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Scottish Independence and the European Union

Published on October 31, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg 

Recent events in a number of European States have pushed the issue of secession up the political agenda.  In Catalonia, the ruling Convergencia i Unio party has announced its intention to hold a referendum on Catalan independence if it wins the forthcoming regional elections, despite the Spanish government’s claim that such action would be illegal.  In the United Kingdom, the Westminster and Edinburgh governments have agreed to the holding of an independence referendum in 2014. In neither case, however, does there seem to be a wish to combine independence with an exit from the European Union. The Scottish National Party (SNP), in particular, have long campaigned on the slogan ‘Independence in Europe’, seeking to persuade voters that they can have the best of both worlds: Scottish independence and EU membership.

In recent years, however, the SNP have quietly modified their position.  Instead of arguing that an independent Scotland would automatically be a member of the European Union, it now claims that it is ‘inconceivable’ that it would not become one.  This reflects a hard truth.  Although as a matter of politics, it may seem inconceivable that an independent Scotland -or an independent Catalonia – would not take its place as an EU member; legally there is no automaticity about the matter at all.  Succession to membership of international organisations (which the EU must, for these purposes, be classed as) is governed by international law.  International law provides that membership of international organisations is governed by the rules of each organisation.  And the Treaty on European Union does not provide for succession to membership.

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International Law Trivia: The Winners

Published on October 28, 2012        Author: 

Readers will recall that last month I had a series of posts asking trivia questions relating to international law (see here). Many of those questions related to the practices of international tribunals and the International Court of Justice in particular. The questions had a special focus on voting practices at international tribunals. Before I started the series, I promised a prize for one person who was successful in answering the trivia questions. The prize is a years free subscription to the European Journal of International Law. I apologize for not getting round to announcing the winner till now. In fact we have two prize winners!

Our first winner is Tamás Hoffmann (left) who is Lecturer in law at the Corvinus University of Budapest, Hungary. Tamás has a PhD from ELTE Budapest and an LLM in Public International Law from King’s College London. He responded to most of my questions and got his answers correct. His depth of knowledge of ICJ and PCIJ cases is very impressive indeed.

Our second winner is Daniel Wisehart (right), licence en droit, First State Exam completed in 2012, who studied at the University of Potsdam and the Universié Paris Ouest La Défense. He is currently a PhD Candidate at the University of Potsdam and working as an associate with  Professor Robin Geiß on legal problems surrounding international drug control. Daniel also responded to most questions but we were particularly impressed with his response to my question on cases at the ICJ where no judge has issued an individual opinion (separate or dissenting). Not only was he able to give the answer with regard to the ICJ he also pointed out the position at the PCIJ, noting that in the 1920s most PCIJ decision were issued without individual opinions but that this changed in the 1930s. He then offered a reason why the practice might have changed. Tamas then followed up with a further explanation.

Congratulations to both of them!

 

UK Government Rejects Pre-emptive Self Defence With Respect to Iran

Published on October 26, 2012        Author: 

The Guardian reports that the United Kingdom has denied a United States request to use UK military bases in Cyprus as well as in the Atlantic and Indian Oceans for a buildup of military forces in the Gulf. Apparently, the US requests have been made as part of ‘routine’ contingency planning for potential military action against Iran. In rejecting the US requests, British Ministers are reported to have acted on legal advice from the UK Attorney General to the effect that preemptive military action would be unlawful under international law.

According to The Guardian:

‘[British Ministers and Downing Street]have pointed US officials to legal advice drafted by the attorney general’s office and which has been circulated to Downing Street, the Foreign Office and the Ministry of Defence.

It states that providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law on the basis that Iran, which has consistently denied it has plans to develop a nuclear weapon, does not currently represent “a clear and present threat”.

“The UK would be in breach of international law if it facilitated what amounted to a pre-emptive strike on Iran,” said a senior Whitehall source. “It is explicit. The government has been using this to push back against the Americans.”

