The latest issue of the European Journal of International Law (Vol. 27, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Karen Alter, James Gathii and Laurence Helfer’s Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We will be hosting a discussion of their article next week. EJIL 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.
This issue opens with a pair of articles that address questions of normative coherence and contestation in two central areas of international law. In the first article, Monica Hakimi and Jacob Katz Cogan address the presence of a puzzling incoherence in the legal regime relating to the use of force. Their article theorizes that this incoherence derives from the combination within the regime of two distinct ‘codes’, thus offering a useful framework for thinking through interpretive debates in the field. In our second article, Karen Alter, James Gathii and Laurence Helfer offer an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent. Their article usefully highlights the work of courts that may remain unfamiliar to many of our readers, while casting new light on a range of theoretical debates relating to international courts. Our EJIL: Live! interview with Karen Alter deepens the discussion.
The next three articles likewise address important questions of normative authority in international law. Nicole Roughan argues that international law’s claims to authority should be understood as claims to relative authority, dependent upon the relationships and interactions with other institutions. Elisa Morgera offers some conceptual clarity in the little-investigated notion of fair and equitable benefit-sharing, identifying shared normative elements from different regimes to help develop a common core to this concept. Finally, David McGrogan provides an incisive analytical framework for understanding both the growth of the culture of human rights indicators and its unintended consequences, showcasing the competing priorities of certainty and uniformity on the one hand, and experiential and conversational approaches on the other.
Our occasional series on The European Tradition in International Law returns in this issue, featuring a remarkably rich and varied collection dedicated to the controversial 19th-century Scottish jurist, James Lorimer. The collection opens with a short overview by Stephen Tierney and Neil Walker, highlighting the tension between Lorimer’s remarkable foresight in relation to a number of developments in international law, cast against his deeply embedded racial prejudice. This darker side of Lorimer’s legal science is examined further by Martti Koskenniemi, whose article considers the importance of racial hierarchies that underpinned Lorimer’s conception of statehood. Gerry Simpson traces the legacies of these attitudes in international law, including the extension of Lorimer’s hierarchies in legally codified power. Karen Knop likewise explores the continuing resonances of Lorimer’s thought in the present day, focusing in particular on his notion of ‘private citizens of the world’. Stephen Neff discusses Lorimer’s views on war and neutrality, highlighting the remarkable modernity of his approach in seeking a systematic global regulatory framework.
Roaming Charges in this issue features a photograph of pupils at the Jean Paul II High School, Kibera, Nairobi.
In the last article in this issue, appearing in our regular series Critical Review of International Jurisprudence, Katie Sykes explores the use of science in the emerging field of ‘global animal law’, through an analysis of two recent and important international legal decisions, the first by the Appellate Body of the World Trade Organization in the EC–Seal Products dispute, and the second by the International Court of Justice in Whaling in the Antarctic.
The Last Page in this issue, entitled ‘Reasons’, is by Liam McHugh-Russell.
ESIL members will know that, following the decision taken at the 2015 General Assembly meeting, membership of the Society now includes an online subscription to EJIL and access to the EJIL app. The app, available for both Apple and Android systems, allows you to download and read the Journal on your mobile device – anywhere and at any time.
ESIL members can access the EJIL app in just a few, simple steps:
- Shortly after joining ESIL, you will receive an OUP customer ID number
- Go to exacteditions.com/print/ejil and enter that number plus your email address and choice of password
- The site will authenticate you as a user
- Go to the appropriate App Store (Apple or Android) and download the EJIL app
- When you reach the login page enter your registered email address and password
For ESIL members who wish to receive the print edition, a special reduced price subscription is available.
One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?
Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:
I have invited Laurence Boisson de Chazournes, member of the EJIL Editorial Board, to write the Editorial for the latest issue of EJIL (Vol. 27 (2016) No. 2).
The Conference of the Parties in Paris in December 2015, with the subsequent adoption of the Paris Agreement on Climate Change, was a significant event, from both a political and a legal perspective. It is politically significant not least because it is the first universal agreement on climate change, involving 195 countries and the EU, to be adopted. However, the event was also legally significant for a host of reasons upon which this Editorial will touch. Overall, it represents an evolution in legal technique, especially with regard to the measures and procedures used to achieve the intended objective. Legal events like this are noteworthy in the way that they introduce innovations and provoke reflection.
