NETHERLANDS YEARBOOK OF INTERNATIONAL LAW 2019 : yearbooks in international. 9789462654020, 9462654026

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Netherlands Yearbook of International Law 2019 Yearbooks in International Law: History, Function and Future

Netherlands Yearbook of International Law Volume 50

More information about this series at http://www.springer.com/series/8913

Otto Spijkers Wouter G. Werner Ramses A. Wessel •

•

Volume Editors

Netherlands Yearbook of International Law 2019 Yearbooks in International Law: History, Function and Future

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Volume Editors Otto Spijkers China Institute of Boundary and Ocean Studies (CIBOS) Wuhan University Wuhan, China

Wouter G. Werner Faculty of Law, Transnational Legal Studies Vrije Universiteit Amsterdam Amsterdam, The Netherlands

Ramses A. Wessel Department of European and Economic Law Groningen University Groningen, The Netherlands

ISSN 0167-6768 ISSN 1574-0951 (electronic) Netherlands Yearbook of International Law ISBN 978-94-6265-402-0 ISBN 978-94-6265-403-7 (eBook) https://doi.org/10.1007/978-94-6265-403-7 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Board of Editors Ramses A. Wessel (General Editor) University of Groningen

Wouter G. Werner (General Editor) Vrije Universiteit Amsterdam

Fabian Amtenbrink Erasmus University Rotterdam

Maarten den Heijer University of Amsterdam

Seline Trevisanut Utrecht University

Janne E. Nijman University of Amsterdam

Panos Merkouris University of Groningen

Daniëlla Dam-de Jong Leiden University

Otto Spijkers University of Wuhan

Harmen van der Wilt University of Amsterdam

Managing Editor Dimitri Van Den Meerssche T.M.C. Asser Institute, The Hague

Aims and Scope The Netherlands Yearbook of International Law (NYIL) was first published in 1970. As a double-blind peer-reviewed publication, the NYIL offers a forum for the publication of scholarly articles of a conceptual nature in a varying thematic area of public international law. In addition, each Yearbook includes a section Dutch Practice in International Law. The NYIL is published under the auspices of the T.M.C. Asser Instituut.

T.M.C. Asser Instituut Located in the ‘international zone’ of The Hague—the City of Justice, Peace and Security, the T.M.C. Asser Instituut is a leading, inter-university research institute operating in the broad field of international law. Founded in 1965, the Institute’s international community of scholars is engaged in research, postgraduate training and dissemination of knowledge in furtherance of the purposes and principles of international law. This inter-university institute cooperates closely with and supports the Dutch universities’ activities in the relevant disciplines. The academic fields covered by the Institute are Private International Law, Public International Law, Law of the European Union, International Commercial Arbitration, International Humanitarian Law, International Criminal Law and International Sports Law. The Institute enjoys an excellent reputation at both a national and an international level for its development, organisation and hosting of conferences and academic meetings, demand-driven postgraduate programmes and training. Its ancillary Websites and data collections all contribute to a coherent and integral strategy in the area of knowledge transfer. The Institute has its own publishing house, T.M.C. Asser Press. T.M.C. Asser Press not only serves the publishing needs of the T.M.C. Asser Instituut, but also those of academics and practitioners worldwide in the fields of International and European Law. T.M.C. Asser Instituut Institute for Private and Public International Law International Commercial Arbitration and European Law Institute Address: R.J. Schimmelpennincklaan 20-22 2517 JN The Hague The Netherlands Postal Address: P.O. Box 30461 2500 GL The Hague The Netherlands Tel.: +3170 342 0300 Fax: +3170 342 0359 Email: [email protected] Internet: https://www.asser.nl

Contents

1

The Phenomenon of Yearbooks in International Law: An Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Otto Spijkers, Wouter G. Werner and Ramses A. Wessel

Part I 2

3

4

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General Reflections on Yearbooks of International Law

The ‘Turn to History’ and the Year of the Yearbook of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Matilda Arvidsson

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A Case in the Politics of Form: Yearbooks of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John D. Haskell

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Archiving Legality: The Imperial Emergence of the International Law Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sara Kendall

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On Yearbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jan Klabbers

Part II 6

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Contributions by Yearbooks of International Law

African Yearbook of International Law: A Quarter-Century of Contribution to the Development and Dissemination of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fatsah Ouguergouz

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Australian Year Book of International Law . . . . . . . . . . . . . . . . . . Donald R. Rothwell

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The Canadian Yearbook of International Law/Annuaire canadien de droit international: Founding, Function, Future . . . . . John H. Currie

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Contents

Chinese (Taiwan) Yearbook of International Law and Affairs: Contributing to the Grotian Moment in Asia . . . . . . . . . . . . . . . . . Ying-jeou Ma, Chun-i Chen and Pasha L. Hsieh

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10 Czech Yearbook of Public and Private International Law on the Occasion of Its 10th Anniversary: Achievements and Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Pavel Šturma 11 Ethiopian Yearbook of International Law: Towards Diversifying and Democratizing Voices in the Making and Development of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Zeray Yihdego, Melaku Desta and Martha Belete 12 Finnish Yearbook of International Law—Past, Present, and Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Tuomas Tiittala 13 Annuaire Français de Droit International . . . . . . . . . . . . . . . . . . . . 137 Mathias Forteau 14 German Yearbook of International Law: Origins, Development, Prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Andreas von Arnauld and Daley J. Birkett 15 The Past, Present and Future of the Hungarian Yearbook of International Law and European Law—An Evolving Story . . . . 169 Marcel Szabó 16 Indonesia and the Absence of a Yearbook on International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Arie Afriansyah and Hadi Rahmat Purnama 17 Italian Yearbook of International Law: Genesis, Development and Prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Riccardo Pavoni 18 The Development and Future of the Japanese Yearbook of International Law: From Japanese Perspectives to International Academic Forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Keiichiro Niikura and Koichi Morikawa 19 Mexican Yearbook of International Law: A Concept for Researching, Disseminating, and Teaching International Law . . . . 227 Manuel Becerra-Ramirez 20 ‘There Was an Idealism that This Information is Useful’—The Origins and Evolution of the Netherlands Yearbook of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Otto Spijkers and Dimitri Van Den Meerssche

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21 The Palestine Yearbook of International Law: A Medium for a Principled International Law on Palestine and the Palestinian People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Ata R. Hindi 22 Polish Yearbook of International Law: A History of Constant Change and Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Lukasz Gruszczynski and Karolina Wierczyńska 23 Anuario Español de Derecho Internacional: History, Functions and Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Eugenia López-Jacoiste and María José Cervell Hortal Part III

Dutch Practice

24 Fundamental Rights in Digital Welfare States: The Case of SyRI in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 Sonja Bekker 25 The Continuing Saga of State Responsibility for the Conduct of Peacekeeping Forces: Recent Practice of Dutch and Belgian Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Nataša Nedeski and Berenice Boutin 26 The Enemy of My Enemy: Dutch Non-lethal Assistance for ‘Moderate’ Syrian Rebels and the Multilevel Violation of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Tom Ruys and Luca Ferro Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

Chapter 1

The Phenomenon of Yearbooks in International Law: An Introduction Otto Spijkers, Wouter G. Werner and Ramses A. Wessel

In 1970 the first Netherlands Yearbook of International Law (NYIL) was published. The current Volume is No. 50, which means that the Yearbook has now been with us for half a century. The current General Editors decided not to let this moment pass unnoticed, and have devoted this entire Volume to an analysis of the phenomenon of Yearbooks in international law as such. Indeed, not many academic disciplines have Yearbooks, so why do we? What is the added value of having a Yearbook alongside the abundance of international law journals, regular monographs and edited volumes that are produced each year? Does the existence of Yearbooks tell us something about who we are, or who we think we are, or what we have to contribute to the world? The first edition of NYIL mentioned the following in its Introduction: This Yearbook starts its life as a result of two generating factors. On the one hand, a steady demand exists for the publication of national practice in the field of international law. On the other hand, the rapidly increasing stream of national and international materials demands articles and short commentaries to enable the general legal practitioner, the State representative, or the international lawyer not specialized in the subject in question to gain a clear view of the situation. Both these factors result from the constantly growing interdependence of States, an interdependence that is particularly evident in the smaller, high income States like those of Western Europe. In this part of the world more and more rules of international law apply, not only to the actions of State representatives but also to the daily life of the citizen. This development O. Spijkers China Institute of Boundary and Ocean Studies (CIBOS), Wuhan University, Wuhan, China e-mail: [email protected] W. G. Werner VU Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] R. A. Wessel (B) University of Groningen, Groningen, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_1

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O. Spijkers et al. has a corollary a rapidly growing number of lawyers using a large part of their energy in and around the international branch of their discipline and looking for encouragement to publicise their views.

While much more is to be said about the reasons to establish this Yearbook,1 it is striking that no specific reasons are mentioned why a Yearbook would do the job of analysing new international law developments better than or differently from a regular journal or any other type of publication. Even in the Joint Announcement, which immediately followed the Introduction quoted from just above, and in which the Boards of Editors of both the Netherlands International Law Review (Nederlands Tijdschrift voor Internationaal Recht) and of the Netherlands Yearbook of International Law jointly informed the readers of the latter that the two were to be offered as a joint subscription, nothing is said about how the two may complement each other. Sure, the value of international law and international cooperation more broadly had become clear in post-war Europe and, indeed, it was no longer restricted to inter-state relations, but increasingly affected the position of individuals. But why a Yearbook? The reason may very well have been that the British Yearbook had become a success, but that mainly shifts the question to the creators of that Yearbook, and the ‘genealogical’ approach used by Sara Kendall in her contribution reveals that the ‘genre’ as such has much older roots.2 As some of the contributions to this Volume testify, something of national pride and a feeling that a country had specific ‘national’ perspectives on and contributions to international law might have triggered the proliferation of Yearbooks in our field of study. Yearbooks usually carry the name of their host state in their title, and they seem to claim themselves to be an authoritative contribution to the development of international law. As phrased by Jan Klabbers in this volume, “Somehow the yearbooks [seem] to speak for entire communities, in ways that rarely apply to journals, let alone research monographs.”3 But there is more. As testified by the conceptual contributions to the present volume, Yearbooks do not just reflect (positions on) state practice, but in that sense also function as specific didactical tools and have helped us “reading the language of international law as it is actually used, outside the context of research monographs, learned articles, and textbooks”.4 And, in doing so, Yearbooks usually take some distance from day-to-day events and are known for longer, more reflective articles on fundamental questions of international law. In times in which for early career scholars in particular ‘publish or perish’ has become real, Yearbooks have become less visible and perhaps less attractive research outlets. The proliferation of journals on almost every aspect of (international) law allows for researchers to ‘score’ faster and to build the publication list that these days so much defines the development of their careers. And, are these journals—or blogs!—not a better way to present analyses of state practice and case law than the ‘slow research’ that is the traditional hallmark of Yearbooks? And, if so, whatever happened to the idea that “yearbooks 1 As

is done in Chap. 20 of this volume. Chap. 4. 3 Jan Klabbers, Chap. 5. 4 Ibid. 2 See

