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EJIL: In this Issue; Emma Thomas – May the Force Be With You!; EJIL Roll of Honour

Published on January 24, 2017        Author: 

This issue opens with an EJIL: Keynote article, in which Philippe Sands contemplates the ends (and end) of judicialization. Based on his lecture at the 2015 ESIL annual conference in Oslo, it forms a fitting introduction to an issue that addresses overarching questions of legitimacy in international law, from the reception of international law in Asia to strong reactions to the idea of global governance by the WTO judiciary. An EJIL: Live! interview with Philippe Sands (posted earlier this week) complements the article.

This issue’s first regular article is Vincent Chetail’s critique of the dominant narrative of migration control, drawing on early doctrines of the law of nations regarding the free movement of persons across borders, and thus offering an innovative path for rethinking this critical contemporary issue. In another example of looking back in order to confront difficult issues of today, Jan Lemnitzer draws on original archival research to propose the adoption of an adversarial model of a commission of inquiry for investigating the downing of flight MH17.

We are pleased to present in this issue a Symposium comprising three articles giving attention to international law in Asia. Simon Chesterman explores the reasons for Asia’s under-participation and under-representation in international law and institutions, and predicts greater convergence and presence of Asia in global governance. Melissa Loja looks to archival records in order to shed new light on one of the most pressing questions of international law in Asia: the Senkaku/Diaoyu Islands dispute. And Zhiguanq Yin’s article focuses on the translation of international law in the 19th century into China, thereby questioning the universality of Euro-centric jurisprudence. Read the rest of this entry…

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New Issue of EJIL (Vol. 27 (2016) No. 4) – Out Next Week

Published on January 24, 2017        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

On My Way Out IV – Teaching; Emma Thomas – May the Force Be with You!; EJIL Roll of Honour; In this Issue

EJIL: Keynote

Philippe Sands, Reflections on International Judicialization

Articles

Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel

Jan Martin Lemnitzer, International Commissions of Inquiry and the North Sea Incident: A Model for an MH17 Tribunal? Read the rest of this entry…

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France Legislates on State Immunity from Execution: How to kill two birds with one stone?

Published on January 23, 2017        Author: 

France has never legislated on State immunity to the same extent as the US, UK and other countries. Instead, sovereign immunity under customary international law has been mainly governed by case law, save for two little known provisions: Article 111-1 of the civil enforcement procedures code providing for the principle of immunity of domestic and foreign public entities, and Article 153-1 of the monetary and financial code providing for the immunity of foreign central banks and monetary authorities. Even though France ratified the United Nations Convention on Jurisdictional Immunities of State and their Property of 2004 (UNCSI) with Law No. 2011-734 of June 28, 2011, contrary to Japan, Spain and Sweden, France did not incorporate the Convention into domestic law. The recent decision to incorporate only Articles 18, 19 and 21 of UNCSI on immunity from execution was rather motivated by the fact that, first, the jurisprudence of the Cour de cassation had become unpredictable and, second, the French government was embroiled in diplomatic complications with foreign States. With two Articles of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and modernising economic activity of December 9, 2016, France has, on the one hand, purported to codify customary law on State immunity from execution, as reflected in UNCSI, (Article 59), a provision portrayed by its opponents as the “Putin amendment” made specifically to respond to the Russian law of 2015 which threatens to deprive foreign states of their immunity if they ignore Russia’s immunity, in particular with regard to seizures made following the aftermath of the Yukos award. On the other hand, it has enacted specific rules on execution proceedings against foreign States undertaken by so-called “vulture funds” as had been the case with the famous NML capital Ltd. v. Argentina litigation (Article 60).

This post will focus on the first of these two provisions, Article 59. Read the rest of this entry…

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New EJIL:Live! Interview with Philippe Sands on his New Book, East West Street: On the Origins of Genocide and Crimes Against Humanity

Published on January 23, 2017        Author: 

In this episode of EJIL:Live! Professor Philippe Sands, whose article on “Reflections on International Judicialization” appears in EJIL vol. 27, no. 4, speaks with the Editor-in-Chief of the Journal, Professor Joseph Weiler. Unlike other editions of EJIL: Live!, this episode offers a fascinating and moving discussion of Sands’ remarkable new book, East West Street: On the Origins of Genocide and Crimes Against Humanity.

The conversation takes viewers along the many paths of research and discovery that Sands took in writing the book, beginning from a chance invitation to deliver a lecture in Lviv in 2010. In the conversation, as in the book, Sands explores the geographical “coincidence” of his own grandfather as well as Hersch Lauterpacht, founder of the concept of crimes against humanity, and Raphael Lemkin, who invented the concept of genocide, having their origins in the small town of Lviv. He notes that the big lesson he learnt from writing the book is that in order to understand the concepts we deal with in international law, we have to understand personal histories.

