Michael A Becker
Trinity College Dublin, Law, Faculty Member
- Assistant Professor of Law at Trinity College Dublin. PhD candidate at University of Cambridge. Former Associate Lega... moreAssistant Professor of Law at Trinity College Dublin. PhD candidate at University of Cambridge. Former Associate Legal Office at the International Court of Justice. Occasional tweeting on public international law at @mabecker17.edit
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... 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 ...
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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... 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...
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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... 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.
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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... 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.
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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... 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.
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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... 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.
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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... 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.
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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,... 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.
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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... 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).
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).
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European citizenship establishes a precedent whereby the exercise and protection of rights - the practice of citizenship - is no longer contingent on residency within the jurisdiction of national citizenship. Free movement rights have... more
European citizenship establishes a precedent whereby the exercise and protection of rights - the practice of citizenship - is no longer contingent on residency within the jurisdiction of national citizenship. Free movement rights have allowed European citizens to cross borders and participate more nearly as political and legal equals within the host society. At the same time, European citizenship has largely failed to account for the past or future migration of third-country nationals (TCNs) - those who are not citizens of any Member State - into or within the European Union. As a result, the creation of European
citizenship has arguably had the unfortunate side effect of further distinguishing and excluding TCNs from the emerging European society. This Note argues that the current legal status of TCNs hinders successful diversity management by individual Member States, undermines
European integration, and deprives TCNs of fundamental rights. The Note proposes that European citizenship should be expanded to allow TCNs to acquire European citizenship without the simultaneous authority over the citizenship status of TCNs would benefit the project of
migrant integration into local, national, and transnational societies and help further the democratization of European governance. In addition, a redefined European citizenship could trigger a fundamental rethinking of
national citizenship, potentially undermine the destructive influence of the extreme right, and, perhaps, lead to a more complete decoupling of the political and legal content of citizenship from the idea of nation.
citizenship has arguably had the unfortunate side effect of further distinguishing and excluding TCNs from the emerging European society. This Note argues that the current legal status of TCNs hinders successful diversity management by individual Member States, undermines
European integration, and deprives TCNs of fundamental rights. The Note proposes that European citizenship should be expanded to allow TCNs to acquire European citizenship without the simultaneous authority over the citizenship status of TCNs would benefit the project of
migrant integration into local, national, and transnational societies and help further the democratization of European governance. In addition, a redefined European citizenship could trigger a fundamental rethinking of
national citizenship, potentially undermine the destructive influence of the extreme right, and, perhaps, lead to a more complete decoupling of the political and legal content of citizenship from the idea of nation.
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William Schabas has described ‘lawfare’ as a term that ‘appears to have no useful or practical purpose’.1 In Lawfare: Law as a Weapon of War, Orde F Kittrie, a law professor at Arizona State University, sets out to prove otherwise. This... more
William Schabas has described ‘lawfare’ as a term that ‘appears to have no useful or practical purpose’.1 In Lawfare: Law as a Weapon of War, Orde F Kittrie, a law professor at Arizona State University, sets out to prove otherwise. This wide-ranging book provides a realpolitik account of how governments and non-state actors use law to achieve goals that might otherwise require ‘kinetic warfare’—that is, the use of force.
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This collection of essays edited by Christian Henderson marks the latest scholarly contribution to the practice of international commissions of inquiry and ad hoc fact-finding missions. The essays explore a range of topics, ranging from... more
This collection of essays edited by Christian Henderson marks the latest scholarly contribution to the practice of international commissions of inquiry and ad hoc fact-finding missions. The essays explore a range of topics, ranging from questions of objectives, procedure, methodology ,and effectiveness to those which examine inquiry bodies through the lens of critical legal studies. The preface by Michael Kirby sets the agenda and provides an admirable list of questions and considerations that researchers and practitioners alike should consider--it is an excellent place to start when considering the advantages and limitations of an inquiry-focused approach to contemporary problems.
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Barkan's work is important contribution to the literature on international justice and historical memory. As he shows, restitution is especially worth considering as an alternative to the international criminal justice model that has... more
Barkan's work is important contribution to the literature on international justice and historical memory. As he shows, restitution is especially worth considering as an alternative to the international criminal justice model that has recently assumed greater public prominence but often seems more for the benefit of the international community than the victims. Barkan's vision of restitution forces us to ask what kind of justice is meaningful to whom, and what kind of response to injustice more effectively empowers different group histories and identities for a greater good. Negotiated settlement and a "fuzzy" morality may well be preferable to traditional findings of right or wrong in the context of historical trauma. Restitution is always a compromise in that economic limitations are placed on what amount to infinite moral claims. This, however, is consistent with Barkan's argument: some resolution is better than none at all.