In this Issue

Published on November 6, 2015        Author: 

This issue opens with a brace of articles on topics relating to the treatment of alternative dispute resolution in international institutional settings, albeit from quite different perspectives. Jaime Tijmes introduces the possibility of using final offer arbitration to settle disputes in the World Trade Organization, and explores how it might best be introduced. In contrast, Lorna McGregor uses the jurisprudence of the European Court of Human Rights to consider the kinds of tests that supranational bodies should and do use to determine the compatibility of a particular dispute resolution process with the right of access to justice.

In Roaming Charges, we feature a photograph by Janet McKnight of Places of Impasse: Scars on Beirut Structures That Refuse to Fall. We encourage our readers to submit photographs for publication to ejil {at} eui(.)eu.

The issue continues with two entries under our regular rubric, EJIL: Debate!. In the first, Catharine Titi argues that the European Union is in the process of introducing a new model of investment treaty that is ‘set to change the face of international investment law as we know it’, while in his Reply Martins Paparinskis introduces a note of caution regarding methodology, as well as a note of scepticism regarding Titi’s conclusions. The second EJIL: Debate! in this issue opens with an article by Devon Whittle, which applies Oren Gross’ ‘extra-legal measures model’ to conceptualize the UN Security Council’s Chapter VII powers as a form of emergency powers. In his Reply, Gross expands upon Whittle’s proposal to consider the application of the same model to another issue in international relations, namely unilateral humanitarian intervention. We invite comment on both debates on our blog, EJIL: Talk! Read the rest of this entry…

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Filed under: Editorials, EJIL, EJIL Analysis

The EJIL App (again)

Published on November 5, 2015        Author: 

I want to remind all our individual subscribers – for example all members of ESIL – of the possibility of installing the EJIL App and downloading EJIL to your tablet (both Apple and Android devices).

In a random survey we discovered that a large number of our subscribers, even those receiving the hard copy of EJIL, mostly access the Journal in its digital version online. The App offers two major advantages. The whole issue downloads to your tablet and you can then access it whether online or not. (Maybe I spend too many hours on airplanes and overrate this advantage.) The other advantage is that one clearly gets a much better sense of the issue as a whole, with the ability to browse through and skim even those articles you are not going to read in depth. An issue of EJIL is not a collection of articles simply waiting their time in the queue to get published. We curate each issue with care, like the construction of a satisfying meal with different courses. One also gets a better sense of our huge investment in the aesthetics and form of the Journal.

It is worth a try. Here, again, are the technical details:

  1. Make sure you have your OUP customer ID number. Contact our Managing Editor if you do not have one.
  2. Register at You will be asked to enter your customer ID number, register your email address and create a password.
  3. The site will authenticate you as a user. You can then download the app from the appropriate App Store and enter your registered email address and password at the login page.

If you experience any problems do not hesitate to email our Managing Editor, Anny Bremner, at ejil {at} eui(.)eu.

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Filed under: EJIL Analysis


Published on November 4, 2015        Author: 

I invited our Book Review Editor, Professor Isabel Feichtner, to write a Guest Editorial, which was published on the blog in July. As the reader will immediately note it would have been foolish, given the circumstances addressed in that Editorial, to wait for the next issue of EJIL and so I proposed that it be posted immediately on EJIL: Talk! where it was widely read and justly applauded. Given its importance, going well beyond the so-called Greek Crisis, we republish it in the current issue of the Journal as an official EJIL Editorial – which of course, as is the case with all Editorials in this Journal, represents the views of the author, not of EJIL as such.

It is our hope that this Editorial will stimulate a broader discussion on our role as international lawyers in today’s world of politics. To this end, let me make an open call for contributions, to the Journal and to EJIL: Talk!, on the role of international law scholarship in making sense of questions of how the refugee crisis, austerity politics, megaregionals, security politics, and so on interrelate, and how we as international lawyers can usefully intervene.

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Filed under: Editorials, EJIL, Financial Crisis

New Issue of EJIL (Vol. 26 (2015) No. 3) – Out Next Week

Published on November 3, 2015        Author: 

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


Nein!; The EJIL App (again); In this Issue


Jaime Tijmes, Who Wants What? – Final Offer Arbitration in the World Trade Organization

Lorna McGregor, Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

Roaming Charges

Janet McKnight, Places of Impasse: Scars on Beirut Structures That Refuse to Fall

EJIL: Debate!

