Saturday, June 14, 2014
- Peter Maurer, Challenges to Humanitarian Action in Contemporary Conflicts: Israel, the Middle East and Beyond
- Aharon Barak, International Humanitarian Law and the Israeli Supreme Court
- David Kretzmer, Aviad Ben-Yehuda & Meirav Furth, ‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts
- Lawrence Hill-Cawthorne, The Role of Necessity in International Humanitarian and Human Rights Law
- Geoffrey S Corn & Tanweer Kaleemullah, The Military Response to Criminal Violent Extremist Groups: Aligning Use of Force Presumptions with Threat Reality
- Thordis Ingadottir, The Role of the International Court of Justice in the Enforcement of the Obligation of States to Investigate and Prosecute Serious Crimes at the National Level
Friday, June 13, 2014
- Volume 367
- Robert Kolb, L’article 103 de la Charte des Nations Unies
- Bruno Nascimbene, Le droit de la nationalité et le droit des organisations d’intégration régionales. Vers de nouveaux statuts de résidents?
- Wilson McLeod, Gaelic in contemporary Scotland: challenges, strategies and contradictions
- Roland Kühnel, Nationalisten sind immer die Anderen – Katalonien als neuer EU-Staat 2015?
- Thede Kahl, Ioana Nechiti, & Svetlana Thomas-Cholutaeva, Die Kalmücken. Zur Situation einer westmongolischen Sprache und Kultur in Osteuropa
- Eszter Propszt, Die ungarndeutsche Gegenwartsliteratur – eine Interpretationsgeschichte
- Max Doppelbauer, Sidi Ifni. Spanische Kolonie 1934–1969
Eine umbrella clause findet sich in ca. der Hälfte aller bilateralen Investitionsschutzabkommen. Sie soll Investor-Staat-Verträge absichern, indem sie sie unter den „schützenden Schirm“ des Abkommens zieht. In der Schiedsspruchpraxis herrscht jedoch wenig Einigkeit über die genaue Wirkung und Reichweite der Klausel: Einerseits legt der offene Wortlaut der umbrella clause eine weite Auslegung nahe, andererseits üben viele Schiedsgerichte angesichts der traditionellen Trennung von contract claims und treaty claims Zurückhaltung. Die Autorin untersucht umfassend die Schutzwirkung, die umbrella clauses für Investor-Staat-Verträge ausüben können. Sie zeigt auf, dass eine weite Auslegung der Klauseln möglich ist, ohne dabei die dogmatische Unterscheidung zwischen contract claims und treaty claims aufzuheben.
- Mariano J. Aznar, The Contiguous Zone as an Archaeological Maritime Zone
- Transform Aqorau, Reshaping International Fisheries Development: Assimilating the Treaty on Fisheries between the Governments of Certain Pacific Island States and the United States under the PNA Vessel Day Scheme (VDS)
- Yubing Shi, Greenhouse Gas Emissions from International Shipping: The Response from China’s Shipping Industry to the Regulatory Initiatives of the International Maritime Organization
- Karine Erikstein & Judith Swan, Voluntary Guidelines for Flag State Performance: A New Tool to Conquer IUU Fishing
- Jong Bum Kim, Entrenchment of regionalism: WTO legality of MFN clauses in preferential trade agreements for goods and services
- Katie Sykes, Sealing animal welfare into the GATT exceptions: the international dimension of animal welfare in WTO disputes
- Kazunobu Hayakawa, Hansung Kim, & Hyun-Hoon Lee, Determinants on utilization of the Korea–ASEAN free trade agreement: margin effect, scale effect, and ROO effect
- Juan He, WTO-plus commitments and emerging implications for China's large civil aircraft manufacturing
- Susan Ariel Aaronson & M. Rodman Abouharb, Does the WTO help member states improve governance?
Peoples and minorities in many parts of the world assert a right to self-determination, autonomy, and even secession from a state, which naturally conflicts with that state's sovereignty and territorial integrity. The right of a people to self-determination and secession has existed as a concept within international law since the American Declaration of Independence in 1776, but the exact definition of these concepts, and the conditions required for their application, remain unclear. The Advisory Opinion of the International Court of Justice concerning the Declaration of Independency of Kosovo (2010), which held that the Kosovo declaration of independence was not in violation of international law, has only led to further questions.
