Papers by Michael A Becker
Irish Supreme Court Review, 2024
In Costello v Government of Ireland, the Irish Supreme Court held that ratification of the Compre... more In Costello v Government of Ireland, the Irish Supreme Court held that ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states would infringe upon Irish juridical sovereignty. The judgment reflects a more general trend of rejecting international investment agreements . With the aim of drawing out the implications of Costello for Ireland’s international relations, this article assesses Costello in its comparative European and international context, taking into account the interaction between different legal orders. Part II discusses the relationship between sovereignty and constitutional identity, which is central to the Supreme Court’s finding that ratification of CETA would infringe the Irish Constitution. Based on the argument that CETA operates as a matter of international law, Part III explains that CETA does not establish a parallel jurisdiction that would deal with the same disputes as Irish courts under Article 34 of the Constitution. Part IV examines the Supreme Court’s reasoning in light of Ireland’s other international commitments, including its consent to dispute settlement by international courts and tribunals such as the European Court of Human Rights and the International Court of Justice. Part V discusses difficulties with the proposal to amend the 2010 Arbitration Act and suggests alternative ways of reconciling CETA with Irish sovereignty, particularly via a requirement to exhaust local remedies before pursuing claims before a CETA tribunal.
Max Planck Yearbook of United Nations Law, 2022
The Statute of the International Court of Justice provides that only States may appear as parties... more The Statute of the International Court of Justice provides that only States may appear as parties before the Court. But other types of actors (non-governmental organizations, corporations, international organizations) can play a key role in persuading States to initiate ICJ proceedings, whether in the form of a contentious case or by supporting an advisory opinion request. Historically, the ICJ has shown little concern with the behind-the-scenes role played by civil society groups or other actors. The overarching question is whether the Court's approach has been sound, or whether there are scenarios that might justify the Court taking a different approach to policing its jurisdiction or the admissibility of claims when behind-the-scenes actors have successfully exerted a degree of influence over a decision to initiate proceedings.
Social Science Research Network, 2017
Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates... more Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadic v Prosecutor (1995). The chapter differentiates between two types of landmarks: signposts for other travelers, indicating the direction to be followed, or high-water points, relics of a particular moment in time. This chapter considers the significance of the Tadic case in both senses of landmark. After reflecting upon the case as a matter of diplomatic and legal history, it analyses the interlocutory appeal decided by the Appeals Chamber on 2 October 1995 as a landmark with respect to three areas of international law: general international law, international humanitarian law and international criminal law. It ends with a perspective on the significance of the interlocutory appeal for legal reasoning in international law. It concludes that in some areas ...
European Journal of International Law, 2019
Introducing a symposium on the question of what difference international commissions of inquiry (... more Introducing a symposium on the question of what difference international commissions of inquiry (COIs) make, this article frames the debate methodologically and theoretically. COIs have become a common feature of responses to issues of international concern. While aspects of their work have received substantial scholarly attention, less is known about the concrete, case-specific effects of past COIs. This symposium therefore encourages empirical research into the consequences of COIs, absent or present, intended or not. After discussing some of the common challenges to the empirical research required, this framework article sets forth a non-exhaustive typology of ways in which COIs could end up making a difference, such as inspiring further action or substituting for such action; justifying decision-making, ex ante or ex post; fostering a shared narrative or hardening competing narratives; legitimizing some groups while delegitimizing others; enhancing political dialogue or intensif...
Reports of Judgments, Advisory Opinions and Orders / Recueil des arrêts, avis consultatifs et ordonnances, Volume 15 (2015)
Vanderbilt Journal of Transnational Law, 2022
Conventional accounts of the historical development of international commissions of inquiry refle... more Conventional accounts of the historical development of international commissions of inquiry reflect a progress narrative consisting of three propositions: (1) that recourse to inquiry bodies has increased dramatically in the post-Cold War era, (2) that inquiry bodies have evolved from mechanisms for "pure" factfinding into quasi-judicial bodies that engage with international law, and (3) that the function of inquiry bodies has shifted from diplomatic dispute settlement to norm enforcement and accountability. Part I explains how this narrative simplifies and distorts the rich history of inquiry bodies in international affairs. Part II shows how the idea of a post-Cold War "turn to inquiry" downplays the extent and scope of earlier practice. Part III examines how inquiry bodies have long engaged with questions of international law, even if the form of that engagement has varied. Part IV then considers historical inquiry bodies that, like their modern-day counterparts, engaged in norm enforcement, pursued accountability, and addressed human rights violations and atrocity crimes. Ultimately, a more nuanced understanding of past practice has value for ongoing debates about the usefulness of inquiry bodies and the extent to which their contemporary role reflects a measure of progress.
Cambridge International Law Journal, 2017
On 5 October 2016, the International Court of Justice upheld preliminary objections to its jurisd... more On 5 October 2016, the International Court of Justice upheld preliminary objections to its jurisdiction in three separate cases relating to nuclear disarmament brought by the Republic of the Marshall Islands. India, Pakistan, and the United Kingdomthe three respondent Statesargued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court's approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties' claims (Part 2). It then analyses the Court's reasoning with respect to whether a dispute was present (Part 3) and explains how the Court's approach to the 'dispute requirement', a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).
