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EJIL Foreword and In this Issue (Vol. 27: 1)

Published on April 21, 2016        Author: 

The EJIL Foreword

This issue opens with the second entry under our new annual rubric, The EJIL Foreword. As I explained a year ago, the Foreword is designed to enable a distinguished scholar in our discipline to undertake a sweeping view of the field, a more extensive analysis, synthesis, conceptualization, or systemic theorization than is usually possible in an EJIL article. It is fitting, then, that Robert Howse’s contribution in this issue surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. Howse presents a fresh and fascinating account of this seemingly well-known story, unearthing new insights and creating a new standard point of reference for studies of the WTO Appellate Body. An EJIL: Live interview with Professor Howse, available on our website complements the article.

In this Issue

The Foreword by Robert Howse is followed by four articles. In the first, Charles Leben presents a rich and original historical analysis of the influence of Hebrew sources on the development of international law in early modern Europe. In the second, Andreas Kulick explores the inconsistent use of estoppel in international investment arbitration and the lack of reasoning used to justify the different approaches taken, leading him to conclude that the ‘cart may have come before the horse’ in many of the decisions surveyed. Yoshiko Naiki examines the important but understudied area of international regulatory arrangements around biofuels, in the process making an important contribution towards understanding the functioning of a fragmented governance system with multiple coexisting regimes. Finally, Timothy Meyer adopts a rational choice approach to explain the choice of soft law over binding law forms of agreement, with particular reference to the context of uncertainty and shifting power dynamics in which such decisions are made.

In Roaming Charges, this issue features a photograph by Michael Klode, entitled Halls of Justice: At the African Court on Human and People’s Rights in Arusha, Tanzania.

The last article in this issue appears under our regular rubric, Critical Review of International Jurisprudence: in yet another example of the growing ‘empirical turn’ in international legal studies, Manley Stewart examines referencing patterns at the International Criminal Court.

We end the issue on a light, yet astute, note with The Last Page.  Niccolò Ridi and Sondre Torp Helmersen offer us Public International Limericks and by way of a teaser:

The Function of Law in the International Community

The place of international law and its sources

Is not just in books and university courses

It can actually mute

A protracted dispute

The views expressed here are personal to the Editor-in-Chief and do not reflect the official position of either the European Journal of International Law or the European University Institute.

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New Issue of EJIL (Vol. 27 (2016) No. 1) – Out Next Week

Published on April 21, 2016        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the next few days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

The EJIL Foreword; 10 Good Reads; Vital Statistics; EJIL’s Assistant Editors; With Gratitude – Shirley Wayne; In this Issue

The EJIL Foreword

Robert Howse, The World Trade Organization 20 Years On:  Global Governance by Judiciary

Articles

Charles Leben, Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe

Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals

Yoshiko Naiki, Trade and Bioenergy: Explaining and Assessing the Regime Complex for Sustainable Bioenergy

Timothy Meyer, Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Roaming Charges

Michael Klode, The Halls of Justice. At the African Court on Human and People’s Rights in Arusha, Tanzania Read the rest of this entry…

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Killing by Omission

Published on April 20, 2016        Author: 

On Monday, the Forensic Architecture team at Goldsmith College, London, published Death by Rescue. The report exposes a rather complex set of facts, but the basic argument is as simple as it is alarming.

Operation Triton, facilitated by Europe’s border security agency, Frontex, began on 1 November 2014 and is mandated to enforce Italy’s maritime border. Triton replaced an earlier and much wider Italian Navy operation, Mare Nostrum, which began in October 2013 and was mandated to save migrant lives beyond Italy’s territorial waters. When EU officials decided on the more limited scope of Triton, they knew their decision would result in the drowning of numerous migrants. As one Frontex official wryly noted, “the withdrawal of naval assets from the area, if not properly planned and announced well in advance, would likely result in a higher number of fatalities.” But the European Commission turned a blind eye – leading to a spike in migrant deaths, which the authors, Charles Heller and Lorenzo Pezzani meticulously document.

From a legal perspective, this set of circumstances raises the question whether the migrants’ rights were violated, and if so, whether EU actors can be held legally accountable. In my view, the report exposes no illegal activity by European agents, either at the operational or at the policymaking level. Perhaps more troubling, the report raises the specter of unaccountable violence ingrained in the very structure of international law. If international law is somehow to blame for circumstances that made these utterly preventable deaths possible, then perhaps it is law itself that should be indicted.

