Portrait of Professor Yutaka Arai

Professor Yutaka Arai

Professor of Law
Deputy-Director in Law programmes at Brussels School of International Studies (BSIS), University of Kent, Brussels. Acting Director (2018-2019).

About

Yutaka Arai did his undergraduate study in Law and then obtained his LLM at University of Keio in 1993. During that time, he studied international relations as an exchange student from Keio at Brown University. He then moved to England and studied for his PhD at University of Cambridge (under the supervision of Prof James Crawford, now the judge of the International Court of Justice). When employed at University of Kent at Canterbury and Brussels, his PhD was published as, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR"in 2002 (Antwerp/Oxford: Intersentia/Hart). This is cited in the Arbitration before the Permanent Court of Arbitration in the Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), 21-25 October 2002, available at <http://www.pca-cpa.org/PDF/IREUK2.pdf >, pp. 107-8; and <http://www.pca-cpa.org/PDF/IREUK3.pdf> pp.6, 11, 30. Yutaka published his second monograph in 2009, The Law of Occupation - Interplay between International Humanitarian Law and International Human Rights Law (The Hague: Martinus Nijhoff). This has been cited in several judgments, including by the European Court of Human Rights, Grand Chamber in the Case of Sargsyan c. Azerbaijan, Judgment of 16 June 2015, para. 94.

Research interests

  • International Humanitarian Law
  • International Human Rights Law
  • International Criminal Law
  • European Human Rights Law (especially European Convention on Human Rights)
  • Theories of Public International Law

Teaching

Yutaka's teaching focuses on teaching postgraduates in BISR in the fields of the Law of Armed Conflict, International Human Rights, International Criminal Law and legal Fundamentals, Dissertations and Research methods.

Supervision

International humanitarian law (laws of war/jus in bello); Still, he may supervise PhD candidates dealing with international criminal law. 

Yutaka has successfully supervised four PhD candidates under his primary supervision:

  • Dr. Antonios Stylianou, currently a lecturer at Univ. of Nicosia, Cyprus, 2004-2008, with viva on 25 January 2010 – minor corrections only (primary supervisor); 
  • Dr. Patrick Terry, a viva on 22 June 2012; minor corrections only (co-supervisor); 
  • Dr Omer Direk (submission on 27 August 2012 and viva voce on 5 November 2012 – no correction; primary supervisor); successfully publishing his PhD thesis as a book: Omer Derek, Security Detention in International Territorial Administrations: Kosovo, East Timor, and Iraq (The Hague: Brill, 2016). 
  • Dr. Martin Hamilton, Sept. 2009- March 2015 at Univ. of Kent at Canterbury, UK (viva voce on 8 September 2015 with minor corrections only; primary supervisor). 
  • Dr. John Heieck (“The emerging concept of the duty to protect under international law”, with viva in June 2016, with no correction); successfully publishing his PhD thesis is at Edgar publisher (2018), J. Heieck, A Duty to Prevent Genocide, (Elgar, 2018) (-https://www.e-elgar.com/shop/a-duty-to-prevent-genocide). 
  • Dr. Maite van Regenmorter, a viva on 17 June 2016, with only minor corrections) (primary supervisor); the title of the thesis “Provisional Release in International Criminal Law”, a viva on 6 July 2016, with minor corrections (primary supervisor); successfully publishing her PhD thesis as a monograph at one of the top publishers in francophone countries, Bruylant, M. Van Regenmorter, The international Criminal Court and the Right to Interim Release, (Brussels: Bruylant, 2018); at the International Law Report (ILR) blog, page 2, <ilreports.blogspot.fr/2017/>: 
  • Dr. Isabel Borges, a viva on 16 August 2016 at University of Oslo (principal, external supervisor). 

Currently supervising the following PhD students under my primary supervision.

Acting as the principal supervisor for: 

  • Ms Carina Lamont (‘The judiciary in post-conflict UN administration’ – since 2014 -part-time PhD)
  • Mr Matthew Wetherill (residual crimes and international criminal law; since September 2015)

Publications

Showing 50 of 62 total publications in the Kent Academic Repository. View all publications.

