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Announcements: EJIL:Live!; Junior Scholar Workshop, UBC Law School; Event in London on Applying International Humanitarian Law; Crimea Conference in Warsaw

Published on November 1, 2014        Author: 

1) In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

2) Junior Scholar Workshop – Law and Human Rights in the Global South: the Role of the State and the Non-State, UBC Law School, June 8-10, 2015. At this point in history it is trite to suggest that the evolving role of non-state actors is transforming the landscape of human rights law. Yet despite repeated calls to incorporate the reality of non-state actor law-making in our accounts of human rights law, scholars are still struggling to incorporate this empirical insight in the emerging literature of law and human rights. How can human rights law be further enriched by a nuanced understanding of the ways in which non-state actors are both protecting human rights and preventing the realization of these rights? And what is the role of the state in protecting human rights in an era where security, immigration control and global trade appear to dominate state political agendas? This Workshop invites submissions on all these themes, including papers addressing the scope, impact and future of human rights as they apply to the corporate world. For full details, including information about application processes, please see the official flier here.

3) On November 18th the UCL Faculty of Laws will be hosting an event on account of the recent publication of the volume titled “Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects”. Discussants are Roger O’ Keefe (UCL), Marko Milanovic (University of Nottingham) and Kimberley Trapp (UCL). Solon Solomon (King’s College London) will render the introductory to the volume speech. Reception will follow. Registration for the event has opened here.

4) International Conference: “The Case of Crimea in the Light of International Law: its Nature and Implications”, 19-20 March, Warsaw, Poland (call for papers). The Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of Polish Academy of Sciences are pleased to issue this call for papers relating to the international conference “The Case of Crimea in the Light of International Law: its Nature and Implications” (19-20 March 2015, Warsaw, Poland). Detailed information and the registration form are available here. In case of any further questions and to submit proposal please contact crimeaconference2015 {at} yahoo(.)pl.

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New Issue of EJIL (Vol. 25: No. 3) Out Next Week

Published on October 31, 2014        Author: 

The latest issue of the European Journal of International Law will be published Wednesday. Beginning Monday, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents:

Editorial: Sleepwalking Again: The End of the Pax Americana 1914-2014; After Gaza 2014: Schabas; Peer Review Redux; In this Issue

 

Articles

Jan Klabbers, The Emergence of Functionalism in International Institutional Law: Colonial Inspirations

Michelle Leanne Burgis-Kasthala, Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood

Mark Chinen, Complexity Theory and the Horizontal and Vertical Dimensions of State Responsibility

Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

 

EJIL: Debate!

Mónica García-Salmones Rovira, The Politics of Interest in International Law

Jörg Kammerhofer, The Politics of Interest in International Law: A Reply to Mónica García-Salmones Rovira

Mónica García-Salmones Rovira, The Politics of Interest in International Law: A Rejoinder to Jörg Kammerhofer

 

Roaming Charges: Moments of Dignity: Keepers of the Sultan’s Treasures, Brunei Regalia Museum

 

 The European Tradition in International Law: F.F. Martens

Lauri Mälksoo, F. F. Martens and His Time: When Russia was an Integral Part of the European Tradition of International Law

Rein Müllerson, F. F. Martens – Man of the Enlightenment: Drawing Parallels between Martens’ Times and Today’s Problems

Rotem Giladi, The Enactment of Irony: Reflections on the Origins of the Martens Clause

Andreas T. Müller, Friedrich F. Martens on ‘The Office of Consul and Consular Jurisdiction in the East’

 

Critical Review of International Governance

 Shashank P. Kumar and Cecily Rose, A Study of Lawyers Appearing before the International Court of Justice, 1999-2012

 

Review Essay

Gleider I Hernández, The Judicialization of International Law: Reflections on the Empirical Turn. Review of Karen J. Alter. The New Terrain of International Law: Courts, Politics, Rights; Cesare P.R. Romano, Karen J. Alter, and Yuval Shany (eds). The Oxford Handbook of International Adjudication; Yuval Shany. Assessing the Effectiveness of International Courts

