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The widespread practice of uploading photographs onto internet social networking and commercial sites has converged with advances in face recognition technologies to create a situation where an individual can no longer be just a face in the crowd. Despite the intrusive potential of face recognition technologies (FRT), the unauthorised application of such technologies to online digital images so as to obtain identity information is neither specifically prohibited nor a critical part of the international law reform discourse.
Customary international law arises from the practices of nations followed out of a sense of legal obligation. Although long an important source of international law, there continues to be debate and uncertainty about customary international law’s status in the US legal system.
Taiwan easily satisfies the traditional requirements for statehood: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such.
Russia’s annexation of Crimea in 2014 was a watershed in international relations because with this act, Moscow challenged the post-Cold War international order. Yet what has been fascinating is that over the last years, Russia’s President and Foreign Minister have repeatedly referred to ‘international law’ as one of Russia’s guiding foreign policy principles.
The centenary of the Great War in 2014 has generated impressive public as well as scholarly attention. It has all but overshadowed some other major anniversaries in the history of international relations and law, such as the quarter-centenary of the fall of the Berlin Wall (1989) or the bicentenary of the Vienna Congress (1814–1815). As with the turn of the year the interest in the Great War seems to be somewhat subsiding, and the anniversary of the most epic and dramatic event of the Vienna period (the Battle of Waterloo of 18 June 1815) is approaching, the commemoration of the Vienna Congress gains a bit of the spotlight.
The Congress of Vienna marked the establishment of a new political and legal order for Europe after more than two decades of turmoil and war following the French Revolution. The defeat of Napoleon (1769–1821) in 1813–1814 by a huge coalition of powers under the leadership of Britain, Russia, Austria, and Prussia gave the victorious powers an opportunity to stabilise Europe. This they intended to do by containing the power of France and recreating the balance between the great powers.
At Vienna, between November 1814 and June 1815, the representatives of more than 200 European polities – many from the now-defunct Holy Roman Empire – met to debate a new European order. The Congress of Vienna stands in the tradition of great European peace conferences, beginning with Westphalia (1648) and continuing with Nijmegen (1678–1679), Rijswijk (1697), Utrecht (1713), Vienna (1738), Aachen (1748), and Paris (1763) to the Paris peace conference that ended the American War of Independence (1783). Yet, in several ways, it was also a departure from it.
At the prior peace conferences, the major order of business had been to agree on the conditions to end war and restore peace. Whereas this implied discussions on the future order of Europe, the major interest was to settle the claims that lay at the origins of the war and the focus was thus largely backwards-looking. In the case of Vienna, peace had already been made between France and the major allies before the conference met. Peace had been formally achieved through the First Peace of Paris of 30 May 1814. This peace had taken the traditional form of a set of bilateral peace treaties between the different belligerents. In this case it concerned six peace treaties between France on the one hand and Britain, Russia, Austria, Prussia, Sweden, and Portugal on the other hand. These treaties were identical but for some additional and secret articles. Professor Parry published the treaty between France and Britain as well as these separate articles (63 CTS 171). On 20 July 1814, France concluded a seventh peace treaty with Spain (63 CTS 297). Article 32 of the identical treaties provided for a general congress at Vienna to ‘complete the provisions of the present Treaty’. The peace treaties contained the major conditions of peace, including the new borders of France. It was left to the Congress to lay out the conditions of the general political and legal order of Europe for the future.
Not even the return of Napoleon from Elba and the eruption of new war diverted the Congress from its forward-looking agenda. The congress was not suspended nor was a new peace treaty made at Vienna. After Napoleon’s defeat at Waterloo and the second restoration of the Bourbons to the French throne, a new set of peace treaties was made under the Second Peace of Paris of 20 November 1815 (65 CTS 251), between France and each of the four great powers of the coalition. Numerous other powers later acceded to the peace.
As prior conferences had done, the Vienna Congress produced a whole set of – mostly bilateral – treaties. But the conference also chose an innovative form for its closing as its main conclusions were formally laid down in a general instrument, the Final Act of Vienna of 9 June 1815 (64 CTS 453). This act was signed and ratified by the seven powers which had concluded peace at Paris on 30 May 1814, with Spain and some other powers later acceding. Article 118 of the Final Act incorporated 17 treaties which had been concluded at Vienna and annexed them to the instrument, thus committing all signatories of the Final Act to them. In turn, Article 11 of the Second Peace of Paris would later confirm the Vienna Final Act, as well as the First Peace of Paris.
As it is generally established in the scholarly literature, the new order of Europe which came out of the Vienna Congress was based on two main pillars. Firstly, the Vienna powers aspired to restore and safeguard the balance of powers and made this into a leading maxim in drafting the new territorial map of Europe. This was done by reducing France to its borders of 1792 – allowing it to keep some of its conquests from the Revolutionary Period – and strengthening its neighbours. The greatest riddle to the balance of power was the future of Germany. The solution was found somewhere between the extremes of a return of the division of the Holy Roman Empire, which would have made it defenceless against new French expansionism, and its unification, which would have disrupted the balance of Europe. The new German Confederation would contain only 39 states instead of the over 300 of the old Empire. Within the Confederation, a balance was created between the two leading powers, Austria and Prussia, both of which made considerable territorial gains to ensure their capability to contain France, and each other.
Secondly, the Vienna order was built on the principle that the great powers – a group into which France retook its traditional place – would take common responsibility for the general peace and stability of Europe. The four victorious great powers had already agreed on this principle in different instruments prior to the Vienna Congress, the main one of these being the Treaty of Chaumont of 1 March 1814 (63 CTS 83). This ‘great power principle’ also determined the organisation and working of the congress itself. Although over 200 delegations were present, the major negotiations and decisions took place in the Committees of Five (Britain, Russia, Austria, Prussia, and France) and of Eight (also including Spain, Sweden, and Portugal), relegating the other powers to roles as lobbyists for their own interests. As the chief French negotiator, Charles Maurice de Talleyrand-Périgord (1754–1838) had it, ‘Vienna was the Congress that was not a Congress’. The Final Act did, however, lack a provision for the future implementation of the great power principle apart from the fact that the eight great powers were bound to all its provisions and thus were all guarantors of the territorial and legal order of Europe as laid down in the act. This was remedied by the Second Peace of Paris of 20 November 1815. Article 6 of the bilateral treaty of alliance signed between Britain and Austria provided for the convening of conferences between the great powers to discuss matters of common interest and the maintenance of peace in Europe. Through its incorporation in the identical peace treaty, this committed all its signatories.
The basic features of the reorganisation of Europe from Vienna would survive for more than five decades, until the German unification. Whereas Europe was plagued by numerous armed conflicts and wars, the Vienna order proved at the same time sufficiently grounded and flexible to allow the great powers the leeway necessary to prevent these wars from escalating into a new general war. Even the disruption of the balance of power through the defeat of France in the Franco-German War and the ensuing unification of Germany in 1870 did not lead to an end to the endeavours by the great powers to manage the system and to sustain peace. The breakdown of the peace and the total conflagration of 1914–1918 destroyed the credit of one of the pillars of the Viennese settlement, the balance of power. But the other survived. Even more so, the idea that the best guarantee for order and peace was their joint management by the great powers became the backbone of the institutional organisation of collective security in the League of Nations in 1919 and the United Nations Organisation in 1945.
To speak of sovereign equality today is to invite disdain, even outright dismissal. In an age that has become accustomed to compiling “indicators“ of “state failure,” revalorizing nineteenth-century rhetoric about “great powers,” and circumventing established models of statehood with a nebulous “responsibility to protect,” sovereign equality seems little more than a throwback to a simpler, less complicated era.
To be sure, as a general principle, sovereign equality remains foundational to both customary and conventional international law. Article 2(1) of the UN Charter retains its nominally sacrosanct status, a foundational point of reference for a modern international law that promised to do away with the “standard of civilization”. Similarly, all the other classic articulations of independence and non-interference, especially the 1970 Friendly Relations Declaration, continue to be invoked, often with much the same spirit of solemnity.
Yet a great deal has also changed in recent decades. We have grown familiar to hearing that borders are no longer what they once were (or what, at any rate, they were once imagined to be). Traversed by goods, services, people, and capital, not to mention information, territorial frontiers have been characterized by wave upon wave of globalization theory as “fluid” and “porous”. Likewise, conventional legal models of recognition and jurisdiction have come under intense criticism. Among other things, the colonization of large chunks of international law scholarship by political science has generated a large literature on “rogue states”.
Not surprisingly, such developments have put the very idea of sovereign equality under pressure. And this, in turn, has had significant systemic consequences for international law as a whole.
Of course, sovereign equality is not without its problems. The principle has legitimated the very injustice it is purportedly designed to combat, enshrouding real inequality in a purely notional equality. After all, in itself, a bare assertion that states are equal and endowed with the same legal personality does remarkably little to rectify actually existing inequalities. Worse still, “rights of sovereignty” have been invoked to justify all manner of abuses, typically by national elites determined to augment and consolidate their class power.
Part of the difficulty here is that far from being inherently “progressive”, sovereign equality is a concept with a rather murky pedigree. While its roots reach back centuries, the principle assumed strong doctrinal form during the nineteenth century by way of the Concert of Europe’s commitment to the European balance of power. This commitment was typically premised upon the impermissibility of intervention in “civilized” states and the permissibility of intervention in “uncivilized” and “semi-civilized” regions. That is hardly an ideal foundation for an emancipatory principle.
All of this is true. But it is also worth keeping in mind that sovereign equality has frequently furnished politically and economically weaker states with a measure of protection against aggression and intervention. As a response to de facto inequality, international lawyers instinctively prioritize de jure equality. Absent such insistence on formally equal rights and obligations, it is often assumed, the will and interests of some states would be subordinated to the will and interests of other states, with predictably dire implications for international legal order.
To underscore the significance of sovereign equality today is not to cling to an outdated mode of conceiving international relations. Nor is it to deny that sovereign power has its “dark sides”. It is simply to stress the need for greater appreciation of the fact that sovereignty may under certain circumstances provide a buffer against some of the most direct and explicit forms of inter-state violence. It is worth recalling that the history of international law is to no small degree the history of attempts to secure recognition for (one or another account of) sovereign equality. This is anything but a puerile pursuit.
Headline image credit: Map of the world. CC0 via Pixabay.
International law has faced profound challenges in 2014 and the coming year promises further complex changes. For better or worse, it’s an exciting time to be working in international law at Oxford University Press. Before 2014 comes to a close, we thought we’d take a moment to reflect on the highlights of another year gone by.
We published a new comprehensive study into the development, proliferation, and work of international adjudicative bodies: The Oxford Handbook of International Adjudication edited by Cesare Romano, Karen Alter, and Yuval Shany.