1 The Phenomenon of Yearbooks in International Law: An Introduction

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tend to very deliberately signal that to publish in the Yearbook is to enter a relatively elite cadre that is part of a venerable tradition, at once national and cosmopolitan”, as phrased by John Haskell in his contribution?5 Despite this traditional ‘elite’ image of Yearbooks, the status of publications and publication fora differs in each and every national academic community. The question indeed is to what extent Yearbook contributions still count as something special if, despite its solid contribution to the development of international law thinking it is simply not counted in national rankings and evaluation systems because it is merely a contribution to an ‘edited volume’? What then becomes the added value of Yearbooks? This question was behind the request of the current Volume Editors of the NYIL to their colleagues around the world when they asked them to reflect on the following set of issues in a contribution to the anniversary edition: (a) The history of the Yearbook you are editing: when was it founded, by whom and in what historical context? (b) The development of the Yearbook you are editing: how has your Yearbook evolved over time? Has it undergone important changes, and if so why? (c) The function and impact of your Yearbook: do you know whether the Yearbook has had impact on academia, politics or case-law? (d) The future of your Yearbook: how do you see the function and position of the Yearbook in the coming ten or twenty years? (e.g. in light of the development of ICT and online publishing). For the first time in history, on 27 September 2019, editors of general Yearbooks of international law met at the birthplace of the NYIL, the T.M.C. Asser Institute in The Hague. Not only to celebrate the NYIL’s 50th birthday, but also to exchange experiences and ideas related to their Yearbooks. This unique moment in time resulted in a unique exchange of ideas which is reflected in the current volume. The answers to the abovementioned questions show the radically different contexts in which Yearbooks were established and the different paths they undertook. The Polish Yearbook, for example, grew out of a spirit of intellectual rebellion against communist rule. It was also an attempt to build bridges with the West and to create a forum for scholars to make their work known to the outside world. A very different kind of rebellion informed the establishment of the Netherlands Yearbook, with a new generation of scholars in the 1970s seeking to create a platform that was different from already existing reviews in international law. The Mexican Yearbook stresses the more pragmatic reasons behind its creation: the increased participation of Mexico in international institutions (such as the General Agreement on Tariffs and Trade (GATT), the North American Free Trade Agreement (NAFTA), and the InterAmerican Court of Human Rights) called for a platform dedicated to international law. The choice for a Yearbook instead of a journal was informed by the concern that there would simply not be enough submissions to fill several issues each year. For the purposes of this issue, a very special case is the Indonesian Yearbook. There 5 Chapter

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was no Yearbook in Indonesia when we organized the seminar in September 2019. However, when Dr. Afriansyah (University of Indonesia) attended the seminar, he got inspired by all the stories of Yearbook editors and decided to explore whether it would be possible to create a Yearbook for Indonesia as well. By now the preparations for the publication of an Indonesian Yearbook of International Law have begun. We could continue this list with all the particular circumstances and reasons behind the creation and development of each Yearbook, such as the rather unique political situations in Palestine or Taiwan, the regional aspirations of the African Yearbook, or the post-WWII context in which the German Yearbook arose. The picture, however, is clear: Yearbooks are rooted in and reflect national or regional histories and national struggles. They also tell stories of specific individuals or groups with a project. Reading the different chapters of this volume, therefore, is also reading brief histories of countries and regions whose name the Yearbooks carry. The same goes for the specific set-up, the editorial composition or the prospects of the Yearbooks. Some Yearbooks, for example, situate themselves within specific schools or approaches such as positivism or post-colonialism. Other Yearbooks are agnostic on this issue or have evolved from a more positivistic orientation to a broader view on what counts as relevant international legal scholarship. These are not just academic debates, but debates rooted in the political and research contexts in which the Yearbooks operate. Despite the obvious differences between Yearbooks, it is also possible to detect some common threads across the various contributions. Taken together, they tell a story about the complex and sometimes paradoxical relation between the national and the international. Below we will discuss a few of these common themes. One of the topics that recurred in several contributions was the role of the Yearbook as the voice of a nation or region. Not coincidentally, several Yearbooks were introduced in the context of a nation that (re)established itself on the international plane. The Japanese Yearbook, for example, was launched a few years after Japan regained independence and was admitted to the United Nations. The Australian Yearbook was created in the context of increased assertiveness in international circles and an increasing recognition of its international legal personality. The establishment of the German Yearbook cannot be understood if one does not take into account the postwar reconstruction of Germany, both domestically and diplomatically. A somewhat opposite story comes from the Chinese (Taiwan) Yearbook. The Yearbook was prompted by the de-recognition of Taiwan as representative of China in the UN and the decision of the United States to move its diplomatic recognition from Taipei to Beijing. The Yearbook was (is) thus part of Taiwan’s efforts to make itself heard in international diplomacy. The same goes for the African Yearbook, whose creation was in part spurred by the desire to make the African contribution to the development of international law more visible. A similar ambition underlies the Ethiopian Yearbook, which not only builds on the country’s longstanding engagement with international law, but also on the role of (the horn of) Africa more generally. The Palestinian Yearbook, to mention a last example, is focused on international lawyers working on issues of particular relevance to Palestine. The Yearbook is thus a reflection of assertiveness (making these issues heard internationally), but also part of a struggle for recognition. Yearbooks can function as a national voice in different ways.

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One is the recording of state practice or a discussion of national developments that have relevance for international law more generally. Another way is the creation of a podium for scholars from national or regional communities to publish in English and to be read more widely. This means Yearbooks are not only expressing, but also forming the voice of specific communities. The Czech Yearbook, for instance, was partly created in order to offer especially young scholars the opportunity to publish in English. The same more or less applies to the Hungarian Yearbook, which also seeks to create a forum for (young) national scholars and to demonstrate Hungarian scholarship to the outside world. The Polish Yearbook initially also focused on national scholars publishing in English, but has by now widened its scope and also assumed a role as podium for (young) scholars from Central and Eastern Europe (although scholars from other parts of the world also publish in the Yearbook). The Finnish Yearbook has found a unique way to present the work of young scholars to a broader audience. The Yearbook offers recently graduated PhD candidates the opportunity to publish the lectures they present at the defense, together with the questions and comments of the opponents. At the seminar in September 2019, several Yearbooks showed an interest in following the example set by the Finnish Yearbook. Of course, the idea of the Yearbook as a voice of the national community or practice does not apply with equal force to all Yearbooks. Especially in the articles sections, several Yearbooks have followed the trend towards internationalization in academia and publish work from scholars across the globe. The German Yearbook, for example, reports a transformation from “Germans talking to the world” to a periodical with a large majority of publications from non-German authors. However, in other parts of the Yearbook the idea that this is a publication that is somehow tied to a national community has survived, albeit in different forms and shapes. Yearbooks not only help to present national practice and domestic scholarship to the outside world; they also bring the international into the domestic world. We already mentioned how the establishment of the Mexican Yearbook was prompted by the need for more insight in international law because of the state’s increased participation in international institutions. The Canadian Yearbook (initially) not only functioned as a way to project Canadian perspectives of international law upon the world, but also to bring international legal scholarship to Canada. The French Yearbook also goes beyond informing the world about French practice and perspectives, bring “a legal approach in the observation of international life” to a French audience as well. The 2019 issue of the Anuario Español de Derecho Internacional on Catalonia is a concrete example of the role of Yearbooks bringing in international law into domestic legal and political struggles. As the history of the Italian Yearbook shows, bringing in ‘the international’ may have a great impact on domestic scholarship. For the Italian Yearbook this meant a shift to English, which also came with a reorientation of style and methodology. This points to something that was mentioned in several contributions as well as in the oral presentations during the seminar: Yearbooks not only create platforms for scholars to publish on, they are also vehicles for building communities of international lawyers. They help to create a research culture and transcend the boundaries

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of particular schools and institutions. Around the Yearbooks, epistemic communities may emerge, i.e. groups of globally recognized experts, able to inspire, and to advise policy makers on how international law can be used to promote international solidarity and resist prevalent tendencies hinging towards nationalist isolation. To do so successfully, we as Yearbook editors must constantly aim to see and paint the bigger picture. Otherwise, we might end up with a new Babylonian confusion of tongues, in which international lawyers break up into isolated groups of ‘specialists’, only conversing amongst themselves, in a language no outsider will be able to understand. On the occasion of the 10th anniversary, the NYIL editors expressed the hope that the next fifty years “will not only see progress for our Yearbook, but also development in and increased respect for international law as a whole!”6 Forty years later, the notion of progress through international law may have become more complicated. Yet we are proud to be part of the long heritage of thinking about international law that started with a new generation of lawyers in 1970 and look forward with great expectations to the next 50 years. Editors of this Volume Professors Wouter Werner (VU Amsterdam) and Ramses Wessel (University of Groningen) are the General Editors of the Netherlands Yearbook of International Law, Prof. Otto Spijkers (China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University) is member of the Editorial Board.

6 NYIL

1979, Preface.

Part I

General Reflections on Yearbooks of International Law

Chapter 2

The ‘Turn to History’ and the Year of the Yearbook of International Law Matilda Arvidsson

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Event and History: The Chronos and Kairos of International Law in a Year, in a Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Narrating International Law as ‘Sequential Events with Plausible Transitions’ . . . . . . . . 2.4 The ‘Heretic’ Book Beyond the Year: What a No-Year Book of International Law Would Look like . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter concerns the relation between time, progression and history in international law. It places the yearbook in a broader context of the ‘turn to history’ in international legal scholarship, and asks how the ‘year’ figures as a placeholder of meaning and authority in international law and its narratives. Drawing on recent scholarly debates on narration in relation to international law and emerging technologies—especially artificial intelligence (AI)—the chapter calls for a book of international law that knows of no year, no history, no beginning and no perpetually postponed end. Keywords time · international law · turn to history · narration · artificial intelligence

2.1 Introduction In recent years, international legal scholarship has made a turn to history.1 The ‘turn’ has been a re-discovery of history as a source of international law, history’s role in 1 The ‘historical turn in international law’ or simply ‘the turn to history’ in international law denotes the growing body of literature in the field of international legal history. For recent overviews and discussions of the field, see: Arvidsson and Bak McKenna 2020; Clark 2018; d’Aspremont 2019; and Vadi 2018 and 2019.

M. Arvidsson (B) University of Gothenburg, Gothenburg, Sweden e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_2

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the structure of the international legal argument, as well as a method through which to reframe the future of international law. This chapter is a contribution to existing scholarship on the ‘turn’, as well as scholarly debates on progression and events in international law.2 It focuses on the periodization of lineal time in international law and scholarship, especially through the ‘year’ of the yearbook of international law. The chapter considers international law through two concepts of time: chronos— lineal, progressive time as history—and kairos—non-lineal time as event in and beyond history, also known as the right time in which to take action.3 The two articulations of time, originating in Greek antiquity, are ‘placed within each other’, each enveloping the other.4 Rather than opposed concepts, they reflect different qualities: ‘Chronos’, as progressive time and history, ‘is that in which there is kairos, and kairos is that in which there is little chronos’.5 History, we are to understand from this, folds around and holds events—kairos—within its lineal progression. Yet, kairos as event escapes the logic of linearity: that which ‘we take hold of when we seize kairos is’, in Giorgio Agamben’s words, ‘not another time, but a contracted and abridged chronos’.6 I aim to do two things in the chapter: I begin by saying something about the place and function of history in international law, such as the ‘turn to history’ scholarship has identified. I go on to explain how history and narration are related, and how narration sits within the economy of international law’s emergence: How the relaying of ‘sequential events with plausible transitions’ captures the relation between chronos and kairos in international law. I do so by drawing on Judith Butler’s scholarship, especially her book Giving an Account of Oneself .7 This serves as a background to understanding how the yearbook of international law is an articulation of international law’s way of ordering events and relations through history as lineal, progressive time; as chronos, as well as how kairos become part of international law’s narrative. I end by celebrating a ‘heretic’ yearbook yet to come, as an opportunity for international legal scholarship to restructure its relationship to its objects of desire: law and history. In doing so, I draw on recent examples in international law-tech scholarship, and the possibilities introduced, and shortcomings engrossed, by an ‘algorithmic’ international law.8 The celebration of an impossible exercise—as a yearbook without a year—is indeed weird. Yet, know, my fellow scholars, that a yearbook which undoes lineal, progressive time and history (chronos) would bring beauty and excellent upheaval! A yearbook without a year? A book of international law without any emplacement within time and history? How would it be possible, and 2 Relevant examples include those mentioned above as well as Skouteris 2010; Miller and Bratspies

2008; and Johns et al. 2011. a discussion on the qualities and differences of chronos and kairos, see: Agamben 2005, at 68–69. See also Arvidsson 2010 and 2017. 4 Agamben 2005, at 69. 5 Ibid., at 68–69. 6 Ibid., at 69. 7 Butler 2005. See also Thiem 2008; and Arvidsson 2017. 8 Relevant examples include Noll 2019; Liljefors et al. 2019; and Jeutner 2020. 3 For

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how would we make sense of such an international law? The very outlandishness of the idea tells us a great deal about the categorical commitment to a particular form of sense-making in international law: the ‘year’ to which the yearbook of international law is a central celebration and contribution.

