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Consent and Customary International Law

Published on August 4, 2014        Author: 

I am pleased to see Professor Guzman and Jerome Hsiang being among those authors who admit that one cannot construct a plausible and coherent CIL theory without a thorough conceptual clarification. In their short article in EJIL Vol. 25:2 (2014), they are focusing on consent and CIL, particularly on the tension between the principle of consent prevailing in international law and non-consensual law-making in the field of CIL. They do not perform an analysis on the concept “consent”, but try to answer the question of why rationally self-interested states should accept the existence of non-consensual customary rules in international relations. I am willing to accept some of their claims or conclusions, as follows. (i) There exist some weak, limited forms of non-consensual rule-making in contemporary international law. (ii) Customary rules are the output of such rule-making. (iii) A non-consensual customary rule, by its content and nature, usually provides great benefits to most of the states or the whole international order and relatively small costs to one or some states.

Of course, all this is the rejection of the so-called consent theories of CIL. It is no surprise. In his excellent, seminal article of 2005 (Saving Customary International Law), Guzman has outlined the basis of a modern, non-objectivist, belief-based CIL theory within the framework of his rational choice doctrine. A belief-based CIL theory is not compatible with consent theories. I also have doubts about that a consent theory could adequately explain how CIL really works. However, three caveats are in order here.

First, consent theories of CIL put up a stout resistance. They are supported by the requirement of “acceptance” in the text of Article 38(1)(b) of the Statute of the International Court of Justice, although they encounter difficulties with adjusting acceptance to opinio juris. For example, Olufemi Elias and Chin Lim, who worked out a modern, refined and flexible version of CIL consent theories (The Paradox of Consensualism in International Law), simply conflate the two concepts, which is problematic from the theoretical angle. Read the rest of this entry…

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Announcement: Training for International Electoral Observers

Published on August 2, 2014        Author: 

EIUC Training Seminar for International Electoral Observers. Early birds enrollment until 15 September. With the patronage of Italian, Spanish and Czech MFA, EIUC has developed two three-day modules aiming at providing training to civilian staff in election observation missions at the first steps of their career (i.e. short-term observers). The first module (17-19 November 2014) will highlight the quantitative observation of the STOs, while the second module (20-22 November 2014) will introduce the participants to the long-term election observation by analysing in depth some of the aspects related to an international observation mission.The methodology will combine frontal lecturers in plenary, working groups as well as role plays, discussions and simulation exercises. DEADLINE FOR APPLICATIONS: 15 OCTOBER 2014. Register by compiling the online application formFor more information please visit our websiteFor further enquiries please contact training.ieo {at} eiuc(.)org.

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New Issue of EJIL (Vol. 25: No. 2) Published

Published on August 1, 2014        Author: 

The latest issue of the European Journal of International Law (Vol. 25, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can also access those articles that are freely available without subscription. The free access article in this issue is Sergio Puig’s Social Capital in the Arbitration Market. Next week, we will continue this issue’s EJIL:Debate! with a rejoinder by László Blutman to Guzman and Hsiang’s reply to his essay Conceptual Confusion and Methodological Deficiencies: Some Ways That Theories on Customary International Law Fail. In September, we will hold a discussion of Puig’s article. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Fateful Elections? Investing in the Future of Europe

Published on July 31, 2014        Author: 

In an earlier Editorial I speculated on the potential transformative effect that the 2014 elections to the European Parliament might have on the democratic fortunes of Europe. I spoke of promise and risk. So now the results are out. How should we evaluate them?

I will address the three most conspicuous features of the recent elections – the anti-European vote, the continued phenomenon of absenteeism, and the innovation of the Spitzenkandidaten.

The Anti-European Vote and the I-don’t-Care-About-Europe Vote

The fathers have eaten sour grapes and the children’s teeth shall be set on edge.

In trying to explain the large anti-European vote (winners in France and the UK as well as some smaller Member States of the Union), much has been made of the effect of the economic crisis. Sure, it has been an important factor but it should not be used as an excuse for Europe to stick its head in the sand, ostrich-like, once more. The writing has been on the wall for a while.

In 2005 the constitutional project came to a screeching halt when it was rejected in a French referendum by a margin of 55% to 45% on a turnout of 69%. The Dutch rejected the Constitution by a margin of 61% to 39% on a turnout of 62%. (The Spanish referendum which approved the Constitution by 76% to 24% had a turnout of a mere 43%, way below normal electoral practice in Spain – hardly a sign of great enthusiasm.) I think it is widely accepted that had there been more referenda (rather than Ceausescian majority votes in national parliaments) there would have been more rejections, especially if the French and Dutch peoples had spoken at the beginning of the process.

It is also widely accepted that the French and Dutch rejections and the more widespread sentiment for which they were merely the clamorous expression were ‘a-specific’: they did not reflect dissatisfaction with any concrete feature of the ‘Constitution’ but expressed a more generic, inchoate, inarticulate unease, lack of enthusiasm not only for ‘more Europe’ but for Europe as it had become.