Sources said the US had yet to make a formal request, and that they did not believe an acceleration towards conflict was imminent or more likely. The discussions so far had been to scope out the British position, they said.’

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No Detente on Prisoner Voting and the ECHR in the UK

Published on October 24, 2012        Author: 

In the wake of the European Court’s judgment last May in Scoppola v. Italy, in which it more or less gutted its prior cases on prisoner voting rights (see my previous post on prisoner voting and strategic judging for more background), the UK governmental structures have been debating how to respond in their long-drawn out altercation with Strasbourg. Scoppola essentially gave the UK an opening to end the dispute – all it needed to do to comply with the Court re-interpreted judgment in Hirst was to pass some essentially cosmetic changes to its existing legislation that would ‘strike the proper balance’.

The opportunity is not yet completely lost, if cooler heads prevail. The UK government is of course not monolithic, and some parts thereof would rather put the whole thing to rest. But that process is political more than it is legal, and after today’s performance by David Cameron at the PM questions in the House of Commons, a detente between the UK and Strasbourg seems increasingly unlikely.

“No one should be under any doubt – prisoners are not getting the vote under this government,” he told MPs, in answer to a leading question by a Labour MP strongly urging him to continue defying the Court. The whole exchange is available at BBC News, and the short video bears watching, if nothing else then for witnessing the extent of the cheers among the assembled parliamentarians in support of the Prime Minister’s position.

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After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Published on October 24, 2012        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

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Grand Chamber Judgment in Catan and Others

Published on October 21, 2012        Author: 

On Friday the European Court of Human Rights delivered its Grand Chamber judgment in Catan and Others v. Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, yet another case on the ECHR’s extraterritorial application, dealing in particular with the Convention’s application to the separatist republic of Trandniestria in Moldova (link to judgment). The case is in effect a sequel to the Court’s earlier judgments on Transdniestria in Ilascu and Ivantoc, this time dealing however with a significantly different factual pattern.

The applicants were Moldovans who lived in Transdniestria and who were at the time of lodging the application pupils at three Moldovan-language schools and their parents. They complained under Article 2 of Protocol No. 1 to the Convention and Article 8 of the Convention, taken alone and in conjunction with Article 14 about the closure of their schools and their harassment by the separatist Transdniestrian authorities. The reason for this harassment was basically a policy of Russification by the Transdniestrian authorities whereby schools in the region could only operate in and teach the Moldovan (i.e. Romanian) language as written in the Cyrillic alphabet, rather than the much more commonly used Latin one. In short, the applicants’ education became embroilled in language politics, very similar for instance to those in the Balkans.

What makes this case particularly interesting is the relationship between Article 1 ECHR notion of state jurisdiction, as the threshold for the existence of (all or some) state obligations under the Convention, and the attribution of conduct under the secondary rules of the law of state responsibility. In Ilascu, paras 392-3, the Court held that

[T]he “MRT” [Transdniestria], set up in 1991-92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation. … [T]here is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian Federation’s policy of support for the regime and collaboration with it continued beyond 5 May 1998, and after that date the Russian Federation made no attempt to put an end to the applicants’ situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998.

Ilascu was notable for several reasons. First, it apparently applied the spatial model of Article 1 jurisdiction as control of an area while lowering the threshold of the needed control (the ‘decisive influence’ bit). Secondly, it completely confused jurisdiction with responsibility; it was utterly unclear from the case whether the Court considered all acts of the MRT to be attributable to Russia, apparently on the basis of a sui generis rule on attribution of conduct that hardly seemed compliant with the ILC’s work on state responsibility or the jurisprudence of the ICJ, or rather whether Russia was held responsible for failing to comply with a positive obligation to prevent human rights violations by non-state actors (the MRT) operating in an area under its jurisdiction. Third, the Court also found that Moldova had positive obligations in the MRT despite having lost control of the territory, a (human rights-friendly) ruling that in my view compromised the purely factual nature of the Art 1 jurisdictional tests for the sake of a rather vague positive obligation which did not amount to much in practice anyway.