In early April, we were finalizing preparations for ASIL-ILA 2014, as were many of our authors and readers. By combining the American Society of International Law and the International Law Association, the schedule was full of interesting discussions and tough choices.
David Caron, co-author of the UNCITRAL Arbitration Rules 2nd edition with OUP’s very own Merel AlsteinAntonios Tzanakopoulos, author of Disobeying the Security Council: Countermeasures against Wrongful Sanctions, and OUP’s very own John Louth
We worked with the authors of The Locus Effect: Why the End of Poverty Requires the end of Violence, Gary A. Haugen and Victor Boutros, to develop an infographic and learn how solutions like media coverage and business intervention have begun to positively change countries like the Congo, Cambodia, Peru, and Brazil.
EJIL: Live!, the official podcast of the European Journal of International Law (EJIL), launched. Podcasts are released in both video and audio formats to coincide with the publication of each issue of EJIL. View all episodes.
The World Cup highlighted the global issue of exploitation of low and unskilled temporary migrant workers, particularly the rights of migrant workers in Qatar in advance of the 2022 World Cup and the abuses of those rights.
In advance of September’s 10th anniversary European Society of International Law meeting, we asked our experts what they thought the future of international law might look like.
On 30 August we put together a content map of international law articles in recognition of the International Day of the Victims of Enforced Disappearances. Click the pins below to be taken to the full text articles.
August saw the publication of the third edition of one of our best-regarded works on international criminal law — Principles of International Criminal Law by Gerhard Werle and Florian Jeßberge — as well as our latest addition to the Oxford Commentaries on International Law series — The Chemical Weapons Convention: A Commentary edited by Walter Krutzsch, Eric Myjer, and Ralf Trapp.
In September, Scotland voted in a referendum. Anthony Carty and Mairianna Clyde addressed what might it have meant for Scottish statehood had Scotland voted for independence? And Stephen Tierney addressed the question, what would an independent Scotland look like?
In celebration of ESIL’s 10th anniversary conference in September, we put together a quiz featuring the eleven cities that have had the honour of hosting an ESIL conference or research symposium since the first in 2004. Each place is the answer to one of these questions – see if you can match the international law event to the right city.
Ingo Venzke at the European Society of International Law meeting in Vienna
September saw the release of Human Rights: Between Idealism and Realism by Christian Tomuschat, an unique and fully updated study on a fundamental topic of international law.
Amal Alamuddin, Barrister at Doughty Street Chambers, co-editor of The Special Tribunal for Lebanon: Law and Practice, and contributor to Principles of Evidence in International Criminal Justice, married the actor George Clooney. Congratulations, Amal!
On 21 September we celebrated Peace Day. We put together an interactive map showing a selection of significant peace treaties that were signed from 1648 to 1919. All of the treaties mapped here include citations to their respective entries in the Consolidated Treaty Series, edited and annotated by Clive Parry (1917-1982).
On 24 September Oxford Historical Treaties launched on Oxford Public International Law. Oxford Historical Treaties is a comprehensive online resource of nearly 16,000 global treaties concluded between 1648 and 1919 (between the Peace of Westphalia and the establishment of the League of Nations).
October
On 10 October, the Nobel Peace Prize was awarded to Malala Yousafzai and Kailash Satyarthi. In recognition of their tremendous work, we made a selection of articles on children’s rights free to read online for the month of October.
On 16 October, Ruti Teitel gave a talk on her new book Globalizing Transitional Justice, which published in May 2014, at Book Culture in New York. The event included a panel discussion with Luis Moreno-Ocampo, the first Prosecutor (June 2003-June 2012) of the new and permanent International Criminal Court, and Jack Snyder, the Robert and Renee Belfer Professor of International Relations in the Department of Political Science and the Saltzman Institute of War and Peace Studies at Columbia.
Ruti Teitel at Book Culture in New York
In October, we were preparing for the 2014 International Law Weekend Annual Meeting at Fordham Law School, in New York City (24-25 October 2014). We were also busy preparing for the FDI Moot, which gathers academics and practitioners from around the world to discuss developments and gain a greater understanding of growing international investment, the creation of international investment treaties, domestic legislation, and international investment contracts. Read more here.
In recognition of UN Day this year on 26 October, we created a free article collection featuring content from international law journals, the Max Planck Encyclopedia of Public International Law, and The Charter of the United Nations.
In October we published the first in a major three-volume manual bringing together the law of the sea, shipping law, maritime environmental law, and maritime security law. Prepared in collaboration with the International Maritime Law Institute, the International Maritime Organization’s research and training institute, The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea is edited by Malgosia Fitzmaurice, and Norman Martinez with David Attard as the General Editor.
November
In November we published our annual report on armed conflict around the world. The War Report: Armed Conflict in 2013, edited by Stuart Casey-Maslen, provides detailed information on every armed conflict which took place during 2013, offering an unprecedented overview of the nature, range, and impact of these conflicts and the legal issues they created.
In mid-November we published the second edition of Environmental Diplomacy: Negotiating More Effective Global Agreements, by Lawrence E. Susskind and Saleem H. Ali, which discusses the geopolitics of negotiating international environmental agreements. The new edition provides an additional perspective from the Global South and a broader analysis of the role of science in environmental treaty-making.
Judicial Review of National Security expanded our Terrorism and Global Justice Series in late November. Author David Scharia gave a book talk at NYU School of Law’s Center on Law and Security soon after the book published. The talk began with an introduction from President (ret.) Dorit Beinisch of the Supreme Court of Israel.
December
In celebration of Human Rights Day 2014, we asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses. These reflective pieces were collated into an article for the OUPblog. Additionally, we made a collection of over thirty articles from law and human rights journals free for six months, and promoted a number of books titles alongside the journal collection, on a central page. Finally, 50 landmark human rights cases were mapped across the globe.
For almost a hundred years, international law has been on the receiving end of relentless criticism from the policy and academic worlds. That law, sometimes called the law of nations, consists of the web of rules developed by states around the world over many centuries through treaties and customary practices, some bilateral, some regional, and some global. Its rules regulate issues from the very technical (how our computers communicate internationally or the lengths of airport runways) to areas of common global concern (rules for ships on the seas or ozone pollution) to the most political for individual states (like when they can go to war or the minimum standards for human rights).
The first challenge to international law comes from those politicians, pundits, and political scientists who see it as fundamentally ineffective, a point they see as proved ever since the League of Nations failed to enforce the Versailles Treaty regime against the Axis in the 1930s. But those who really know how states relate to each other, whether diplomats or academics, have long found this criticism an unrealistic caricature. While some rules have little dissuasive power over some states, many if not most important rules, are generally followed, with serious consequences for violators, like ostracism, reciprocal responses, or even sanctions. The list of routinely respected rules is enormous, from those on global trade to the law of the sea to the treatment of diplomats to the technical areas mentioned above. Most international cooperation is grounded in some legal rules.
The second challenge to international law has come from domestic lawyers and some legal scholars who asserted that international law is not really “law” because it lacks the structure of domestic law, in particular an executive or police force that can enforce the rules. But this too is a canard. As the British legal scholar H.L.A. Hart pointed out more than a half-century ago, one does not need to have perfect enforcement for a rule to be “law,” as long as the parties treat the rules as law. With international law, states certainly interact in a way that shows they treat those rules as law. They expect them to be followed and reserve special opprobrium and responses for law violators. Certainly, powerful states can get away with some law violations more easily than weak states, but that has nothing to do with whether international law is law.
Third, international law has faced a challenge from some philosophers and global leaders that it is fundamentally immoral. They claim that its rules reflect self-interested bargains among governments, but lack moral content. It is intriguing that this moral criticism actually comes from two opposite directions. On the one hand, so-called cosmopolitan philosophers, who think people’s moral duties to one another should not turn on nationality or national borders (which they view as morally arbitrary), condemn many rules for sacrificing concern for the individual, wherever he or she may live, for the mere interests of states. On the other hand, leaders of many developing world nations claim that many of international law’s rules are immoral for not privileging states enough, in particular because they see the rules as part of a move by Northern states to undermine poor nations’ national sovereignty.
One example shows the criticism. Consider the rule on secession, a rule that helps us evaluate, for instance, whether Crimea’s separation from Ukraine, and Russia’s engineering of that move, is illegal. International law has a “black-letter” rule that strictly limits the possibility for a group of people disaffected with their government to secede unilaterally from their state, only endorsing it if the government is severely denying them representation in the state. The point of the rule is to avoid the violence that comes from secessions – as we have seen from the break-up of Yugoslavia, the war between Sudan and the recently formed South Sudan, and the Ukraine-Russia conflict today. Cosmopolitan philosophers condemn the rule for not allowing individuals enough choice, by forcing people to remain tied to a state when they would prefer to have their own state, just for the sake of the stability of existing and arbitrary inter-state borders. Developing world leaders, often intolerant of minority groups in their state, criticize the rule for the opposite – for harming states by opening the door, however slightly, for some groups to secede and form their own states.
I think both of these criticisms miss the mark. In my view, many core rules of international law are indeed just because they do what all rules of international law must do – they promote peace, interstate or domestic, while respecting basic human rights. We need international rules to promote peace because the global arena is still characterized by a great deal of interstate and internal violence. At the same time, we cannot tolerate rules that trample on basic human rights, which are a sort of moral minimum for how we treat individuals.
This standard for a just system of international law is different from the more robust form of justice we might expect for a domestic society. The great theory of contemporary justice, that of John Rawls, demands both an equal right to basic liberty for all individuals within a state and significant redistribution of material wealth to eliminate the worst economic inequality. But we can’t really expect international law to do this right (particularly the second) now. Why? Because we cannot assume the domestic tranquility on which to build that more robust justice, and because the international arena does not have the same kind of strong institutions to force those sorts of rules on everyone (even though it can force some rules on recalcitrant states).
To return to my example about secessions, I think the rule we have strikes the right balance between peace and human rights. It promotes interstate and internal peace by disallowing merely unhappy groups to separate unilaterally; but it keeps the door open to that possibility if they are facing severe discrimination from the central government. So the Scots, Quebecers, or ethnic Russians in Ukraine do not have a right to secede, but Estonians did, and maybe Kurds still do. Other rules of international law will also meet this test, though I think some of them do risk undermining human rights.
Why should we care whether international rules are just? Because, as I stated earlier, those norms actually do guide much governmental action today. If a norm of international law is just, we have given global leaders and the public good reasons to respect it – as well as good reasons to be wary of changing it without careful reflection. And for those that are not, we can use an ethical appraisal to map out a course of action to improve the rules. That way, we can develop an international law that can promote global justice.