This book takes four conflicts in the post-Soviet Commonwealth of Independent States (CIS) as a starting point for examining the current state of the law of self-determination and secession. Four entities, Transnistria (Moldova), South Ossetia, Abkhazia (both Georgia), and Nagorno-Karabakh (Azerbaijan), claim to be entitled not only to self-determination but also to secession from their mother state. For this entitlement they rely on historic affiliations, and on charges of discrimination and massive human rights violations committed by their mother state. This book sets out its analysis of these critical issue in three parts, providing a detailed understanding of the principles of international law on which they rely: The first part sets out the contours and meaning of self-determination and secession, including an overall assessment of secession within the Commonwealth of Independent States. The second section provides case studies investigating the events in Transnistria, South Ossetia, Abkhazia, and Nagorno-Karabach in greater detail. The third and final section extends the scope of the examination, providing a comparative analysis of similar conflicts involving questions of self-determination and secession in Kosovo, Western Sahara, and Eritrea.
Die meisten bewaffneten Konflikte seit 1945 wurden zwischen Staaten und Rebellen oder zwischen nicht-staatlichen Gewaltakteuren in zerfallen(d)en Staaten ausgetragen. Gegenwärtig lehrt das syrische Drama aufs Neue, dass es sich beim Bürgerkrieg um ein Hauptübel unserer Zeit handelt. Der Beitrag zeigt, dass das Völkerrecht im Bürgerkrieg unter dem Eindruck dieses tatsächlichen Befundes insbesondere seit 1990 einen stürmischen Entwicklungsprozess durchlaufen und eine beachtliche Annäherung an das im Krieg geltende Völkerrecht erfahren hat. Der Beitrag weist diese Fortentwicklung als janusköpfig aus: der Humanisierung des Völkerrechts im Bürgerkrieg steht die Herausbildung eines bürgerkriegsrechtlichen Kampfführungsrechts gegenüber, bei dem der Rede vom ,,humanitären“ Völkerrecht ein beschönigender Zug anhaftet. Für die Zukunft stellt der Beitrag ein Völkerrecht gegen den Bürgerkrieg zur Diskussion, in dessen Licht sich auch die alte Streitfrage nach einem Kombattantenprivileg für Rebellen neu stellen ließe.
This is the first comprehensive look at the human rights dimensions of the work of the only body within the United Nations system capable of compelling action by its member states. Known popularly for its failure to prevent mass atrocities in Rwanda, the former Yugoslavia, and Syria, the breadth and depth of the Security Council's work on human rights in recent decades is much broader. This book examines questions including: how is the Security Council dealing with human rights concerns? What does it see as the place of human rights in conflict prevention, peacemaking and peacekeeping? And how does it address the quest for justice in the face of gross violations of human rights? Written by leading practitioners, scholars and experts, this book provides a broad perspective that describes, explains and evaluates the contribution of the Security Council to the promotion of human rights and how it might more effectively achieve its goals.
The field of international environmental law is often described as one of the youngest, most dynamic and most progressive branches of international law. Unlike other disciplines like trade law or human rights law, which are perceived (by some) as tainted by ideology and by international law’s imperial past, international environmental law is portrayed as a technical, forward looking discipline that seeks to keep humanity’s excesses in check for the benefit of future generations. Given its epistemologically rich subject matter (what, after all, is more fundamental to the constitution of the world than the human relation to nature?) and the normative claims it makes for itself, this body of law has remained, however, surprisingly under-theorised. Little attention has been paid, for example, to the early history of international environmental law and the complex relationship between international law, colonialism and environmentalism.
Environmental historians have begun to study and theorise the largely overlooked connection between environmental attitudes and the colonial experience. International lawyers, however, have been slow to take notice of this rich body of research and the discipline of international environmental law remains largely uncritical and unaware of its early colonial origins. This workshop brings together scholars with a shared interest in legal history to critically and systematically engage with the pre-history of international environmental law and its relationship to empire.
van den Herik & Duffy: Human Rights Bodies and International Humanitarian Law: Common But Differentiated Approaches
Human rights courts and bodies are increasingly called upon to look outwards, beyond the immediate contours of their constituent instruments and beyond their own jurisprudence. A key aspect of this phenomenon is the jurisprudential ‘borrowing’ or trans-judicial ‘dialogue’ between human rights courts, bodies and systems that is explored in detail in other chapters of this book. There is, however, also a growing call for such bodies to have regard to, interpret and in some cases ‘apply’ a range of other norms of international law beyond international human rights law (IHRL). UN imposed sanctions,2 the assertion of immunities of the state and state officials3 and issues of state responsibility4 are among the contexts in which human rights courts have recently had to grapple with generic international lawconcepts or rules from areas of law other than IHRL, often with controversial results. This chapter considers the approach of human rights courts and bodies to one such issue of interplay that arises with increasing frequency, namely the application of international humanitarian law (IHL) alongside IHRL in situations of armed conflict.