Article

  • Arai, Y. (2019). Unearthing the Problematic Terrain of Prolonged Occupation. Israel Law Review [Online] 52:125-167. Available at: https://doi.org/10.1017/S0021223719000037.
    This paper will explore the travaux préparatoires of the legal instruments of the laws of war and international humanitarian law (IHL) with a view to obtaining crucial insight into their drafters’ ‘original’ understandings as to the issues of the provisional nature and the temporal length of occupation. The findings of the travaux show that the framers of the ‘classic’ laws of war instruments agreed on the general premise that the legal regime of occupation ought to be provisional. In the concurrent doctrinal discourses, this premise was endorsed by most scholars. The examinations of the draft records of the 1949 Geneva Civilians Convention reveal that even the proponents of ‘transformative occupation’ did not seem to envisage the occupation of the kind that would endure for decades. Nevertheless, by the time the 1977 Additional Protocol I was crafted, several instances of protracted occupation persisted. This seemed to be decisive for a shift in the argumentative structure. There is no gainsaying the applicability of IHL to any occupied territories, irrespective of the length of occupation. Yet, the suggestion that nothing under IHL would forestall an occupying power from engaging in a long-term occupation departs from the traditional premise that occupation ought to be provisional. This also seems to be paradoxical in historical perspectives.
  • Arai, Y. (2015). The intervention brigade within the MONUSCO. The legal challenges of applicability and application of IHL. Questions of International Law [Online]. Available at: http://www.qil-qdi.org/the-intervention-brigade-within-the-monusco-the-legal-challenges-of-applicability-and-application-of-ihl/.
  • Arai, Y. (2015). The Impact of “Criminalization” on the Implementation of International Humanitarian Law — Judicial Advances of the Law of War Crimes as Salutary Osmosis?. Japanese Yearbook of International Law 2015:129-174.
  • Arai, Y. (2012). Preoccupied with Occupation – Critical Examinations of the History of the Law of Occupation. International Review of the Red Cross.
  • Arai, Y. (2011). The Principle of Humanity under International Humanitarian Law in the "Is/Ought" Dichotomy – Surreptitious, Capricious but Conscientious Meandering. Japanese Yearbook of International Law [Online] 54:333-364. Available at: http://ilajapan.org/jyil/.
  • Arai, Y. (2010). Confluence between International Humanitarian Law and International Human Rights Law - Eclectic but Effective. Kokusai Mondai (International Affairs):1-12.
  • Arai, Y. (2010). So-called Targeted Killings – Critical Analysis Through the Concept of Direct Participation in Hostilities and the Principle of Proportionality. Kokusaiho Gaiko Zassi (Journal of International Law and Diplomacy):507-553.
  • Arai, Y. (2006). ’Scrupulous but Dynamic’ - Freedom of Expression and the Principle of Proportionality under European Community Law. Yearbook of European Law [Online] 24:27-80. Available at: http://www.oup.co.uk/pdf/0-19-928537-3.pdf.
  • Arai, Y. (2005). The Revisionist Attempts to Minimize the Nanjing Massacre Are Appalling. Financial Times.
  • Arai, Y. (2004). The World Health Organisation and the Challenges of Globalization: A Critical Analysis of the Proposed Revision to the International Health Regulations. Law, Social Justice and Global Development Journal [Online] 1. Available at: http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2004_1/.
    This article critically appraises the WHO’s regulatory approach to control of infectious diseases. It focuses primarily on the International Health Regulations (IHR) in particular from the standpoint of vulnerable, developing countries. While being the most important legal instrument that the WHO has so far adopted, the IHR have been criticized, among other things, for their limited scope of application and the fact that the health measures which they provide for are based on an outmoded understanding of national sovereignty. The article seeks to evaluate whether the WHO’s first draft articles of the IHR, published in its Working Paper of 12 January 2004, can adequately meet challenges of both new and old but resurgent pathogens in the globalizing world. The author argues that, of the revisions proposed by the WHO, the establishment of a supervisory body operating a complaint-based procedure in relation to non-compliance would be the most significant means of enhancing the effectiveness of the IHR.
  • Arai, Y. (2004). Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3. Netherlands Quarterly of Human Rights 21:385-421.
    Among international human rights instruments, the rich jurisprudence on Article 3 of the European Convention on Human Rights (ECHR) has yielded meaningful and workable principles for defining the normative parameter of freedom from torture and other forms of maltreatment. While identification of torture has been limited to a small number of straightforward cases of assault giving rise to physical and mental anguish of an especially aggravated character, the overwhelming majority of cases raised under Article 3 have related to degrading or inhuman treatment or punishment. By focusing on threshold cases involving freedom from degrading treatment or punishment, the least serious absolute right under Article 3, this article seeks to delineate the boundaries of the effective guarantee provided by this absolute right in the Strasbourg organs’ judicial policy. The examination suggests an encouraging sign that the Strasbourg organs have funnelled considerable vigour and creativity into their law-making policy, elaborating on the most succinct provision in the ECHR. They have capitalized on the graduating scale of degrading treatment so as to diversify the protective scope of Article 3, in a continued search for progressive European public order. They have supplied to individual victims a horizon of possible arguments, which can unfold along lines conducive to the shaping and restructuring of the emerging European constitutional system.
  • Arai, Y. (2003). Shifting Boundaries of the Right of Self-Defence - Appraising the Impact of the September 11 Attacks on Jus Ad Bellum. International Lawyer [Online] 36:1081-1102. Available at: http://www.smu.edu/ilra/til.htm.

