Home 2014 November (Page 3)

Announcements: EJIL:Live!; Lecture on Refugee Law, Queen Mary London; Lecture on WTO in London; Call for Papers on International Law Scholarship

Published on November 8, 2014        Author: 

1) In case you missed it: EJIL has made available a special audio podcast EJIL:Live! ExtraThis audio episode of EJIL:Live! Extra features a discussion between Guy Sinclair, Dapo Akande and Marko Milanovic of the English High Court decision in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB). That decision deals with detention in non-international armed conflicts and was previously discussed on the blog here, here, here and here.

2) Queen Mary Law School, University of London, would like to invite you to the forthcoming Inaugural Lecture by Professor Guy S Goodwin-Gill (All Souls College, Oxford): “The Continuing Relevance of International Refugee Law in a Globalised World”, launching the new LLM programme in Immigration Law. The event will take place on Monday 24 November 2014, from 18.00 to 20.00, in Room 210, at the Law Building (Mile End Campus), and will be followed by a drinks reception. Attendance is free, but prior booking is required via the Queen Mary Eventbrite page.

3) The City Law School announces the first ‘Law Meets Practice’ Lecture organized under the aegis of the Jean Monnet Chair in European Law. The topic will be ‘The paradox of multilateralism and the WTO – the role of the EU in the WTO’. The speaker will be Mr Angelos Pangratis, Ambassador and Permanent Representative of the EU to the World Trade Organisation, and the lecture will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law). It will take place at the City  University London, College Building, St John Street, Room A130 on Tuesday, 2 December 2014 at 18:00. The event will be followed by a wine reception. This is the first in a series of events organized under the aegis of the Jean Monnet Chair in European Law, awarded by the European Commission. Attendance is free. Sign up and find more information here. For queries, please contact Peter Aggar (Peter.Aggar.1 {at}

4) Call for Papers – Leiden Journal of International Law Symposium on ‘The Changing Role of Scholarship in International Law’. The Leiden Journal of International Law launches a call for papers for its symposium ‘The Changing Role of Scholarship in International Law’ which will take place on 11 May 2015 at The Hague. The Keynote will be delivered by Martti Koskenniemi. The event is organized by Ingo Venzke, Senior Editor of the International Legal Theory Section, and the LJIL Editors-in-Chief Carsten Stahn and Eric De Brabandere. The Leiden Journal of International Law has started to reflect on the changing role and function of scholarship in International Law. The role and concept of scholarship, including its foundations, methods and limits are in transition. This development opens up a wide array of questions and debates that are likely to remain at the forefront of academic thinking and research agendas in the next decade(s). The symposium presents an excellent opportunity to deepen discussion and reflection. It would present an occasion to reflect on the future of legal scholarship from different perspectives from within and beyond the Leiden Journal. The call for papers is available here.

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Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Published on November 7, 2014        Author: 

International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer. Unfortunately, before domestic courts, that is not always the case. Late last month, the Canadian Supreme Court issued its judgment in Kazemi Estate v. Islamic Republic of Iran [2014] SCC 62 (the Quebec Superior Court Judgment was discussed on the blog here). The case, following on the Ontario Court of Appeal’s earlier judgment in Bouzari, serves as a stark reminder that the application of international legal principles in domestic proceedings will frequently be governed or mediated by domestic legislation, which often reflects domestic priorities in addition to international principles. The role that international law should play in such cases, as either a source or a means of interpretation, may be contested. The Kazemi v Iran Judgment is the latest instalment in a series of important domestic court decisions on the law of State immunity.


Ms. Zahra Kazemi was a Canadian citizen and freelance photographer and journalist who died in custody in Iran in 2003, following her detention, torture and sexual assault in prison The authorities refused to return her body to Canada and buried her in Iran. Although a domestic investigation reported links between the Iranian authorities and her torture and death, only one person was charged and he was acquitted after a trial which lacked transparency.

Seeking justice for his mother’s death, Ms. Kazemi’s son, Mr. Stephan Hashemi, sued the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei (Iran’s Head of State), Mr. Mortazavi (Chief Public Prosecutor of Tehran), and Mr. Bakhshi (former Deputy Chief of Intelligence at the prison where Ms. Kazemi was detained), claiming damages for his mother’s suffering and death, and for the emotional and psychological harm that this caused him. Predictably, the defendants sought to dismiss the motion based on claims of state immunity, which is implemented in Canada by the State Immunity Act (SIA). This challenge ultimately reached the Supreme Court of Canada, Read the rest of this entry…


Sleepwalking Again: The End of the Pax Americana 1914-2014, Part II

Published on November 6, 2014        Author: 

This is Part II of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part I was published yesterday. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

Though one could call into question the wisdom or propriety of a whole variety of American actions of the past century, there was a justified sense that America was a guarantor of a kind of stability. In the most primitive sense this was the Pax Americana.

