International Law Commission

The Liminal in the Limelight – Climate Change and Sea Level Rise Lay Claim to the Mainstream Vocabulary of International Law

/ Rashmi Raman / Leave a comment

Climate justice and climate change in the face of rising sea levels and global warming have, for decades now, existed as urgent and profoundly important topics for study in international law. It is only with the sudden coming of age, through the experience of a global pandemic, and the mounting pressure from states and intergovernmental scientific bodies, of the institutions of international law in the last year, that climate change and its implications for international law are now well and truly under the limelight. An important part of this coming of age for climate change and adaptation laws is through the adoption, by the International Law Commission, of the topic “Sea-level Rise in Relation to International Law” for its program of work. A second part of the coming of age for climate change in international law is through the route of international courts and tribunals. States parties have brought three separate requests for Advisory Opinions before international courts and tribunals in this past year, creating an important judicial space for the obligations of states to respond to climate change related situations.

In this post, I argue that these two developments in 2023, have created the momentum required for the topic climate change and sea level rise to escape from the liminalities of the vocabulary of mainstream international law where they have existed as exceptions to the accepted idea of state responsibility, human vulnerability, legal stability, and to instead find expression within the newly reopened context of “core” international law, such as the creation of states in international law, theories of recognition, state responsibility, law of the sea, and the multiple and often overlapping treaty regimes that govern each of these areas.

At its 70th Session in 2018, the ILC recommended that the UNGA Resolution 73/265 of December 2018 on sea level rise be adopted as a topic for a study by the ILC. The ILC, which turns 75 in 2024 has tabled for its 2024 session, the syllabus and sub-topics on sea level rise in relation to its effects on statehood and sovereignty on the one hand and its effects on vulnerabilities and fragilities created on people by sea level rise. Interestingly and for the purposes of the argument I suggest here, on moving from the liminal to the limelight, it is astonishing to note how quickly the ILC adopted this topic of study – perhaps the quickest adoption in the Commission’s history. States voted quickly and in a landslide vote, to support the adoption of the topic, clearly showing that in their own national, regional and international experiences, its importance, and centrality to the construction of other related areas of international legal obligations, could no longer be denied.

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion from the Commission of Small Island States on Climate Change and International Law (COSIS-CCIL), on the obligations of states parties to the United Nations Convention on the Law of the Sea with respect to climate change. COSIS-CCIL membership includes Niue, Palau, St. Lucia, Antigua and Barbuda, Tuvalu and Vanuatu.

Soon after, on 9 January 2023, Chile and Colombia jointly filed an application for an advisory opinion before the Inter-American Court of Human Rights, seeking clarity on the legal obligations on states parties to the American Convention on Human Rights to respond to the climate emergency in the individual and collective capacities.

Three months later, on 29 March 2023, a long debated resolution A/RES/77/276 to request an advisory opinion of the International Court of Justice ‘on the obligations of states in respect of climate change’ was adopted by the United Nations General Assembly.

In addition, the European Court of Human Rights has under hearing, three contentious cases on various aspects of the legal obligations of states parties to the (European) Convention on Human Rights and Fundamental Freedoms. The construction of these events, while unrelated, and stemming from independent motivations to approach the courts in question, certainly creates an undeniable structure for viewing the subject matter for consideration before international courts and tribunals in 2023. Elsewhere, I am working on a symposium on the importance of these advisory opinions for states in the Global South. Has the state practice already changed appreciably to now create new customary international law obligations that have rapidly developed in such areas as legal sovereignty (new state practice on recognition theories that may diverge from the requirement of physical territory to establish statehood, as the Falepili Union Treaty  between Australia and Tuvalu might suggest)? Is there room to stretch the grammar of state responsibility to include protection of persons in the event of slow-onset, imminent disaster created by sea level rise? What will be the state practice repercussions of reopening the conversation on legal stability in the ILC’s study? These are only some of the many possibilities that confront us as we await the outcome of the work of the ILC and the courts in 2024.