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Announcements: CfP Annual Conference on WTO Law; Frankfurt Investment Law Workshop 2017; CfP Conference of the Australian and New Zealand Society of International Law; CfS UCL Journal of Law and Jurisprudence

Published on January 22, 2017        Author: 

1. Graduate Institute’s Centre for Trade and Economic Integration and Georgetown University’s Institute of International Economic Law Annual Conference Call for Papers. The Graduate Institute’s Centre for Trade and Economic Integration and Georgetown University’s Institute of International Economic Law are proud to present a call for papers for the Annual Conference on WTO Law, to be held in Geneva from June 9-10, 2017. For details, please see the announcement here.

2. Frankfurt Investment Law Workshop 2017: Oceans and Space: New Frontiers in Investment Protection? For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. With activities ranging from energy production at sea via deep seabed mining to space mining, spacefaring and space tourism, areas beyond territorial sovereignty increasingly attract foreign investment. These investments raise questions that go to the core of investment law, but have so far hardly been explored, such as: How are commercial activities on the oceans or in space protected against political risk? What law, if any, protects them, and how does it balance commercial interests against regulatory concerns? How can disputes be settled in an effective and balanced manner? The 2017 Frankfurt Investment Law Workshop will offer a systematic analysis of these issues by inquiring into traditional sources of investment protection, and by addressing the interaction of the law of the sea, space law and international investment law. The Workshop will bring together academics and practitioners. The Workshop program is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see here, here, here and here. If you are interested in attending, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt at S.Schimpf {at} jur.uni-frankfurt(.)de by 28 February 2017.

3. 25th Annual Conference of the Australian and New Zealand Society of International Law Call for Papers. A Call for Papers has been announced for the 25th Annual Conference of the Australian and New Zealand Society of International Law,  which is on the subject of “Sustaining the International Legal Order in an Era of Rising Nationalism.” The Conference will take place from Thursday 29 June to Saturday 1 July 2017 at Hotel QT Canberra, 1 London Circuit, Canberra, Australia. The Conference Organising Committee invites proposals for papers to be presented at the conference, either individually, or as a panel. The deadline for paper and panel proposals is 24 February 2017. For further details please see here. Read the rest of this entry…

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Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

Published on January 20, 2017        Author: 

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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New EJIL: Live! Interview with Simon Chesterman on Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures

Published on January 19, 2017        Author: 

A new episode of EJIL: Live!, the Journal’s official podcast, is now available. In this episode the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Simon Chesterman, Dean and Professor at the National University of Singapore, about his article, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures”, which appears in EJIL, Volume 27, Issue 4.

The conversation takes up the issues advanced by Chesterman in his article on Asia’s ambivalence to international law and institutions, and explores them further. Taking as its starting point the paradox of Asia benefiting most from international law and global governance institutions whilst remaining the least likely to participate in such institutions, the conversation looks at the historical and other reasons for this ambivalence and moves on to discuss possible futures for the involvement of Asian states in international law institutions.

The interview was recorded at the National University of Singapore.

 

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International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

Published on January 19, 2017        Author: 

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian. Read the rest of this entry…

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The UK Supreme Court’s Blockbuster Decision in Belhaj

Published on January 18, 2017        Author: 

The UK Supreme Court has resoundingly rejected the contention that state immunity and/or foreign act of state barred courts from hearing claims of UK complicity in abduction and torture. The judgment in Belhaj & Rahmatullah (No 1) v Straw & Ors [2017] UKSC 3 – just one of three “blockbuster” decisions handed down in yesterday’s bonanza- has finally cleared the way for these important claims to be tried.

The facts of the cases are well known (and are set out in more detail in this post on the Court of Appeal’s judgment). In short, Abdul-Hakim Belhaj and his pregnant wife allege that UK security services cooperated with US and Libyan authorities in their unlawful rendition in 2004 and their subsequent detention and torture. Mr Rahmatullah, a Pakistani national, was detained by UK forces in Iraq, also in 2004, before being transferred to the custody of US forces, at whose hands he was allegedly tortured. Mr Belhaj was detained by the Gaddafi regime for six years; Mr Rahmatullah was held at Bagram air base for ten years.

There are many striking features of the Supreme Court’s judgment. These include Lord Sumption’s careful discussion of jus cogens; the surprisingly short shrift given to the government’s argument based on state immunity; and the strident dismissal of the argument that UK courts should refrain from adjudicating on foreign acts of state where doing so would embarrass the UK in its international relations (per Lord Mance at [11](iv)(d)]; Lord Neuberger at [134]; and Lord Sumption at [241]). In these brief initial comments, I focus on the doctrine of foreign act of state, which was characterised differently by each of Lord Mance, Lord Sumption and Lord Neuberger (notwithstanding that they agreed in the result).

To the extent that the opinions differ on foreign act of state, it is Lord Neuberger’s view that binds, since he attracted Lord Wilson, Lady Hale and Lord Clarke to his side. So, a majority, but by a hair’s breadth: in their brief, almost parenthetical opinion, Lady Hale and Lord Clarke described Lord Mance and Lord Neuberger as having reached “the same conclusion… for essentially the same reasons”. That word, “essentially”, is capable of masking quite a lot, as the discussion which follows will show. Read the rest of this entry…

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Filed under: State Immunity, Torture