Catharine Titi, International Investment Law and the European Union: Towards a New Generation of International Investment Agreements

Martins Paparinskis, International Investment Law and the European Union: A Reply to Catharine Titi Read the rest of this entry…

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Embedding Human Rights in Internet Governance

In Resolution 56/183 (2001), the UN General Assembly welcomed the creation of an inter-governmental World Summit on the Information Society (‘WSIS’) to address the digital revolution and the increasing digital divide between the global North and South. During the Summit’s two phases (Geneva, 2003 and Tunis, 2005) a common desire and commitment to build a people-centred, inclusive and development-orientated Information Societyemerged. A key objective was therefore to harness the power of information and communications technology (ICT) to secure the realisation of the Millennium Development Goals (MDGs).

A decade on, and against the backdrop of the recent transition from the MDGs to the Sustainable Development Goals (SDGs), a review of the implementation of the WSIS outcomes is underway. Delegations met last week for the Second Preparatory Meeting of the UN General Assembly’s Overall Review of the Implementation of the Outcomes of the WSIS (‘WSIS+10 Review’). The aim of this meeting was to engage member States and other stakeholders to reach a consensus on critical issues, such as the goals of Internet governance, the relationship between WSIS and development and how to address human rights related to ICT. Oral statements and written submissions served as the basis for developing the current Zero Draft into a Second Draft. The WSIS+10 Review will culminate in a High-Level Meeting on 15-16 December, at which an Outcome Document will be adopted.

Treatment of human rights in the Zero Draft is inadequate. A sub-section on human rights is included within Internet governance and there are other brief references scattered throughout the Draft. However, human rights are not presented as a foundational principle of Internet governance, but are rather narrowly confined to issues of freedom of expression and the right to privacy. In this post and in our response to the Zero Draft as part of an ESRC Funded Large Grant on Human Rights and Information Technology in an Era of Big Data, we argue ]for a more systematic approach to human rights in this process, in order to reflect the full scope of the human rights issues raised by the use of ICT and big data.

Opportunities and Challenges Presented by the Use of ICT and Big Data

Technology has the potential to produce an impact on all aspects of society. The use of ICT is becoming essential to the conduct of government operations, to business, and to individuals’ day-to-day lives. ICT and human rights have become inextricably intertwined, and this is set to continue in line with progress towards the Information Society. This interconnectivity means that ICT has concrete human rights implications, which can be both positive and negative. Significantly, however, the full extent of ICT’s human rights implications are not yet known.

The transformative potential of ICT and big data for the protection and promotion of human rights is becoming increasingly apparent. For example, digital platforms have facilitated local and global dialogue between human rights defenders, minorities and other democratic voices, giving rise to the phrase ‘liberation technology’. Analytics and the use of big data can assist in the identification of otherwise invisible forms of vulnerability and discrimination. This information can be utilised to target interventions and to facilitate efficient resource allocation and can therefore be employed to facilitate the achievement of the SDGs. For example, in relation to ‘good health and well-being’ (Goal 3), the adoption of e-health and m-health (where health services are delivered electronically or via mobile devices) can lead to cost-effective access to health care. Equally, the analysis of data drawn from a significant number of electronic health records (big data-based analytics) can be used to identify appropriate treatments and facilitate early intervention, reducing future health care costs. Technological assistance in the identification of vulnerability and discrimination also facilitates ‘reduced inequalities’ (Goal 10), and can assist in tackling the ‘digital divide’.

However, the inappropriate use of ICT and big data has the potential to interfere with the enjoyment of human rights and thereby undermine the opportunities for realising human rights and attaining the SDGs. Read the rest of this entry…

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Up the Creek without the Law: What is at Stake in Refugee Responsibility Sharing?

Published on November 2, 2015        Author: 

Refugee law has an infamous built-in dichotomy. Its powerful non-refoulement principle means refugees shall not be returned to their home countries or to places where they would be at risk of being returned home. Yet, refugee law does not oblige securing safe direct access from a refugee’s country of origin or transit to a state of asylum. The fragmented response to the large-scale displacement from Syria violently demonstrates that dissonance. Like in any refugee crisis, neighboring regions host the bulk of IDPs and refugees from Syria, which has painful consequences for the quality of protection offered.

