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Dr. Amanda Perreau-Saussine Ezcurra

Published on December 28, 2012        Author: 

Patrick Capps is Professor of International Law at the University of Bristol.

Amanda Perreau-Saussine Ezcurra

At the time of her death, Amanda Perreau-Saussine Ezcurra  (right) held the posts of Fellow of Queens’ College, and University Lecturer in Law, at the University of Cambridge. She wrote and taught jurisprudence, public international law and public law. She lost her battle with cancer on 1 August 2012, aged 41. I have been asked by Iain, Marko and Dapo to write something about her life and career. While able to count Amanda as a good friend and colleague, I will restrict this comment to a consideration of her written contribution to legal scholarship. I will not comment on Amanda’s life or faith, except to note that she was a devout Catholic. Amanda may have approved: in an essay in the 2006 University of Toronto Law Journal, while reflecting upon Nicola Lacey’s biography of HLA Hart, she wrote that she was sceptical about the relevance of the subject’s personal beliefs when writing intellectual biography. While she may well be correct to take such a view about Hart, I am not convinced that it can equally be applied to the relationship between her faith and work. But this said, I do not feel qualified to judge either way.

As mentioned, Amanda’s published work is in the areas of jurisprudence, public international law and public law.

 

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A Report on the Possibility of Future Somali Piracy Prosecutions in Mauritius

Published on December 26, 2012        Author: 

M_STERIO.jpgMilena Sterio is Associate Professor at the Cleveland-Marshall College of Law.

Much has been written about Somali piracy.  Academics on this forum, as well as others, have debated the best options for the prosecution of suspected Somali pirates.  Most pirates are detained by powerful navies of maritime nations, such as the United Kingdom, Denmark, the Netherlands, or by joint maritime fleets such as the EU NAVFOR.  Yet, most capturing nations are not interested in prosecuting detained pirates in their national courts under true universal jurisdiction, because such prosecutions are expensive, logistically difficult and politically unattractive.  In order to avoid the undesirable policy of catch-and-release, maritime nations concluded transfer agreements with regional states interested in opening their national courtroom doors to Somali piracy prosecutions.

Over the past five years, transfer agreements have been concluded with Kenya and the Seychelles, and dozens of successful prosecutions have taken place in Mombasa and in Victoria.  Mauritius joined the “club” or piracy prosecuting nations recently, by concluding similar transfer agreements with the United Kingdom and the European Union; apparently a transfer agreement is also being negotiated with the United States.  However, as of today, Mauritius has not actually accepted any detained pirates for prosecution purposes.  Professor Michael Scharf of Case Western Reserve University School of Law and I visited Mauritius from December 3- December 7, where we met with various government officials in order to advise them on best strategies for future Somali piracy prosecutions in Mauritian courts.  While I have already blogged about Professor Scharf’s and my trip to Mauritius, I will take this opportunity to explore differences between Mauritius and the two other prosecuting venues, Kenya and the Seychelles, and to recommend that Mauritius consider beginning prosecutions in the very near future.

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The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

Published on December 24, 2012        Author: 

André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.

On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.

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Why the Gotovina Appeals Judgment Matters

Published on December 21, 2012        Author: 

Jens David Ohlin is Associate Professor of Law at Cornell Law School. He is the co-editor of Targeted Killings: Law and Morality in an Asymmetrical World (OUP 2012).  Cross-posted at LieberCode.

When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region.  In Serbia, the decision was met with consternation, anger and resentment.  In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.

As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success.  The decision fueled resentment among Serbs who view the tribunal as victors’ justice.  And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare. For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.

From a legal perspective, the Appeals decision is also a worrisome development.  The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality.  The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target.  These are simple principles, but they are difficult for courts to apply in practice.  Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY.  The Gotovina Trial Chamber Judgment was one of the few.  And now that verdict has been overturned.

I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.

