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The ‘Internationalization’ of Maritime Disputes in the South China Sea: Environmental Destruction in the High Seas and Threats to the Global Commons

Published on April 28, 2016        Author: 

What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying  nations outside the region such as the United States have “no role in regional disputes”.  The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale  ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5).   Read the rest of this entry…

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Thou shalt not Insult the (Foreign) Head of State?

Published on April 28, 2016        Author: 

Earlier this month, a German prosecutor’s office confirmed that it was investigating TV comedian, Jan Böhmermann, for having read on his TV show, Neo Magazin Royal, a poem targeting the Turkish President Erdogan (see here or here). The poem, entitled “Schmähkritik” (“Defamatory”), accused Mr Erdogan of deliberately suppressing minorities such as Kurds and Christians. As the comedian himself admitted, the language used was deliberately offensive- it contained sexually explicit insults against the Turkish president (and was read in front of the Turkish flag and a portrait of Mr. Erdogan).

The Böhmermann Case

The TV show stirred fierce criticism from the Turkish capital of Ankara. The Turkish Embassy in Berlin lodged a formal request with the German Ministry of Foreign Affairs for the prosecution of Mr Böhmermann. The prosecution could take place under Article 103 of the German Criminal Code entitled “Defamation of organs and representatives of foreign states”. This provision reads as follows:

 (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Pursuant to Article 104a of the German Criminal Code, prosecution of this offence would require the following conditions to be met: the Federal Republic of Germany maintains diplomatic relations with the other state; reciprocity is guaranteed and was guaranteed at the time of the offence; a request to prosecute by the foreign government exists; and the Federal Government authorises the prosecution.

The first three conditions are clearly present in the Böhmermann case – Germany maintains diplomatic relations with Turkey; the combination of Article 125 (Insult) and Article 340 (Offences against the Head of a Foreign State) of the Penal Code of Turkey would allow for the criminal prosecution of persons who insult the German head of state in Turkey; and Turkey has requested the prosecution.

Originally, securing authorisation for the prosecution from the German Federal Government was less than certain. In some previous cases involving the alleged insult of Mr. Erdogan (the NDR Case), authorisation had been denied. In the current case however, the Government, after some initial hesitation, decided to grant it. Thus, the case will go forward alongside a civil lawsuit for defamation filed by Mr. Erdogan himself.

While interesting in itself, the case gives rise to a more general question relating to the level of protection provided to heads of state under current international law. Should heads of state, as is the situation with other public officials, be expected to withstand even harsh political criticism, thus being effectively subject to a lower level of protection than common citizens? Or on the contrary, should heads of state be granted a higher level of protection in so far as they represent the state and could therefore be considered one of its symbols? Read the rest of this entry…

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“Are you smarter than Professor Hawking?” Higher Forces and Gut-Feelings in the Debate on Lethal Autonomous Weapons Systems

Published on April 27, 2016        Author: 

“Professor Hawking says that artificial intelligence without control may cause the extinction of the human race”, noted a Chinese delegate following a session on ‘mapping autonomy’ at the Convention on Conventional Weapons (CCW) meeting of experts which took place from 11-15 April 2016 at the United Nations in Geneva. The CCW convened its third meeting of experts to continue discussions on questions related to emerging technologies in the area of lethal autonomous weapons systems (LAWS) and I had the privilege of participating.

LAWS are most often described as weapons that are capable of selecting and attacking targets without human intervention; one of the key questions addressed at the meeting was what exactly this means. According to most of the commentators present at the meeting, LAWS do not yet exist however, the possibility of using autonomous weapons in targeting decisions raises multidisciplinary questions that touch upon moral and ethical, legal, policy, security and technical issues. The meeting addressed all of these, starting with the technical session aimed at mapping autonomy.

Without expressing their position on a ban, the six technical experts on the panel presented a nuanced view of the state of current autonomous weapons technology and the road that lies ahead. The Chinese were one of the first delegations to respond to the panel and the delegate seemed startled; some of what was said seemed to contradict the conclusions reached by Professor Hawking et al. China read the Open Letter issued by the Future of Life Institute (FLI) and signed by thousands of artificial intelligence (AI) and robotics researchers, as well as by a number of other endorsers including the well-known Professor Stephen Hawking. The Open Letter calls for a ban on offensive autonomous weapons beyond meaningful human control, claiming that these weapons would be feasible within years, not decades. The Open Letter attracted a good deal of attention, largely because it is signed by a number of well-regarded figures including, Tesla CEO Elon Musk, Apple co-founder Steve Wozniak and as previously mentioned, Professor Stephen Hawking.

