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In this Issue

Published on February 19, 2016        Author: 

This issue opens with an article that is sure to provoke discussion and perhaps disagreement. Yishai Beer argues that the principle of necessity should be understood as constraining military action, particularly when infused with the standards of a modern professional military. We continue with three articles focusing on the European Court of Human Rights. In the first, Helen Keller and Cedric Marti propose a novel framework for understanding – and further enhancing – the more assertive stance of the Court, during various phases of its work, in ensuring the implementation of its judgments. The next article, by Anna Dolidze (who was recently appointed the Deputy Minister of Defence of Georgia), examines the Court’s borrowing of the amicus curiae participation procedure from the UK, and offers a theory of the conditions under which such internationalized legal transplants may take place. The third article, by Mathias Möschel and Ruth Rubio-Marín, considers how the Court’s jurisprudence has been distorted by what they call the ‘Holocaust Prism’, through which the Court views and responds to cases involving racial discrimination. Rounding out the main Articles section in this issue is a piece by An Hertogen, which argues that the well-known ‘Lotus principle’ reflects a misreading of the majority opinion in that landmark case, and should be re-cast in a manner that is more compatible with contemporary needs.

The first entry under our new rubric, For the Classroom, is an article by John Morss on the claims to statehood under international law of the Vatican/Holy See. In For the Classroom we select articles on discrete classical areas of International Law whose subject matter, comprehensiveness and quality make them particularly suitable for teaching purposes. Read the rest of this entry…

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Roll of Honour

Published on February 18, 2016        Author: 

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2015.

Philip Alston, Alberto Alvarez-Jimenez, Dia Anagnostou, Stelios Andreadakis, Helmut Aust, Lorand Bartels, Arnulf Becker Lorca, Gary Beckman, Andrea Bianchi, Tomer Broude, Congyan Cai, Iris Canor, Patrick Capps, James Cavallaro, Damian Chalmers, B. S. Chimni, Ioana Cismas, Matthew Craven, Luigi Crema, Robert Cryer, Sophia Dawkins, Gráinne de Búrca, Janina Dill, Jeffrey Dunoff, Angelina Fisher, Caroline Foster, Michelle Foster, Rosa Freedman, Mónica García-Salmones Rovira, Geoff Gilbert, Guy Goodwin-Gill, Monica Hakimi, Gerd Hankel, Laurence Helfer, Kevin Heller, Florian Hoffmann, Yann Kerbrat, Jan Komárek, Dino Kritsiotis, Andreas Kulick, Jürgen Kurtz, Isabelle Ley, Paolo Lobba, Benoît Mayer, Christopher McCrudden, Frédéric Mégret, Sonia Morano-Foadi, Martins Paparinskis, Joost Pauwelyn, Jacqueline Peel, Niels Petersen, William Phelan, Eric Posner, Heather Roff, Cecily Rose, Arie Rosen, Cedric Ryngaert, Margaret Satterthwaite, Martin Scheinin, Bas Schotel, Yuval Shany, Henry Shue, Gerry Simpson, Bart Smit Duijzentkunst, Gila Stopler, Stefan Talmon, Christian Tomuschat, Anna Triandafyllidou, Nicholas Tsagourias, David Victor, Jochen von Bernstorff, Wouter Werner, Ramses Wessel, Andrew Williams, Reinmar Wolff.

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On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap

Published on February 18, 2016        Author: 

Do you ever have the feeling that simply too much is getting published these days? That one simply cannot keep up with it all, that things would be a lot better if less were published, not least because then there would be a greater chance that what we ourselves publish, never too much of that, of course, would get noticed?

Technology has certainly increased academic productivity, as it has increased productivity elsewhere. It is easier to do research (so long as the sources are digitized and searchable), to write, to cite, and to publish. The number of legal journals has exploded, increasingly in online form, driven at least in part by the lower entry barriers, set up and distribution costs for publishers as well as the scandalous profits they make from journal publication. And then, of course, there is self-publishing. In the world of literature, when an author self-publishes it is called vanity publishing; in academia it is called SSRN. I say this tongue in cheek, of course, but grant me it is something of a mixed blessing. Democratization of publishing has increased (good); discernment has diminished (less good).