How multilateral efforts – beyond the EU’s response to the current crisis – will fill the relative normative vacuum on access to asylum is possibly the single most important issue for the future of refugee protection. In this post, I want to share some thoughts on some of the parameters that are at stake or will determine the feasibility of a multilateral responsibility sharing response.

First, refugees are not passive players in the systemic conditions and the personal circumstances they face, but have – if limited, given the lack of migration channels – leeway to make choices. If they can, they will move to places where they find effective protection, including social and economic integration. Ignoring agency will make any responsibility sharing mechanism unpopular to those whom it is meant to benefit.

Second, while refugee law does not include strong norms on responsibility, policy initiatives to foster responsibility should not trade away compliance with refugee law. The refugee law regime – based on the 1951 Convention relating to the Status of Refugees – has proved remarkably stable over the past sixty years, not least because it subtly balances human rights obligations and other state interest. It has also seen considerable evolution by human rights law as interpretative guidance, and has been complemented by non-return obligations under human rights law. Read the rest of this entry…

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Filed under: EJIL Analysis, Refugee Law

Somalia Ratifies Convention on the Rights of the Child

Published on November 2, 2015        Author: 

A standard trope when teaching multilateral human rights treaties has been to point to the Convention on the Rights of the Child as having achieved near-universal ratification, with only the United States and Somalia not having ratified it (at least among those entities generally recognized to be states under international law). Well, that trope now has to come to an end – on 1 October Somalia officially deposited its instrument of ratification with the UN Secretary-General, having completed domestic ratification processes earlier in the year. That leaves the US as the only state in the world not to have joined this treaty, a somewhat more unenviable position than before, one could say.

Unfortunately, upon ratification Somalia also made the following reservation: “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.” The three enumerated articles deal with the freedom of thought, conscience and religion, and the protection of children deprived of their family environment, but the reservation extends to the Convention as a whole. Human rights bodies generally regard Sharia reservations to be incompatible with the object and purpose of human rights treaties (as do a number of other states parties), while in its work on reservations to treaties the International Law Commission objected to such reservations on the grounds of their impermissible generality and vagueness (see guideline and commentary; see more the EJIL symposium on the ILC’s guide to practice on reservations).

In any event, the CRC is now just one step removed from becoming the only treaty to achieve universal ratification in modern times, other than the 1949 Geneva Conventions – but bearing in mind the internal politics in the US Senate and the 2/3 majority required there, that last ratification probably won’t come anytime soon.

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Announcements: Call for Papers – ESIL Research Forum; ESIL, HSE and Jessup Russia Conference; Call for Papers – Inequality and Human Rights; International Organizations Symposium; Growing Competition Among International Courts and Tribunals Panel; International Law Weekend 2015

Published on October 31, 2015        Author: 

1. Call for Papers: ESIL Research Forum. The 2016 ESIL Research Forum will be held at Koç University Law School and the Center for Global Public Law in Istanbul from 21-22 April 2016. A Call for Papers has been issued for papers addressing the theme of the making of international law,  including issues such as: the interaction between sources of international law; customary international law, its formation and nature; new sources of international law in international law making – formalism and beyond; international organizations and international law making; non-state actors and international law making; Fragmentation and sources of international law; the legitimacy of the sources of binding obligation in international law; the role of comparative law in relation to international law making; and specific problems relating to international law making in particular subject areas such as human rights law, environmental law, international trade law, etc. There is a scholarship fund to provide partial financial support to presenters. For further details and information on submissions of abstracts, see here. The deadline for submissions is 1 November 2015.

2. ESIL, HSE and Jessup Russia Conference, Moscow. The European Society of International Law, the Higher School of Economics in Moscow, and Jessup Russia are organising a joint conference on 5 February 2016: The Evolutionary Interpretation of Treaties – The UN Charter and the European Convention on Human Rights Facing Modern Challenges. A Call for papers  has been issued, with a deadline for submission of 1 November 2015. Read the rest of this entry…

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Filed under: Announcements and Events

Fighting Transnational Crimes at Sea under UNSC’s Mandate: Piracy, Human Trafficking and Migrant Smuggling

Published on October 30, 2015        Author: 

On 9 October 2015 the UNSC adopted S/RES/2240 (2015) authorizing states to exercise exceptional powers with respect to ships suspected of being engaged in human trafficking and migrant smuggling on the high seas off the costs of Libya. In the context of counter piracy in Somalia, the UNSC had already adopted a series of resolutions since 2008 allowing for exceptional actions to suppress transnational criminality at sea (see S/RES/1816 (2008), as most recently renewed by S/RES/2184 (2014) until 12 November 2015).

