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New Issue of EJIL (Vol. 25: No. 3) Published

Published on November 5, 2014        Author: 

The latest issue of the European Journal of International Law (Vol. 25, No. 3) 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 Michelle Leanne Burgis-Kasthala’s “Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood”. Today and tomorrow, we will post the remainder of Editor-in-Chief Joseph Weiler’s editorial in this issue. 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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After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done. Read the rest of this entry…

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Peer Review Redux

Published on November 4, 2014        Author: 

A word on the continuing crisis in peer review. EJIL is committed to upholding the highest standard of peer review, both as a guarantee of the quality of articles we publish and because we are aware of its importance to authors who are seeking appointment or promotion. As previously explained – see my earlier Editorial, in vol. 23, issue 2– it is increasingly difficult to find external referees who both meet our yardstick of excellence and are willing to give time to this selfless service. I wrote then that it was not infrequently the case that the first and second and even the third external referee to whom we turned would decline our invitation, whilst the unfortunate author, not unreasonably, became incensed at the length of time taken to reach a decision. Since then, we have on occasion had the experience of having six or seven potential reviewers decline before securing one who is willing to take up the task! And then of course more time passes while we wait for the review to be turned around …

These are egregious cases. The vast majority of reviews are, thankfully, completed on time and decisions made on manuscripts within a reasonable timeframe. We are grateful for the sterling services of our reviewers, some of whom we call upon regularly. We now acknowledge them in our annual Roll of Honour (published in the first issue of each volume) and offer them a free one-year online subscription to the Journal as a token of our appreciation. We welcome other suggestions to improve our review procedures while maintaining their integrity. In the meantime, we beg our authors to be patient with the process.

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English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims

Published on November 3, 2014        Author: 

Following a number of high profile but ultimately failed inquiries into the UK’s ‘complicity’ in US extraordinary rendition, some further light may be shed on the matter by the UK courts. Such is the significance of the judgment given last week by the English Court of Appeal in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, which reversed the decision of Simon J to strike out claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials for their alleged involvement in their unlawful abduction, detention and renditions. The claimants alleged that they were unlawfully detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, by agents of those states. Documents uncovered after the fall of Gaddafi allegedly show the complicity of UK officials in the kidnap of Belhaj and his then pregnant wife, Boudchar, and their rendition back to Libya. In a thorough and careful judgment, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) held that the claims are not barred by state immunity and, while they did engage the act of state doctrine, the claims fell within the public policy limitation applicable in cases of violation of international law and fundamental rights.

Permission to appeal to the Supreme Court has been granted only in relation to the act of state doctrine. Whatever the Supreme Court decides to do, this judgment marks another bold stand for the rule of law in the context of events arising from the so-called global war on terror, as well as providing further clarification on the scope of both doctrines.

State immunity: indirect impleader

Seemingly emboldened by the recent decision of the European Court of Justice in Jones v the United Kingdom, the Respondents sought to argue that state immunity may be invoked where, as in the present case, the claims necessarily require findings of illegality in respect of the acts of foreign officials for which they could claim immunity if they had been sued directly. It was argued that the claims indirectly implead the states concerned because they affect their interests and that, accordingly, state immunity applies to bar the claims.

Interestingly, the Respondents sought to derive support for this submission from the reference to both “rights” and “interests” in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of State and their Property, which they argued has the effect that a state is indirectly impleaded where its interests are affected in a broad sense. In its judgment, the Court cited academic commentary in support of the contention that the final words of Article 6(2)(b) should be given a limited reading, such that “interests” of states is confined to legal interests as opposed to interests in some more general sense Read the rest of this entry…

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EJIL Volume 25:3–In This Issue

Published on November 3, 2014        Author: 

