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.
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…
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
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…
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…
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.
The latest issue of the European Journal of International Law will be published next week. Over the next few days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:
The EJIL Foreword; 10 Good Reads; Vital Statistics; EJIL’s Assistant Editors; With Gratitude – Shirley Wayne; In this Issue
The EJIL Foreword
Robert Howse, The World Trade Organization 20 Years On: Global Governance by Judiciary
Charles Leben, Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe
Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals
Yoshiko Naiki, Trade and Bioenergy: Explaining and Assessing the Regime Complex for Sustainable Bioenergy
Timothy Meyer, Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation
Michael Klode, The Halls of Justice. At the African Court on Human and People’s Rights in Arusha, Tanzania Read the rest of this entry…
On Monday, the Forensic Architecture team at Goldsmith College, London, published Death by Rescue. The report exposes a rather complex set of facts, but the basic argument is as simple as it is alarming.
Operation Triton, facilitated by Europe’s border security agency, Frontex, began on 1 November 2014 and is mandated to enforce Italy’s maritime border. Triton replaced an earlier and much wider Italian Navy operation, Mare Nostrum, which began in October 2013 and was mandated to save migrant lives beyond Italy’s territorial waters. When EU officials decided on the more limited scope of Triton, they knew their decision would result in the drowning of numerous migrants. As one Frontex official wryly noted, “the withdrawal of naval assets from the area, if not properly planned and announced well in advance, would likely result in a higher number of fatalities.” But the European Commission turned a blind eye – leading to a spike in migrant deaths, which the authors, Charles Heller and Lorenzo Pezzani meticulously document.
From a legal perspective, this set of circumstances raises the question whether the migrants’ rights were violated, and if so, whether EU actors can be held legally accountable. In my view, the report exposes no illegal activity by European agents, either at the operational or at the policymaking level. Perhaps more troubling, the report raises the specter of unaccountable violence ingrained in the very structure of international law. If international law is somehow to blame for circumstances that made these utterly preventable deaths possible, then perhaps it is law itself that should be indicted.
Law of the Land, Law of the Sea
To explain what I mean by that, several rather theoretical remarks are required.
In common law countries, one of the first things law students learn is that law imposes no duties of rescue upon individuals qua individuals. The classical jurisprudence on this includes comically macabre examples. A characteristic hypothetical describes a bystander witnessing a drowning baby. Law professors often use the initially astonishing absence of a duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal and moral prescription (or “the separation thesis”). Students are expected to adopt this distinction as a second nature. Rescuing the drowning stranger, they are comforted, is morally required. Of course, there are important exceptions to the general absence of a duty of recue. The basic point nevertheless stands: law does not impose a duty of rescue. Law does not always follow moral prescription. Read the rest of this entry…
In yesterday’s post, I discussed why the EU-Turkey joint statement should be regarded as a treaty under international law, replete with consequences on EU Member States as a matter of international law. In this concluding post, I argue that EU Parliamentary prerogatives were violated in the substance of this agreement and the manner by which such agreement was reached.
…That Violates the Parliament’s Prerogatives
Since the 18 March statement is an international agreement binding on the Union, it should have been adopted, on the EU’s side, on the basis of Article 218 TFEU. This provision never mentions the European Council: it is the Council that authorises the opening of negotiations and that concludes (i.e. ratifies) them. More importantly, Article 218(6) TFEU stipulates that, in most cases, the Council may conclude an agreement only after obtaining the consent of the European Parliament.
The Parliament’s consent is required, in particular, when the international agreement covers fields to which the ordinary legislative procedure applies. This is the case of the 18 March statement, which concerns the readmission of citizens of third countries (although the statement does not explicitly mention the word ‘readmission’, it clearly refers to this concept, cf. the definition of ‘readmission’ in the EU-Turkey readmission agreement, Article 1). The EU’s competence to enter into readmission agreements is explicitly acknowledged by Article 79 TFEU, which regulates the EU’s ‘common immigration policy’. In this field, the ordinary legislative procedure applies (ex Article 79(2) TFEU). Hence, pursuant to Article 218(6) TFEU, the Council may conclude readmission agreements only after having obtained the consent of the European Parliament. The EU-Turkey readmission agreement was indeed concluded after having obtained the consent of the European Parliament – but that was not the case for the 18 March statement.
One may wonder whether the statement, by virtue of its specific features, could have been legitimately concluded in the form of an ‘executive agreement’, that does not require Parliamentary approval. It would seem, in fact, that EU institutions sometimes enter into executive agreements with foreign authorities, especially for the management of relatively ‘technical’ issues, such as the establishment of EU Delegations or the conduct of relations with international organisations. Be that as it may, I would argue that a readmission agreement cannot be concluded as an ‘executive agreement’. This argument is supported by a literal and systematic reading of the TFEU. Readmission agreements (envisaged by Article 79(3)) can be concluded only after having obtained the consent of the Parliament (Article 218(6)), since the ordinary legislative procedure applies in this area (Article 79(2)). If an EU institution could enter into a readmission agreement through another procedure, Article 218(6) would be deprived of its content.