EJIL:Talk!, 2021
On September 22, 2021, a US magistrate judge ordered Facebook to disclose "de-platformed" materia... more On September 22, 2021, a US magistrate judge ordered Facebook to disclose "de-platformed" materials relating to the perpetration of ethnic hatred against the Rohingya Muslim-minority in Myanmar. This post examines that decision, including the potentially sweeping implications of the ruling for on-line privacy, and considers how the evidence sought by The Gambia from Facebook relates to its pending action under the 1948 Genocide Convention against Myanmar at the International Court of Justice. The difficulties inherent to applying the Stored Communications Act, a US federal statute, to social media companies engaged in content moderation suggest that legislation, rather than piecemeal litigation, is urgently required.
Melbourne Journal of International Law, 2020
On 23 January 2020, the International Court of Justice (‘ICJ’) indicated provisional measures aga... more On 23 January 2020, the International Court of Justice (‘ICJ’) indicated provisional measures against Myanmar in the case brought by The Gambia under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). This case marks the first time that a non-injured state has brought an action at the ICJ under the Genocide Convention. The Court’s provisional measures order recognised the vulnerability of the Rohingya minority in Myanmar and directed Myanmar to take ‘all measures within its power’ to prevent the commission of genocidal acts against the Rohingya, as well as ‘effective measures’ to prevent the destruction of evidence. The Court’s tentative finding that the Rohingya people are a protected group under the Genocide Convention and that their precarious situation in Myanmar demanded protection was significant. However, the decision did little to clarify the Court’s evolving approach to ‘plausibility’ in the provisional measures context, and the Court declined the opportunity to grant relief that might have gone further towards protecting the rights at issue.
European Journal of International Law, 2019
Introducing a symposium on the question of what difference international commissions of inquiry (... more Introducing a symposium on the question of what difference international commissions of inquiry (COIs) make, this article frames the debate methodologically and theoretically. COIs have become a common feature of responses to issues of international concern. While aspects of their work have received substantial scholarly attention, less is known about the concrete, case-specific effects of past COIs. This symposium therefore encourages empirical research into the consequences of COIs, absent or present, intended or not. After discussing some of the common challenges to the empirical research required, this framework article sets forth a non-exhaustive typology of ways in which COIs could end up making a difference, such as inspiring further action or substituting for such action; justifying decision-making, ex ante or ex post; fostering a shared narrative or hardening competing narratives; legitimizing some groups while delegitimizing others; enhancing political dialogue or intensifying division; spurring reform or encouraging more of the same; promoting (international) law or exposing its limitations. This typology is presented as a resource for hypotheses not only for this symposium but also for future empirical research into the differences made (or not) by COIs.
OpinioJuris, 2020
The International Court of Justice required Myanmar to submit periodic reports on its implementat... more The International Court of Justice required Myanmar to submit periodic reports on its implementation of the the provisional measures indicated in January 2020. In this piece, we examine the policy rationale for making such reports accessible to the public and the absence of any legal obstacle to taking that step.
EJIl:Talk!, 2020
This paper considers whether the COVID-19 pandemic requires the establishment of an international... more This paper considers whether the COVID-19 pandemic requires the establishment of an international commission of inquiry. It considers the reasons to pursue inquiry rather than litigation and what an inquiry's mandate might contain, including how much the inquiry should focus on international law or state responsibility. It then considers who could create such a body, what its composition might look like, different working methods, and how to maximise co-operation. Overall, a forward-looking inquiry aimed at improving global preparedness may be more prudent and realistic than a mechanism focused on legal wrongdoing.
Cambridge International Law Journal, 2017
On 5 October 2016, the International Court of Justice upheld preliminary objections to
its jurisd... more On 5 October 2016, the International Court of Justice upheld preliminary objections to
its jurisdiction in three separate cases relating to nuclear disarmament brought by the
Republic of the Marshall Islands. India, Pakistan, and the United Kingdom – the
three respondent States – argued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court’s approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties’ claims (Part 2). It then analyses the Court’s reasoning with respect to whether a dispute was present (Part 3) and explains how the Court’s approach to the ‘dispute requirement’, a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).
Harvard International Law Journal, 2005
American University International Law Review, 2010
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Papers by Michael A Becker
its jurisdiction in three separate cases relating to nuclear disarmament brought by the
Republic of the Marshall Islands. India, Pakistan, and the United Kingdom – the
three respondent States – argued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court’s approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties’ claims (Part 2). It then analyses the Court’s reasoning with respect to whether a dispute was present (Part 3) and explains how the Court’s approach to the ‘dispute requirement’, a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).
its jurisdiction in three separate cases relating to nuclear disarmament brought by the
Republic of the Marshall Islands. India, Pakistan, and the United Kingdom – the
three respondent States – argued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court’s approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties’ claims (Part 2). It then analyses the Court’s reasoning with respect to whether a dispute was present (Part 3) and explains how the Court’s approach to the ‘dispute requirement’, a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).