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Subsequent Practice in the Whaling Case, and What the ICJ Implies about Treaty Interpretation in International Organizations

Published on March 31, 2014        Author: 

Today the ICJ delivered its long-anticipated judgment in the Whaling Case (Australia v. Japan: New Zealand Intervening), finding Japan’s whaling program in breach of the Whaling Convention on several counts. It is a rich judgment, which will be more fully digested over the next few days.

In this post I want to draw attention to one specific point on the ICJ’s approach to the interpreting the Whaling Convention – specifically the Court’s approach to subsequent agreement and practice in relation to its prior advisory jurisprudence on the interpretation of the U.N. Charter. The relevant aspect of the Whaling Judgment concerns the Court’s assessment of the weight of resolutions issued by the International Whaling Commission (IWC).

The IWC is a supervisory body established by the Whaling Convention. It has the capacity to amend certain provisions of the Convention by three-fourths majority vote (though amendments will not bind any State Party that objects). It can also render non-binding recommendations. The Court indicates at the outset that while such resolutions are non-binding, when “they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention.” (¶46). The Court notes that the Commission has amended the Convention several times, and that “the functions conferred on the Commission have made the Convention an evolving instrument” (¶45). Read the rest of this entry…


ICJ Decides the Whaling in the Antarctic Case: Australia Wins

Published on March 31, 2014        Author: 

This morning the ICJ delivered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court did not want to define with particular precision, it was still not conducted for the purposes of scientific research, and thus violated Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The Court took a number of factors into account in making this determination, including: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects. The determination in the Court’s view required an objective standard of review, rather than a deferential one which would take the state’s professed objectives at face value. It thus found that bearing in mind the design of Japan’s programme, its minor scientific output etc,  it was not set up for the purposes of scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling permits and refrain from authorizing new ones under the current whaling programme.

The judgment summary is available here, the judgment itself and a number of separate opinions here. We will have more coverage of the case in the week to come.



EJIL Vol. 25, Issue I: In this Issue

Published on March 31, 2014        Author: 

Even aside from the joint EJILI•CON Symposium marking the 50th anniversary of the seminal Van Gend en Loos decision, this issue offers a cornucopia of innovative scholarship on international law. We start by introducing a new rubric, EJIL: Keynote!, under which we intend to publish especially noteworthy conference presentations and other public addresses. In the first lecture to be published under this rubric, Sir Daniel Bethlehem argues that the traditional ‘geography of statehood’ is of decreasing importance in the face of new global flows  ̶  of information, capital, goods, services, and people. Combining the new rubric with the well-established EJIL: Debate! format, David S. Koller and Carl Landauer offer two Replies that will certainly stimulate further reflections on continuity and change in the relationship between geography and international law.

The two articles that follow demonstrate, once again, EJIL’s commitment to giving equal attention to both theoretical and doctrinal aspects of international law. Maria Aristodemou’s article applies the insights and techniques of Lacanian psychoanalysis to public international law itself, appraising the latter as a thoroughly neurotic discipline; animated, challenging and droll, this piece will be required reading for anyone interested in keeping pace with the cutting edge of international legal theory. Christopher Wadlow’s article, by contrast, addresses a series of relatively specific problems arising under the TRIPS Agreement, of a conceptual and doctrinal nature. We think both are excellent in their respective genres.

Following our symposium revisiting Van Gend en Loos, Roaming Charges returns to Moments of Dignity, with a photograph of a pre-wedding moment in Peking.

In a further entry under our EJIL: Debate! rubric, we have, as mentioned,  an article by Dia Anagnostou and Alina Mungiu-Pippidi which examines the domestic implementation of rulings by the European Court of Human Rights in nine states, concluding that the main obstacles to compliance can be found in domestic policy process, legal infrastructure, and institutional capacity. Eric Voeten’s Reply engages with Anagnostou and Mungiu-Pippidi on methodological grounds, showing how the application of more sophisticated statistical methods to a more extensive data-set might produce more nuanced substantive conclusions. Together, these two pieces indeed provide compelling evidence of the growing interest in—and potential insights to be gained from—empirical, numerical and statistical studies in international law.

