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New German Constitutional Court Decision on “Treaty Override”: Triepelianism Continued

Published on February 29, 2016        Author: 

By Court order of decision of 15 December 2015 (2BvL 1/12), published only recently, the German Constitutional Court (second Senate) has confirmed the practice of treaty override in tax law. The euphemism “treaty override” means that the German legislator adopts a law which violates a prior international treaty (often a treaty on double taxation). The Federal Tribunal on Finances (Bundesfinanzhof) had doubts about the constitutionality of this practice. It was convinced that a recent amendment of the Income Tax Act which is incompatible with a German-Turkish dual taxation treaty of 1985 is unconstitutional, exactly because it violates the treaty.

If in a pending judicial proceeding, a German court is convinced that a legal provision, which it needs to apply to resolve the case under scrutiny, is unconstitutional, that court must stay the proceeding and pose a reference question on the law’s constitutionality to the German Constitutional Court (Art. 100(1) German Basic Law). Such a reference procedure guarantees that the Constitutional Court retains the monopoly for declaring a law unconstitutional, and is thus a hallmark of the concentrated system of constitutional control in Germany.

Translation into constitutional questions
The judicial proceeding under Art. 100(1) Basic Law is available only for questions of constitutionality, not for questions of compatibility with international law. This worked, because the courts involved in fact “translated” the question of the relationship between international law and domestic law into a constitutional law question of the separation of powers and of constitutional principles: rule of law versus democracy.

The Federal Tribunal on Finances deemed the treaty override unconstitutional for violation of the rule of law and of the German constitutional principle of “friendliness towards international law” (“Völkerrechtsfreundlichkeit”).

The Constitutional Court did not follow this view. It opined that the constitutional principle of democracy (which includes the principle of discontinuity of parliament following elections) demands that the German Parliament is free to change its mind and to make or amend a law even if this violates an international treaty which had been ratified by a previous Parliament (Order of 15 Dec. 2015, paras 53-54). Read the rest of this entry…

 

Announcements: New additions to the UN Audiovisual Library of International Law; ILA British Branch Spring Conference; Senior Lecturer Vacancy, University of Essex School of Law; Call for Papers, AgLaw Colloquium

Published on February 28, 2016        Author: 

1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Concepción Escobar Hernández on “Inmunidad de jurisdicción penal extranjera de los funcionarios del Estado” and by Professor Françoise J. Hampson on “Reservations to Human Rights Treaties”.

2. ILA British Branch Spring ConferenceThis two day conference at Lancaster University, from 8-9 April 2016, will first explore the implications of non-state actors for the structure of international law: its sources, boundaries, functions and obligations, and in dispute settlement and responsibility. Secondly, it will investigate the role of prominent non-state actors: corporations, international organisations, organised armed groups and terrorist networks. For further details and registration please visit the conference website.

3. Senior Lecturer/Reader in International Human Rights Law Vacancy. The School of Law, University of Essex, is appointing a Senior Lecturer/Reader in International Human Rights Law. This is an appointment for a key role in the International Human Rights law team in the School of Law. In addition to a general expertise in the field of Public International Law, the individual will be expected to have expertise in a particular area of International Human Rights Law, International Criminal Law, International Humanitarian Law or directly related fields. See here for further details. Read the rest of this entry…

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Evidence but not Empiricism? Environmental Impact Assessments at the International Court of Justice in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica)

Published on February 26, 2016        Author: 

December 2015 was a landmark month for treaty-based developments in international environmental law, after the successful conclusion of the Paris Agreement (see Jorge Vinuales’ three-part analysis here, here, and here, and subsequent reactions from Annalisa Savaresi here and Po-Hsiang Ou here). However, one should not also overlook more modest jurisprudential developments arising from the International Court of Justice’s 16 December 2015 Judgment on the Merits in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). While the Court in this case continued to affirm as settled law that States have to conduct environmental impact assessments (EIAs) for projects that could result transboundary harm – even innovatively introducing provisional measures in 2011 that required parties to cooperate on environmental monitoring – the Court ultimately remained opaque on the method and criteria it used to assess the degree of “risk of transboundary harm” that would be sufficient to trigger a State’s obligation to conduct an EIA. It was a regrettably lost opportunity for the Court to provide practical and conceptual guidance to States on how to assess “significant risk of transboundary harm” which triggers the international legal duty of a State to conduct an EIA before starting the proposed activity.  The question of transboundary harm risk assessment has become increasingly urgent in recent years, particularly as more cross-border public-private partnership projects proliferate and States assume the international legal burden of conducting proper EIAs at the outset of any such cross-border PPP project.

