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House-keeping: Anonymity

Published on December 12, 2013        Author: 

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Both EJIL and and EJIL: Talk! are venues for scholarly exchange where the norm is that scholars take responsibility for their submissions, use their real credentials and do not hide behind a pseudonym. In the case of EJIL: Talk! this is part of our policy of maintaining a sober, respectful and courteous tone, even in cases of critical comment. It has been our experience that anonymous comments have at times violated our ‘sobriety’ policy and have had to be removed.

On rare occasions anonymity may be justified  ̶  such as a submission from a jurisdiction which does not respect freedom of expression. An author who seeks to publish, post or comment anonymously should contact the Editor-in-Chief of EJIL or one of the Editors of EJIL: Talk! before submitting a manuscript to the Journal or a post or comment to the blog. The Editors will give due consideration to any request for anonymity.

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EJIL Vol. 24:4–In this Issue

Published on December 12, 2013        Author: 

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We open this issue with two articles addressing the changing relationships between states and international organizations in contemporary international law. Andrew Guzman argues that the fear of creating a ‘Frankenstein’s monster’ explains the current overall configuration of international institutions and the distribution of activities between them. Describing the various categories of activity carried out by international organizations, Guzman concludes that the ‘Frankenstein problem’ has made states overly cautious in endowing international organizations with the powers needed to effectively tackle international issues. In an article that provides a nice complement to Guzman’s analysis, Geraldo Vidigal-Neto examines the important issue of the ability of WTO members to amend their WTO obligations through bilateral arrangements that effectively legislate regarding the interpretation of WTO law inter se, situating this phenomenon within the range of possible ways in which the content of WTO law can be altered.

This issue’s symposium on the International Law Commission’s recent Guide to Practice on Reservations to Treaties reaffirms EJIL’s commitment to the study of international legal doctrine. EJIL is as much a Law Journal as a Journal about the Law. An introduction to the symposium by Marko Milanovic and Linos-Alexander Sicilianos is followed by a ‘General Presentation’ of the Guide to Practice by the Special Rapporteur, Alain Pellet. Three additional articles, by Michael Wood, Daniel Müller, and Ineta Ziemele and Lasma Liede, explore different aspects of the Guide to Practice and reservations to treaties generally.

In Roaming Charges, we feature Places of Destruction and Rebirth, with a photograph of a remnant of the Kraków Ghetto Wall.

Two more entries in this issue under our rubric EJIL: Debate! provide occasions for the kind of spirited discussion of international legal issues that we encourage in the Journal. An article by Andrew Williams assesses the case against the European Convention on Human Rights, including the ‘heretical’ proposition that the Convention has failed human rights conceptually and should be done away with. In his Reply, Stelios Andreadakis defends the Convention and argues that the flaws identified by Andrew Williams are far from fatal. The second EJIL: Debate! in this issue continues a conversation that began with an article by Abigail Deshman in issue 22:4, on the phenomenon of horizontal review between international organizations, the Council of Europe and World Health Organization. Rosa Raffaelli argues that a number of additional reasons, not noted by Deshman, can explain the behaviour of the two parliamentary bodies in these organizations. Read the rest of this entry…

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New Issue of EJIL (Vol. 24: No. 4) Out Next Week

Published on December 11, 2013        Author: 

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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 posts 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:

Editorial

Crime and Punishment: The Reification and Deification of the State (A Footnote to the Syria Debate); House-keeping: Anonymity; In this Issue 

Articles

Andrew Guzman, International Organizations and the Frankenstein Problem

Geraldo Vidigal, From Bilateral to Multilateral Law-Making: Legislation, Practice, Evolution and the Future of Inter-Se Agreements in the WTO 

Symposium: The International Law Commission’s Guide to Practice on Reservations to Treaties

Marko Milanovic and Linos-Alexander Sicilianos, Reservations to Treaties: An Introduction

Alain Pellet, The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur

Michael Wood, Institutional Aspects of the Guide to Practice on Reservations

Daniel Muller, Reservations and Time: Is There Only One Right Moment to Formulate and to React to Reservations?

Ineta Ziemele and Lasma Liede, Reservations to Human Rights Treaties: From Draft Guideline 3.1.12 to Guideline 3.1.5.6 

Roaming Charges: Places of Destruction and Rebirth:A Remnant of the Kraków Ghetto Wall

EJIL: Debate!

Andrew Williams, The European Convention on Human Rights, the EU and the UK: Confronting a Heresy

Stelios Andreadakis, The European Convention on Human Rights, the EU and the UK: Confronting a Heresy: A Reply to Andrew Williams  

EJIL: Debate!

Rosa Raffaelli, Horizontal Review between International Organizations: A Reply to Abigail C. Deshman

Abigail C. Deshman, Horizontal Review between International Organizations: A Rejoinder to Rosa Raffaelli 

Critical Review of International Governance

Gurdial Nijar, Traditional Knowledge Systems, International Law and National Challenges: Marginalization or Emancipation?