In our occasional series, Critical Review of International Governance, Rosa Freedman tackles the controversy over the role of the United Nations in causing the recent cholera outbreak in Haiti, exploring whether a human rights-based challenge to the UN’s immunity may be mounted.

The Last Page in this issue presents a poem entitled Bhopal, by Keith Ekiss.

Filed under: Editorials, EJIL
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Announcements: BIICL Course on Public International Law; 21st C Borders Conference;

Published on March 30, 2014        Author: 

1. The British Institute of International and Comparative Law (BIICL) will be running a short course from 29-30 April 2014 entitled, Public International Law in Practice. The dynamic, two-day programme will be focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Participants will be provided with a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international resolution of disputes, from human rights to international investment law.  Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early and middle years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, those in moving legal practice areas, and students who are studying for a postgraduate degree which includes aspects of international law. This course is unique in that it introduces participants to public international law as it arises in practice in a concise and engaging way. The course fee is £375 (incl VAT) and it is accredited with 14.5 CPD hours. Find out more and book online here.

2. Call for Papers: Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with shifting balances of international power. This was seen most dramatically in the recent Russian annexation of the Crimea and its connected repudiation of uti possidetis that underpinned statehood in the former Soviet Union. In East Asia tensions remain high in sovereignty disputes over islands and maritime delimitation. Renewed attempts to reach a settlement between Israel and Palestine similarly turn on the crucial issue of borders. In addition to these, a number of other states have been involved in long-running boundary conflicts. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. We welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers j.summers {at} The deadline for abstracts is 20th April 2014.


Filed under: Announcements and Events

Crimea and (the Lack of) Continuity in Russian Approaches to International Law

Published on March 28, 2014        Author: 

On 27 March 2014, the UN General Assembly adopted a resolution calling upon states not to recognize changes in status quo of Crimea region. 100 states voted in favor, 11 were against and 58 abstained. In terms of international law, Ukraine’s continued sovereignty over Crimea is supported by the absolute majority of states, even though Crimea is now de facto annexed by the Russian Federation. In this post I want to make two points: one concerning the Russian scholarship on international law and the second on the history of Russia’s treaty practice regarding Crimea.

The first point is that the annexation of Crimea by the Russian Federation goes against pretty much everything that has been written in Russia over the last twenty years (plus during the Soviet period) on the legality of the use of military force and the right or peoples to self-determination in international law in non-colonial contexts. Suffice it to say that the Concept of the Foreign Policy of the Russian Federation, approved by President Putin on 12 February 2013, emphatically criticizes and condemns the use of military force outside the framework of the UN Charter.

My comment focuses on the Russian scholarship of international law because its most prominent representatives have until now argued that, in international law, the principle of state sovereignty clearly trumps the right of peoples to self-determination. (See e.g. I.I. Lukashuk, Mezhdunarodnoe pravo. Obshaya chast’ (2001), 280, 300; V.I. Kuznetsov, B.R. Tuzmukhamedov (eds) Mezhdunarodnoe pravo, 2nd ed. (2007), 215; G.G. Shinkaretskaya, ‘Polozhenie fakticheski sushestvuyushikh rezhimov (nepriznannykh gosudarstv)’, in: A.G. Lisitsyn-Svetlanov (ed.) Novye vyzovy i mezhdunarodnoe pravo (2010), 168-172; A.Ya. Kapustin (ed.) Mezhdunarodnoe pravo (2008), 105; A.A. Kovalev, S.v. Chernichenko (eds) Mezhdunarodnoe pravo, 3rd ed. (2008), 58.)

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New Issue of EJIL (Vol. 25: No.1) Out Next Week

Published on March 28, 2014        Author: 

The latest issue of the European Journal of International Law will be published at the end of next week. Over the course of next week, in advance of the publication of the new issue, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will then appear in the Editorial in the upcoming issue. Here is the Table of Contents of the next issue of EJIL:


The International Society for Public Law – Call for Papers and Panels; Van Gend en Loos – 50th Anniversary; Vital Statistics; Roll of Honour; Quantitative Empirical International Legal Scholarship; In this Issue

EJIL: Keynote Debate!

