In association with the International Commission of Jurists

Articles

09 Mar

[Moria Paz is a Fellow in International Law at Stanford Law School.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study. In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority.
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07 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In my previous response to Ashley Deeks’ article, "Consent to the Use of Force and the Supremacy of International Law," I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent. Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):
1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.
This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context.
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06 Mar

Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago. Zachary Elkins is Associate Professor in the Department of Government at the University of Texas at Austin. This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In recent years there has been an active debate in the social sciences about the distinct “cultures” of qualitative and quantitative inquiry. Gary Goertz and James Mahoney, A Tale of Two Cultures: Qualitative and Quantitative Inquiry in the Social Sciences (2012). We ourselves have been skeptical of the extent of this purported divide, as our prior collective and individual work has sought to integrate the strengths of the two approaches. Professor Christopher Roberts’ thoughtful comments on our article demonstrate, in our view, the basic complementarity of the methodologies. Our article demonstrates a set of statistical relationships that are consistent with the interpretation that we give them: that constitutional and international rights are reciprocally produced, and that an important channel of impact for international human rights has been their adoption by national constitution-makers. Roberts draws on the historical literature to both supplement and challenge elements of this story, and to make the important point that it is, as always, a bit more complicated.
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06 Mar

Natalie Lockwood holds a J.D. from Harvard Law School, 2011; and an A.B. from Princeton University, 2006. This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me begin by thanking Professor Burke-White for his careful reading and thoughtful response. I’m honored that someone whose own work I admire so much has taken the time and effort to engage with my article. I am also grateful to Opinio Juris and the Harvard International Law Journal for organizing this symposium. My article, "International Vote Buying," examines a feature of international relations that has not previously received much attention in legal scholarship—namely, the practice whereby states pay one another (with money or other concessions) to influence voting outcomes in international institutions such as the UN. For example: • In 2003, the United States allegedly pledged millions of dollars to Angola in connection with a UN Security Council vote that would have paved the way for the invasion of Iraq. • In 2008, Iran allegedly paid $200,000 to the Solomon Islands in exchange for future votes against Israel in the UN General Assembly. • In December 2009, Russia allegedly offered the island state of Nauru $50 million in exchange for its extending diplomatic recognition to Abkhazia and South Ossetia, the two separatist provinces in Georgia.
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05 Mar

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Moria Paz’s article, "The Failed Promise of Language Rights: A Critique of the International Language Rights Regime," is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims. Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity.
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05 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Ashley Deeks’ Article, "Consent to the Use of Force and International Law Supremacy," is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law). Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints.
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04 Mar

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Natalie Lockwood’s article, "International Vote Buying," recently published in the Harvard International Law Journal, makes an important contribution to a set of understudied questions around the legality and appropriateness of international vote-buying. Lockwood quickly admits that international law itself says little about the legality of such vote buying and, therefore, examines the question through an analogy with the legal rules governing vote buying in a variety of domestic contexts. She recognizes, however, that the analogy, while informative, is imperfect. There are significant differences between nature of domestic polities in which such vote buying is generally subject to legal prohibition and the nature of the international community. Yet, the analogy helps inform our thinking about whether vote buying should be prohibited at the international law. In this brief response, I seek to do two things. First, I want to question both the effectiveness and appropriateness of a legal prohibition on vote-buying. Second, I want to suggest that more significant contribution of Lockwood’s article goes far beyond vote-buying and helps refocus debate on the changing nature of power and influence in the international system.
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04 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts in this series can be found in the related posts below. This symposium features a series of four responses to articles published in the Harvard International Law Journal's volume 54(1). Over the next few days we will be presenting the responses, as well as commentary from...

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16 Nov

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Both Professor Crock and Professor Kneebone, in their respective contributions,...

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16 Nov

[Susan Kneebone is a Professor at Monash University] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. In her article Associate Professor Michelle Foster argues that there are limits imposed by the Refugee Convention and international law to the circumstances in which states may lawfully engage in transfer...

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16 Nov

[Mary Crock is Professor of Public Law at the University of Sydney] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the Refugee Convention (‘Convention’), or to any of the major human rights conventions other than the Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the non-refoulement obligation enshrined in s 33 of the Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination. Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law. Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the non-refoulement obligation is owed by denying in language that asylum seekers have any rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.
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16 Nov

[Dr Michelle Foster is an Associate Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at the Melbourne Law School.] This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below. The need for international co-operation to address the challenge of refugee flows is uncontroversial in principle: it is recognised in the Preamble to the Convention relating to the Status of Refugees (‘Refugee Convention’), in regional refugee treaties and in the work of the United Nations High Commissioner for Refugees (UNHCR). However, too often states have relied on the notion of international co-operation to engage in what is more accurately understood as burden-shifting rather than burden-sharing arrangements. In my article I argue that while the Refugee Convention does not explicitly authorise nor prohibit the transfer of refugees between states party to the Convention, it imposes limits on the extent to which states may lawfully engage in responsibility sharing regimes. Drawing in particular on the High Court of Australia’s decision in M70/2011 v Minister for Immigration and Citizenship (‘M70’), I outline the content of the constraints imposed at international law, including the need for all parties to an arrangement to be Refugee Convention parties, and the obligation on a transferring state to ensure that non-refoulement will be respected, which in turn requires that the receiving state has an adjudication procedure in place to assess refugee status, that the receiving state guarantees access to that system, and that the receiving state interprets the Refugee Convention in a manner that respects the ‘true and autonomous’ meaning of the refugee definition contained in art 1A(2) of the Refugee Convention. In addition, those rights already acquired by a refugee by virtue of physical presence in the sending state (for example rights to education, religious freedom, and access to the courts) must be respected in the receiving state. Since publication of this article, the Australian government has moved swiftly to implement the ‘disincentives … to actively discourage irregular and dangerous maritime voyages to Australia for the purposes of claiming protection or seeking asylum’ recommended by its Expert Panel in August 2012. In order to do so it was necessary to amend the Migration Act 1958 (‘Migration Act’) to remove the protections which the High Court relied upon in M70 to invalidate the declaration concerning Malaysia. In my view the amendments to the Migration Act effected by passage of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (‘Act’), and the subsequent transfer of putative refugees from Australia to Nauru, place Australia at risk of violation of the Refugee Convention. Before outlining my core concerns I make the initial observation that while there is considerable emphasis on Nauru constituting a ‘regional processing country,’ there is nothing regional about the current arrangements. They are not implemented pursuant to a wider regional agreement (in contrast for example to the Dublin Regulation in Europe), nor do they entail any reciprocity since Nauru has no refugee intake other than that resulting from implementation of the Memorandum of Understanding (‘MOU’) with Australia.
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