Review Essay

Christian Djeffal, Commentaries on the Law of Treaties: A Review Essay Reflecting on the Genre of Commentaries. Olivier Corten and Pierre Klein (eds). The Vienna Conventions on the Law of Treaties: A Commentary; Oliver Dörr and Kirsten Schmalenbach (eds). The Vienna Convention on the Law of Treaties: A Commentary; Mark Villiger. Commentary on the 1969 Vienna Convention on the Law of Treaties.  

Book Reviews 

Duncan B. Hollis (ed.). The Oxford Guide to Treaties (Tim Staal)

Jean L. Cohen. Globalization and Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism (Gráinne de Búrca)

Sari Kuovo and Zoe Pearson (eds). Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? Gina Heathcote. The Law on the Use of Force: A Feminist Analysis (Loveday Hodson)

John Harrington and Maria Stuttaford (eds). Global Health and Human Rights: Legal and Philosophical Perspectives; John Tobin. The Right to Health in International Law (Erika George)

Panos Koutrakos. The EU Common Security and Defence Policy (Julia Schmidt)

The Last Page 

Gregory Shaffer, Cashmere from Rachungkaru

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The Iranian Charter of Citizens’ Rights

Published on December 10, 2013        Author: 

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 Nazila Ghanea teaches international human rights law at the University of Oxford.

100 days into his presidency, Iranian President Hassan Rohani delivered a partial result on the nuclear issue (see EJIL:Talk! discussion by Dan Joyner)and released his draft Charter of Citizens’ Rights (henceforth ‘the Charter’) on 26 November 2013. Though the Presidential website offers content in 7 languages including English, the draft Charter has only been made available in Persian.

It is reported that the President consulted religious elites, experts, activists and academics within Iran with regard to this draft Charter, but not the Iranian judiciary. Academics, thinkers, universities and others have been asked to send their comments on the draft Charter to the legal deputy of the Iranian President within a month so that it can be revised and a final version released. So what feedback can one give the President’s office on the draft Charter? What does the Charter add and which rights does it guarantee? Does it fulfill the President’s aim (see here) that citizens’ rights make “all Iranians feel they are part of one nation, one identity, under one umbrella they can feel proud of”?

The Charter itself announces that it will not have an effect on existing rights, laws and obligations or on international conventions (article 1.1). The Charter states that it declares the most important citizenship rights and the direction of the government’s human rights policy, but that it does not intend to create new rights or obligations (article 1.6). The importance of the Charter, therefore, lies in the fact that it is declaratory of the Islamic Republic of Iran’s understanding of the most important citizens’ rights that it will henceforth prioritise in its activities. Though it should not impact existing UN human rights obligations according to article 1.1, this ‘prioritisation’ suggests that there will be a notable impact on Iran’s future human rights compliance. This is underscored in the follow-up suggested within the Charter, for example that there will be three-monthly updates to the Presidency regarding activities concerned with advancing Charter rights (article 15). Such Charter activities may well overshadow action on other human rights obligations binding upon Iran and on recommendations stemming from international human bodies. Read the rest of this entry…

 
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Of Rights and Powers: Waiving Investment Treaty Protection

Published on December 9, 2013        Author: 

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BartBart L. Smit Duijzentkunst is a PhD Candidate at Gonville and Caius College, University of Cambridge.

In November, the media reported that Colombia intends to ask foreign investors vying to construct a $26 billion road project to waive their power to bring claims under an investment treaty. Instead, the dispute would have to be resolved through domestic arbitration.

Until now, the question of a waiver of investment rights remained a mere academic exercise. It ties in with the lively debate, including here on EJILTalk!, over the position of the investor enjoying investment treaty protection—in particular whether investors can be considered right holders under investment treaties. Over the last few years, arbitrators (see here, here and here), advocates (see, for example, here and here) and academics (see, inter alia, here, here, here, here, here and here) have all had their say on this issue.

Now it seems that the debate over a waiver will move from theory into practice. Yet before we push theory to the side, I would like to suggest that, in this case, it can help us to identify, if not the answers, at least the correct questions to ask in this debate. Read the rest of this entry…

 

Announcements and Events: Syria Conference, Call for Fellowship Applications

Published on December 7, 2013        Author: 

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1.  The College of Law, Qatar University and the Qatari Branch of the International Law Association are co-organizing an international conference focusing on ‘The Syrian Crisis and International Law”. The conference is scheduled to take place on the 25th and 26th of February 2014, in Doha (Qatar). Invited speakers will include academics, diplomats, activists and legal practitioners who will discuss different aspects of International Law applicable to the Syrian crisis. The Conference will have four Panel Sessions, thematically addressing Public International Law, International Humanitarian Law and Human Rights, International Criminal Law and, the Syrian crisis in the International World Order. Interested participants are kindly requested to submit papers falling within these areas. Further details here.