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The power of 2°C: towards a new paradigm of international lawmaking?

Published on February 25, 2016        Author: 

The outcomes of the 21st Conference of the Parties (COP21) of the UN Framework Convention on Climate Change (UNFCCC) — the Paris Agreement — is widely lauded as a ‘historic’ achievement. It is still up for debate whether the new Agreement will really become a historical turning point that can lead us to a carbon neutral future, as some scientists criticised its empty promises and insufficient actions. However, one implication of the Paris Agreement is clearly ‘historic’ and should be celebrated — it is the most important international treaty adopted in the recent decade, agreed by 195 countries. Despite stagnation in international lawmaking observed by Pauwelyn, Wessel and Wouters (2014), the Paris Agreement under the UNFCCC shows that reaching a multilateral agreement is still possible. In addition to Prof Jorge Viñuales’ recent analysis, in this post I would like to discuss a key factor that makes the Paris Agreement ‘special’, i.e. a strong link between climate talks and numerical standards.

One shining star of the COP21 talks was the so-called 2-degree target — in order to prevent dangerous climate change, global mean temperature should not rise 2 Celsius degrees above preindustrial levels. The target was first recognised by the European Union (EU) in 1996 and has gradually proliferated into political debates and the public sphere (see Randall’s widely cited article for the history of the target). Now 2°C is literally everywhere in the news; CNN even has a special column called two degrees. One well-known achievement of the Paris Agreement is that not only it stresses the importance of keeping global warming ‘well below 2 °C’, but also pledges to ‘pursue efforts to limit the temperature increase to 1.5 °C’ (Article 2(1)(a) of the Agreement). 2°C has undoubtedly become the symbol of climate negotiations, and moving from 2 to 1.5 °C is considered by many as a major triumph.

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EJIL Editors’ Choice of Books 2015: Jean d’Aspremont

Published on February 24, 2016        Author: 

For all of those scholars cultivating a generalist expertise of a topic, the contents of each year’s readings can vary dramatically. For them, looking back at such readings can prove very illuminating as it can lay bare huge fluctuations in the literary and scholarly sources that serve as inspiration. In contrast to the very doctrinal works I read and reported on last year, my readings of the last 12 months have been primarily devoted to theoretical materials meant to feed into my work on the structure of legal argumentation as well as the professionalization of international law. This may explain why none of the books I list here qualifies as international legal scholarship properly so-called. Yet, in the light of the insights I gained from them, I have come to consider these books as ‘must reads’ for any generalist international lawyer interested in looking beyond the mere mechanical deployment of the formal modes of legal reasoning imposed by the discipline. These also are books that are one click away for international lawyers in wealthy parts of the world as they are published by mainstream publishers and available in most online bookstores.

Before sketching out their content, an observation is warranted on the extent to which not only the selection of our readings but also reading itself is prejudiced by the works and the projects we have in the making. What we make of what we read is very much contingent on what we expect from such materials and even more on what we hope to find therein. In this sense, when we read for scholarly purposes, we turn ourselves into hungry hunters with some pre-reflective preferences or expectations about the type of meat we want to bring home – and, thus, the type of insights we want to present in our own scholarship. The risk is thus that our prey ends up being embellished or corrupted by those pre-reflective preferences or expectations. This is why our reading is, to a large extent, performative as it constitutes the insights we gather from the materials from which we draw inspiration. This very elementary observation explains why, for each of the books mentioned below, I take pains to say a few words about my pre-reflective preferences at the moment of reading – that is, the context in which the reading was done. It may explain why colleagues, in a different context and in relation to different scholarly projects, may have made something radically different of these texts. It should finally be highlighted that my listing of the following books does not entail any value judgment about the intrinsic merit of the theses defended therein, let alone their direct transposability to international legal debates. My choices for this year should more simply be read as refreshing calls to shed some common assumptions found in international legal scholarship. Read the rest of this entry…

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EJIL Editors’ Choice of Books 2015: Jan Klabbers

Published on February 24, 2016        Author: 

Possibly the most disturbing book I have read in a long time is a brief volume written by an Italian political theorist, Roberto Farneti, under the title Mimetic Politics: Dyadic Patterns in Gobal Politics (2015). It is disturbing not for the lack of quality but, rather, for its bleak outlook. Farneti, working in a tradition often traced back to Girard, suggests that global politics is often based on mimesis: states essentially imitate one another until things spiral out of control, at which point a sacrifice is needed in order to restore relatively normal or peaceful relations, and sacrifice typically takes the form of some kind of overt conflict. Perhaps the most well-known illustration is the Cold War madness of mutually assured destruction (although the sacrifice could be averted due to the falling apart of one of the protagonists), but trade wars may also make for ever so many fine examples, never mind the sort of escalation that so often characterizes the Israel–Palestine conflict.