Law of the Land, Law of the Sea

To explain what I mean by that, several rather theoretical remarks are required.

In common law countries, one of the first things law students learn is that law imposes no duties of rescue upon individuals qua individuals.  The classical jurisprudence on this includes comically macabre examples. A characteristic hypothetical describes a bystander witnessing a drowning baby. Law professors often use the initially astonishing absence of a duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal and moral prescription (or “the separation thesis”). Students are expected to adopt this distinction as a second nature. Rescuing the drowning stranger, they are comforted, is morally required. Of course, there are important exceptions to the general absence of a duty of recue. The basic point nevertheless stands: law does not impose a duty of rescue. Law does not always follow moral prescription. Read the rest of this entry…

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The EU-Turkey Statement: A Treaty That Violates Democracy (Part 2 of 2)

Published on April 19, 2016        Author: 

In yesterday’s post, I discussed why the EU-Turkey joint statement should be regarded as a treaty under international law, replete with consequences on EU Member States as a matter of international law.  In this concluding post, I argue that EU Parliamentary prerogatives were violated in the substance of this agreement and the manner by which such agreement was reached.

…That Violates the Parliament’s Prerogatives

Since the 18 March statement is an international agreement binding on the Union, it should have been adopted, on the EU’s side, on the basis of Article 218 TFEU. This provision never mentions the European Council: it is the Council that authorises the opening of negotiations and that concludes (i.e. ratifies) them. More importantly, Article 218(6) TFEU stipulates that, in most cases, the Council may conclude an agreement only after obtaining the consent of the European Parliament.

The Parliament’s consent is required, in particular, when the international agreement covers fields to which the ordinary legislative procedure applies. This is the case of the 18 March statement, which concerns the readmission of citizens of third countries (although the statement does not explicitly mention the word ‘readmission’, it clearly refers to this concept, cf. the definition of ‘readmission’ in the EU-Turkey readmission agreement, Article 1). The EU’s competence to enter into readmission agreements is explicitly acknowledged by Article 79 TFEU, which regulates the EU’s ‘common immigration policy’. In this field, the ordinary legislative procedure applies (ex Article 79(2) TFEU). Hence, pursuant to Article 218(6) TFEU, the Council may conclude readmission agreements only after having obtained the consent of the European Parliament. The EU-Turkey readmission agreement was indeed concluded after having obtained the consent of the European Parliament – but that was not the case for the 18 March statement.

One may wonder whether the statement, by virtue of its specific features, could have been legitimately concluded in the form of an ‘executive agreement’, that does not require Parliamentary approval. It would seem, in fact, that EU institutions sometimes enter into executive agreements with foreign authorities, especially for the management of relatively ‘technical’ issues, such as the establishment of EU Delegations or the conduct of relations with international organisations. Be that as it may, I would argue that a readmission agreement cannot be concluded as an ‘executive agreement’. This argument is supported by a literal and systematic reading of the TFEU. Readmission agreements (envisaged by Article 79(3)) can be concluded only after having obtained the consent of the Parliament (Article 218(6)), since the ordinary legislative procedure applies in this area (Article 79(2)). If an EU institution could enter into a readmission agreement through another procedure, Article 218(6) would be deprived of its content.

The importance of the letter of Article 218(6) is reinforced by the case-law of the Court of Justice. According to an established jurisprudence, Article 218 TFEU ‘constitutes, as regards the conclusion of international treaties, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions’ (Negotiating directives, para 62). Since Article 218(6) establishes a balance between the Council and the Parliament, the adoption of agreements in the simplified form, such as the 18 March statement, tips the balance against the Parliament. This can hardly be accepted: the Parliament’s involvement in the treaty-making area ‘is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly’ (Mauritius, para 81).

It emerges from the above considerations that the 18 March statement was concluded in infringement of the Parliament’s prerogatives, and is consequently vitiated by violation of the essential procedural requirements imposed by Article 218(6) TFEU.