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Catalonian Independence and the European Union

Published on December 20, 2012        Author: 

This post is part of an editorial that appears in the issue of EJIL (Vol. 23/4) that is published today

‘Vive le Québec libre!’ Who can forget de Gaulle’s mischievous and irresponsible speech in July 1967 during his visit to that hapless province, a catchphrase which has become since then the eternal rallying cry for Western tribalism. And now, joining the ever lengthening queue is Catalonia – the subtext of whose recently called elections is, once again, ‘independence’. The Basques are lurking in the background and the Scots are not even lurking but quietly forging ahead. And there is ‘Padania’ led by the awful Lega Nord in Italy, and the list does not end there.

Feeding this frenzy for secession and independence in Europe is the premise that all these new states will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted, the rough seas of ‘going it alone’ far more threatening. The Canadian Supreme Court, in its careful and meticulous decision on Quebec the reasoning of which remains valid today, clearly showed that none of these cases enjoy a right of secession under public international law, since all of them enjoy extensive individual and collective liberties enabling the full vindication of their national and/or cultural identity within their respective states.

But the issue is not one of rights, of law. It is simply ethically demoralizing to see the likes of Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the break-up of the Ottoman and the Austro-Hungarian Empires. These arrangements were well-intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Make no mistake, I am not suggesting for one minute that anyone in Catalonia is an ethnic cleanser. But I am suggesting that the ‘go it alone’ mentality is associated with that kind of mindset. Read the rest of this entry…

 

Slouching towards the Cool War

Published on December 19, 2012        Author: 

This post is part of an editorial that will appear in the issue of EJIL (Vol. 23/4) that will be published tomorrow.

It was a feature of the Cold War that the Security Council was essentially immobilized in its principal functions under Chapter VII and at times Chapter VI. Since most conflicts were refracted through the dichotomous politics of the Super Powers and at times protagonists were little more than clients of the antagonists of the Cold War, both holding the veto, the Security Council was at best a place to hear canned ideological speeches before washing such down in one of NYC’s more salubrious eateries surrounding the Shoebox.

The year 1989 ushered in a different politics and a different paradigm. Suddenly, though far from perfect, the Security Council was no longer that dead letter of the past, with important initiatives carried out under its auspices and with its authority. The difference between Iraq I and Iraq II was telling: Iraq II was not a regress to the Cold War, a sign of failure and irrelevance. Iraq II was a functioning Security Council exercising its authority to say – at best or worst – a muted No.

The wars and bloodshed that trouble us most now are no longer the surrogate conflicts of the Cold War, internal or international. One is most concerned with dreadful and savage internal conflict, which can no longer with any credibility come under the gruesome legitimacy of ‘self-determination’, with its ‘hands off’ legal implication. Darfur in the past, and Syria – 25,000 senseless dead, 250,000 homeless and displaced and even larger numbers of external refugees – right now bracket a whole range of humanitarian catastrophes, mostly man made.

Responsibility to Protect (R2P) has featured in these pages with some fanfare, but somehow has not translated into an operational duty of action on the body at the centre of such potentialities, the Security Council. There was a moment when one thought that the locus of R2P would shift to the regional – after all, the humanitarian action surrounding Kosovo was NATO driven – circumventing, with questionable legality, the Security Council, but at least lending it the legitimacy that comes from collective and deliberative process rather than from unilateral cowboyism. But recent events in the South China Sea, and the inability of ASEAN to produce even a common communiqué, are just one of the signs that we may be entering a Cool War. No, we do not find this or that super power facing each other with arsenals at the ready, and the talk is very different. And yet, from one point of tension and global threat to another, whether Africa, the Mid East (Syria, Iran), South East Asia, the Koreas, Japan and China, the Security Council or regional bodies seem to be regularly thwarted by veto, by talk of veto, or by some other lack of consensus. The rhetoric is typically non-Cold War, but the actions begin to evoke memories. The voice is Jacob’s, but the hands are Esau’s. And suddenly we are back to the usual suspects. The Cool War upon us. Not very cool.