This early and less pathological ‘anti-European’ manifestation could not be explained away as a reaction to ‘the crisis’ – it occurred at a moment of prosperity and reasonably high employment. Europe was also riding high in the world, a promising contrast with America at its post-Iraq worst. Xenophobia was less à la mode and the immigrant issue less galvanizing – the supposed ‘invasion from the East’ was not a real issue. Europe was not ‘blamed’ for anything in particular, but it was clear that it had largely lost its mobilizing force. Read the rest of this entry…

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Use of Grad Rockets in Populated Areas: What Lessons from Gotovina?

Published on July 30, 2014        Author: 

Maya Brehm PhotoMaya Brehm is a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights (ADH) and a consultant with Article 36 and PAX. Her recent work focuses on the humanitarian impact of explosive weapon use in populated areas and on framing the policy debate on autonomous weapons systems.

In a recently published report, Human Rights Watch (HRW) documents harm to civilians from the use of 122mm Grad rockets apparently fired by Ukrainian government forces and pro-government militias into Donetsk and its suburbs. In four attacks investigated by HRW at least 16 civilians were killed and many more wounded. According to HRW insurgent forces also recently used Grad rockets. The image below from HRW shows attacks in and around Donetsk (click to enlarge). The organization has also posted a video online presenting its findings.

 The problem with Grad rocketsGrad rockets

Grad rockets are unguided rockets fired from a multiple-barrel rocket launcher (MBRL) that can deliver up to 40 rockets within a very short time to a range of 20 kilometers. Like other unguided, indirect fire  weapons, Grad rockets are considered ‘area weapons’, suited for attacks against targets of significant dimensions, because due to ballistic and other factors, the area over which the rockets can spread out is relatively wide.

The dimension of the area affected by a rocket attack (the area of potential impact of the rockets combined with the blast/fragmentation zones of the individual rockets) is a function of many variables, including fuzing, ballistic and firing technique-related factors. As that area can be very wide, the use of Grad rockets in populated areas carries a high risk of harm to civilians. Read the rest of this entry…

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Masthead Changes

Published on July 30, 2014        Author: 

The time has come to renew our Board of Editors and Scientific Advisory Board. We thank Iain Scobbie for his valuable service to the Journal, particularly as blog master for EJIL: Talk!, and we welcome Jean d’Aspremont and Jan Klabbers to the SAB. Dapo Akande and Anthea Roberts will now join the Board of Editors, whilst Francesco Francioni, after a number of years on the Editorial Board, will return to the SAB. We thank him for his committed and extraordinarily constructive contribution to the Journal.

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EJIL Volume 25:2–In This Issue

Published on July 29, 2014        Author: 

We are pleased to open this issue with a second entry under our new rubric, EJIL: Keynote. In this lightly revised text of her lecture to the 5th European Society of International Law Research Forum, Anne Orford traces, with characteristic elegance and insight, the changing notions of science and scientific method that have shaped the international legal profession over the past century. Her account suggests important lessons for contemporary debates regarding the profession’s relevance and ability to respond to world problems.

The next three articles in the issue illustrate the growing toolkit of methodologies for the study of international law. Sergio Puig’s study of the social structure of investor-state arbitration makes innovative use of network analytics. Sharing some of the same methodological inclinations, Grégoire Mallard provides an extraordinarily rich historical-sociological account of the formation of the nuclear non-proliferation ‘regime complex’. And Tilmann Altwicker and Oliver Diggelmann adopt a broadly social constructivist approach to analyse the techniques used to create progress narratives in international law.

This issue includes a selection of papers from the Second Annual Junior Faculty Forum for International Law, held at the University of Nottingham in May 2013. Surveying the discourse and practice of minority language rights, Moria Paz analyses the striking disparity between the rhetoric of maximal diversity-protection found in human rights treaties and the writings of scholars, on the one hand, and the much more attenuated rights that are actually recognized in the jurisprudence and practice of international human rights adjudicatory bodies, on the other. Arnulf Becker Lorca recounts a ‘pre-history’ of self-determination that highlights the role of semi-peripheral élites in converting that political concept into an international legal right. We hope to publish one or two more papers from the Second Annual Junior Faculty Forum in future issues of the Journal.

In Roaming Charges, we feature a photograph of Places of Social and Financial Crisis: Dublin 2014. Read the rest of this entry…

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New Issue of EJIL (Vol. 25: No. 2) Out This Week

Published on July 28, 2014        Author: 

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

Editorial 

Fateful Elections? Investing in the Future of Europe; Masthead Changes; In this Issue

EJIL: Keynote 

Anne Orford, Scientific Reason and the Discipline of International Law

Articles

Sergio Puig, Social Capital in the Arbitration Market

Oliver Diggelmann and Tilmann Altwicker, How is Progress Constructed in International Legal Scholarship?

Grégoire Mallard, Crafting the Nuclear Regime Complex (1950-1975): Dynamics of Harmonization of Opaque Treaty Rules

 New Voices: A Selection from the Second Annual Junior Faculty Forum for International Law

Moria Paz, The Tower of Babel: Human Rights and the Paradox of Language

Arnulf Becker Lorca, Petitioning the International: A ‘Pre-history’ of Self-Determination

Roaming Charges: Places of Social and Financial Crisis: Dublin 2014

 EJIL: Debate!

