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Aggression and Legality

Published on September 13, 2011        Author: 

I’ve just posted on SSRN a pre-print draft of my article Aggression and Legality: Custom in Kampala, forthcoming in a special issue on aggression of the Journal of International Criminal Justice. It is more or less a follow-up to my earlier JICJ piece on whether the Rome Statute is binding on individuals. The abstract is below, and as always comments are most welcome.

This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to incriminating aggression: the supposed indeterminacy of the jus ad bellum and the lack of an incrimination under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8 bis; and the uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is the most serious one.

A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offenses which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8 bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally briefly turns to the question whether the definition of aggression adopted in Kampala departed from custom.

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EJIL Vol 22 (2011), Issue No. 2 – In this Issue

Published on July 1, 2011        Author: 

A new issue of EJIL has just be published. We begin this issue with a symposium, curated (!) and introduced by Nehal Bhuta, a member of the EJIL Scientific Advisory Board, presenting and then commenting on an article by Jeremy Waldron ‘Are Sovereigns Entitled to the Benefit of the Rule of Law?’ Four commentators, Alexander Somek, Thomas Poole, David Dyzenhaus and Samantha Besson, engage in a discussion on Jeremy Waldron’s main claim which he develops further in his response: that the issue of applicability of the Rule of Law in the sphere of international law must be assessed in relation to two correlated propositions (1) the ‘true’ subjects of international law and beneficiaries of the Rule of Law are individuals, whereas (2) states must be considered as agencies of the international legal system. Both Waldron and some of the distinguished commentators in this symposium might not be on the reading list of many of our readers. The renewed interest by general legal philosophy in matters international and in international law is to be welcomed and EJIL is happy to be at the forefront.

We are always open to suggestions from our readers and authors who would like to propose interesting symposia and serve as ‘curators’.

In our occasional series, The European Tradition in International Law, it is the heritage of the late French international lawyer, René-Jean Dupuy, that is analysed. Pierre-Marie Dupuy (a founder of EJIL) opens with a vibrant portrait of his father’s intellectual legacy in counterpoint with that of another giant of international law, his friend Wolfgang Friedmann. Alix Toublanc, Evelyne Lagrange and Julien Cantegreil, representing the French new international scholarship, then explore René-Jean’s Dupuy’s contribution to the shaping of contemporary international law and an understanding of its challenges.

In this issue we feature one central article: Steven Ratner’s important piece concerning the International Committee of the Red Cross’ strategies to foster compliance with the laws of war. It is part of a new interest in, and approach to, the question of compliance, an instance of which in the field of human rights we noted  in an article by Ryan Goodman some time ago. Ratner’s article repays careful study.

In this issue’s EJIL: Debate! Susan Marks and Steven Wheatley return to the challenges posed by the ideal of democratic legitimacy as applied to contemporary global governance through international law. Jean d’Aspremont, in his reply to Susan Marks, cannot but reassert the troubled and troubling democratic credentials of international law.

Take note of the Review Essay by Michael Waibel, reviewing six different books which have as their common objective the demystification of treaty interpretation: Carlos Fernández de Casadevante Romani, Sovereignty and Interpretation of International Norms; Richard Gardiner, Treaty Interpretation; Robert Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public ; Ulf Linderfalk, On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties; Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law; and Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body.

Our hope is to privilege this form of Review Essay covering different books (in different languages!) and encourage interested reviewers to write to our Book Review Editor to discuss future such projects.

