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The Constitution of EU Counter-Terrorism Law

Published on July 16, 2012        Author: 

Cian C. Murphy is a lecturer in law at King’s College London the author of EU Counter-Terrorism Law: Pre-emption & the Rule of Law.

Over the past decade counter-terrorism law has come to be understood as a distinct field of study for legal scholars. Part constitutional law, part criminal, and – increasingly – part administrative law, counter-terrorism law lacks a coherent jurisprudence but instead has as its core a common aim: the combating of ‘terrorism’. This is also true in EU law. EU counter-terrorism law is rarely identified as a field of law because its boundaries are difficult to demarcate. The EU Council Action Plan Against Terrorism is a rather unwieldy document – it contains a wide range of legal and non-legal measures – which overlaps with several other strategic fields. Yet the EU has played a significant role in counter-terrorism in Europe since the September 11 2001 attacks, and indeed counter-terrorism has shaped several fields of EU law, in particular Justice and Home Affairs. EU counter-terrorism law can be said to include the Framework Decision on Combating Terrorism and the sanctions that gave rise to both the Kadi and OMPI litigation, but also the European Arrest Warrant (which only became politically palatable after the September 11 attacks), and the wide range of controversial surveillance systems that have been precipitated by the EU’s co-operation with global counter-terrorism efforts.

If identifying EU counter-terrorism law is somewhat difficult then characterising the law is an even more troublesome task. In the United States, counter-terrorism actions since 2001 have been described as attempting to normalise the exception: establishing a seemingly permanent emergency to allow extraordinary law enforcement and security powers to be extended. Perhaps the greatest distinction between the US and EU approach to counter-terrorism can be caught through this idea of the ‘exception’. It has become de rigueur to begin any analysis of President George W. Bush’s response to the September 11 2001 attacks with the citation of Carl Schmitt’s statement that ‘sovereign is he who decides on the exception’. The attempts by the Bush administration to step ‘outside’ the legal constraints of the US Constitution, international human rights law and laws of war by declaring an ‘exception’ have been well documented.

However, no such declaration has, or could be made, by the EU. The EU has no coercive power of its own but relies on that of the Member States. Europol does not consist of jurisdiction-hopping cops as is sometimes portrayed by film or television but of intelligence officers that co-ordinate national law enforcement officers. The EU legal system is heavily reliant on the co-operation of domestic and supranational actors to ensure the enforcement of its law. As such, any attempt to ‘declare the exception’ by an EU President would be fruitless (not least because it is unclear which President would declare it). It is therefore unsurprising that, although sometimes used by Member State governments, the language of a ‘war on terror’ has been entirely absent from EU counter-terrorism discourse.

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Peer Review in Crisis

Published on July 12, 2012        Author: 

EJIL and its sister publication, I-CON are peer-reviewed journals. This is a counter-cultural posture in an age which celebrates, for some very good reasons (and some less admirable), the freedom that self-publication on the internet provides. Our own very successful Blog, EJILTalk!, is an example of a highly interesting and useful form of self-publication and I-CONnect will be launched soon. There are surely others like ours. SSRN is a more ambiguous example, but even there, there are some diamonds in the rough, if you have the patience to do some heavy-duty prospecting and sifting. Be that as it may, SSRN is not just part of contemporary academic culture; it is a defining part, both reflective and constitutive.

There is a place, we maintain, for discernment in publication, including external referents. There are some weeks where the (electronic) mailman (in the form of ScholarOne) sends my way one or even more articles per day for both EJIL and I-CON. We need to select, not simply because the economy of a journal dictates such, but because we try to give our readers a certain guarantee of quality, even excellence. We know, too, that in many countries, publication in a selective, peer-reviewed journal plays an important role in appointment, promotion and tenure.

At the heart of such a system is, indeed, peer review. This institution is in serious crisis, which is evident in the functioning of both journals. I have discussed the issue with other Editors in other journals and the situation is the same elsewhere. I am, thus, taking the extraordinary step of publishing a similar editorial in both EJIL and I-CON.

At EJIL (and I-CON) we try to practise double-blind peer review: in principle, the reviewer should not know the identity of the author, and the author, obviously, is not privy to the identity of the reviewer. The double-blind principle is not always achievable. We do not have the resources to scour each and every article that goes out to review and excise from it all tell-tale signs, notably footnotes of the ‘see-my-treatment in…’. Some authors have a distinct voice which is impossible to conceal. And, as I explained in greater length in an earlier Editorial (‘Demystifying the EJIL Selection and Editorial Process’, at 22 EJIL (2011)), since we like each piece we publish to have had critical scrutiny by at least two sets of eyes, oftentimes one of the peers is myself; obviously I am aware of the identity of the author. In that case the double-blind principle will apply only to one of the reviews.

We give considerable thought to the selection of ‘peers’. We look for people who have expertise in the field and whose own publications meet our yardstick of excellence. We make liberal use of our own Scientific Advisory Board and Members of the Editorial Board. But given the volume and diversity of submissions we receive, even after our in-house screening which reduces the numbers considerably, we need to venture outside and turn to the legal academic community at large.