2.2 Event and History: The Chronos and Kairos of International Law in a Year, in a Book In a recent article, Miriam Bak McKenna and I have commented on two different functions of history in international law: first, ‘international law’, we argue, ‘seeks to establish and reinforce its status as a discipline in its central historical narrative, which moors both, past and future developments in a historical lineage.’9 This is what Matthew Craven identifies as history of international law or, in other words, the obsession in international legal scholarship to narrate the emergence, progression and destiny of international law as intertwined with that of human ‘civilization’ and fulfilment.10 Second, ‘[b]oth in practice and in scholarship, history has been instrumental in creating the body of norms and principles of international law, most notably through the formalization of the sources doctrine.’11 This point goes to say that the constant writing and rewriting of history, understood as the progression of lineal time (chronos), is an integral part of the sources doctrine in international law, as codified in Article 38(1) of the International Court of Justice (ICJ) Statute.12 Craven identifies this as history in international law or, in other words, how history becomes an organizing principle for what counts as international law.13 ‘History’ in and as a source of international law is easily identified: Article 38(1) of the ICJ Statute names international statutes, customary law, general principles of law ‘as recognized by civilized nations,’ as well as ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’ In each of these sources history understood as the progression of lineal time (chronos) plays a specific role. Statutes are, needless to say, products of particular moments in time and history. The Geneva Fourth Convention of 1949, and its Additional Protocol 1 of 1977, are two examples emblematic of the histories they have come to represent: the end of World War II and the rise of de-colonialization and the struggle for liberation and

9 Arvidsson

and Bak McKenna 2020, at 40. 2006, at 6. 11 Arvidsson and Bak McKenna 2020, at 40. 12 Statute of the International Court of Justice, part of the Charter of the United Nations (1945), 1 UNTS XVI, (‘ICJ Statute’). For an insightful analysis of the sources doctrine in international law, see: R Parfitt 2016. For the doctrine’s role in the ‘turn to history in international law’, see: Arvidsson and Bak McKenna 2020. 13 Craven 2006, at 6. 10 Craven

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self-determination for all peoples.14 Later statutes are often understood to abrogate earlier ones, putting into codification customary law such as it has emerged over time. Customary law, in turn, is conventionally established through the scholarly identification of a general practice among states that is accepted as law (opinio juris).15 Again, the ways in which general practice and opinio juris are identified require of the scholar and practitioner to turn to history, pointing to how different states act and communicate in terms of international law.16 General principles of law as recognized by civilized nations can, moreover, only become identifiable through scholarly analysis and argumentation in relation to the jurisprudence and praxis of international and national courts, as well other institutions, over the course of history.17 The fourth source—‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’—is the source that has most specifically animated the yearbook of international law. The yearbook becomes a source in itself for scholars and practitioners seeking to establish, on the one hand, customary law and, on the other hand, relevant sources for judicial and scholarly deliberation as based in ‘national practice’—national legal decisions, as well as ‘developments relating to treaties and other international agreements’—and scholarly analysis on international law.18 In each of the sources of the sources doctrine, contemporary international law becomes identifiable through its ‘development’ and ‘progression’ over time. The exercise is not just a matter of identifying state practice and developments: It is also a matter of narrating how that state practice sits within a trajectory of progression from one time to another. In this exercise the year functions as a placeholder of meaning and authority: time becomes periodized according to the ‘year’, meaning and progression can be identified and persuasively narrated as arguments in international law.

14 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (1949) 75 UNTS 287 (‘Fourth Geneva Fourth Convention’), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977) 1125 UNTS 3 (‘Additional Protocol 1 ). 15 See, for example, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99, at 122–123, para 55; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, 13, at 29–30, para 27; and North Sea Continental Shelf , ICJ Reports 1969, at 44, para 77. 16 Generally, on the identification of customary international law, see Conclusions on identification of customary international law, Yearbook of the International Law Commission, 2018, vol. II, Part Two. UN Docs A/70/10. 17 See, e.g. Andenas et al 2019. 18 Citation from the general presentation of the Netherlands Yearbook of International Law, available at: https://www.asser.nl/asserpress/books/?rId=4185.

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2.3 Narrating International Law as ‘Sequential Events with Plausible Transitions’ Among other things the ‘turn to history’ in international legal scholarship has served to remind us of the open-ended nature of history of and in international law.19 Narration—in terms of narrating history both in and of international law—is a wellrehearsed practice through which international law takes form, and take on a life of its own: a life of authority and normativity. In any given practice-oriented piece of writing or scholarly note on international law narration is a common, central and necessary exercise. In Giving an Account of Oneself , Butler offers an analysis of emergence of subjects through narrative form. To give of an account of oneself, she explains, is how one emerges as a subject—in this case the subject of emergence is international law. Giving an account thus takes a narrative form, which not only depends upon the ability to relay a set of sequential events with plausible transitions but also draws upon narrative voice and authority, being directed toward an audience with the aim of persuasion.20

According to Butler, the narrative form necessary for subjects to emerge hinges on a structure of address in which ‘events’ can become ordered ‘sequentially’ and ‘with plausible transitions’.21 Events are arranged through narration as a string of ‘first’, ‘then’ and ‘now’ ordered according to a sequential lineal logic. This logic of progression from ‘then’ until ‘now’ is the most basic structure of history as the progression of lineal time: of chronos emerging through the arrangement of events (kairos). It is, in other words, the simple yet fundamental structure of international law. In Butler’s terminology, each of the ‘firsts’, ‘thens’ and ‘nows’ of international law’s narrative are events taking place in as well as beyond time as history (chronos). They are, in other words, instances of kairos, which is to say that events are drawn into the linear history of progression in international law through narrative form. To narrate an event as part of international law is, in Martti Koskenniemi’s observation, to ‘reduce it from its singularity by subsuming it under a rule’.22 Yet, the subsumation of an event does not cancel out that which Koskenniemi call its ‘singularity’. Rather, Butler lets us understand that the subjugation of events to narrative form is what enables international law to emerge with authority and normativity: events remain as kairos within chronos, as Agamben puts it, and history’s progress as events remains.23 To subjugate events as part of international law’s narration— literally, to subject, from Latin subjectum: that ‘which is thrown under’, to subject: sub-, under + iacere, to throw—could equally well be seen through the Greek equivalent of the Latin subjectum: hypokeimenon—meaning ‘that which lies under’ or ‘the 19 Craven

2006. 2005, at 12. 21 Butler 2005, at 12. On the ‘structure of address’, see: Arvidsson 2017, at 103. 22 Koskenniemi 2011, at xvi. 23 Arvidsson 2017, e.g. at 25–26, 82, 97 and 110. 20 Butler

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substratum’. The substratum is, as Simon Critchley points out, that which ‘persists through change’.24 In other words, events—or kairos—are that which persist even as the history of international law changes. Kairos—rather than chronos—becomes an enduring source of authority and normativity for international law. Anne Orford gestures towards this point when she argues that international law and its scholarship work through ‘anachronism’: International legal scholarship is necessarily anachronistic because the operation of modern law is not governed solely by a chronological sense of time in which events and texts are confined to their proper place in a historical linear progression from then to now.25

While seemingly at odds with Butler, Orford explains how international law operates through a substratum of events—kairos within chronos—that are ‘thrown under’ to underpin the authority of international law when put together through narrative form. Lawyers and legal scholars do not, in Orford’s argument, turn to history to become proper historians. Instead, as the point of arrival for international law changes—or, in other words, as international legal scholars and practitioners would like for international law to say this or the other thing with authority and normativity—international legal scholars and practitioners rearrange events (kairos) in new narratives of history (chronos) for new ends and purposes. This captures, quite to the point, the relationship between chronos and kairos in the economy of international law’s emergence: International law and its scholarship is structured around histories ‘in which there is kairos’, yet the kairos of international law depend only to a minimal degree on a ‘little chronos’.26 Narrating international law as ‘sequential events with plausible transitions’ is what international legal scholars and practitioners do in order to make sense of international law’s events.

2.4 The ‘Heretic’ Book Beyond the Year: What a No-Year Book of International Law Would Look like I end this chapter by thinking about a ‘heretic’ yearbook yet to come—one which has already done away with the year—as an opportunity for international legal scholarship to restructure its relationship to its objects of desire: law and history. If, as Miriam Bak McKenna and I have argued, international law establishes and reinforces ‘its status as a discipline in its central historical narrative, which moors both past and future developments in a historical lineage’, then such a decoupling is unlikely to ever take place.27 Yet, as a heretic I allow myself to still believe in international law’s potential to do better, while finding myself free to abandon faith in some of its scholarship and core dogmas. 24 Critchley

1999, at 51. 2013, at 170. 26 Agamben 2005, at 68–69. 27 Arvidsson and Bak McKenna 2020, at 40. 25 Orford

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If we were to do away with the year as a placeholder of meaning and authority in international law and its scholarship, what would a yearbook without reference to or use of the year look like, and what would it do? Let us imagine that international law were to become more of, or primarily become, its events—kairos—rather than its history as a set of ‘sequential events with plausible transitions’ relayed by international law’s scholars and practitioners.28 What would become unsettled and lost—what would be the cost and the potential gain of such an experiment? Narration would, as a first, be lost. Without a placeholder through which to attach events—kairos—as part of the history—chronos—of and in international law, its scholarship would have no narrative capacity and international law’s authority would become difficult or even impossible to argue. International law, once acting without a narrative—without history— would need another forum or form of execution: It would need to become its own source. Such an international law would not be, as Orford has argued, ‘anachronistic’, because there would be no chronos in which to be ‘ana-chronistic’ in relation to. International legal texts would no longer be ‘confined to their proper place in a historical linear progression from then to now’.29 They would, rather, become unhinged events without any specified direction or meaning. Perhaps we could imagine an international law without years, history and narration as unmediated law or, as Gregor Noll has called it: an excarnate law?30 The thought is curiously reminiscent of that which in AI-tech-law scholarship appears under the umbrella-argument of ‘code as law’ or ‘code is law’: a law that needs no narration, no year and no interpretation (or interpreters-narrators: it renders international legal scholars useless!), but which is self-executing as (computer) code.31 In these debates, international law avails itself of and through code and, more recently, artificial intelligence (AI) in its various forms. Law’s authority and normativity is either prompted or corroborated by its execution through algorithms.32 Narration as history, punctuated as progression over the course of the years, becomes in certain strands of tech-visions of law substituted for programming-as-narration. The coder becomes the placeholder of law’s meaning (coding the zeros and ones of law) and of its execution through and as code. Or rather, as Cornelia Vissman and Markus Krajevskij point out, placeholding becomes deferred through a regression towards the constructor of the programming language, and backwards through structures of the development of code language as such.33 In its most simple narrative form, coding 28 Butler

