CIAO DATE: 11/2013
Volume: 24, Issue: 3
November 2013
European Parliament Elections 2014: Europe's Fateful Choices; EJIL and ESIL; In this Issue (PDF)
JHHW
After many ‘ostrich years’ the European head is out of the sand: there really is a problem with the legitimacy – or rather, the perception of legitimacy – of the European construct. It is not a mere ‘bee in the bonnet’ of some irritating academics disconnected from reality. Eurobarometer indications are at their lowest and the results of a highly respected Pew Center survey, too, show a remarkable fall in support for Europe among its citizens. Political differences on how to tackle the Euro crisis are, worryingly, both reflective and constitutive of what one may call a solidarity deficit.
New Great Powers and International Law in the 21st Century (PDF)
Congyan Cai
Great Powers (GPs) have always been prominent in international relations. Their rise and fall often lead to structural transformations of international relations. In the past decade, the world has witnessed the rise of some New GPs (NGPs), which primarily consist of Brazil, Russia, India, China, and South Africa (BRICS). While the effect of the supremacy of the United States, an Old GP (OGPs), on international law has been examined extensively since 2000, international lawyers have hardly discussed how the rise of NGPs may shape and reshape international law. This article endeavours to examine the implications for such rise that stem from the rise of NGPs. In particular, as an ‘insider’ from an NGP, the author reviews the latest development in China’s international legal policy and practice.
The Concept of Monetary Sovereignty Revisited (PDF)
Claus D. Zimmermann
Few legal concepts have been subject to as little critical scrutiny over the past few decades as that of monetary sovereignty. This stands in contrast to the renewed interest in different aspects of broader concepts of sovereignty. Filling this important gap in the literature, this article examines whether the concept of monetary sovereignty is subject to evolution under the impact of globalization and financial integration. This article fully takes into account the dual nature of monetary sovereignty as a concept with not only positive but also important normative components. It is argued herein that the concept of monetary sovereignty is more than a mere framework for debates on rights and duties of states, but that it is still relevant as a legal concept for evaluating the contemporary exercise of sovereign powers in the realm of money and for improving our understanding of the driving forces behind the evolution of the law in this crucial field. After a review of the conceptual foundations of monetary sovereignty, this article assesses its conceptual evolution under the impact of contemporary constraints on its exercise, and examines the main implications of the proposed new understanding of monetary sovereignty, with its normative components providing normative guidance and serving as a legitimacy benchmark.
The Power to Kill or Capture Enemy Combatants (PDF)
Ryan Goodman
During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. One view maintains that a combatant is lawfully subject to lethal force wherever the person is found – unless and until the individual offers to surrender. In contrast, this article concludes that important restraints on the use of deadly force were a part of the agreement reached by states and codified in the 1977 First Additional Protocol to the Geneva Conventions. When nations of the world focused their attention on balancing principles of humanity and military necessity, and making higher law, they agreed on two important sets of rules. Under Article 35, states agreed to prohibit the manifestly unnecessary killing of enemy combatants. And, under Article 41, they agreed that combatants who are completely defenceless, at the mercy of enemy forces, shall be considered hors de combat. – including alternative specifications of standards and burdens of proof. Nevertheless, the general constraint – and its key components – should be understood to have a solid foundation in the structure, rules, and practices of modern warfare.
Wound, Capture, or Kill: A Reply to Ryan Goodman's 'The Power to Kill or Capture Enemy Combatants' (PDF)
Michael N. Schmitt
This article examines two issues raised by Professor Goodman's article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The article concludes by noting that although there is no ‘capture-kill' rule in IHL, for operational and policy reasons, capture is usually preferred.
The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt (PDF)
Ryan Goodman
I wrote the article, ‘The Power to Kill or Capture Enemy Combatants', to correct an oversight in recent law of armed conflict (LOAC) scholarship and practice. In the article, two of the leading LOAC experts with whom I disagree are Colonel Hays Parks and Professor Michael Schmitt. In his Reply to my article, Professor Schmitt thoughtfully engages with my analysis. His representation of my argument is fair, and he interrogates the merit of my position squarely. In addition, he shows a willingness to modify his earlier positions in light of my research,1 another feature of his writing that demonstrates an extraordinary quality of mind and intellectual character. I am honoured to engage with his ideas in this Rejoinder.
First, I discuss Professor Schmitt and my points of agreement and the significance of our shared understanding for the kill-or-capture debate. Secondly, I examine the content and importance of our remaining disagreement.