 
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Roll of Honour

Published on December 18, 2012        Author: 

This post is part of an editorial that will appear in the issue of EJIL (Vol. 23/4) that will be published this week

In a recent Editorial, both in EJIL and I.CON, I inveighed against the difficulty of finding scholars who will agree to peer review and who, once agreed, will do it in a timely fashion and with a level of detail which enables us to take meaningful decisions.

We wish to thank the following for their efforts in 2011 and 2012. We hope we have not forgotten anyone.

Dapo Akande, José Alvarez, Stelios Andreadakis, Antony Anghie, Helmut Aust, Petra Bard, Eyal Benvenisti, Nehal Bhuta, Leora Bilsky, Michael Bothe, Kieran Bradley, Jutta Brunée, Karine Caunes, Cai Congyan, Luigi Crema, Jean d’Aspremont, Kevin Davis, Gráinne de Búrca, Katherine Del Mar, Bruno de Witte, Isabel Feichtner, Francesco Francioni, Giorgio Gaia, Kirsty Gover, Vera Gowlland-Debbas, Andrew Guzman, Laurence Helfer, Robert Howse, Jan Klabbers, Nico Krisch, Andrew Lang, Brian Lepard, George Letsas, Doreen Lustig, Marina Mancini, Petros Mavroidis, Marko Milanovic, Christoph Möllers, Sonia Morano-Foadi, Liam Murphy, Burt Neuborne, Tzvika Nissel, Georg Nolte, Alexander Orakhelashvili, Joost Pauwelyn, Jacqueline Peel, Anne Peters, Diarmuid Phelan, Arie Reich, Adam Roberts, Anthea Roberts, Iain Scobbie, Joanne Scott, Gregory Shaffer, Malcolm Shaw, Alexander Sicilianos, Bruno Simma, Guy Sinclair, Thomas Skouteris, Maya Steinitz, Alan Khee Jin Tan, Antonello Tancredi, Ruti Teitel, Ingo Venzke, Frans Viljoen, Armin von Bogdandy, Tania Voon, Matthew Waxman, Wouter Werner.

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ITLOS order Ghana to release Argentine navy ship

Published on December 17, 2012        Author: 

On 15 December, the International Tribunal for the Law of the Sea (ITLOS) ordered Ghana to release the Argentine military training vessel ARA Fragata Libertad (see oral proceedings). NML Capital, an investment company focused on distressed debt based in the Cayman Islands and owned by Elliot Associates, a US hedge fund, had earlier obtained an order from the Ghana Superior Court of Judicature (Commercial Division) to attach the Libertad moored in the port of Trema to satisfy a judgment by a US District Court for payment on defaulted Argentine bonds. The Libertad was on an official goodwill mission in Ghana’s internal waters at the time of the attachment. Read the rest of this entry…

 

EJIL Vol 23: No. 4 – In this Issue

Published on December 17, 2012        Author: 

If there remain any lingering doubts regarding EJIL’s commitment to cutting-edge scholarship – or its inveterate eclecticism – the first two articles in this issue should put them to rest. In his article, Jens David Ohlin takes a fresh and exciting look at the significance of game theory for international law. And for something completely different, Mark Neocleous makes an important contribution to critical scholarship on international law by introducing the concept of ‘primitive accumulation’, central to Marx’s account of capitalism and colonialism, into international legal theory.

Our two occasional series, Critical Review of International Governance and Critical Review of International Jurisprudence, return in this issue. In the first, Laurence Boisson de Chazournes and Edouard Fromageau analyse the judicial features and development of the World Bank’s sanction process, while Arman Sarvarian examines the ethical standards applicable to agents and counsel appearing before the European Court of Justice and the European Court of Human Rights. In the second rubric, Juliane Kokott and Christoph Sobotta reconsider that well-worked topic, the Kadi case, and find something new and interesting to say about it; their piece will help scholars and practitioners alike to frame and consider the issues to be addressed in the forthcoming second Kadi ruling.

Roaming Charges brings us back from Moments of Dignity to Places, this time Places of Kitsch, with a photograph of tell-tale signs from Orlando, California.