Impressions – Karl Doehring RIP

Karl Doehring, the distinguished German international lawyer, passed away on 24 March  in Heidelberg. I got to know him years ago, at the beginning of my career, when I spent a semester as a Humboldt Fellow at the Max Planck in Heidelberg. It was an interesting experience. The highlight of the week was the famous Referentenbesprechung which confirmed, in part at least, some of our fast-held caricatures of Germany. It was impressively, enviably, oh so serious. That’s what academic discourse should be, week in week out. It was also impressively, laughably, hierarchical. Read the rest of this entry…

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EJIL 21:2 – In this Issue

Published on April 12, 2011        Author: 

The latest issue of EJIL (Vol. 21, no. 1) has just been published. We open with a symposium on the The Human Dimension of International Cultural Heritage Law convened by Francesco Francioni of the Board of Editors, whose Introduction articulates its Raison dêtre. One interesting thread which links the views of the various contributors (Ana Filipa Vrdoljak, Thérèse O’Donnell, Lucas Lixinski, Federico Lenzerini, Siegfried Wiessner, Karen Engle, Gaetano Pentassuglia and Micaela Frulli) is a shift from object to subject: property is featured as a channel towards the recognition and protection of cultural identity in its rich human dimensions. This phenomenon can be observed in the various facets of international cultural heritage law, whether human rights law with its eternal tension between liberal and communitarian trends, or in the context of the law of war, both in its jus in bello and jus post bellum dimensions. The interest and importance of this symposium transcends its specific subject matter.

In this issue’s EJIL:Debate! Sandesh Sivakumaran (see articles here and here) and Gabriella Blum skirmish about the international law of internal armed conflict, addressing both its patchwork doctrinal landscape and its conceptual physiognomy. The exchange repays careful study.

The Last Page features another memorable poem, The Lion Pass, by international law scholar Gregory Shaffer.

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International Law Reporter

Published on February 22, 2011        Author: 

I am sure I speak for everyone in our community when I say that I was saddened to hear that the International Law Reporter blog has had its final post.  The ILR has been an invaluable resource for keeping us abreast of new scholarship, and we should all thank Jacob Cogan for providing us with this service for so many years, despite what must have been an enormous time commitment on his part.  In his final post, Jacob has expressed the hope that somebody else would take up this challenge, and we all join him in this hope. Restarting the ILR would certainly be a worthwhile project for any scholar or group of scholars, for which I’m sure they could attract some reasonable funding. To the extent that EJIL: Talk! could provide support for any such project, we would be happy to help.

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In this Issue: Vol. 21/4 [EJIL Editorial]

Published on February 2, 2011        Author: 

We begin this fourth and final issue of EJIL’s Volume 21 with a mini-symposium on sovereign immunity, which includes two papers. The first, by Dapo Akande and Sangeeta Shah, distinguishes the various categories of immunities conferred under international law. The second paper by Jasper Finke examines competing conceptions of immunity before arguing that it is best understood as a binding principle. It is our hope that these papers will spark new discussions on this fundamental topic of international law.

Four articles follow our mini-symposium. The first is a piece by Annie Bird on Third State Responsibility for human rights violations, a piece which we find follows well from our short symposium. Next we publish a detailed investigation into the role of atypical acts in EU external trade and intellectual property policy. This piece by Henning Grosse Ruse-Khan, Thomas Jaeger and Robert Kordic is sure to be a useful contribution for both practitioners and theorists working in this particular field. Weaving once again into topics raised by our mini-symposium authors, we publish a piece by Sarah M. H. Nouwen and Wouter G. Werner, which focuses on the explicitly political effects that the jurisprudence of the International Criminal Court is having in Uganda and the Sudan. The authors offer an innovative lens, examining the jurisprudence and also its use by political actors through the friend-enemy distinction. Last, we believe our readers will enjoy the piece by Mehrdad Payandeh on the concept of international law in the jurisprudence of H. L. A. Hart

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OUP Yearbooks Available Online

Published on January 19, 2011        Author: 

Our friends at Oxford University Press have let us know that their yearbooks  are now available online, which will make them much more accessible and easier to use. The OUP notice is reproduced below, coupled with an offer of free access to all of the content for a limited time.

Law Yearbooks from Oxford – Free Online Access until February 28th

Since the start of January 2011 the law yearbooks from Oxford University Press, previously available only in print, have become available online as well. This includes all volumes since 1996 but not the most recent ones which only published in December 2010.