2005, at 12. 2013, at 170. 30 Noll 2019, at 94–95, drawing on Assmann 2006. 31 Introduced by Lawrence Lessig in his seminar book published already in 1999—Code and Other Laws of Cyberspace—the debate has taken on a life of its own in current scholarship on law and AI. 32 Max Liljefors’, Gregor Noll’s and Daniel Steuers’ ‘War and Algorithm’ is an elaboration from the perspectives of law, visual studies and philosophy on what such an algorithmic orientation in contemporary intelligent warfare is or could be: Liljefors et al. 2019. 33 Vissman and Krajevskij 2007, at 100. 29 Orford

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follows a logic similar to that of narration: first [insert code], then [insert code], then [insert code]. Whether this is convincing as international law remains to be seen.34 Valentin Jeutner has recently shown how a non-narrative form of international law could be constructed and what it would look like: His is a book of international law—drawing strictly on sources within the limits of the sources doctrine—without a history of or in the international law in any form.35 No years for the purpose of narration are to be found. The book is an encounter between international law in the form of its sources without a narrative in which ‘sequential events’ are presented ‘with plausible transitions’: It is an elaboration on the substratum, that which ‘persists through change’, in international law.36 Jeutner calls his exercise ‘[l]ex machina: Unlikely encounters of international law and technology’.37 The book is unlikely as a book on or in international law. Its iteration of events of international law transpires without any narrative form known to an international legal audience as persuasive. Only in its last part, ‘notes on methodology’, does Jeutner return to the narrative form known to international legal scholarship. He explains: What becomes of international law’s authority when letters and words are unhinged, interchanged or replaced with other forms or symbols is not easy to determine … A lawyer’s loyalty to the formal logic of the legal machinery’s mode of expression means that the perspective of a corpus management software or of an electron travelling through a neural network might be more similar to that of a lawyer approaching a text than one might initially think.38

How do Jeutner’s exercises in ‘[l]ex machina’ restructure international legal scholarship’s relationship to its objects of desire—to law and history? First, by using material and methods familiar to the international legal scholar—such as ‘corpus: Historic textbooks/method: searched for passages including ‘the Queen’– together with methods radically different to international law’s scholarly traditions, such as ‘sorted alphabetically by words following ‘The Queen’ / ‘CasualConc’, Jeutner relieves international law’s scholarly methods from the task of narrative sense-making.39 He lays bare that which is thrown under—the subjectum—and that which persists through change—the substratum. International law, as a consequence, emerges as parodic, hysterical, non-sensical and of no authority.40 It emerges almost as its own unconscious, its Id, or its bare bones (Fig. 2.1).41 34 Butler

2005, at 12. 2020, at 26. A number of years are highlighted, at p. 26, as part of a no-narrative corpus on ‘Treaty Anatomy’ (19–26). 36 Butler 2005, at 12; Critchley 1999, at 51. 37 Jeutner 2020. 38 Ibid., at 83. 39 Ibid., at 50. CasualConc is, according to https://sites.google.com/site/casualconc/ a ‘concordance program that runs natively on macOS 10.11 or later … designed for casual use (preliminary analysis or non-research purposes) … It can generate kwic concordance lines, word clusters, collocation analysis, and word count.’. 40 On ‘hysteria’ and international law, see Otomo 2009. 41 On the psychic structure of international law, see Arvidsson 2017; and Aristodemou 2014. 35 Jeutner

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Fig. 2.1 Jeutner 2020, pp. 56–57. Source V. Jeutner

Yet, as non-sensical as the exercises appear to be, the texts produced are on second inspection ‘irritatingly’ similar to international law. They are international law.42 The arrival of that conclusion is difficult to digest for an international lawyer looking for international law as part of, and in, human history and time. Taking a radically different perspective, yet dealing with a related problem of international law’s sources, Rose Parfitt has argued that the inequality of international law’s colonial past is perpetually part of the present because of how history presents itself as part of the sources doctrine.43 Although an important project in its own right, the re-writing international law’s history—especially in more radical and revolutionary expressions of the ‘turn to history’ in international law and scholarship—is still caught by a logic that keeps inequality and exclusion at international law’s core.44 Could doing away with the year, then, be the answer? A year-less, nonarration international law would be unable to tell (false) stories of its own ‘progression’, for example from a colonial past to a present iteration in which colonialism has no place. Yet, of course, the answer is no. International lawyers working towards radical and revolutionary ends would, in order to be able to restructure both the law and its scholarship, need access to a narrative form and structure through which to pursue a story of and in international law—and to make it at least as persuasive as its canonical Western version of international law. In fact, an argument emerging from the ethics of the radical scholarship in the ‘turn to history’ is that the masking of, or the seemingly doing away with, history as a way of meaning-making and international authority—such as Jeutner’s no-year, no-narrative ‘[l]ex machina’, or ‘code as 42 Jeutner 2020, at 83. Or, perhaps we should say that his are the kind of ‘misreadings’ of international

law’s sources ‘in ways that such texts were generically and institutionally never meant to be read’? Orford 2003, at 38, citing Threadgold 1999, at 838. 43 Parfitt 2014. See also Arvidsson and Bak McKenna 2020. 44 Analysed in more detail in Arvidsson and Bak McKenna 2020, recent examples, within the ‘turn to history’ towards radical ends, include: Dehm, 2018; Eslava et al 2017; Natarajan et al 2017; Nesiah 2016; Pahuja 2011; Starski and Kämmerer 2017; and Tzouvala 2020.

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law/code is law’—is precisely what conventional international legal scholarship has been doing for centuries. Putting new—more accurate, productive and promising— meaning into international law and its scholarship is what ‘the turn’ has hitherto been much about.45 Moreover, and still within the critical scope of ‘the turn to history’ in international law for radical purposes, it has been repeatedly argued that algorithms, far from being ‘neutral’, non-discriminating, more rational versions of ‘the human’, instead perpetuate and often increase the biases of the coder(s), who—following the logics introduced by Vissman and Krajevskij—echo the biases of the program language coder: Together they are unlikely to embody the critical scholarly deliberation on race, class, gender, disability, that can be found within international legal scholarship and the many ‘counter-narratives’ emerging through their turns to other and new histories in international law. Algorithmic warfare, as an example, targets along discriminatory lines of gender and race to put already vulnerable people at greater risk.46 A ‘[l]ex machina’ of international law, or an international law as code or algorithm, is thus, and from such a perspective, not a relevant answer to the arrays of problems introduced, caused or perpetuated by international law’s attachment to time as history, and the year as a placeholder of meaning and authority (in the yearbook and beyond). And yet, despite the difficulties in envisioning a ‘heretic’ yearbook yet to come, I welcome the beauty and upheaval that the doing away with that tiny word and placeholder of meaning and authority invites: year. The outlandish idea of a no-year yearbook of international law teaches us something about the categorical commitment to a particular form of sense-making in international law: could there not be another sense to be found if our lives and our laws were to be released from the burden of progression towards an indefinite and perpetually postponed end? Be gone, o you year! Fellow scholars, Come on and create us a book of laws that knows of no beginnings, and tells of no postponed ends

References Agamben G (2005) The Time that Remains: A Commentary on the Letter to the Romans. Stanford University Press, Stanford. Andenas M, Fitzmaurice M, Tanzi A, Wouters J (eds) (2019) General Principles of and the Coherence of International Law. Brill, Leiden. Aristodemou M (2014) Law, Psychoanalysis, Society: Taking the unconscious seriously. Routledge, Abingdon.

45 Arvidsson 46 Wilcox

and Bak McKenna 2020. 2017; and Arvidsson 2018.

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Arvidsson M (2018) Targeting, Gender, and International Posthumanitarian Law and Practice: Framing The Question of the Human in International Humanitarian Law. Australian Feminist Law Journal 44(1), 9–28. Arvidsson M (2017) The Subject in International Law. MediaTryck, Lund. Arvidsson M (2010) How Long is ‘Now’. In: Christoffersen L, Modéer KA, Andersen S (eds) Law & Religion in the 21st Century – Nordic Perspectives. Djøf Publishing, Copenhagen, 365–390. Arvidsson M, Bak McKenna M (2020) The Turn to History in International Law and the Sources Doctrine: Critical Approaches and Methodological Imaginaries. Leiden Journal of International Law 33(1), 37–56. d’Aspremont J (2019) Critical histories of international law and the repression of disciplinary imagination. London Review of International Law 7(1), 89–115. Assmann J (2006) Monotheismus an die Sparche der Gewalt. Verlag Picus, Vienna. Butler J (2005) Giving an Account of Oneself. Fordham University Press, New York. Craven M (2006) Introduction: International Law and its Histories. In: Craven M, Fitzmaurice M, Vogiatzi M (eds) Time, History and International Law. Brill, Leiden, 1–25. Critchley S (1999) Ethics – Politics – Subjectivity: Essays on Derrida, Levinas, & Contemporary French Thought. Verso, London. Clark M (2018) Ambivalence, anxieties/adaptations, advances: conceptual history and international law. Leiden Journal of International Law 31(4), 747–771. Dehm J (2018) Highlighting inequalities in the histories of human rights: Contestations over justice, needs and rights in the 1970s. Leiden Journal of International Law 31(4), 871–895. Eslava L, Fakhri M, Nesiah V (eds) (2017) Bandung, Global History and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge. Jeutner V (2020) [l]ex machina: Unlikely encounters of international law and technology. MediaTryck, Lund. Koskenniemi M (2011) Foreword. In: Johns F, Pahuja S, Joyce R (eds) Events: The Force of International Law. Routledge, Abingdon, xvii–xx. Lessig L (1999) Code and Other Laws of Cyberspace. Basic Books, New York. Liljefors M, Noll G, Steuer D (eds) War and Algorithm. Rowman & Littlefield, London. Miller R A, Bratspies R M (eds) (2008) Progress in International Law. Brill: Leiden. Natarajan U, Reynolds R, Bhatia A, Xavier S (eds) (2017): On Praxis and the Intellectual. Routledge, Abingdon. Nesiah V (2016) Human Shields/Human Crosshairs: Colonial Legacies and Contemporary Wars. American Journal of International Law Unbound 110, 323–328. Noll G (2019) War by Algorithm. In: Liljefors M, Noll G, Steuer D (eds) War and Algorithm. Rowman & Littlefield, London, 75–104. Orford A (2003) Reading Humanitarian Intervention. Cambridge University Press, Cambridge. Orford A (2013) On international legal method. London Review of International Law 1(1), 166–197. Otomo Y (2009) Endgame: Feminist Lawyers and the Revolutionary Body. Australian Feminist Law Journal 31(1), 153-166. Pahuja S (2011) Decolonising International Law: Development, Economic Growth and the Politics of Universality. Cambridge University Press, Cambridge. Parfitt R (2014) The Spectre of Sources. European Journal of International Law 25(1), 297–306. Starski P, Kämmerer A (2017) Imperial Colonialism in the Genesis of International Law – Anomaly or Time of Transition? Journal of the History of International Law 19(1), 50–69. Skouteris T (2010) The Notion of Progress in International Law Discourse. T.M.C. Asser Press, The Hague. Threadgold T (1999) Book Review: Law and Literature: Revised and Enlarged Edition by Richard Posner. Melbourne University Law Review 23(3), 830–843. Thiem A (2008) Unbecoming Subjects. Fordham University Press. Tzouvala N (2020) Capitalism As Civilisation: A History of International Law. Cambridge University Press, Cambridge.