Today, 10 December, is Human Rights Day, commemorating The Vienna Declaration and Programme of Action. In celebration, we’re sharing an edited extract from International Human Rights Law, Second Edition by Kenneth Roth, Executive Director of Human Rights Watch.
The modern state can be a source of both good and evil. It can do much good – protecting our security, ensuring our basic necessities, nurturing an environment in which people can flourish to the best of their abilities. But when it represses its people, shirks its duties, or misapplies its resources, it can be the source of much suffering.
International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare. But the application of that law often differs from the enforcement of statutes typically found in a nation’s law books.
In countries that enjoy the rule of law, the courts can usually be relied on to enforce legislation. The rule of law means that courts have the independence to apply the law free of interference, and powerful actors, including senior government officials, are expected to comply with court orders.
In practice, there is no such presumption in most of the countries where my organization, Human Rights Watch, works, and where international human rights law is most needed. The judges are often corrupt, intimidated, or compromised. They may not dare hold the government to account, or they may have been co-opted to the point that they do not even try, or the government may succeed in ignoring whatever efforts they make.
International human rights law should be seen as a law of last resort when domestic rights legislation fails. Judicial enforcement is always welcome, but when it falls short, human rights law provides a basis that is distinct from domestic legislation for putting pressure on governments to uphold their obligations.
Human rights groups investigate and report on situations in which governments fall short of their obligations. The resulting publicity, through the media and other outlets, can undermine a government’s standing and credibility, embarrassing it before its people and peers and generating pressure for reform.
Beyond documenting and reporting violations of human rights law, human rights groups must shape public opinion to ensure that the exposure of government misconduct is met with opprobrium rather than approval. In part this is done by citing international law to convince the public of a global consensus about what is right or wrong in a given context. By presenting an issue in terms of rights, human rights groups help the public to develop a moral framework for assessing governmental conduct beyond public sentiment in any particular case or incident.
For the law to play this role of moral instruction, it is not enough simply to recite it. When people’s security or traditions are at stake, it takes more than a mere reference to the law to change the public’s sense of moral propriety. Human rights groups must be creative in moving the public to embrace what the law demands.
Sometimes it is difficult to convince a local public to disapprove of its government’s conduct. Thus, the great challenge facing human rights groups is often less concerned with arguing the law’s fine points or applying them to the facts of a case than with convincing the public that violations are wrong. That requires the hard work of helping the public to identify with the victim’s plight, making the law come alive, and generating outrage at its violation with some public of relevance. When human rights law can be made to correspond with the public’s sense of right and wrong, governments face intense pressure to respect that law. Shame can be a powerful motivator.
What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.
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“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”
“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”
“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”
“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”
“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”
— Mary Dowell-Jones, Fellow, Human Rights Law Centre, University of Nottingham, and author of ‘Financial Institutions and Human Rights’ in the Human Rights Law Review
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“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”
“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”
— Alon Harel, Professor in Law, Hebrew University Law Faculty and Center for Rationality, and author of ‘Human Rights and the Common Good: A Critique’ in the Jerusalem Review of Legal Studies
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“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”
Today is United Nations Day, celebrating the day that the UN Charter came into force in 1945. We thought it would be an excellent time to share thoughts from one of their former Commissioners to highlight the work this organization undertakes. The following is an edited extract by Navanethem Pillay, former United Nations High Commissioner for Human Rights, from International Human Rights Law, Second Edition.
I was born a non-white in apartheid South Africa. My ancestors were sugarcane cutters. My father was a bus driver. We were poor.
At age 16 I wrote an essay which dealt with the role of South African women in educating children on human rights and which, as it turned out, was indeed fateful. After the essay was published, my community raised funds in order to send this promising, but impecunious, young woman to university.
Despite their efforts and goodwill, I almost did not make it as a lawyer, because when I entered university during the apartheid regime everything and everyone was segregated. However, I persevered. After my graduation I sought an internship, which was mandatory under the law; it was a black lawyer who agreed to take me on board, but he first made me promise that I would not become pregnant. And when I started a law practice on my own, it was not out of choice but because no one would employ a black woman lawyer.
Yet, in the course of my life, I had the privilege to see and experience a complete transformation in my country. Against this background it is no surprise that when I read or recite Article 1 of the Universal Declaration of Human Rights, I intimately and profoundly feel its truth. The article stated that: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.
The power of rights made it possible for an ever-expanding number of people, people like myself, to claim freedom, equality, justice, and well-being.
Human rights underpin the aspiration to a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination, with the benefits of housing, healthcare, education, and opportunity.
Yet for too many people in the world, human rights remain an unfulfilled promise. We live in a world where crimes against humanity are ongoing, and where the most basic economic rights critical to survival are not realized and often not even accorded the high priority they warrant.
The years to come are crucial for sowing the seeds of an improved international partnership that, by drawing on individual and collective resourcefulness and strengths, can meet the global challenges of poverty, discrimination, conflict, scarcity of natural resources, recession, and climate change.
United Nations Building. Photo by Ashitaka San. CC BY-NC 2.0 via mononoke Flickr.
In 2005, the world leaders at their summit created the UN Human Rights Council, an intergovernmental body which replaced the much-criticized UN Human Rights Council, with the mandate of promoting ‘universal respect for the protection of all human rights and fundamental freedoms for all’. The Council began its operations in June 2006. Since then, it has equipped itself with its own institutional architecture and has been engaged in an innovative process known as the Universal Periodic Review (UPR). The UPR is the Council’s assessment at regular intervals of the human rights record of all UN member states.
In addition, at each session of the Council several country-situations are brought to the fore in addresses and documents delivered by member states, independent experts, and the Office of the High Commissioner for Human Rights.
Today, the Office of the High Commissioner is in a unique position to assist governments and civil society in their efforts to protect and promote human rights. The expansion of its field offices and its presence in more than 50 countries, as well as its increasing and deepening interaction with UN agencies and other crucial partners in government, international organizations, anad civil society are important steps in this direction. With these steps we can more readily strive for practical cooperation leading to the creation of national systems which promote human rights and provide protection and recourse for victims of human rights violations.
In the final instance, however, it is the duty of states, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms. Our collective responsibility is to assist states to fulfil their obligations and to hold them to account when they do not.
When the UN General Assembly endorsed the Responsibility to Protect (R2P) in 2005, the members of the United Nations recognized the responsibility of states to protect the basic human and humanitarian rights of the world’s citizens. In fact, R2P articulates concentric circles of responsibility, starting with the individual state’s obligation to ensure the well-being of its own people; nested within the collective responsibility of the community of nations to assist individual states in meeting those obligations; in turn encircled by the responsibility of the United Nations to respond if necessary to ensure the basic rights of civilians, with military means only contemplated as a last resort, and only with the consent of the Security Council.
The Responsibility to Protect is a response to war crimes, genocide, and other crimes against humanity. But R2P is also a response to pattern and practice human rights abuses that include entrenched poverty, widespread hunger and malnutrition, and endemic disease and denials of basic health care — all socio-economic conditions which themselves feed and exacerbate armed conflict. In fact, socio-economic development is a powerful mechanism for guaranteeing the full panoply of human rights, just as the Millennium Development Goals are a means of fulfilling the Responsibility to Protect.
While Responsibility to Protect is often misconstrued as a mandate for military action, it is more intrinsically a call to social action, and the embodiment of the joint and several responsibilities of the community of nations to seek a coordinated global response to life-threatening conditions of armed conflict, repression, and socio-economic misery. While diplomats and public servants debate the legality and prudence of military responses to criminal uses of military force against civilians, we must not neglect the legality, prudence, and urgency of non-military responses to public health and poverty emergencies throughout the world.
The United States has put out a call to like-minded nations to join forces, literally and figuratively, in the degradation and destruction of the criminal militancy of the so-called Islamic State [ISIL or ISIL]. Despite concerns that the 2003-2011 US war in Iraq itself may have led to the inception and flourishing of ISIS, and despite warnings that the training, arming, and assisting of Iraqi forces, Shia militias in Iraq and non-ISIS Sunni militants in Syria may inflame sectarian violence and threaten civilians in both countries, the United States is contemplating another open-ended military intervention in the Levant.
A military intervention against ISIS is not justified by the principles of Responsibility to Protect. Without the authorization of the Security Council or the consent of the Syrian government, military intervention is unlawful in Syria, offending both the UN Charter and the tenets of R2P. In either Syria or Iraq a military intervention, even with the permission of the responsible governments, is unlawful if it is likely to lead to further outrages against civilians. Military action that predictably causes the suffering of civilians disproportionate to any legitimate military objectives violates the principles of humanitarian law and the Geneva Conventions, as well as the UN Charter and R2P.
UNICEF and partners visit the crowded Marché Niger to continue explaining to families how to they can protect themselves from Ebola. UNICEF have visited many markets, churches, mosques, schools, and community centers throughout Conakry and in the Forest region where the outbreak began. CC BY-NC 2.0 via UNICEF Guinea Flickr.
Alongside the criminal militancy of ISIS we face the existential threat of the Ebola virus in West Africa, endangering the people of Guinea, Liberia, Sierra Leone, and their neighbors. Over the past two months, approximately 5000 people have been infected by this hemorrhagic disease, and around 2500 have died, over 150 of them health care workers. At current rates of infection, with new cases doubling every three weeks, the virus could sicken 10,000 by the end of September, 40,000 by mid-November, and 120,000 by the New Year.
Ebola can be contained through basic public health responses: quarantining of the sick, tracing of exposure in families and communities, safe recovery of the bodies of the deceased, regular hand-washing and sanitation, and the all-important rebuilding of trust between effected community members, health care workers, and government officials. But the very countries impacted have fragile health care systems, insufficient hospital beds, and dedicated Red Cross workers, doctors, and nurses nearly besieged by the number of sick people needing care. By funding and supporting more health care and humanitarian relief workers at the international and local levels, more Ebola field hospitals and clinics, and more food, rehydration fluids, and safe blood supplies for transfusions, less new people will fall sick, and more of the infected will be treated and cured. At the same time, the fragile economies and political systems of the effected countries will be strengthened and the threat of regional insecurity will be addressed. Ebola in West Africa is calling out for a coordinated global public health intervention, which will serve our Responsibility to Protect at the local level, while furthering our collective security at the global level.
As the US Congress debates the funding of so-called moderate rebels in Syria in the pursuit of containing the criminal militancy of ISIS, we should turn our national attention to funding Ebola emergency relief in Guinea, Liberia, and Sierra Leone. Such action is consistent with our enlightened self-interest, and required by our humanitarian principles and obligations.
With the 10th European Society of International Law (ESIL) Anniversary Conference just around the corner some key thinkers share their thoughts on what they think the future of international law looks like.