To launch this initiative we are making all of this content freely available until the end of February 2011. To view, browse, download and search the material click on these links:

British Year Book of International Law

Yearbook of International Environmental Law

Yearbook of European Law

Current Legal Problems

The latest volume of each will become available to subscribers from April 2011. New content for future volumes will become available online to subscribers as it is processed thus dramatically reducing the time taken before an author’s work is publicly available.

For access after the end of February you will need a subscription. Please contact your librarian if you are not sure whether your institution has taken up a subscription.

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Editorial: In this issue [Vol. 21: No. 3]

Published on November 5, 2010        Author: 

The latest issue of the European Journal of International Law has recently been published. A Table of Contents is available here on EJIL’s website

This issue begins with a symposium on treaty interpretation. The principal EJIL 20th Anniversary symposia were extra-systemic: looking at the way international law deals with the use of force or certain aspects of globalization.  For this issue of Volume 21, we chose a different tack. The aim was to hold a workshop with an ‘introspective’ focus, honing in on the processes of international law as a legal discipline. The goal was to re-examine a classical topic. The issue of treaty interpretation or re-interpretation immediately presented as both important and interesting.  Thus, a lively workshop on this topic was held last November in Florence.

Our panel of authors included George Letsas, Leena Grover, Lucas Lixinski, Isabelle Van Damme and Riccardo Pavoni. Luigi Crema also submitted a fine paper on this topic, which we later added. After much dialogue and revision, we are pleased to publish our symposia, The Interpretation of Treaties – A Re-examination.

Next, we publish three articles under our occasional series, Critical Review of International Governance.  In our last issue, we published three articles in this series from authors hailing from Ethiopia, China and Malaysia.  In this issue, all of our ‘Critical Review’ authors call Europe home and focus respectively on European institutions.  As with our last iteration of this series, however, we suspect you will find that in critically confronting the operations of a specific ‘global’ institution, these authors provide important contributions to broader debates on global governance. Here at the EJIL we often find that it is the confrontation with the particular that gives us a better understanding of the whole. The first is an article by Juliet Chevalier-Watts on investigations under Article 2 of the European Convention on Human Rights.  Next is an article by Frank Hoffmeister. The EJIL has long been interested in questions of state responsibility for internationally wrongful acts. Hoffmeister studies this issue through a new lens, examining how the European Union might bear responsibility for internationally wrongful acts, taking particular note of the International Law Commission’s draft articles on the attribution of responsibility to international organizations. Last we have an article by Anne-Sophie Tabau and Sandrine Maljean-Dubois that considers the relationship between the Kyoto Protocol System and the European Union.

We also publish in this issue a Review Essay by Sergio Dellavalle, which fleshes out the central arguments from a number of texts on the topic of global order.  All authors chosen by Dellavalle write within the universalist paradigm of international law.  This essay’s contribution is that it serves as an able guide to a number of recent distinctions within this mode of thought.

We conclude with a poem, Cosmos Assessed by Eric Stein.

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EJIL Editorial Vol. 21:2 “In this Issue”; “Book Reviewing and Academic Freedom”; “The Last Page

Published on June 30, 2010        Author: 

Four very different articles flesh out this second issue of our 21st volume. First is an article by Christopher Macleod on Crimes against Humanity. The Editors believe that our readers will enjoy this valuable philosophical account of the subject. Next is a detailed article by Marco Dani entitled, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders’. Our third article by Monica Hakimi, ‘State Bystander Responsibility’, provides a fresh take on a much-discussed topic – offering a new generalized framework for conceptualizing the responsibilities of states for protecting persons from third party abuses. We have published several articles on this theme and will continue to do so for some time. It reflects our belief that we are in the midst of an important shift in the concept of State Responsibility. A shift from from primarily negative to positive obligations, from State Responsibility to the Responsibility of States. Neither state practice, nor the theoretical and conceptual contours of this shift have been sorted out. But EJIL is one place where the ‘basic science’ is taking shape. Hakimi’s paper suggests, inter alia, an important analogy between state bystander responsibility and our expectation that states respond to gender-based private acts of violence, an analogy we consider pertinent and illuminating. Last, we have an article by Santiago Villalpando which tackles the ever-important question of how we might conceive of an ‘international community’ and its status under international law.