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Vadi V (2018) International Law and Its Histories: Methodological Risks and Opportunities. Harvard International Law Journal 58(2), 311–352. Vadi V (2019) Perspective and Scale in the Architecture of International Legal History. European Journal of International Law 30(1), 53–71. Vissman C, Krajevskij K (2007) Computer Juridisms. Grey Room 29, 90–109. Wilcox L (2017) Embodying algorithmic war: Gender, race, and the posthuman in drone warfare. Security Dialogue 48(1), 11–28.

Chapter 3

A Case in the Politics of Form: Yearbooks of International Law John D. Haskell

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Artefact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Rhetorical Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 What Constitutes the Progressive Development of International Law? . . . . . . . . 3.3.2 Why and What Type of International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 22 26 27 28 33 33

Abstract Yearbooks are a specific type of institutional and scholarly activity among experts that identify with international law. They play an important and unique role in our discipline. How so, and toward what ends? This contribution tries to answer these questions, and proposes that the yearbook helps facilitate tight control over the formal rhetorical economy and the politics of what is international law. Keywords disciplinary sensibility · formal rhetorical economy · genre · methodological individualism · neo-chartalism · professional lexicon

3.1 Introduction The yearbook is a distinct publication medium in international law scholarship. What are the politics of this form, and what might it reveal about the disciplinary (un)consciousness and bureaucratic context of international law academics?1 In asking this question, I have drawn a circle around the cohort of yearbooks under scrutiny. The Netherlands Yearbook of International Law (NYIL) initiated the call to reflect on the ‘history, function and future’ of yearbooks, and for the most part, I have 1 Schlag 1996, at 29. For an effort to apply the politics of form to an edited volume in international law (and introducing family systems therapy), see Haskell 2019, at 45.

J. D. Haskell (B) University of Manchester, Manchester, UK e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_3

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followed the list of confirmed publications sending representatives to our gathering, to the extent their materials were online and in English. Due to their prominence (and my orientation toward Anglo-American materials), I have also included the British Yearbook of International Law (BYIL) and the American Journal of International Law (AJIL), and to a lesser extent, the Annuaire de l’Institut de Droit International, the German Yearbook of International Law, and the Yearbook of the International Law Commission. Though AJIL does not use the nomenclature in its title, it is included here because the publication was self-consciously set up and explicitly continues to function as a yearbook among peers.2 To limit the materials, I focused on inaugural issues, subsequent issues falling on important anniversaries (e.g., 5th, 10th, 20th), what I imagined to be key historical periods (e.g., the world wars, decolonization, the fall of the Soviet Union), and the majority of more recent issues in the BYIL and NYIL. Of course, differences exist between these publications, but the hunch I want to explore in this contribution is that there are certain often unconscious ties that bind these issues together and offer insight into what we experience as working in international law.

3.2 The Artefact Now at first glance, a yearbook publication might not look all that different from other publication mediums in international law scholarship. Authors tread common paths: discussing legal themes such as the amorphous contours of sovereignty, debating sources and interpreting case decisions, (re)arranging familiar legal categories and techniques to address recent events and trends circulating in disciplinary off-print conversation, and all within a relatively standardised presentation format from font to citation to the framing, execution and conclusion of the argument. Moreover, its readership appears not all that different from those who would pick up a journal or a monograph or a textbook on public international law—primarily law academics, some students and judges and practitioners in and out of governmental organisations, a small cadre of non-law academics (e.g., history, international relations), and the occasional university librarian or family member of an author. Like their counterparts, yearbooks tend to track the hierarchy of social capital—the closer the yearbook is 2I

will unpack the character of the yearbook in the contribution, but the close communion between AJIL and its European counterparts goes back to its founding. Oppenheim 1908, at 313. ‘The first volume of this American Journal of International Law has shown … that America possesses a number of prominent international jurists who are of equal rank to those of Europe as regards learning, idealism, constructive power, and literary skill. Undoubtedly, this Journal has at once with its appearance taken up the position of a leading magazine of the science of international law.’ In a slightly passive aggressive gesture, he goes on to note that while he is not an American, he thought it appropriate to ‘draw the task and the method’ of the science of international law into the journal—not wishing to be seen as a ‘high priest’, but at the same warning that he will be ‘of course, outspoken’ and to ‘serve as a guide for those younger students… without the proper views for the valuation and appreciation of the materials at hand’. Ibid., at 313–314.

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affiliated to the primary hubs of capital with European descent, the more likely that publication in the yearbook carries social cache for the author. The immediately overt differences between yearbooks and other publication medium also do not seem all that interesting. A textbook aims at a comprehensive overview of an individuated legal regime for classroom instruction. A journal article, depending on the inclinations of the author, is usually imagined to speak to fellow academics or to some judicial or policy making body. The monograph is typically thought to be an extended version of the journal article, perhaps more weighted to the legal academy. A special journal issue or an edited book are geared around a theme deemed relevant because of some internal disciplinary interest (e.g., historical periodization of human rights) or external situation (e.g., the Iraq war), and usually meant for academics and students. Outside the majority of US law school (studentled) journals, contributions are subject to more or less rigorous peer review whose formal procedures tend to be laid out on the publication website. Yearbooks usually fall somewhere close to a well-regarded non-US law journal publication. Things get a bit more intriguing when we think of legal scholarship as a type of bureaucratic practice, especially in the context of the author’s motivations. For example, in the United Kingdom, where I currently work, academics are subject to a six-year government backed assessment audit called the Research Excellence Framework—or, with a tinge of chagrin, what academics refer to colloquially as, ‘the REF’. Under the ever-changing REF guidelines, scholarship is graded along a scale of 1–4 stars (4 being ‘world leading’) and while pressures are different according to university strategies, the general rule of thumb is that only journal articles above 8000 words and monographs with prestigious presses are really going to count toward future promotion (or not slipping from a research-teaching to a teaching-only contract). In this environment, why would one bother to take the lead or publish within an edited book? Of course, it might simply be that the author is institutionally insulated due to academic rank or padded bank accounts or is an intellectual romantic or likes the excuse to work with friends. But more often, the edited book is either the promised deliverable for a grant that funded professional meet-ups between contributors, and/or it offers the opportunity for the author to be vouched for by their peers who signed up to the project. If one is already a significant player in the field, finding young talent as an editor demonstrates intellectual agility and intergenerational virtue; if one is an emerging scholar, association with household names within the discipline are the game, announcing your street cred to would-be future employers and colleagues. Something similar is at work with the textbook, the author seeks the most prestigious publication house to displace the current reigning canonical tome for classrooms and be recognised for providing the most insightful and practical systematisation of a legal field’s voluminous materials—all of which is great for future appointments and societal invitations. The gambit is to circumvent the managerial aspects of the REF and go right to the industry’s front line: academics and students. If we transpose our imaginary author from the United Kingdom to the US, things change to the extent that the REF no longer factors into decisions and questions specific to domestic law school tenure and prestige step in. And so forth.

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In this bureaucratic light, the yearbook begins to look different than other publication media. First, yearbooks tend to very deliberately signal that to publish in the yearbook is to enter a relatively elite cadre that is part of a venerable tradition, at once national and cosmopolitan.3 This message is carried out through a series of techniques. Especially in inaugural and anniversary issues, for instance, yearbooks characteristically flag their close affiliations to the leading prestigious legal institutions and learned societies with their geographic namesake.4 It is not uncommon for yearbooks to name its founders—usually prominent government officials, judges or senior academics—and to acknowledge recognisable sources of funding.5 It is regular to include obituaries for prominent members of the international law community in that country, and to speak to their personal, intellectual and professional character with highly stylised, almost ornate praise.6 And attentive readers are inculcated into some of the more subtle anxieties and hopes that animate these national bodies. In a foreword, we learn that the inauguration of one yearbook is hoped to resolve unnecessary competition and achieve more productive coordination between existing international law journals housed in separate institutional homes.7 In another yearbook, authors confide to the reader the collective ambition to resuscitate the national language and culture as an important lens to engage international law and pledge allegiance to the legacies of democratic openness, respect for the rule of law and the country’s commitment to European creditors to pay its debts.8 And more often than not, the establishment of the yearbooks correspond closely with key moments in the national timeline.9 The take away here is that unlike other publications, the yearbook allows us a more explicit insight into some of the institutional arrangements and individual characters that make up the international law community. Second, yearbooks are typically explicit that the aim is to publish international law scholarship with a normative agenda. Two interrelated tropes are commonly found in the inaugural issue: first, the aim to make the thought of its national legal community more visible to the wider international law community, and second, through this 3 Rolin-Jaequemyns

1877, at vi–viii. for instance, the inaugural issues of the American Journal of International Law, Canadian Yearbook of International Law, Finnish Yearbook of International Law, Netherlands Yearbook of International Law, South African Yearbook of International Law, and Spanish Yearbook of International Law. 5 In the North American context, for example, the Carnegie Institution, Harvard Law School and US government funding are commonly acknowledged. 6 This is addressed more fully later in the chapter. 7 The Editors 1970, at x. 8 Diez de Velasco 1991, at xvi; Tomas 2013–2014, at 86. Something not all that dissimilar may be seen in the inaugural text of the German Yearbook of International Law. For a reflection on its founding and what might count as a ‘German approach’, Giegerich and Zimmermann 2007, at 16. 9 Just a few illustrations of this correlation: African Yearbook 1993/Nobel Peace Prize to Mandela and Klerk in 1993; Australian Yearbook 1965/Troops to Vietnam in 1964 and indigenous people voting enfranchisement in Queensland 1965; Baltic Yearbook 2001/Ten year anniversary of independence from the Soviet Union; British Yearbook 1920–21/End of World War One 1918; Finnish Yearbook 1990/Neutrality recognised by the Soviet Union in 1989; Polish Yearbook 1967–68/Prague Spring ends in 1968. 4 See,