This issue presents a collection of essays offering diverse reflections on Nino Cassese’s last work, Realizing Utopia: The Future of International Law. All written by past and present members of EJIL’s Editorial Board and Scientific Advisory Board, the collection provides a fitting homage to our late, dearly missed colleague.

We continue with a wonderful addition to our series of Impressions, a book review rubric that invites distinguished scholars to reflect on a book that strongly influenced their intellectual development. Having rediscovered Gandhi’s Hind Swaraj Or Indian Home Rule later in his career, as he writes, B.S. Chimni reveals how insights from that text into the significance of the ethical and spiritual self might complement and correct failings in a Marxist analysis of the material structures of global capitalism.

We round out the issue with a special treat on The Last Page: Le Droit des Nations, Ode, by Eusebe Salverte. The poet was a young French republican who lived through the tumultuous times of the French Revolution and its aftermath. Having previously served briefly in the Ministry of Foreign Affairs – he was forced to resign because of his sympathy for the Revolution – he earned a living as a teacher and achieved some prominence as a writer of both fiction and non-fiction on a wide variety of topics. Later in life he enjoyed a highly successful career in politics, and was repeatedly elected to the legislature in Paris. The Ode itself was initially published as a pamphlet circa 1799, apparently in reaction to a brutal attack upon three French plenipotentiaries as they were leaving the unsuccessful Congress of Rastatt in April of that year. All but ignored for nearly 200 years, it was reprinted in its original form (including the poet’s own annotations), together with a learned introductory essay by Edward Gordon, in the 1995 Finnish Yearbook of International Law [Gordon, ‘Salverte’s Ode’, 6 Finnish YB Int’l L (1995) 479]. We thank Mr. Gordon for contributing the Ode to EJIL, and hope its appearance here will reawaken interest in the poem and its author.

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The Latest Issue of EJIL To be Published Next Week: Vol. 23 No. 4

Published on December 15, 2012        Author: 

The latest issue of the European Journal of International Law will be published in the next week. Here is the Table of Contents:

Editorial: Slouching towards the Cool War; Catalonian Independence and the European Union; Roll of Honour; In this Issue

Articles 

Jens David Ohlin, Nash Equilibrium and International Law

Mark Neocleous, International Law as Primitive Accumulation; Or, the Secret of Systematic Colonization

Critical Review of International Governance 

Laurence Boisson de Chazournes and Edouard Fromageau, Balancing the Scales: The World Bank Sanctions Process and Access to Remedies

Arman Sarvarian, Common Ethical Standards for Counsel before the European Court of Justice and European Court of Human Rights

Critical Review of International Jurisprudence

Julianne Kokott and Christoph Sobotta, The Kadi Case: Constitutional Core Values and International Law – Finding the Balance?  

Roaming Charges: Places of Kitsch: Orlando California 

Realizing Utopia: Reflections on Antonio Cassese’s Vision of International Law

J.H.H.W., Antonio Cassese: Head in the Clouds, Feet on the Ground

Marko Milanovic, On Realistic Utopias and Other Oxymorons: An Essay on Antonio Cassese’s Last Book

Hélène Ruiz Fabri, Enhancing the Rhetoric of Jus Cogens

Pierre-Marie Dupuy, Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of ‘Obligations Owed to the International Community as a Whole’

Iain Scobbie, ‘All right, Mr. DeMille, I’m ready for my close-up’: Some Critical Reflections on Professor Cassese’s ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’

Philip Alston and Colin Gillespie, Global Human Rights Monitoring, New Technologies, and the Politics of Information

Francesco Francioni, From Utopia to Disenchantment: The Ill Fate of ‘Moderate Monism’ in the ICJ Judgment on The Jurisdictional Immunities of the State

Orna Ben-Naftali, Sentiment, Sense and Sensibility in the Genesis of Utopian Traditions

Isabel Feichtner, Realizing Utopia through the Practice of International Law  Read the rest of this entry…

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