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Home Archive for category "EJIL Analysis" (Page 2)

The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

Published on January 29, 2015        Author: 

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

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The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects: Rejoinder to Enzo Cannizzaro

Published on January 23, 2015        Author: 

This post is a continuation of the EJIL:Debate! in EJIL vol. 25: 4 between Lorand Bartels and Enzo Cannizzaro on “The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects.”

I thank Professor Cannizzaro warmly for his thoughtful reply to my article, which extends it in several interesting directions. Professor Cannizzaro’s main point is that Article 3(5) and Article 21 TEU do not add anything to the EU’s existing human rights obligations insofar as they apply to conduct with mere extraterritorial effects. In some respects I agree with him. However, I would argue that there are some gaps that these provisions plug.

I agree, first of all, that there is some conduct with mere extraterritorial effects that is already covered by the EU’s fundamental rights obligations. Most obviously, there is a Soering-inspired obligation not to remove a person to a third country in which he or she would be at risk of harm (NS v. Secretary of State for the Home Department). But this is a special case, and I do not think that it follows, as does Professor Cannizzaro, that other conduct with mere effects in third countries is also covered. There is to my mind something particular about the EU’s (or a state’s) obligations in relation to a person that is at the relevant time on its territory, and this cannot so easily be translated into an obligation to prohibit exports of death penalty drugs or not to adopt an economic embargo on third states.

At a more general level, the problem is that in practice the high level of fundamental rights protection applicable domestically cannot automatically be extended to policies with mere extraterritorial effects. As my article details, with the exception of Soering scenarios, there have not been any CJEU decisions on whether fundamental rights obligations apply to measures with mere extraterritorial effects, and while the European Court of Human Rights has dealt with this, it has done so very inconsistently (Cf the contrasting decisions in Kovačič (ECtHR, admissibility, 9 Oct 2003) and Ben El Mahi (ECtHR, 11 Dec 2006)). My suspicion is that the CJEU will avoid the problem of extending domestic levels of protection to measures with extraterritorial effects not by applying a dual standard, but rather by not applying fundamental rights obligations to measures in the first place. Read the rest of this entry…

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ICJ to Hand Down Croatia v. Serbia Genocide Judgment on 3 February

Published on January 22, 2015        Author: 

As reported in Serbian and Croatian media yesterday, and officially confirmed by the Court today (press release). As for what the Court will decide, it will most likely find that no crime in the conflict in Croatia constitutes genocide, that it lacks the jurisdiction to decide on the responsibility of either state for any other crime, and that accordingly it has to reject both Croatia’s claim and Serbia’s counterclaim. By ‘most likely’ read ‘virtually inevitable, so that I would fall of my chair if the Court did anything else’ – see more here.  We’ll see whether the Court will say something interesting on various ancillary substantive questions before it reaches its main conclusion.

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Guest Editorial: Ten Years of ESIL – Reflections

From time to time, we are asked about the relationship between EJIL and the European Society of International Law (ESIL). That relationship is simple: the Journal and the Society are two separate, but mutually supportive and complementary entities. Indeed, past and present EJIL Editors can boast, with parental pride, of having been present at the conception, as well as the birth, of the Society! From its inception, membership in ESIL has included automatic online and print subscriptions to EJIL – including very soon a tablet version. The relationship has only strengthened in recent years, with ESIL Presidents and Presidents-elect serving ex officio on the EJIL Board. It is in the spirit of that growing bond that we wholeheartedly share in ESIL’s 10-year celebrations, and have invited the following Guest Editorial from its leadership.

Ten years ago, the European Society of International Law (ESIL) organized its Inaugural Conference in Florence. Some papers were later published in the Baltic Yearbook of International Law but, other than that, most presentations at the event have long been forgotten. Yet that event was one of those moments where the participants still proudly recall that they were there: yes, I was there in Florence when ESIL started, I was there when the seed was planted.

Ten years later, although ESIL has matured rapidly with the development of a wide array of activities, the Society is still in its formative stage. There is a real sense that ESIL is beginning to realize its enormous potential for understanding and influencing international law in Europe and throughout the world. But this is not a self-propelling process. On a day-to-day basis, critical choices have to be made on the directions in which the Society can and should evolve. Read the rest of this entry…

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Filed under: Editorials, EJIL, EJIL Analysis
 

European Hypocrisy: TTIP and ISDS

Published on January 21, 2015        Author: 

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For some, the Transatlantic Trade and Investment Partnership (TTIP) in and of itself has become in many European (and American) circles, the enemy: another manifestation of unchecked globalization, the march of Capital trumping social, environmental and other  rights, an unhealthy embrace of the Americans from whose clutches we have painfully managed to extricate ourselves, et cetera. Yes, there is some sarcasm or irony in the above, but visit the blogs and you will see where it comes from. My sarcasm should not be taken as a dismissal of all or any of these concerns. TTIP is far from Snow White. The concerns are not entirely fanciful. It is the final objective I oppose: a no-holds-barred attack on TTIP with the objective of tanking the whole agreement. If this is your view, do not waste your time here and skip to another item.

