Public International Law Part III

Dr. Alessandra Spadaro of Utrecht University outlines several challenges to the applicability of the doctrine of superior responsibility in the context of the use of autonomous weapons systems.

Peter Quayle argues employment law of international organizations tends towards incoherence, however, mapping international administrative law onto a larger framework of international organizations law can realize a more workable version of the law.

Natalie Klein, Professor at UNSW Sydney, presents on the Geneva Declaration on Human Rights at Sea, adopted in March 2022 as an initiative of UK charity Human Rights at Sea, and on the Declaration's lawmaking potential. Natalie Klein, Professor at UNSW Sydney, presents on the Geneva Declaration on Human Rights at Sea, adopted in March 2022 as an initiative of UK charity Human Rights at Sea, and on the Declaration's lawmaking potential.

Dr Eliana Cusato, postdoctoral fellow at the Amsterdam Center for International Law, presents an overview of the key arguments in her book, 'The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law'.

Monica Feria-Tinta discusses a landmark 2022 decision of the UN Human Rights Committee which found that Australia failed to protect indigenous Torres Strait Islanders against adverse impacts of climate change, in breach of human rights law. Monica Feria-Tinta, is a barrister at Twenty Essex chambers

Dr Nikola Hajdin outlines an analytical framework for criminal complicity in a war of aggression Dr Nikola Hajdin argues against the dominant view that a perpetrator of the crime of aggression must be in a position effectively to exercise control over, or direct, the political or military action of a state, and outlines an analytical framework for criminal complicity in a war of aggression

Professor Karen Scott of the University of Canterbury, New Zealand, gives a presentation exploring the current regime complex for ocean plastics and considering how the law of the sea is likely to interact with a newly proposed plastics treaty.

Professor Errol P. Mendes of the University of Ottawa gives a presentation calling for a revisiting of the origins of the concept of sovereignty in Public International Law.

Philippa Webb, Professor of Public International Law at King’s College London, gives a presentation on recent developments in English law in cases against current and former heads of state. Apologies that there was a brief technical issue shortly after the beginning of this recording.

Freya Baetens, Professor of Public International Law at Oslo University, gives a presentation on how the International Court of Justice has addressed claims based on ‘regional’ customary international law.

Nicolas Lamp, Queen’s University, Canada gives a presentation to the Public International Law Discussion Group.

Professor Anne van Aaken, University of Hamburg, Germany, gives a talk for the Public International Law seminar series (11/11/2021).

Professor Catharine Titi, French National Centre for Scientific Research (CNRS)-CERSA, University Paris II Panthéon-Assas, France, gives a talk for the Public International Law seminar series. (4/11/2021)

A presentation by Professor Stefan Talmon on Tactical Admissions in International Litigation, delivered to the Public International Law Discussion Group.

Professor Paul Gragl, European Law at the University of Graz, Austria, gives a talk for the Public International Law seminar series. Abstract: Despite the overwhelming scientific evidence that vaccines are, in general, safe and effective, vaccine hesitancy continues to thrive due to various reasons, such as misinformation, the wish to protect one’s personal autonomy, and/or religious or moral beliefs. Vaccine hesitancy therefore endangers attaining and maintaining herd immunity which protects those that cannot be vaccinated due to medical reasons. Some States have consequently implemented compulsory vaccination schemes in order to close this gap in protecting public health, which, however, raises two essential questions in the context of human rights protection: (i) if a State has done so and implemented a compulsory vaccination scheme, does it potentially violate Articles 2,8, and 9 of the ECHR? In other words, are the ECHR Contracting Parties under a negative obligation to abstain from introducing such measures? Or (ii) if a State has not done so (yet), is it actually under a positive obligation to introduce such measures in order not to violate these provisions? On the basis of the ECtHR’s recent judgment in Vavřička and others v. the Czech Republic (April 2021), I will discuss these questions and conclude that States are, if specific requirements are met, not prohibited from implementing such measures, whilst they are also not obligated to do so under the ECHR as long as they protect those most vulnerable to infectious diseases through other means. The presentation is based on a paper which will be published in the European Convention on Human Rights Law Review. Paul Gragl is Professor of European Law at the University of Graz, Austria. His research interests include public international law, EU law, human rights law, and legal theory as well as philosophy, which is reflected in his most recent monograph Legal Monism: Law, Philosophy, and Politics (OUP, 2018).

Julia Emtseva, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, gives a talk for the Public International Law seminar series. Julia Emtseva is a research fellow and a PhD candidate at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany. Julia obtained her LL.M. in International Human Rights Law at the University of Notre Dame Law School, M.A. in Human Rights and Democratization in the Global Campus of Human Rights Regional Program in the Caucasus, and LL.B. at the American University of Central Asia (AUCA). Julia Emtseva obtained her qualification as a lawyer in Kyrgyzstan and before starting her PhD, she interned at different national courts, including the Constitutional Chamber of the Kyrgyz Republic, and worked as a teaching and research assistant at the law faculty of the AUCA, a human rights observer with the American Bar Association as well as in different NGOs, including the National Committee of the Red Cross in Kyiv and the European Center for Constitutional and Human Rights in Berlin.