The Paris Agreement is indeed an interesting legal creature. In trying to shape a better future than is foreseeable, if present consumption patterns of fossil fuels continue, the Agreement adopts a legal technique that breaks new ground. It envisages the elimination of the use of fossil fuel energy by the end of the 21st century. This would be quite an achievement, given that fossil fuel energy has shaped the economy of the 20th century in so many different ways. The Agreement is intended to come into force in 2020, and the objective it sets is to be achieved in the second part of this century, which is indeed several decades from now. It goes without saying that a great number of us will no longer be here when the goals of the Agreement are to be realized, and we are thus being asked to act for the generations to come. Interestingly, in addition to building a long-term future, the Agreement makes provision for meetings, as well as for tasks to be achieved at these meetings, in the near future. Some of these meetings will take place in 2018, 2023, 2025 and thereafter. The path to the longer-term objective is thus paved with the fulfilment of shorter-term commitments. Read the rest of this entry…
1. Transnational Dispute Management Call for Papers. Transnational Dispute Management is launching a call for papers for a special issue on “Non-Legal Adjudicators in National and International Disputes”. This special issue will analyse the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators face when resolving national and international disputes. This special issue is edited by Katia Fach Gómez (University of Zaragoza-Spain) and Weiwei Zhang (Graduate Institute of International and Development Studies – Switzerland). Proposals for papers should be submitted to the editors on or before 31 October 2016, accepted papers should be submitted to the editors on or before 10 January 2017, and publication is expected in the second quarter of 2017. See here for more information.
2. City University of London Humanity at Sea Book Discussion. On Wednesday 27 July at 6pm, City University of London will be hosting a discussion of the forthcoming book Humanity at Sea: Maritime Migration and the Foundations of International Law. The panel will feature Guy Goodwin-Gill (Oxford); Hagar Kotef (SOAS); Ioannis Kalpouzos (City), the author Itamar Mann (Haifa); and will be chaired by Panos Koutrakos (City). See here for more information.
The latest issue of the European Journal of International Law will be published next week. Over the coming 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:
One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?; EJIL on Your Tablet or Smartphone; In this Issue
Monica Hakimi and Jacob Katz Cogan, The Two Codes on the Use of Force
Karen J. Alter, James T. Gathii and Laurence R. Helfer, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences
Nicole Roughan, Mind the Gaps: Authority and Legality in International Law
Elisa Morgera, The Need for an International Legal Concept of Fair and Equitable Benefit Sharing
David McGrogan, Human Rights Indicators and the Sovereignty of Technique Read the rest of this entry…
Earlier posts (here and here) have provided a general overview of the much-anticipated 12 July Award of an UNCLOS Annex VII Tribunal in the Philippines v China case. This post will focus on the environmental aspects of the Award. The Tribunal’s consideration of environmental issues is largely contained in the part of the Award dealing with the Philippines’ submissions 11 and 12(B) (-). While these submissions were phrased differently, they both sought declarations that China had violated its obligations under UNCLOS to protect and preserve the marine environment (submission 11 related to various locations whereas submission 12 related to Mischief Reef). The Philippines’ environmental claims related to two aspects of China’s conduct: firstly China’s alleged toleration or support of environmentally harmful fishing practices by its nationals; secondly, the environmental impact of China’s land reclamation and construction activities.
Treaty Interpretation and Due Diligence
The Tribunal’s interpretation of the general obligation under UNCLOS Article 192 to ‘protect and preserve the marine environment’, and the more specific obligations under Article 194 regarding marine pollution, embedded these provisions within wider environmental law. The Tribunal noted that these obligations require states to exercise due diligence and to ensure that activities occurring within their jurisdiction and control do not harm the marine environment, referring to ITLOS’ 2015 Advisory Opinion regarding a state’s obligation to investigate reports by another state of non-compliance by its vessels with provisions of the Convention concerning protection of the marine environment, and the ICJ’s remark in Pulp Mills on ‘due diligence’ requiring a ‘certain level of vigilance’: .
In interpreting Article 194(5) of UNCLOS, which requires states to ‘protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species’, the Tribunal drew on several aspects of wider international environmental law. This included having regard to the definition of an ‘ecosystem’ in Article 2 of the Convention on Biological Diversity, the term not being defined in UNCLOS. Based on the scientific evidence before it, the Tribunal had no doubt that the marine environments in question were ‘rare or fragile ecosystems’ and the habitats of ‘depleted, threatened, or endangered species’: .
The Tribunal also had regard to CITES, to which both the Philippines and China are parties, in informing the content of UNCLOS Articles 192 and 194(5). The context here was that the sea turtles found on board Chinese fishing vessels were listed under Appendix I of CITES as a species threated with extinction, and the giant clams which had been harvested by Chinese nationals, as well as corals in the area, were listed in Appendix II of CITES: -. The evidence indicated that Chinese-flagged vessels had made widespread use of a particularly damaging technique of breaking up coral with their propellers to extract clams: see -, . Read the rest of this entry…
On 8 July 2016, most likely for the first time in history, Dallas, Texas police used a remotely piloted land vehicle — a type of drone — to bomb a criminal suspect to death. When asked whether the bombing was justified, a former Los Angeles police captain said yes: “This was not a conventional police operation. This was more of a war zone type operation”.
