Home 2012 July

Second Annual Junior Faculty Forum for International Law

Published on July 31, 2012        Author: 

The Second Annual Junior Faculty Forum for International Law was launched earlier today by Professors Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and J.H.H. Weiler (NYU). It is designed to bring together international legal scholars in the first six years of their academic career to present on a particular aspect of their research work before peers and experts in the field. Each presentation will then be discussed by a senior international legal scholar who has been designated to each junior faculty member for the purposes of the Forum. Selected presentations from the second Forum will be published in a future issue of the European Journal of International Law (Oxford University Press). Further details can be found here:

Filed under: EJIL, EJIL Reports, Journals
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Lectureship in International Law at the Keele Law School

Published on July 27, 2012        Author: 

Mario Prost just informed us that the Keele Law School is opening a lectureship in international law. More details can be found here. This is part of an exciting new development at Keele which will see the launch of a new interdisciplinary LLM in International Law in Sept. 2013. The deadline for applications is July 31, 2012.

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Committing Piracy on Dry Land: Liability for Facilitating Piracy

Published on July 26, 2012        Author: 

An important case before US Courts at present is US v Ali, where the defendant is accused of, among other offences, aiding and abetting piracy by acting as an interpreter. (See the ruling on a preliminary motion here.) The case clearly has implications for other facilitators of piracy, such as financiers and the bosses of pirate gangs.

However, it now appears the presiding judge, US District Judge Ellen Huvelle, has described the aiding and abetting piracy charge as an “outrage” given that US prosecutors can only place the defendant as present on a hijacked vessel – while it was still on the high seas – for less than 30 minutes. (See reports here and here.) The defendant did, however, allegedly spend 69 days on the vessel after its capture in his role as translator and intermediary for ransom negotiations (presumably while it was detained closer to shore).

The case may raise a number of features some would find objectionable (including the fact that US authorities lured the defendant to a “conference” on Somalia in order to arrest him), but this aiding and abetting charge should not be one of them.

At international law, piracy can be committed on dry land.

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Belgium v. Senegal: Did the Court End the Dispute between the Parties?

Published on July 25, 2012        Author: 

Inna Uchkunova, New Bulgarian University (LLM) is a Member of the International Moot Court Competition Association.

The Judgment in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) is the first in the history of the International Court of Justice (“ICJ”) in which it found that a State had standing based on obligations erga omnes partes. Before that, the PCIJ had only once to pronounce on this question in the 1928 Wimbledon case. In para. 68 of its judgment the Court stated, inter alia, that:

The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case.

The Court’s reference in the judgment to the Barcelona Traction case may create confusion as to the difference between obligations erga omnes partes (Article 48(1)(a) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) “owed to a group” of States and erga omnes obligations (per se) which are “owed to the international community as a whole” (Article 48(1)(b)).  The ARSIWA Commentary clarifies that the name “owed to the international community as a whole” was preferred over erga omnes in order to avoid confusion “with obligations owed to all the parties to a treaty.” The better view seems, therefore, to be that obligations erga omnes partes exist in the case of treaties such as the CAT or the Genocide convention, while obligations erga omnes form part of customary law.

Article 48 ARSIWA represents progressive development, but the Court in East Timor did not rule out standing deriving from obligations erga omnes either. It merely stated that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.” (para. 29) In that case the Court lacked jurisdiction based on the Monetary Gold principle. It remains to be seen whether erga omnes skeptics are to be proven right or wrong.

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“Without further delay” – Senegal must prosecute or extradite Hissène Habré

Published on July 24, 2012        Author: 

On 20 July 2012, the International Court of Justice (ICJ) issued its final judgment (summary found here; press release found here) in the proceedings brought by the Kingdom of Belgium against the Republic of Senegal concerning the desired prosecution of Chad’s former head of state, Mr. Hissène Habré – a now long-term resident of Dakar. The victory rests with Belgium, which has sought Habré’s prosecution in Senegal, or his extradition from Senegal to Belgium, for mass acts of torture committed in Chad during his presidency from 1982-1990, with the ICJ recognizing that: “Extradition and prosecution are alternative ways to combat impunity” (para. 50).

However, the victory (in this case concerning “Questions relating to the obligation to prosecute or extradite”) was secured by a refinement, or narrowing, of the basis for the complaint. In its 2009 Application instituting proceedings, Belgium had argued that Senegal was obliged to bring criminal proceedings against Mr. Habré as a matter of customary international law concerning core international crimes, but by 2012, the focus of the inquiry had shifted to the more specific obligations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (or CAT to use the summarizer’s short-form), with the ICJ making clear that any state party to a treaty such as the CAT or the Genocide Convention (paras 68-69) has a “common interest in compliance” and can make a claim concerning the cessation of an alleged breach by another state party (thus sidestepping the question of whether Belgium is an injured state or has a special interest). The ICJ has confirmed that the obligations of the CAT may be defined as “obligations erga omnes partes” in the sense that each state party has an interest in compliance with them in any given case (although this point does receive discussion in the separate opinion of Judge Skotnikov). The issue of whether there exists an obligation for a state to prosecute crimes under customary international law that were allegedly committed by a foreign national abroad is expressly left for another day (para. 54) (with Judge Abraham in a separate opinion putting down a marker that in his view, there is no such customary rule).

