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Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 
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It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

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Anticipating the Chagos Advisory Opinion: The Forgotten History of the UK’s Invocation of the Right to Self-Determination for the Sudan in the 1940s

Published on February 19, 2019        Author:  and
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What does 2019 have in store for international law? Little seems predictable, but 2019 is likely to be the year in which the International Court of Justice will for the first time in two decades pronounce on the law of self-determination. In the Kosovo Advisory Opinion, the ICJ managed to sail around this spiky fundamental concept of international law, but it will be harder to avoid in the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius. This case puts self-determination front and centre.

One of the questions that the ICJ may have to address is that of the legal status of self-determination as early as 1965, including Great Britain’s argument that it had, until then, consistently objected to references to a ‘right’ of self-determination. Influential legal literature underlines the trickiness of that question, as it locates the birth of self-determination as a legal right exactly in the period 1960-1970, but without pinpointing a specific birthday. 

However, legal historiography has thus far omitted a case that suggests that self-determination was imbued with legal meaning, by Great Britain itself, at an earlier stage, namely in the 1940s. Our forthcoming article in the British Yearbook of International Law shows that during the UN Security Council’s second year of operation, in 1947, the UK invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. While others have written brilliant histories of how the Sudan emerged into statehood, our article aims to restore the Sudan case to the legal history of self-determination, including the UK’s role in this. Thus, even if popular historical imagination envisages self-determination as a revolutionary ideal championed by the colonized but denied by the colonizers, in the case of the Sudan, the British propagated the Sudanese right to self-determination, albeit, as we argue, as an emanation of, not a deviation from, their own colonial predispositions. Read the rest of this entry…

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The Risk and Opportunity of the Humanisation of International Anti-Corruption Law: A Rejoinder to Kevin E. Davis and Franco Peirone

Published on February 18, 2019        Author: 
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Editor’s note: In the EJIL: Debate! section of the latest issue of EJIL (Vol. 29 (2018) No. 4), Anne Peters presents her provocative and disrupting idea of corruption as a violation of international human rights. Kevin Davis and Franco Peirone respond to this challenging thesis and Anne Peters rejoins in this post. 

1. Doctrine and Policy

The two comments on my article “Corruption as a Violation of International Human Rights” challenge various elements of both the doctrinal analysis and the normative assessment. I had developed and defended two propositions: First, corrupt acts or omissions can under certain conditions technically be qualified as violating international human rights (notably social rights), although the difficulty to establish causality remains the most important doctrinal obstacle. Second, I argued normatively that the principal added value of a reconceptualization of corruption as a human rights violation is to offer complementary forums for redress, notably the international human rights mechanisms.

The two commentators raise very valuable points for which I am thankful. In this rejoinder, I focus only on two arguments which appear in both comments. Their first critical observation relates to the doctrinal analysis and to the problem of causation. Franco Peirone finds that “[t]he idea of identifying citizens as victims of corruption in a one-to-one relationship with the state is particularly problematic”, and he asks: “How is it possible to maintain that an individual has suffered a human rights violation because of state corruption?“ Along the same line, Kevin E. Davis points out that if a:

“national health care system is so underfunded that the state has clearly failed to satisfy its obligation to fulfil the right to health [, t]his does not necessarily mean that corruption is the cause of the human rights violation. For instance, it is possible that, if the funds had not been diverted, they would have been allocated to the military or to higher education. In this case, it cannot be said that the corruption has caused the failure to realize the right.”

The second critique relates to my policy assessment. Both commentators point out that the human rights sanctions and state responsibility for human rights violations will ultimately burden members of the general population of the corrupt state (as opposed to the criminal individual, e.g. bribe-taker or receiver of kick-backs). Read the rest of this entry…

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New EJIL: Live! Interview with Dr Veronika Fikfak

Published on February 15, 2019        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Dr Veronika Fikfak, Senior Lecturer in Law at the University of Cambridge, whose article “Changing State Behaviour: Damages before the European Court of Human Rights”, appears in EJIL’s 29:4 issue.

In her pioneering article, Dr Fikfak analyses the ECtHR’s practice of awarding damages. She and a team of researchers spent three years coding 12,000 decisions of the Court, seeking to understand which variables in a case – relating to the victim, the state and the events that occurred – affect the amount of damages awarded and subsequent compliance. In this conversation Dr Fikfak talks about her motivation for undertaking this study, the premises upon which it is based and the surprising results that emerged. The interview was recorded at the IE Law School, Madrid.

EJIL: Live! is the official podcast of the European Journal of International Law (EJIL), one of the world’s leading international law journals. Regular episodes of EJIL: Live! are released following the publication of each quarterly issue of the Journal, and include interviews with the authors of articles appearing in that issue as well as news and reviews when possible. Additional episodes, EJIL: Live! Extras, are also released from time to time to address a range of topical issues. Episodes of EJIL: Live! can be accessed via the EJIL website and this blog. Comments and reactions to EJIL:Live! episodes are welcome, and may be submitted below. 