 

Book Reviews

Edith Brown Weiss. International Law for a Water-Scarce World; Laurence Boisson De Chazournes. Fresh Water in International Law; Pierre Thielbörger. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right (Sara De Vido)

Kate Miles. The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (David Schneiderman)

Emmanuelle Tourme-Jouannet. What is a Fair International Society? International Law Between Development and Recognition (Ruti Teitel)

Lawrence O. Gostin. Global Health Law (Stéphanie Dagron)

Timo Koivurova. Introduction to International Environmental Law(Birgit Lode)

 

The Last Page

Keith Ekiss, Vietnam

Corrigendum

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The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

Read the rest of this entry…

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New additions to the UN Audiovisual Library of International Law

Published on October 30, 2014        Author: 

In a previous post of a couple of years ago, I highlighted the extensive series of video lectures on international law commissioned by the Codification Division of the United Nation’s Office of Legal Affairs.  The UN Audiovisual Library of International Law covers the full spectrum of international law topics and are delivered by a very impressive list of international lawyers. They include judges at international tribunals, leading academics and practitioners of international law.  The lectures provide high quality international law training and research materials to an unlimited number of recipients around the world free of charge.

The Codification Division of the UN Office of Legal Affairs recently added new lectures and introductory notes to the UN Audiovisual Library of International Law website. The latest lectures include one by me on “The Immunity of State Officials from Foreign Criminal Jurisdiction” and another by my Oxford colleague, Professor Guy S. Goodwin-Gill, on “Expulsion in Public International Law“. Both of these topics have been under consideration by the International Law Commission in its recent programme of work and the work of the ILC on these and other issues is under consideration this week by the Sixth (Legal) Committee of the United Nations General Assembly.

The UN Audiovisual Library also includes  introductory notes to significant legal instruments. These are introductions to legal instruments that are prepared by an eminent international law scholar or practitioner with special expertise on the subject. The latest introductory notes uploaded to the site  include the following: “Statute of the International Court of Justice” by Judge Antônio Augusto Cançado Trindade and “Articles on the Responsibility of International Organizations” by Judge Giorgio Gaja.

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Announcements: EJIL:Live!; Disaster Law Essay Contest; Conference at Queen Mary on EU Law and Public International Law; Launch in London of Book on Disaster Relief

Published on October 25, 2014        Author: 

1.  In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL. Read the rest of this entry…

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Let the Games Continue: Immunity for War Crimes before the Italian Constitutional Court

Published on October 24, 2014        Author: 

The issue is important, no doubt – to what extent do rules of immunity apply in respect of grave violations of international law? Over the past two decades, it has been addressed by lawmakers, the ILC, international and national courts in cases like Al Adsani, Jones, Bouzari and others – and of course in hundreds of articles, notes and books. In fact, few other questions have prompted as much intense debate in the literature. As the number of plausible arguments and approaches is finite (jus cogens, implied waiver, etc.), there was bound to be duplication and repetition. (Was I the only one gradually tiring of the debate?)

In any event, the ICJ’s judgment in Jurisdictional Immunities of early 2012 seemed to settle matters: immunity could be invoked in respect of war crimes, said the Court; jus cogens was not at issue; immunity had to be assessed as a preliminary matter and irrespective of the gravity of the allegations; grave violations could still be acts iure imperii; the territorial tort exception did not apply etc. In terms of international legal process, this seemed to show the Court at its strongest, acting as supreme arbiter in long-standing debates about the proper understanding of the law, and by virtue of its authority clarifying the state of international law.  ‘At last we have certainty’ wrote Andrea Bianchi on EJIL:Talk! . And in 2013, Italy passed legislation implementing the ICJ judgment.

Two and a half years on, it’s clear that the matter remains a live one. The ECHR’s judgment in Jones seemed to accept the authority of the ICJ’s decision, but raised questions about the scope of personal immunities. (See Philippa Webb’s post).  And in the past few weeks, things have accelerated. Two weeks ago, the High Court of England and Wales decided that a Bahraini prince is not immune from prosecution for torture allegations.