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UN Human Rights Council Confirms that Human Rights Apply to the Internet

Published on July 23, 2012        Author: 

Dr. Matthias C. Kettemann, LL.M. (Harvard), is a teaching and research fellow at the Institute of International Law and International Relations of the University of Graz, Austria. He blogs at

Was it a “victory for the Internet“, as Carl Bildt, foreign minister of Sweden, called it in a New York Times op-ed? Or, rather, a victory for all Internet users and those two thirds of the world population that do not yet have access to the Internet?

Most likely, it was a bit of both: On 5 July 2012, the UN Human Rights Council (HRC) adopted by consensus a key resolution on promotion, protection and enjoyment of human rights on the Internet (UN Doc. A/HRC/20/L.13). Presented by Sweden, the Resolution enjoyed broad international backing from more than 70 HRC member countries and non-members from all regional groups, including China, Brazil, Nigeria, Ukraine, Tunisia, Turkey, the United States and the United Kingdom.

Centrally, the Resolution affirms that “the same rights that people have offline must also be protected online” and should thus put to rest the tedious debate about whether we need ‘new’ human rights for the Internet age, motivated chiefly by states not wishing to ensure the ‘old’ human rights in an online environment.

Although the Resolution’s approach is sound, I will take issue with a number of points, identify remaining problems and discuss priorities for the international political process, including chiefly the need to prioritize international discussions on how international law protects human rights online.

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UN human rights treaty monitoring reform update: promising OHCHR proposals now to be acted upon by the General Assembly (and the EU)

Published on July 20, 2012        Author: 

John Morijn, PhD (EUI (Law)) is senior human rights adviser, Dutch Ministry of the Interior and Kingdom Relations and assistant professor of human rights law, University of Groningen, The Netherlands. Views expressed in this post are strictly those of the author only, and do not in any way reflect the position of the Dutch government.

A while back I reported on discussions that were (re)started in 2009 about how to revamp the way in which UN human rights treaty monitoring functions. About three years into this debate the UN High Commissioner for Human Rights has now published her own long-awaited report. It contains a number of very valuable proposals that, if implemented as a package, would constitute a great leap forward. The report is an admirable piece of work by the High Commissioner and her Office. Yet it also still leaves one or two things to be ironed out and explicated in the process leading up to the likely adoption of a General Assembly resolution. It is therefore important to keep up the pressure. It is also crucial to alert the European Union, which only very recently proudly adopted its Strategic Framework and Action Plan on Human Rights and Democracy, that it is now time to practice what is has been preaching for decades and put its money where the mouth is. In particular, footing part of the reasonable bill that will come with strengthening the existing UN human rights monitoring system in line with the High Commissioner’s proposals would seem a natural and desirable move for the EU, simply because it would be fully in line with many of its internal and external policy objectives (and therefore a rather economical way to pursue its enlightened self-interest).

Having learnt from earlier mistakes made by her Office – previous multi-faceted proposals to reform the way in which treaty monitoring functions got to be reduced and identified only with a (perfectly reasonable yet rather far-reaching, and therefore easily criticised) idea to merge the various treaty bodies – the High Commissioner this time took a smart approach. She explicitly presented the report as a ‘compilation’ of ideas tabled by others ‘to identify synergies, linkages and mutual reinforcements’. The selection criteria she used were that, apart from actually strengthening the treaty bodies’ mission to enhance promotion and protection of human rights, the proposals should a) respect the treaties and do not require amendments, b) have been proposed by more than one contributor to the debate and be likely to generate agreement, and c) be compatible with and make for a coherent package with other proposals. This approach has the admirable effect of front-loading and side-lining expected criticism in one move, leaving space for a strategic pick-and-choose among the very numerous proposals tabled.

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Content-based Speech Restrictions in the European Court

Published on July 17, 2012        Author: 

Last week the Grand Chamber of the European Court of Human Rights delivered a major judgment in the case of Mouvement raëlien suisse v. Switzerland, no. 16354/06. This will certainly prove to be a leading European case with regard to content and viewpoint based restrictions on the freedom of expression in a public space. It is also notable because the Court was very severely split – 9 to 8 – which is not only a rarity, but highlights the controversial nature of the case and its uncertain precedential value for the future.

Very briefly, these were the facts: the Raelian movement is an organization that claims that aliens have visited the Earth, leaving us a message or two; that science (well, their science) should replace religion; and that the best form of government is a ‘geniocracy’, i.e. rule by the highly intelligent over the masses of the mediocre. The organization has been labeled a cult by many due to the demands it makes of its members; it has also been the subject of several child abuse scandals, since the organization’s founder apparently thought that children should be sexualized, and some of the organization’s leaders practiced what he preached. Today, however, the organization disavows that earlier part of their doctrine.

Here’s the Court’s own description of the particular facts of the case:

14.  On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.

15.  On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.

16.  In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.

The decision was later upheld by the Swiss courts, essentially on the same grounds.

The question that the European Court was to answer was thus whether this ban was in accordance with the freedom of expression under Article 10 ECHR. Notably, the restriction on expression was based on both the content and the viewpoint of the message, seen not only as the pretty anodyne poster, but as the poster taken together with the content of the website to which it refers. However, the restriction on expression was not total, but was confined to the organization’s use of a dedicated public space, to which individuals do not have unconditional or unlimited access.

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The Constitution of EU Counter-Terrorism Law

Published on July 16, 2012        Author: 

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

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

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

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

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Peer Review in Crisis

Published on July 12, 2012        Author: 

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

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

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

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

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

Why crisis? Read the rest of this entry…

Filed under: Editorials, EJIL, Journals