Book

  • Arai, Y. (2009). The Laws of Occupation– Continuity and Change in International Humanitarian Law in Its Interaction With International Human Rights Law. [Online]. Leiden: Martinus Nijhoff. Available at: https://doi.org/10.1163/ej.9789004162464.i-760.
  • Arai, Y. (2002). The Margin of Appreciation Doctrine and the Principle of Proportionality in the ECHR. Antwerp: Intersentia.
    This book analyses the case-law of the European Convention on Human Rights with particular reference to the margin of appreciation doctrine and the principle of proportionality. While the margin of appreciation has been closely associated with the notion of judicial restraint, the principle of proportionality is an interpretive device designed to restrain the power of State authorities and to provide greater protection of individual autonomy. By analysing the disparate fields in which Convention rights are raised, this book seeks to identify various policy grounds affecting the scope of margin and the standard of review. The survey reveals that there exists complex interplay of numerous judicial policies pursued by the European Court and Commission of Human Rights, belying a perceived dichotomy between judicial self-restraint and judicial activism.

    The examination of the case-law is followed by a disaggregating analysis of the margin of appreciation, an attempt that aims to elucidate criteria and rationales for the doctrines application, assisting readers better to grasp its nature. Fully incorporating the cases decided since the entry into force of the Eleventh Protocol, this book will be of interest to all academics, students and practitioners of European human rights law and international human rights law in general.

