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Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Published on April 3, 2013        Author: 

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation. Read the rest of this entry…


EJIL Vol. 24: No. 1 – In this Issue

Published on April 2, 2013        Author: 

We have taken the extraordinary decision to devote the majority of this issue to a single topic: the enduring legacy of Michael Walzer’s Just and Unjust Wars. The first edition of this classic work was published in 1977; some time ago a special event was held at New York University School of Law to mark its approaching 35th anniversary. This issue gathers together a generous selection of the papers presented on that occasion, together with some additional reactions and comments that were subsequently commissioned, in a symposium edited by Professor Gabriella Blum of Harvard Law School and myself. We trust that the range of critical perspectives presented here ̶ including Professor Walzer’s own reflections on the subject ̶ will sustain many more years of scholarly debate and discussion.

After the rich feast of the symposium, Roaming Charges offers a quiet visual interlude, moving back from Places to Moments of Dignity with a photograph entitled ‘The Pawnbroker, Singapore’.

The book review section complements the overall theme of this issue and includes reviews on publications dealing with child soldiering, the law of armed conflict and occupation, and international criminal law.

Finally, The Last Page presents a poem by Charlotte Innes, entitled ‘Burrough Hill’, that reflects an important goal of this feature of EJIL: to stimulate a more profound degree of introspection on topics and territory where law and life meet.


Filed under: Editorials, EJIL

The Latest Issue of EJIL To be Published Next Week: Vol. 24 No. 1

Published on April 2, 2013        Author: 

The latest issue of the European Journal of International Law will be published in the next week. Over the course of this week, we will have a series of post by Joseph Weiler – Editor in Chief of EJIL – which will then appear in the Editorial in the issue of the journal that will be published the following week. Here is the Table of Contents of the next issue of EJIL:

Editorial: Differentiated Statehood? ‘Pre-States’? Palestine@the UN; EJIL and EJIL: Talk!; The Strange Case of Dr. Ivana Radačić; Looking Back at EJIL 2012 – The Stats; Changes in the Masthead – Our Scientific Advisory Board; In this Issue

 Just and Unjust Warriors:

Marking the 35th Anniversary of Walzer’s Just and Unjust Wars

 Symposium Editors: Professor Gabriella Blum (Harvard Law School)
and JHH Weiler (Editor-in-Chief, EJIL)

Gabriella Blum and JHH Weiler, Preface

Robert Howse, Thucydides and Just War:  How to Begin to Read Walzer’s Just and Unjust Wars

JHH Weiler and Abby Deshman, Far be it from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello

Marko Milanovic, A Non-Response to Weiler and Deshman

Terry Nardin, From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention

Anne Orford, Moral Internationalism and the Responsibility to Protect

Michael Glennon, Pre-empting Proliferation: International Law, Morality, and Nuclear Weapons

Jack Goldsmith, How Cyber Changes the Laws of War

Dino Kritsiotis, Enforced Equations

Matthew C. Waxman, Regulating Resort to Force: Form and Substance of the UN Charter Regime

Olivier Corten, Regulating Resort to Force: A Response to Matthew Waxman from a ‘Bright-Liner’ Read the rest of this entry…

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Are the two Koreas Now at War?

Published on April 1, 2013        Author: 

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed  that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt?  –  was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

Read the rest of this entry…