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New Issue of EJIL (Vol. 24: No. 3) Published

Published on September 30, 2013        Author: 

The latest issue of the European Journal of International Law (Vol. 24, No. 3) 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 articles in this issue include Ryan Goodman’s “The Power to Kill or Capture Enemy Combatants” (which has already received a lot of attention even prior to publication) as well as the reply to that article by Michael Schmitt and Ryan Goodman’s Rejoinder.  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.

Later this week, we will post a rejoinder by John Dugard and John Reynolds written in response to the reply by Yaffa Zilbershats to their article on “Apartheid, International Law, and the Occupied Palestinian Territory” which appears in this issue of EJIL.

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Announcements and Events: Seminar on Foreign Investment in Africa, Investment Law Workshop

Published on September 28, 2013        Author: 

1. Expert seminar on Foreign Investment in Africa  – 10/11 October 2013

Professor Makane Mbengue (University of Geneva), Dr. Eric De Brabandere (Grotius Centre, Leiden University) and Dr. Tarcisio Gazzini (VU University Amsterdam) organize the 3rd Expert Seminar on Contemporary Perspectives on International Investment Law on 10 and 11 October 2013. The topic of this year’s seminar is ‘Foreign investment in Africa: Gaining Development Momentum’. Speakers include Laurence Boisson de Chazournes, Gareth Austin, Jean-Louis Arcand, Elisabeth Tuerk,Mathabo Le Roux, Carin Smaller, Illy Ousséni, Francesco Seatzu, Kong Ngangjoh Hodu, Andreas Ziegler, Makane Mbengue, Tarcisio Gazzini and Eric De Brabandere. The Expert Seminar will take place at the University of Geneva Faculty of Law, 40 Bd. du Pont d’Arve, Room 3050. Attendance is free, but prior registration is necessary (via mail Makane.Mbengue [at] unige [dot] ch).

2. Frankfurt Investment Law Workshop 2014: International Investment Law and the Global Financial Architecture

The Frankfurt Investment Law Workshop is a forum for discussing fundamental problems of international investment law. (See here for the most recent conference volume.) The next workshop will be held 14-15 March 2014. It will focus on the relationship between investment law and the global financial architecture. The organisers invite proposals for original contributions on these or related topics. The call for papers is here.

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European Parliament Elections 2014: Europe’s Fateful Choices

Published on September 27, 2013        Author: 

European_Parliament,_StrasbourgThe Status Quo

After many ‘ostrich years’ the European head is out of the sand: there really is a problem with the legitimacy – or rather, the perception of legitimacy – of the European construct. It is not a mere ‘bee in the bonnet’ of some irritating academics disconnected from reality. Eurobarometer indications are at their lowest and the results of a highly respected Pew Center survey, too, show a remarkable fall in support for Europe among its citizens. Political differences on how to tackle the Euro crisis are, worryingly, both reflective and constitutive of what one may call a solidarity deficit.

Even if the EU manages to make substantive and substantial strides in the construction of the much vaunted Banking Union after the German domestic elections in the autumn, it is not expected that any of the above will change significantly.

It used to be denied, in both political and academic circles, that Europe still suffered from a democracy deficit. The usual trope that was trotted out to defend the democratic credentials of the Union was the historic increase in the powers of the European Parliament, which even before the Lisbon Treaty could credibly be called a veritable co-legislator with the Council. But even the most devout Europhiles in the Amen Corner of the Union cannot wish away another historical trend establishing an ironic parallel with the increase in EP powers: the more powers the European Parliament, supposedly the Vox Populi, has gained, the greater popular indifference toward it seems to have developed. The decline is in voter support, not for Europe but for the European Parliament itself, as measured in voter turn-out to EP elections. The turn-out rate has declined persistently from election to election ever since the first direct elections in 1979, and reached historical lows in practically all Member States as well as for the Union as a whole at the last elections in 2009.

The failure of the European Parliament to dispel the image – real or illusory – of a gravy train with weak control over the use of resources for personal gain and a system in which lobbyists roam freely, unfairly and unaccountably impacting the legislative process, aggravates the picture. It does not explain it.

The classic historical explanation of voter indifference to a chamber without powers naturally has no longer any purchase and has disappeared. The alternative explanation usually dished out by hard-working if anguished MEPs, who are both humiliated and flummoxed by this historical trend, is to say in a million different ways that ‘we have to explain Europe better’ to European citizens. This was the initial line which the Commission also took after the debacle of the Constitution. It is a morally repugnant argument, a crass resurrection in all but name of Marxist false consciousness. Maybe we should change the stupid People who do not understand – as Brecht famously and viciously quipped?

But in fact the people are wiser than their elected representatives in the European Parliament and elsewhere. For they intuit the truth: with all its increased powers it still makes no difference to Europe, and in Europe, whether and how the people vote for the European Parliament. Read the rest of this entry…

Filed under: Editorials, EJIL, European Union

SCSL Appeals Chamber Affirms Charles Taylor’s Conviction

Published on September 26, 2013        Author: 

Today the Appeals Chamber of the Special Court for Sierra Leone unanimously upheld the conviction of Charles Taylor, the former President of Liberia, and affirmed the Trial Chamber’s sentence of 50 years imprisonment. The judgment is available here; a short press release here. The judgment is very long and will take some time to digest. Symbolically and politically it is of course of immense importance.