The fight against piracy seems to have a lot in common with the fight against human trafficking and migrant smuggling, and both show a dangerous trend towards the repression of transnational criminality through the recourse to military force. Indeed, UNSC resolutions have in both cases constituted the basis for naval military operations (current counter piracy operations are EUNAVFOR Operation Atalanta and NATO Operation Ocean Shield, whereas the EU naval operation against migrant smuggling is EUNAVFOR Med, recently renamed Operation Sophia)

Insofar as they provoke similar thoughts and concerns, a comparison between these landmark resolutions is therefore worthwhile.

The first issue of note concerns the identification of the situation triggering the UNSC’s powers under Chapter VII of the UN Charter. In the resolutions dealing with piracy off the coast of Somalia, piracy was not deemed to constitute a threat to international peace and security in itself (although it could have been). Rather, piracy was characterized as a factor exacerbating the situation in Somalia, which constituted a threat to international peace and security in the region. However, in resolution 2240 (2015) no mention is made of the situation in Libya as amounting to a threat to international peace and security. Such a qualification was indeed deleted from a previous draft (see What’s In Blue). Instead, it is the ‘recent proliferation of, and endangerment of lives by’ human trafficking and migrant smuggling in the Mediterranean Sea off the coast of Libya’ that is regarded as the situation that needed to be addressed through the UNSC’s action under Chapter VII. The resolution confines itself to expressing concern that the situation in Libya is being exacerbated by these crimes. It is therefore the repression of a crime itself, and its impact on human lives, which is used to ground the UNSC’s powers. Read the rest of this entry…

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Filed under: EJIL Analysis

A Bacon Dispute at the WTO? International Trade Regulation and the WHO Decision on Red Meat and Processed Meat

Published on October 28, 2015        Author: 

To the chagrin of meat-eaters worldwide, the International Agency for Research of Cancer (IARC) – the cancer agency of the World Health Organization – has just published a summary of over 800 studies, some of which decades-long, on the link between consumption of red meat and processed meat and cancer. The summary concludes that consumption of red meat is probably linked to cancer, and that consumption of processed meat is demonstrably linked to bowel cancer. Specifically, every 50 gram portion of processed meat consumed daily increases the risk of bowel cancer by a significant 18%. An average sausage weighs about 70-80 grams.

On the basis of this research, IARC experts decided to add red meat and processed meat to the list of potential cancer-inducing agents. Red meat, i.e. ‘all mammalian muscle meat, including, beef, veal, pork, lamb, mutton, horse, and goat’, was classified under Group 2A, as ‘probably carcinogenic to humans’. More worryingly, processed meat, including all red meat ‘that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavour or improve preservation’, was classified as ‘carcinogenic to humans’ (Group 1).

With this decision, processed meat now ranks together cancer-wise not only with the usual suspects against which healthcare professionals advise us – alcoholic beverages, tobacco smoking, and solar radiation – but also with less pleasant substances such as mustard gas, arsenic, and plutonium. To leave no room for doubt, the Q&A clarifies that among the new known carcinogens are ‘hot dogs (frankfurters), ham, sausages, corned beef, and biltong or beef jerky as well as canned meat and meat-based preparations and sauces’. (Surprisingly, bacon was left out of this particular clarification.)

Few people, of course, were under the illusion that these products were good for your health. However, their classification as known carcinogens has significant public health implications, which may lead governments worldwide to consider adopting measures to prevent consumption, or at least excessive consumption, of processed red meat. As with regulatory measures aimed at lowering consumption of tobacco and alcohol, we can expect the new anti-bacon measures to become the subject of international litigation under trade and investment dispute settlement.

The question of how to give weight to health and other public interest concerns under investment law is still a tricky one. Under the law of the World Trade Organization (WTO), on the other hand, I believe the issue is essentially settled: once a decision of an internationally recognized scientific body such as the IARC exists to ground policies, WTO law will in principle pose no obstacle to even-handed measures aimed at reducing consumption or even removing the product from the market entirely. Read the rest of this entry…

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