This issue offers another abundance of pioneering scholarship in diverse aspects of international law. It opens with an article by Jan Klabbers that traces the emergence of the now-orthodox functionalist theory in international institutional law, finding its origins in ‘an encounter with colonial administration’, and specifically in the early 20th-century writings of the American political scientist Paul Reinsch. In her article, Michelle Leanne Burgis-Kasthala likewise engages with important post-colonial themes in critical international law scholarship, but does so through a methodologically innovative ethnographic study of statehood narratives among Palestinians working in international law and human rights. Next, Mark Chinen, urges a reconsideration of the law of state responsibility in light of complexity theory. An article by Joost Pauwelyn, Ramses Wessel and Jan Wouters follows, examining the stagnation of formal international law, assessing the reasons for the rise of more informal forms of international lawmaking, and considering a range of possible responses. Finally in this section, Mónica García-Salmones Rovira’s article examines the ‘turn to interests’ shaping positivist international legal theory, as exemplified in the writings of Lassa Oppenheim and Hans Kelsen. A Reply by Jörg Kammerhofer contests the centrality of ‘interests’ in the work of Kelsen, as well as the methodology employed to discover it, and is followed by a Rejoinder by García-Salmones Rovira.

In Roaming ChargesMoments of Dignity, we feature a photograph entitled Keepers of the Sultan’s Treasures, shot in Brunei’s Regalia Museum.

Another important entry in our occasional series, The European Tradition in International Law, focuses on the Russian/Estonian jurist F. F. Martens. Lauri Malksöo provides an overview of Martens’ life, thought, and reception in international legal scholarship. Rein Müllerson draws parallels between issues in Martens’ time and our own. Rotem Giladi offers an original, critical reading of Martens’ most signal contribution, the clause to which he gave his name. And Andreas Müller examines Martens’ doctoral thesis on The Office of Consul and Consular Jurisdiction in the East, in light of the 19th-century dichotomy of civilized and non-civilized nations.

Under our rubric Critical Review of International Governance, Shashank P. Kumar and Cecily Rose present a quantitative empirical study of lawyers appearing before the ICJ. Read the rest of this entry…

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Announcements: EJIL:Live!; Junior Scholar Workshop, UBC Law School; Event in London on Applying International Humanitarian Law; Crimea Conference in Warsaw

Published on November 1, 2014        Author: 

1) In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

2) Junior Scholar Workshop – Law and Human Rights in the Global South: the Role of the State and the Non-State, UBC Law School, June 8-10, 2015. At this point in history it is trite to suggest that the evolving role of non-state actors is transforming the landscape of human rights law. Yet despite repeated calls to incorporate the reality of non-state actor law-making in our accounts of human rights law, scholars are still struggling to incorporate this empirical insight in the emerging literature of law and human rights. How can human rights law be further enriched by a nuanced understanding of the ways in which non-state actors are both protecting human rights and preventing the realization of these rights? And what is the role of the state in protecting human rights in an era where security, immigration control and global trade appear to dominate state political agendas? This Workshop invites submissions on all these themes, including papers addressing the scope, impact and future of human rights as they apply to the corporate world. For full details, including information about application processes, please see the official flier here.

3) On November 18th the UCL Faculty of Laws will be hosting an event on account of the recent publication of the volume titled “Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects”. Discussants are Roger O’ Keefe (UCL), Marko Milanovic (University of Nottingham) and Kimberley Trapp (UCL). Solon Solomon (King’s College London) will render the introductory to the volume speech. Reception will follow. Registration for the event has opened here.

4) International Conference: “The Case of Crimea in the Light of International Law: its Nature and Implications”, 19-20 March, Warsaw, Poland (call for papers). The Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of Polish Academy of Sciences are pleased to issue this call for papers relating to the international conference “The Case of Crimea in the Light of International Law: its Nature and Implications” (19-20 March 2015, Warsaw, Poland). Detailed information and the registration form are available here. In case of any further questions and to submit proposal please contact crimeaconference2015 {at} yahoo(.)pl.

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New Issue of EJIL (Vol. 25: No. 3) Out Next Week

Published on October 31, 2014        Author: 

The latest issue of the European Journal of International Law will be published Wednesday. Beginning Monday, 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: Sleepwalking Again: The End of the Pax Americana 1914-2014; After Gaza 2014: Schabas; Peer Review Redux; In this Issue

 

Articles

Jan Klabbers, The Emergence of Functionalism in International Institutional Law: Colonial Inspirations

Michelle Leanne Burgis-Kasthala, Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood

Mark Chinen, Complexity Theory and the Horizontal and Vertical Dimensions of State Responsibility

Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

 

EJIL: Debate!

