Home 2011 December

EJIL 22 Issue 4 is Out: In this Issue

Published on December 31, 2011        Author: 

We begin this new issue of EJIL with four articles. Jaye Ellis explores comparative law’s contribution to the identification of general principles as a source of international law through a renewed understanding of the interplay between municipal legal systems and international law. Thilo Rensmann analyses the ways in which two Munich Alumni, Ernst Rabel and Karl Loewenstein, have influenced the evolution of international human rights law (see full free text of article here). The importance of scholarship is also illustrated by Anastasios Gourgourinis in his article as he suggests some tools which aim to overcome the fragmentation of international law: the general/particular international law and the primary/secondary norms di­chotomies which, in his view, constitute the unitary elements of the international legal system. Lastly, Daphne Richemond-Barak tackles another kind of fragmen­tation: the decentralized regulatory framework of the private security and military industry, and seeks to demonstrate the potential of Global Administrative Law meth­odology in understanding and contending with the growth of the private security and military industry.

In our occasional series, Critical Review of International Jurisprudence, Sonia Morano-Foadi and Stelios Andreadakis reflect on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights to achieve a more harmonious and convergent human rights system in Europe, based on a careful study of the divergent approaches of the ECJ and the ECtHR in the specific area of expulsion/deportation of third country nationals from the European territory.

In our rubric Critical Review of International Governance, Abigail Deshman sets out to identify the questions raised and the answers provided by a rare case of horizontal review between international organizations: the Parliamentary Assembly of the Council of Europe’s criticisms of the transparency and accountability of the World Health Organization during the H1N1 pandemic.

Two EJIL: Debates! this time. Read the rest of this entry…

Filed under: Editorials, EJIL, Journals

The Rise and Fall of Eunomia (re-run) – Episode 2: A movement is born

This is the second part of a series of posts on “The Rise and Fall of Eunomia”. Episode 1 of this series can be found at here. The series was first posted in late 2010.

Eunomia’s internationalism takes shape

Initially, the real reasons for creating the State of Eunomia had been somewhat a mystery. After all, many of the social experiments that Eunomians sought to engage in were the sort that could have been engaged in in other countries, without the huge cost of doing so literally in the middle of nowhere. The style section of an international magazine described the whole experiment as ‘radical-libertarian-humanitarian-chic.’ As it turned out, however, the real plan laid elsewhere and it only began to emerge once Eunomia’s statehood had been officially recognized. There were a few telltale signs, including the proclamation that Eunomia would be an entirely monist state, and its immediate adoption of all eight major international human rights treaties as having supra-constitutional status. Some legislators went as far as to suggest that little ordinary legislation would not be necessary: the WTO rules would provide Eunomia with the framework for a market economy; the ILO treaties its labor legislation; the WHO rules its health standards, etc. Indeed, the direction in which Eunomia was headed might have been apparent to any one who carefully read the rapidly crafted Eunomian constitution, article 17 of which proclaimed:

Eunomia is a pacifist state dedicated to the pursuit of international justice. It is the obligation of the Eunomian state to strive for such international justice through every means possible, including all recourses available under international law.

Although the first sentence sounded innocuous enough, the second one was the deal clincher. The debates leading to the adoption of the Eunomian constitution included a rag tag group of veterans of frustrated globalist causes, founding members of the International federalist society, veterans of the New International Economic Order, and various Hague appeals for peace fellow travelers. All had consistently deplored the absence of significant progress towards centralized international authority and a ‘world public order of human dignity.’ A lifetime of experience trying to influence states had led them to the dispiriting conclusion that the ways of the inter-state world were almost impossible to reform from without. Whilst academic international lawyers focused on a few landmark international judicial decisions as symbols of progress, these disenchanted apostles of civil society were more prone to see the huge black holes of the international legal order: those countless cases that were never litigated because states themselves were often complicit in keeping the international rule of law at a rudimentary stage.