Thursday, June 12, 2014
- Stephen Tully, A Human Right to Access the Internet? Problems and Prospects
- Theodor Schilling, On Equal Footing: The Participation Rights Envisaged for the European Union After Its Accession to the European Convention on Human Rights
- Filippo Fontanelli, National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?
- Michael Ramsden & Luke Marsh, Refugees in Hong Kong: Developing the Legal Framework for Socio-Economic Rights Protection
- Başak Çali & Anne Koch, Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee of Ministers of the Council of Europe
- Shorter Articles and Recent Developments
- Jens T. Theilen, Depathologisation of Transgenderism and International Human Rights Law
- Ilias Trispiotis, Discrimination and Civil Partnerships: Taking ‘Legal’ out of Legal Recognition
- Annapurna Waughray, Capturing Caste in Law: Caste Discrimination and the Equality Act 2010
- Prosecutor v. Charles Ghankay Taylor (SCSL), with introductory note by Erin Louise Palmer
- Blue Ridge Investments, L.L.C. v. Republic of Argentina (2d Cir.), with introductory note by David P. Stewart
- The Decent Work for Domestic Workers Convention, 2011 (No. 189) and Recommendation (No. 201), with introductory note by Adelle Blackett
- Crisis and International Law: Decoy or Catalyst?
- Willem van Genugten & Mielle Bulterman, Crises: Concern and Fuel for International Law and International Lawyers
- Benjamin Authers & Hilary Charlesworth, The Crisis and the Quotidian in International Human Rights Law
- Daniel Augenstein, The Crisis of International Human Rights Law in the Global Market Economy
- Juan M. Amaya-Castro, International Refugees and Irregular Migrants: Caught in the Mundane Shadow of Crisis
- Edwin Bikundo, Saving Humanity from Hell: International Criminal Law and Permanent Crisis
- Tomer Broude, Warming to Crisis: The Climate Change Law of Unintended Opportunity
- Karin Mickelson, Between Crisis and Complacency: Seeking Commitment in International Environmental Law
- Alexia Herwig, The WTO and the Doha Negotiation in Crisis?
- Jessica C. Lawrence, The EU in Crisis: Crisis Discourse as a Technique of Government
The post-World War II human rights phenomenon has in recent years become the focus of an outpouring of academic interest that spills across a number of disciplines – not only law and philosophy, but also history, theology, political science, anthropology, international relations, among others. This is without doubt a positive development, since the major questions to which that phenomenon gives rise are by no means the exclusive preserve of any one academic specialization. However, as Samuel Moyn’s chapter in this volume, written with his customary learning and flair, vividly illustrates, productive cross-disciplinary dialogue on this apparently common subject-matter is not easily achieved. In this reply I will indicate some of the ways in which Moyn mistreats arguments that I advanced in ‘Towards a Philosophy of Human Rights’, the text that is his primary target. My comments are offered with the aim of furthering a broad agenda that I believe we both share, i.e. that the academic study of human rights should critically engage with the discourse and practice of human rights in the real world.
This book suggests a new explanation for why international peace interventions often fail to reach their full potential. Based on several years of ethnographic research in conflict zones around the world, it demonstrates that everyday elements - such as the expatriates’ social habits and usual approaches to understanding their areas of operation - strongly influence peacebuilding effectiveness. Individuals from all over the world and all walks of life share numerous practices, habits, and narratives when they serve as interveners in conflict zones. These common attitudes and actions enable foreign peacebuilders to function in the field, but they also result in unintended consequences that thwart international efforts. Certain expatriates follow alternative modes of thinking and acting, often with notable results, but they remain in the minority. Through an in-depth analysis of the interveners’ everyday life and work, this book proposes innovative ways to better help host populations build a sustainable peace.