No more. There are, of course, no sharp temporal lines – an assassination in Sarajevo was a signpost, not a real cause. Still, 2014 is in contention to be judged by history as the watershed period, the culmination of a structural process signaling the demise of the Pax Americana.

We might think that we have been here before: Periods of American economic crisis, isolationism and lack of nerve have come and gone during the last hundred years. But my argument is that the current circumstance is different, at least in two unprecedented (if connected) ways.

First, we are actually not experiencing today American Isolationism and withdrawal, quite the contrary. In some respects we are witnessing heightened American engagement: Resetting relations with Russia, the Turn to Asia, frenetic efforts in the Israel-Palestinian context, direct and indirect activity surrounding events in Egypt and elsewhere in the Arab Spring, the pre withdrawal Surge in Iraq and ongoing commitment in Afghanistan and now with ISIS, the determined cultivation of Turkey, vocal diplomacy as regards sanctions against the Ukraine, the TTIP as a strategic asset, constructive and cooperative American involvement in the Trade Facilitation Agreement and a renewed interest in Africa to mention but some aspects of contemporary US foreign engagement.

What is different is the cumulative impression of loss of American constraining power and influence. There is a growing discrepancy between engagement and results. Just go down list: Relations with Russia are at Cold War levels without the containment effect; Chinese bellicose posture vis-à-vis  Japan and in the South China Sea are at a level one would not have imagined a mere decade ago; the US clamorous humiliations (no other word is strong enough) in reigniting the Israeli-Palestinian Peace Process and having any impact whatsoever on the bloody Gaza conflagrations; relations with Egypt far more complex than ever before; the collapse in Libya and general American impotence to predict or shape the post Spring events; Iraq in disarray with America scurrying to seek alliances with yesteryear’s enemies in the face of the true Syrian debacle (and a no-one-dare-to-say-what-just-about-everyone-is-thinking: the good-old-days-of-the-secular-Saddam-regime); the American would-be and well deserved dividend in Afghanistan all but written off; a Turkey in which America has lost even the semblance of an ally; the inability of the US to have a united front with the EU on sanctions – it took the Malaysia airline catastrophe to bring Europe around, not American pressure; the TTIP in the doldrums its requiem quietly being composed; the collapse (temporary one hopes) of the Bali Trade Facilitation Agreement (itself a fig leaf to the failed Doha) at the hands of India, American pressure and diplomacy notwithstanding; and America in Africa? How do you spell that in Chinese? Read the rest of this entry…

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Sleepwalking Again: The End of the Pax Americana 1914-2014, Part I

Published on November 5, 2014        Author: 

This is Part I of an excerpt from the Keynote speech delivered at ESIL’s 10th Anniversary Conference, held in Vienna, 4-6 September 2014.  Part II will be published tomorrow. The full version will be published in EJIL in a subsequent issue.

Note: This post has been updated to reflect a later version of the text.

I think it is difficult to contest that the most important State player in world affairs over the last one hundred years – and consistently so over this period — has been the United States of America. WWI – into which, to use Christopher Clark’s justly celebrated book, we Sleepwalked – marks a useful starting point. It is not only the fairly important  role America played in bringing  WWI to an end that signals the beginning of this era but the no less important role it played in shaping the aftermath. Wilson’s 14 points were considered at the time “idealist” by some of the “Old Powers.” But by dismantling the Ottoman Empire through the principle of Self Determination (not at that time a universal legally binding norm) the scene was set for the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the second half of the Century. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights in the wake of WWII – two lynchpins of our current world order.

That opening gambit to the American century is emblematic of  the entire Pax Americana epoch: American action in the international sphere has frequently been driven by a strong dose of idealism (to be sure sometimes misguided) mixed in with the normal self-interest which is the usual stuff of international relations.

I know that the various schools of ‘Realism’ tend to pooh-pooh any deviation from interest analysis in international relations. Generally speaking I find the emphasis on interest/power as an explanatory device to human affairs, to the exclusion of almost all other motivations, as laughably reductionist in international affairs as it is in other domains of human action. At its extreme it is rooted in a vision which denies in principle the possibility of altruism, a position which makes a mockery of the tragic complexity of the human condition. This is as true, even if to some both counter intuitive and discomforting, in the case of the conduct of American foreign policy.