Conclusion

The EU-Turkey statement of 18 March appears criticisable for several reasons. Not only is it ethically questionable and problematic in terms of human rights protection, but it also challenges the democratic principles on which the EU is founded. The good news is that this statement might be subject to judicial review. Being a binding act, vitiated by violation of essential procedural requirements, the agreement may possibly be annulled under the procedure of Article 263 TFEU (cf. France v Commission, paras 16-17). It is also possible, at least in principle, that the agreement may be incompatible with substantive primary rules, notably those concerning fundamental rights protection.

If the Court of Justice is to review the legality of the 18 March statement, someone must obviously bring action against it. The European Parliament is the ideal candidate. Hopefully, (some of) its members might be more sensitive to humanitarian concerns than the governments of EU States. The European Parliament may also wish to defend the democratic principle at large, since they constitute the basis of its own legimacy. Moreover, the Parliament has an interest in protecting its own prerogatives: there is indeed the risk that the Member States, left to their own devices, may decide to ignore Article 218(6) TFEU in the future, too.

The Parliament may perhaps be tempted to turn a blind eye to the 18 March statement, to avoid exposing itself to criticism. The EU-Turkey deal is a hot potato that politicians are likely to avoid, if at all possible: political and legal uncertainty may seem preferable in the short term. Backroom deals of this sort are not uncommon in the history of the EU, but, in my view, they are no longer acceptable. If the EU’s democratic deficit is to be filled, political leaders – notably, the members of the European Parliament – should take responsibility for the EU’s actions. That is especially the case when the lives of thousands of people are at stake. Not only does the Parliament have a right to bring action against the 18 March statement, but it has also a moral duty to do so.

The annulment of the 18 March statement may not have immediate consequences, since it would hardly prevent Greece from considering asylum-seekers’ applications as ‘inadmissible’ and, ultimately, from sending them back to Turkey. The annulment of the 18 March statement may nonetheless serve a twofold purpose. It would draw attention to the consequences of statement, in terms of human rights protection and democratic governance. It may also contribute to stigmatise the action of the Member States, thereby discouraging them from seeking similar solutions in the future. The recent non-paper on readmission to Afghanistan, that prefigures the deportation of 80.000 people, suggests that further ‘questionable’ agreements may be on their way.

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The EU-Turkey Statement: A Treaty That Violates Democracy (Part 1 of 2)

Published on April 18, 2016        Author: 

While the terrorist attacks in Brussels understandably attracted most of the attention during the last weeks, migration issues, and particularly the situation in Greece and Turkey, remain high on the EU’s agenda. The EU and Turkey recently stepped-up their cooperation in migration matters by adopting a joint statement, that soon appeared questionable in terms of international and European asylum law (Chetail 2016; Labayle and de Bruycker 2016; Mandal 2016; Peers 2016; Roman 2016). Through this contribution, I intend to demonstrate that the EU-Turkey statement is problematic also because of another reason: it was adopted in violation of the European Parliament’s powers and of the democratic principle at large. Therefore, the Parliament has the right, and the moral duty, to bring action against the statement before the Court of Justice.

Bad for Refugees

Both Turkey and the EU are concerned by the migratory crisis prompted, inter alia, by the Syrian civil war. They have negotiated a number of instruments during the last few months, including a Joint Action Plan in October 2015 and a statement on 7 March 2016. The cooperation framework was completed on 18 March, through the adoption of a joint statement, which took effect on 20 March.

Through the latter statement, Turkey committed to readmit migrants who have not applied for asylum in Greece or whose application has been found ‘inadmissible’ or unfounded under the EU’s Asylum Procedures Directive. On the other hand, the EU accepted that, for every Syrian being returned to Turkey from Greek islands, a Syrian will be resettled from Turkey to the EU (the so-called ‘1:1 scheme’), with a maximum of 72.000 persons. The EU also committed to accelerate the visa liberalisation for Turkish citizens and to ‘speed up’ the disbursement of 3 billion euros allocated under the Facility for Refugees in Turkey (a fund constituted by the EU and its Members, which provides humanitarian assistance to refugees in Turkey and their host communities).

