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Changes in the Masthead – Our Scientific Advisory Board

Published on April 4, 2013        Author: 

Some years ago our Board of Editors took the decision to involve a broader range of scholars in the running of our Journal by establishing a Scientific Advisory Board.  That decision has paid off. The intellectual and creative participation of this group of committed scholars has contributed in very positive ways to the development of our Journal. The time has come to refresh our Scientific Advisory Board.   We thank Vera Gowlland Debbas and Linos-Alexander Sicilianos for their valuable service to EJIL and we welcome a new group of members: Veronika Bilková, Laurence Boisson de Chazournes, Enzo Cannizzaro, Diane Desierto, Helen Keller, Doreen Lustig, Anthea Roberts and Christian Tams. Dapo Akande and Iain Scobbie, who also act as blog masters for EJIL: Talk!, will remain on the SAB, and we thank them for their continuing service.

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Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Published on April 3, 2013        Author: 

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation. Read the rest of this entry…

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EJIL Vol. 24: No. 1 – In this Issue

Published on April 2, 2013        Author: 

We have taken the extraordinary decision to devote the majority of this issue to a single topic: the enduring legacy of Michael Walzer’s Just and Unjust Wars. The first edition of this classic work was published in 1977; some time ago a special event was held at New York University School of Law to mark its approaching 35th anniversary. This issue gathers together a generous selection of the papers presented on that occasion, together with some additional reactions and comments that were subsequently commissioned, in a symposium edited by Professor Gabriella Blum of Harvard Law School and myself. We trust that the range of critical perspectives presented here ̶ including Professor Walzer’s own reflections on the subject ̶ will sustain many more years of scholarly debate and discussion.

After the rich feast of the symposium, Roaming Charges offers a quiet visual interlude, moving back from Places to Moments of Dignity with a photograph entitled ‘The Pawnbroker, Singapore’.

The book review section complements the overall theme of this issue and includes reviews on publications dealing with child soldiering, the law of armed conflict and occupation, and international criminal law.

Finally, The Last Page presents a poem by Charlotte Innes, entitled ‘Burrough Hill’, that reflects an important goal of this feature of EJIL: to stimulate a more profound degree of introspection on topics and territory where law and life meet.

 

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The Latest Issue of EJIL To be Published Next Week: Vol. 24 No. 1

Published on April 2, 2013        Author: 

The latest issue of the European Journal of International Law will be published in the next week. Over the course of this week, we will have a series of post by Joseph Weiler – Editor in Chief of EJIL – which will then appear in the Editorial in the issue of the journal that will be published the following week. Here is the Table of Contents of the next issue of EJIL:

Editorial: Differentiated Statehood? ‘Pre-States’? Palestine@the UN; EJIL and EJIL: Talk!; The Strange Case of Dr. Ivana Radačić; Looking Back at EJIL 2012 – The Stats; Changes in the Masthead – Our Scientific Advisory Board; In this Issue

 Just and Unjust Warriors:

Marking the 35th Anniversary of Walzer’s Just and Unjust Wars

 Symposium Editors: Professor Gabriella Blum (Harvard Law School)
and JHH Weiler (Editor-in-Chief, EJIL)

Gabriella Blum and JHH Weiler, Preface

Robert Howse, Thucydides and Just War:  How to Begin to Read Walzer’s Just and Unjust Wars

JHH Weiler and Abby Deshman, Far be it from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello

Marko Milanovic, A Non-Response to Weiler and Deshman

Terry Nardin, From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention

Anne Orford, Moral Internationalism and the Responsibility to Protect

Michael Glennon, Pre-empting Proliferation: International Law, Morality, and Nuclear Weapons

Jack Goldsmith, How Cyber Changes the Laws of War

Dino Kritsiotis, Enforced Equations

Matthew C. Waxman, Regulating Resort to Force: Form and Substance of the UN Charter Regime

Olivier Corten, Regulating Resort to Force: A Response to Matthew Waxman from a ‘Bright-Liner’ Read the rest of this entry…

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Are the two Koreas Now at War?

Published on April 1, 2013        Author: 

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed  that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt?  –  was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

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Announcements: Conferences at Oxford and Cambridge; Position at Durham.