Wednesday, June 11, 2014
Jundt: Dueling Visions for the Postwar World: The UN and UNESCO 1949 Conferences on Resources and Nature, and the Origins of Environmentalism
Thomas Jundt examines the 1949 United Nations Scientific Conference on the Conservation and Utilization of Resources held in Lake Success, New York. Concerned that the conference would promote only traditional notions of conservation focused on the wise use of natural resources and the preservation of natural spaces deemed aesthetically pleasing, one of the United Nations’ own agencies, the United Nations Educational, Scientific, and Cultural Organization, held the concurrent International Technical Conference on the Protection of Nature designed to encourage broader ideals of environmentalism—focused on issues of ecology, pollution, and sustainability—that emerged after World War II.
Adapting to a Rapidly Changing World
For better or worse, international law is confronting a period of profound change. Geopolitical developments—in particular, new assertions of economic, political, or military power by countries like Brazil, Russia, India, China, and South Africa—have simultaneously aggravated latent territorial disputes and created the potential for unprecedented economic integration. Advances in technology have enabled cyber-conflicts and forged new tools for governmental coercion or control, while also facilitating the dissemination of information. Shared environmental challenges have presented new causes of human suffering or conflict, as well as new possibilities for global cooperation and assistance. And the increased role of non-state actors in international affairs has made more vocal the still unfulfilled demands on, for example, the universal recognition of the human rights of LGBT persons, the responsibilities associated with corporate conduct, and the protection of people from mass atrocities.
The 2015 ASIL Annual Meeting will ask how international law is adapting to a rapidly changing world. For example: Are the existing international legal regimes capable of meeting these challenges or will new regimes be required? Through what processes can we expect international law to adapt, and how might new norms emerge in the face of persistent disagreements or holdout problems? How is the legal order responding as the world moves from a unipolar system dominated by the United States to a more multipolar system? And what is the role or relevance of international law where it might be unable to resolve global issues?
The American Society of International Law, with its membership of scholars, practitioners, and students of international law from around the world, will explore these questions at the 2015 Annual Meeting.
Program Suggestions Sought
From April 8-11, 2015, the American Society of International Law will convene its 109th Annual Meeting. The ASIL Annual Meeting Committee (chaired by Monica Hakimi, Natalie Reid, and Samuel Witten) welcomes suggestions from practitioners, academics, and students on topics encompassed within the meeting's theme, "Adapting to a Rapidly Changing World."
The aim of the 2015 Annual Meeting is to promote a rigorous discussion, among international lawyers with different backgrounds and perspectives, on the question of how international law is adapting to a rapidly changing world. To this end, the Program Committee will rely on the submissions process to identify relevant topics and knowledgeable speakers. Drawing on session suggestions, the Program Committee will create a program with the following goals in mind:
The Program Committee will prioritize session proposals that involve non-traditional formats, such as interviews, question-and-answer roundtables, lectures, debates, poster sessions, or the use of multimedia or interactive audience participation features. In addition, the Program Committee intends to include two "New Voices" sessions that will provide a platform for junior scholars to present their work.
- Coverage of a wide-breath of timely topics of interest to ASIL members;
- Participation by individuals from a variety of backgrounds;
- A place in the program for some sessions organized by ASIL Interest Groups; and
- A vibrant exchange of ideas through the use of innovative program formats.
Please note that, even if your suggested session is included in some form in the final program, the Program Committee might significantly modify your initial proposal, including the proposed presenters, participants, or moderators, in order to satisfy the four overall goals identified above. The Program Committee might also combine multiple proposals together or modify your proposal to better fit the needs of the meeting agenda.
In order to suggest a session or paper to the Program Committee, please complete the Proposal Submission form by no later than Monday, June 30, 2014. The Program Committee will inform proposers by email about the status of their suggestion(s) by early September. Thank you very much for your interest in the 2015 Annual Meeting.
- Abhimanyu George Jain, The 21st century Atlantis: The international law of statehood and climate change-induced loss of territory
- Dan Jerker B. Svantesson, The extraterritoriality of EU data privacy law — its theoretical justification and its practical effect on U.S. business
- The Virtual Battlefield: Securing Cyberspace in a World Without Borders
- Paul Rosenzweig, International law and private actor active cyber defensive measures
- Scott J. Shackelford & Amanda N. Craig, Beyond the new “digital divide”: analyzing the evolving role of national governments in Internet governance and enhancing cybersecurity
- Roger Berkowitz, Drones and the Question of “The Human”
- Alan Sussman, Why Human Rights Are Called Human Rights
- Roundtable: The Future of Human Rights
- Beth A. Simmons, The Future of the Human Rights Movement
- Philip Alston, Against a World Court for Human Rights
- James W. Nickel, What Future for Human Rights?