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Strengthening Compliance with IHL: Back to Square One

Published on February 14, 2019        Author: 
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Between 2012-2015 a series of meetings with states were organised by the ICRC and the Swiss government in the framework of a consultation process aimed at Strengthening Compliance with IHL. This consultation process (discussed here) was based on Resolution 1 of the 31st International Conference of the Red Cross and Red Crescent (IC), which invited the ICRC to undertake research, consultation and discussion with states in order to identify ways and means to ‘enhance and ensure the effectiveness of mechanisms of compliance with IHL’. During the meetings, consensus appeared to emerge on the possibility to create a new IHL compliance mechanism; a voluntary and non-politicized Meeting of States. This mechanism would provide a forum for dialogue and cooperation among states relating to IHL implementation and could serve as the institutional structure for other elements of a future compliance system, e.g. voluntary periodic reporting and thematic discussions. Unfortunately, states failed to agree on this new mechanism during the 32nd IC in 2015. Resolution 2 of the Conference therefore recommended that the intergovernmental process be continued in order to seek agreement on the features and functions of a potential forum of states.

The latest meeting of states in the context of this consultation process took place between the 3rd-5th December 2018, where states failed to reach consensus on the elements of this new IHL mechanism. States agreed that the ICRC and the Swiss Government will produce a ‘factual report’ on the progress of the inter-governmental process and will present it in the final formal meeting of States in March 2019. After that, the consultation process will be concluded bringing us back to square one. Given these developments, this blog post will discuss the existing compliance mechanisms under the 1949 Geneva Conventions (GCs) and Additional Protocol I (API) and assess their ability to monitor compliance with IHL.

First of all, it should be noted that there are no reporting obligations for states parties to the GCs and API, while meetings of the High Contracting Parties are only provided in API. Such meetings, which can be set up once approved by the majority of states parties to the Protocol, have never been convened. This is unfortunate considering that forums of exchange among states have proven pivotal to the adoption of additional supervisory mechanisms, particularly in the case of treaties with weak systems of compliance. This is the case for the 1980 Convention on Certain Conventional Weapons, which only provided for a Review Conference designed to take place every five years; its Conferences were successful in establishing meetings of the High Contracting Parties and reporting obligations as additional layers of treaty supervision. Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 4) Published Today

Published on February 13, 2019        Author: 
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The latest issue of the European Journal of International Law (Vol. 29, No. 4) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Veronika Fikfak’s Changing State Behaviour: Damages before the European Court of Human Rights. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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The European Dream Team

Published on February 12, 2019        Author: 
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There will be a major ‘Changing of the Guards’ next year with the departures of Juncker, Tusk and Draghi – each of them remarkable in their own way – from the leadership team of the European Union. The incoming team will be facing a Europe that poses unprecedented challenges. Commissioner Oettinger went as far as characterizing Europe as facing ‘mortal danger’ from both within and without. I don’t exactly share the doomsday predictions as regards the Union, but the international and internal challenges are truly immense and require leadership commensurate with such.

Here is my Dream Team to lead the Union in the face of these challenges:

President of the Commission: Frans Timmermans

President of the Council: Angela Merkel

President of the European Central Bank: Christine Lagarde

At this point many readers might be chortling. Not because they necessarily disagree that this would be a formidable team to face off the likes of Trump and Putin, Salvini and Orbán. Or to face the truly daunting socio-economic challenges of the Union. But rather because it seems to defy any realistic vision of the European politics of appointments. Does it really? Suspend your disbelief for just a while. Read the rest of this entry…

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EJIL Roll of Honour

Published on February 12, 2019        Author: 
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EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2018:

