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2013: A Year in International Law

Compiled by Katherine Marshall

We asked a number of experts to share their most important international law moment or development with us.

“2013 was an important year for international law. In a number of ways it highlighted the impact that international law can have on debates, trials, and decisions which would have once been considered purely national. The British Parliament’s vote against participation in military operations in Syria is a good example of this, as is the first ever conviction of a former head of state, Charles Taylor, by an international(ized) court. On a less positive note, 2013 also showed international law’s inability to make a difference in situations of humanitarian need in the absence of political will. Syria is an example here as well, with hundreds of thousands of civilians suffering violence, displacement, and hunger as a result of Assad’s brutal crackdown on the opposition. It was also a year marked by widespread disappointment at the acquittal of a number of high-profile defendants at the Yugoslav tribunal, and by the continuing failure to reach a breakthrough in protection the world’s environment. ”
Merel Alstein, Commissioning Editor for international law titles at Oxford University Press

Decorative Scales of Justice in the Courtroom

“The tentative deal over the nuclear ambitions of Iran that was struck in Geneva between Iran and the P5+1 (the United States, Russia, Britain, France, China and Germany) was the most significant international event of 2013. The importance of this deal is twofold. First, Iran has been playing a dangerous game, being in continual non-compliance with the International Atomic Energy Agency over much of this period, over which time it is understood to have become quite close to developing nuclear weapons. If it came much closer, it is likely a military strike against it would have occurred. Second, and linked to the first point, much of the Middle East, with the Syrian conflict, remains on a knife-edge. The Iranian connection in this area is very prominent, with both Iran and a number of other proxies being very active in the conflict. This tentative deal helps lower some of the tension in the area, and starts to remove what could easily have been a pretext to allow a war which is currently only in one country, become regional.”
Alexander Gillespie, author of International Environmental Law, Policy, and Ethics

“Despite denials, evidence indicates that the Syrian government used chemical weapons in its civil war in August. A retaliatory strike by the United States and allies seemed inevitable. However, the UK Parliament voted against the use of force, depriving the United States of a key ally. Finally a deal was brokered whereby Syria will surrender all of its chemical weapons by 2014. This is a much better outcome than if the United States had conducted an illegal unilateral strike in order to punish Syria, which would have achieved nothing but futile death and destruction, and another tear at the fabric of international law.”
Sarah Joseph, co-author of The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, Third Edition

“It would be tempting to highlight the ESIL-IGILT conference ‘The Approaches of Liberal and Illiberal Governments to International Law: A Conference Marking 25 Years from the Collapse of Communist Regimes in Central and Eastern Europe’ (Tartu, 12-13 June 2014) as one providing a potential forum for significant and needed developments with regard to the working of international law in Eurasia. The topic is timely, its interest both practical and theoretical, but its result still open. Already in 2013, an important body of literature and documents consolidated addressing the systemic deficiencies and paths for reform proposals of the investor-State dispute settlement regime. It might be that we are finally heading to developments towards the best of both worlds, inclusion of individuals in the system together with respect for public choices and policies.”
Mónica Garcia-Salmones, author of The Project of Positivism in International Law

“Syria remains a reality check for an emerging R2P (Responsibility to Protect) norm, particularly as R2P is currently based upon achieving agreement in the Security Council. Resolution 2118 of September 2013 represented a success for arms control in that it has led to a process of chemical weapons disarmament by the Syrian regime, but it did not fulfil the United Nations’ R2P the civilian population of Syria. The proposed limited military intervention of August 2013, if it had gone ahead, would have served punitive as well have preventive ends, but it would not have stopped the appalling loss of life (of over 100,000) mainly through conventional means of warfare. Only massive military intervention might stop this at least temporarily but such is beyond the United Nations and states post-Iraq. Nevertheless, when it is unable to agree on action the Security Council has a duty to continually work towards a diplomatic solution using its undoubted collective leverage. It has abysmally failed to do this in Syria but the Geneva conference scheduled for January 2014 gives the P5 another chance. The perseverance shown in achieving agreement over Iran’s nuclear programme in November 2013 is evidence that P5 consensus on what appears to be intractable problems is possible. It also holds out the prospect of finally building a post-Cold War international legal order based on diplomacy and agreement as the norm rather than on coercion and expeditionary interventions.”
Nigel White, author of Democracy goes to War: British Military Deployments under International Law