Why crisis? Read the rest of this entry…

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The European Law Institute

Published on July 11, 2012        Author: 

EJIL is delighted to reprint the following information received from Sir Francis Jacobs, President of the newly established European Law Institute.

The European Law Institute was founded in 2011 as an entirely independent organization, with the aim of improving the quality of European law, understood in the broad sense. It seeks to initiate, conduct and facilitate research, to make recommendations, and to provide practical guidance in the field of European legal development.

The Institute will study and stimulate European legal development in a global context. This will include, but by no means be limited to, the development of European law by the European Union and the Council of Europe. Other fields of national law will be included and the Institute’s scope may also encompass the development of international law, both public and private.

The process of founding the Institute as a pan-European body generated a high degree of enthusiasm for the idea, an enthusiasm which has been reflected in the many expressions of interest and the large number of applications for membership. The Institute is now established at the University of Vienna, where an inaugural ceremony was held on 17 November 2011, and where the Secretariat is based.  Read the rest of this entry…

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Council of Europe Ministers adopt declaration to address libel tourism

Published on July 11, 2012        Author: 

For those interested in matters of jurisdiction and cross-border litigation, the Committee of Ministers of the Council of Europe has now adopted a declaratory text alerting its 47 member states to what it termed the “serious threat to freedom of expression and information” posed by the practice of libel tourism – a practice where one chooses a plaintiff-friendly jurisdiction in which to bring a libel suit against a journalist, publisher, or academic. In calling for the reform of defamation laws in Europe to prevent libel tourism, the Committee of Ministers is also calling for some uniformity of standards.

For those unfamiliar with the organs of the Council of Europe, the Committee of Ministers is the Council’s executive body, consisting of all Foreign Ministers from the Council’s 47 member states or their deputies. The declaration adopted last week, while not a legally binding text, serves to add the voice of a weighty regional group of states to the claim that libel tourism and forum shopping in defamation cases can produce a chilling effect on expression and the availability of information. A copy of the declaration, entitled the “Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression,” can be found here.

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New Issue of EJIL [Vol 23, No.2]: In this Issue

Published on July 10, 2012        Author: 

We begin this latest issue of the European Journal of International Law with a high-profile exchange on Europe and Democracy between Armin von Bogdandy and Jürgen Habermas, who, despite the ambient malaise, believe in the promises of the European Union as a model for the democratization of the international arena.

In this issue, we feature three articles illustrating the eclecticism that characterizes EJIL: Leora Bilsky’s article, assessing the contribution of transnational holocaust civil litigation to conceptions of justice in international law; Virginie Barral’s article which revisits the issue of the legal status of sustainable development; and the article by Giuseppe Martinico which explores a possible convergence in the way national courts deal with both the ECHR and EU law.

Roaming Charges shifts from Moments of Dignity back to Places. In this issue it is Places of Entry – Tel Aviv Airport.

In this issue we publish a symposium on the EU and Climate Change that tackles the recent inclusion of aviation in the EU’s emissions trading scheme (ETS) from two different perspectives. Lorand Bartels addresses the legality of the scheme under WTO law whereas Joanne Scott and Lavanya Rajamani stress the relevance of the principle of Common but Differentiated Responsibilities and Respective Capabilities in the context of unilateral climate action.

This issue also displays two of our occasional series, Critical Review of International Jurisprudence and Critical Review of International Governance. In the first series, Alberto Alvarez-Jiminez proceeds to a systematic analysis of the different modalities of disputes over boundary agreements, featured  in the ICJ’s jurisprudence over the last decade. In the second series, Jakob Cornides gives us a foretaste of what the EU anti-discrimination policy might entail.

We are hugely proud of EJIL’s book reviewing under the leadership of Professor Dr Isabel Feichtner of Frankfurt University. I think the selection of books for review is judicious and the various creative forms in which the reviews take place enhance and underlie the seriousness with which we take ‘the book’ in the age of the internet. In another example of creative innovation we introduce in this issue a further type of review essay – the review of A Life’s Work. This type of review does not assess, like our other reviews, individual books or developments in the literature on a particular topic. Instead, it concentrates on a scholar and critically assesses his or her writings, their impact on international law scholarship and their continued relevance in the world of today. An essay by Jorge Viñuales on the writings of Michel Virally begins this occasional series and focuses on Virally’s writings on International Organizations.

We also publish a Review Essay by Gregory Shaffer, who offers a transnational take on Nico Krisch’s pluralist structure of post-national law.

The Last Page poem is Nocturnal Vision by Elliot R. Wolfson.

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Insights into the world of the foreign office lawyer

Published on July 9, 2012        Author: 

I’ve long been a fan of Joshua Rozenberg, who I believe is one of the best legal commentators in the United Kingdom, and among other activities, is the presenter of a worthwhile program called “Law in Action” for BBC Radio 4, which I listen to in Canada via podcast.