Daniel Bethlehem, The End of Geography: The Changing Nature of the International System and the Challenge to International Law

David S. Koller, The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Carl Landauer, The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem


Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Christopher Wadlow, The beneficiaries of TRIPS: Some Questions of Rights, Ressortissants and International Locus Standi

Revisiting Van Gend en Loos: A Joint Symposium
with the International Journal of Constitutional Law (I·CON)

JHH Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy

Eyal Benvenisti and George Downs, The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions Read the rest of this entry…

Filed under: EJIL Analysis
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Human Rights Committee’s Concluding Observations on the United States

Published on March 27, 2014        Author: 

Our friends at Just Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:]  Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’  and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

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ICON-S Inaugural Conference June 2014 – Rethinking the Boundaries of Public Law and Public Space: Call for Papers & Panels—

Published on March 26, 2014        Author: 

The European Journal of International Law is  pleased to announce the Call for Papers & Panels  for the Inaugural Conference of ICON-S: the International Society of Public Law. ICON-S is a new international learned society. Its Pro Term Executive Committee includes many of the world’s leading scholars in the field of public law (and public international law). ICON-S will be launched officially at its Inaugural Conference in Florence, Italy, on June 26-28, 2014. The conference will feature plenary and concurrent panels. Scholars–both senior and junior, including graduate students–are invited to submit papers and/or fully-formed panels for the conference. Please join us for what promises to be an important moment in the field of public law. The deadline for the call for papers is March 31. Further details about the conference are below the fold. Read the rest of this entry…

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The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

Published on March 25, 2014        Author: 

In the decision of Vallianatos and others v. Greece (No. 29381/09 and 32684/09) delivered on 7th November 2013, the European Court of Human Rights (the Court) considered that two adult men living separately should benefit from the protection granted to families in the particular case where they maintained a stable homosexual relationship. On this occasion the Court affirmed that, from now on, when a European State legislates as regards the family, it “in its choice of meansmust necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (§ 84). The Court thus ensures that European States adapt their legislation to (its own perception of) the evolution of morals. This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.

The family constituted by marriage and/or children

The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective “respect” for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. Read the rest of this entry…


The ILC Guide to Practice on Reservations to Treaties: Some General Remarks

Published on March 24, 2014        Author: 

On 16 December 2013, by adopting resolution 68/111, the General Assembly completed a 21-year study on the codification and progressive development of the law on reservations to treaties. In its resolution, the GA takes note of the Guide to Practice on Reservations to Treaties, the text of which had been adopted by the International Law Commission (ILC) on 11 August 2011. The full text is an addendum to the 2011 Report of the ILC (available at

A Special Kind of Instrument

I was appointed the Special Rapporteur of the ILC on the topic of “Reservations to Treaties” in 1994. With excessive confidence – or recklessness – I then declared that ‘[i]t does not seem unrealistic to think that the Commission would be in a position to adopt an initial set of draft articles, or a first draft to serve as a “guide” …, within three or four years of the subject being included on its agenda and the appointment of a Special Rapporteur” (Yrbk ILC (1993), ii(1), at 335, para. 55). I rapidly became disillusioned and realized that, as my illustrious predecessors had noted, ‘the subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity and it would serve no useful purpose to simplify artificially an inherently complex problem’ (Sir Hersch Lauterpacht, Report on the Law of Treaties, doc. A/CN.4/63, Yrbk ILC (1953), ii, at 124) moreover, the topic brings with it an emotional charge at the political level which I had underestimated and which made things even more complicated. The ‘sharia reservations’ are but the most striking example of the political sensitivity of the subject. More generally, reservations to human rights conventions, although they are by no means special legally speaking, are the object of harsh doctrinal and ideological debates. Read the rest of this entry…