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“International law traditionally flourishes with liberal hegemony, shared interests, or balance-of-powers parity. The first condition is visibly waning. The second and third conditions support regional and functional islands of multilateralism. While those islands may sometimes be shaky, they will continue to provide work for international lawyers. Beyond that, in the rough waters of war, peace, and even justice, the language of international law will also continue to pervade international relations. But it increasingly risks being perceived as an imprudent distraction. That is unless civil societies can unsettle the present monopolies that shape the terms of international legal discourse.”
“The future of international law will be somewhat as with its present: we will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations. I do hope, however, that there will be continued and sustained critical reflection in scholarship on the impact of law on the international space—on who it empowers and excludes, on the nature of legalisation and its purposes—for it is only through heightened scrutiny, and not unquestioned application, that international law may serve as a progressive force.”
“In my opinion, the international law of the future will be less influenced by the ‘Westphalian model’, for at least two reasons: the increasing role played by non-state actors, in particular armed groups and multinational corporations, which challenges existing state-centred rules of international law, and the emergence of cyberspace as a separate domain, that will entail a rethinking of traditional concepts like territory, sovereignty, and jurisdiction. With regard to the future of international institutions, it remains to be seen whether the United Nations will be able to survive in its outdated structure.”
“The future of international law is likely to be as its past: a vital, though often misunderstood, medium through which social actors at various levels and in various forms can structure and order their interactions, reflect their desires and manifest their concerns. It is neither static nor predictable. Following a period in which there have been high expectations of what international law can achieve, the next few years may be times of challenge as it struggles to deliver solutions which have become expected of it. But this is merely part of the endless re-calibration necessary to reflect the tasks to which it is being put and the realities which need to be faced. If international law does not disappoint from time to time it will cease to be a source of aspiration – and that would make for a far bleaker future.”
“International law has undergone dramatic change in the past fifty years, with issues from human rights to the environment to trade now the subjects of a wide range of hard and soft law instruments. Yet, many of the principles encapsulated within these documents remain unrealized due to the inability of international law to influence domestic law and national political priorities. Oftentimes, international law seems to remain distinct from domestic systems, treated with suspicion by national institutions.
“In the twenty first century, the national and international cannot be so easily separated. In areas such as refugee flows, arms proliferation, environmental degradation and combatting impunity, domestic initiatives and capability hold the key to international security. Agreement on and adherence to international standards is essential if global threats with national origins are to be managed effectively. International law must become not only the standard setter but the enabler and enhancer of domestic capacity. One of the key challenges will be to alter perceptions of international law itself. Rather than being viewed as something to be resisted or resented, side-stepped or paid lip service to, international legal standards must become part of domestic legislative and political agendas. The challenge is enormous, but essential, because, in the words of Anne-Marie Slaughter, the future of international law is domestic.”
“In the security regime, the future of international law looks increasingly dim. Attributability is a prerequisite for accountability, and powerful governments are discovering new ways to mask innovative forms of coercion behind a veil of anonymity. “Little green men” with no visible identification, untraceable drone strikes, “NATO” bombings that conceal belligerents’ identities, cyber-attacks masked by false flags—these sorts of intrusions all erode the rule of law by making it difficult if not impossible to impute responsibility. Should this trend continue, the security regime could look increasingly like Ferguson, Missouri—a juridical black hole where lawless police hide their badges.”
— Michael J. Glennon, Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University, author of National Security and Double Government
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“In my opinion, the future of international law in the coming decades will continue to be shaped by the continued tensions between sovereignty and other interests of the international community, such as the protection of the environment, the development of the Responsibility to Protect and more broadly human rights.
“On the one hand, states will obviously have to continue to accept that the traditional Westphalian model of international law is facing challenges and that things cannot be as they were in the past.
“But on the other hand, activists in various fields need to accept that the world is not changing as fast as they would like everyone to believe and that sovereignty remains a key feature of the international legal order. To a certain extent, as a feature of any given community, sovereignty is in fact conceptually unavoidable in one shape or another, whether at the domestic or the international level. Testimony to this is the continued relevance in international affairs of national(istic) claims which find their legal cristalisation in concepts such as statehood, self-determination and the prohibition of the use of force in international law.
“Accepting this reality is key in shaping realistic, effective and intellectually sound policies that not merely focus on individual rights, however important they are, but also take into account the collective dimensions and interests of any human society.”
— Dov Jacobs, Associate Professor in International Law at the Grotious Centre, Leiden University, contributor to “Targetting the State in Jus post Bellum: Towards a theory of Integrated Sovereignties” in Jus Post Bellum: Mapping the Normative Foundations
On 28 June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenberg, were assassinated in Sarajevo, setting off a six week diplomatic battle that resulted in the start of the First World War. The horrors of that war, from chemical weapons to civilian casualties, led to the first forays into modern international law. The League of Nations was established to prevent future international crises and a Permanent Court of International Justice created to settle disputes between nations. While these measures did not prevent the Second World War, this vision of a common law for all humanity was essential for international law today. To mark the centenary of the start of the Great War, and to better understand how international law arose from it, we’ve compiled a brief reading list.
How did international law develop from the 15th century until the end of World War II? This 2014 ASIL Certificate of Merit winnor looks at the history of international law in relation to themes such as peace and war, the sovereignty of states, hegemony, and the protection of the individual person. It includes Milos Vec’s ‘From the Congress of Vienna to the Paris Peace Treaties of 1919′ and Peter Krüger’s ‘From the Paris Peace Treaties to the End of the Second World War’.
A detailed study into the 1922-34 exchange of minorities between Greece and Turkey, supported by the League of Nations, in which two million people were forcibly relocated. Check out the specific chapters on: Wilson and international law; US jurisprudence and international law in the wake of WWI; and the failed marriage of the US and the League of Nations and America’s reaction of isolationism through WWII.
How could the world repress aggressive war, war crimes, terrorism, and genocide in the wake of the First World War? Mark Lewis examines attempts to create specific criminal justice courts to address these crimes, and the competing ideologies behind them.
How did the upheaval of the first half of the 20th century impact the creation of public law within and across states? Germany offers an interesting case given its central role in many of the events.
What exactly did ‘neutrality’ mean before, during, and after the First World War? The newly independent Ireland exemplified many of the debates surrounding neutrality and multilateralism.
The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.
The Treaty of Versailles marked the first significant attempt to hold an individual — Kaiser Wilhelm — accountable for unlawful resort to major military force. Mary Ellen O’Connell and Mirakmal Niyazmatov discuss the prohibition on aggression, the Jus ad Bellum, the ICC Statute, successful prosecution, Kampala compromise, and protecting the right to life of millions of people.
Following the First World war, there was a general movement in international law towards the prohibition of aggressive war. So why is there an absence of legal milestones marking the advance towards the criminalization of aggression?
What is the bridge between the International Military Tribunal, formed following the Treaty of Versailles, and the International Criminal Tribunal for the former Yugoslavia? Mohamed Shahabuddeen examines the first traces of the development of international criminal justice before the First World War and today’s ideas of the responsibility of the State and the criminal liability of the individual.
When are sanctions doomed to failure? David J. Bederman analyzes the historical context of the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 from the 1919 Treaty of Versailles through to the present day.
How did legal terminology and provisions concerning hostilities, prisoners of war, and other wartime-related concerns change following the introduction of modern warfare during the First World War?
“League of Nations” by Christian J Tams in the Max Planck Encyclopedia of Public International Law
What lessons does the first body of international law hold for the United Nations and individual nations today?
“Alliances” by Louise Fawcett in the Max Planck Encyclopedia of Public International Law
Peace was once ensured through a complex web of diplomatic alliances. However, those same alliances proved fatal as they ensured that various European nations and their empires were dragged into war. How did the nature of alliances between nations change following the Great War?
In the midst of tremendous suffering and loss, suffragists continued to march and protest for the rights of women. How did the First World War hinder the women’s suffrage movement, and how did it change many of the demands and priorities of the suffragists?
A brief overview of the development of international law during the interwar period: where there was promise, and where there was failure.
Headline image credit: Stanley Bruce chairing the League of Nations Council in 1936. Joachim von Ribbentrop is addressing the council. Bruce Collection, National Archives of Australia. Public domain via Wikimedia Commons.
The downing of the Malaysian Airlines Flight MH17 on 17 July 2014 sent shockwaves around the world. The airliner was on its way from Amsterdam to Kuala Lumpur when it was shot down over Eastern Ukraine by an surface to air missile, killing all people on board, 283 passengers including 80 children, and 15 crew members. The victims were nationals of at least 10 different states, with the Netherlands losing 192 of its citizens.
With new information being released hourly strong evidence seems to indicate that the airliner was downed by a sophisticated military surface to air missile system, the SA-17 BUK missile system. This self-propelled air defence system was introduced in 1980 to the Armed Forces of the then Soviet Union and which is still in service with the Armed forces of both Russia and Ukraine. There is growing suspicion that the airliner was shot down by pro-Russian separatist forces operating in the area, with one report by AP having identified the presence of a rebel BUK unit in close proximity of the crash site. The United States and its intelligence services were quick in identifying the pro-Russian separatists as having been responsible for launching the missile. This view is supported further by the existence of incriminating communications between the rebels and their Russian handlers immediately after the aircraft hit the ground and also a now deleted announcement on social media by the self declared Rebel Commander, Igor Strelkov. This evidence points to the possibility that MH17 was mistaken for an Ukrainian military plane and therefore targeted. Given that two Ukrainian military aircraft were shot down over Eastern Ukraine in only two days preceding 17 July 2014 a not unlikely possibility.
It will be crucial to establish the extent of Russia’s involvement in the atrocity. While there seems to be evidence that the rebels may have taken possession of BUK units of the Ukrainian, it seems unlikely that they would have been able to operate these systems without assistance from Russian military experts and even radar assets.
Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.
Russia was quick to shift the blame on Ukraine itself, asking why civil aircraft hadn’t been barred completely from overflying the region, directly blaming Ukraine’s aviation authorities during the emergency meeting on the UN Security Council (UNSC) on 18 July 2014. Russia even went so far to blame Ukraine indirectly of shooting down MH17 by comparing the incident with the accidental shooting down of a Russian civilian airliner en route from Tel Aviv to Novosibirsk in 2001. Despite Russia’s call for an independent investigation of the incident, Moscow’s rebels reportedly blocked actively international observers from OSCE to access the site.
While any civilian airliner crash is a catastrophe, and in cases of terrorist involvement an international crime, the shooting down of passenger jets by a state are particularly shocking as they always affect non combatants and resemble acts which are always outside the parameters of the legality of any military action (such as distinction, necessity, and proportionality). Any such act would lead to global condemnation and would hurt the perpetrator state’s international reputation. Consequently, there have only been few such incidents over the last 60 years.