This is disturbing to the international lawyer (this international lawyer, at any rate), in that if Farneti is right it follows that law has little role to play and especially that responsibility and accountability would seem to be based on seriously impractical premises. Disregarding strict liability, most liberal responsibility regimes (and international law is no exception) are premised on actors acting rationally – no matter how perverse their rationalism – and acting on the basis of intentions. Yet Farneti’s argument suggests that the main operative element in state behaviour in neither ratio nor intent but simply imitation. States cannot help but follow each other’s examples, and international relations are thus bound to result in war as the ultimate sacrifice or in litigation as the sublimation of sacrifice. This helps explain the success of the World Trade Organization’s (WTO) dispute settlement body, but it may also help explain why trade wars keep on occurring: the disciplining efforts of the WTO are no match for the mimetic impulse. Read the rest of this entry…

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EJIL Editors’ Choice of Books 2015: Christian J. Tams

Published on February 23, 2016        Author: 

‘What matters now [in research on international law] is the study of the conditions under which international law is formed and has effects’, Greg Shaffer and Tom Ginsburg noted on the first page of their 2012 article on the ‘empirical turn in legal scholarship’. According to their test, the books I chose could probably be said to ‘matter’, even to ‘matter now’. In Power, Law and the End of Privateering, Jan Lemnitzer offers an exciting account of how a particular aspect of international law was formed, and Yuval Shany (Assessing the Effectiveness of International Courts) provides a framework for studying the effects of international judgments. Their two books are very different, but they both draw on social sciences research methods to elucidate prominent phenomena of international law – a treaty in Lemnitzer’s case, international courts in Shany’s. And they both are – or at least in my case were – eye-openers.

Lemnitzer’s book is that of a historian assessing an international treaty, the 1856 Declaration of Paris Respecting Maritime Law. Largely ignored by today’s mainstream literature, the Declaration marked a milestone in the development of maritime law: it outlawed privateering and, at the same time, strengthened the rights of neutrals, thus ushering in ‘a new era in the history of international maritime law’.  It also marked a milestone in the way international law was made, in that it ‘was the world’s first major example of international “legislation” by means of multilateral treaty’ [Stephen Neff, War and the Law of Nations: A General History (2005), at 188] – a treaty agreed by seven states, which by 1860 had attracted almost 50 ratifications. So perhaps one could say that, in addition to ‘a new era in the history of international maritime law’, the Paris Declaration also ushered in a new era of conscious international law-making through multilateral instruments. Read the rest of this entry…

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EJIL Editors’ Choice of Books 2015: Sarah Nouwen

Published on February 23, 2016        Author: 

Editors Introduction: At the end of 2014, the EJIL Board members were invited to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk! (herehereherehereherehere, and here), were met with great interest and curiosity. As the end of 2015 approached, the EJIL Board members were once again invited to look back on their reading in 2015. In pieces to be published over the next two days, Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books that they read or reread in 2015 and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.

It is actually not that easy to come up with a list of five books that, according to the criteria set by our Book Review Editor, Isabel Feichtner, ‘have had a significant impact on you that year’ or, more precisely, ‘books not necessarily published in 2015 (and not necessarily law books), but read or reread that year, and which you found inspiring, enjoyable or considered “must reads” for your own work or international law scholarship in general’.

As Jean d’Aspremont observed last year, we usually read functionally for our work: a few pages here and there that are relevant to a piece that we happen to be writing. Seldom do we read a book cover to cover (Jan Klabbers providing a praiseworthy exception), and if we do, it is often for a book review (My only book review this year – of David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (2014) – seems disqualified from this list as it has already been published elsewhere). However, even of the few dozens of other books that I did read cover to cover this year, few qualify for this list, if we interpret the criteria to mean that even the books that one finds ‘inspiring’ or ‘enjoyable’ should in some ways relate to one’s work or to international law scholarship in general. While Yotam Ottolenghi’s Plenty More has been studied page by page and proved hugely inspiring in the kitchen, the European Journal of International Law may not be the best forum to explain why. The same goes for the half a dozen books on how to get a baby to sleep through the night – all of which have been tried and tested; none of which I would recommend.