Legally, however, the most interesting aspect of the judgment is the SCSL’s refusal to follow the ICTY Appeals Chamber’s holding in Perisic that the actus reus of aiding and abetting liability requires the assistance to be ‘specifically directed’ towards the commission of crimes. Readers will recall that Perisic was acquitted despite knowing that the aid he was providing to the Bosnian Serbs will help them in the commission of crimes against international law, since the ICTY Appeals Chamber found that the aid was given to the war effort as a whole, rather than to the commission of the crimes as such. For more background, see my previous post on Perisic and James Stewart’s very important post on specific direction.

In my view, this is a very welcome development, and the specific direction standard was rightly discarded. Note, however, how this creates a direct conflict of jurisprudence between two ad hoc international criminal tribunals. The fragmentation of international criminal law is well and truly upon us. Whether this will induce the ICTY Appeals Chamber to change its mind on the matter, and which side will be taken by other international tribunals dealing with similar factual patterns, remains to be seen.

Read the rest of this entry…


Syria and the Law of Humanitarian Intervention (Part I: Political Miscues and U.S. Law)

Published on September 26, 2013        Author: 

50Harold Hongju Koh is Sterling Professor of International Law at Yale Law School and was Legal Adviser of the U.S. Department of State from 2009 to 2013.

Editor’s Note: This piece was originally published on Just Security, a new blog with a fantastic team of editors and contributors who will be well known to our readers. Although the blog claims to be dedicated to US national security law and policy, the first week of posting suggests it will be an important forum for discussion of international law issues. We urge you to check it out!

Crises are lived forward but understood backwards.  While it is still too early to know how the Syria crisis of 2013 will end, we can start evaluating what precedents of law and policy it should generate, properly understood.  Notwithstanding a welter of political miscues, when the dust settles, history might well remember the episode as “Obama’s Harfleur:” where an announced threat of potentially illegal force catalyzed a better nonviolent result, here by reinvigorating multilateral diplomacy abroad and much-needed public debate at home.

To explain why, Part I of this – my first for Just Security and EJIL:Talk! — will sort out first, what went wrong; and second, why the proposed military action was lawful under domestic law. Part II will discuss third, whether the proposed military action was lawful under international law; and fourth, what might still go right if we, as constructive observers, can help get it there.

1.What went wrong:  To read recent blog commentary, one might think that the villain of this piece is Barack Obama, not Assad or Putin.  But from the start, the President has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria, and just this May, gave a major speech at NDU reaffirming that he wants to end wars in Iraq, Afghanistan, and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months and lied about it–with and without chemical weapons –while Putin has given him shameless cover with four vetoes, lies, and sickening rhetoric. Putin’s hypocrisy culminated in his recent “pro-international law” op-ed in the New York Times, which pretended that despite condoning civilian slaughter for many months, Russia was not trying to protect the Syrian government, and that the Syrian opposition, not Assad, had deployed chemical weapons. Read the rest of this entry…

Filed under: Syria, Use of Force


Published on September 26, 2013        Author: 

The European Society of International Law will be celebrating next year its10th anniversary. We watch it with paternal affection and care. ESIL was the brainchild of EJIL – dreamt up by Philip Alston and myself in one of our febrile Editorial meetings. Philip, as our Editor-in-Chief at the time, was the prime mover and could, I believe, be considered as the Midwife-in-Chief.

There is already a strong liaison between EJIL and ESIL – the very advantageous subscription rate to EJIL which ESIL Members enjoy. But in a series of recent meetings I have had with members of the ESIL Board we decided to look for ways to enhance – broaden and deepen – the relationship.

One decisive proposal found favour at the recent Editorial Board meeting of EJIL. We decided that the President in Office of ESIL should have an ex-officio place on the Board of Editors of EJIL. It is our pleasure to welcome Laurence Boisson de Chazournes to the EJIL Board. We are also inviting André Nollkaemper to join the Scientific Advisory Board and welcome him warmly.

ESIL has an ambitious 10th anniversary intellectual celebration in mind. We will be at their service through EJIL and EJIL: Talk!, both in the pre- and post-phases of these plans.

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EJIL Vol. 24:3 – In This Issue

Published on September 25, 2013        Author: 

This issue opens with two articles that address topics that are at once tremendously important, highly relevant to contemporary international affairs, and yet under-examined. Cai Congyan analyses the rise of New Great Powers, their impacts upon and implications for international law, and offers a unique insider’s perspective through a revealing case study of the most significant New Great Power, China. Claus Zimmermann argues for a renewed appreciation of the concept of monetary sovereignty, tracing its evolution over time and assessing its applications to present-day circumstances.