It has been argued that critical methodologies for constructing a narrative to showcase the gaps in international law do so by searching the silences of the extant positivist framework; they do so by rephrasing the story in terms of its situatedness and urge us to view the liminal as an inevitable aspect of the mainstream. So too for the liminalities and the disciplinary precarity that the ILC’s study group forces us to consider. In reopening the conversation on establishing baselines, uti possidetis, permanent sovereignty over natural resources, on the requirement of physical territory to construct legal statehood, the conversations are urging us to include the inevitabilities associated with sea level rise as part of the language of mainstream international law. This is a vindication of critical methodology.

Koskenniemi has advised moderation and dismisses the radical possibility that the fundamental grammar of international law is flexible enough to accommodate the constantly changing vocabulary. The magical expanding and simultaneous closing of state practice, for Koskenniemi, are simply the destiny of international law.

“For it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other. An argument about concreteness is an argument about the closeness of a particular rule, principle or doctrine to state practice. But the closer to state practice an argument is, the less normative and the more political it seems….Different doctrinal and practical controversies turn on transformations of this dilemma. It lies behind such dichotomies as “positivism/naturalism”, “consent/justice”, “autonomy/community”, “process/rule”, etc., and explains why these and other oppositions keep recurring and do not seem soluble in a permanent way. They recur because it seems possible to defend one’s legal argument only by showing either its closeness to, or its distance from, state practice. They seem insoluble because both argumentative strategies are vulnerable to what appear like valid criticisms, compelled by the system itself.” (Martti Koskenniemi, The Politics of International Law, European Journal of International Law, Volume 1, Issue 1, 1990, Pages 4–32, https://doi.org/10.1093/oxfordjournals.ejil.a035781)

Toward a Feminist Jus Cogens

/ Mary Hansel / Leave a comment

In the wake of recent reporting on jus cogens by the U.N. International Law Commission (ILC), I thought I would share two feminist critiques of the doctrine.

First, “Magic” or Smoke and Mirrors? The Gendered Illusion of Jus Cogens seeks to demystify and debunk the ILC’s positivist methodology for identifying jus cogens norms and reveals the entrenched gender bias of this approach — instantiated by the baseless exclusion of the prohibition on gender discrimination from jus cogens status.

Abstract: International law scholars have referred to the “magic” of jus cogens norms: their exalted status in terms of legal effects, symbolic impact and ability to shape the international legal order. The doctrine’s “magic,” however, is belied by the smoke and mirrors of the prevailing approach to norm identification. This paper explores how the positivist identification process creates an illusion of methodological soundness that serves to marginalize gender.

The paper begins by demonstrating that the positivist approach to jus cogens identification, epitomized by the recent work of the ILC, is irredeemably lacking in the rigor and objectivity to which positivism lays claim. The ILC’s methodology fails to set forth clear benchmarks for attaining jus cogens status; cherry-picks evidentiary items relevant to each norm, in lieu of comprehensive assessments; provides minimal guidance regarding how evidentiary items are to be weighted; and draws from an unreliable pool of evidence. Next, the paper reveals that, as a result of these methodological deficiencies, judicial and non-judicial decision-makers have unfettered discretion in selecting which norms do and do not qualify as jus cogens. They may elect to make decisions based on instinct (“I know it when I see it”), assorted normativist theories (including natural law) or self-interest (as State actors are wont to do). The true bases of their decision-making are unknown, and a sense of jus cogens agnosticism is appropriate. The paper then explains how the discretionary selection process is cloaked and obscured by the positivist promise of an objective, rigorous evaluation — such is the illusion of jus cogens. This illusion facilitates the marginalization of gender, consistent with structural and pervasive biases within international law. The paper concludes with a reflection on potential alternatives to positivism that could yield a more inclusive jus cogens.