Apartheid, International Law, and the Occupied Palestinian Territory (PDF)
John Dugard, John Reynolds
Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
Yaffa Zilbershats
I accept the authors' premise in their article entitled ‘Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
Roaming Charges: Moments of Dignity: Bar in San Juan (PDF)
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not …
Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges (PDF)
Ademola Abass
The January 2013 Summit of Assembly of the African Union Heads of State, to which its July 2012 predecessor had deferred the matter concerning the conferment on the African Court of international criminal jurisdiction, did not adopt the enabling Protocol. Instead, it requested that the AU Commission ‘conduct a more thorough reflection … on the issue of popular uprising … on the appropriate mechanism capable of deciding the legitimacy of such an uprising … and [to] submit a report on the financial and structural implication of [expanding] the jurisdiction of the African Court … to try international crimes’. Whether the AU will ever adopt the draft protocol is uncertain and of less relevance, at the moment, to a discussion of some previously unappreciated rationales behind conferring on an African regional court international criminal jurisdiction and of certain constraints that will prevent the Court from effectively prosecuting international crimes in Africa, even if the protocol ever enters into force.
Climate Change and International Law in the Grim Days (PDF)
Benoît Mayer
The 2009 Copenhagen Conference of the Parties to the UNFCCC epitomizes the stalling of international negotiations on climate change mitigation and adaptation. In the grim days of climate change governance, the literature tends to neglect ethical arguments on the responsibility of polluting states. Rather, it turns to a desperate quest for ‘whatever works'. This article addresses the development of a discipline round an emerging regime. It reviews in particular the principled approaches of climate governance, doctrinal analyses on mitigation, the shift from ‘enforcement' to ‘facilitation' and to ‘liability', the fragmented governance of adaptation in the human rights, development and migration regimes, and innovative scholarship on the transnational regime complex concerning climate change.
Oren Perez
Caroline Foster’s book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle. The book addresses a wide range of disputes and venues, ranging from the World Trade Organization (WTO) to the International Court of Justice and the International Tribunal for the Law of the Sea. The detailed analysis of the different methods through which varied international tribunals deal with scientific evidence (e.g., party-appointed independent experts, cross examination, site visits, court-appointed experts) advances our understanding of the function and dynamics of international tribunals. To give one example, Foster describes the system that was devised by WTO panels for taking expert evidence even though the WTO dispute settlement understanding (DSU) is silent about this issue (at 114–123). One innovative mechanism that was created by the panels is the ‘joint meeting’ (at 115–116). Joint meetings with experts are generally held between the two substantive meetings between the Panel and the parties, take place over a 1 to 2 day period, and are attended by the panel members, its experts, and the parties and their experts. While these meetings do not constitute a full-blown adversarial process they offer the parties and the panel the opportunity to put the opposing scientific views to deliberative scrutiny.
Agnès Michelot (ed.). Equité et environnement. Quel(s) modèle(s) de justice environnementale? (PDF)
Armelle Gouritin
This book (in French except for the short English contribution by Laura Westra) collects the papers that were presented at the Annual Conference of the French Society for Environmental Law in December 2010. The contributions aim at answering a set of three questions: what is the content of environmental justice as a concept? Is environmental justice endorsed by positive law? What are the perspectives of environmental justice?
Rein Müllerson
Although the sub-title of the book indicates that the authors are not going to deal with all the legal issues arising in the context of a ‘privatization’ of warfare, the book, and not only the first chapter by Eugenio Cusumano on the policy prospects of regulating private military and security companies (PMSCs), throws its net wider than the title suggests. And rightly so. The privatization of warfare is a consequence and an element of the post-Cold War triumph of capitalism, and especially its neo-liberal advocates’ tendency to privatize and deregulate all and everything. It is not by chance that PMSCs have mushroomed in the heartland of neoliberalism – the USA – faithfully followed by its Anglo-Saxon brethren on this side of the Atlantic. As the book specifies, in 2009 there were approximately 119,706 Department of Defense contractors in Iraq, compared with about 134,571 uniformed personnel (at 13). The authors accept the privatization of various functions of the state, including its ‘monopoly of violence’, to be almost inevitable. Nevertheless, they call for stronger and tighter regulation of the status and functions of PMSCs and control over their activities. They also show that though often new norms may be needed, in many cases existing laws, and their stricter and sometimes more creative application, may serve the purpose. The book concludes that ‘many private military and security companies are operating in a “gray zone”, which is not defined at all, or at the very least not clearly defined, by international legal norms’ (at 340).
Paul Schiff Berman. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (PDF)
Sujith Xavier
Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist’s contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes,1 to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).2
Monika Zalnieriute
While international law and political science disciplines were quite distant from one another for most of the past century, they have come closer to ‘rediscovering’ each other numerous times during the last two decades. The growing intersection between the two has been scrutinized, analysed, and promoted by many international law and international relations pioneers. The present collection brings together the leading scholars writing at the crossroads between the two disciplines to consider and reflect on the current state of interdisciplinary international law and international relations scholarship. The result is a book of high calibre that is not only essential, but also very delightful and enriching reading for scholars and students of international law and international relations.
A Mystic and a Stock Price (PDF)
Laura Coyne
Meet on a bubble of
Contested brightness
Blowing, blown, popped
Or cool-lipped speech
Impounding the future
In unity's tight spike and
Luster, one transparent
As the other. They stretch
Their hands and twitch the
Desert sky.