The issue continues with a pair of entries under the rubric EJIL: Debate! that are sure to provoke much scholarly discussion and disagreement for years to come. Ryan Goodman’s groundbreaking thesis regarding the power to kill or capture enemy combatants has already been the subject of intense interest and debate on a number of Internet fora. Here, we publish the definitive version of his argument, together with a Reply from Michael Schmitt of the United States Naval War College, and Goodman’s Rejoinder.

The second EJIL: Debate! in this issue centres on an article by John Dugard and John Reynolds, which assesses whether the Israeli occupation of the Palestinian territories amounts to apartheid as defined under international law. In her Reply, Yaffa Zilbershats argues that the authors fail to differentiate between the norms applicable in sovereign and occupied territories, and that they ignore the context of armed conflict that explains many of the practices they criticize. Look out for a Rejoinder from Dugard and Reynold on EJIL: Talk!, where we expect the debate will continue for some time.

In Roaming Charges, we return to Moments of Dignity with a scene from San Juan, Puerto Rico.

Our occasional series Critical Review of International Governance features a piece in this issue by Ademola Abass, on the occasion of a recent summit of African Union leaders. Abass examines the grounds for a possible decision to confer international criminal jurisdiction upon an African regional court, but argues that certain challenges to the effectiveness of such a court make it unlikely that that decision will be made.

The Last Page in this issue presents A Mystic and a Stock Price, by Laura Coyne.

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New Issue of EJIL (Vol. 24: No. 3) Out Next Week

Published on September 24, 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 upcoming issue. Here is the Table of Contents of the next issue of EJIL:


European Parliament Elections 2014: Europe’s Fateful Choices; EJIL and ESIL; In this Issue


Congyan Cai, New Great Powers and International Law in the 21st Century

Claus D. Zimmermann, The Concept of Monetary Sovereignty Revisited

EJIL: Debate!

Ryan Goodman, The Power to Kill or Capture Enemy Combatants

Michael N. Schmitt, Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’

Ryan Goodman, The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt

 EJIL: Debate!

John Dugard and John Reynolds, Apartheid, International Law, and the Occupied Palestinian Territory

Yaffa Zilbershats, Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

Roaming Charges: Moments of Dignity: Bar in San Juan

Critical Review of International Governance

 Ademola Abass, Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges

 Literature Review Essay

Benoît Mayer, Climate Change and International Law in the Grim Days

 Book Reviews

Caroline Foster. Science and the Precautionary Principle in International Courts and Tribunals. Expert Evidence, Burden of Proof and Finality (Oren Perez)

Agnès Michelot (ed.). Equité et environnement. Quel(s) modèle(s) de justice environnementale? (Armelle Gouritin)

F. Francioni and N. Ronzitti (eds). War by Contract: Human Rights, Humanitarian Law and Private Contractors (Rein Müllerson)

Paul Schiff Berman. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Sujith Xavier)

Jeffrey L. Dunoff and Mark A. Pollack (eds). Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Monika Zalnieriute)

The Last Page

Laura Coyne, A Mystic and a Stock Price


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Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…


Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part I

Published on September 23, 2013        Author: 

BeijingWatchTowerThe Beijing Human Rights Forum, the 6th of its kind was held in “the golden season of autumn” on 12-13 September 2013, under the theme: “Constructing an Environment for Sustainable Human Rights Development”. The Forum took place at a critical date, only a few weeks before the second Universal Periodic Review of China, which is scheduled for October this year. As a heavily government-influenced event, the Forum shed some light on what to expect from the Chinese Government in the upcoming review.

The Universal Periodic Review of China

The compilation prepared by the High Commissioner for Human Rights (UN Doc. A/HRC/WG.6/4/CHN/2 of 16 Dec. 2008) lists the international obligations which bind China and which thus form the yardstick of the review: China has ratified more than 20 international Human Rights Covenants, among them the CECSR, the CAT, the CEDAW, and the CPD. Importantly, the ratified treaties are not self-executing in the Chinese legal system, i.e. they cannot be directly applied by Chinese courts (XUE Hanquin and JIN Quian, “International Treaties in the Chinese Domestic Legal System”, Chinese Journal of International Law 8 (2009), 299-322).

So far, China has not ratified several important treaties, such as the Rome Statute. It signed the CCPR in 1998, but did not ratify it. Meanwhile, the time lapse after signing  the CCPR has been longer than the 15 years it took the ratify (which signed in 1977 and ratified in 1992) – but we should not forget that the USA has, as opposed to China, never ratified the CESCR.

In the first UPR of China in 2009, a number of recommendations were made to the country. China accepted some but rejected many; among them very important ones such as to ratify the CCPR as quickly as possible and to withdraw the Chinese reservation to Art. 8(1) CECSR (freedom of trade unions), and to become a party to the Rome Statute.

According to para. 34 of the UPR foundational document (“United Nations Human Rights Council: Institution-building, I. Universal Periodic Review Mechanism”, Annex 1 to High Commissioner’s resolution 5/1), the focus of the second UPR will be first of all the implementation of the accepted recommendations of the previous cycle. This means that even if China subsequently tackled some of the recommendations it had formally rejected, these aspects cannot officially be on top of the review agenda. Read the rest of this entry…

Filed under: Human Rights