A wholesale defeat of TTIP, if achieved, will, I believe, be a big time Pyrrhic victory ̶ a hugely missed opportunity for the polities and the peoples of these polities.

I support the TTIP for two obvious and banal reasons. First, there is every reason to believe that on aggregate it will contribute significantly to an increase in welfare in both polities, enhance growth, contribute to stability and constitute another tool, in an embarrassingly empty toolkit, to combat future transatlantic-generated economic shocks. A large and often unspoken asset of TTIP rests not with the content of the various substantive disciplines but in establishing a culture of joint conversation, regulation and management. It will counter the litigious and confrontational culture of the WTO, where the EU and the USA find themselves typically as rivals and antagonists. Constructivist theory actually has something to say here as do the insights of Global Administrative Law scholarship. Read the rest of this entry…

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The Report of the Brazilian Truth Commission: Late Truth without Justice?

Published on January 19, 2015        Author: 

On 10 December 2014, almost 30 years after the Brazilian military dictatorship (1964-1985) had come to an end, the “National Truth Commission” (“Comissão Nacional da Verdade”, CNV), established on 18 November 2011, presented its Final Report following an investigation that lasted two years and seven months (from May 2012 to December 2014). The Report comprises three volumes with a total of 4400 pages. The CNV consisted of seven members (“Conselheiros”)*, who were supported by over 200 research staff. The Report describes the human rights violations committed between 1946 and 1985 in great detail, listing both perpetrators and victims. The third section of the first volume of the report lists as the four most important violations of human rights: (1) unlawful and arbitrary detentions; (2) systematic torture using physical and psychological methods (proven for at least 1843 of an estimated total of over 20,000 victims) as well as rape and sexual assault; (3) summary, arbitrary and extrajudicial executions or other forms of state murder; (4) enforced disappearance and concealment of the victims’ bodies. The report ends with 29 recommendations and four conclusions which are translated into English for the first time with this post (see appendix below). This post provides an brief overview of the report as well as an evaluation of the work of the CNV. On the whole, the report constitutes a laudable, albeit limited effort to cope with Brazil’s dictatorial past and it may hopefully contribute to changing the still dominant authoritarian mentality in the country and strengthen its democratic institutions. 

Overview

The first volume of the Report has 18 chapters and was written jointly by all members. Here the CNV provides a detailed description of those human rights violations considered to be particularly significant due to their cruelty; these were committed mainly between 1964 and 1985 under the rule of the military junta who had carried out the 1964 coup d’état. The CNV describes the dictatorship’s functioning and bureaucratic structure, including its many repressive agencies (and the various police services (“Polícia Civil, Militar e Federal”), which made the systematic commission of human rights violations possible in the first place. Apart from the extremely powerful national secret service (“Serviço Nacional de Informação”, SNI), which reported directly to the president, each ministry had its own secret service. The Commission also details the close cooperation between the militaries of the Cono Sur (Argentina, Brazil, Bolivia, Paraguay and Uruguay) as part of so-called Operation Condor and the training of the Brazilian military by foreign agencies, particularly by the “United States Army School of the Americas”.

The second volume contains Commission members’ individual contributions on human rights violations against particular groups and institutions (including members of the military (!), workers, farmers, the Church, indigenous peoples, universities, homosexuals) and on business people’s collaboration with the dictatorship. Read the rest of this entry…

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Double Duty at the ICC

Published on January 12, 2015        Author: 

After days of speculation, the clouds have begun to clear over Palestine’s strategy at the ICC. Ever since the Security Council rejected a draft resolution on December 30, 2014 designed to upgrade Palestine’s status to full Member State of the UN and imposing a 12-month deadline on a negotiated solution to the Israeli-Palestinian conflict, the media overwhelmingly reported that Palestine signed the Rome Statute. Yet there was no word on the ICC website and no official information confirming these reports.

The uncertainty grew as the holidays came to an end. Finally, on January 5th, the ICC issued a press release. Contrary to all expectations, however, it appeared that Palestine had submitted a declaration under Article 12(3) of the Statute on December 31st. When using this procedure, states confer jurisdiction to the Court on a one-time, ad hoc, basis. By using this procedure, states do not become party to the Rome Statute, the founding document of the International Criminal Court.

Read the rest of this entry…

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The History of International Law – or International Law in History? A Reply to Alexandra Kemmerer and Jochen von Bernstorff

Published on January 8, 2015        Author: 

Can international law scholars be historians, and should they be? This question, arguably at the centre of Alexandra Kemmerer’s post, might initially seem surprising. At first glance, most research on the history of international law does not reveal any major differences between the disciplines. Lawyers of a historical bent are just as familiar with, and adept at, the methodical standards of the historiographical approach, encompassing proximity to and critique of sources, transparency in terms of the approach and the assumptions made, insight into the historian’s own subjectivity and into the construed nature of all narratives.