Not surprisingly, everybody is so busy writing these days, publishing, self-publishing and then self-promoting (attaching links to one’s own recent publications at the end of every email has become more the norm than exception) that hardly any time is left for reading. By this I mean serious, reflective reading and not simply picking up a few citations to put in what I happen to be writing, which, if lucky (very lucky), will be read by others in the same cursory manner. But then who cares as long as my piece ends up being similarly cited?

I read. A lot more than I write, and not only because I have aged and have, even in my own eyes, less interesting things to say and certainly less time to do research. Read the rest of this entry…

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New Issue of EJIL (Vol. 26 (2015) No. 4) – Out Now

Published on February 17, 2016        Author: 

The latest issue of the European Journal of International Law has been published. Beginning tomorrow, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts appear in the Editorial in the new issue. Here is the Table of Contents for this new issue:


On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap; Roll of Honour; In this Issue


Yishai Beer, Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity

Helen Keller and Cedric Marti, Reconceptualizing Implementation – The Judicialization of the Execution of the European Court of Human Rights’ Judgments

Anna Dolidze, Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Ruth Rubio-Marín and Mathias Möschel, Antidiscrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism

An Hertogen, Letting Lotus Bloom Read the rest of this entry…


The Paris Agreement: A Rejoinder

Published on February 16, 2016        Author: 

In his analysis of the recently adopted Paris Agreement, Professor Jorge Viñuales shed light on the main features of this new treaty. He concludes that, while the Agreement is not perfect, it is certainly ‘more than many of those who have followed the climate negotiations over the years realistically expected.’ I cannot but agree with this assessment: the Paris Agreement is probably the best that could be achieved at this place and time and, given the premises, its adoption as a treaty last December was almost miraculous. This post expands upon a couple of points raised in his analysis, focusing on the legal form of the Paris Agreement, its relationship with the UNFCCC and on the nature of obligations concerning the review of parties’ commitments.

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Announcements: AEL Summer Courses; Durham Lecturer Positions; CfP All Art and Cultural Heritage Law Conference; GlobalTrust Applications; CfP Investment Migration; CfP Interactions Between EU and International Law Workshop; CfP Authority of International Lawyers and Others; Thinking Through the International Conference; Max Planck Group Leader in Bogotá; CfP Adjudicating International Trade and Investment Disputes

Published on February 13, 2016        Author: 

Academy of European Law Summer Courses. The Academy of European Law (AEL) holds two summer courses each year on Human Rights Law and the Law of the European Union, at the European University Institute, in the hills above Florence. The Summer Courses are renowned for their innovative and cutting-edge topics, combined with the highest standards of academic content presented by leading scholars and thinkers. Each year the courses attract highly qualified participants from all around the world. The 2016 Human Rights Law Course will be held from 20 June to 1 July. It comprises a General Course on ‘The Sources of International Human Rights Law’ by Professor Jean d’Aspremont (University of Manchester and University of Amsterdam) and a series of specialized courses on the topic of ‘The Sources of Human Rights’ by leading scholars from universities all over the world. The 2016 Law of the European Union Course will be held from 4 July to 15 July. It comprises a General Course on ‘The Global Reach of EU Law’ by Professor Joanne Scott (University College London) and a series of specialized courses on the same topic by leading scholars and practitioners in the Law of the EU. The deadline for applications is 4 April 2016. See here for further information.

Lecturer/Senior Lecturer in International Law at Durham University. Durham Law School, in the United Kingdom, is advertising for the appointment of three lecturers and senior lecturers (for the general posts click here), with one additional lectureship/senior lectureship specifically reserved for international law (for the international law post click here). There are excellent opportunities at Durham for international lawyers: besides launching a new LL.M in International Law and Governance in October 2016, there are research clusters in the School as well as on a University-wide level, at the Global Policy Institute, the Institute for Border Research, and the Global Security Institute. The closing date for applications is 14 March 2016, with interviews to be held on 18 April 2016. For informal enquiries, please contact Professor Roger Masterman, Head of Durham Law School, or any of the international law academics (Aoife O’Donoghue, Gleider Hernández, Catherine Turner and Henry Jones) based at Durham.

