutor should not have to go to great pains to convince the Chamber to reject the Defense request. Although a Chamber may refer facts to the Prosecutor, the choice of whether and how to proceed, including what safeguards against possible conflicts of interests to put in place, is clearly hers. Specifically, pursuant to article 41(2) of the Statute, the Office shall act independently, and neither solicit, nor accept instructions from any external source.

However, the Ruto Defense may reconsider the relief sought and ask the Court to appoint an amicus curiae prosecutor directly.

Article 70 stipulates that “the Court has jurisdiction over […] offences against its administration of justice.” The Court determines on a case-by-case basis the best way to exercise this jurisdiction. Like any international organisation, the Court is free to act in any manner consistent with its founding treaty to achieve the goals of that treaty. For example, the Pre-Trial Chamber in the Bemba, et al. case appointed an independent counsel answerable directly to it to vet the evidence received from the domestic authorities for any privileged material.

Nothing in the statutory framework prevents the Court from appointing an amicus curiae prosecutor, at least with respect to the article 70 proceedings and in other cases, where appropriate. This may be the case, for example, when the allegations concern a member of the Office or a witness who testified for it. Proceedings contaminated by suspicion of collusion are unlikely to meet the standards of international justice. It is the Court’s duty to ensure such situations do not happen.

Under article 42(1) of the Statute, the Office is an organ “responsible for receiving referrals and any substantiated information on crimes […], for examining them and for conducting investigations and prosecutions before the Court.” This article merely describes the Office’s duties within the Court’s system without prohibiting their temporary transfer to another person or entity, if the good administration of justice so requires.  Neither the Statute, nor the Rules of Procedure and Evidence suggest that the Office of the Prosecutor has exclusive power to conduct investigations and prosecutions of the offences within the Court’s jurisdiction for the Court’s benefit.

Appointing an amicus to deal with the contemptuous conduct is normal practice at the ad hoc tribunals, including when the Prosecutor may be conflicted. Admittedly, there is an express provision to this effect in their Rules. Nevertheless, the parallel with the ad hocs seems apposite. No statute provides for the power of those tribunals to punish contempt or the modalities of its exercise; however, such powers are not expressly prohibited, either. Thus, the contempt cases are a good illustration of the international courts taking initiative to face challenges that have not necessarily been articulated by the drafters.

To allay the conflict of interests related concerns, the Office of the Prosecutor may envisage the creation of a special division dedicated exclusively to the investigation and prosecution of the article 70 offences. Such division should be comprised of investigators and trial lawyers acting independently and reporting directly to the Prosecutor or a special Deputy Prosecutor. Those who work interchangeably on the core crimes and article 70 offences naturally tend to employ the same techniques and strategies to both, losing in efficiency and speed, as what is good for the core crimes is usually bad for the article 70 offences. Specifically, whereas the core crimes cases are largely predicated on witness evidence, in the article 70 cases such evidence alone may be insufficient to sustain a finding of guilt. Having a focused team will enhance productivity and effectiveness in full respect of the Statute and the fair trial rights of the accused.