- Jack Donnelly, State Sovereignty and International Human Rights
- Andrew Gilmour, The Future of Human Rights: A View from the United Nations
- Review Essays
- Jens Bartelson, From Empire to Sovereignty—and Back?
Call for Papers: Global Institutions and Technologies in the Governance of Illicit Activity: Measurement, Data, Indicators and Quantification
Global Institutions and Technologies in the Governance of Illicit Activity:
Measurement, Data, Indicators and Quantification
When: November 17-18, 2014
Where: NYU School of Law, New York
Call for Papers
On November 17-18, 2014, the Institute for International Law and Justice at New York University School of Law and David M. Malone, Rector of the United Nations University, Under-Secretary-General of the United Nations, will convene a conference to examine how power-knowledge dynamics within global institutional governance are being transformed by new practices and cultures of measurement, data, indicators, and other quantified information. The central focus will be on governance of illicit activity (corruption, money laundering, human trafficking, illegal logging, narcotics, dangerous fake pharmaceuticals, etc). Proposals for papers are invited from scholars and practitioners on either relevant new general theoretical frameworks (e.g. with regard to indicators and quantification, or data and information in inter-institutional governance dynamics) or with regard to data, measurement and information issues in relation to any of these illicit activities. (We do not plan to focus on national security, anti-terrorism, etc, as these issues are extensively addressed elsewhere). Lines of inquiry include (among others):
Special attention will be given to the analysis of the above questions in the context of monitoring and enforcement of illegal activities such as human trafficking, illegal logging, counterfeit pharmaceuticals, money laundering and anti-corruption, etc. Efforts to combat such illicit activities typically involve overlapping sets of regimes and institutions, often poorly coordinated, embodying conflicting purposes and values, directly competing, or simply fundamentally different. For example, human trafficking is dealt with through law enforcement, labor rights, human rights, migration regulation, and anti-slavery projects, with complex interactions involving international organizations (e.g., OHCHR, UNODC, UN Special Rapporteur on trafficking in persons, especially in women and children, the International Labour Organization, Interpol, etc.), national enforcement agencies (e.g., FBI, Department of Justice, local police), nonprofit organizations, funders, and private actors (e.g., Google, Palantir). In all of this, data, indicators, and framing play a central part: who is counted in quantifications of victims of human trafficking (e.g. are mistreated migrant laborers to be counted, or exclusively sex trafficking victims?; can a person in abusive conditions who has never moved be counted as a trafficking victim?), should indicators be labelled ‘trafficking’ or ‘modern slavery’, which countries are making adequate law enforcement efforts and which not, etc. These are all general phenomena arising in many areas of global governance.
- How and by whom is data collected and disseminated? How are choices about methods of measurement and quantification made and by whom? What is the role of technology? What is not being measured? What and who is left out?
- What is the dynamic between different actors aiming to measure the same phenomenon, such as rule of law? Under what conditions is there competition, complementarity, coordination, parallel operation, mutual learning, or revision? Who are the “winners” and “losers” in this dynamic? What are the effects of this interaction? Does it produce, for example, experimentation, harmonization and standardization, diffusion of norms or knowledge, the emergence of networks, the destabilization of power centers, or other effects?
- What role do data and indicators play as tools or languages of institutional interaction? When, if ever, do data and indicators lead to the creation, re-imagination, or breakup of networks or ecosystems of governance? Under what conditions do they participate in interdisciplinary governance? How do data and indicators interact with other forms of knowledge production? For example, how is quantified knowledge joined with “templating,” best practices models, promulgation of standards, visual representations, and narratives?