Call for Papers: Second All Art and Cultural Heritage Law Conference. The Art-Law Centre of the University of Geneva is inviting submissions for papers to be presented at the Second All Art and Cultural Heritage Law Conference, to be held on 24 June 2016. The call for papers is herePaper proposals should include a title and an abstract no longer than 300 words, and should be accompanied by a short biography and full contact details of the author, including institutional affiliation, mailing address and e-mail address. Paper proposals should be emailed to the Art-Law Centre’s team at art-adr {at} unige(.)ch by 29 February 2016. Successful applicants will be notified by 14 March 2016, and would be required to submit a summary of their presentation by 23 May 2016 Read the rest of this entry…

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ESIL – International Human Rights Law Symposium: International Human Rights Law and International Cultural Heritage Law: Cooperation, Conflict or Cooption?

Published on February 12, 2016        Author: 

Beyond being “the law of pretty things”, international cultural heritage law (ICHL) is an important site for the enactment and contestation of the boundaries of international law. It is the law, mostly under UNESCO, that deals with objects, sites and practices that create, shape and conform identity. It is in close relationships to human rights, but these relationships are often under-theorized. This post reflects on some of those relationships, and suggests that there are lessons to be drawn more generally for international human rights law (IHRL). IHRL has the (limited) power to politicize other specialized fields of international law, but it can also coopt them in sometimes un- or counterproductive ways.

Because IHRL is (a) such a broad field, (b) popular among international lawyers, (c) with its own international enforcement machinery, and (d) also with the naming and shaming rhetorical power that few other specialized areas of international law could claim for themselves, it wields enormous power as a means to elevate smaller fields of international law. But it also has its own limitations, institutionally and doctrinally, and, whenever a concern is articulated in the language of IHRL, something is bound to be missed in the process (see David Kennedy’s work, for instance). In other words, the powerful center of gravity of IHRL not only attracts other fields to its orbit, but in the process it also has the potential to displace parts of those fields and shift them out of consideration.

Cultural heritage, and international cultural heritage law with it, has been consistently used over time as a means to build identities, and human rights have become a cogent legal discourse to safeguard those identities. The example of the movement for promoting the human rights of indigenous peoples is particularly telling: the international indigenous movement since the 1970s has chosen to use culture as the main banner behind which to rally support for the indigenous cause, and therefore the catalyst for the very idea of human rights of indigenous peoples (the work of Karen Engle is particularly significant in this respect). A human right to heritage is difficult to establish, and, when proclaimed, is difficult to enforce. Read the rest of this entry…


ESIL-International Human Rights Law Symposium: ‘Operationalising’ the Relationship Between the Law of Armed Conflict and International Human Rights Law

Published on February 11, 2016        Author: 

Today it is accepted that both the law of armed conflict and international human rights law continue to apply in situations of armed conflict. Indeed, the European Court of Human Rights recently addressed the co-application of these two bodies of law for the first time in Hassan v. The United Kingdom, and the potentially landmark case of Georgia v. Russia (No. 2) is currently pending. However, the precise relationship between the law of armed conflict and international human rights law is subject to significant uncertainty. In particular, the content of the rules applicable on the battlefield remain unclear. Resolving this uncertainty is clearly an essential and pressing issue: States’ armed forces must be able to effectively and foreseeably regulate their activities, particularly if they are to be subject to judicial review before regional human rights bodies.

This post will discuss the role that human rights bodies, and in particular the European Court of Human Rights, may play in resolving uncertainties arising in relation to the co-application of the law of armed conflict and international human rights law. It is suggested that such judicial regulation can provide much needed clarity and assist in our understanding of the law applicable on the battlefield. However, that statement comes with a significant caveat. It is essential that, in applying the law of armed conflict, human rights bodies remain cognisant of the unique nature of this body of law and ensure that the application of international human rights law remains appropriate to the operational needs of the armed forces and the reality of armed conflict itself. Specifically, when interpreting and applying the law of armed conflict, human rights bodies must interpret the rules in the manner usual to that field. Failure to do so risks undermining the effectiveness of the law, thereby undermining the minimum – but essential – protections established in relation to armed conflict. Significantly, it also risks undermining respect for the decisions of human rights bodies. It should be highlighted that violations of both the law of armed conflict and international human rights law are primarily civil in character, and that there can be a violation of either or both of these bodies of law, in situations where no individual liability (say for a war crime) arises.