Weekly News Wrap: Monday, May 9, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: May 8, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Venice Academy of Human RightsBacklash against Human Rights? (4 – 13 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016. The Venice Academy of Human Rights is a centre of excellence for human rights education, research and debate. The  Venice Academy provides an enriching forum for emerging ideas, practices and policy options in human rights research, education and training. It hosts distinguished experts to promote critical and useful research, innovation and exchange of current knowledge. The theme Backlash against Human Rights? – International and regional human rights systems have witnessed remarkably outspoken critiques that emphasise a movement back towards the nation State and national sovereignty. The European Court of Human Rights is occasionally openly criticised, if not attacked, for overstepping its competencies and intervening in national affairs. National supreme courts reassert their own status and authority. Professor Robert McCorquodale, Director of the British Institute of International and Comparative Law in London, is the General Course Responsible “Two Steps Forward, One Step Back: Dancing to the Human Rights Beat”. Developments in human rights in recent years have seen the expansion of obligations on states, the extension of human rights responsibilities to international organisations and corporations, and the application in situations of armed conflict. There have also been resistance to these advances by groups within and across states. This series of lectures will explore these types of advance and resistance, and the opportunities and dangers these may indicate for human rights protections. The enrolment fee for the Venice Academy of Human Rights is – 1320 EUR including accommodation in a single room from 3-13 July – 1050 EUR including accommodation in a shared double room from 3-13 July – 700 EUR without accommodation. The fee includes: tuition, lunches on class days (Monday-Friday), refreshments, social events, accommodation (if applicable).
    Theme: Backlash against Human Rights?
    Dates: Monday, 4 July – Wednesday, 13 July 2016
    Faculty: András Sajó (opening lecture), Robert McCorquodale (general course), Helen Fenwick, Mark Goodale, Geir Ulfstein
    Participants: Academics, practitioners, PhD/JSD and master students
    Type of courses: Lectures, seminars, discussion sessions and panel presentations
    Number of hours: 34 hours
    Venue: Monastery of San Nicolò, Venice – Lido, ItalyInterested candidates should register by compiling the online application form. For any query about the Venice Academy please contact us at venice [dot] academy [at] eiuc [dot] org.
  • Admissions to the Venice School of Human Rights – Human Rights as Our Responsibility (24 June – 2 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016, early bird 15 April 2016 with 10% discount. The Opening Lectures of the School will be held by Prof. Manfred Nowak, Professor at the University of Vienna and EIUC Secretary General, one of the most renowned human rights experts (his academic career includes more than 400 publications) by Andrew Anderson, member of the Advisory Board of the Centre for Applied Human Rights at the University of York, Front Line Defenders on the Board of the EU Human Rights Defenders Mechanism, and by Hauwa Ibrahim, human rights lawyer who won the European Parliament’s Sakharov Prize in 2005. After a first session common to all participants dedicated to a general introduction on international systems of protection of human rights and related mechanisms, the programme will develop into the three thematic clusters – Business and Human Rights, Technical Progress and Human Rights and Violence against Women as Gender Based Violence. From ‘CEDAW’ To Istanbul And Beyond – among which participants will have to choose.The Venice School is addressed to graduate students from all academic backgrounds, students from the different regional masters in human rights and democratisation, to E.MA alumni as well as to human rights practitioners willing to deepen and improve their knowledge in human rights issues. Training language: All courses will be held in English. It is, therefore, essential that all participants understand and speak English fluently. All participants attending the Venice School of Human Rights will receive a certificate of participation upon completion of the course.The enrolment fee for 2016 Venice School of Human Rights is 1100,00 € and it will include:
    • tuition fee
    • lunches on class days
    • accommodation with breakfast included in a shared double-room for 9 nights (23 June – 2 July 2016) in Venice at the Crociferi residence (Crociferi)
    • free shuttle to/from EIUC site on class days at the starting and ending of lectures

    Interested candidates should register by compiling the online application form. For any query about the Venice School please contact us at veniceschool [at] eiuc [dot] org

Call for Papers

  • The Editorial Board of UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be ‘City’ related. See here for a non-exhaustive list of potential topics. The editors accept articles of 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The (extended) deadline for submissions is 15th May 2016. Manuscripts must be uploaded via the submissions section on the website. For further information and guidelines for authors please visit the website.

Announcements

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

A Quick Bleg

by Kevin Jon Heller

Does anyone have an idea of what would be a fair hourly rate for someone to cite-check — both for substance and for accuracy of citation — a leading international law treatise published by a leading university press? Rates in pounds, dollars, or euros would be most appreciated!

What the European Convention on Human Rights Has Actually Done For You

by Patrick Wall

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last week, the British home secretary, Theresa May, called for the United Kingdom to withdraw from the European Convention on Human Rights.

Describing ‘the case for Britain remaining in organisations such as NATO, the World Trade Organisation and the United Nations’ as ‘clear’, Ms May argued that ‘the case for remaining signatory of the European Convention on Human Rights, which means that Britain is subject to the jurisdiction of the European Court of Human Rights, is not clear’:

The [European Convention] can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the [European Convention] and the jurisdiction of its court.