There may be an irony in using the expression Pax Americana.  Read the rest of this entry…

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New Issue of EJIL (Vol. 25: No. 3) Published

Published on November 5, 2014        Author: 

The latest issue of the European Journal of International Law (Vol. 25, 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 also access those articles that are freely available without subscription. The free access article in this issue is Michelle Leanne Burgis-Kasthala’s “Over-Stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood”. Today and tomorrow, we will post the remainder of Editor-in-Chief Joseph Weiler’s editorial in this issue. 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.

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After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done. Read the rest of this entry…


Peer Review Redux

Published on November 4, 2014        Author: 

A word on the continuing crisis in peer review. EJIL is committed to upholding the highest standard of peer review, both as a guarantee of the quality of articles we publish and because we are aware of its importance to authors who are seeking appointment or promotion. As previously explained – see my earlier Editorial, in vol. 23, issue 2– it is increasingly difficult to find external referees who both meet our yardstick of excellence and are willing to give time to this selfless service. I wrote then that it was not infrequently the case that the first and second and even the third external referee to whom we turned would decline our invitation, whilst the unfortunate author, not unreasonably, became incensed at the length of time taken to reach a decision. Since then, we have on occasion had the experience of having six or seven potential reviewers decline before securing one who is willing to take up the task! And then of course more time passes while we wait for the review to be turned around …

These are egregious cases. The vast majority of reviews are, thankfully, completed on time and decisions made on manuscripts within a reasonable timeframe. We are grateful for the sterling services of our reviewers, some of whom we call upon regularly. We now acknowledge them in our annual Roll of Honour (published in the first issue of each volume) and offer them a free one-year online subscription to the Journal as a token of our appreciation. We welcome other suggestions to improve our review procedures while maintaining their integrity. In the meantime, we beg our authors to be patient with the process.

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English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims

Published on November 3, 2014        Author: 

Following a number of high profile but ultimately failed inquiries into the UK’s ‘complicity’ in US extraordinary rendition, some further light may be shed on the matter by the UK courts. Such is the significance of the judgment given last week by the English Court of Appeal in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, which reversed the decision of Simon J to strike out claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials for their alleged involvement in their unlawful abduction, detention and renditions. The claimants alleged that they were unlawfully detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, by agents of those states. Documents uncovered after the fall of Gaddafi allegedly show the complicity of UK officials in the kidnap of Belhaj and his then pregnant wife, Boudchar, and their rendition back to Libya. In a thorough and careful judgment, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) held that the claims are not barred by state immunity and, while they did engage the act of state doctrine, the claims fell within the public policy limitation applicable in cases of violation of international law and fundamental rights.

Permission to appeal to the Supreme Court has been granted only in relation to the act of state doctrine. Whatever the Supreme Court decides to do, this judgment marks another bold stand for the rule of law in the context of events arising from the so-called global war on terror, as well as providing further clarification on the scope of both doctrines.

State immunity: indirect impleader

Seemingly emboldened by the recent decision of the European Court of Justice in Jones v the United Kingdom, the Respondents sought to argue that state immunity may be invoked where, as in the present case, the claims necessarily require findings of illegality in respect of the acts of foreign officials for which they could claim immunity if they had been sued directly. It was argued that the claims indirectly implead the states concerned because they affect their interests and that, accordingly, state immunity applies to bar the claims.

Interestingly, the Respondents sought to derive support for this submission from the reference to both “rights” and “interests” in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of State and their Property, which they argued has the effect that a state is indirectly impleaded where its interests are affected in a broad sense. In its judgment, the Court cited academic commentary in support of the contention that the final words of Article 6(2)(b) should be given a limited reading, such that “interests” of states is confined to legal interests as opposed to interests in some more general sense Read the rest of this entry…


EJIL Volume 25:3–In This Issue

Published on November 3, 2014        Author: 

