In association with the International Commission of Jurists

Articles

11 Oct

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.] In my previous post, I tried to briefly introduce the merits of “Behavioral International Law”. Experimental research has shown that in many cases human behavior diverges from theoretical assumptions about rationality. Prospect theory, loss aversion, endowment effects, anchoring, hindsight bias, availability bias, conformity effects, framing effects – the list of experimentally proven, systematic diversions from perfect rationality in human behavior is long. The confines of a blog post preclude detailed discussion of any of these biases and heuristics; the literature in cognitive psychology is vast. The important point, pursued by scholars over the last decade or so, is that this knowledge of actual, rather than hypothesized or assumed, human behavior, can have significant implications for legal regulation. Why should this not be the case with respect to public international law? A number of objections may arise, and I will mention two of them briefly here. The first would be that cognitive psychology and behavioral economics relate primarily to the conduct of individuals as (obviously) unitary actors, while the main subjects of international law are collective entities, primarily states. This presents a type of external validity problem: can the knowledge we have on human behavior, carry over to other actors?
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06 Sep

[Sondre Torp Helmersen teaches at the University of Oslo and is an LLM candidate at the University of Cambridge.] Stephanie Carvin recently contributed to the Syria Insta-Symposium with a post titled “A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)”. Her call for a practical perspective is timely. The decision of whether or not to attack must be necessarily be a political decision, on which political scientists such as herself may offer sound advice. However, she apparently does not take full account of the fact that international law is (at least supposed to be) law. She “crudely paraphrases” her position as follows: “if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack.” This line of reasoning is applicable to any legal regulation, domestic or international. Try replacing “attack” with any other matter regulated by domestic or international law,
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31 Aug

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we...

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30 Aug

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo). The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…” But it just can’t support U.S. action here. Here’s why.
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13 Jun

[Dr. Elizabeth A. Wilson is Assistant Professor at the School of Diplomacy and International Relations at Seton Hall University.] In the “Insta-Symposium” conducted here after the Supreme Court’s Kiobel decision, Peter Spiro linked to a piece by Samuel Moyn about Kiobel posted on the Foreign Affairs website and said he was “sympathetic” with Moyn’s conclusion that "human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.” Not willing to go quite so far as Moyn in celebrating the ATS’s demise, Spiro nonetheless said, “pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today's real world of human rights practice.” These criticisms connect with important debates happening now concerning the “legalization” of human rights and the ability of human rights to offer “a real politics of change,” in Beth Simmons’ words, so it is important to see what lessons the Kiobel case  and its underlying facts really teach. For those not specialized in human rights, Moyn is a professor of history at Columbia who wrote a book called The Last Utopia in which he argued for a revisionist account of human rights history, stressing the discontinuity of human rights-- imagined as they are today as a feature in an international legal system -- with a host of ideas and events usually taken as antecedents, including the Universal Declaration of Human Rights, the American Declaration of Independence, and the French Declaration on the Rights of Man and the Citizen. In his Foreign Affairs post on Kiobel, Moyn folds the ATS into this iconoclastic revision of human rights history, stating that the “ATS strategy” favored by American human rights lawyers "resulted in a narrow approach [i.e., a legal approach] that marginalized other options,” doing nothing “to address underlying political and economic problems.”  "Far better," he opines,” to move onto other ways of protecting human rights – less centered on courts, less rushed for quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad.”  Moyn asserts that “[t]here is little evidence…that the wave of ATS litigation has put a dent in the world’s suffering,” though he provides no evidence to support this claim.
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30 May

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam] Cross-posted at SHARES Blog. Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to...