Ms May has faced a ‘huge backlash’ over her comments. Amnesty International has said that withdrawing from the European Convention would ‘strike at the very architecture of international protection’, whilst Liberty criticised Mrs May for ‘playing fast and loose’ with the legacy of one of the Conventions’ early architects, Sir Winston Churchill.

Ms May’s comments also put her at odds with colleagues on both sides of the aisle in the House of Commons. On her own side, the Ministry of Justice has confirmed that withdrawal is not government policy—for the time being, at least—while Tory MP and former attorney general Dominic Grieve said that he was ‘disappointed because it shows a lack of understanding of the positive impact the [European Convention] is for the EU’.

Across the aisle, shadow justice secretary Charles Falconer has described Ms May’s comments as ‘so ignorant, so illiberal, so misguided’:

Ignorant because you have to be a member of the [European Convention] to be a member of the EU [and Ms May supports the UK remaining in the EU].

Illiberal because…there has to be a source external to a government determining what human rights are.

And misguided because it will so damage the standing of the UK, a country that above all plays by the rules and that is going around the world saying we should comply as a world with human rights.

This is so, so appalling.

The Guardian newspaper (affectionately known to some as The Grauniad) has responded somewhat differently; it has released a film—modelled on Monty Python’s ‘What have the Romans ever done for us?’—starring Sir Patrick Stewart as a would-be Prime Minster who sees the European Convention as his ultimate nemesis (do be mindful of an expletive at the end):

Whilst the film is undoubtedly enjoyable, I do wonder whether it might do more harm than good.

As might be expected from a production for popular consumption, the film’s claims aren’t entirely accurate. In addition to suggesting—incorrectly—that the European Convention is an institution of the European Union, many of the rights that the Convention is said to have ‘given’ the British (one is reminded of God giving Moses the Ten Commandments) existed in some form well before anyone had ever thought of having a European Convention on Human Rights. Slavery, for example, was abolished in England and Wales by Lord Mansfield’s decision in Somerset v Stewart in 1772. Although their precise contours have developed since the 50s, fair trial standards and notions of privacy, freedom of religion and non-discrimination were far from unknown to the British legal system. This is recognised towards the end of the film, of course, when one of Prime Minister Stewart’s colleagues recognises the role of British lawyers and British law in drafting the Convention.

Furthermore, whilst the Good Friday Agreement certainly requires the Northern Ireland Assembly to comply with the European Convention, the suggestion that ‘we would need to make peace all over again’ if Britain withdrew is plainly untrue. WTO Agreements frequently incorporate the provisions of other treaties that are then binding on members, regardless of whether or not they are parties to the incorporated treaty.

The point is not to nit-pick over factual errors in the film. As a political enterprise, certain dramatic license is understandable. The suggestion, however, that the main achievement of the European Convention was to bestow upon a grateful British people rights that were previously unknown to them, as well as the subsequent admission that this wasn’t the case, makes the film hopelessly confused. My concern is that this confused account of the benefits of the European Convention gives fodder for those who advocate Britain’s withdrawal.

Furthermore, it obscures the real arguments in favour of the European Convention. The great innovation contained in the European Convention was not the agreement between the High Contracting Parties as to what rights were worthy of protection; the rights enshrined are broadly reflective of those in the Universal Declaration of Human Rights, which the governments of Europe were active in formulating and unanimously supported. The Convention did not enshrine the next generation of human rights, but the next generation of human rights enforcement through the establishment of a strong mechanism—the European Court of Human Rights—to hold States’ feet to the fire when the temptation to abandon principles for reasons of expediency or popularity was strong. This interpretation is supported by the travaux préparatoires and is reflected in the Convention’s preamble (‘Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’).

By playing a leading role in the drafting and adoption of the European Convention, the United Kingdom did the cause of human rights a great service. It clearly asserted that, to be truly meaningful and effective, human rights must be enforceable. If the UK were to withdraw, the cause of human rights would take a large backward step; not just in Britain, not just in Europe, but everywhere. After all, if this great contribution to the protection of human rights can be reversed, what else can be?