A former negotiator at Montego Bay, once considered a good contender for the first Secretary General of the International Seabed Authority, made an impassioned plea before the Eunomian parliament denouncing the cupidity and short-sightedness of sovereigns. The argument was that if centralized global institutions could not be expected to take over any time soon, what was needed was for a few enlightened states – perhaps only one state – to take the lead and stand for the global community’s interest in international public order. That glorious avant garde would drag the international system out of its collective action problem kicking and screaming if it had to. And if one state was to take that responsibility, who better than Eunomia? After all, Eunomia was well taken care of, financed for decades to come thanks to a huge endowment, and could count on some of the best activist minds the world had to offer. It did not even have a national interest of its own that might stand in the way of its idealism; or rather, to the extent that it had one, it was in fact one with international law; Eunomia would be dédoublement fonctionnel without the dédoublement; world attorney without the international politics; its own interest and that of the international community in unison.

The crusade is launched

After the Eunomian constitution was ratified, the new ‘Ministry of international justice and foreign affairs’ immediately announced a catalogue of measures. First, Eunomia was to become a member of all major international organizations. Read the rest of this entry…

Comments Off on The Rise and Fall of Eunomia (re-run) – Episode 2: A movement is born

The Rise and Fall of Eunomia (re-run) – Episode 1: Eunomia rising

Editor’s Note: This series was first posted on this blog at the end of 2010. We are running it again like one of those old favourites that gets rerun on TV around Christmas time.

Frédéric Mégret is an Associate Professor of Law, the Canada Research Chair on the Law of Human Rights and Legal Pluralism, and the Director of the McGill Clinic for the Sierra Leone Special Court, McGill University. Alexandra Harrington is currently a Doctor of Civil Law candidate at  McGill University

It had been a masterfully planned operation from start to finish. When Grigory Savros heard the news that, following a massive volcanic eruption in the South Pacific, a new island, roughly six by eight miles, had emerged, he at first paid little attention. The incident had of course generated considerable popular interest and, as the only known island of its kind in several millennia, was the buzz of geologists. But the volcanic fumes arose hundreds of miles away from the nearest flight path, and the island was first reported as barely habitable. Savros had other things to think about. One of the world’s richest men, he had made his fortune betting against the financial stability of emerging economies through complex derivative products that only a few insiders – if any – could fathom. He had since reinvented himself as, to use the Times’ cover’s expression, ‘The World’s Biggest Philanthropist,’ one involved in everything from art to human rights, fighting global diseases to reducing global warming. Besides, he was already the proud owner of no less than two islands (one in the Caribbean, and one in the Mediterranean) in which he hardly ever spent any time.

But one detail had caught Savros’ attention and vaguely stirred up recollections from his international law days, before he became a wealthy investor, when he was still what he sometimes described in interviews as an ‘idealistic law student’ (he had quickly abandoned his initial idea of working in international law, a discipline he had found to be largely irrelevant to the ways of the world). The island was beyond the territorial waters or even the exclusive economic zone of any state. As such, it was no less than the first bit of prime terra nullius real estate to emerge in at least 200 years (with the exception of ‘fake’ terra nullius of colonization). Of course, this fact had not escaped several foreign ministries, but of the few states with any presence in the region, most concluded that it would be far too expensive to maintain a base on the island, and quickly gave up the notion. The land and the surrounding waters were devoid of any particular resource, at least the sort that could be exploited profitably. These were hard financial times globally, and no state had the appetite for an extra piece of rock in the mid-Pacific, with no economic or geopolitical value. One landlocked state in Central Asia expressed some interest in acquiring the island so that its Great Leader could claim to have ‘brought the sea’ to his country, but the plan quickly foundered. There was some vague talk at the UN General Assembly of ‘internationalizing’ the rock (which still had no name), but no one really knew what for, and the matter was deferred to a committee. A window of opportunity had been opened, but no one could quite suspect what use it would be put to.