2.  The Global Trust Research Project at Tel Aviv University Faculty of Law, directed by Professor Eyal Benvenisti, invites candidates interested in exploring themes related to this project to apply for: one post-doctoral fellowship, two doctoral fellowships, and two visiting fellowships. The application deadline for the 2014-2015 academic year is 1 February 2014. The project description is as follows: Do states, when they exercise their domestic regulatory functions, have an obligation to take into account the interests of foreign individuals and communities who could be adversely affected? Should national legislators and government agencies integrate foreign stakeholders into their decision-making processes? Must states share with strangers their scarce national resources and in general contribute to global welfare? These are some of the key questions that the project “Sovereigns as Trustees of Humanity: The Obligations of Nations in an Era of Global interdependence” (GlobalTrust) sets out to explore. This project is informed by the observation that when setting national policies, states routinely affect foreigners in faraway countries often without providing them with adequate opportunities to participate in shaping those policies. More details on the project here, and on the fellowships (including application instructions) here.

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Banning Niqabs in Public Spaces

Published on December 6, 2013        Author: 

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Erica Howard

Dr Erica Howard is reader in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

 

Recently the wearing of the niqab, the face-covering veil worn by some Muslim women, has been in the news again after the judgment on the wearing of the niqab by a defendant in criminal proceedings (R v D(R), 16/09/2013, judgment H.H. Judge Peter Murphy). In this case, Judge Murphy applied Article 9 of the European Convention on Human Rights 1950 (ECHR). He accepted, following the case law of the European Court of Human rights (ECtHR) on Article 9 ECHR (see, for example, Eweida and Others v the UK; Dahlab v Switzerland and Sahin v Turkey), that the wearing of the niqab was a manifestation of the defendant’s religion and that her right to manifest her religion had been interfered with. He then examined whether the restriction was justified under Article 9(2) using a proportionality test, balancing D’s right to manifest her religion against the interests of justice in conducting a fair trial for everyone involved.

So Murphy followed the approach of the ECtHR. But will the ECtHR do the same in the case of S.A.S. v France, which challenges the French legislation prohibiting the wearing of face-covering clothing in all public spaces? The case was heard by the Grand Chamber on 27 November 2013, after the Chamber, in May 2013, relinquished jurisdiction to the Grand Chamber (for a summary of this hearing see here). It is, at present, not known when the judgment in this case will be published.

S.A.S., a devout Muslim who wears the niqab in accordance with her religious faith, culture and personal convictions, was fined for wearing the face covering veil in public and claims a violation of a number of her rights under the ECHR, including her right to manifest her religion under Article 9. As, in my view, Article 9 is the most important and relevant for this case, I will only discuss this article here. Read the rest of this entry…

 
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Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

Published on December 4, 2013        Author: 

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SanctionsUN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations. Read the rest of this entry…

 

The Public Law Paradigm in International Investment Law

Published on December 3, 2013        Author: 

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In my last post, I discussed the virtues of investor-State arbitration and suggested that this dispute settlement system could react to current criticism by reconceptualizing the system from within. To succeed, a reconceptualized system would have to provide an accountability mechanism to implement the rule of law that produces results similar to those of other accountability mechanisms for the control of government authority, whether at the national or the international level. Thinking of investor-State arbitration as a mechanism that is similar to judicial review, and adopting the methods and results of such mechanisms, in my view, is the key to reforming international investment law. This means appreciating international investment law as a public law discipline and an instrument of global governance.

Prevailing Mindsets in Investment Treaty Arbitration

Yet, in practice the view prevails that investor-State arbitration is primarily a mechanism to settle individual legal disputes. In fact, lawyers with either a commercial arbitration or a public international law background –the two approaches that most actively shape international investment law and arbitration at present – stress such a limited function of arbitration, while having divergent views on what the rule of law may mean in this context. Those coming from commercial arbitration tend to stress the private nature of dispute settlement; for them the rule of law means faithfulness to party consent, party autonomy, and sanctity of contracts. Public international lawyers, by contrast, tend to emphasize the embeddedness of investment treaty arbitration in a public world order that imposes constraints on State conduct under international law. Their idea of the rule of law is connected more strongly to the idea of limiting the exercise of public authority by procedural and substantive conditions, but their thinking often remains grounded in an inter-State context.

Responding to the Public Law Challenge

Yet, neither a pure international law understanding nor a pure commercial law understanding of investor-State arbitration appears sufficient in itself to comprehend the specific characteristics of international investment law and the challenges the system faces. These challenges, I submit, stem from a disconnect between a broadly held view of the role of investor-State arbitration, on the one hand, and the details of its actual functioning, on the other. It is widely expected that investor-State arbitration should fulfill a role similar to that of judicial review under domestic administrative and constitutional law, subjecting host State public authority to an understanding of the rule of law that focuses chiefly on restrictions in the relations between public and private actors. However, arbitral review of public authority as actually implemented does not conform to public law standards. Specifically, the requirement that the reviewing powers themselves meet public law standards of the rule of law and democracy is absent. Neither commercial arbitration nor public international law approaches can grasp these challenges adequately because they do not sufficiently capture the public law nature of international investment law. Read the rest of this entry…

 

Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

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0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…