Here comes Catan, which provided the Court with the opportunity to revisit some of these points. What distinguishes Catan and Ilascu is primarily the lapse in time with regard to the facts of the two cases, during which Russia’s control over Transdniestria arguably decreased. Moreover, unlike in Ilascu Russian authorities had no involvement in the harassment of the applicants and the interference with their right to education. The Court thus had to build upon Ilascu, and that it did, producing a rather mixed (if again human rights-friendly) outcome. In brief, it found that both Moldova and Russia retained jurisdiction over Transdniestria; that Moldova this time did comply with its positive obligations; but that Russia was to be held reponsible for a violation of Art 2 of Protocol 1, and was as a consequence liable for significant damages.

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Impact Factor – The Food is Bad and What’s More There is Not Enough of It

Published on October 19, 2012        Author: 

A loyal reader recently sent me the following email:

Just a quick note to let you know that EJIL and I.CON get the first and third position respectively in the general ranking of NON US Law Journals elaborated by Washington and Lee University School of Law (sections non US law journals) http://lawlib.wlu.edu/LJ/index.aspx  Congratulations!

The only reason I was happy to learn this exciting news was that no one will be able to dismiss what I am about to write as prompted by ‘sour grapes’.

But let us backtrack a bit. I invite you to visit this Washington and Lee University School of Law website. It requires some getting used to, especially in setting the search parameters. Experiment a bit (after you read this Editorial!) In its own way it is admirable and provides an important tool for legal academics. Its purpose is simple enough. When an author has to choose in which journal to publish his or her article, is there a way of making a choice based not on an impression of prestige or importance but on some hard data on readership, citations, impact (whatever that may mean) and the like? This meticulously constructed database (not the most user friendly, but it should not be a challenge to smart law professors and the like) tries to help in this worthy endeavour. In the USA, in which most, though not all, law journals are edited by students and associated with a law school, the typical choice used to be based on the ‘ranking’ of the law school with which the journal is associated. The Washington and Lee database tracks instead impact through citation and shows the law school ranking (itself a problematic notion) to be a crude and approximate measure. Especially when it comes to specialized, rather than ‘general’, law journals, the law school ranking is a bad proxy for readership and influence.

Like credit rating agencies, there is more than one outfit which tries to provide this service. The Washington and Lee database is interesting since, aware of the problematic nature of establishing criteria for influence, it allows the user to vary the parameters according to which tables of influence will be generated. The overall methodology seems to be the same: an electronic database of legal journals is selected and then citations to articles are computed. Simply counting citations, might, however, skew the impression of influence of a journal. You might, for example, have one or two highly cited articles published by this or that journal whereas almost everything else is hardly ever cited, and yet those one or two star pieces could skew the overall influence ranking of the journal compared to others. Read the rest of this entry…

Filed under: Editorials, EJIL, Journals
 
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EJIL – the Beginning of an Existential Debate & Masthead Changes

Published on October 19, 2012        Author: 

At the last meeting of our Editorial and Scientific Advisory Boards I announced the beginning of a discussion which, in my view, will be the most fateful for the future of EJIL since its founding 23 years ago. There are two linked issues which inform this discussion and they can be stated simply enough, though resolution and decision will be anything but simple.

Should EJIL continue to be published in both hard copy and digital versions or should it move to digital only? And should EJIL continue to be published by an academic press such as our current publisher, OUP, or should it become self-publishing?

The two issues are linked because if we decide that there is virtue (my current belief, but increasingly a minority one, I suspect) in continuing to publish a hard copy paper version of EJIL, then we will have to continue to use the services of an academic or commercial press (the distinction between the two is increasingly blurred these days).