The novelty of this paper is three-fold. First, although not the first to lament the methodological failings of jus cogens positivism, it seems to be the first to identify and detail these failings. Second, the paper exposes the discretionary basis of jus cogens decision-making, which is obfuscated by the promise of a rigorous evidentiary calculus. This understanding disrupts the positivism-normativism binary that characterizes much of jus cogens scholarship. Third, the paper shows how the positivist illusion results in the exclusion of feminist priorities. Despite the voluminous scholarship on jus cogens, there appears to be a stunning paucity of feminist literature addressing the doctrine; the paper seeks to fill this lacuna.

Published in: Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations (Dire Tladi ed., Brill 2021)

Second, From Crisis to Quotidian: Countering the Temporal Myopia of Jus Cogens surfaces the doctrine’s temporal bias, which favors (seemingly) discrete crises at the expense of systemic inequalities and other “everyday” issues that most impact women, girls and those with marginalized genders.

Abstract: International law’s tendency to prioritize crises is well-trodden ground in the legal literature. What seems to be missing from the crisis discourse, however, is a nuanced understanding of what these crises are that dominate international law’s attention and resources — the criteria by which crises are defined and identified. This paper seeks to address this gap in the literature and asserts that crises are determined by their temporal character. Situations are considered crises when there is a perceived (or even manufactured) dearth of time; accordingly, international law operates pursuant to “emergency time.” This temporal scheme underpins the selection of jus cogens norms, as demonstrated by the ILC’s recent reports identifying norms that have and have not attained jus cogens status. Indeed, most of the norms confirmed as jus cogens directly relate to crisis, while the norms excluded from this status do not. To redress this temporal bias, this paper proposes alternative temporal approaches derived from feminist literature. The application of these temporalities would result in a set of jus cogens norms untethered from crisis and linked instead to systemic, quotidian issues that most impact women, girls and people with marginalized genders; these issues include discrimination, poverty, domestic violence, environmental protection, access to education and healthcare.

Published in: The Times and Temporality of International Human Rights (Ben Warwick and Kathryn McNeilly eds., Hart Publishing 2022)

Please do not hesitate to reach out with questions, comments or thoughts on future work in this area.

Twitter/X: @maryhhansel

LinkedIn: https://www.linkedin.com/in/maryhhansel/

Book Launch: Protecting Civilians in Refugee Camps

/ Maja Janmyr / Leave a comment

Protecting Civilians in Refugee CampsIt’s my great pleasure to announce the book launch of Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International Responsibility. Through an analysis of the International Law Commission’s work on international responsibility, the book discusses responsibility for human rights violations taking place in refugee camps being administered by the United Nations High Commissioner for Refugees (UNHCR) and its implementing partners. It will be launched at the Bergen Resource Centre for International Development in Bergen, Norway, on May 22, 2014. Protecting Civilians is the first book in the International Refugee Law book series, edited by Dr David Cantor and published by Martinus Nijhoff Publishers. In the same series, the edited volume Refuge from Inhumanity? War Refugees and International Humanitarian Law will be out in September.

New Topic and New Special Rapporteur in the ILC: A Sign of Progressiveness in the Man’s World of International Law?

/ Britta Sjöstedt / 1 Comment

marie jacobsson2(1)On May 29th, the International Law Commission (ILC) decided to include ‘protection of the environment in relation to armed conflicts’ in its current programme of work, appointing Marie Jacobsson as the Special Rapporteur on that topic. In the past, the ILC has mainly addressed topics within the traditional international legal sphere, such as those concerning treaty interpretation and application. This work still constitutes an important part of the Commission’s programme, which covers issues such as subsequent agreements and subsequent practice in relation to the interpretation of treaties, the Most-Favoured-Nation clause, and provisional application of treaties.

The Commission, however, has made attempts to reform.  In its 1997 Yearbook, the ILC expressed an ambition to consider topics “that reflect new developments in international law and pressing concerns of the international community as whole.”  These less traditional topics can be found in the current work programme: the obligation to extradite or prosecute (aut dedere aut judicare), protection of persons in the event of disasters, and immunity of State officials from foreign criminal jurisdiction. The latest topic to be included in ILC’s work programme – ‘protection of the environment in relation to armed conflicts’ – is yet another sign of the ILC’s commitment to explore novel international law issues.