What could be the possible consequences? The rebels are still formally Ukrainian citizens and as such subject to Ukraine’s criminal judicial system, according to the active personality principle. Such a prosecution could extent to the Russian co-rebels as Ukraine could exercise its jurisdiction as the state where the crime was committed, under the territoriality principle. In addition prosecutions could be initiated by the states whose citizens were murdered, under the passive personality principle of international criminal law. With Netherlands as the nation with the highest numbers of victims having a particularly strong interest in swift criminal justice, memories of the Pan Am 103 bombing come to mind, where Libyan terrorists murdered 270 humans when an airliner exploded over Lockerbie in Scotland. Following international pressure, Libya agreed to surrender key suspects to a Scottish Court sitting in the Netherlands.
The establishment of an international(-ised) criminal forum for the prosecution of the perpetrators would require Russia’s cooperation, something which seems to be unlikely given Putin’s increasing defiance of the international community’s call for justice. A prosecution by the International Criminal Court (ICC) in The Hague under its Statute, the Rome Statute, is unlikely to happen as neither Russian nor Ukraine have ratified the Statute. An UNSC referral to the ICC — if one accepts that the murder of 298 civilians would amount to a crime which qualifies as a crime against humanity or even a war crime under Article 5 of the ICC Statute — would fail given that Russia and its new strategic partner China are Veto powers on the Council and would veto any resolution for a referral.
Other responses could be the imposing of unilateral and international sanctions and embargos against Moscow and high profile individuals. Related to such economic countermeasures is the possibility to hold Russia as a state responsible for its complicity in the shooting down of MH17; the International Court of Justice (ICJ) would be the forum where such a case against Russia could be brought by a state affected by the tragedy. An example for such an interstate case arising from a breach of international law can be found in the ICJ case Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), arising from the unlawful shooting down of Iran Air Flight 655 by the United States in 1988. The case ended with an out of Court settlement by the US in 1996. Again, it seems quite unlikely that Russia will accept any ruling by the ICJ on the matter and even less likely would be any compliance with an damages order by the court.
One alternative could be a true US solution for the accountability gap of Russia’s complicity in the disaster. If the US Congress was to qualify the rebel groups as terrorist organizations then this would make Russia a state sponsor of terrorism, and as such subject to US federal jurisdiction in a terrorism civil litigation case brought under the Anti-Terrorism Act (ATA-18 USC Sections 2331-2338) as an amendment to the Alien Torts Statute (ATS/ATCA – 28 USC Section 1350). The so-called “State Sponsors of Terrorism” exception to the Foreign Sovereign Immunities Act (FSIA Exception-28 USC Section 1605(a)(7)), which allows lawsuit against so-called state sponsors of terrorism. The Foreign Sovereign Immunities Act (FSIA) Exception of 1996 limits the defense of state immunity in cases of state sponsored terrorism and can be seen as a direct judicial response to the growing threat of acts of international state sponsored terrorism directed against the United States and her citizens abroad, as exemplified in the case of Flatow v. Islamic Republic of Iran (76 F. Supp. 2d 28 (D.D.C. 1999)). Utilising US law to bring a civil litigation case against Russia as a designated state sponsor of international terrorism would certainly set a strong signal and message to Putin; it remains to be seen whether the US call for stronger unified sanctions against Russia will translate into such unilateral action.
Time will tell if the downing of MH17 will turn out to be a Lusitania moment (the sinking of the British passenger ship Lusitania with significant loss of US lives by a German U-boat led to the entry of the US in World War I) for Russia’s relations with the West, which might pave the way to a new ‘Cold War’ along new conflict lines with different allies and alliances. What has become clear already today is Russia’s potential new role as state sponsor of terrorism.
Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog posts.
The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.
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As recent demonstrations in Brazil around the staging of the FIFA 2014 World Soccer Cup show, major sporting events put the spotlight on human rights issues in host countries. In the case of Qatar the preparations to host the FIFA 2022 World Cup are focussing worldwide attention on the plight of migrant workers. It estimated that the country needs an extra 500,000 migrant workers to build stadiums and other infrastructure such as a metro system in the lead up to the World Cup. But a report by the International Trade Union Commission (ITUC) predicts that 4,000 migrant construction workers will die in Qatar before the start of the game.
As for much of the Gulf States region, Qatar is heavily dependent on migrant workers. It has the highest ratio of migrants to citizens in the world, with migrant workers making up approximately 88 per cent of the whole population. The majority of migrant workers come from South and South-East Asian countries: Bangladesh, India, Indonesia, Nepal, Pakistan, Sri Lanka, and the Philippines. A series of reports has revealed poor working conditions for migrant workers in Qatar particularly in the construction industry and in domestic workplaces and a lack of enforcement of existingprotective legal mechanisms.
This situation highlights the global issue of exploitation of low and unskilled temporary migrant workers, also labelled as “foreign workers”. Currently, there are about 232 million migrants globally, of whom it is estimated that 105 million are migrant workers who are displaced by necessity in a labour market which reflects the increasing disparity between rich and poor countries. Unskilled temporary migrant workers are vulnerable because they have no choice but to migrate to work. Such workers are constructed in laws and policies as lacking connection to the host state but rather the responsibility of their home state. They are discriminated in the host state on the basis of their culture and identity, and often regarded as ‘export’ labour at home.
Builders at Work: There are close to one million migrant workers in Qatar, mainly from South Asia. The majority work in construction. Photo by WBUR Boston’s NPR News Station. CC BY-NC-ND 2.0 via WBUR Flickr.
The Kafala sponsorship system which operates in Qatar is a symptom of such vulnerability. The Kafala system reduces migrant workers to the status of slaves or indentured property in host country. This system is used to regulate the relationship between employers and migrants, with a work permit linked to a single person, who is often the sponsor. The law provides power and authority to sponsors to prevent migrant workers from changing employers and from the leaving Qatar.
As the Special Rapporteur on the human rights of migrants, François Crépeau summaries:
The kafala system enables unscrupulous employers to exploit employees. Frequent cases of abuse against migrants include the confiscation of passports, refusal to give “no objection” certificates (allowing migrants to change employer) or exit permits and refusal to pay migrants’ plane tickets to return home. Some employers do not extend residence permits for their employees, often because of the fees incurred. This leads to migrants ending up in an irregular situation, with no valid identity card, despite the fact that they are regularly employed. [7]
The recruitment process and charging of excessive fees are other critical issues. Recruitment fees are forbidden by Qatari law, but the reports found that many migrant workers had taken out substantial loans to pay the fees in their home countries and were in long-term debt. Contract substitution is also a huge problem, as the terms of contracts signed in the home countries are often different upon arrival in Qatar, usually with a lower salary and different job description. As migrant workers cannot easily change jobs without the sponsor’s approval and often have recruitment loans to repay, they become highly vulnerable to abuse and less likely to report such violations. In many cases, such practices will amount to human trafficking for labour exploitation or forced labour as the Amnesty International Report, “My Sleep is My Break” explains (pp54-60).
The exploitation of “foreign” migrant workers suggests that we have created a new global form of ‘indentured servitude’ or slavery in which others exercise property-like powers or control over individuals. The irony is that the development of individual rights to free and decent working conditions in the nineteenth century ran parallel to the anti-slavery movement. Qatar 2022 offers an opportunity to Qatar to show the global community the need to recognise collective responsibility for migrant workers in a globalised economy, and to put pressure on states and non-state actors to respect the rights of migrant workers.
Dr Susan Kneebone (PhD, MA (Asian Studies), Dip Ed, LLB), is a Professor in the Faculty of Law, Monash University, Australia. She is the author of many articles and book chapters, including author \ editor of the following: Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion (Routledge 2012) (co-authored with Julie Debeljak) ; Migrant Workers Between States: In Search of Exit and Integration Strategies in South East Asia 40 (4) Asian Journal of Social Sciences (2012) ; “Transnational Labour Migrants: Whose Responsibility?” in Fiona Jenkins, Mark Nolan and Kim Rubenstein eds, Allegiance and Identity in a Globalised World (Cambridge University Press, 2014 – in press) Chapter 18. Recent publications include: “ASEAN and the Conceptualisation of Refugee protection” in Abass A. and Ippolito, F., et al eds., Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) Chapter 13, pp295-324 ; “The Bali Process and Global Refugee Policy in the Asia-Pacific Region” Special Edition of the Journal of Refugee Studies on Global Refugee Policy, 2014.
Interested in learning more about the issues facing migrant workers? Oxford Journals has created a special World Refugee Day virtual issue with a selection of free articles.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the final one, following The Act of Killing, Hannah Arendt, and The Lady.
By Roberta Seret
One can say that Dr. Josef Mengele was the first survivor of Auschwitz, for he slipped away undetected in the middle of the night on 17 January 1945, several days before the concentration camp was liberated. Weeks later, he continued his escape despite being detained in two different Prisoner of War detention camps.
He made his way to Rome, a sanctuary for Nazi war criminals, where he obtained a new passport from Vatican officials. Continuing to Genoa with the help of the International Red Cross and a Fascist network, he embarked on the North King ship in 1949 to Buenos Aires under the alias of Helmut Gregor.
President Juan Peron had 10,000 blank Argentine passports for the highest Nazi bidders. Buenos Aires became their home; there Mengele lived, respected and comfortable, until 1960 when Eichmann was kidnapped by the Mossad just streets away. Afraid he’d be next, Mengele decided it would be safer for him in Paraguay with the support of the pro-Nazi dictator, Alfredo Stroessner. He stayed in Asunción for one year.
The Argentine film, The German Doctor (2014), takes us in media res to 1960 Patagonia and Bariloche, a beautiful mountain oasis in the Andes that reminds Mengele of “home.” This fictional addition to his biography, serves as a six-month stopover before he escapes to Paraguay.
Lucia Puenzo, Argentine filmmaker, has adapted her own novel, Wakolda, for the screen. She adroitly mixes fiction with history and truth with imagination in a tight, tense-filled interpretation that keeps us mesmerized. Yet, as we watch the scenes unfold, we wonder which ones are based on fact and how far should poetic justice substitute for historical accuracy.
The director takes advantage of our “collective conscience” of morality and memory regarding the identity of Dr. Mengele. Despite not once hearing his name, we know who he is, although the characters do not. The director uses our associating him with evil to enhance tension and catapult plot – a clever device that works well.
