Integration Through Fear

Published on April 3, 2012        Author: 

Quos Deus vult perdere prius dementat! The manner in which Europe is addressing its grave crisis seems to be validating this piece of wisdom attributed to Euripides, Seneca and others.

One manifestation is an argument which has become prevalent. In his very first speech as Premier elect to the Italian Senate, Mario Monti warned that ‘the end of the Euro would unravel the single market, its rules, its institutions, and would take us back to where we were in the 1950s’. The same nonsensical scare tactics – if the Euro fails, so does Europe as a whole – have been used by all major European leaders, from Barroso and van Rompuy to the Merkozy twins.  

The argument is, of course, simply false. The Single Market, the most singular and enduring economic achievement of Europe, operates today across the Euro divide. Ten of the 27 Member States do not belong to the Euro and in some of these countries their currency is not even pegged to the Euro. Sure, fixed exchange rates facilitate the functioning of the market. And a break up of the Euro will be incredibly messy and wreak havoc within that market. But unless one turns this into a self-fulfilling wish, and that is rapidly becoming the case, the actual existence of the Single Market never was, and still is not, dependent on some or all of its Members having a single currency.

Why is this nonsense peddled? Linking the fate of the Euro to the very existence of the Union offers a powerful tool with which to bludgeon one’s opponents and public opinion as a whole. Thus, each of its proponents uses it to advance positions and policies which at times are even at odds with each other.  

Beyond its falsity, it is a reckless tactic, a Faustian compact, deeply injurious, and one which will return to haunt us regardless of the fate of the Euro. Read the rest of this entry…

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Essential EJIL Statistics for 2011

Published on April 2, 2012        Author: 

Last year we published quite extensive statistics for EJIL over the last 20 years. Here is an update of our vital stats for 2011. The stats relate both to submissions during 2011 and articles published. The published articles will, by the nature of things, include many submitted the preceding year. Synchronizing would be very time consuming. I do not think that leaving the numbers as is distorts the overall picture. I want to remind our readers that we practise no form of affirmative action, in respect of either solicited or unsolicited manuscripts.


Of the total number of manuscripts submitted, 79% came from men and 21% from women. Of these, manuscripts accepted for publication were 71% by men and 29% by women.  In 2011 67% of published articles were by men, and 33% by women.

Regional origin

48% of articles submitted originated in EU countries, 8% originated from Council of Europe countries outside the EU, 8% came from the US and 36% from the rest of the world. Of this cohort of submissions, the percentage eventually to be published will be as follows: EU 65%; CoE other than EU 2%;  USA  11%;  Rest of the World 23%. Of articles published in 2011 65% were EU origin, 3% CoE other than EU, 18% USA, 14% rest of the world. 

Linguistic origin

42% of submissions came from English-speaking countries and 58% from non-English-speaking countries.  In 2011 54% of articles published came from non-English-speaking countries and 46% from English-speaking countries.

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From the Editor’s Postbox: The Language Issue – Redux

Published on April 2, 2012        Author: 

From time to time I receive missives from frustrated authors complaining about the linguistic policy of EJIL – we are an English-language journal, though, as seen in my other editorial item on statistics, a majority of our published articles come from non-English-speaking countries. Here is the pertinent sentence from a recent letter:

 It is a shame that the EJIL forces all the authors to write in English – there is indeed in my eyes nothing European in such a stance. That is also the reason why I usually categorically refuse to write for your journal;

Here are some excerpts from my reply to the author:

 Dear Colleague, 

OUP forwarded to me your angry email of December 15th. I am sorry you find our policies so frustrating that you decided to express yourself as you did. 

There is no easy solution to the problem you raise given the linguistic diversity in Europe. EJIL started as an English-French Journal. There were two problems with that solution. First, many colleagues in Germany, Italy, Spain etc. found a one language solution more acceptable than a two language solution – the other language being French. They did not think it any more ‘European’ and just a hangover from a post war political era which exploited a moment of Anglo-French domination. Whether right or wrong, the resentment was quite real. Read the rest of this entry…

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The ‘left-to-die boat’: whose responsibility for the death of 63 migrants in the Mediterranean?

Published on March 31, 2012        Author: 

 Francesco Messineo is lecturer at Kent Law School, Canterbury.