This issue offers another abundance of pioneering scholarship in diverse aspects of international law. It opens with an article by Jan Klabbers that traces the emergence of the now-orthodox functionalist theory in international institutional law, finding its origins in ‘an encounter with colonial administration’, and specifically in the early 20th-century writings of the American political scientist Paul Reinsch. In her article, Michelle Leanne Burgis-Kasthala likewise engages with important post-colonial themes in critical international law scholarship, but does so through a methodologically innovative ethnographic study of statehood narratives among Palestinians working in international law and human rights. Next, Mark Chinen, urges a reconsideration of the law of state responsibility in light of complexity theory. An article by Joost Pauwelyn, Ramses Wessel and Jan Wouters follows, examining the stagnation of formal international law, assessing the reasons for the rise of more informal forms of international lawmaking, and considering a range of possible responses. Finally in this section, Mónica García-Salmones Rovira’s article examines the ‘turn to interests’ shaping positivist international legal theory, as exemplified in the writings of Lassa Oppenheim and Hans Kelsen. A Reply by Jörg Kammerhofer contests the centrality of ‘interests’ in the work of Kelsen, as well as the methodology employed to discover it, and is followed by a Rejoinder by García-Salmones Rovira.

In Roaming ChargesMoments of Dignity, we feature a photograph entitled Keepers of the Sultan’s Treasures, shot in Brunei’s Regalia Museum.

Another important entry in our occasional series, The European Tradition in International Law, focuses on the Russian/Estonian jurist F. F. Martens. Lauri Malksöo provides an overview of Martens’ life, thought, and reception in international legal scholarship. Rein Müllerson draws parallels between issues in Martens’ time and our own. Rotem Giladi offers an original, critical reading of Martens’ most signal contribution, the clause to which he gave his name. And Andreas Müller examines Martens’ doctoral thesis on The Office of Consul and Consular Jurisdiction in the East, in light of the 19th-century dichotomy of civilized and non-civilized nations.

Under our rubric Critical Review of International Governance, Shashank P. Kumar and Cecily Rose present a quantitative empirical study of lawyers appearing before the ICJ. Read the rest of this entry…

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Announcements: EJIL:Live!; Junior Scholar Workshop, UBC Law School; Event in London on Applying International Humanitarian Law; Crimea Conference in Warsaw

Published on November 1, 2014        Author: 

1) In case you missed it: Episodes 1 and 2 of EJIL:Live! are available onlineEpisode 1 presents both video and (edited) audio versions of a “Fireside Chat” between the Editor-in-Chief of the Journal, Joseph H. H. Weiler, and Maria Aristodemou, whose article “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”, appears in EJIL 25:1 (2014). The audio podcast also features a conversation with EJIL’s Book Review Editor, Isabel Feichtner; and a discussion with the Editors of EJIL: Talk!, Dapo Akande and Marko Milanovic, on the recent decision of the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the crisis in Crimea, and much more. Episode 2 features an extended “Fireside Chat” between the Editor-in-Chief of the Journal, Professor Joseph Weiler, and Oliver Diggelmann (University of Zurich) and Tilmann Altwicker (University of Basel), whose article “How is Progress Constructed in International Legal Scholarship?”, appears in Vol. 25, Issue 2 of EJIL.

2) Junior Scholar Workshop – Law and Human Rights in the Global South: the Role of the State and the Non-State, UBC Law School, June 8-10, 2015. At this point in history it is trite to suggest that the evolving role of non-state actors is transforming the landscape of human rights law. Yet despite repeated calls to incorporate the reality of non-state actor law-making in our accounts of human rights law, scholars are still struggling to incorporate this empirical insight in the emerging literature of law and human rights. How can human rights law be further enriched by a nuanced understanding of the ways in which non-state actors are both protecting human rights and preventing the realization of these rights? And what is the role of the state in protecting human rights in an era where security, immigration control and global trade appear to dominate state political agendas? This Workshop invites submissions on all these themes, including papers addressing the scope, impact and future of human rights as they apply to the corporate world. For full details, including information about application processes, please see the official flier here.

3) On November 18th the UCL Faculty of Laws will be hosting an event on account of the recent publication of the volume titled “Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects”. Discussants are Roger O’ Keefe (UCL), Marko Milanovic (University of Nottingham) and Kimberley Trapp (UCL). Solon Solomon (King’s College London) will render the introductory to the volume speech. Reception will follow. Registration for the event has opened here.

4) International Conference: “The Case of Crimea in the Light of International Law: its Nature and Implications”, 19-20 March, Warsaw, Poland (call for papers). The Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of Polish Academy of Sciences are pleased to issue this call for papers relating to the international conference “The Case of Crimea in the Light of International Law: its Nature and Implications” (19-20 March 2015, Warsaw, Poland). Detailed information and the registration form are available here. In case of any further questions and to submit proposal please contact crimeaconference2015 {at} yahoo(.)pl.

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