That Dallas could be a war zone for purposes of killing a criminal suspect and that police would use a bomb to do so are new examples of a continuing post-9/11 phenomenon. It is another case indicating the spreading, negative influence of legal arguments developed to weaken the restraints on the use of force. Other examples have been discussed here recently, including legal reasoning to justify the 2003 Iraq invasion and the abusive claims to self-defense in response to terrorism. This post will focus on the artificial war zone and the militarization of police practices.
“War Zones” Beyond War Zones
Just one week before the Dallas bombing, the U.S. Director of National Intelligence (DNI) released drone death statistics from killings “outside zones of active hostilities.” For years the Obama administration has argued for a broader understanding of what constitutes a battlefield, along with attenuated readings of the right of self-defense and of the right of a state to consent to the use of military force on its territory. In a speech at Harvard Law School in September 2011, John Brennan, currently the CIA director, said, “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” These efforts were first motivated to provide legal cover for the use of drones in targeted killing beyond the combat zones of Afghanistan and Iraq. (For an overview of the history, law, and ethics of using drones for targeted killing, see my review essay, Game of Drones.) Since then, the concept of a right to kill beyond a zone of active hostilities or hot battlefields has taken on a life of its own. It has morphed into the thinking and justifications behind killing with means other than drones, against targets other than Al-Qaida members, and by operators other than U.S. military and intelligence personnel, such as the Dallas police and Chinese law enforcement. Read the rest of this entry…
Announcements: CfP for EJIL Symposium – International Commissions of Inquiry; Free BIICL Event – Obligations of States in Undelimited Maritime Areas
Call for Papers for a Symposium for the European Journal of International Law: International Commissions of Inquiry: What Difference Do They Make? The proliferation of inquiry bodies in international affairs is a marked phenomenon of the post-Cold War period. Scholarly attention has largely focused on the procedures and methodologies adopted by such bodies, in addition to their findings of fact and conclusions of law. Comparatively little systematic attention has been devoted to the impact of international commissions of inquiry on the specific disputes, incidents or situations that they are created to address. This symposium sets out to consider what difference various commissions of inquiry have made on the circumstances that provided the impetus for their creation. For the full call for papers, see here.
BIICL Event on ‘Obligations of States in Undelimited Maritime Areas’. On Friday 22 July, the British Institute of International and Comparative Law (BIICL) will hold a free to attend event titled: ‘Obligations of States in Undelimited Maritime Areas’. Consisting of two panels featuring experts in Law of the Sea and members of the BIICL research project on the obligations of States in undelimited maritime areas, this event will analyse and discuss the obligations of States in regard to undelimited areas pending agreement on maritime boundary delimitation. In particular, the event will focus on the obligations of States under Articles 74(3) and 83(3) of UNCLOS to refrain from activities that could jeopardise or hamper the reaching of a final agreement on maritime delimitation. The event will be of interest to international law practitioners, government officials, offshore oil and gas industry specialists and academics. Copies of the BIICL publication “Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas” will be distributed at the event. For more information, see here or the event flyer.
On 25 June 2016, the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law in Beijing. The Declaration has already been subject to insightful commentary in the Western blogosphere, for example by Ingrid Wuerth.
The context of the Declaration is that both Russia and China have recently faced criticism for their attitudes towards, and even violations of, international law. In March 2014, the majority of states in the UN General Assembly considered Russia’s annexation of Ukraine’s Crimean Peninsula illegal under international law. On 12 July 2016, about two weeks after the Russian-Chinese Declaration was adopted, the Permanent Court of Arbitration in a case initiated by the Philippines, de facto rejected most of Chinese territorial claims in the South China Sea.
In this sense, the Russian-Chinese Declaration represents a defensive political document in which the signatory states reject Western suggestions that the two UN SC permanent members have a somewhat problematic relationship with international law. Within the Declaration, Russia and China offer their own interpretation of what the big picture of international law is – an interpretation according to which it is the West, especially the US, that emerges as an actor displaying a problematic record and attitude. It is important that the two powers have now officially come together to put forward a common interpretation on the big picture of international law. At least in Russia, strategic criticism of the Western approach to international law has been prominent in strategic documents for the last ten or so years.
One has to keep in mind that the discourse on international law within Russia and China differs considerably from the way it is typically understood and constructed in the West. However, the realization of this fact is not necessarily too deep in the West where at least academic discourse on international law is usually carried out as an intra-Western affair i.e. Western experts debating with other Western experts. Outside the West, international law is often portrayed as an hegemonic tool of the West. For example, in April 2016, the Director of the Investigative Committee of the Prosecutor General’s Office of the Russian Federation and a leading practitioner in international law matters in Russia, Alexander Bastrykin, made a statement according to which, international law has for a while been used as an element of Western hybrid warfare against Russia. Read the rest of this entry…