Genesis and settlement

With no expressions of interest from states in the region, Savros summoned his inner circle of advisors to the privacy of his mountain getaway. What emerged from this evening is still a matter of speculation and what we know of it has been reconstructed from scattered archives and memoires of those who were in attendance. At first, Savros had apparently been characteristically enigmatic about the reasons for bringing them together at short notice. But after dinner and over glasses of (very good) cognac, he had flipped a switch in his parlor, turning on a spectacular holographic display of a paradisiacal island, rich with fields, roads and villages hovering just above the guests, and had made the following almost comically solemn announcement: ‘Ladies, and gentlemen, welcome to the soon-to-be state of Eunomia, the first state built by and for civil society, a state dedicated to the highest values of justice, solidarity and freedom!’ The guests had been flabbergasted and, were it not for Savros’s reputation for fits of anger, might have shared a piece of their mind that this all looked rather megalomaniac. Savros, however, had obviously given the idea considerable thought and over a night of passionate discussions had little by little convinced one after the other that this was not only a project worth trying, it could very well be the defining project of the age.

During the next weeks the decision was made to launch a secret operation, codenamed ‘Tiger Lily,’ that would begin to turn the project into reality. It was to involve, at first, six cargo ships (including two mega-container carriers, one supertanker, two large ferries and one commanding ship). The plan was for these ships to set sail from several points around the globe with shipping orders indicating routine trading routes. Seven days later, they would meet at a secret location in the mid-Pacific. At 0200 hours, the passengers would disembark and bring ashore the contents of the container ships: generators, desalination equipment, cement, various construction vehicles, and much more. A leading conservationist had advised on how to engineer a rapidly expanding ecosystem through an assortment of bees and bugs. Enough material was brought on that first trip not only to construct a small self-sufficient village, but also to lay the seeds for greater things to come: the expansion of the village into a city; the transformation of that barren land into a fully sustainable, eco-friendly, autonomous site of life. Read the rest of this entry…


ICJ Press Releases Distinguish the ICJ from other International Tribunals

Published on December 27, 2011        Author: 

In the past couple of months the ICJ has inserted a paragraph at the end of its press releases which seeks to make clear that the ICJ is different from the other newer international tribunals out there. The paragraph can be found at the end of the ICJ press release announcing the proceedings recently instituted proceedings by Nicaragua. It reads as follows:

“The ICJ, a civil court open only to States for contentious proceedings and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other ⎯ mostly criminal ⎯ judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an independent judicial institution composed of Lebanese and international judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial system), or the Permanent Court of Arbitration (PCA), an institution founded in 1899, which is independent of the United Nations.”

This paragraph, which now appears at the bottom of each ICJ press release, was probably drawn up because the folk at the ICJ have become tired of people confusing that court with other international courts. I sympathise with them. I suspect that I am not the only one who gets frustrated with the media confusing the different international tribunals. All too often there is talk of people being prosecuted by the ICJ when what is meant is the ICC or perhaps the ad hoc tribunals. Or sometimes the confusion is the other way with references to the ICC when what is meant is an inter-State ICJ case. In December last year, I gave an interview in the Guardian newspaper on wikileaks revelation that the CIA had been spying on senior UN staff and permanent representatives of other Security Council members. In that interview, I spoke about possible violations of the UN – US Headquarters Agreement and the UN General Convention on Privileges and Immunities. I then made reference to the  provision in the latter which allows for binding advisory opinions from the ICJ in the event of dispute regarding the application of the convention.  I was dismayed when the article appeared and it stated that the US actions could lead to “prosecution at the international criminal court”!

This confusion, of course, exists also in the mind of the general public. A few years ago, I was in the Hague and running late for a meeting at the Peace Palace (where the  ICJ is). I jumped into a taxi and told the driver I wanted to go to the ICJ. After a little while I realised that I did not recognise the route he was taken. When I asked him about the route, his response was something to the effect “but this is the quickest route to the ICC”.

Comments Off on ICJ Press Releases Distinguish the ICJ from other International Tribunals

Happy Holidays

Published on December 24, 2011        Author: 

All of us at EJIL: Talk! wish our readers and their families a merry Christmas and a happy New Year – hopefully the new year will prove to be just a tad less exciting than the old.