The expert panelists offered some divergent views on the claims and predictions made in the Open Letter. In response to these, China asked the panelists “do you think you are smarter than Professor Hawking?” A number of delegates, academics, NGO members and panelists seemed quite amused by the provocative question posed by China. Who dares to disagree with Hawking? Fortunately, some of the experts did. “Isn’t Hawking a physicist, and not an AI expert?”, asked one panelist. Another expert confidently said, “Yes, I am smarter than Stephen Hawking.” Why? “Because, like Plato, I know that I do not know.” The debate is amusing, but also a little bit troublesome. What is the effect of well-regarded figures on the discourse about autonomous weapon systems? Read the rest of this entry…

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Filed under: Arms Control, EJIL Analysis
 

The Russian Constitutional Court and its Actual Control over the ECtHR Judgement in Anchugov and Gladkov

Published on April 26, 2016        Author: 

The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare “impossible to implement” judgements of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgement is inconsistent with the Constitution of the Russian Federation. As observed by Philip Leach and Alice Donald, even if the main objective of the law was to target judgements of the European Court of Human Rights (ECtHR), its scope is wider and covers decisions from any human rights body, including the UN Human Rights Committee. No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state.

Russia’s Constitutional Court has recently ruled that it was “impossible to implement” the final judgement of the ECtHR delivered on 4 July 2013 in the case of Anchugov and Gladkov v. Russia. In this case, the ECtHR held that Russia’s blanket ban on convicted prisoners’ voting rights was incompatible with the European Convention on Human Rights (ECHR). The applicants brought the case because, according to Article 32(3) of the Russian Constitution, they were ineligible to vote in parliamentary and presidential elections given their status as convicted prisoners.

This post discusses and criticises the ‘freshly exercised’ competence of the Russian Constitutional Court, in particular, from the standpoint of public international law. Read the rest of this entry…

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New Issue of EJIL (Vol. 27 (2016) No. 1) Published

Published on April 26, 2016        Author: 

The latest issue of the European Journal of International Law (Vol. 27, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Charles Leben’s Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe. 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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Ten Good Reads (Vol. 27: 1)

Published on April 25, 2016        Author: 

By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom,  I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy!

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)

A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court.  Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say,  Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement.

Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini,  Italian Constitutional Justice in Global Context (Oxford University Press, 2015)

This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more.

Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015) Read the rest of this entry…

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Filed under: Editorials, EJIL
 

Announcements: Venice Academy of Human Rights; World Court for Human Rights; New Additions to the UN Audiovisual Library of International Law; 18th Summer Session of Salzburg Law School

Published on April 23, 2016        Author: 
1. Venice Academy of Human Rights. The Venice Academy of Human Rights will take place from 4-13 July 2016 on the topic “Backlash against Human Rights?”. The faculty includes a distinguished opening lecture by Judge András Sajó (Vice-President of the ECtHR), a general course by Robert McCorquodale (BIICL), as well as lectures and discussion sessions with Joseph A. Cannataci (UN Special Rapporteur on the right to privacy), Helen Fenkwick (Durham University), Mark Goodale (University of Lausanne) and Geir Ulfstein (University of Oslo). The Academy, in co-operation with PluriCourts – Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order, discusses the expansion and restriction of human rights regimes, questions of inequality and social change, counter-terrorist laws, same sex unions, privacy and data protection issues as well as the reform of the ECtHR and UN human rights treaty bodies. The course aims at academics, practitioners, PhD/JSD and master students. Applications are accepted until 29 May 2016 with an early-bird discount until 24 April 2016.
2. World Court for Human Rights. The Oxford Martin School Programme on Human Rights for Future Generations will host a public event on the creation of a World Court for Human Rights. Two world-leading experts will be invited to engage in a dialogue on the following Resolution: A World Court for Human Rights should be established to contribute to the evolution of, and compliance with, human rights law. The discussants will be Professor Martin Scheinin, Professor of International Law and Human Rights, European University Institute (For the Resolution) and Professor Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School (Against the Resolution). The debate will be moderated by Professor Harold Koh, Sterling Professor of International Law at Yale Law School The event will take place on 9 May from 3pm- 5pm at the Oxford Martin School and will be followed by a drinks reception. All are welcome and registration is required. Information about the event and a link for registration can be found here.