But that, it seems, was no more than the prologue: Because on Wednesday, the Italian Constitutional Court seems to have gone much further. It has quashed the Italian legislation implementing the 2012 judgment, which in its view violates constitutional provisions. The ICJ’s decision is duly addressed, but not followed. As my Italian is rudimentary (and as I have yet to find a translation of the decision), I will not even begin to discuss the merits and arguments set forward. All I want to do at this stage is draw readers’ attention to it. And suggest we all prepare for yet another round of debates about how to strike the balance between human rights and immunity. ‘Certainty at last?’ You wish.

UPDATE: Here is an English summary of the judgment, provided by Francesco Messineo, Honorary Research Fellow at Kent Law School.

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The Francis Lieber Prize

Published on October 23, 2014        Author: 

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

Criteria:  Any work in the English language published during 2014 or whose publication is in proof at the time of submission may be nominated for this prize.  The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit:  Competitors must be 35 years old or younger on 31 December 2014. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors.  Submissions from outside the United States are welcomed.

Submission:  Submissions, including a letter or message of nomination, must be received by 9 January 2015.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail.

Printed submissions must be sent to Professor Iain Scobbie, School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester  M13 9PL, United Kingdom

Electronic submissions must be sent to iain.scobbie[at]manchester.ac.uk. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2015.

In 2014, the winners were:

Dr Russell Buchan, for his book, “International law and the construction of the liberal peace,” published by Hart.

Professor Anna Spain, for her article, “The UN Security Council’s duty to decide”, 4 Harvard National Security Journal 320 (2013).

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A Few Thoughts on Hassan v. United Kingdom

Published on October 22, 2014        Author: 

Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.

(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).

The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).

In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.

Read the rest of this entry…

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On the Phylum and Logic of Human Rights

Published on October 20, 2014        Author: 

Back CameraDino Kritsiotis is Chair of Public International Law in the University of Nottingham, where he heads the International Humanitarian Law Unit of the Human Rights Law Centre (established in November 2012).

The question of the existence of a ‘general’ international human rights law suggests a discrete system of traditions, practices and routines that have taken form following the ‘heuristic references’ to human rights found in the Charter of the United Nations (Crawford, Brownlie’s Principles of Public International Law, 8th ed., 2012, p. 234). The idea of this exercise seems to be to extract the operating principles or systemic themes of this ‘specialist regime’ (Chinkin ‘Sources’, in International Human Rights Law, 2nd ed., 2014, p. 75),  even though this regime has evidently taken root ‘within general public international law’ (ibid.). It is thus because of this older, overarching system that human rights law possesses normative authority at the international level, though some have argued that its relationship with/in the discipline of public international law may now need to be reconfigured or rethought (for example, in introducing his International Human Rights Law: Cases, Materials and Commentary, 2nd ed., 2014, De Schutter considers that ‘the colonization of international law by human rights perfectly illustrates the formation of a “self-contained regime” (at p. 1)).

Perhaps it is important at this point to identify the level of our analysis. We are not concerned here with a functional assessment of how ‘human rights’ may or may not have been protected by public international law before their official conceptualization after World War II. Such an analysis was instructively undertaken by Brownlie for environmental protection in the Natural Resources Journal (1973), Vol. 13, pp. 179-189, where he concluded that ‘[t]hough the position may soon change, general international law (or customary law) contains no rules or standards related to the protection of the environment as such’ (p. 179; my emphasis). He went on nevertheless to specify how three aspects of the lex lata of that time had ‘major relevance’ for the realization of environmental protection: the rules relating to State responsibility; the territorial sovereignty of States and, finally, the concept of the freedom of the seas. If we were to attempt a similar exercise for human rights, we would presumably find that (general) public international law did aim towards the protection of human rights before they were known eo nomine as it were. We would find that the rules on State responsibility yielded their own dividends for human rights protection through the  notion of diplomatic protection, as well as the fact that, for the most part, the territorial sovereignty of States rejected assertions of male captus bene detentus. Furthermore, under the jus ad bellum, Oppenheim’s treatise on international law adverted to the number of jurists who believed that intervention ‘even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war’ (Vol. I, 2nd ed., §137). The Martens Clause, too, instructed High Contracting Parties of the 1899 Hague Convention (II) on the Laws and Customs of War on Land that populations and belligerents stood to benefit from the protections offered by ‘the laws of humanity’ (amongst other things).