Dapo Akande, Karen Alter, Tilmann Altwicker, José Alvarez, Alberto Alvarez-Jiminez, Maria Aristodemou, Loïc Azoulai, Björnstjern Baade, Lorand Bartels, Eyal Benvenisti, Eric Brabandere, Eva Brems, Carl Bruch, Michelle Burgis-Kasthala, Laurence Burgorgue-Larsen, Julian Chaisse, Damian Chalmers, Hilary Charlesworth, Vincent Chetail, Sungjoon Cho, Carlos Closa, Lawrence Collins, Marise Cremona, Philipp Dann, Kevin Davis, Alex De Waal, Erika De Wet, Bruno De Witte, Rosalind Dixon, Megan Donaldson, Rochelle Dreyfuss, Christoph Engel, Eleanor Fox, Francesco Francioni, Ronald Francis, Geoff Gilbert, Kirsty Gover, Gerhard Haffner, Michaela Hailbronner, Jeffrey Handmaker, James Hathaway, Laurence Helfer, Ellen Hey, Bernard Hoekman, Stefan Inama, Aline Jaeckel, Henry Jones, Daniel Joyner, Victor Kattan, Thomas Kleinlein, Michele Krech, Claus Kress, Andreas Kulick, Jürgen Kurtz, Tobias Lenz, Randall Lesaffer, Itamar Mann, Nora Markard, Petros Mavroidis, Franz Mayer, John McCrudden, Frédéric Mégret, Paul Mertenskötter, Timothy Meyer, Angelika Nussberger, Christiana Ochoa, Alexander Orakhelashvili, Stefano Osella, Diane Otto, Sundhya Pahuja, Jacqueline Peel, Steven Peers, Oren Perez, Niels Petersen, Marcela Prieto Rudolphy, Alexander Proelss, Sergio Puig, Kate Purcell, Surabhi Ranganathan, Kal Raustiala, Anthea Roberts, Nicole Roughan, Ruth Rubio-Marín, Tom Ruys, Marco Sassòli, Cheryl Saunders, Abdulhay Sayed, Stephan Schill, Edward Schramm, Joanne Scott, Ayelet Shachar, Kirsten Schmalenbach, Yuval Shany, Dinah Shelton, Vera Shikhelman, Philip Steinberg, Paul Stephan, Thomas Streinz, Péter Szigeti, Paulos Tesfagiorgis, Christian Tomuschat, Michael Trebilcock, Charles Tripp, David M. Trubek, Gus Van Harten, Jorge Viñuales, Andreas von Arnauld, Jochen von Bernstorff, Tania Voon, Michael Waibel, Rüdiger Wolfram, Margaret Young, Eyal Zamir, David Zaring, Andreas Zimmermann.

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EJIL Vol. 29 (2018) No. 4: In this Issue

Published on February 11, 2019        Author: 
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On 9 December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide – the first universal treaty of human rights – was adopted by the United Nations General Assembly. This year marks its 70th anniversary and we pay tribute to its ‘founding father’, Raphael Lemkin, in this last issue of EJIL for 2018. Johann Justus Vasel preludes with a biographical vignette. In Roaming Charges we reproduce his recently discovered death certificate, and on the Last Page we feature a previously unpublished poem by Lemkin on the subject that haunted and drove him, ‘Genocide’. (We thank members of Raphael Lemkin’s family – Jane Lemkin, Peter Lemkin and Richard Lemkin – and friend, Nancy Steinson, for their kindness and generosity in sharing information with us.)

Jan Klabbers formally opens this issue with his Keynote Address on ‘Epistemic Universalism and the Melancholy of International Law’, delivered at the 2018 annual conference of the European Society of International Law, in which he diagnoses pathologies of international legal scholarship.

In our Afterword rubric, Lorna McGregor and Lorenzo Casini react to the EJIL Foreword ‘Upholding Democracy Amid the Challenges of New Technologies: What Role for the Law of Global Governance?’ by Eyal Benvenisti, published in our first issue of the year, and Benvenisti replies to his critics.

Following, we shift the focus to ‘New Voices’, with a selection of articles from the Sixth Annual Junior Faculty Forum for International Law. Veronika Fikfak, analyses how damages awarded by the European Court of Human Rights impact states’ behaviour. Drawing on (behavioural) economic analysis of law, she suggests new approaches on how to increase compliance. An Hertogen illuminates the conditions for analogical reasoning between domestic and international law. Ntina Tzouvala scrutinizes the dissolution of the Ottoman Empire and the emergence of statehood in the Balkans, tracing the ambivalent role of international law in constructing and containing ethnic nationalism. Building on Giorgio Agamben’s work, Daria Davitti, challenges the EU’s Agenda on Migration, contesting liquid, biopolitical borders and the evasion of international obligations by claiming an alleged state of exception resulting in mere humanitarian posturing of EU migration policies. Geoff Gordon reflects on the interrelationship between colonial practices, the global standardization of time, and transnational law. Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 4) Out This Week

Published on February 11, 2019        Author: 
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The latest issue of the European Journal of International Law will be published this week. Over the coming days, we will have a series of editorial posts by Joseph Weiler, Editor in Chief of EJIL. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Otto Dix, Stoßtruppen gehen unter Gas vor, 1924

Editorial

Editorial: The European Dream Team; Nine Good Reads and One Viewing; EJIL Roll of Honour; In This Issue

Honouring Raphael Lemkin: The 70th Anniversary of the Genocide Convention

Johann Justus Vasel, ‘In the Beginning, There Was No Word …’

ESIL Keynote Address

Jan Klabbers, On Epistemic Universalism and the Melancholy of International Law Read the rest of this entry…

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