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cosmopolitan conversation between national legal communities, to contribute to the progressive development of international law.10 This normative orientation is echoed throughout the issues whereby authors invoke a relatively narrow set of historical explanations and professional commitments to the rule of law and either ignore or actively repress certain more heterodox tendencies of academic or political thought. Following these discussions allows us to map changing professional ideas across the twentieth century. With few exceptions, in keeping with the normative bent, these positions are taken as almost matters of faith, all within a tone as if meant to persuade (or ever-so-slightly shift) the sensibility of a judge on some international court. The message here is that the canon will be strictly policed according to the most traditional of legal settings—the courtroom—and in accord with existing hierarchies of economic and social authority. To publish is to adhere to these general protocols of concern and decorum—all more or less serving as proxies for an environment most comfortable to a rather limited social stratum with a relatively homogenous educational pedigree. The yearbook tells us how to behave, whom to speak to, and where to go for advancing the professional ladder. Following the bureaucracy of authorship further would be an interesting means to chart the socialization of our profession as international law academics, past and present.11 Especially with older yearbooks, for instance, it is striking how small the band of jurists that made up the international law profession. Whom after all would have the means in the early twentieth century to travel around the world (or at least across the Atlantic)? What cadre of individuals would be literate in multiple languages and have the inclination and time to handwrite long texts drawing on disparate print resources in a pre-consumer age? We begin to get a different sense of not only who these men were and their access to institutional power, but insight into broader historical forces that structure social order and what it means to speak about the progressive development of international law and the virtue of its community. While cottage industries have sprung up in academic literature over the last few decades to begin reflecting on some of this background, such questions noticeably drop out of discussion in yearbook communication. Even among the most critical of scholars, rarely do we see this gaze pointed to our own contemporary milieu. To do so would front and centre some relatively obvious truths we know but rarely confront programmatically in evaluating the life of legal ideas. When we speak about international law, for instance, a close look at the yearbook reminds us that we are often still referring to a relatively small expert community, primarily based in Europe and America, white and usually male, of modest to comfortable economic means, with a history less than two centuries old, and with diminishing social links to the levers of national governance making.12 When we reflect on our experience submitting to journals or sitting on editorial boards, we often discover that there are a 10 By

way of example, though common across the majority of yearbooks, Starke 1965, at 3. scholarly work in this direction, see Rasulov 2012, at 151. 12 When we refer to the opinion of jurists, of custom, of the common law, we tend to be referring to a community whose total scale could fit a law school theatre room. On this general theme, Boer 2016, at 1021; Campos 1994, at 152. 11 For

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lot of social cues, informal network pressures and institutional knowledge that dictate outcomes—all stuff obfuscated behind the formal procedural submission guidelines. This is a large part of what we are getting at when speaking about the ‘politics of form’: those everyday lived formally and informally routinized administrative practices that constitute the success of an argument and our professional reputations. The politics of form is not simply a factor that influences the intellectual merit of academic thought, but part of the very DNA of what constitutes the author and the doctrines and theories of international law. The turn to history may engage some of these questions, but it is simply not the stuff of public discussion within the profession to scrutinize the institutional ins-and-outs of at least today’s academic legal mind. And it is exactly these dynamics of organisational persuasion in international law that are not simply missed, but (as we will see shortly) that the rhetorical economy of our discipline is designed to suppress.13 What I want to pursue is a proposition that the yearbook is the publication medium par excellence to see this disciplinary unconsciousness making at work.

3.3 The Rhetorical Economy For our purposes, the formal rhetorical economy in international law refers to the scripted thematic, technical and stylistic conventions that compose a recognisable and legitimate normative argument within legal scholarship (and possibly other legal professional writing, such as court documents by practitioners and judges).14 As we saw beforehand, the raison d’être of the yearbook is to advance the progressive development of international law through academic research and scholarship. This normative agenda requires a relative consensus on at least two questions. What constitutes ‘progressive development’? And why should we direct our energies to furthering international law and of what type? My argument here will be that the modality of the yearbook functions to preserve relatively tight control over how these questions may be answered and, in substance, only allow for a politically conservative (almost metaphysical) methodological individualism that erases the actual lived (inherently entrenched political) scenes of legal activity.15

13 We might think of this as something loosely along the lines of a symptomatic method of reading. Althusser 2009, at 35. 14 Schlag 1996, at 62. 15 For the way the professional academic discourse is designed to narrow our imagination, Kennedy 1980, at 393; Kennedy 1999, at 9; Schlag 1996, at 29.

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3.3.1 What Constitutes the Progressive Development of International Law? Running through the yearbook issues, a relatively coherent story emerges about the development of social organisation and human freedom as it is thought to form the foundation and purpose of international law. The ancient history of humanity was ruled by mysticism and brute power. The rise of Christianity introduced the belief in the dignity of the human person as an end in themselves and the growth of trade between individuals and subsequently between cultures began to break down provincial barriers and prejudices and create a more integrated world community.16 This process of economic transactions between individuals and cultures developed largely in spite of national jealousies, an unwritten set of behavioural customs and norms that provided security and trust between strangers so that each might advance their own well-being.17 This private, almost spontaneous ordering of affairs was based on two primordial principles: the sanctity of private property and the adherence to contracts.18 Over the course of the last one or two millennia, this customary private ordering was codified into written state law and international conventions, providing the intellectual and institutional scaffolding for humanity to co-exist in a world of looming scarcity and anarchy.19 This enlightened self-interest in tune with the global economic marketplace was so ingrained in the human experience that it applied to individuals and states alike—a moral golden rule or duty that provided the groundwork for all subsequent legal rights.20 If the private economic realm was celebrated as the sphere of individual freedom and provided the template for social ordering, the yearbook authors painted a more ambivalent picture of democratically organised nation-states.21 On the one hand, twentieth century international lawyers had to make sense of what distinguished their commercial societal ideals from colonial territories and communist opposition, especially when their own domestic histories and ideas were mired in empire, slavery and the largest wars on record.22 To be on the side of freedom and against the tyranny of the past and its enemies, the state had to be seen to reflect the actual political needs and will of the population at large. One could not be against democracy, it was the 16 Serra

2013–2014, at 3–6. 1911, at 871–875; Jessup 1964, 342–343, 356. 18 Wright 1916, at 712; Fachiri 1929, at 733, 747–749; Scelle 1911, at 174. 19 Root 1911, at 584–584; Gillroy 2007, at 434–439, 450–469. 20 I tend to think of this as an ‘exchange theory’ of international law, premised on a specific theory of money closely associated with neoliberal twentieth century thought. See, for example, Scott 1907, at 846. Ours is a tradition meant to protect the market’s price discovery from state populations where sovereignty is the commodity, treaties contain all the terms, state practice offers all relevant information, and the invisible hand works through custom. For a discussion of this turn to ethnographic individualism and formal cultural units in the social sciences, see Purcell 1973, at 22–67. We have yet to fully develop a neo-chartalist theory for international law, let alone a general legal theory. On the topic of neo-chartalism and law, Kreitner 2015, at 7. 21 Finch 1956, at 299; Koskenniemi 2001, at 13–16; Slobodian 2018, at 11–15. 22 Lansing 1919, at 632–633. 17 Nys

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source of legitimacy for the economic order itself. On the other hand, democratic control of national politics could easily lead to overthrowing centuries of moral and material progress from commercial intercourse: creating barriers to free trade, seizing control of property, ignoring contractual obligations, putting rights before duties, the masses before the individual, desire before merit, undermining the essence of liberty and unleashing autocracy or anarchy on what was a most fragile equilibrium.23 In the late 19th and early-to-mid twentieth centuries, the general feeling among international lawyers was that the solution lie in directly educating the working lay public to adopt a gentlemanly sensibility of cultural restraint and fair play.24 By the mid-century, with enfranchisement of non-traditional voters and former colonial people, this solution seems to drop out of the literature in favour of a new strategy, one which holds today: international law serves as the public consciousness and defender of the individual and their intrinsic human dignity, but the goal now for international law scholars is to influence other expert communities, professional bodies and political leaders and not the public per se.25 So what emerges is the commitment to democracy, but a very calibrated democracy that would ensure the twin aims of twentieth century Cold War society: the safety of capital and limiting politics to mutual respect and tolerance between formally equal parties, whether individuals or states.26 Or in the words of Elihu Root: the law ensures a system of sovereign actors that remains ‘separate but equal’, and all against a divided public and private world that prioritises the latter.27

3.3.2 Why and What Type of International Law? If any phrase was repeated more often and united the twentieth century scene in European and Anglo-American governance, it is this justification of political authority based on that almost liturgical incantation, ‘the rule of law’. This is taken as accepted dogma within the yearbook literature—if we recall, the single most recited purpose of the yearbooks in their inaugural issues: to advance the progressive development of international law. Now if this just means adhering to the institutional design that facilitates the established production and relations of capital and some baseline rights of individuals to participate in formal political and social procedures, then there really is no purpose for framing legitimacy through the vernacular of ‘law’. The existing narrative that ties international law to a specific orientation for thinking about freedom 23 Brierly

1924, at 7. This was felt to be especially the case with the entrance of former colonised states. Cohen 1963, at 30–32. 24 Eagleton 1942, 230; Root 1907, at 2–3. 25 Bilder 1964, at 730; Visscher 1956, at 468. 26 Just how strong the commitment, the (to put it charitably) Nazi collaborator Hermann Josef Abs was invited to speak on the importance of safeguarding capital and received a warm welcome from the crowd at the 50th anniversary of the American Society of International Law. 27 Root 1916, at 3. This faith remains a staple among educated cosmopolitan society. See, for instance, Baere and Mills 2011, at 32.

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and social order through the formalisation of private custom gives the profession normative bite, but itself does not explain how law—and by extension, the legal profession—is uniquely suited to be the arbiter of rulership. Why the centrality of law to these normative political commitments? The paradox here is how can international law impartially mediate conflicting claims when the law is itself designed and managed by individuals and communities with their own ambitions and needs, especially in a world that we are told is atomistic, interdependent and struggling against scarcities of resources? In other words, we have arrived at that ever-returning thematic that plagues the yearbook literature and the profession writ large: what separates law from politics?28 Unlike many other publication venues, the yearbook literature takes a definite stand to unequivocally defend the privilege of international law—and especially the academic and judge—to stand above and mediate the political fray. In this section, I want to examine how and why the literature gravitates to this type of identity construction. The most common technique to maintain the profession’s role as peace-maker is simply to ignore or marginalise scholarship that would challenge this self-image. For instance, in the early 1990s, the British Yearbook of International Law ran a review essay warning readers of ‘deconstruction’ arguments in Martti Koskenniemi’s now canonical monograph, From Apology to Utopia—especially taking issue with his denial that ‘law can fulfil its aim of providing determinate outcomes to normative problems’ due to the inherent subjectivity involved in rule interpretation.29 Amid a series of counter-arguments, what is most striking for our purposes are the highly stylised rhetorical replies to the claim that international legal interpretation is inherently political. We are informed early on that Koskenniemi’s argument is drawn from the ‘further reaches of the scorched-earth radicalism of modern French philosophy, but until relatively recently little heard in scholarly discussion’—in other words, a trend on the fringes and with little to contribute.30 We are reassured that the book is in fact a serious work of philosophy and escapes ‘being accused of … frivolous intention’, however, the motivation of others who ‘jump upon the deconstructivist bandwagon must be open to question’.31 ‘If, indeed, the central tenet of… the CLS movement… may be reduced to the idea that law has… a political dimension, then one would be well justified in a retort of “So what?”’32 While going so far as to literally cross out the word deconstruction on the page, the author asserts what saves Koskenniemi from being banished to those ‘international lawyers as such in search of some jurisprudential tinsel with which to decorate their these’ is that he is uncommonly ‘well-read’ and ‘thoughtful’—interestingly, his professional experience as a practicing international lawyer and policy advisor disappears from consideration.33 He is accepted into the internal community of law for his academic rigour, but his 28 Nijman

2011, at 7; Kennedy 1980, at 359. 1990, at 343. 30 Ibid., at 339–340. 31 Ibid., at 352. 32 Ibid., at 345. 33 Ibid., at 339, 346, 352. 29 Scobbie

