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New Issue of EJIL (Vol. 30 (2019) No. 3) Out This Week

Published on December 9, 2019        Author: 

 

The latest issue of the European Journal of International Law will be published this week. Over the coming days, we will have a series of editorial posts by Joseph Weiler and Sarah Nouwen, Editors-in-Chief of EJIL. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Editorial

On My Way In – I: Impressions of a New Editor-in-Chief’s First Months in the EJIL Engine Room; On My Way Out – Advice to Young Scholars VI: WeakPoint, On the Uses and Abuses of PowerPoint; In This Issue

Articles

Andre Saenz de Santa Maria Paz, The European Union and the Law of Treaties: A Fruitful Relationship

Vera Shikhelman, Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee

Máximo Langer and Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction Read the rest of this entry…

 
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Favourite Readings 2019 – 10 Good Reads

Published on December 9, 2019        Author: 

 

 

As in previous years ago, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Joseph Weiler.

 

It is the time of year once more when I publish my pick from some of the books that came my way since my last “Good Reads” listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyze or critique, but rather to explain why the books appealed to me and why I think you, too, may find them not only well worth reading but enjoyable, good reads. 

Anthony Julius, Trials of the Diaspora: A History of Anti-Semitism in England (OUP, 2010)

Read the rest of this entry…

 

Announcements: UN Audiovisual Library of International Law; Research Positions NUS Centre for International Law; The Intensive Doctoral Week; CfP Conflict and Entanglement in the Global Legal Order; CfP Old and New Threats to Freedom of Expression; CfC Research Roundtable on Civil Liability for Human Rights Violations; CfA Oak Foundation Research Visitor Programme; ECHR Law Review 

Published on December 8, 2019        Author: 

 

1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms. Vera Rusinova on “Human Rights in Armed Conflicts” available in English and Russian. The Audiovisual Library of International Law is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through SoundCloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

2. Two Research Positions NUS Centre for International Law (CIL). NUS Centre for International Law (CIL) is hiring for 2 Research Positions. The first is a Research Associate/Fellow (CIL’s Oceans Law and Policy Programme) and the second a Research Associate/Fellow (MPA-CIL Oceans Governance Research Programme). Applications open 10 December 2019 and close on 20 January 2020. CIL is seeking applications from candidates with both an advanced degree in international law (PhD or LLM) and a demonstrable interest in the law of the sea, marine environmental law or the international regulation of shipping. Candidates with a particular interest in Southeast Asia and its regional institutions are strongly encouraged to apply. Interested applicants please see here and submit the required documents to cil.jobs {at} nus.edu(.)sg by 20 January 2020. 

3. The Intensive Doctoral Week. Initiated in 2011, the Intensive Doctoral Week (IDW) is a co-organised initiative led by Sciences Po Law School and the Law and Political Science Doctoral School of Paris Nanterre University as well as a great number of partners in the world (For more information on previous IDW events). Limited to a small number of PhD researchers coming from partners’ institutions and from other Law Schools, the IDW is designed as a PhD-training Lab. It aims at enabling researchers to present their own topics, to discuss their own work, and to engage their ideas with renowned Law professors, from France or abroad. Registration is free. Applications will be examined and selected by an independent committee of experts. To apply, fill in the online application. The deadline for application is 10 February 2020. More information is here. Read the rest of this entry…

Filed under: Announcements and Events
 

Favourite Readings 2019 — Book Recommendations by EJIL Board Members

Published on December 6, 2019        Author: 

 

Each year, around 150,000-200,000 books are published in the UK alone. A steady and not-so-slow reader averaging one book per week will get through 52 per year. So we need to be selective, and in order to select well, or at least make informed choices, we need guidance and suggestions.  

Over the course of the next days, EJIL:Talk! will seek to provide such guidance: as in previous years, we‘ll publish a series of short posts in which some of the people behind EJIL offer their suggestions and tell you about their favourite readings of the year.

Needless to say, the recommendations reflect personal choices and a wide range of interests: expect international law to feature, but not to dominate — we‘ll have a good mix of life & law and fact & fiction, including Habermas and Afua Hirsch, but also Dr Seuss, Javier Marias and Leonard Cohen. As in previous years, 2019 does not necessarily stand for the year of publication: it simply means that these books impressed our writers during 2019.  I’ll hope you enjoy our suggestions — and if you do, make sure to go and buy the books from your local independent book store. 

Read the rest of this entry…

 

Bringing Deforestation before an International Court?

Published on December 6, 2019        Author: 

 

Deforestation is a key issue in the fight against climate change. In all areas of the world, forests are being transformed for different uses, all leading to a loss of forest cover “from 31.6 percent of the global land area to 30.6 percent between 1990 and 2015”. Recently, the Amazon fires have caused concern around the globe, not only because of their scale but also because of the importance of the Amazon for everyone, as one of the largest rainforests in the world, and therefore crucial for both mitigating climate change and hosting millions of species. Much concern has been raised at why such fires had intensified compared to previous years. Human-driven deforestation has been shown to be the main reason for the fires, and with less environmental oversight from the current Brazilian government, different political actors have pointed fingers at its responsibility. Brazil is not the only country where important forests are threatened. Other major forested areas in Western and Central Africa and South-East Asia are not spared from large-scale deforestation. The few original forests in Europe are also under threat.