Illicit activities merit particular consideration not only because of the importance of the issues at stake, but because of some unique features requiring special attention. Data is hard to collect and hence hard to evaluate. Many participants naturally maximize secrecy, evading tracking and monitoring and systematic study. Those who can quantify some aspects of illicit activity may conceal the resulting data; law enforcement officials keep some information secret for investigative and enforcement purposes, groups assisting victims may need to keep the identity (or even the existence) of the victims secret for protection; one institution may mistrust another. Yet, even in contexts where information is impervious to public scrutiny, the power-knowledge effects of (accurate or inaccurate) data may be great. Examining how the data is produced, analyzed and used and how data producers, users and other actors interact in the context of monitoring and enforcing illegal and illicit activities opens up new perspectives on the roles of quantification and of multi-institutional dynamics in governance. Bringing together experts on these issues and experts on several different kinds of illicit activity allows for comparative study of governance, data and measurement in domains that are characterized by different degrees of transparency and different institutional dynamics. Policy and practical innovation, and cross-issue linkage, may also be facilitated.
Submissions of proposals from junior and senior scholars and experienced practitioners are invited on any of the themes outlined above. Submissions may present innovative theoretical ideas and frameworks, or focus on data in the context of illicit activities as rich case studies or as illustrative/tests of broader theories.
Abstracts of 150-500 words (as full and specific as possible, including a proposed title and details of the argument or empirical work), or draft papers if already available, should be sent (in .pdf or .doc format) to firstname.lastname@example.org by July 30, 2014. Please provide contact details and a link to an author bio. All authors will be informed of the selection decisions quickly thereafter. Selection will be based on relevance to the theme, innovative materials or perspectives, and the overall blend and coherence of the conference. Authors invited who choose to take part will be asked to send final pre-conference draft papers by October 25, 2014, for circulation to conference commentators etc. The IILJ hopes to be able to assist with modest travel funding where needed.
This conference builds on work of NYU Law faculty on governance and on activities such as trafficking and corruption, and on two ongoing projects of the Institute for International Law and Justice: Inter-Institutional Relations in Global Law and Governance, and Indicators as a Technology of Global Governance. The generous support of the National Science Foundation is gratefully acknowledged. For more information and relevant readings on both of these projects, please see www.iilj.org
Weidemann: International Governance of the Arctic Marine Environment: With Particular Emphasis on High Seas Fisheries
The Arctic is particularly affected by climate change; over the past few decades, temperatures in this area have risen twice as fast as the mean global rate. The most prominent effect of global climate change in the region is the melting sea ice in the Arctic Ocean, which enables a multitude of ocean uses to be initiated and extended, such as shipping, fishing and oil and gas extraction. Unlike in the Antarctic, there is currently no single comprehensive legal regime for governance of the Arctic. Instead, the region is regulated by a patchwork of international treaties, above all the United Nations Convention on the Law of the Sea (UNCLOS), various regional and sub-regional agreements, national laws and soft-law agreements. This treatise provides an evaluation of the governance regime that regulates the use of the Arctic marine environment and its readiness to protect these fragile ecosystems in light of the consequences of climate change.
Tuesday, June 10, 2014
The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society's Midyear Meeting in Chicago November 6-8, 2014.
The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.
Proposals should be submitted online by June 15, 2014. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum.
Review of the abstracts will be blind. Notifications of acceptance will go out in mid-July.
Papers will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. Please e-mail email@example.com if you are interested in serving as a discussant. All authors of accepted papers will be required to submit a draft paper four weeks before the Research Forum. Drafts will be posted on a web page accessible exclusively to Forum participants.
Karen Alter, Northwestern University
Katerina Linos, ASIL Academic Partner University of California - Berkeley School of Law
2014 Research Forum Co-Chairs
This article examines one specific question: whether states are allowed to derogate from human rights treaties for situations which take place outside their territories, especially in armed conflict. Can, for instance, the United Kingdom derogate from the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) for events that take place in Afghanistan and involve its armed forces deployed there, to the extent that the ECHR and the ICCPR apply in Afghanistan?
The wider the geographical scope of human rights treaties, the more relevant the question of extraterritorial derogations. Such derogations might start looking increasingly appealing to states, especially those who have initially miscalculated in arguing that the treaties do not apply at all, and avoided derogating in the fear that doing so would count as an admission that the treaties do apply. Derogations have the potential of bringing both clarity and flexibility to the applicable legal framework, especially in situations of armed conflict and with regard to possible interactions between human rights and international humanitarian law (IHL).
Contrary to the dicta in some of the decisions of the House of Lords and the UK Supreme Court, the article argues that extraterritorial derogations are not only permissible, but may even be necessary and desirable, as part of price worth paying for the treaties’ extensive and effective application outside states’ boundaries. It also elaborates on the relationship between derogations and the various different manifestations of the lex specialis principle.