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argument relegated to ‘a scholarly example… of a contemporary school of legal theory’ as he does not ‘grasp the significance’ of how legal interpretation operates with relative certainty in practice through the slow historical development of values and good judgment within the profession.34 ‘[A]s Judge Cardozo elegantly noted,’ the essay concludes, ‘In countless litigations, the law is so clear that judges have no discretion… often there are no gaps. We shall have a false view of the landscape if we… refuse to see the acres already sown and fruitful.’35 Another technique, already intimated, is to explicitly outline what makes for a valued member of the community, often through commemoration of dead colleagues. What is striking when reading through this literature is how uniform and narrow the catalogue of personal and professional attributes, their imagined significance to history, and their consistent messaging. For instance, here is a selection from the international law judge and scholar, Sir Robert Jennings’ obituary in 2004: Few judges carried their knowledge and wisdom, that rich harvest of a lifetime, so lightly, and with such comfort and ease… He was content quietly to be as he was… and yet his qualities were such that he was famous the world over and received every conceivable accolade… a gifted administrator… captain of the high table cricket team… [his] university lectures… clearly imparted in a pleasant and friendly manner… [his] academic writing… seeing all the dimensions on an issue… the powerful reasoning of a first class mind… giving coherence to otherwise disparate themes… a strong loyalty to institutions… [and his] legal opinions greatly valued by his clients…36

Jennings cuts a divine figure: almost all-seeing, able to give form to the void, and all through the power of his character and mind. Brownlie’s obituary is in many ways interchangeable: [He was the] epitome of the legal scholar-practitioner… moved effortlessly between the ivory towers of academia and the rough playing fields of legal practice… a lawyer’s lawyer; not a pundit; not a weaver of dreams and theories; not a radical critic of outmodeled intellectual fashions… [with an] eye of a craftsman… [A] ballast… [appreciating] international law as coherent and practical….[he] brought it professional credibility … keeping eyes focused on the middle ground where real life is carried on.37

What emerges from these descriptions is the importance of practice in the courts and sophisticated knowledge of legal materials, faith in international law as a comprehensive and impartial system of settling conflict, and the power of sovereign individual thought to transform social life.38 Almost if not exclusively male, these are practical men,39 whose meticulous mastery spans the most mundane technicalities of law40 and 34 Ibid.,

at 361–362. at 361. 36 Higgins 2004, at 1–4. 37 Lowe 2011, at 9–10, 12. 38 Jenks 1956, at 60. 39 ‘[T]he international jurist must not walk in the clouds; he must remain on the ground of what is realizable and tangible. It is better for international law to remain stationary than to fall in the hands of the impetuous and hot-headed reformer.’ Oppenheim 1908, at 318. 40 Hopkins 2002, at 1. 35 Ibid.,

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gardening41 to a love of sport42 and client advocacy,43 their lives as consistent as the law they believed in, and where their character seems itself sufficient to bind together the community and strengthen its institutions.44 Immersion in the international legal culture scrubs off partisan inclinations. A third technique is to embrace the political discretion inherent to legal interpretation and seek to neutralise its potential implications by again falling back on an internal/external schemata. To illustrate this, here is a 2001 article written in the British Yearbook of International Law by Judge Mohammed Bedjaoui, ‘Expediency in the Decisions of the International Court of Justice’. Discretion is no longer limited to outlier cases nor dispersed through the pure application of international law doctrine—rather, it now forms ‘part of the tissue of legality’.45 After all, Bedjaoui points out, indeterminacy is simply an ‘integral part of the infirmity of human nature’ and the court always faces some ‘margin of choice’ between competing legal rules and in light of the political circumstances and pressures that surround a case.46 And perhaps even more troubling for legal fundamentalists, he stresses that in such politically charged conflicts, judge are themselves always ‘situated’ with ‘cultural baggage’ that ‘blends into the background of everyday working life’, from one’s ‘origins and education’ to ‘his or her various roles as all at once judge, member of a club, a family or a church’.47 So much it would seem for international law functioning as a trusted third-party intermediary. But not so! Even if the international judge is ‘programmed’, we learn that the internal culture of international law strips away the structural constraints and professional biases of the judge. The external cultural and political context of the conflict is still important for the necessary pragmatic functioning of the law, but it no longer influences the ultimate decision-making of judicial bodies. For Bedjaoui, this is a two-tiered internal process that results in a cosmopolitan sensibility of ‘appropriateness, wisdom or prudence’.48 As a first line defence against external contagion, the reputational status and social pressures of the international law community pressure the judge to follow ‘a demanding international public spirit’: [The judge] intermingles with the gaze of other jurists in the world, with whom they rub shoulders at international fora and in whose eyes they are keen to maintain their reputation. They are also attentive to the views of learned academies, international organisations, senior international civil servants and members of the diplomatic corps… [as well as] the current standards of morality…49 41 Lauterpacht

2007, at 15–16. 2004, at 5. 43 Lowe 2011, at 11. 44 To recall Higgins’ description of Jennings, that though he was ‘content quietly to be as he was’, that ‘his qualities were such that he was famous the world over’. Higgins 2004, at 1. 45 Bedjaoui 2000, at 3. 46 Ibid., at 4. 47 Ibid., at 6. 48 Ibid., at 3. 49 Ibid., at 7. 42 Higgins

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This is even more so the case with the International Court, we are told, because any opinion ‘actuated by bias or partiality’ on behalf of any or all judges is faced with the fact that there are ultimately ‘fifteen judges from different backgrounds’ whereby it is ‘out of the question that they could simultaneously be biased in the same direction’. And from this social pressure to exercise discretion appropriately comes a second line of defence where the judge internalises the consequences of this great burden of responsibility: He cannot see how to escape from the frustrating tyranny… [that any] highly respectable legal concept, is inevitably measured with a human yardstick… That being so, a judge can but anxiously, humbly, gauge and compare his crushing responsibility and the modest means at his disposal for assuming it. He undergoes… l’extase et la terreur de celui qui a été choisi… The utmost, in all honour, that a judge can then do is modest: to summon up all his resources with a view to reducing its scope and effects to a minimum.50

Here we can see the conservative metaphysics (or theology) of the yearbook literature up close and personal. First, we are led to accept an ideational trinity whereby all of the following three axioms are simultaneously true: the canons of argumentation provide the criteria to evaluate correctness of interpretation by members of the international legal community, these criteria receive their authority from this very same interpretative community, and yet they also constitute this interpretative community. The argumentative rules are in the same moment object and subject, God and man, spirit and flesh.51 If this sounds a bit far-fetched, listen to how Bedjaoui concludes his argument: ‘These are not uncertain ebbs and flows of normativity. It is normativity giving itself a spiritual boost, and enhancing its life force, in itself organizing, in the legal context which it clearly signposts, the conditions for its fertilization by the International Court.’52 Res ipsa loquitor. Second, for all its attention to professional context and political pressures, the actual institutional mechanisms and structural social imperatives that create the ‘legal elite’ are read out of legal interpretation’s interiority. Early in his text, Bedjaoui tells us that ‘[l]aw is the science of security’ and ‘[t]he legislator, the administrator, and the courts all contribute to this security’.53 Notice that the coercive enforcement apparatuses of law have somehow been left out in a conversation about the normativity of law. Similarly, do we really imagine that 15 judges on a panel might not share a significant array of overlapping political commitments, professional blind spots, and even economic interests? Institutional logic functions to exclude or marginalise dissenting or alternative perspectives—and not because they are necessarily wrong, but because they are dysfunctional to the institutions themselves.54 To adopt a structuralist jurisprudence that sees the sovereign subject as the symptom of networked organisational tendencies operating to naturalise and maintain particular distributions of uneven access to material resources and social power would significantly 50 Ibid.,

at 3–4. 1997, at 433. 52 Bedjaoui 2000, at 26–27. 53 Ibid., at 1. 54 Herman and Chomsky 1988, at 1–36. 51 Schlag

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undermine the modus operandi of international law, or at least push toward some serious revaluation of its hierarchy of values, personnel and production. Or as David Kennedy put it, a ‘disciplinary sensibility does not precede the people who occupy it but is their common project’.55 To understand the interiority of the international law community requires we understand the exteriority of the international legal community—and that these are mutually reinforcing domains of activity and thought. The word made flesh has it backwards. Exactly the knowledge that the yearbook tradition discourages.

3.4 Conclusion This contribution was by invitation from organisers of an occasion to celebrate the 50th anniversary of the Netherlands Yearbook of International Law. It is a very nice feeling to receive a message from a more senior colleague that you personally and intellectually admire, asking if you would contribute a chapter and share in the event festivities—and even more so, when a number of other scholars whom you also respect and enjoy the company of will ‘be around’. Researching and thinking about this contribution began as an exercise simply wanting to make good on the invitation, but quickly turned to be driven by anxiety: not only whether it was up to the high standards of the community, but also whether it was really appropriate to write a ‘critical’ chapter about yearbooks at an important birthday celebration for a yearbook. There is something a bit boorish about crying fire in a theatre when you openly volunteer with others to be arsonists in the first place. But my sense is that many of us find ourselves in the rule of law without knowing exactly how we ended up here or no longer feeling driven by the same motivations that we once experienced. And as such, it seems to be both therapeutic and politically correct to sometimes act a bit impolite—a liberty perhaps most appropriate to chance with friends.

References Althusser L (2009) From Capital to Marx’s Philosophy. In: Althusser L, Balibar E, Establet R, Macherey P, Ranciere J (eds) Reading Capital. Verso, London, 13–75 (originally published 1965). Baere G, Mills A (2011) T.M.C. Asser and Public and Private International Law: The Life and Legacy of ‘a Practical Legal Statesman’. Netherlands Yearbook of International Law 42:3–36. Bedjaoui M (2000) Expediency in the Decisions of the International Court of Justice. British Yearbook of International Law 71(1):1–27. Bilder R (1964) The International Promotion of Human Rights: A Current Assessment. American Society of International Law 58(3):728–734. Boer L (2016) ‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship. Leiden Journal of International Law 29(4):1021–1042.

55 Kennedy

1999, at 13.