Against such functional assessments, we can imagine the possibilities of the technical identification of this ‘general’ international human rights law—of what it is and how it may have come to ‘colonize’ aspects (perhaps even the greater cohort) of public international law. Reflecting back on Simma and Alston’s seminal article on ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, AYbIL (1988-1989), Vol. 12, pp. 82-108, it is striking to observe how, for the most part, the analysis of that article is organized around a series of disciplinary narratives (e.g. the dichotomization of conventional and customary arrangements, the focus on ‘inter-State relations’ (p. 87)). And, from here, the context of human rights becomes the occasion for developing alternative approaches toward their ultimate realization (at pp. 100-101: ‘there are strong grounds for arguing that States Parties to the Charter [of the United Nations], having in good faith undertaken treaty obligations to respect “human rights”, are subsequently bound to accept, for the purposes of interpreting their treaty obligations, the definition of “human rights” which has evolved over time on the basis of the virtually unanimous practice of the relevant organs of the United Nations’; at p. 102: ‘[general] [p]rinciples brought to the fore in this “direct” way … would (and should) then percolate down into domestic fora, instead of being elevated from the domestic level to that of international law by way of analogy’). Accordingly, methodologies on human rights must therefore work from within existing structures and realities; it is through ‘trojan’ strategies of assertion and influence that change will be brought to bear upon public international law as a whole and inform how it is to be used and put to use in practice, all in the name of the realization of human rights.

Time and again, we are thus reminded of the system of public international law to which human rights in fact belong and from whose cloth they are actually cut: Read the rest of this entry…

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Announcements: EJIL:Live!; ESIL Conference in Oslo; EJIL Call for Poems and Photos

Published on October 18, 2014        Author: 

1.  In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

2.  The Annual Conference of the European Society of International Law (Oslo, September 10-12, 2015) will be hosted by the University of Oslo’s PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order. The annual ESIL conference has become one of the indispensable venues for European and international scholars interested in questions of international law. The conference is entitled “The Judicialization of International Law – A Mixed Blessing?”. The conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. We will ask critical questions about how international courts and tribunals work, whether we need judicialization in new areas, alternatives to courts and tribunals, and if we should expect further judicialization in the coming years. The conference will feature plenary sessions, fora with invited speakers, and a number of agorae with speakers selected on the basis of a call for proposals. The event will also offer poster sessions for early career scholars following a call for posters.  Invited speakers include current and former judges of various international courts, as well as legal practitioners and scholars of several disciplines.  For information on registration and the programme, please visit the conference website.

3.  Call for Poems and Photographs for the European Journal of International Law. In addition to its cutting-edge scholarship, the European Journal of International Law features two rubrics which aim to remind us, as academics and human beings, of the ultimate subject of our scholarly reflections, the world and the people who inhabit it. The Last Page, which is literally the last page of each issue, features poems which reflect in some way, direct or indirect, the world in which we live, the world we strive to change for the better, the world with its many contradictions that international law seeks to address.

Roaming Charges features photographs of places – the world we live in – and photographs of people – who we are, the human condition. We seek photos which have some ambiguity, and which relate in some way both to current circumstances, without falling into easy clichés of photojournalism, and to something, like human dignity, which is more unchanging and enduring.  For more information, please read the Roaming Charges Introduction in the Journal. EJIL welcomes your submissions of poems and photographs. Please send contributions to Anny Bremner, Managing Editor of EJIL.
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