Between legal and illegal deforestation, more forested territory is converted for various uses, from agriculture to mining. Moreover, many areas of major forests are inhabited by indigenous peoples, who suffer directly from the consequences of deforestation. President Bolsonaro has been very clear that he intends to use the land for economic prosperity as he claims that it is his sovereign power to do so. The tension between economic development and environmental protection is not specific to the Amazon and struggles over how to achieve economic development in the forested lands, with people already living and using those lands exist elsewhere too.

One rhetorical question arising from this dramatic situation is whether there are avenues to use the international judicial system to try to hold the states accountable for the deforestation happening in their territory. Is there a chance for interstate litigation to succeed? Read the rest of this entry…

 

For Whom the Bell of the European Convention on Human Rights Tolls? The Curious Case of Slovenia v. Croatia

Published on December 5, 2019        Author: 

 

“This case is unusual, yet important and also familiar”, was the opening statement by Mr. Jeremy McBride (Croatian counsel) at the admissibility hearing before the Grand Chamber of the European Court of Human Rights (the Court or ECtHR) in the case of Slovenia v. Croatia held on June 12. The case is also hot since Slovenia expects the Court’s decision on the admissibility by the end of 2019 or in the first half of 2020.

The case is unusual because it is the first EU inter-state application case and it is all about the rights of a legal person which can be classified as a governmental organization. Namely, Slovenia sued Croatia before the Court for alleged human rights violations of the state-owned bank Ljubljanska banka (LB) in Croatia. The case is familiar because the Court previously decided that LB is a governmental organization and therefore it does not have locus standi under Art 34 of the European Convention on Human Rights (the Convention) (see cases Ališić and Ljubljanska banka). The problem occurred during the era of Socialist Federal Republic Yugoslavia. It concerns Yugoslav banking system problems which emerged after the dissolution of Yugoslavia.

Slovenia states that the purpose of the case is a just solution for the old foreign-currency savings problem. By virtue of the Ališić judgment, Slovenia was obliged to pay the vast majority of old foreign-currency savings in Yugoslavia. Relying on the findings in that case, Slovenia expects the Court to remedy violation of LB’s rights committed by Croatia.

The factual background and the Court’s findings in Ališić and Ljubljanska banka cases are explained in detail in Janja Hojnik’s post on this blog. Therefore, I will not elaborate on the facts further, nor will I consider whether Croatian courts violated LB’s rights and denied justice. Instead, I will focus on one issue of importance: whether a state can bring an inter-state application before the ECtHR while at the same time the alleged victim cannot file an individual application

One important issue for the Court to resolve

Can Slovenia claim that Croatia violated LB’s rights under the Convention even though LB itself is not authorized to file an individual application? Read the rest of this entry…

 

A Picture is Worth a Thousand Words

Published on December 4, 2019        Author: 

(Image credit: AFP)

Next week, Aung San Suu Kyi, the Nobel Peace Prize laureate and de facto head of government of Myanmar, will appear in person before the International Court of Justice. She will be defending her country in the case brought by Gambia for breaches of the Genocide Convention due to atrocities against the Rohingya. The Court will be holding oral hearings on provisional measures in the case (for our earlier coverage, see here). According to an AFP report:

Ardent fans of Aung San Suu Kyi are snapping up spots on $2,000 tours to The Hague, in a display of moral support as Myanmar faces charges of genocide over the Rohingya crisis at the UN’s top court in December.

Supporter rallies, billboards and outpourings of praise online followed the shock announcement by the country’s civilian leader last week that she would personally represent Myanmar at the International Court of Justice (ICJ).

The once-lauded democracy champion will be defending the 2017 military crackdown against the Rohingya minority.

One travel operator is organising a five-day tour to The Hague that includes visa and transportation as part of a $2,150 package, said employee Ma July — a prohibitive rate for most in the developing nation.

Social influencer Pencilo and well-known TV presenter Mg Mg Aye are among the 20 or so people to have already signed up.

“I believe this is our duty as citizens,” Pencilo, 29, told AFP Friday, urging any of her 1.1 million Facebook followers who have the means to do the same.

“It’s important the world knows her compatriots are fully behind her.”

– ‘We stand with you’ –

All of this is so deeply disturbing on so many levels that I genuinely find myself bereft of words. But the image above somehow manages to convey it all – Peace Palace, Photoshop, Facebook. For analysis of why Suu Kyi has decided to appear before the Court in person, perhaps due to her total inability to accept a reality that is not to her liking, or perhaps as part of a cynical strategy to buoy support for her party and herself within Myanmar, see here and here. Either way, it will be a sad spectacle, in more ways than one.