Read the rest of this entry…

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Filed under: Announcements and Events
 

Vital Statistics, EJIL’s Assistant Editors, and With Gratitude- Shirley Wayne (Vol. 27: 1)

Published on April 22, 2016        Author: 

Vital Statistics

As EJIL readers will know, we publish statistics each year on the submissions received, accepted and published in the Journal during the previous 12 months. We call them ‘Vital Statistics’ because we believe that it is vitally important to observe and understand trends in the submission and publication of articles in our Journal: Who is writing, where are manuscripts coming from, which languages do our authors speak, can we detect any changes in submission trends? We present our statistics with no frills, letting them speak for themselves.

There are no special requirements for authors wishing to submit to EJIL. We encourage the new, the innovative, the young and the well-established to submit to EJIL, but there is no editorial affirmative action in selecting manuscripts for publication. Our double-blind review process makes certain of that. Of course, EJIL does commission some articles, and readers will find statistics on the incidence of unsolicited and commissioned articles in our pages here as well.

We have seen a very gradual rise in the percentage of manuscripts submitted and published by women authors in recent years, with the figures now showing that 37 per cent of submissions and published articles for 2015 were by women authors. The number dropped slightly to 31 per cent for accepted articles.

We divide the world into four regions for our statistical purposes: the European Union, the Council of Europe countries outside the EU, the US and Canada, and the rest of the world. This may seem a little misleading as it indicates the place of submission – normally the institution at which authors work or study, rather than their actual nationality – but overall we believe it conveys a fairly reliable picture of our authors and EJIL’s presence in the world. Of the total number of manuscripts submitted in 2015, 44 per cent came from the EU, 8 per cent from CoE countries, 19 per cent from the US and Canada and 29 per cent from the rest of the world; thus, very similar figures to those of the previous year for the first two groups, whilst US and Canadian submissions showed a decline and rest of the world submissions increased. These percentages are closely reflected in the figures for published articles. Only 8 per cent of this year’s authors hail from the US and Canada, though the percentage of accepted articles by North Americans was much higher at 31 per cent. Thus, next year’s statistics may speak differently in this respect. Read the rest of this entry…

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A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”

Published on April 22, 2016        Author: 

As recently reported, Croatia has blocked the opening of Chapters 23 and 24 of the accession negotiations between Serbia and the European Union (EU). One of the reasons given relates to Serbia’s law establishing the jurisdiction of Serbian prosecutors and courts over war crimes committed anywhere on the territory of the former Yugoslavia. Justifying their actions, Croatian officials have said that Serbia must follow “European standards”, with some Croatian officials and media reports referring to Serbia’s extension of jurisdiction as the creation of a “mini-Hague” (a media report in Serbo-Croatian is available here). Croatia has asserted that such jurisdiction is incompatible with international law and that it actually constitutes a “hybrid”, rather than universal, jurisdiction (available here in Serbo-Croatian). From the perspective of States whose national legislation provides for universal jurisdiction over international crimes, the issues arising here are quite interesting.

The involvement of the European Commission and its request that the Croatian government cease its opposition has added further complexity to the matter. In a ‘non-paper’, the European Commission has expressed its opinion that the arguments advanced by Croatia are not justified. Commenting on the document, a Croatian official has described it as an old document meant for internal use, and one that the Croatian public should not be bothered with.

Jurisdiction over Croatian Nationals

Croatia’s criticism seems to be aimed at the statutory provisions themselves. In particular, Croatia takes issue with Article 3 of the Serbian Law on Organization and Jurisdiction of State Organs in War Crimes Proceedings, which provides:

The government authorities of the Republic of Serbia set out under this Law shall have jurisdiction in proceedings for criminal offences specified in Article 2 hereof, committed on the territory of the former Socialist Federative Republic of Yugoslavia, regardless of the citizenship of the perpetrator or victim. (An older English version of the law is available here; the quoted provision remains unchanged.)

Croatia thus appears concerned with the possibility of Serbia exercising its jurisdiction over Croatian nationals. No accusations of discriminatory or systematic prosecutions by Serbian prosecutors against Croatian nationals have been advanced by Croatia.  To date, universal jurisdiction has not been extensively used to prosecute foreign nationals for war crimes allegedly perpetrated in the Yugoslav conflict; reported cases include both an acquittal and a rejection of a request for extradition (for the reason of an allegedly politically motivated process) of two Bosnians. In 2015, a Croatian national sentenced in Serbia for war crimes was transferred to serve his sentence in Croatia.

Compliance with “European Standards” and International Law

The Croatian government is targeting a particular statutory provision, which in its opinion, marks Serbia’s intention to act as a “regional policeman”. Read the rest of this entry…

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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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Filed under: Editorials, EJIL