László Blutman, Conceptual Confusion and Methodological Deficiencies: Some Ways That Theories on Customary International Law Fail

Andrew Guzman and Jerome Hsiang, Conceptual Confusion and Methodological Deficiencies: A Reply to László Blutman

 Critical Review of International Jurisprudence

Loveday Hodson, Women’s Rights and the Periphery: CEDAW’s Optional Protocol

 Critical Review of International Governance

Wolfgang Hoffmann-Riem, The Venice Commission of the European Council – Standards and Impact

Book Reviews

Mark Mazower. Governing the World. The History of an Idea (Jochen von Bernstorff)

Monica García-Salmones Rovira. The Project of Positivism in International Law (David Roth-Isigkeit)

Carlo Focarelli, International Law as Social Construct. The Struggle for Global Justice (Lorenzo Gradoni)

Philipp Dann. The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany(Giedre Jokubauskaite)

E. Papastavridis. The Interception of Vessels on the High Seas, Contemporary Challenges to the Legal Order of the Oceans (Seline Trevisanut)

Kjetil Mujezinović Larsen, Camilla Guldahl Cooper and Gro Nystuen (eds).  Searching for a ‘Principle of Humanity’ in International Humanitarian Law (Catriona H. Cairns)

Morten Bergsmo, LING Yan (eds). State Sovereignty and International Criminal Law (Alexandre Skander Galand)

 Briefly Noted

Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials (Milan Kuhli)

 The Last Page

Kim Lockwood, The Waiting Room

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The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

Read the rest of this entry…

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Announcements: Job Openings at Max Planck Luxembourg, Law of the Sea Conference in Ghent, Call for Rapporteurs for Refugee Law Conference

Published on July 26, 2014        Author: 

1.  The Max Planck Institute Luxembourg announces openings for Research Fellows and Senior Research Fellows in public international law and procedural law. Research Fellow (PhD candidate) (m/f): The Institute would like to appoint highly qualified candidates for 5 open positions as “Research Fellow” with Professor Hélène Ruiz Fabri. The research fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of public international law and international procedural law (including European law and all kinds of international arbitration). Candidates are expected to write their own dissertation (PhD thesis) in one of the aforementioned fields of research, while participating in in-depth knowledge exchange and support among other research fellows. Details available hereSenior Research Fellow (Postdoc) (m/f): The Institute would like to appoint highly qualified candidates for 2 open positions as “Senior Research Fellow” with Professor Hélène Ruiz Fabri. The senior research fellow will conduct postdoctoral research (own publications and contribution to common research projects), particularly in the field of public international law and international procedural law (including European law and all kinds of international arbitration), while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators. Details available here.

 2.  On 13-14 November 2014, Ghent University (UGent) will be hosting an international two-day conference at the occasion  of the twentieth anniversary of the entry into force of the UN Convention on the Law of the Sea. The conference, organized in partnership with the Vrije Universiteit Brussel (VUB), Université catholique de Louvain – Mons (UCL-Mons) and the Université libre de Bruxelles, will pause at the success of the Montego Bay Convention in governing the use of the oceans. At the same time, it will look ahead and examine to what extent the Convention is properly equipped to withstand the various challenges ahead, including, for instance, competing territorial and maritime claims in the South and East China Seas and in the Arctic, the fight against piracy, future exploitation of the deep sea bed, ocean pollution, the increased recourse to the UNCLOS dispute settlement regime, etc. The conference will bring together expert scholars from within and without Europe, as well as practitioners and civil servants (e.g., ITLOS, International Seabed Authority, FAO), to broach the underlying issues from a legal as well as a more policy-oriented perspective. Four different panels will respectively address the importance of UNCLOS for the maintenance of international peace and security; its importance for the global economy; for the protection of the marine environment, and; the Convention’s compulsory dispute settlement mechanism. A keynote lecture will tackle the United States position vis-à-vis the Convention. Detailed information (including programme, venue and registration details) can be found on the conference website.

3.  Call for rapporteurs for the (2nd) Symposium on the Protection of People Fleeing Armed Conflict. The Law Faculty of the University of Luxembourg and the UNHCR are seeking rapporteurs for the (2nd) Symposium on the Protection of People Fleeing Armed Conflict, which will take place on 20 October 2014 in Luxembourg.  The subject of the symposium will be the legal protection of people fleeing armed conflict and other situations of violence, examined in the context of the UNHCR’s new Guidelines for the Protection of People Fleeing Violence and Conflict Across Borders, and recent developments in the case law of European regional and national courts. Rapporteurs will assist the editor of the conference report.  The main responsibilities are the following:

  • Write summaries of selected Symposium sessions
  • Assist the facilitator during the Symposium to ensure the event runs smoothly.

We invite junior scholars (PhDs, post-docs, and fellows) with research interests in the field to submit their CVs (in English) and a sample of their work (ideally on refugee law) to matthew.happold {at} uni(.)lu before 31 August 2014. The Fonds National de la Recherche – Luxembourg will cover the costs of travel and accommodation for the rapporteurs.

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