Recently, while going through last month’s podcast collection, I listened with interest to Rozenberg’s first program for the summer 2012 season, entitled “Secret courts, drones and international law” which featured an interview with Sir Daniel Bethlehem KCMG QC, (or “Kindly Call Me God” as the old joke goes), the former principal Legal Adviser with the UK’s ministry of foreign affairs, the Foreign and Commonwealth Office (FCO). Rozenberg also interviewed EJIL Talk’s own blogger-extraordinaire Dapo Akande as well as Mary-Ellen O’Connell of the University of Notre Dame for this program, which aired in early June, but you can still listen to it here.

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Irish Yearbook of International Law – Call for Papers – Symposium Issue Climate Justice in International Law

Published on June 29, 2012        Author: 

The Editors of the Irish Yearbook of International Law invite submissions for a special symposium issue on Climate Justice in International Law.  Papers on the following themes (and others) are welcome:

(1) Climate Justice, Regulation and Risk ; (2) Concepts of Justice, International Law and Climate Change; (3) Climate Justice, Equity and Rights ; (4) Global Governance, global institutions and international environmental law ; (5) Climate Justice – Right to Development; Climate Justice, Migration  and Asylum

Symposium articles should not exceed 12,000 words in length and should not be published or under consideration for publication elsewhere. Selected papers will appear in Vol VI of the Yearbook.

In addition to symposium articles, papers on general issues of international law are welcome for the ‘Articles’ sections and reviewed on an ongoing basis.   Read the rest of this entry…

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Karadzic Trial Chamber Finds No Genocide in Bosnia but for Srebrenica

Published on June 28, 2012        Author: 

Today the ICTY Trial Chamber trying Radovan Karadzic, the former president of the Bosnian Serbs, delivered an oral order on the defendant’s ‘no case to answer’ motion for acquittal under Rule 98 bis of the ICTY RPE, under which the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The standard for doing so is whether a reasonable trier of fact could be satisfied beyond a reasonable doubt of the accused’s criminal responsibility on a particular count of the indictment.

A press release on the order is available here. A formal written decision will follow. In a nutshell – and this is hardly news – the Chamber upheld 10 counts of the indictment, finding that a reasonable trier of fact could be satisfied beyond a reasonable doubt that Karadzic was criminally responsible through a JCE for the crimes alleged, including the Srebrenica genocide. What is news, however, is that the Chamber granted Karadzic’s motion with respect to the count charging him with genocide outside Srebrenica in July 1995, in selected other municipalities in Bosnia:

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Thinking about Tom Franck’s Thoughts

Published on June 27, 2012        Author: 

Tom Franck, University of Glasgow Honorary LLD graduation, July 2004

Professor Thomas Franck died on 27 May 2009.  He was a good friend and I remember him fondly.  I would probably remember a lot more had he not made such killer martinis.  Very dry, straight-up, with a twist.  This was meant to have been posted on the anniversary of his death, but the exigencies of exam marking and a trip to Scotland for my brother’s wedding delayed matters.  Tom would no doubt be amused that I got lost along the way and was late, as usual.

My colleague, Dr Catriona Drew, and I organised a memorial conference at SOAS on the first anniversary of Tom’s death.  This is a rewritten version of one of the papers I gave that day.  Tom, I think, played a variety of roles in his publications.  At times, he commented, writing pithy short articles, especially for the American Journal, analysing developments.  At other times, he was what could truly be called a publicist, taking international law out of our invisible academy to other interested groups, to reach out to people who are not like us—for instance, to domestic judges as well as to those civilians who have never been lawyers.  There were also his more lengthy academic expositions of substantive issues.  He wrote for diverse audiences on diverse topics.  As Dickens would have said, he did the police in different voices.  (But, believe me, when he tried to do a Scots voice it was atrocious—more like a squeaky Boston–Irish.) Read the rest of this entry…

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Kiobel: The US steals the headlines in first round of supplemental briefs on universal civil jurisdiction under the Alien Tort Statute

Published on June 26, 2012        Author: 

In an earlier post, I considered the US Supreme Court’s re-argument order in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The order concerned whether US federal courts may rely on the Alien Tort Statute (“ATS”) to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?

Earlier this month, the petitioners, a group of 12 Nigerian victims of crimes against humanity, filed their supplemental opening brief on this issue. Nine amicus briefs in support of the petitioners and four amicus briefs in support of neither party were also filed with the US Supreme Court.

In this post, I discuss the amicus brief filed by the US government. The US brief raises a number of interesting issues, in particular the extent to which theUS government has changed its position in respect of the permissibility and limits of universal civil jurisdiction under the ATS, particularly in comparison with US briefs submitted in earlier ATS cases, as well as the failure of the State Department to sign the brief. After considering these issues, I offer a critique of the US brief, focusing in particular on the failure of theUS to substantiate its assertion that universal civil jurisdiction does not violate international law. I conclude by analysing the submissions put forward in other supplemental briefs in support of this assertion.

The US Supplemental Brief – A Change of Position?

The headline development from this round of filings is undoubtedly the new position set out by the US government in its supplemental brief. Contrary to its earlier support of the petitioners, the US now argues that the Supreme Court should not allow the human rights claims in Kiobel to proceed. Read the rest of this entry…

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