 

Time to fix the Rome Statute and add the crime of starvation in non-international armed conflicts!

Published on December 3, 2019        Author: 

This week the Assembly of State Parties to the Rome Statute of the International Criminal Court (ASP) meets in The Hague for its 18th session. On the agenda is the Swiss proposal to amend Article 8 (“War crimes”) of the Rome Statute by adding a non-international armed conflict version of the war crime of starvation of civilians as a method of warfare. The present post discusses the Swiss proposal and explains why it is high time to amend the Rome Statute as per the Swiss proposal, and that in fact the drafting history of the Statute shows that the omission to include this crime into Article 8(2)(e) was accidental, making it even more important to now fix this mistake.

In 1998, the States negotiating the Rome Statute included the war crime of “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” in Article 8(2)(c), a paragraph that lists “serious violations of the laws and customs applicable in international armed conflict”, “[o]ther” than the grave breaches of the 1949 Geneva Conventions included in the first paragraph, which also concern international armed conflict (IAC). As readers will know, the question whether the Rome Statute should include war crimes committed in times of non-international armed conflict (NIAC) was hotly debated by the delegates in Rome. Fortunately, with the ICTY’s case law and the scope of the ICTR Statute having paved the way, the States reached consensus to include NIAC war crimes. Violations of Common Article 3 to the 1949 Geneva Conventions were listed in Article 8(2)(c), and a large number of the ‘other serious violations of the laws and customs applicable in times of international armed conflict’, listed in Article 8(2)(b) of the ICC Statute, were reproduced in Article 8(2)(e), which relates to NIAC. However, among the crimes that were not reproduced was the war crime of starvation and impeding humanitarian access.

The failure to do so has been criticised for good reason (e.g., Werle, Kress, and more recently, Bartels, and D’Alessandra and Gillett). In addition to the war crimes related to prohibited weapons (addressed below), the only other violations not included for NIAC are the conduct of hostilities crimes Article 8(2)(c)(ii), intentionally directing attacks at civilian objects, Article 8(2)(b)(iv), the crime of causing excessive collateral damage, and Articles 8(2)(viii), (xiv), and (xv). The last three provisions deal with occupation and “nationals of the hostile party”, and therefore obviously do not have a NIAC equivalent. The Additional Protocol I general prohibition to attack civilian objects and the prohibition to launch attacks that may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated, which both apply during IACs, do not appear in Additional Protocol II relating to NIACs. As a result, it was hard in 1998 for the proponents of a more extensive set of NIAC crimes to argue that these prohibitions constituted customary IHL also in time of NIAC, and no NIAC versions of these war crimes were included in Article 8 (see Bartels, pp 292-293). However, the foregoing makes the omission of a NIAC crime of starvation all the more puzzling, because Additional Protocol II does explicitly prohibit the starvation of the civilian population.

Read the rest of this entry…

 

Academic Freedom Under Pressure

Published on December 2, 2019        Author: 

 

Contemporary threats to academic freedom are global, diverse and mounting. The ICNL-commissioned report Closing Academic Space published in March found “repressive and potentially repressive government practices against higher education institutions, including academics and students, in more than 60 countries”, including Hungary, Russia, Venezuela, Turkey, Egypt and China.

Challenges to academic freedom and autonomy in Europe, particularly the EU, now seem alarming, despite significant resistance. A couple of causes célèbres illustrate the point. On Wednesday 27 November, the distinguished constitutional law scholar Professor Wojciech Sadurski faced the first hearing in one of three SLAPP lawsuits brought against him under civil and criminal defamation laws by Poland’s governing Law and Justice party and the public broadcaster, TVP. Various actors have stood in solidarity with Professor Sadurski. In the run-up to the hearing, constitutional law scholars launched the #WithWoj hashtag, following an open letter on the Verfassungsblog in May; ARTICLE 19 submitted an amicus curiae brief, live-monitored the hearing and, together with other NGOs, issued a statement.

On Friday 15 November, my institution, the Central European University (“CEU”) officially inaugurated its Vienna campus, having been forced to move its US accredited degree programmes from Budapest as a result of amendments to Hungary’s higher education law adopted in April 2017 (“Lex CEU”). The subsequent fight to defend CEU spurred street demonstrations, the #IstandwithCEU hashtag and thousands of statements of support – including from academic institutions and associations, Nobel Laureates, German Chancellor Angela Merkel, Irish Taoiseach Leo Varadkar, the late former UN Secretary-General Kofi Annan and a network of freedom of expression NGOs. It also motivated the adoption of the Utrecht Declaration on Academic Freedom by human rights academics.

These cases raise a number of individual human rights issues and deep concerns about the implications of restrictions on scholars and universities for democracy and the rule of law across societies. They further prompt questions about the definition, scope and place of the notion of “academic freedom” in international law. Read the rest of this entry…