It has been argued that the 18 March statement is ‘Kafkaesque’ and ‘morally wrong’ (ECRE 2016), because it sets up a ‘trade in human misery’ (Peers 2016). The statement may also run afoul of European and international law, since it might lead to collective expulsions and may not give asylum-seekers an effective opportunity to apply for international protection in the EU. If Greece defined Turkey as a ‘safe third country’, it would be able to consider any application for international protection by asylum-seekers transiting through Turkey as ‘inadmissible’, after a simple interview (see Articles 33, 34 and 38 of the Asylum Procedures Directive). It would seem that Greece indeed considers Turkey as a ‘safe third country’ (see Commission’s 10 February Communication, footnote 38). Hence, Greece may send back to Turkey any asylum-seeker whose application it considers to be ‘inadmissible’ – that is, virtually any asylum-seeker.

Read the rest of this entry…

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ECtHR Armani Da Silva v UK: Unreasonable Police Killings in Putative Self-defence?

Published on April 14, 2016        Author: 

Two weeks after the London public transport bombings of 7 July 2005, British law enforcement mistook the Brazilian electrician Jean Charles de Menezes for another suicide bomber. As he entered a subway carriage, specialist firearms officers killed him with a series of head shots in the mistaken belief that he was about to set off a bomb. The government’s Independent Police Complaints Commission determined that de Menezes was killed due to “very serious mistakes” that were avoidable. The London Metropolitan Police was prosecuted under the Health and Safety Act 1974 and convicted to pay a GBP 175,000 fine. Compensation claims by the family were settled through an ex gratia payment.

However, de Menezes’ family still brought the case to the European Court of Human Rights since none of the individual officers implicated in the killing were prosecuted. In Armani da Silva v. United Kingdom, the Court’s Grand Chamber has just held that the United Kingdom did not fail to uphold its procedural obligation under the right to life (Art. 2 ECHR) to effectively investigate the de Menezes shooting and prosecute the individual officers involved.

One of the central legal points of the judgment concerns the standards that human rights law establishes for handling killings in putative self-defence, where an attack exists only according to the mistaken belief of the law enforcement officer using force against the presumed attacker. Arguably, the Armani da Silva judgment got the standards wrong. Read the rest of this entry…

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Kosovo’s Membership in the PCA: Some comments on Professor Zimmermann’s post

Published on April 13, 2016        Author: 

It was nice to read Professor Zimmermann’s post on the issue of membership of Palestine and Kosovo in the Permanent Court of Arbitration (PCA), as this matter should get more attention from the community of international lawyers. I have already dealt with some of the relevant legal issues in an ESIL Reflection of 11 March 2016 which Professor Milanović has kindly referred to in a comment to Professor Zimmermann’s post. I would like to use this opportunity to engage with some issues raised by Professor Zimmermann, namely: whether the Netherlands should have raised proprio motu the issue of Kosovo’s accession to the 1907 Convention; whether there has been an ‘entente ulterieure’ among the member States of the PCA; what are the powers of the PCA Administrative Council and what is the value of its decision of 4 January 2016, and; what is the way forward concerning Kosovo’s accession to the 1907 Convention.

Calling a meeting of the PCA Administrative Council proprio motu

There was no need for the Netherlands as State depositary to raise proprio motu the matter of Kosovo’s accession to the 1907 Convention within the framework of the PCA Administrative Council. Any State who had an issue with Kosovo’s accession could have called for a meeting of the Administrative Council, even at short notice, like Serbia did, albeit not being a party to the 1907 Convention. Also, it must be noted that by the time of the 4 January 2016 meeting of the PCA Administrative Council, only three out of the 116 Member States of the PCA, namely Russia, Serbia and Mexico seemed to have raised an issue concerning Kosovo’s membership in the PCA. Finally, given that more than half of the member States of the PCA recognize Kosovo as an independent State, there was no need for the Netherlands to raise this issue proprio motu.