The development of the law of armed conflict by judicial bodies is not a new phenomenon (see for instance, Shane Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law (CUP 2014)). The International Criminal Tribunal for the former Yugoslavia in particular has played a significant role in the development of the law of armed conflict, with key decisions relating to the definition of armed conflict, the indicators of non-international armed conflict, and the confirmation that the rules on the conduct of hostilities developed for international armed conflict are largely applicable to non-international armed conflict on the basis of customary law. Read the rest of this entry…


ESIL-International Human Rights Law Symposium: Human Rights and Development Regimes – Reflections on Convergence and Influence

Published on February 10, 2016        Author: 

Human rights and development interact in a range of ways. They occupy many of the same spheres and this has increased due to the expanding reach of the development policy and activities alongside the proliferation of IHRL. Moreover the overarching goals of human rights and development regimes may be argued to enjoy a purposive affinity, particularly in areas of social and human development. Despite this interaction and affinity however, the relationship between these regimes evidences an evolution along separate tracks and development regimes’ relative autonomy from human rights law and general law may exemplify the fragmentation of international law.

This comment considers the degree to which human rights law has influenced development regimes, exploring the place of international human rights obligations in development policies and their impact in operational terms. Despite substantive overlaps and certain affinities, when assessed from the perspective of obligations, the uptake has been inconsistent and the direct influence quite limited. Viewed from the perspective of principles however, the uptake and influence are more extensive: the place of human rights principles such as participation, accountability, inclusion, equality and non-discrimination and attention to vulnerable groups is now rarely contested, even within mainstream development regimes.

What are the reasons for this differentiated influence? There are important qualitative differences between the frameworks governing human rights and development regimes. Law and legal accountability are defining hallmarks of human rights, which remain a quintessentially legal concept. As Coomans, et al. have written “[L]aw has remained central to the notion of human rights. […] it is law that authoritatively defines a society’s understanding of what are human rights.” Development, for its part, is underpinned by global goals such as the Millennium Development Goals (MDGs) or the Sustainable Development Goals (SDGs), and by the policy frameworks and strategies of development institutions, which do not generally rely upon international legal norms in direct or explicit terms. The binding legal frame of reference for development cooperation emerges either at the level of the constitutive instruments of development agencies (between member countries) or at the transactional level of individual legal agreements governing particular operations (between the agency and a client country). While each of these instruments is an international treaty under public international law few international development policy frameworks are defined in terms of international legal obligations: the text of both the MDGs and the new SDGs evidence this. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: IHRL and Investment Law – What Could A Human Rights Based Approach Look Like?

Published on February 10, 2016        Author: 

Scholars have increasingly focused (see here, here, here and here) on the relationship between international human rights law (“IHRL”) and international investment law (“IIL”). While some argue (see here, here and here) that IHRL and IIL are mutually re-enforcing, several cases highlight significant tensions between the fields.

When conflicts arise, IHRL rarely fares well. IIL provides a more powerful remedy than IHRL, often allowing for recourse to international remedies without the exhaustion of domestic ones. IIL decisions are also usually binding on the state without review or appeal, and can be enforced against a state’s assets overseas. This can incentivize states to comply with their IIL obligations at the expense of IHRL commitments. If IIL is not simply to “trump” IHRL without consideration for the merits of competing rights, a standard is needed that accommodates both fields. It appears to me that IHRL already provides the necessary tools for reconciling conflicting obligations without unduly burdening (or ignoring) either field.

The threat posed by conflicts between IHRL and IIL is perhaps best illustrated by one of the more disappointing judgments in international law, Suez, Sociedad General de Aguas de Barcelona S.A. and Vivideni S.A. v Argentina. This case arose from the economic crisis of 2001 when Argentina ordered a tariff freeze on water services. The IHRL right to water includes a core obligation that states ensure each individual can access a minimum daily allowance of water. “Accessibility” includes a financial aspect, requiring states ensure the minimum amount is affordable for all individuals, “including the most vulnerable or marginalized sections of the population” (para 12). To meet this obligation, states must not only respect the right but also protect it against corporate actions that would make water financially inaccessible. Read the rest of this entry…