The principal case for going ‘digital only’ is that if we did that we could offer EJIL, in the very same form it is published today, as a free service to the whole world and simply abolish subscriptions, following the admirable model of the German Law Journal. To do this, we would have to cut our ties with OUP since, given the costs of running a big press like OUP, even the digital only’ option would entail very considerable subscription rates both to institutions and individuals. Read the rest of this entry…

Filed under: EJIL, EJIL Analysis, Journals
 

EJIL Volume 23, Issue 3: In this Issue

Published on October 18, 2012        Author: 

The latest issue of EJIL (Vol, 23, Issue no. 3) has just been published. We open this issue with an article by Alan Boyle, who grapples with the future of environmental protection in international law viewed from a human rights law perspective and in relation to three different aspects (i) procedural rights, (ii) the controversial notion of a right to a decent environment, and (iii) the extraterritorial application of existing human rights treaties to transboundary pollution and climate change. In all three fields, two related questions appear fundamental: Would it be appropriate to go beyond a mere greening of the existing human rights law coupled to a judge-made law approach? If so, which international institutions, mechanisms and instruments could or should be mobilized?

If the plurality of legal orders is undeniably one of the parameters to take into account when answering these questions, it is also an issue which lies at the basis of the Symposium organized by the American and European Societies of International Law (ASIL and ESIL), with additional support from the Hague Institute for the Internationalisation of Law (HiiL) Project on Transnational Private Regulation, and published in this issue. The symposium, regrouping the contributions of Fabrizio Cafaggi, David D. Caron, Daniel Bodansky, Gregory Shaffer, Francesco Francioni, Petros C. Mavroidis, Elisa Morgera, and André Nollkaemper, aims indeed to define the multi-faceted notion of global public goods (GPG). Foundational issues are thus discussed, such as the conceptual and analytical frameworks for understanding GPG; the modes and technologies of protection of GPG and the related governance and legitimacy issues that such techniques raise; the value that the concept of GPG adds to discourse within international law, and vice versa, the value that an international law perspective adds to our understanding of GPG. These foundational issues are also discussed through analysis of specific instantiations of GPG, such as international cultural goods, free trade, and environmental protection.

EJIL symposia allow our Editorial Board and Scientific Board to discharge their responsibility of introducing into the public discussion issues that we consider of importance but which the normal mail box may not necessarily throw our way, and certainly not in the sustained, probing way that a symposium can. I trust and hope that you share my view that it was high time that the relationship between global public goods and international law were aired in such a way. Read the rest of this entry…

Filed under: Editorials, EJIL, Journals
 
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“International Law Weekend” New York City, Oct. 25-27

Published on October 17, 2012        Author: 

International Law Weekend 2012 – the premier international law event of the fall season, will be held on October 25-27, 2012, in New York City. The overall theme of ILW 2012 is Ideas, Institutions, and Interests – Dynamics of Change in International Law. International Law Weekend is sponsored and organized by the American Branch of the International Law Association (“ABILA”).

The unifying theme for this year’s meeting is to explore the mechanisms of change in international law. The weekend opens at 6:30 p.m. Thursday, October 25 at the New York City Bar Association at 42 West 44th Street, in mid-town Manhattan with a blazing panel on China — with former U.S. Ambassador to China Winston Lord, NYU Law School human rights expert Jerome Cohen, China environmental expert Liz Economy of the Council on Foreign Relations, legal eagle John Crowley of Davis, Polk and Wardwell, and Professor Ben Liebman of Columbia Law School — followed by a free cocktail reception.

It continues 9 a.m. Friday October 26 at the Lincoln Center campus of Fordham Law School, 140 West 62nd Street — with a Conversation with famed former SDNY U.S. Attorney and Debevoise litigation chief Mary Jo White, who indicted Bin Laden and pursued Siemens for foreign corrupt practices; a Lecture by the chief Yugoslav tribunal war crimes judge Ted Meron; a two-part series on ICSID investment arbitration with ICSID secretary general Meg Kinnear; and a talk by blind Chinese human rights activist Chen Guangcheng. Read the rest of this entry…

Filed under: Conference, EJIL Reports
 
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