Filed under: EJIL Reports
Comments Off on Happy Holidays

ICC Press Release Makes Inaccurate Statements about Prior ICC Darfur Decision

Published on December 24, 2011        Author: 

Earlier this month, the  Prosecutor of the International Criminal Court requested a warrant for the arrest of the current Sudanese Defense Minister Abdelrahim Mohamed Hussein. He is alleged to have committed crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004. In a press release announcing the request for the arrest warrant, the ICC stated that:

“The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein”

These statements regarding the prior Prosecutor v Harun & Kushayb case are simply inaccurate. Moreover, the Office of the Prosecutor at the ICC must know or should know that they are inaccurate. The statement in the press release referring to that earlier decision is to a decision of the Pre-Trial Chamber on a request for an arrest warrant. Those decisions are made ex parte and on the basis of the prosecutor’s application. No detailed arguments are heard and no alternative evidence is led. In these decisions, the Pre- Trial chamber does not (or at least, it should not) make any definitive rulings. The standard that is required under Art. 58 of the ICC Statute for such a decision is that there are “reasonable grounds to believe” that the crime has been committed. This is a  low standard.  It is lower than the “substantial grounds to believe” that the crime has been committed which is required for a confirmation of charges and lower than the standard of “beyond reasonable doubt” which is required for a conviction (see the ICC Appeals Chamber decision in Prosecutor v. Bashir, (Arrest Warrant Appeal), 2010, para 30). Even after the Pre-Trial Chamber has issued an arrest warrant on the basis of reasonable grounds to believe that an accused has commited crimes, it may then later decide in confirmation of charges proceedings that there are no substantial grounds to believe what it had earlier held there were reasonable grounds to believe. This happened just this month in the Mbarushimana case. And of course, even if it confirms charges it may actually decide to acquit.

It really is quite shocking that the ICC will suggest that a decision for an arrest warrant is a ruling that certain things happened. But this is not the first time this has happened. The ICC Prosecutor, Luis Moreno-Ocampo wrote an article in the Guardian Newspaper last year saying that the ICC found Sudanese President Bashir and his forces responsible for atrocities in Darfur (see my earlier post here). Of course, all the ICC Chamber had done was to issue a request for a warrant applyng the reasonable gronds to believe standard.

These inaccurate statements about what the ICC has found are troubling because they are issued to the press with the intent that they be disseminated around the world. Issuing false statements about what the Court has held is clearly prejudicial to the accused. A judicial institution should do better than that. The statements are also troubling because they appear to suggest that either those who write these press statements are not knowledgeable about the Court’s own procedure or they are wilfully misrepresenting the facts. I very much doubt that it could be the latter. However, I would call on the ICC to issue a press release correcting their earlier press release. If they don’t want to be regarded as wilfully issuing false information which prejudices defendants, they should  issue a correction which is disseminated as widely as the original misleading press release. Read the rest of this entry…

Comments Off on ICC Press Release Makes Inaccurate Statements about Prior ICC Darfur Decision

Another Question on ICJ Judges – UPDATED

Published on December 23, 2011        Author: 

I have yet another question about ICJ Judges. Perhaps this is quite an easy one.

Which ICJ Judges or ICJ ad hoc judge have been the child of an ICJ Judge or ICJ ad hoc Judge?

To clarify, both the parent and the child have sat on the ICJ bench as either a judge or an ad hoc judge. Answers in the comments box below please!

UPDATE : Thanks for the responses. Yes the answers are indeed the Lauterpachts (Sir Hersch and Sir Eli) and Jules Basdevant and Suzanne Bastid. Jules Basdevant was Judge (and President) of the ICJ (I don’t think he was on the PCIJ) and his daughter Suzanne Bastid was indeed the first woman to sit on the ICJ as an ad hoc judge.

Neither René-Jean Dupuy nor Pierre-Marie Dupuy have sat as ad hoc judges at the ICJ.