Book section

  • Arai-Takahashi, Y. (2018). Unprivileged (Unlawful) Combatants Captured on a Battlefield and the Geneva Conventions. In: Dinstein, Y. ed. Israel Yearbook on Human Rights. Brill, pp. 63-103. Available at: https://brill.com/abstract/title/39128.
  • Arai, Y. (2018). Prohibition of Misuse of Power in Restricting the Rights and Freedoms (Article 18). In: van Dijk, P., van Hoof, F., van Rijn, A. and Zwaak, L. eds. The Theory and Practice of the European Convention on Human Rights,. Intersentia Publishers.
  • Arai, Y. (2016). Protection of Private Property. In: Clapham, A., Gaeta, P. and Sassòli, M. eds. The 1949 Geneva Conventions: A Commentary. Oxford: Oxford University Press.
    This chapter analyses the protection of property in occupied territories under Article 53 Geneva Convention (GC) IV, the prohibition of pillage under Article 33 paragraph 2, and the destruction and appropriation of property as a grave breach of GC IV under Article 147. It first delineates the scope of application of the general rule under Article 53, examining how the concept of military necessity operates as an exception to this rule. It considers those rules that regulate issues of confiscation, requisition, and seizure of private property, as well as the special international humanitarian law rules that address distinct categories of property. The two final sections address the extent to which those distinct rules analysed in international armed conflict may be considered relevant in non-international armed conflict; and the violations of those rules as grave breaches under Article 147 and other germane rules of international criminal law.
  • Arai, Y. (2015). Laws and Judicial System of the Occupied Territories’ under the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War’. In: The 1949 Geneva Conventions: A Commetary. Oxford University Press, pp. 1421-1454.
  • Arai, Y. (2015). Protection of Private Property in Occupied Territories under the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War. In: Clapham, A., Gaeta, P. and Sassòli, M. eds. The 1949 Geneva Conventions: A Commentary. Oxford University Press, pp. 1515-1534.
  • Arai, Y. (2015). Law-Making and the Judicial Guarantees in Occupied Territories. In: Clapham, A., Gaeta, P. and Sassòli, M. eds. The 1949 Geneva Conventions: A Commentary. Oxford: Oxford University Press.
    This chapter analyses the protection of property in occupied territories under Article 53 Geneva Convention (GC) IV, the prohibition of pillage under Article 33 paragraph 2, and the destruction and appropriation of property as a grave breach of GC IV under Article 147. It first delineates the scope of application of the general rule under Article 53, examining how the concept of military necessity operates as an exception to this rule. It considers those rules that regulate issues of confiscation, requisition, and seizure of private property, as well as the special international humanitarian law rules that address distinct categories of property. The two final sections address the extent to which those distinct rules analysed in international armed conflict may be considered relevant in non-international armed conflict; and the violations of those rules as grave breaches under Article 147 and other germane rules of international criminal law.
  • Arai, Y. (2015). Excessive Collateral Civilian Casualties and Military Necessity: Awkward Crossroads in International Humanitarian Law (IHL) between State Responsibility and Individual Criminal Liability. In: Chinkin, C. and Baetens, F. eds. Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford. Cambridge University Press, pp. 325-339. Available at: https://www.cambridge.org/gb/academic/subjects/law/public-international-law/sovereignty-statehood-and-state-responsibility-essays-honour-james-crawford?format=HB&isbn=9781107044258.
  • Arai, Y. (2014). A Battle over Elasticity – Interpreting the Concept of ‘Concrete and Direct Military Advantage Anticipated’ under International Humanitarian Law. In: Haeck, Y., McGonigle Leyh, B., Burbano Herrera, C. and Contreras Garduno, D. eds. The Realization of Human Rights: When Theory Meets Practice. Antwerp: Intersentia, pp. 351-368.
