We begin this fourth and final issue of EJIL’s Volume 21 with a mini-symposium on sovereign immunity, which includes two papers. The first, by Dapo Akande and Sangeeta Shah, distinguishes the various categories of immunities conferred under international law. The second paper by Jasper Finke examines competing conceptions of immunity before arguing that it is best understood as a binding principle. It is our hope that these papers will spark new discussions on this fundamental topic of international law.

Four articles follow our mini-symposium. The first is a piece by Annie Bird on Third State Responsibility for human rights violations, a piece which we find follows well from our short symposium. Next we publish a detailed investigation into the role of atypical acts in EU external trade and intellectual property policy. This piece by Henning Grosse Ruse-Khan, Thomas Jaeger and Robert Kordic is sure to be a useful contribution for both practitioners and theorists working in this particular field. Weaving once again into topics raised by our mini-symposium authors, we publish a piece by Sarah M. H. Nouwen and Wouter G. Werner, which focuses on the explicitly political effects that the jurisprudence of the International Criminal Court is having in Uganda and the Sudan. The authors offer an innovative lens, examining the jurisprudence and also its use by political actors through the friend-enemy distinction. Last, we believe our readers will enjoy the piece by Mehrdad Payandeh on the concept of international law in the jurisprudence of H. L. A. Hart

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Our publisher, OUP, forwarded to me a complaint from another journal of international law. Apparently, an author who submitted an article to that journal and subsequently accepted to publish it therein, withdrew his piece at the last minute since, he explained to the justly irritated editors, another, ‘more prestigious’ journal published by OUP to which he had simultaneously submitted his piece, had now accepted it for publication. It is worthwhile mentioning from the outset that authors submitting a manuscript to EJIL are asked to confirm that it has not been published, submitted or accepted elsewhere.

Here is a composite edit of my correspondence with the author in question. It picks up in the middle of the correspondence.

It would seem that your article was submitted by you to the xxxx Journal of International Law for publication … [and] it would seem that you had accepted to publish with them…. They are, absent some convincing explanation by you, justifiably upset and frustrated….

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These are challenging times for the European Union. Internally, important, even fundamental, decisions are on the agenda as the Union struggles with the Euro crisis and its underlying economic fissures. (Mercifully, the scapegoating of the USA as an escape from facing Europe’s very own breathtaking governmental and private-sector financial and fiscal irresponsibility has all but disappeared – mercifully, since facing reality unflinchingly is a necessary condition for dealing with it effectively.) What is subprime in Europe is the decisional structure of the Union: the European Politburo – President of the Commission, newly-minted President of the Council, tired-old-more-senseless-than-ever rotating Member State Presidency, recycled High Representative answerable to two bosses and thus to none – has proven at best irrelevant to the real actors in you know where (Berlin, Paris, the formidable Merkel, the erratic Sarkozy), at worst distracting – was the able President of the Council’s productive moves really helped by the forced tango with his opposite number at the Commission? About a year after the entry into force of the Treaty of Lisbon, it is clear that at least some of the principal objectives intended by the new decisional structure at the top are turning out to be as ineffective (some claim laughable) as critics anticipated.

Externally, the world sans-Amerique (or at least with a terribly weakened America) is not waiting for Europe either. Here, the non-handshake of Catherine Ashton and Saeed Jalili, Iran’s representative to the resumed talks, was an image emblematic at many levels of the depth of the international challenges and Europe’s worrying circumstance. Read the rest of this entry »

The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, here, here and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. Read the rest of this entry »

Dr Amichai Cohen is a Senior Lecturer at the Ono Academic College in Israel; Prof. Yuval Shany is the Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. Both Dr Cohen and Prof. Shany are senior researchers at the Israel Democracy Institute. The authors thank Prof. David Kretzmer, Mr. Gil Limon and Mr. Rotem Giladi for their comments to a previous draft. The usual disclaimers apply

A. Introduction

On January 23, 2011 The Public Commission to Examine the Maritime Incident of May 31, 2010  – The Turkel Commission published its partial report on the Flotilla incident. This partial report deals with the two main issues raised in the aftermath of the Flotilla incident – the legality of the naval blockade on Gaza, and the tragic results that ensued from the raid by Israel Defense Forces (IDF) commandos of the flotilla ships, which tried to run the blockade – the killing of  9 passengers on board one of the flotilla ships – the Mavi Marmara.

The Turkel Commission was set up by the Israeli government on June 14^th 2010, and was headed by a former Justice of the Supreme Court, Yaakov Turkel. Its members included a retired diplomat (Ambassador Reuven Merhav), a former army general (Amos Horev) and a civil law professor (Miguel Deutch). Shabtai Rossene, the fifth member of the Commission, a renowned international law expert, died during deliberations. The Commission also included two international observers, Nobel laureate, Lord David Trimble, and the former Judge Advocate General of the Canadian Forces, Brig. General Kenneth Watkins. The Commission was further assisted by two notable international law experts – Professor Michael Schmitt and Prof. Dr. Wolff Heintschel von Heinegg. The report, which covers 240 pages (the English version is almost 300 pages long), exonerated the IDF and the Israeli government from any violation of international law connected with the flotilla incident and declared that the nine deaths which occurred on board the Mavi Marmara were a tragic result of a conflict which Israel did not seek, plan or even foresee. This conclusion is supported by extensive fact finding and legal analysis. Although the Commission conceded that it could not verify the entire body of evidence for each and every case of shooting or other form of violence employed on the Mavi Marmara during the takeover (the Commission identified 133 such incidents), it did not find Israel’s action to violate any applicable international law standard.

The purpose of this comment is to discuss some of the specific legal findings made by the Turkel Commission, which we believe to be problematic in nature.