Given the relative lack of media hype (with notable exceptions, see also here), readers may have missed the Council of Europe Parliamentary Assembly’s scathing report on the ‘left-to-die boat’ in the Mediterranean. On 27 March 2011, during the UN-authorized NATO military operations in Libya (see UNSCR 1973(2011)), a dinghy with 72 migrants (some of whom children) was making its way from Tripoli to Lampedusa when it run into difficulties for lack of fuel and food/water supplies. The ‘captain’ of the dinghy contacted a priest in Italy who swiftly alerted the Guardia Costiera (Coast Guard). The Italian authorities informed NATO of the coordinates of the ship in distress and sent repeated ‘ship in distress’ messages to all nearby vessels via satellite. An unidentified helicopter offered water and biscuits to the migrants and an unidentified warship passed very close nearby. Fishermen vessels also passed nearby. Spanish and Italian military vessels were apparently within easy reach. Yet no one rescued the migrants – and 63 of them died before the dinghy was brought by currents back to a city in Libya, after two weeks from their departure.

The United Nations estimates that at least 1,500 migrants died at sea in 2011 alone, but something is particularly harrowing about this case. The Italian government, the Spanish government, NATO (which had established a ‘maritime surveillance area’) and other countries knew the location of the dinghy, knew what the situation was, but omitted to intervene and effectively left 63 people to die of hunger and thirst in a portion of sea otherwise crowded with military and other ships (some of which precisely in charge of protecting the Libyan civilian population).

Among the many maritime borders and delimitations in the Mediterranean sea, one of the most important ones is the Search And Rescue (SAR) areas established under the International Maritime Search and Rescue Convention (1405 UNTS 118, as amended). Although this incident took place in the Libyan SAR, the Italian government, which had first received information about the distress, was probably under an obligation to coordinate a rescue operation. In fact, the Italian government today acknowledged its responsibility for the events. Minister Riccardi said that the government ‘accepts responsibility for this’, adding that these facts had ‘touched [him] very much’ and that they must provoke a rethinking of migration policies. The legal consequences of this acceptance of responsibility are important: Italy should now immediately proceed to compensate the survivors and the families of the victims for the suffering caused by Italy’s breach of its international obligations. Although commendable, ministerial apologies are certainly not enough. Read the rest of this entry…

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EJIL Vol. 23, Issue 1: In this Issue

Published on March 31, 2012        Author: 

We open this issue with a challenging article by Armin von Bogdandy and Ingo Venzke on the quest for democratic legitimacy of international adjudication in an age of both globalization and fragmentation. If this article sets the theoretical scene, the following two contributions give flesh and bones to such a concern and its challenges by looking, albeit in different ways, at the intertwinement between the international and the national realms. On the one hand, Marlies Glasius addresses the legitimacy gap that might exist between an international court and the realities of a national situation by studying the particular case of international criminal justice. Should international criminal courts be democratically accountable to populations affected by crimes in order to be legitimate? On the other hand, Carlos Espósito and Carrillo-Santarelli analyse the legitimatory function that national judges can exert in relation to international law. How can judicial actors situated at the national level operate as protectors of global legal goods? Lastly, David Koller explores another facet of the situatedness of international law: its cartography as an historicized narrative which gives to international law a more or less explicit normative direction.

As part of our occasional series, Critical Review of International Jurisprudence, we publish three pieces that shed light on some important recent developments. In the first piece, Marko Milanovic, a new Member of our Scientific Advisory Board, critically examines the reasoning behind the 2011 judgments of the European Court of Human Rights in Al Skeini v. United Kingdom and Al-Jedda v. United Kingdom, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures. In the second piece, Matthew Parish studies a recent opinion of the European Court of Justice, striking down a proposed European and Community Patents Court; he stresses and questions the importance of the ECJ’s self-perception as the final arbiter of EU law in its ruling. In the third piece, Agnieszka Szpak reviews the jurisprudence of the ad hoc International Criminal Tribunals in regard to the definition of a national, ethnical, racial or religious group as protected groups against genocide. Read the rest of this entry…

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Cambridge Journal of International Law Conference: “Agents of Change: The Individual as a Participant in the Legal Process”

Published on March 30, 2012        Author: 

The Cambridge Journal of International and Comparative Law  will be holding a conference – “Agents of Change: The Individual as a Participant in the Legal Process” – on 19 and 20 May 2012. The keynote addresses at the conference will be delivered by  Judge Antonio Augusto Cancado Trindade (on which see recent commentary here and here on this blog) and Professor James Crawford SC. Other highlights include a welcome address by Sir Elihu Lauterpacht CBE QC and a special talk by Professor Philippe Sands QC.

In addition, the Journal will be launching its first two issues at the conference and every delegate will receive a complimentary copy. For a full programme of events and to register, visit the journal’s website.