The importance of the letter of Article 218(6) is reinforced by the case-law of the Court of Justice. According to an established jurisprudence, Article 218 TFEU ‘constitutes, as regards the conclusion of international treaties, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions’ (Negotiating directives, para 62). Since Article 218(6) establishes a balance between the Council and the Parliament, the adoption of agreements in the simplified form, such as the 18 March statement, tips the balance against the Parliament. This can hardly be accepted: the Parliament’s involvement in the treaty-making area ‘is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly’ (Mauritius, para 81).
It emerges from the above considerations that the 18 March statement was concluded in infringement of the Parliament’s prerogatives, and is consequently vitiated by violation of the essential procedural requirements imposed by Article 218(6) TFEU.
The EU-Turkey statement of 18 March appears criticisable for several reasons. Not only is it ethically questionable and problematic in terms of human rights protection, but it also challenges the democratic principles on which the EU is founded. The good news is that this statement might be subject to judicial review. Being a binding act, vitiated by violation of essential procedural requirements, the agreement may possibly be annulled under the procedure of Article 263 TFEU (cf. France v Commission, paras 16-17). It is also possible, at least in principle, that the agreement may be incompatible with substantive primary rules, notably those concerning fundamental rights protection.
If the Court of Justice is to review the legality of the 18 March statement, someone must obviously bring action against it. The European Parliament is the ideal candidate. Hopefully, (some of) its members might be more sensitive to humanitarian concerns than the governments of EU States. The European Parliament may also wish to defend the democratic principle at large, since they constitute the basis of its own legimacy. Moreover, the Parliament has an interest in protecting its own prerogatives: there is indeed the risk that the Member States, left to their own devices, may decide to ignore Article 218(6) TFEU in the future, too.
The Parliament may perhaps be tempted to turn a blind eye to the 18 March statement, to avoid exposing itself to criticism. The EU-Turkey deal is a hot potato that politicians are likely to avoid, if at all possible: political and legal uncertainty may seem preferable in the short term. Backroom deals of this sort are not uncommon in the history of the EU, but, in my view, they are no longer acceptable. If the EU’s democratic deficit is to be filled, political leaders – notably, the members of the European Parliament – should take responsibility for the EU’s actions. That is especially the case when the lives of thousands of people are at stake. Not only does the Parliament have a right to bring action against the 18 March statement, but it has also a moral duty to do so.
The annulment of the 18 March statement may not have immediate consequences, since it would hardly prevent Greece from considering asylum-seekers’ applications as ‘inadmissible’ and, ultimately, from sending them back to Turkey. The annulment of the 18 March statement may nonetheless serve a twofold purpose. It would draw attention to the consequences of statement, in terms of human rights protection and democratic governance. It may also contribute to stigmatise the action of the Member States, thereby discouraging them from seeking similar solutions in the future. The recent non-paper on readmission to Afghanistan, that prefigures the deportation of 80.000 people, suggests that further ‘questionable’ agreements may be on their way.
While the terrorist attacks in Brussels understandably attracted most of the attention during the last weeks, migration issues, and particularly the situation in Greece and Turkey, remain high on the EU’s agenda. The EU and Turkey recently stepped-up their cooperation in migration matters by adopting a joint statement, that soon appeared questionable in terms of international and European asylum law (Chetail 2016; Labayle and de Bruycker 2016; Mandal 2016; Peers 2016; Roman 2016). Through this contribution, I intend to demonstrate that the EU-Turkey statement is problematic also because of another reason: it was adopted in violation of the European Parliament’s powers and of the democratic principle at large. Therefore, the Parliament has the right, and the moral duty, to bring action against the statement before the Court of Justice.
Bad for Refugees
Both Turkey and the EU are concerned by the migratory crisis prompted, inter alia, by the Syrian civil war. They have negotiated a number of instruments during the last few months, including a Joint Action Plan in October 2015 and a statement on 7 March 2016. The cooperation framework was completed on 18 March, through the adoption of a joint statement, which took effect on 20 March.
Through the latter statement, Turkey committed to readmit migrants who have not applied for asylum in Greece or whose application has been found ‘inadmissible’ or unfounded under the EU’s Asylum Procedures Directive. On the other hand, the EU accepted that, for every Syrian being returned to Turkey from Greek islands, a Syrian will be resettled from Turkey to the EU (the so-called ‘1:1 scheme’), with a maximum of 72.000 persons. The EU also committed to accelerate the visa liberalisation for Turkish citizens and to ‘speed up’ the disbursement of 3 billion euros allocated under the Facility for Refugees in Turkey (a fund constituted by the EU and its Members, which provides humanitarian assistance to refugees in Turkey and their host communities).
It has been argued that the 18 March statement is ‘Kafkaesque’ and ‘morally wrong’ (ECRE 2016), because it sets up a ‘trade in human misery’ (Peers 2016). The statement may also run afoul of European and international law, since it might lead to collective expulsions and may not give asylum-seekers an effective opportunity to apply for international protection in the EU. If Greece defined Turkey as a ‘safe third country’, it would be able to consider any application for international protection by asylum-seekers transiting through Turkey as ‘inadmissible’, after a simple interview (see Articles 33, 34 and 38 of the Asylum Procedures Directive). It would seem that Greece indeed considers Turkey as a ‘safe third country’ (see Commission’s 10 February Communication, footnote 38). Hence, Greece may send back to Turkey any asylum-seeker whose application it considers to be ‘inadmissible’ – that is, virtually any asylum-seeker.