Published on March 31, 2013        Author: 

1) BB_LogoThe 2013 Annual Conference of the British Branch of International Law Association takes OxfordImageplace in Oxford on April 12 & 13. The theme is “The Changing Face of Global Governance: International Institutions and the International Legal Order“. Registration for the conference is through the conference website. The Keynote Lecture and the Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, UN Under-Secretary General for Legal Affairs. Accommodation  at Pembroke College Oxford can be booked here with code “ILA2013″.

2) Durham University seeks to make an appointment in Climate Change Law and Governance. Details of the post are available here. This appointment is part of a major investment in climate change at Durham, represented by the imminent founding of the Climate Impact Research Centre (CIRC), bringing together experts across multiple disciplines. The holder of this post will primarily be based in Durham Law School.

3) Abstract submissions are sought for a conference on Interpretation and International Law, to be held at the University of Cambridge on August 27 2013, with the support of the Faculty of Law and the Lauterpacht Centre for International Law. The relevance of interpretation to the academic study and professional practice of international law is inescapable. Yet interpretation in international law has not traditionally been examined as a distinct field. Given that international law is constituted, in practical terms, by acts of interpretation, there is a need for greater methodological awareness of interpretive theory and practice in international law.

Proposed panels include: interpretation and legal doctrine; interpretation and the sources of international law; interpretation and the interpreters; interpretation and the international legal order; interpretation and cultural contingency; and interpretation and indeterminacy.

Keynote presentations include: Judge Sir David Baragwanath (President, Special Tribunal for Lebanon); Professor Andrea Bianchi (The Graduate Institute, Geneva) and Ingo Venzke (University of Amsterdam).

Abstract submissions must be between 300-500 words in length and should be accompanied by a short resume. Please submit applications to cambridgeinterpretation {at} gmail(.)com by 1 May 2013. Please address all other enquiries to Daniel Peat (dcp31 {at} cam.ac(.)uk) or Matthew Windsor (mrw48 {at} cam.ac(.)uk). Successful applicants will be notified by late May 2013.

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Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

Published on March 28, 2013        Author: 
Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.

Mathieu NgudjoloOn 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.

The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.

There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.

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Isaiah’s Echo: Progress, Prophecy, and the UN Charter

Published on March 27, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

The phrase “swords into plowshares” has been adopted by countless organizations campaigning for peace and is also frequently associated with the UN’s mission and international law more broadly. The full quote comes from the book of the Prophet Isaiah:

“He shall judge between the nations, and shall arbitrate for many peoples; they shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”

By a wonderful co-incidence this is chapter 2 verse 4 (2:4) of Isaiah and corresponds very closely to the prohibition on the use of force in Article 2(4) of the UN Charter (UNC):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

With the similarity in the numbering (the original Dumbarton Oaks draft called this “Chapter” 2 giving an even closer resemblance) it is tempting to think that the connection between the UNC and Isaiah was there from the UN’s inception. Swords into Plowshares statueThere is also a statue in the UN garden named “Let Us Beat Our Swords into Plowshares”.  Wikipedia even finds it necessary to inform us that, contrary to popular belief, these words from Isaiah are not in fact inscribed on the UN building’s foundation stone. Those words are actually engraved on a wall across the road.

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Welcome to the Blogosphere – SIDI Blog

Published on March 26, 2013        Author: 

Earlier this week, the Italian Society of International Law just launced its blog - SIDIBlog. The inaugural post by Annalisa Ciampi provides an Italian perspective on the Italy-India controversy on the shooting of two Indian fishermen [Tip: post is in Italian but non-Italian speakers can cut and paste into Google Translate]. Yesterday, EJIL:Talk! provided a commentary on that incident by Hari Sankar, an Indian academicSIDIBlog intends to be a space for discussion and debate of current issues of International Law (Public and Private) and European Union Law. The editors (Giacomo Biagioni, Giorgio Buono, Francesco Costamagna, Pasquale De Sena, Daniele Gallo, Irini Papanicolopulu, Cesare Pitea, Andrea Spagnolo) invite contributions, which may be written in Italian, English and French (and which should not exceed 1500 words). Posts may be sent to the following e-mail address: sidiblog2013 {at} gmail(.)com

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Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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