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30 May

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho College of Law] Cross-Posted at SHARES Blog. Sovereign nations have the right to extend their nationality to non-state actors who agree to adhere to national laws. But is there any broader international state responsibility associated with the granting of flag state status to known problematic non-state actors? Take the example of the South Korean flagged F/V Premier. This vessel licensed to the Dongwon company, the parent company of Starkist Tuna, was recently accused by Liberia of illegal fishing in the coastal waters of Liberia. In April, the Dongwon company settled with the government of Liberia for somewhere between one million and two million dollars.  An interesting question has arisen over whether the government of Korea now has the obligation to list the F/V Premier as an Illegal, Unreported and Unregulated fishing vessel which would mean that the vessel would not be permitted to operate in regional fishery management areas such as those regulated by the Indian Ocean Tuna Commission.  Within the IOTC waters, contracting parties and cooperating non-contracting parties are expected to demonstrate that vessels permitted to fish “have no history of IUU fishing activities or that, if those vessels have such history, the new owners have provided sufficient evidence demonstrating that the previous owners and operators have no legal, beneficial or financial interest in, or control over those vessels…” Granting the use of the flag and vessel registration are not part of an unconditional sovereign right. While Article 91 permits every State to  “fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”,  this right is conditioned by Article 94 which provides that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” When read together, Article 91 and Article 94 suggest that among the necessary conditions for granting nationality or issuing registration is a State’s demonstration of effective jurisdiction and control over “technical matters” which would include vessel safety and “social matters” which in addition to labor practices might also  include enforcing sustainable fishing practices. Healthy fisheries should be considered today a “social matter” since so many people globally depend on marine fisheries for basic animal protein and employment.  A State is, of course, not required to fix structurally unsound ships or to staff fishing vessels with reliable fishing crews who understand conservation practices—but it is required to exercise control over those who might own unsound ships or practice unsound fishing practices. One easy way to exercise effective control over “problem ships” is simply to refuse to grant such vessels nationality or to allow registration of these ships. This post argues that States granting their nationality to or providing ship registration for any vessels that are 1) known or suspected IUU fishing vessels or 2) structurally unsafe cargo vessels violate erga omnes customary international legal duties as well as discrete treaty obligations. 
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29 May

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam] Cross-posted at SHARES Blog. Takei asks whether there is a role for responsibility in international fisheries management, and he proceeds to reply-correctly so- in the affirmative. The blog eloquently presents all possible scenarios, in terms of the law of fisheries, wherein issues of state responsibility might arise. Therefore the purpose of this comment will be to highlight some questions from the viewpoint of the law of responsibility. Two intertwined points merit closer scrutiny. The first relates to the primary rules and the second to the application of the rules on responsibility. First, it is clear that the law of responsibility does not operate in a vacuum. In other words its application hinges upon the primary obligations. In the area of fisheries management these obligations are not very well laid out. This can be readily inferred from Takei’s post but also from a cursory reading of the Law of the Sea Convention (LOSC). While, for example, flag states seem to have a clear obligation to take measures to control their fishing vessels in the high seas (arts. 62(4), 87(1), 117) the obligation to do the same in the Exclusive Economic Zones (EEZ) of third states is not as clear. It has to be inferred from a combined reading of articles 56 (1) (a), 56 (1) (b) (iii), 61, 62, 73 that impose conservation obligations on the coastal states and article 58 that posits that third states shall have due regard of the rights and duties of the coastal state. Then the question becomes what is the nature of this obligation. Surely, it is not an obligation of result. The language employed (take appropriate measures, have due regard etc.) point towards an obligation of due diligence. The last step would be to define what amounts to diligent behavior in this case. The scenario where a coastal state invokes the responsibility of a flag state (e.g.for violations either of its laws in the EEZ) may materialize. This is the point where the recent request for an advisory opinion by the Sub-regional Fisheries Commission (SRFC) from the ITLOS might offer useful insights. This scenario brings us to the issue of the obligations of the coastal states in their EEZ.
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29 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. Yoshinobu Takei’s interesting post charts recent developments in international fisheries law that have attempted to respond to the ongoing ‘tragedy of the commons’ that flows from the dominance of the Grotian vision of the high seas as...

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29 May

[Dr Yoshinobu Takei is a Research Associate at the Walther Schücking Institute for International Law, University of Kiel] Cross-posted at SHARES Blog. First of all, I wish to thank Opinio Juris and SHARES for inviting me to participate in this highly interesting symposium. In my post, I will analyze the relevance of the law of responsibility in a fisheries context, describe some of the recent developments in this field and highlight some points for discussion. On 9 May 2013, a Taiwanese fishing boat was shot by a Philippine government vessel and the incident resulted in the death of a crew member onboard the fishing boat as well as serious damage to the boat. The Taiwanese government demanded the Philippine government “to respond to four demands: a formal apology; compensation; an expeditious investigation followed by the severe punishment of the perpetrators, and the speedy arrangement of negotiations on fishery matters” (Taiwanese Ministry of Foreign Affairs), although the Philippine government claimed that their law enforcement was obstructed by the attempted attack by the boat in question and they were therefore forced to open fire. This sad incident again testifies that state responsibility plays an important role in a fisheries context. After several decades of uncertainty over the jurisdictional framework for marine capture fisheries, during which states focused on multilateral treaty negotiations rather than invoking state responsibility with a few notable exceptions such as the Fisheries Jurisdiction cases brought against Iceland before the International Court of Justice (ICJ), the issue of state responsibility has gained momentum in contemporary discussions on international fisheries management.
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28 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. Seline Trevisanut provides a very helpful analysis of some of the significant gaps in the system (if we can call it that) of responsibility in international law for the welfare of those who find themselves in distress at...

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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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