Professor Jutta Brunnée, University of Toronto, gives a talk for the seminar series on 6th May 2021. Drawing on the practice-turn in constructivism and in international relations (IR) theory more generally, I will argue that a particular approach to managing stability and change is inherent in, and indeed characteristic of, legality in international as in domestic law. The "interactional law" framework that I developed with Stephen Toope places particular emphasis on what we call the "practice of legality". This concept is central to understanding how law can both enable and constrain state actions, and why international law is a distinctive language of justification and contestation. In turn, the focus on stability and change is helpful because it directly confronts some of the persistent doubts and assumptions about international law, in particular in relation to international politics. Our work is animated by the intuition that the dominant views in IR and international law scholarship underestimate international law's capacity to mediate stability and change, in part because they focus on the surface of law (treaties, statutes and so on) and external factors (interests, enforcement). They neglect the deeper structure of what makes norms "law," and the distinctive practices that account for both its relative stability and its capacity for change. Jutta Brunnée is Dean, University Professor and James Marshall Tory Dean’s Chair, at the University of Toronto’s Faculty of Law. Her teaching and research interests are in the areas of Public International Law, International Environmental Law and International Legal Theory. She has published extensively in each of these areas. Her current research agenda explores the role of international legality and legal practices in mediating between stability and change in international law. Dean Brunnée is co-author of International Climate Change Law (OUP 2017), which was awarded the American Society of International Law’s 2018 Certificate of Merit “in a specialized area of international law” and was recently translated into Korean, and of Legitimacy and Legality in International Law: An Interactional Account (CUP 2010), which was awarded the American Society of International Law’s 2011 Certificate of Merit “for preeminent contribution to creative scholarship.” She was elected Fellow of the Royal Society of Canada in 2013, and Associate of the Institut de Droit International in 2017. In 2019, she delivered a course on “Procedure and Substance in International Environmental Law” at The Hague Academy of International Law, published in the Academy's Collected Courses / Recueil des Cours series (2020). In 2020, Dean Brunnée was appointed University Professor, the University of Toronto’s highest and most distinguished academic rank.

Dr Lea Raible University of Glasgow; 2020/21 re:constitution Fellow, gives a talk for the Public International Law discussion group on 20th May 2021.

Ignacio de Casas, Austral University, Argentina, gives a seminar for the PIL discussion group. The terms ‘international human rights standards’ or ‘inter-American human rights standards’ are often used by the Inter-American human rights bodies as almost a synonym for human rights or the obligations that States have in this area. In their discourse, these ‘standards’ are usually considered not to refer solely to the normative expression of human rights in treaties, custom or general principles of law. On the contrary, such expression is given a use that also includes non-binding instruments whose normative (legal) content is doubtful or, at least, its bindingness is not expressly declared or recognized by any international rule (e.g., declarations, resolutions of international organizations, judicial decisions, views and general comments of treaty bodies, case law of the Commission, etc.). In recent years, the Inter-American Commission in particular has produced many thematic reports of so called ‘Inter-American standards’, which are compendia of the jurisprudence of the Court and the Commission. They contain no clear definition of the concept of standards. Yet, inadvertently or boldly, they are invoked as a rule of conduct (source of obligations) for States, even when their content has clearly not been determined by, or based on, the traditional sources of international law. It is possible that this term is used as a performative utterance, pursuing a specific ideological intentionality with the meaning attributed (i.e., a progressive case for human rights). Is the jurisprudence of both the Inter-American Commission and Court a source of international law? Have they attributed themselves a law-making power? C. Ignacio de Casas is an adjunct professor at Austral University in Argentina, where he also coordinates the Graduate Diploma in Human Rights Law. Prior to that, he worked for a law firm focussing on human rights international litigation. He has an Abogado degree from the University of Mendoza, a masters from the University of Oxford and is a PhD candidate at Austral University. He is also co-founder of the Centro Latinoamericano de Derechos Humanos (CLADH).

Professor David Dyzenhaus, University of Toronto, currently a Guggenheim Fellow and a Visiting Fellow at All Souls, gives a talk for the Public International Law seminar series. In the recent resurgence of jurisprudential interest in international law, HLA Hart’s theory of law occupies centre stage and doctrinal public international lawyers usually adopt his theoretical vocabulary, in particular his account of the rule of recognition, when they feel the need for some theoretical tools. This is a puzzle because Hart saw philosophy of public international law as peripheral to the main task of jurisprudence—to analyze the ‘distinctive structure of a municipal legal system’—and deemed its study ‘only a relatively small and unimportant part of the most famous and controversial theories of law’. In addition, his own analysis of public international law is widely considered problematic. But while Hart is thought not to have been quite on his game when it came to public international law, it may seem that his is the only game in town when it comes to the place of such law in a general theory of law. I argue that it high time that jurisprudence returned to Kelsen, unhindered by Hart’s distortion of Kelsen’s central ideas, not least because Kelsenian legal theory shows us the benefits of reversing the order of argument about public international law. Instead of, first, constructing a theory of the law of a national legal order and, second, asking whether public international law is law in its light, we should see that understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. I examine these issues through the lens of the debate about whether the relationship between public international law and national law should be understood as ‘monists’ or as ‘dualists’ urge. David Dyzenhaus is a University Professor of Law and Philosophy at the University of Toronto, currently a Guggenheim Fellow and a visiting fellow at All Souls. He has just completed The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge, forthcoming).