Mónica García-Salmones Rovira, The Politics of Interest in International Law

Jörg Kammerhofer, The Politics of Interest in International Law: A Reply to Mónica García-Salmones Rovira

Mónica García-Salmones Rovira, The Politics of Interest in International Law: A Rejoinder to Jörg Kammerhofer

 

Roaming Charges: Moments of Dignity: Keepers of the Sultan’s Treasures, Brunei Regalia Museum

 

 The European Tradition in International Law: F.F. Martens

Lauri Mälksoo, F. F. Martens and His Time: When Russia was an Integral Part of the European Tradition of International Law

Rein Müllerson, F. F. Martens – Man of the Enlightenment: Drawing Parallels between Martens’ Times and Today’s Problems

Rotem Giladi, The Enactment of Irony: Reflections on the Origins of the Martens Clause

Andreas T. Müller, Friedrich F. Martens on ‘The Office of Consul and Consular Jurisdiction in the East’

 

Critical Review of International Governance

 Shashank P. Kumar and Cecily Rose, A Study of Lawyers Appearing before the International Court of Justice, 1999-2012

 

Review Essay

Gleider I Hernández, The Judicialization of International Law: Reflections on the Empirical Turn. Review of Karen J. Alter. The New Terrain of International Law: Courts, Politics, Rights; Cesare P.R. Romano, Karen J. Alter, and Yuval Shany (eds). The Oxford Handbook of International Adjudication; Yuval Shany. Assessing the Effectiveness of International Courts

 

Book Reviews

Edith Brown Weiss. International Law for a Water-Scarce World; Laurence Boisson De Chazournes. Fresh Water in International Law; Pierre Thielbörger. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right (Sara De Vido)

Kate Miles. The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (David Schneiderman)

Emmanuelle Tourme-Jouannet. What is a Fair International Society? International Law Between Development and Recognition (Ruti Teitel)

Lawrence O. Gostin. Global Health Law (Stéphanie Dagron)

Timo Koivurova. Introduction to International Environmental Law(Birgit Lode)

 

The Last Page

Keith Ekiss, Vietnam

Corrigendum

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The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

Read the rest of this entry…

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New additions to the UN Audiovisual Library of International Law

Published on October 30, 2014        Author: 

In a previous post of a couple of years ago, I highlighted the extensive series of video lectures on international law commissioned by the Codification Division of the United Nation’s Office of Legal Affairs.  The UN Audiovisual Library of International Law covers the full spectrum of international law topics and are delivered by a very impressive list of international lawyers. They include judges at international tribunals, leading academics and practitioners of international law.  The lectures provide high quality international law training and research materials to an unlimited number of recipients around the world free of charge.

The Codification Division of the UN Office of Legal Affairs recently added new lectures and introductory notes to the UN Audiovisual Library of International Law website. The latest lectures include one by me on “The Immunity of State Officials from Foreign Criminal Jurisdiction” and another by my Oxford colleague, Professor Guy S. Goodwin-Gill, on “Expulsion in Public International Law“. Both of these topics have been under consideration by the International Law Commission in its recent programme of work and the work of the ILC on these and other issues is under consideration this week by the Sixth (Legal) Committee of the United Nations General Assembly.

The UN Audiovisual Library also includes  introductory notes to significant legal instruments. These are introductions to legal instruments that are prepared by an eminent international law scholar or practitioner with special expertise on the subject. The latest introductory notes uploaded to the site  include the following: “Statute of the International Court of Justice” by Judge Antônio Augusto Cançado Trindade and “Articles on the Responsibility of International Organizations” by Judge Giorgio Gaja.

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Announcements: EJIL:Live!; Disaster Law Essay Contest; Conference at Queen Mary on EU Law and Public International Law; Launch in London of Book on Disaster Relief

Published on October 25, 2014        Author: 

1.  In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL. Read the rest of this entry…

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