What is biographically accurate in the film is that Mengele continues his experiments on human beings in order to create the perfect race. The director uses this premise, then extrapolates to fiction and sets the stage with a family that Mengele befriends. The doctor sees an opportunity to experiment with charming Lilith, the under-developed twelve-year-old and injects into her stomach growth hormones that work for cattle. He also gives “vitamins” to the girl’s pregnant mother, Eva, once he realizes she is carrying twins. When the babies are born, he continues his experiments by putting sugar in the formula for the weaker of the two. As the infant cries dying and Mengele studies the reaction, we shudder that the Angel of Death has once again achieved Evil.
The experiments on people that Mengele is obsessed with in the film, is a continuation of his sadistic work at Auschwitz with pregnant women, twins, and genetics. His lab experiment on a mother who had just given birth was notorious. He taped her lactating breasts while taking notes on how long the infant would cry without receiving her milk. When he left for dinner, the distraught mother desperately found morphine for her dying baby.
Mengele was also known to inject dye into the iris of prisoners’ eyes (without anesthesia) to see if he could change the brown to an Aryan blue. He documented his results by pinning each eyeball to a wooden board.
And there were more experiments on thousands of human beings.
Josef Mengele, from 1943-45, appeared each day at Auschwitz’s train station for Selektion. Wearing white gloves, polished high black boots, and carrying a stick, his evil hand pointed Left and Right to order more than 400,000 souls to leave this world through chimneys as ashes. His crimes against humanity can never be forgotten.
After living more than 30 years undetected in South America, Mengele died in 1979 of a heart attack while swimming in the warm waters near São Paulo. This peaceful death for such a monster reinforces his ultimate crime. Film director, Lucia Puenzo, would have been well-inspired to have finished The German Doctor with this horrific and true scene.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the third one, following The Act of Killing and Hannah Arendt.
By Roberta Seret
When Luc Besson finished filming The Lady in 2010, Aung San Suu Kyi had just been released from being under house arrest since 1989. He visited her at her home in Yagoon with a DVD of his film as a gift. She smiled and thanked him, responding, “I have shown courage in my life, but I do not have enough courage to watch a film about myself.”
The recurring tenet of the inspiring biographical film, The Lady, is exactly that: one woman’s courage against a military dictatorial regime. Each scene reinforces her relentless fight to overcome the inequities of totalitarianism.
Aung San Suu Kyi was born the third child of General Aung San, leader of Burma during World War ll and Father of Independence from British rule. He was assassinated in 1947 before he saw his country’s sovereignty in 1948. His daughter has dedicated her life to continue his legacy – to bring democracy to the Burmese people.
The film, The Lady, begins in Oxford 1988 where she is a housewife and mother of two sons. After setting the stage of happy domesticity, she receives a phone call from her mother’s caretaker in Burma that the older woman is dying. And so begins the action.
After 41 years, Suu Kyi returns home to a different world than she remembers. The country’s name is changed from Burma to Myanmar, Ragoon has become Yagoon, and a new capital, Naypidaw, has been carved out of a jungle. Students are demonstrating and being killed in the streets of Yagoon while General Ne Winn rules with an iron fist. Suu Kyi is soon asked by a group of professors and students to form a new party, the National League for Democracy. She campaigns to become their leader.
French director, Luc Besson, was not allowed to film in Myanmar. Instead, he chose Thailand at the Golden Triangle, where Myanmar, Laos, and Thailand merge in a beautiful mountainous landscape. Most of his interior scenes, however, take place at the Lady’s house on Inya Lake in Yagoon, which Luc Besson recreated with help from Google Earth and computers. The Chinese actress, Michelle Yeoh, plays Suu Kyi, with perfectly nuanced facial and body expressions that are balanced with a subtle combination of emotion and control. But the Burmese, who were initially not allowed by the government to see the film, resented a Chinese actress portraying their icon. Even the police chased Ms. Yeoh from Myanmar when she tried to pay her respects to the Lady.
The film adheres closely to history and biography, which are inherently compelling. The director did not need to borrow from fiction to enhance his portrait of a brave, self-sacrificing woman. Luc Besson is a master filmmaker, and we see in the characters of his strong women, like Nikita (1990) and The Lady, the power of will and determination that go beyond limits to become personality cults.
The film depicts how Suu Kyi wins 59% of the votes in the general election of 1990, but instead of leading Parliament as Prime Minister, she has already been forced and silenced under house arrest by the Military where she stays for more than 15 years and three times in prison until 2010.
The Lady is a heart-breaking story of a woman’s personal sacrifice to free her people from the Military’s crimes against humanity. In 2012, once free and allowed to campaign, she won 43 seats in Parliament for her party, but this is only 7% of seats. She will campaign again in 2015 despite the Military’s opposition and a Constitution that has already been amended to block her from winning.
In Luc Besson’s film, we see a beautiful woman of courage and heart, a personage deserving the adulation of her people. “She is our hope,” they all agree. “Hope for Freedom.”
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the second one, , following The Act of Killing.
By Roberta Seret
The powerful biographical film, Hannah Arendt, focuses on Arendt’s historical coverage of Adolf Eichmann’s trial in 1961 and the genocide of six million Jews. But sharing center stage is Arendt’s philosophical concept: what is thinking?
German director, Margarethe von Trotta, begins her riveting film with a short silent scene — Mossad’s abduction of Adolf Eichmann in Buenos Aires, the ex-Nazi chief of the Gestapo section for Jewish Affairs. Eichmann was in charge of deportation of Jews from all European countries to concentration camps.
Margarethe von Trotta’s and Pam Katz’s brilliant screen script is written in a literary style that covers a four-year “slice of life” in Hannah Arendt’s world. The director invites us into this stage by introducing us to Arendt (played by award-winning actress Barbara Sukova), her friends, her husband, colleagues, and students.
As we listen to their conversations, we realize that we will bear witness not only to Eichmann’s trial, but to Hannah Arendt’s controversial words and thoughts. We get multiple points of view about the international polemic she has caused in her coverage of Eichmann. And we are asked to judge as she formulates her political and philosophical theories.
Director von Trotta continues her literary approach to cinema by using flashbacks that take us to the beginning of Arendt’s university days in Marburg, Germany. She is a Philosophy major, studying with Professor Martin Heidegger. He is the famous Father of Existentialism. Hannah Arendt becomes his ardent student and lover. In the first flashback, we see a young Arendt, at first shy and then assertive, as she approaches the famous philosopher. “Please, teach me to think.” He answers, “Thinking is a lonely business.” His smile asks her if she is strong enough for such a journey.
“Learn not what to think, but how to think,” wrote Plato, and Arendt learns quickly. “Thinking is a conversation between me and myself,” she espouses.
Arendt learned to be an Existentialist. She proposed herself to become Heidegger’s private student just as she solicited herself to cover the Eichmann trial for The New Yorker. Every flashback in the film is weaved into a precise place, as if the director is Ariadne and at the center of the web is Heidegger and Arendt. From flashback to flashback, we witness the exertion Heidegger has on his student. As a father figure, Heidegger forms her; he teaches her the passion of thinking, a journey that lasts her entire life.
Throughout the film, in the trial room, in the pressroom, in Arendt’s Riverside Drive apartment, we see her thinking and smoking. The director has taken the intangible process of thinking and made it tangible. The cigarette becomes the reed for Arendt’s thoughts. After several scenes, we the spectator, begin to think with the protagonist and we want to follow her thought process despite the smoke screen.
When Arendt studies Eichmann in his glass cell in the courtroom, she studies him obsessively as if she were a scientist staring through a microscope at a lethal cancer cell on a glass slide. She is struck by what she sees in front of her – an ordinary man who is not intelligent, who cannot think for himself. He is merely the instrument of a horrific society. She must have been thinking of what Heidegger taught her – we create ourselves. We define ourselves by our actions. Eichmann’s actions as Nazi chief created him; his actions created crimes against humanity.
The director shows us many sides of Arendt’s character: curious, courageous, brilliant, seductive, and wary, but above all, she is a Philosopher. Eichmann’s trial became inspiration for her philosophical legacy, the Banality of Evil: All men have within them the power to be evil. Man’s absence of common sense, his absence of thinking, can result in barbarous acts. She concludes at the end of the film in a form of summation speech, “This inability to think created the possibility for many ordinary men to commit evil deeds on a gigantic scale, the like of which had never been seen before.”
And Eichmann, his summation defense? It is presented to us by Willem Sassen, Dutch Fascist and former member of the SS, who had a second career in Argentina as a journalist. In 1956 he asked Eichmann if he was sorry for what he had done as part of the Nazis’ Final Solution.
Eichmann responded, “Yes, I am sorry for one thing, and that is I was not hard enough, that I did not fight those damned interventionists enough, and now you see the result: the creation of the state of Israel and the re-emergence of the Jewish people there.”
The horrific acts of the Nazis speak for themselves. Director von Trotta in this masterpiece film has stimulated us to think again about genocide and crimes against humanity, their place in history as well as in today’s world.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Subscribe to only law articles on the OUPblog via email or RSS.
World Refugee Day is held every year on 20 June to recognise the resilience of forcibly displaced people across the world. For more than six decades, the Office of the United Nations High Commissioner for Refugees (UNHCR) has been tracking and assisting refugees worldwide. At the beginning of 2013, there numbered over 10.4 million refugees considered “of concern” to the UNHCR. A further 4.8 million refugees across the Middle East are registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
To mark World Refugee Day 2014, we’ve compiled a short reading list about issues in international law arising from the forced displacement of persons, including definitions of refugees, asylum, and standards of protection, international refugee legislation, international human rights legislation, the roles of international organisations, and challenges arising from protracted refugee situations and climate change. Additionally, Oxford University Press has made select articles from refugee journals freely available for a limited time, including ten articles from the International Journal of Refugee Law.
How did Refugee and Forced Migration Studies emerge as a global field of interest? What are the most important current and future challenges faced by practitioners working with and for forcibly displaced people?
Population fleeing their villages due to fighting between FARDC and rebel groups, Sake North Kivu, 30 April 2012. Photo by MONUSCO/Sylvain Liechti CC BY-SA 2.0 via Wikimedia Commons
Analyze the Convention and Protocol that function as the indispensable legal basis of international refugee law. What provisions do they make for refugees?
Legislation relating to the movement of persons is scattered across numerous branches of international law. How does current law govern the movement of refugees, and how might legislation develop in the future?
How has the law relating to immigration and asylum evolved? And how does the asylum process operate for refugees and trafficking victims? Gina Clayton’s newly-revised volume provides clear analysis and commentary on the political, social, and historical dimensions of immigration and asylum law.
Climate change is forcing the migration of thousands of people. Should this kind of displacement be viewed as another facet of traditional international protection? Or is flight from habitat destruction a new challenge that requires more creative legal and policy responses?
Alice Edwards, Senior Legal Coordinator at the United Nations High Commissioner for Refugees, examines international human rights laws relating to refugees.