That brings me to a final introductory caveat: it is difficult to select five books that I (re)read this year that I would strongly recommend – that is, that I would suggest to colleagues that they read these five books instead of other books or, indeed, that they spend their Sundays reading these books instead of going for a run, baking an apple pie or attending a political rally. The key problem is that I do not read enough, but the problem is exacerbated by publishers who publish too much. Indeed, it is far easier to come up with a list of recommendations of five books not to read. However, this project does not fit so well with the spirit of the holiday season and, in our profession, might even be a litigation risk (as this journal knows all too well).

Against this backdrop, here are five books that I read, and in one case reread, in 2015 and, in fact, do strongly recommend to my colleagues. Read the rest of this entry…

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A Diplomat in Name Only? Judicial Scrutiny of Diplomatic Appointments

Published on February 22, 2016        Author: 

The English High Court has delivered two important Judgments on diplomatic immunity this month. Both cases concern the entitlement to immunity of a person claiming to be a diplomat. They reached opposite conclusions as to how far a court may inquire into whether a person is in fact acting as a diplomatic agent.

On 8 February 2016, Mr Justice Hayden in Estrada v Al-Juffali [2016] EWHC 213 (Fam) adopted (para 36) a functional test: has the person “in any real sense” taken up his appointment and discharged any responsibilities in connection with it? One week later, Mr Justice Blake in Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB) rejected the functional test (para 73) and took (paras 37(i), 74-5) a formal approach: A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the FCO.

Facts: Diplomats in Name Only? 

Colourful, if not scandalous, facts underpin each case.  Read the rest of this entry…

 

Announcements: International Criminal Justice, Migration and Human Trafficking Course; FRAME workshop – A global force for human rights?; Third-Party Economic Sanctions Lecture; PluriCourts Professor Vacancies and Postdoctoral Fellowships; Program of Advanced Studies on Human Rights and Humanitarian Law; RfS Manchester Journal of International Economic Law; Revista Tribuna Internacional

Published on February 21, 2016        Author: 

1. Hague Academy Advanced Course on International Criminal Justice, Migration and Human Trafficking. The Hague Academy of International Law and the Grotius Centre for International Legal Studies will host the second edition of the Advanced Course on International Criminal Law between 30 May and 8 June 2016, at the Peace Palace, The Hague. The course will focus on International Criminal Justice, Migration and Human Trafficking. It will include a panel discussion on International Law and the Migration Crisis and interactive lectures on, inter alia, the interplay between refugee law, migration law and international criminal justice, the movement of persons across borders in international law, modern types of slavery and human exploitation and human trafficking as a crime against humanity. The course is coordinated by Prof. Carsten Stahn, Programme Director of the Grotius Centre (The Hague). It is geared at practitioners who seek to enlarge their vision or discover a new field of practice and scholars seeking to gain expertise in the application of concepts and norms. Further information on the programme and application process is available here.

2. FRAME workshop ‘A global force for human rights?’. The FRAME workshop ‘A global force for human rights? Assessing the EU´s comprehensive approach to human rights in crisis management and conflict´ will take place at the Law School of the University of Seville (Spain), on 11 March 2016. The workshop will consist of a keynote speech and two panels. The keynote speech is entitled “A Global Force for Human Rights? Preliminary Findings from the FRAME Project” by Prof. Dr. Jan Wouters. The first panel will deal with the applicable regulatory frameworks regarding human rights violations in conflicts and the protection of vulnerable groups. The second panel will discuss the integration of human rights and international Humanitarian Law (IHL) and democracy/rule of law principles and tools into the Common Security and Defence  Policy (CSDP) and missions and evaluating their impact on vulnerable groups. More details can be found here. To register, email Laura Iñigo via linigo {at} us(.)es.

3. Third-Party Economic Sanctions Lecture. On Thursday 25 February 2016 from 6pm to 7pm at UCL Pavilion (Main Quad), Gower Street, London WC1E 6BT, Professor Cecile Fabre (University of Oxford) will speak on third-party economic sanctions. Mindful that economic sanctions have become a staple of foreign policy, Professor Fabre’s lecture focuses on the question of whether just war theory provides a useful normative framework for assessing the morality of sanctions; whether sanctions are effective; and whether the harms which they occasion to innocent civilians are such as to render them impermissible. Professor Fabre will explore so-called unilateral third party sanctions, such as have been imposed by the United States vis-à-vis Iran and Cuba. Her aim is to provide a cosmopolitan defence of unilateral third-party sanctions as a means to stop ongoing human rights violations. The lecture will be chaired by Professor Leif Wenar (Kings College London). Admission is free but registration is required (here). Read the rest of this entry…

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