Entente ultérieure among PCA member States

Contrary to what Professor Zimmermann claims, there has been no ‘entente ultérieure’ along the lines of Article 60 of the 1899 Convention and Article 94 of the 1907 Convention. The December 1959 agreement among the PCA member States simply authorized the Government of the Netherlands, as State depositary, to send an invitation to new members of the United Nations which were not yet a party to the PCA or whose membership position was unclear. The aim was to increase the membership of the PCA. The document to which Professor Zimmermann refers to as ‘UN support’ is a Study prepared by the Secretariat in 1968 concerning the succession of States to multilateral treaties. Read the rest of this entry…

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The Assembly of State Parties to the International Criminal Court Decides to Delete Article 124 of the Rome Statute

Published on April 12, 2016        Author: 

A little noticed but still significant event during last year’s Assembly of State Parties of the International Criminal Court (ICC) was the decision to delete article 124 of the Rome Statute. Article 124, titled “Transitional Provision”, reads as follows:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

The gist of article 124 was to allow State Parties, upon becoming Party to the Rome Statute, to preclude the Court from exercising jurisdiction over war crimes (article 8) for a period of seven years. Only France and Colombia ever made use of article 124, and each country did so for very particular reasons, which I will not elaborate further here. Suffice it to note that France withdrew its declaration under article 124 in 2008 and that the Columbian declaration made in 2002 expired in 2009. Still, for a court that prides itself on permitting no reservations, no statute of limitations, and no immunities from prosecution, even for heads of state, many have considered article 124 as an inappropriate exemption from the Court’s quintessential principle that there shall be no impunity for any of the crimes under its jurisdiction.

The deletion of article 124 is important not only in its own right, but also because of how it occurred. State Parties deliberated extensively about whether to adhere to the standard amendment procedure outlined in article 121 or if a simple decision by the Assembly would suffice. The result of this debate can be indicative of how States will approach procedural questions of a similar nature in the future, not least when the Assembly in 2017 moves to activating the crime of aggression (on which see this post). Read the rest of this entry…

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Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

image001

Read the rest of this entry…

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Announcements: Maastricht Prize for International Law; Making Technology Work for Human Rights Professionals Summer School; CfA – The Impact of the Law of Armed Conflict on General International Law; Third Edition of the International Disaster Law Course; Public Health and Human Rights Seminar; CfP for Fourth Annual International Criminal Law Workshop; New Additions to the UN Audiovisual Library of International Law.

Published on April 9, 2016        Author: 

1. The Maastricht Prize for International Law 2016 Call For Nominations. The Faculty of Law of Maastricht University has taken over The Hague Prize for International which was established in 2002. Maastricht University will collaborate with the Municipality of Maastricht. The main Prize will be awarded every five years to individuals who have made – through publications or achievements in the practice of law – a special contribution to the development of public international law or private international law or the advancement of the rule of law in the world. The Prize consists of a diploma, a monetary award of €10,000 and a drawing. The prize will be awarded for the first time in Maastricht on 8 December 2016. In the intervening years when the main Prize is not awarded, a Junior Prize will be awarded to promising younger academics in the field of human rights. The Junior prize will be awarded for the first time in 2018 and will carry a financial award of €3,000. Reasoned nominations are now invited and should be sent to Prof. Jure Vidmar, Secretary of the Nominating Committee, Maastricht University, Department of International and European Law, P.O. Box 616 Maastricht, The Netherlands, or by email to law-maastrichtprize {at} maastrichtuniversity(.)nl by 1 August 2016. See here or further information.

2. Human Rights Centre, University of Essex, Summer School on Making Technology Work for Human Rights Professionals. The Human Rights Centre, University of Essex, will run this Summer School on 4 – 5 July 2016. The module is very practically focused and addresses how technology can be used to assist and improve human rights work. Emphasis is placed on the use of accessible technology (including social media) to monitor, document and report on human rights violations, and to improve human rights workers’ digital security. It mixes lectures – focused on exploring relevant issues, analysing the context in which this work takes place, and examining pertinent case studies – and practical sessions – where participants will learn how to put the issues discussed in lectures into practice, in an interactive and supported environment. It is designed to teach practical skills, that will be of direct use to individuals either working, or intending to work, in the field of human rights or humanitarian response. This year’s teaching team includes Tanya O’Carroll, Adviser on Technology & Human Rights at Amnesty International, Sam Dubberley, co-founder of Eyewitness Media Hub, Rory Byrne, co-founder of Security First, Dr.Daragh Murray, Lecturer and Director of the University of Essex Human Rights Centre Clinic, and a representative of Forensic Architecture, a research agency based in Goldsmiths. Details are available here. Contact hrcsummerschool {at} essex.ac(.)uk with questions. Read the rest of this entry…

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