Check chapter 22 “Group rights”, which focuses on four specific groups which are currently beneficiaries of dedicated human rights’ regimes: indigenous peoples, women, children, and refugees.
While originally envisioned as two separate branches of law, refugee law and human rights law increasingly intersect as refugees are highly vulnerable and often victims of abuse. What framework can we use to ensure the best outcome for refugees?
What legal freedom of choice do refugees possess? Can they choose the countries that will decide their asylum claims? States have devised several arrangements to tackle the secondary movement of refugees between their countries of origin and their final destination. See the chapter ‘States’ Obligations Towards Refugees’, which assesses the limitations of current safe third country mechanisms.
How does the European Union address the rights of persons who are not legally refugees, but who still have need of some other form of international protection?
What can the history of the IRO tell us about the development of international agencies working for refugees, and about its successor, the United Nations High Commissioner for Refugees (UNHCR)?
Case-study by the African Commission: was the treatment of Sierra Leonean refugees in Guinea in 2000 in violation of the African Charter on Human and People’s Rights?
What is distinctive about refugee flows in Africa, what are the challenges arising from mass influx and ‘protracted’ refugee situations? What are the implications of new UNHCR initiatives to protect refugees?
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the first one.
By Roberta Seret
American director, Joshua Oppenheimer, has merged theatre, psychology, and film in his innovative documentary, The Act of Killing, Jagal in Indonesian, meaning Butcher. (BAFTA Award for Best Documentary of 2013.)
We are taken to Indonesia 1965 when more than 500,000 citizens and thousands of Chinese residents were massacred because they were communists or communist sympathizers or born Chinese.
By 1965, there were 3 million communists in Indonesia and they had the strongest communist party outside the Soviet Union and China. During this time, the political and economic situation throughout the Archipelago was unstable with an annual inflation of 600% and impoverished living conditions. General Soeharto overthrew Soekarno, took control of the army and government, and led a ruthless anti-communist purge.
For eight years (2003-2011), director Joshua Oppenheimer, lived in Indonesia, learned the language, and set himself to expose in cinema this untold genocide.
The Act of Killing recreates scenes of mass execution in Indonesia from 1965-66. The main actor, Anwar Congo, and his auxiliary protagonist, Adi Zulkadry, are perpetrators from the past who re-enact their crimes. In reality, during 1965, they were both gangsters who were promoted from selling black market movies to leading death squads in North Sumatra. Anwar, before the camera, boasts that he killed approximately 1,000 people by strangling them with wire. “Less blood that way. Less smell,” he reminisces with a smile.
The initial question for the director is what structure to choose for his documentary? How to recreate this history 47 years later on the screen to viewers who will learn about these horrors for the first time?
Oppenheimer has been influenced by Luigi Pirandello’s structure as found in the play, Six Characters in Search of an Author (1921). Pirandello’s theatre of a play within a play merges drama and psychology (psychodrama/ group therapy). And Oppenheimer, a true master, takes this form to cinema. He becomes the leader, director of the action, and asks questions to his actors so they can re-enact the history. In turn, the actors use props and improvisation to respond. Scenes unfold in unpredictable ways and the actors, without realizing it, are taken back to the past. This structure of psychodrama is the director’s secret vehicle to open up the subconscious of his characters and free their suppressed memory.
For Oppenheimer, as for Pirandello almost 100 years before, it is Art that becomes a conduit for Truth. It is Art that reveals the Reality between the Self and the outside world. Oppenheimer has achieved this on a stage while filming his actors. He uses Pirandello’s role playing and re-experiencing to expose the truth to the actors and to the world about Indonesia’s horrific genocide and impunity for such crimes.
After Anwar and his co-actors voyage deep into their past, we see them as they see themselves – criminals with blood on their hands, monsters overwhelmed with fear that the ghosts of the past will curse them.
At the end of the journey, Anwar becomes victim. The act of filming the act of killing has made him realize the 1,000 deaths he had committed. The line between acting and reality becomes blurred and there is only one Truth that emerges.
Anwar’s last scene is his response to this intense journey. He gives us a guilt-ridden soliloquy reminiscent of Shakespeare and a scene of vomiting where he tries to purge himself of his victims’ blood. Oppenheimer does not rush this scene. He lets the power of film take over as the camera documents for history the criminal’s realization that he is a Butcher of Humanity.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Subscribe to only law articles on the OUPblog via email or RSS.
Of the many things in our world that require protection, we sometimes forget the vast expanses of the oceans. However, they are also vulnerable and deserve our protection, including under the law. In recognition of World Oceans Day, we pulled together a collection of international law questions on the Law of the Sea from our books, journals, and online products. Test your knowledge of maritime law!
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Public international lawyers are forever in catch-up mode, or so it seems. The international legal appetite for ‘raw’ data of global life is seemingly inexhaustible and worry about the discipline lagging behind technology is perennial. There has, accordingly, been considerable energy devoted to ‘cybernating’ international law, in one way or another, or adapting the discipline to new possibilities posed by digital technology.
Much international legal writing concerned with computer and information technology (CIT) and global data flows has been concerned with developing law on these phenomena on the global plane. Scholars and practitioners of international law have, for instance, published important work on privacy and data protection and cyberwarfare.
Just as important, however, but receiving far less attention, are legal and equitable dimensions of the global data economy being envisioned by institutions such as the World Economic Forum. International law is often viewed, in this context, diminutively and technically: as a means of delivering on foregone conclusions and facilitating the realization of pre-agreed goals. Yet, as a recent paper in the London Review of International Law argued, there is much more at stake in the global laws surrounding data-gathering, data-mining and the monetization and use of datasets, than the technical assurance of frictionless interface and the protection of privacy. Whether with regard to global offshoring in the CIT industry, or global practices of data gathering and profit-seeking at the ‘bottom of the pyramid’, new modes of economic inequality are under construction, with law playing a crucial infrastructural role – a role which merits tougher questioning.
Another set of challenges for contemporary international lawyers arises from the turn to ‘big data’ — large-scale data mining and data analytics — for global governance. In the UN Global Pulse initiative, for example, the United Nations is mining digital data sources and using real-time data analytics to evaluate human wellbeing and vulnerability, and directing resources and policymaking attention accordingly. When states that are parties to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) gather to review the listing of animal and plant species for differing levels of treaty protection, they frequently act (in part) on the basis of species distribution modeling (SDM). This SDM will have been carried out by software implementing one among a number of possible presence/absence algorithms.
It is a routine preoccupation of international lawyers that global norms and public decision-making processes should be apparent to those whom they impact: transparency is today treated as a meta-principle of international legal order. Yet it is still unclear what ‘transparency’ could or should entail when decision-making processes in question are partially automated, use complex and dynamic algorithmic operations, and draw inputs from a range of public and private sources. In relation to SDM for CITES listing purposes, for instance, a recent report in Science suggested that the relevant software’s intricacies are not grasped by many scientist-modelers: there are ‘many in the SDM domain unable to interpret the original algorithms, much less understand how they were implemented in the distributed code’. One wonders what CITES decision-makers to whom SDM modeling outcomes are being delivered are making of this material, if many responsible for these models’ development are unable to interpret them satisfactorily. Another recent paper has drawn attention to the traps that big data analysis can present for policy-makers seeking up-to-the-minute insights on global populations’ health and wellbeing.
Public international lawyers will doubtless continue to pursue broad-ranging regulatory initiatives, regionally and globally, concerning cybercrime and data protection. Beyond these efforts, however, global policy-makers and international lawyers working in a far greater range of fields need to engage critically with the priorities, preferences and relations embedded in, or generated by, the software and hardware of global data gathering and analysis. Associations among co-patterners (or those correlated in some analytical pattern) may prove just as significant as those among co-citizens or fellow right-holders — if not more so — in the global operations of law.
Fleur Johns is a Professor in the Faculty of Law at UNSW Australia, Sydney and a contributor to the London Review of International Law, a new journal, published by Oxford University Press, which publishes highest-quality scholarship on international law from around the world; the first issue featuring Professor Johns’ article ‘The deluge’, discussing the significance of big data for public international law, is free to read online for a limited time.
The London Review of International Law publishes highest-quality scholarship on international law from around the world. Reflecting the pace and reach of developments in the field, the London Review seeks to capture the ways in which received ideas are being challenged and reshaped by new subject-matters, new participants, new conceptual apparatuses and new cross-disciplinary connections.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Image: information weapon, keyboard grenade. Photo by -antonio-, iStockphoto.
After four years of anticipation the International Court of Justice delivered a Judgment in the whaling case. The Judgment raises many issues of ecological nature. It also analyses and interprets the provisions of the 1946 International Convention for the Regulation of Whaling (ICRW) thus enriching the law of treaties.
Historically whaling has been a contentious issue. Even early attempts at its international regulation were contested. The need for the regulation of whaling was brought to the League of Nations attention in 1925 by M. José Suarez in his report on Codification Questionnaire no. 7 ‘Exploitation of the Products of the Sea’ in which observed that the modern whaling industry was ‘rapidly exterminating the whale’. Before the Second World War there two Conventions attempted to regulate the whaling. The Convention for Regulation of Whaling was opened for signature in Geneva on 24 September 1931 and signed by 31 States (with only eight ratifications), and 1937 Agreement for the Regulation of Whaling and Final Act was signed on 8 June 1937.
The 1946 ICRW had a double purpose: the protection of whales and the orderly regulating of the whaling industry, which at the time of this Convention was thriving. However, with the passage of time the ecological purpose of the Convention started to play the more prominent role, culminating in the establishment of the 1982 moratorium on commercial whaling (“zero quotas” effective in 1985-86 season). That decision lead to the amendment of the Schedule (para. 10e) that is an integral part of the Convention. However, Norway opted out of this decision on moratorium and Iceland appended a reservation after the re-joining the Convention, thus both States still continue commercial whaling, setting their own national quotas outside the jurisdiction of the International Whaling Commission (IWC), the Convention’s regulatory body. Japan initially opted out of moratorium but later withdrew it.
The IWC consists of eighty-nine States, the majority of which are non-whaling States, making it a rather unusual international institution. It would be a simplification to argue that there is only a handful of States opposing resuming of the commercial whaling. The IWC is in a permanent crisis due to its policies. These tensions were expressed in the 2006 St Kitts and Nevis Declaration, in which several States stated “their concern that the IWC has failed to meet its obligations under the terms of the ICRW” and declared their “commitment to normalize the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of sustainable use of resources.”
The ICRW permits three types of whaling: commercial, scientific, and aboriginal (subsistence) whaling — all of them very complex legally and contentious. After 1986 Japan has conducted whaling operations in the Southern Ocean under the auspices of the scientific research or special permit. Whale Research Program under Special Permit in the Antarctic‟ (JARPA I) began in the year following the 1986 moratorium. The JARPA II began in 2005.