If readers are still interested in this theme, I would like to know which children of ICJ Judges have gone on to careers as public international lawyers. Read the rest of this entry…


ICJ Judges Who Were Previously Ad Hoc Judges – The Answers

Published on December 21, 2011        Author: 

In a previous post, I asked:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Wim Muller was very quick off the mark in noting that on the ICJ current bench, Bernardo Sepúlveda-Amor (Mexico) was an ad hoc judge in the Avena case (Mexico v. USA) before being elected to the Court. Thanks to Martin Cabrera for also noting that Judge Antônio  Cançado Trindade was also an ad hoc  judge in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case before his election to the Court. If one includes Gaja (who joins in February), five of the Judges on the current bench had previously served as ad hoc judges. Apart from Gaja, Antônio  Cançado Trindade and  Sepúlveda-Amor, the other two are:

-Judge Mohamed Benouna [Frontier Dispute (Benin/Niger]; and

Judge Yusuf in the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

What is interesting is that by my reckoning, apart from these  5 current judges, there had previously only been seven other judges who had served as ad hoc judges before they were elected to the Court. Thanks to Martin Cabrera for pointing out two of them: They are (1) Judge Roberto Ago (Italy) in the Arbitral Award (Honduras v. Spain) (2) Judge Federico de Castro in the Barcelona Traction case (I have to admit I missed him out on the list I had constructed). The others are (3) Judge Evensen (Norway) in Continental Shelf (Tunisia/Libya); (4) Judge Mosler (Germany)  in North Sea Continental Shelf cases; (5) Judge Nagendra Singh (India) in the ICAO Council Case (India v. Pakistan) ; (6) Judge Jean Spiropoulous (Greece) in the Ambatielos Case (Greece v. UK); and (7) Judge Muhammad Zafrulla Khan in the SouthWest African Cases and the Trial of Prisoners of War case (Pakistan v. India). Readers, have I missed any out?

It is interesting to note that it is now much more common than was previously the case  for ICJ judges not only to have previous experience on another international tribunal but also to have prior experience as an ad hoc Judge at the ICJ. Why might this be so? Read the rest of this entry…


Six New Judges Elected to the ICC

Published on December 20, 2011        Author: 

Last week, the States Parties to the Rome Statute of the International Criminal Court, meeting at the Tenth Session of the Assembly of States Parties, elected six new judges to the International Criminal Court (see here). They also formally approved the election of Fatou Bensouda as the next ICC Prosecutor (on which see here). The new judges will make up a third of the judges of the ICC. The election procedure for electing judges to the ICC is even more complicated than the procedure for elections to the International Court of Justice. Like the ICJ, the ICC Statute provides (Art. 36(8)) that there should be representation of the principal legal systems of the world. However, that provision also specifies that there should be equitable geographical representation and a fair representation of female and male judges. In addition, there are separate lists of judges with competence in criminal law (list A) and of judges with competence in international law (list B) and a set proportion of judges of the court have to be from list A or B (see Art. 36(4)). Also, unlike the ICJ where candidates need an absolute majority of votes in the United Nations General Assembly and Scurity Council (on the meaning of this, see previous discussion in the comments to this post), candidates for the ICC need a two-thirds majority of States Parties present and voting. All of this means that someone needs to be keeping tabs to ensure that all of these rules are respected. See this document for the rather involved procedure for the elections held last week. In the elections just held there were 15 rounds of voting (see detailed results here) !!

One thing is that is absent at the ICC when compared with the ICJ is the convention that there is a judge from each of the permanent members of the UN Security Council. Of course, only two members of the Council are parties to the ICC Statute (the UK and France). Even so, there is no presumption that judges of that nationality will be elected. In the latest elections, the UK candidate was elected but the French candidate was not. He was outvoted in round 14 by the candidate from Nigeria and then withdrew. Read the rest of this entry…


More International Law Trivia

Published on December 20, 2011        Author: 

Following my posts (here and here) about elections to the International Court of Justice of judges who had previously been on another international tribunal, I have another question for readers. Giorgio Gaja who was elected to the ICJ last month (see here) is currently an ad hoc  judge in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case. He had also been ad hoc judge in three previous ICJ cases. The question is:

Which judges of the ICJ had served as ad hoc judges at the ICJ prior to their election to the ICJ?

Note that I am asking for ICJ judges who were appointed ad hoc judges before they became full time judges on the ICJ. I am excluding those ad hoc judges who were appointed as such after they had been ICJ judges. There are many in the latter category. Gilbert Guillaume, former ICJ president is currently an ad hoc judges in three cases now before the Court. Read the rest of this entry…