International governance is another of our commitments rooted in the belief that it provides a more potent tool both analytically to understand and normatively to critique a host of international phenomena. Under this iteration of our occasional series, Critical Review of International Governance, we include pieces by colleagues in Ethiopia, China and Malaysia. First is a piece by Dereje Zeleke Mekonnen on the Nile Basin Cooperative Framework Agreement negotiations and the adoption of a ‘Water Security’ paradigm. Second is an article by Kong Lingjie on data protection and transborder data flow in the European and global context. Last, we have a piece by Gurdial Singh Nijar entitled, ‘Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects’. We expect that you will find each piece both unique and also valuable to broader discussions on international governance.

Book Reviewing and Academic Freedom

My deep thanks for the hundreds of letters of support and indignation. All letters of support, including the many we received from editors of learned journals, have been translated into French and will be submitted to the Court. The Trial takes place on 25 June. I will report to our readers here on this blog.

Editor’s note: The hearing of the case has been postponed, for technical reasons, to January 20, 2011.

The Last Page

In ‘The Last Page’, EJIL’s reminder that there is more to life than law, you will find a poem by Jake Marmer, entitled ‘When an Immigrant’.

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EJIL Editorial Vol. 21:2 – Individuals and Rights – The Sour Grapes

Published on June 30, 2010        Author: 

The first wave, in the 1950s and ‘60s, was all about Community Rights and that new legal order. In the 1970s and ‘80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the ‘fundamental’ status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union’s 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe’s success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union’s Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.

Given history, it is not surprising why, say, Germany (the initiator of the Charter), German Institutions (e.g. the Constitutional Court of ‘So long as’ rhetorical fame) and Germans (viz. Merkel who has a double reason) are so fond of Rightspeak, whereas, say, the British are more pragmatic and matter-of-fact on the issue. And whilst it is important to remain ever vigilant blah blah blah, the truth is that in Europe The Individual does not suffer from a deficit of rights protection – certainly not of human rights protection. The never-ending rhetoric is all too often a mask for a veritable political deficit of individual empowerment in European democracy. Rights and Circus may be the apposite motto for the Turn-of-Millennium Europe: smother them with rights – which they don’t exactly need – and keep them quiet.

The principal positive effect of the combination of Rights and The Individual in the European legal order has not been the defence of the individual against some Barbarians intent on abusing his or her human rights. It has, instead, been that unprecedented strengthening of the Rule of Law among the Member States, a signal achievement worthy of celebration. Read the rest of this entry…

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EJIL Editorial Vol 21:1- Lautsi: Crucifix in the Classroom Redux

Published on June 1, 2010        Author: 

There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.

Independently of one’s view of the substantive result, the decision of the Second Chamber of the ECtHR is an embarrassment. There are few long-term issues on the European agenda that are more urgent, more complex and more delicate than the way we deal with the challenging problems of State and Church, religious minorities, the questions of collective identities of Europe and within Europe, and the parameters of uniformity and diversity of our states and within our states. All these issues are encapsulated in Lautsi. All are disposed of, Oracle like, in 11 impatient and apodictic paragraphs. Compare this to the 90 pages of the Supreme Court of the UK in the recent JFS Case, to give but one example.[1]

The European Court of Human Rights is not an Oracle. It is a dialogical partner with the Member States Parties to the Convention, and the legitimacy and persuasiveness of its decisions resides both in their quality and communicative power. The ECtHR is simultaneously reflective and constitutive of the European constitutional practices and norms. When there is a diverse constitutional practice among the Convention States – and there certainly is in this area – the Court needs to listen, not only preach, and to be seen to be listening. In this decision not only does it not engage with the rich jurisprudence, doctrine and practice to be found in many of the Member States, while blithely citing mostly its own decisions, it does not even address some of the issues raised by the defendant state. Read the rest of this entry…

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