A Minke whale and her 1-year-old calf are dragged aboard the Nisshin Maru, a Japanese whaling vessel. Photo by Australian Customs and Border Protection Service, 6 February 2008. CC BY-SA 3.0 Australia via Wikimedia Commons.
The subject-matter of the recent Judgment of the International Court of Justice was Japanese scientific whaling based on Article VIII of the ICRW, which permits State parties to issue special permits authorizing the taking and killing of whales for scientific purposes. This type of whaling (unlike commercial and aboriginal) is regulated by national authorities, not the IWC. State parties issuing permits under Article VIII have only a procedural requirement of reporting to the IWC.
In very broad brushstrokes the case was based on Australia’s allegation that Japanese scientific whaling was in fact a disguised commercial whaling; moreover, Australia alleged bad faith on the part of Japan. Japan relied in its pleadings on a long tradition of eating whale meat and arguing that in fact the analysis of the ICRW permits sustainable whaling. The case also has certain jurisdictional issues. The court unanimously found it had jurisdiction to hear the case, and by 12 votes to 4 found that special permits granted by Japan in connection with the program, JARPA II, did not fall within the IWC convention.
From the point of view of the law of treaties, the interpretation of Article VIII of the ICRW was of fundamental importance. The Court noted that taking into account the Preamble and other provisions of the ICRW, neither a restrictive not an expansive interpretation of Article VIII is justified. The Court observed that the programmes for purposes of scientific research should foster scientific knowledge. They may pursue an aim other than either conservation or sustainable exploitation of whale stocks. The Court, however, has not provided the definition of scientific research but analysed and interpreted the phrase “for purposes of”.
The Court concluded that although Art. VIIII of the ICRW exempts from the Convention grant of special permits, scientific whaling is not outside of the Convention. Therefore the ‘margin of appreciation’ of States (members of IWC in such a type of whaling as pleaded by Japan) is not unlimited and must conform with an objective standard (para 62 of the Judgment). The Court raised doubts over increased sample sizes between the country’s first whaling program and JARPA II. It also noted lack of transparency in how its sample sizes were determined and found that Japan has not sufficiently substantiated the scale of lethal sampling. The Court stated that JARPA II involves activities that in broad terms can be characterized as scientific research, but that “the evidence does not establish that the design and implementation of the Program are reasonable in relation to achieving its stated objectives.” The Court concluded that JARPA II is not “for purposes of scientific research” pursuant to Article VIII (1) of the Convention and that Japan violated the three relevant provisions (paragraphs 7(b), 10 (d) and (e)) of the schedule.
Most importantly, the Court has emphasized the lack of Japan’s willingness to cooperate with the IWC in the use of non-lethal scientific methods which became available intervening years.
The ICJ therefore ordered revoking by Japan any pending authorization, permit or license to kill, take or treat whales in relation to JARPA II, and refraining from granting any further permits under Article VIII (1) of the Convention, in pursuance of that Program. Japan said it would abide by the decision but added it “regrets and is deeply disappointed by the decision”.
The Judgment of the Court does not impact of future scientific whaling of Japan and the Court noted that Japan will rely on Judgment’s findings ‘as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’ (para. 246 of the Judgment).
By judicial necessity, the Court only discussed the case at hand but as a result it has not submitted any definition of scientific whaling and declined to adopt a specific set of criteria to this effect. It declined to discuss commercial whaling and also indigenous whaling. It made some general observations as to linking scientific whaling to the whole nexus of rights and obligations of States under the ICRW and clarified the issue of the margin of appreciation regarding the issuance of special permits, both are a very useful observations but of certain complexity in implementation. It also admitted the possibility of future Japanese whaling, as indeed it cannot be prohibited. In the meantime Japanese scientific whaling in northwestern Pacific is to continue (as well as Icelandic). The Judgment has not resolved the basic conflicts and has not addressed general issues.
There have been a wide-spread applaud as to the Court’s Judgment, which of course is fully understandable. However, there are many questions which were raised by this Judgement relating to the law of treaties and whaling itself. For example there is a question of the choice of the canons of the interpretation of an international legal instrument: the classical rule of the 1969 Vienna Convention on the Law of Treaties or much more daring and contentious evolutionary interpretation (applied with varying degree of success by the European Court of Human Rights), which is closely connected to the issue of consent. The textual interpretation of the ICRW clearly indicates that it allows scientific whaling and commercial whaling. Does the development of general international environmental law, including the preservation and protection of fauna and flora permit a different, evolutionary interpretation that prohibits these activities?
Japan agreed to abide by the Judgment but theoretically it could leave the Convention on commercial whaling, which would defeat the purpose of the Judgment. It can also leave and later re-join the Convention with a reservation (as Iceland did). What about Icelandic scientific whaling? It wasn’t challenged before the Court but it exists and the Judgement will not make any difference to it.
However, the Judgment has provided a very fertile ground for further studies.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Russia’s annexation of the Crimean peninsula and its continuing military pressure on Ukraine demonstrates that the United Nations-centered system of international law has failed. The pressing question is not whether Russia has violated norms against aggression — it has — but how the United States and its allies should respond in a way that will strengthen the international system.
It should be clear that Russia has violated the UN Charter’s restrictions on the use of force. It has resorted to “the use of force against the territorial integrity” and “political independence” of Ukraine in violation of Article 2(4) of the Charter’s founding principles. Russia has trampled on the fundamental norm that the United States and its allies have built since the end of World War II: that nations cannot use force to change borders unilaterally.
Like the League of Nations in the interwar period, the current system of collective security has failed to maintain international peace and security in the face of great power politics. According to widely-shared understandings of the UN Charter, nations can use force only in their self-defense or when authorized by the Security Council. Great powers with permanent vetoes on the Security Council (the United States, United Kingdom, France, Russia, and China) can always block formal efforts to respond to their own uses of force. Hence, the United Nations remains as powerless now as when Vladimir Putin ordered the 2008 invasion of Georgia.
The United Nations and its rules have not reduced the level of conflict between the great powers. That doesn’t mean there has not been a steep drop in conflict, despite Russia’s invasion of Ukraine. From 1945 to the present, deaths due to great power wars have fallen to a level never seen under the modern nation-state system. Collective security, however, is not the agent of this “Long Peace,” as diplomatic historian John Lewis Gaddis has called it. Rather, the deterrent of nuclear weapons and stable superpower competition reduced conflict during the Cold War. Since the fall of the Soviet Union, the United States has continued to supply the global public goods of security and free trade on its own. Democratic nations’ commitment to maintaining that liberal international order, not the collective security of the UN Charter, has kept peace among the great powers.
As someone who worked in the Bush administration during the 2003 Iraq War, I am struck by today’s absence of criticism for Russia’s violations of international law and its effective neutering of the United Nations. About a decade ago, criticism of the United States reached unprecedented heights for its failure to win a second Security Council resolution authorizing the use of force. The United States and its allies claimed that it already had authority from Iraq’s refusals to obey its obligations at the end of the 1991 Gulf War and its continuing threat to regional peace. Some of the United States’ closest European allies, such as France and Germany, violently disagreed — although these nations seem to urge compromise today with Russia. Even though the United States went to war without Security Council authorization, it sought to build a legal case in support.
UN rules only constrain democracies that value the rule of law, while autocracies seem little troubled by legal niceties. Paralysis continues to afflict the democratic response to the invasion of Ukraine. The United States responded to the invasion of Ukraine and annexation of Crimea with the symbolic measures of sanctioning a few members of Vladimir Putin’s inner circle, kicking Moscow out of the G-8, and halting NATO-US military cooperation. Russian officials mocked the United States and raised the price of natural gas sold to Ukraine, an implicit warning to other European nations that depend on Russian natural gas. The Russian and US stock markets sighed with relief that no serious economic disruptions would follow.
Now Russian intelligence agencies are apparently fomenting unrest in eastern Ukraine and Russian troops have massed on the border. It should be clear that Putin sees Russia’s relationship with the Western democracies as one of competition, not cooperation. Putin has used the goal of restoring Russia’s great power status to win popularity at home. He has never ridden so high in domestic opinion polls as now. One response, in keeping with international law, should be to remove Russia from a position of superpower equality, which would only recognize Russia’s steep decline in military capability, its shrinking population, and its crumbling economy (which now relies on commodity prices for growth).
The United States could take the first step by terminating treaties with Russia that treat the former superpower as a current one. It can send a clear signal by withdrawing from the New START treaty, which placed both the United States and Russian nuclear arsenals under the same limits. There is no reason to impose the same ceiling of 1,550 nuclear warheads on Russia, which can no longer afford to project power beyond its region, and the United States, which has a world-wide network of alliances and broader responsibilities to ensure international stability.
Next, the United States could restore the anti-ballistic missile defense systems in Eastern Europe. Concerned about Iran’s push for ballistic missiles and nuclear weapons, the Bush administration had begun the process for deploying advanced ABM systems in Poland and the Czech Republic. As part of its effort to reset relations with Russia, the Obama administration canceled the program without any reciprocal benefits from Moscow or Iran. Re-deploying the missile defense systems would provide an important signal of American support for its NATO allies, especially those on the front lines with Russia, and raise the costs on Russia if it seeks to keep pace.
Another point where the White House should downgrade Russia’s status is in Syria. After threatening to bomb the Assad regime for using chemical weapons on the rebels, the United States leapt for a Russian to jointly oversee the destruction of Syria’s chemical arsenal. Bashar Assad has taken advantage of the withdrawal of American threats to seize the momentum in the civil war, backed up by Russian and Iranian support. The United States should not consider Russia an equal and joint partner on any matter, but certainly not on whether to allow the Assad regime and Iran to continue to destabilize the Middle East.
President Obama might even undertake a longer-lasting and more effective blow against Russia’s claims to great power status: ejecting Russia from the United Nations Security Council. Along with China, Russia has used its veto to act as the defense attorney for oppressive regimes throughout the world. Of course, the United States cannot amend the UN Charter to remove Russia from the Security Council. But it can develop an alternative to the Security Council, which has become an obstacle to the prevention of harms to international security and global human welfare. The United States could establish a new Concert of Democracies to take up the responsibility for international peace, which would pointedly exclude autocracies like Russia and China. Approval by such a Concert, made up of the world’s democracies, would convey greater legitimacy for military force and would signal that nation’s that resort to aggression to seize territory and keep their populations oppressed will not have a voice in the world’s councils.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Much international legal writing concerned with computer and information technology (CIT) and global data flows has been concerned with developing law on these phenomena on the global plane. Scholars and practitioners of international law have, for instance, published important work on 