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Canada’s Alien Tort Statute

Published on March 29, 2012        Author: 

Professor René Provost, Faculty of Law and Centre for Human Rights and Legal Pluralism, McGill University

A few days ago, Canada moved to follow the Alien Tort Statute model found in the United States and open the door to file suits in damages against foreign states and others linked to acts of terrorism. The new law provides for both a basis of jurisdiction of Canadian courts and removes the immunity of foreign states in certain circumstances (see also Joanna Harrington’s post).

Bill C-10, an Omnibus criminal law statute, was adopted by the Canadian Parliament last week. The bill generated intense political debate and media attention, but largely for another section which imposed mandatory minimum sentences for a series of criminal acts. The scope of the Bill is well illustrated by its full title: “An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts”. One of the nine distinct sections of the bill which attracted considerably less attention in the mainstream media – and indeed in Parliament itself – is the Justice for Victims of Terrorism Act The law brings Canada into the very small group of states in which it is possible to use domestic courts to seek redress for violations of international law. It is noteworthy that the Act is limited to responsibility for acts of terrorism, and does not cover other violations of international law such as torture and war crimes, despite some earlier calls for a wider ambit.

The first part of the Justice for Victims of Terrorism Act creates a cause of action in Canada for damage or loss which occurred anywhere in relation to a terrorist act, if certain conditions are met. If the plaintiff is a Canadian citizen or permanent resident, no further territorial link is required. The Act opens the door to a suit in damages even for plaintiffs who do not have a nationality or residency link to Canada if there is a “real and substantial connection” to the country. This refers to the standard adopted by the Supreme Court of Canada in Libman v. The Queen, [1985] 2 SCR 178 to establish a territorial basis for criminal prosecution, which was later relied upon in other areas as well. The connection demanded in order to satisfy the “real and substantial” test has been interpreted quite broadly, to include not only any phase of the crime but also its repercussions. As such, the door which is opened by the Act is overall quite broad. Read the rest of this entry…

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If not torture, then how about terrorism – Canada amends its State Immunity Act

Published on March 28, 2012        Author: 

Most of our immunity-related discussions in recent weeks have focused (naturally) on the recent ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening). But there are new developments at the domestic level worth noting, including the passage this month of amendments to Canada’s State Immunity Act to allow victims of terrorism to sue the perpetrators in a Canadian court, including foreign states listed by the Government of Canada as supporters of terrorism.

As in many other states, Canada has embraced a restrictive rather than absolutist approach to the question of foreign state immunity from the jurisdiction of a state’s domestic courts. The legislative scheme adopted some thirty years ago in Canada embraces the concept of foreign state immunity from domestic court jurisdiction, but also provides for certain specified exceptions. For example, the commercial activity exception, which provides that: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.” See section 5 of the above-referenced Act, and the definition of “commercial activity” in section 2.

But these exceptions to immunity are few in number and they do not address the question of jus cogens breaches committed by foreign states. Within Canada, this situation has led to efforts to expand the current list of statutory exceptions so as to permit an individual to sue a foreign state for torture in a Canadian court, with the unsuccessful case of Bouzari v. Islamic Republic of Iran being the notable example, and one which resulted in criticism of Canada before the Committee against Torture (CAT). Read the rest of this entry…

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The Naked Rambler

Published on March 26, 2012        Author: 

A few days ago the Guardian published a remarkable story on Stephen Gough, a former royal marine, who has since 2006 been incarcerated in various UK prisons, mainly in Scotland. He is generally kept segregated from the prison population, for the past two years in effect being in something closely approximating solitary confinement. Gough’s crime? Not terrorism or anything else of the sort. He just doesn’t want to wear clothes in public – at least not in Scotland:

On 18 May 2006, a fully-clothed Gough boarded a 6.45am flight from Southampton. After the pilot announced the descent into Edinburgh, Gough visited the toilet and emerged naked. “I knew I wanted to go to court naked and I suddenly thought, why not now? The flight attendant asked if I’d put my clothes back on. I said politely that I wouldn’t and she went away. Nothing happened until we landed and the police came on.”

Gough was arrested. His solicitor at the time, John Good, describes a court hearing not far short of slapstick. It emerged that after Gough returned naked from the toilet, the male passenger sitting next to him reacted by falling asleep. The arresting officer’s only issue in removing Gough from the plane was the delighted reaction of a hen party. For Gough, however, his midair strip meant a four-month sentence. He has been in prison ever since.

Gough isn’t mad. “They do evaluations all the time.” He smiles. “I’m on top of my game mentally. I’ve got clarity. If I feel down, then I’m straight on the case, trying to work out why.”