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A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted in the field of international economic law.  The competition is open to current students and those who have graduated within the last five years. The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The closing date for submissions is 30 September 2011. For submission details and terms and conditions, please see www.sielnet.org/essayprize.

My entire professional life has been in the law, but nothing had prepared me for this. I have been a tenured faculty member  at the finest institutions, most recently Harvard and NYU.  I have held visiting appointments from Florence to Singapore, from Melbourne to Jerusalem. I have acted as legal counsel to governments on four continents, handled cases before the highest jurisdictions and arbitrated the most complex disputes among economic ‘super powers.’

Last week, for the first  time I found myself  in the dock, as a criminal defendant. The French Republic v Weiler on a charge of Criminal Defamation. The setting could not have been grander.  As I entered the Tribunal de Grande Instance de Paris, the French Old Bailey, my lawyer whispered: ‘Emile Zola was tried here.’ Vive la difference: This was no Dreyfus Affair but the stakes for Academic Freedom and liberty of expression are huge.

As Editor-in-Chief of the European Journal of International Law and its associated Book Reviewing website, I commissioned and then published a review of a book on the International Criminal Court. It was not a particularly favorable review. You may see all details here.  The author of the book, claiming defamation, demanded I remove it. I examined carefully the claim and concluded that the accusation was fanciful. Unflattering? Yes. Defamatory, by no stretch of imagination. It was my ‘Voltairian’ moment. I refused the request. I did offer to publish a reply by the author. This offer was declined.

Three months later I was summoned to appear before an Examining Magistrate in Paris based on a complaint of criminal defamation lodged by the author. Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? Libel tourism – libel terrorism to some — is typically associated with London, where notorious high legal fees and punitive damages coerce many to throw in the towel even before going to trial. Paris, as we would expect, is more egalitarian and less materialist. It is very plaintiff friendly. Read the rest of this entry »

Timothy William Waters, a professor at Indiana University Maurer School of Law, is the author of numerous articles on self-determination.  

DAYS before it began voting for independence, Africa’s soon-to-be newest country hosted a modern Pharaoh who, not long ago, sent armies to crush its bid for freedom. In a visit to South Sudan’s capital, Juba, just before the week-long referendum began, Sudan’s President Omar Hassan Al-Bashir vowed to respect the region’s right to form a new country: “We cannot deny the desire and the choice of the people of the south,” said Al-Bashir. “This is their right.”

 Sudan’s leader didn’t always talk this way. His new magnanimity follows decades of grinding, wasting struggle pitting the Arab Muslim-dominated government against Christian and animist southerners, in a bid to control their oil-rich land and impose Islamic law onthem. Millions died; thousands were enslaved.  (Al-Bashir has also been indicted for genocide in Darfur.) Pressure from the United States produced the 2005 agreement that gave the South autonomy and led to this week’s referendum. There have been some violent incidents, but nothing like the slaughter of the past. Mostly voters have calming registered their overwhelming desire for independence. Yet only months ago, experts still feared a return to full-scale war if Sudan’s rulers again hardened their hearts.

 Instead there was Al-Bashir, saying these extraordinary things. Though the causes are complex, Khartoum’s acquiescence has made the difference between war and peace. The diplomatic pressure from the US and African states has all been focused on ensuring Sudan’s government allows the vote to proceed and respects the outcome, rather than reverting to war. This holds an important lesson about the sources of violent conflict within states, and shows that the world needs a radically new approach to secession.

Although Al-Bashir acknowledged southerners’ right to secede, it’s a right most peoples don’t have. Since the Second World War, territorial integrity has been a pillar of our international order: states’ borders can’t be changed without their consent. Even the creative diplomacy leading to the 2005 agreement needed Sudan’s signature.

The problem is all the states that aren’t willing. Preventing interstate wars of conquest is clearly positive, but the belief that fixed frontiers reduce internal violence is more assumed than proven. Challenging borders is thought to open Pandora’s box – but what if borders are the problem? Read the rest of this entry »

Today an Israeli inquiry, the Turkel Committee, published the first part of its report on the Mavi Marmara incident and the lawfulness of the Gaza blockade generally, finding that Israel acted in accordance with international law (full report; summary; BBC News article). An earlier UN inquiry reached the opposite conclusion – for a critique see Yuval Shany’s post; for previous coverage see this post by Dapo.  I have not had the time to read the report, let alone digest it, but on a quick skim I saw, inter alia, that the report qualified the Israel/Hamas conflict as an international armed conflict, thus enabling the creation of a blockade, without however articulating a clear theory in that regard. The report also somewhat more controversially alleges that a blockade would be permissible even if the conflict was non-international in nature (see paras. 37-44).

Our friends at Oxford University Press have let us know that their yearbooks  are now available online, which will make them much more accessible and easier to use. The OUP notice is reproduced below, coupled with an offer of free access to all of the content for a limited time.

Law Yearbooks from Oxford – Free Online Access until February 28^th

Since the start of January 2011 the law yearbooks from Oxford University Press, previously available only in print, have become available online as well. This includes all volumes since 1996 but not the most recent ones which only published in December 2010.

To launch this initiative we are making all of this content freely available until the end of February 2011. To view, browse, download and search the material click on these links:

British Year Book of International Law

Yearbook of International Environmental Law

Yearbook of European Law

Current Legal Problems

The latest volume of each will become available to subscribers from April 2011. New content for future volumes will become available online to subscribers as it is processed thus dramatically reducing the time taken before an author’s work is publicly available.

For access after the end of February you will need a subscription. Please contact your librarian if you are not sure whether your institution has taken up a subscription.