If, nonetheless, there does exist a communication gap between the respective examinations of the history of international law, then this is attributable less to these kinds of methodical requisites and more to the fact that it isn’t always very clear why we are interested in international law and why we undertake research on it. Evidently, the discourses within the legal and historical disciplines on the state of the art in the field do not run parallel to one another; indeed they may in fact be incommensurable. What might help is an interdisciplinary dialogue, particularly when it is understood that interdisciplinarity is not about adopting the objectives of another discipline but instead debating the potential scope – and the limits – of one’s own work.

This might help us to understand why international law’s much-discussed ‘historiographical turn’ has gone largely unnoticed by professional historians. This is starting to change, but a programmatic mapping of contemporary research, as undertaken in the formidable Oxford Handbook of the History of International Law, clearly shows how much the research is still indebted to legal discourse. Or take the German Studies on the History of International Law, a series set out to contribute to the discussion of the historical foundations of the current international legal order. It seems that despite the recent interest in fashioning a global history and in the postcolonial turn, as discussed on this blog by Jochen von Bernstorff, little has really changed. In other words: lawyers, even when working on historical topics, are predominantly interested in understanding the law itself. This, of course, is a legitimate source of scholarly interest for jurists — but historians might find something lacking. Read the rest of this entry…

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German International Law Scholarship and the Postcolonial Turn

Published on January 7, 2015        Author: 

International law scholarship from the German-speaking world has an impressive and much-invoked theoretical tradition. Nineteenth century German positivism centring on the will of the state as the formal basis of law (Jellinek and Triepel) made a lasting impression on modern Western international law scholarship and also induced two highly influential in depth critiques of Staatswillenspositivismus just after the First World War, those of Kelsen and Schmitt. These were contributions to the theoretical construction and critique of an international law moulded in European capital cities and expounded in European universities, an international law whose influence could be felt in almost every corner of the world by the end of the 19th century.

European colonization and land appropriation and in particular through economic intervention, in which the German Empire played a significant role in the last two decades of the 19th century, led not only to the establishment of global capitalist structures and the spread of European lifestyles, but also to the so-called ‘universalization’ of European international law (on the latter see the entries in the Oxford Handbook of the History of International Law and the critiques of these). From the very beginning, colonized societies made a variety of efforts to resist the invading economic exploitation, racist violence and socio-cultural hegemony. This resistance was also directed against the European international law and in particular against institutions and norms that served to reinforce the political and economic dominance of the West.

The postcolonial challenge

It’s no coincidence that this postcolonial struggle for a new international law reached its initial global peak during the era of decolonization (1955-1975) and was shaped by renowned international law authors from the Third World, many of whom had themselves taken part in anti-colonial liberation struggles (of particular note here are EliasAnandAbi-SaabBedjaoui). A second global wave of postcolonial criticism of international law has emerged since the mid-2000’s and is often identified with Antony Anghie’s pioneering book Imperialism, Sovereignty, and the Making of International Law. From the perspective of the Third World, the thread that unites this line of criticism is the continuity of asymmetrical North-South relations after decolonization: the South as an ongoing object of intervention by the North and a global economic order that remains fundamentally unjust. Read the rest of this entry…

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Völkerrechtsgeschichten – Histories of International Law

Published on January 6, 2015        Author: 

This is the first of a series of posts on the history of international law that first appeared in German language on the new international law blog voelkerrechtsblog.com, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here. Further posts in the series will be published here shortly.

The history of international law comes in plural forms, and with multiple perspectives. International law does not have a history; it has histories. Martti Koskenniemi writes about ‘histories of international law’. His book ‘The Gentle Civilizer of Nations’ played a significant role in international law’s ‘historiographical turn’ around the turn of the millennium. Before this point, all had been rather quiet on the international legal history front. Back in 1952, the history of the discipline had been described as the ‘Cinderella of the doctrine of international law’ by Georg Schwarzenberger. The Cold War marked an ice age for the history and theory of international law. Pragmatists were dominant not only in practice, but also in scholarship. And ‘The Epochs of International Law’ by Wilhelm Grewes, published in German in 1984 and in English translation in 2000, were still firmly rooted in the pre-San Francisco era.

The study of international law has always involved historical and geographical background knowledge. Yet, the real move toward historical reflection only came with the growing awareness of the inadequacies of the ‘New World Order’ that had evolved after 1989. The emergence of new international institutions, the rapid proliferation of international and supranational courts, new human rights regimes and the blossoming of international criminal law were all soon overshadowed by Srebrenica, 9/11, transnational terrorism and the global financial crisis. The ‘fragmentation’ of the international legal order, the collision and competition of various normative orders, prompts questions about concepts and genealogies. Read the rest of this entry…

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