  • Arai, Y. (2014). Human Rights and Humanitarian Law – Diagnosis of the Complex Interplay. In: Mihr, A. and Gibney, M. eds. Handbook on Human Rights. Sage Publishing.
  • Arai, Y. (2014). Article 10: Freedom of Expression. In: Harris, D. J., O’Boyle, M., Warbrick, C., Bate, E. and Buckley, C. M. eds. Law of the European Convention on Human Rights. Oxford: Oxford University Press, pp. 443-514. Available at: http://ukcatalogue.oup.com/product/9780406905949.do#.
  • Arai, Y. (2013). The margin of appreciation doctrine: a theoretical analysis of Strasbourg’s variable geometry. In: Follesdal, A., Peters, B. and Ulfstein, G. eds. Constituting Europe - the European Court of Human Rights in a National, European and Global Context. Cambridge University Press, pp. 62-105.
  • Arai, Y. (2013). European Court of HumanRights in a National, European and International Context. In: European Court of HumanRights in a National, European and International Context. Cambridge University Press.
  • Arai, Y. (2013). Proportionality. In: Shelton, D. ed. The Oxford Handbook of International Human Rights Law. OUP, pp. 446-468.
  • Arai, Y. (2012). Disharmony in the Process of Harmonisation? – The Analytical Account of the Strasbourg Court’s Variable Geometry of Decision-making Policy Based on the Margin of Appreciation Doctrine. In: Andenas, M. and Anderson, C. eds. Theory and Practice of Harmonisation. Edward Elgar Publisher.
  • Arai, Y. (2010). Rationalizing the Differentiation between ’New’ and ’Old’ Minorities? - The Role of the Margin of Appreciation Doctrine in Determining the Scope of Protection of Minority Rights. In: Henrard, K. ed. Double Standards Pertaining to Minority Protection. Leiden: Brill, pp. 219-242.
  • Arai, Y. (2009). Article 10 Freedom of Expression. In: Harris, D. J., O’Boyle, M., Warbrick, C. and Bate, E. eds. Law of the European Convention on Human Rights. London: Oxford University Press, pp. 443-514.
  • Arai, Y. (2009). Law of the European Convention on Human Rights. In: Law of the European Convention on Human Rights. OUP.
  • Arai, Y. (2008). Fair Trial Guarantees in Occupied Territory – the Interplay between International Humanitarian Law and Human Rights Law. In: Arnold, R. and Quénivet, N. eds. International Humanitarian Law and Human Rights Law – Towards a New Merger in International Law,. Martinus Nijhoff Publishers, pp. 449-474.
  • Arai, Y. (2008). The Applicability of International Humanitarian Law to so-called ‘European Union Forces’ – Legal Challenges So Far and Ahead. In: Tanaka, T. and Shoji, K. eds. The Governance of the European Union and Its Policy-Decision Making Process (EU Gavanansu to Seisaku-Keisei). Tokyo: Keio University Press.
  • Arai, Y. (2006). The System of Restrictions. In: van Dijk, P. and van Hoof, F. eds. The Theory and Practice of the European Convention on Human Rights. Oxford: Hart, pp. 333-350.
  • Arai, Y. (2006). Right to an Effective Remedy before a National Authority (Article 13). In: van Dijk, P. and van Hoof, F. eds. The Theory and Practice of the European Convention on Human Rights. London: Hart Publications, pp. 997-1026.
  • Arai, Y. (2006). Restrictions on the Political Activity of Aliens (Article 16). In: van Dijk, P. and van Hoof, F. eds. The Theory and Practice of the European Convention on Human Rights. London: Hart Publications.
  • Arai, Y. (2006). Prohibition of Abuse of the Rights and Freedoms Set Forth in the Convention and of Their Limitation to a Greater Extent Than is Provided for in the Convention (Article 17). In: van Dijk, P. and van Hoof, F. eds. The Theory and Practice of the European Convention on Human Rights. London: Hart Publications.
  • Arai, Y. (2006). Prohibition of Misuse of Power in Restricting the Rights and Freedoms (Article 18). In: van Dijk, P. and van Hoof, F. eds. The Theory and Practice of the European Convention on Human Rights. London: Hart Publications, pp. 1077-1100.