Concerns of the international community have changed over the years. The growing focus on the environment is but one example. Over the years, scholars have struggled to make sense of the fragmented and sometimes ambiguous international legal rules on the protection of the environment in relation to armed conflict.  These rules often originate from different bodies of law, including international humanitarian law, international criminal law, international environmental law and human rights law. The ILC’s work will be valuable, then, simply in identifying the various legal issues around the protection of the environment in relation to armed conflict. This is also an opportunity for the ILC to continue work on two previous topics considered in the Commission: fragmentation of international law and effects of armed conflicts on treaties.  The ILC has finalized its work on these topics, but further clarification is needed as many tricky questions remain. Hopefully, the Commission will be able to explore these questions in greater depth while at the same time addressing more novel concerns of the international community through its work on ‘the protection of the environment in relation to armed conflicts.’

The ILC has for a long time been an exclusive men’s club. It was not until 2002 that the Commission received its first female members.  In that year, Paula Escarameia and Hanqin Xue, broke the record of exclusive male membership that had existed since 1949. By appointing Ms Jacobsson as the Special Rapporteur, the Commission is expanding the small group of female Special Rapporteurs. They are now two (!) in total with Concepción Escobar Hernández as the other female Special Rapporteur for immunity of State officials from foreign criminal jurisdiction. Appointing a female Special Rapporteur to lead a dynamic and unconventional project at the ILC is a hopeful sign of new developments taking place in the man’s world of international law (see Naomi Burke’s recent blog post).

Introducing Britta Sjöstedt

/ Jaya Ramji-Nogales / Leave a comment

britta sjostedtIt’s our great pleasure today to welcome Britta Sjöstedt as an IntLawGrrls contributor.  Britta has conducted legal studies at Lund University in Sweden and McGill University in Canada and completed her Master of Laws in 2009. At present, she is a doctoral student at Lund University. She has previously worked as an assistant at the International Law Commission in Geneva. Britta has also worked in Canada, Mauritania and Sweden.

 Britta’s research project focuses on questions of protection of the environment during armed conflict from a fragmentation perspective. The main research focus is on the role of multilateral environmental agreements during armed conflict and how they may interact with and modify international humanitarian law. Britta also teaches at Lund University and at the Raoul Wallenberg Institute, mainly in international humanitarian law, general public international and peace and conflict resolution.

 Her introductory post today discusses developments in the International Law Commission, examining small signs of progressiveness in dual meaning: both in terms of substance as well as from a gender perspective.

The ILC on the Expulsion of Aliens

/ Jaya Ramji-Nogales / Leave a comment

woman migrantAt work on a new article discussing the failures of international human rights law to adequately protect undocumented migrants, I was delighted to learn that the United Nations International Law Commission has been at work for nearly ten years on draft articles relating to the expulsion of aliens.   Provisionally adopted by the Drafting Committee in 2012, and drafted under the guidance of Special Rapporteur (and past ILC Chairman) Maurice Kamto, the articles represent a bold departure from important aspects of human rights law relating to undocumented migrants and immigration proceedings.

Even starting with the term “expulsion” proceedings rather than a euphimism such as “removal” proceedings or a more facially neutral “immigration” proceedings suggests a fresh take on the issue.  Up front and center, draft article 1 notes that the draft articles apply with equal force to non-citizens lawfully and unlawfully present.  Given that the text of the International Covenant on Civil and Political Rights distinguishes between non-citizens lawfully and unlawfully present (Art. 13) and that the text of the UN Convention on the Elimination of All Forms of Racial Discrimination explicitly permits”‘distinctions, exclusions, restrictions or preferences” between citizens and non-citizens (Art. 1(2)) (and therefore presumably between non-citizens lawfully and unlawfully present), this represents significant progress.

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