“On 17 April 2013, the US Supreme Court handed down its long-awaited decision in Kiobel v. Royal Dutch Petroleum affirming a lower court’s dismissal of the case and restricting the scope of application of the Alien Tort Statute (ATS) to exclude consideration of alleged human rights abuses occurring outside the United States. The ATS, which dates back to 1789, grants jurisdiction to federal courts to hear tort claims by aliens alleging violations of the ‘laws of nations’. Over the past two decades, there has been protracted litigation under the ATS regarding the implication of corporations in human rights abuses abroad. Indeed, the plaintiffs in Kiobel, Nigerian nationals residing in the United States, filed suit under the ATS against foreign corporations alleging that the latter aided and abetted the Nigerian Government in committing violations of the ‘law of nations’ in Nigeria. The Court held that the presumption against extraterritoriality applies to claims under the ATS, since there is nothing in the Statute to rebut that presumption. Chief Justice Roberts who delivered the opinion of the Court, noted that even where the claims ‘touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’ Kiobel seems to slam the door shut regarding human rights complaints brought against foreign corporations under the ATS. Yet, proponents of corporate accountability may perhaps find solace in the Concurring Opinion of Justice Kennedy who spoke of the possibility of other cases that ‘may arise with allegations of serious violations of international law principles protecting persons’ which may not be covered ‘by the reasoning and holding of today’s case.’”
Markos Karavias, author of Corporate Obligations under International Law

“The Council of Europe has organised a public consultation on the longer term future of the system of the European Convention on Human Rights. Since the first steps were taken in 1950 for the collective enforcement of certain human rights, much has changed in Europe. The European Union has become an public authority to reckon with, which will accede to the Convention. Through internet communicating and sharing information across borders has become an everyday experience. Through the consultation the Council of Europe internationalizes democracy through the internet. Now we must point out, before 27 January 2014, the future role to be played by the European Court of Human Rights to further develop democracy and especially accountability on the European level.”
Geranne Lautenbach, author of The Concept of the Rule of Law and the European Court of Human Rights

“2013 has been the year for challenging the traditional rules governing the law on the use of force. Challenges have come from several quarters. We have seen the intense debate — in the Security Council, in the UK Parliament, in the US Congress, on the blogs — regarding the legality of military action in Syria in response to chemical attacks on civilians. Controversy has also surrounded the use of drones to conduct targeted killing, particularly by the United States in Pakistan and Yemen. Concepts such as the ‘unable or unwilling test’, ‘elongated imminence’, and ‘consent to the use of force’ have been scrutinized by the UN Special Rapporteurs on Counter-Terrorism and Human Rights and Extrajudicial Executions in their 2013 reports to the General Assembly. The debates will last long into the New Year, but will only lead to results if States are committed to greater transparency and accountability.”
Philippa Webb, author of International Judicial Integration and Fragmentation

“While, in absolute terms, there have been more important developments in general public international law (think of, eg, the unanimous adoption of UN Security Council Resolution 2118 on the elimination of Syria’s chemical weapons and the disillusioning results of the Warsaw Climate Change Conference), I would like to highlight a less-noticed development in the field of international economic law. 2013 was the first year during which the International Monetary Fund (IMF) applied in practice its new institutional view on capital flows adopted in December 2012. In advising its member states, the IMF now explicitly recognizes the potentially destabilizing effects that excessive capital inflows and uncontrolled capital outflows may have depending on the precise economic circumstances and the state of development of a given member state’s financial system and institutional framework. The IMF, which over many years had been a fierce and inflexible proponent of a complete liberalization of global capital flows, has thus learnt an important lesson from the global financial crisis.”
Claus Zimmermann, author of A Contemporary Concept of Monetary Sovereignty

“For the International Criminal Tribunal for the former Yugoslavia (which will disappear from the year round-ups in international law in the near future), 2013 will enter the annals as a tumultuous one. The February acquittal on appeal of Momčilo Perišić, the former Chief of General Staff of the Yugoslav Army who had been convicted at trial for aiding and abetting crimes against humanity and war crimes, has been on everyone’s mind. Along with the soon-to-follow acquittals of Stanišić and Simatović, both high-ranking officials in Serbia’s State Security Service, Perišić aroused fierce debates both within and outside the court. The legal controversy (and the accompanying political controversy) concerned the application by the Perišić Appeals Chamber of the requirement that general, or neutral, assistance should be specifically directed to the commission of crimes to warrant a conviction, as a decisive element of actus reus of aiding and abetting. However, the Special Court for Sierra Leone’s Taylor appeal judgment (September 2013) in strong terms rejected that requirement as having no basis in customary law. It remains to be seen which of the approaches will prevail in the future jurisprudence on aiding and abetting liability. But the current rift between the two courts is remarkable and puts their legacies apart on this issue.”
Sergey Vasilev, co-editor of International Criminal Procedure: Principles and Rules

What do you think people will still be talking about in 10 or 20 years’ time? Continue the conversation with us on Twitter at @OUPIntLaw.

Katherine Marshall is a marketing Executive for Law titles at Oxford University Press.

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 credit: Symbol of law and justice in the empty courtroom, law and justice concept. Photo by VladimirCetinski, iStockphoto.

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