Internet publication

  • Arai, Y. (2010). Leopold a Hero? Many Disagree [Newspaper]. Available at: http://www.ft.com/home/uk.

Review

  • Arai, Y. (2017). Etienne Henry, Le Principe de nécessité militaire – Histoire et actualité d’une norme fondamentale du droit international humanitaire. Journal of Conflict and Security Law [Online] 22:563-566. Available at: https://doi.org/10.1093/jcsl/krx012.
  • Arai, Y. (2008). A Book review of K. Shoji (ed), EU Law –Practitioners’ Guide (EU-Ho Jitsumu-hen). Journal of the Japanese Institute of International Business Law 36:795.
  • Arai, Y. (2007). Journal of International Law of Peace and Armed Conflict. The Procedures Before the UN Human Rights Treaty Bodies – Divergence or Convergence?:1-2.
  • Arai, Y. (2007). A Study of the European Convention and the South African Bill of Rights. Netherlands Quarterly of Human Rights:378-382.
  • Arai, Y. (2005). Book Review. Public Administration:208-210.
  • Arai, Y. (2005). Public Law. Public Law:208-210.

Thesis

  • Heieck, J. (2016). Everything Within Their Power: The P5’s Duty to Prevent Genocide.
    The corpus of the duty to prevent genocide was partially circumscribed for the first time in a court of law in the 2007 Bosnian Genocide case. In that case, the International Court of Justice adopted the due diligence standard to define the scope of the duty to prevent genocide. This standard provides that if a State has the capacity to effectively influence genocidal actors and the knowledge that there exists a serious risk that genocide may occur, then that State must do everything within its power - everything within the means available to it - to prevent the genocide from occurring. While the Court's holding in the Bosnian Genocide case was an important step in the normative development of the duty to prevent genocide, the Court nevertheless neglected to expound the full extent of the scope of the due diligence standard. For instance, the Court's holding did not address whom among the several States of the international order must act, and how such States once identified must act when the duty to prevent genocide is triggered. This dissertation attempts to do so.

    First, it provides an overview of the obligations laid out it in the Genocide Convention, and expounds the significance of the due diligence standard in the prevention of genocide. Second, it identifies the central role to be played in genocide prevention by the five permanent members of the Security Council (the P5), which, as the 'great powers' of the international order, have the greatest capacity to not only effectively influence genocidal actors but also to remain informed about imminent or ongoing genocides. Third, it explores the manner in and the extent to which the P5 must act within and without the Security Council when faced with an imminent genocide, as dictated by the due diligence standard. Finally, it analyzes the standing of the duty to prevent genocide under customary international law and dispels, through a conflict of norms analysis, any doubts arising from possible conflicting obligations held by the P5 under the UN Charter, in favor of their ultimate duty to prevent the occurrence of genocidal acts.

    Ultimately, the findings described in this dissertation have significant consequences for not only the duty to prevent genocide, but also the responsibility to protect doctrine, the responsibility not to veto initiative, and the prohibition of the use of force in general. They go beyond the soft spoken political commitments to protect national, ethnic, racial, or religious groups from what has been considered 'the crime of crimes', to flesh-out the self-standing legal value of the duty to prevent genocide, and the consequences thereof to the international community at large. As a result, Everything Within Their Power: The P5's Duty to Prevent Genocide will be of particular interest to scholars and students of international law and international relations.

Forthcoming

  • Arai, Y. (2019). Teasingly Inconclusive? – Teasing out From the Travaux Preparatoires the Drafters’ Intentions on the So-called ‘Homeland Battlefield Unprivileged Belligerents’ Under the 1949 Geneva Conventions. Israel Yearbook on Human Rights [Online]. Available at: https://home.heinonline.org/titles/Brill-Nijhoff-Journal--Yearbook-Collection/Israel-Yearbook-on-Human-Rights/?letter=I.
  • Arai-Takahashi, Y. (2018). Combatants on Board Medical Aircraft Who fall into the hands of a neutral Power – the scope of their liability to detention under the 1949 Geneva Conventions and the 1977 Additional Protocol I. In: Bhuiyan, J. H. and Khan, B. eds. Seventy Years After the Geneva Conventions. Brill.
  • Arai-Takahashi, Y. (2018). The Writing on the Wall: Rethinking the International Law of Occupation by Aeyal Gross. American Journal of International Law:1-5.
  • Arai, Y. (2015). Restrictions on the Political Activity of Aliens (Article 16). In: van Dijk, P., van Hoof, F., van Rijn, A. and Zwaak, L. eds. Theory and Practice of the European Convention on Human Rights, 5th Ed. Oxford: Hart.
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