He emerged from more than two years of segregation with faultless psychological examinations. “If you or I spent two years in segregation,” Good says, “we’d probably show signs of trauma. It just shows how focused he’s become. He’s immune to his surroundings.”

Gough agrees: “I live at a deep level.” Yet he admits to experiencing doubts about his stance. “Yeah, of course. I wake up in the morning and think, what the fuck am I doing here? But what I’m doing isn’t about me. I’m challenging society and it must be challenged because it’s wrong.”

In Scotland, breach of the peace is partly defined as “conduct which does, or could, cause the lieges [public] to be placed in a state of fear, alarm or annoyance”. The prosecution has very rarely managed to rustle up witnesses to claim Gough’s nakedness has had any of these effects on them. What is keeping him in prison is simply the theoretical idea that it could.

“I do not believe that an ordinary, reasonable person would feel any of those things if they saw me [naked] in the street,” Gough says. He believes that to achieve his stated aim – to leave HMP Perth and return to Eastleigh naked – “the law doesn’t have to change, just the interpretation”.

Twice Scottish sheriffs found in Gough’s favour that no crime had been committed, both in him being naked in public and being naked in court. “Both times the sheriffs were elderly females,” notes Good, who represented Gough for more than three years (they parted company in 2010 so Gough could represent himself, making it harder for him to be excluded from the courtroom for being naked). “Stephen then chose to leave court naked and was arrested for being naked in public.”

Initially, Gough was a legal novelty in Scotland and support came from surprising quarters. In 2008, Edinburgh-based solicitor Joe MacPherson prosecuted Gough, a position with which he says he was uncomfortable. “I looked at the case and thought a man walking down a public street would not cause the requisite fear and alarm to an ordinary person. It would be odd, or amusing perhaps, but nothing more. The judge said his hands were tied. Seeing a man’s penis was felt to be enough to cause fear and alarm.”

Eventually Gough’s case was heard at Scotland’s appeal court, where it was found that breach of the peace should indeed be interpreted to criminalise his behaviour. Since then Scottish sheriffs have fallen in line; his sentences have steadily increased to the maximum and, should he keep refusing to dress, he will be caught in an endless cycle of two-year sentences. He insists if he were allowed to return home naked to Eastleigh, he’d cease being naked in public “when I don’t have to do it any more”.

Read the rest of this entry…

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Call for Proposals – Collective Redress in the Cross-Border Context

Published on March 26, 2012        Author: 

Large-scale international legal injuries are becoming increasingly prevalent in today’s globalized economy, whether they arise in the context of consumer, commercial, contract, tort or securities law, and countries are struggling to find appropriate means of providing collective redress, particularly in the cross-border context.  The Hague Institute for the Internationalisation of Law (HiiL), along with the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS), will be responding to this new and developing challenge by convening a two-day event on the theme “Collective Redress in the Cross-Border Context:  Arbitration, Litigation, Settlement and Beyond.”  The event includes two different elements – a workshop on 21-22 June 2012 comprised of invited speakers from all over the world as well as a works-in-progress conference on 20-21 June 2012 designed to allow practitioners and scholars who are interested in the area of collective redress to discuss their work and ideas in the company of other experts in the field.  Both events are organized by the Henry G. Schermers Fellow for 2012, Professor S.I. Strong of the University of Missouri School of Law.

Persons interested in being considered as presenters for the works-in-progress conference should submit an abstract of no more than 500 words to Professor S.I. Strong at strongsi {at} missouri(.)edu on or before 1 May 2012.  Decisions regarding accepted proposals will be made in early May, and those whose proposals are accepted for the works-in-progress conference will need to submit a draft paper by 4 June 2012 for discussion at the conference.  All works-in-progress submissions should explore one or more of the various means of resolving collective injuries, including class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation, preferably in a cross-border context.  Junior scholars in particular are encouraged to submit proposals for consideration.

Persons presenting at the works-in-progress conference will have to bear their own costs, since there is no funding available to assist with travel and other expenses.  The works-in-progress conference will be held on 20 and 21 June 2012 at NIAS, Meijboomlaan 1, 2242 PR Wassenaar, The Netherlands.  Wassenaar is approximately 20 minutes from The Hague by car.  The workshop of invited speakers will be held on 21 and 22 June, also at NIAS. Both the Schermers workshop and the works-in-progress conference are open to the public, although advance registration is required.  More information on both events is available at the HiiL website ( or from Professor Strong at strongsi {at} missouri(.)edu.

Contact:  Prof. S.I. Strong at strongsi {at} missouri(.)edu

Deadline for proposals:  1 May 2012

For more on the Henry G. Schermers Fellowship at HiiL/NIAS, see:

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