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Brierly J (1924) The Shortcomings of International Law. American Journal of International Law 5:4–16. Campos P (1994) Waiting for Langdell 2. In: Campos P, Schlag P, Smith S (eds) Against the Law. Duke University Press, Durham, 141–156. Cohen M (1963) Some Main Directions of International Law: A Canadian Perspective. Canadian Yearbook of International Law 1:15–39. Diez de Velasco M (1991) Foreword. Spanish Yearbook of International Law 1:xv–xvi. Eagleton C (1942) Organization of the Community of Nations. American Journal of International Law 36(2):229–241. Fachiri A (1929) Interpretation of Treaties. American Journal of International Law 27(4):745–752. Finch G (1956) The American Society of International Law 1906–1956. American Journal of International Law 50:293–312. Giegerich T, Zimmermann A (2007) “Typisch Deutsch…”: Is there a German Approach to International Law? Germany Yearbook of International Law 50:15–28. Gillroy J (2007) Justice-as-Sovereignty: David Hume and the Origins of International Law. British Yearbook of International Law 78(1):429–479. Haskell J (2019) Let us save our good project: Looking at an international law gathering to workshop chapters for a volume. In: Boer L, Stolk S (eds) Backstage Practices of Transnational Law. Routledge Press, Abingdon, 45–59. Herman E, Chomsky N (1988) Manufacturing Consent: The Political Economy of the Mass Media. Pantheon Books. Higgins R (2004) Sir Robert Yewdall Jennings (1913–2004). British Yearbook of International Law 75(1):1–5. Hopkins C (2002) Dr Geoffrey Marston (1938–2002). British Yearbook of International Law 73(1):1–4. Jenks CW (1956) Craftsmanship in International Law. American Journal of International Law 50:32–60. Jessup P (1964) Diversity and Uniformity in the Law of Nations. American Journal of International Law 58:341–358. Kennedy D (1980) Theses about International Law Discourse. German Yearbook of International Law 23:353–391. Kennedy D (1999) The Disciplines of International Law and Policy. Leiden Journal of International Law 12(1):9–134. Koskenniemi M (2001) The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge University Press, Cambridge. Kreitner R (2015) Toward a political economy of money. In: Mattei U, Haskell J (eds) Research Handbook on Political Economy and Law. Edward Elgar, Cheltenham, 7–28. Lansing R (1919) Some Legal Questions of the Peace Conference. American Journal of International Law 13:631–650. Lauterpacht E (2007) Sir Arthur Watts (1931–2007). American Journal of International Law 78(1):7–16. Lowe V (2011) Sir Ian Brownlie (1932–2010). British Yearbook of International Law 81(1):9–12. Nijman J (2011) After ‘Iraq’: Back to the International Rule of Law? An Introduction to the NYIL 2011 Agora. Netherlands Yearbook of International Law 42:71–94. Nys E (1911) Codification of International Law. American Journal of International Law 5:871–900. Oppenheim L (1908) The Science of International Law: Its Task and Method. American Journal of International Law 2(2):313–356. Purcell EA Jr (1973) The Crisis of Democratic theory: Scientific Naturalism and the Problem of Value. University Press of Kentucky, Lexington. Rasulov A (2012) New Approaches to International Law: Images of a Genealogy. In: Beneyto JM, Kennedy D (eds) New Approaches to International Law: The European and the American Experiences. T.M.C. Asser Press, The Hague, 151–191. Rolin-Jaequemyns G (1877) Foreword. Annuaire de l’Institut de Droit International 1:v–xii.

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Root E (1907) The Need of Popular Understanding of International Law. American Society of International Law 1(1):1–3. Root E (1911) The Function of Private Codification in International Law. American Society of International Law 5(3):577–589. Root E (1916) The Declaration of the Rights and Duties of Nations Adopted by the American Institute of International Law. American Journal of International Law 10:1–11. Scelle G (1911) Studies on the Eastern Question. American Journal of International Law 5(1):144– 177. Schlag P (1996) Normativity and the Politics of Form. In: Campos P, Schlag P, Smith S (eds) Against the Law. Duke University Press, Durham, 29–99. Schlag P (1997) Law as a Continuation of God by Other Means. California Law Review 85(2):427– 440. Scobbie I (1990) Towards the Elimination of International Law: Some Radical Skepticism about Sceptical Radicalism. British Yearbook of International Law 61(1):339–362. Scott JB (1907) The Legal Nature of International Law. American Journal of International Law 1:831–866. Serra A (2013–2014) The Just Gentium as Universal Order. Spanish Yearbook of International Law 18:1–9 (originally published 1993). Slobodian Q (2018) Globalists: The End of Empire and the Birth of Neoliberalism. Harvard University Press, Cambridge (MA). Starke JG (1965) Preface. Australian Yearbook of International Law 1:3. Tomas A (2013–2014) Parliamentary Control of “Other International Agreements” in the New Spanish Treaties and Other International Agreements Act (TOIAA) 18:61–86. The Editors (1970) Introduction. Netherlands Yearbook of International Law 1:ix–x. Visscher C (1956) Reflections on the Present Prospects of International Adjudication. American Journal of International Law 50(3):467–474. Wright Q (1916) The Legal Nature of Treaties. American Journal of International Law 10(4):706– 736.

Chapter 4

Archiving Legality: The Imperial Emergence of the International Law Yearbook Sara Kendall Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Genealogy, Genre, Archive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 In the Imperial Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Lines of Descent: The Medieval Year Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 The British Yearbook of International Law and the Making of a Format . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Through focusing on the emergence of the British Yearbook of International Law in the inter-war peak of the British Empire, this chapter explores the genre of the international law yearbook through the figure of the archive, understood as both place and practice. Through the literal archive of the British Library, where the BYIL is held as required by municipal law, the yearbook’s first volume archives the emergence of a genre of international legal scholarship that set the paradigm for yearbooks to follow. Keywords yearbook · empire · genealogy · textual format

4.1 Introduction In ‘Nietzsche, Genealogy, History’, Michel Foucault contrasts the search for historical origins with a ‘genealogical’ approach that accounts for the ‘details and accidents that accompany every beginning’.1 Against a historiography that suggests a linear arc toward an outcome or culmination, Foucault foregrounds the emergence of different interpretations and the ‘plays of domination’ between them, as well as the will to knowledge itself and the injustices that it perpetuates. Elsewhere he designates his approach as a ‘history of the present’,2 or what one commentator describes as a S. Kendall (B) Kent Law School, University of Kent, Canterbury, UK e-mail: [email protected] 1 Foucault 2 Foucault

1977a, at 144. 1977b, at 31.

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process of tracing the ‘erratic and discontinuous process whereby the past became the present.’3 Foucault’s approach helps to unsettle the familiarity of the yearbook as a genre of international legal scholarship, a textual form that expanded globally in the second half of the twentieth century to include a diverse set of states, entities in search of statehood (Palestine), municipalities (The Hague), regions (the Asian and African Yearbooks), and even faith traditions (as with the Jewish Yearbook of International Law). We might think of the emergence of the yearbook in international legal scholarship and practice as a particular way of seeing that became increasingly standardised as a form of knowledge production within the field. This commentary explores the genealogy of the yearbook as a genre through the figure of the archive, not to establish the historical truth of the genre’s development but to think in terms of resemblances and curatorial practices over time that contributed to this contemporary artefact of the international legal order.

4.2 Genealogy, Genre, Archive Following Nietzsche, Foucault’s understanding of genealogy foregrounds the role of contingency and discontinuity in narratives of inheritance. International law’s inheritance of the yearbook as a genre prompts many questions around how it emerged as a textual form in the United Kingdom, at a crossroads of the fall of the Ottoman empire, the aftermath of the Great War, the establishment of the League of Nations, the establishment of a British Crown colony in Kenya (transforming the East African Protectorate), and the territorial and demographic peak of the British Empire. In this crucible of imperial expansion and post-war victory, the first volume of the British Yearbook of International Law emerged in July of 1920, demarcating the first segment of yearbook temporality (1920–1921) in Anglophone international legal scholarship. I will return to this moment of textual emergence and how it might be read as a genre of international legal knowledge production, as a particular kind of composition distinct from journals and law reports. As a genealogy of the yearbook genre, this commentary takes up the figure of the archive both as a physical space and as a practice of international law. Achille Mbembe and Jacques Derrida have noted how ‘archive’ refers to a space of memorialisation or containment, where material is housed and possibly later abandoned, with Derrida noting its etymological tie to arche—to commence or to order.4 The term may also refer to a set of practices, as anthropologists have described the ‘living archive’ of social relations and modes of governance.5 As both place and practice, the archive of international law houses

3 Garland

2014, at 372. 2002; Derrida 1995. 5 For example, Laura Bear describes India’s Eastern Railway Headquarters as ‘the medium through which social relations were contested and formed’ in the postcolonial state (Bear 2007, at 5); Anne 4 Mbembe

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authoritative histories that the field tells itself, and governs claims to authority, relations between entities and their relative status, and membership within the professional community of scholars and practitioners. It is curated like a museum: the holdings of international law’s archive are much more extensive than they publicly appear. The yearbook can be read as one among multiple locations archiving the field of international law, and the emergence of this archive carries a distinctly imperial character, extending the rule of a particular vision of legal form across space and arguably through time, considering what may have prefigured the convention of the international legal yearbook.

4.3 In the Imperial Holdings For a researcher based in the United Kingdom, the British Library in central London is a prominent archive-as-place for archival practices of ordering and governing. The researcher allowed into its reading rooms enjoys access to the largest number of catalogued items held by one institution in the world. As the central of six legal deposit libraries under UK law, the Library also serves a repository for all books (including pamphlets, magazines, newspapers, sheet music and maps) produced in the UK and Ireland.6 The other libraries are entitled to request a free copy within one year of a book’s publication, offering another possible interpretation of the ‘year book’ as marking time within these spatial archives. As a book published in the territory of the UK, the British Yearbook of International Law forms part of the British Library’s collection as mandated by municipal law, falling materially within the library’s archive through the legal matter of jurisdiction.7 The British Library’s holdings archive lines of descent and family resemblances between international law and other fields, including commonalities of genre. The aim here is not to establish a conclusive history of yearbooks in order to better understand the form’s emergence within international law, but instead to see what the Library’s holdings reveal, read through its electronic catalogue as a filing system that surfaces what is hidden in subterranean locations or at its off-site storage centre. What mediated narratives do archival practices such as cataloguing technologies Stoler regards the Dutch national archives as ‘an arsenal of sorts that were reactivated to suit new governing strategies’ (Stoler 2009, at 3). 6 The British Library’s particular relationship to this practice can be traced back to the Statute of Anne (1710), which formalised the practice of legal deposit and extended it beyond the Bodleian Library collection in Oxford to the Royal Library, the British Library’s predecessor. The practice is governed legally by the Legal Deposit Libraries Act of 2003, which restates Section 15 of the Copyright Act 1911. 7 Together with Hyo Yoon Kang, I distinguish between matters (as problematisations) and materials (as their constituent parts) in considering law’s materiality (Kang and Kendall 2020). Matters become legal matters (such as ‘jurisdiction’ or ‘evidence’), as do materials (such as texts), when they become ‘matters of concern’ to law; here the filed copy of the yearbook is a legal material by way of its relationship to the Legal Deposit Libraries Act of 2003, archived by law within the jurisdiction of the United Kingdom.

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unearth through their search algorithms, advanced search fields, and details made available in descriptions entered by library staff? In addition to almanacs, calendar fragments, and early modern prognostications of the coming year, the narrative mediated through the Library’s electronic catalogue suggests that the yearbook as a genre of Anglophone writing appears to emerge in the nineteenth century. A cursory search would indicate the appearance of scientific and statistical yearbooks as well as governance-themed yearbooks such as the Statesman’s Yearbook (1864), the Victorian Yearbook (1874), the Constitutional Yearbook and Politician’s Guide (1885), and the Yearbook of the Imperial Institute: ‘a statistical record of the resources and trade of the colonial and Indian possessions of the British Empire’ (1892–1895). Around the turn of the twentieth century, specific societies and industries appeared to take up the genre, and the representation of state statistics (i.e. Hungarian in 1895, Danish in 1896) is extended to demography and public welfare (such as The Year-book of Social Progress, 1912). From out of this line of descent, the first representation of the legal field in the British Library’s electronic catalogue appears to be the 1903 ‘yearbook of legislation’ of the Michigan Law Review, serving as an extension of the listing and recording activities of the yearbooks that came before through compiling legislation.

4.4 Lines of Descent: The Medieval Year Books Yet the narrative of the modern emergence of the yearbook as a genre of compilation—of statistics, records of trade, indicators of ‘social progress’, and lists of legislation—misses a resemblance between the international legal yearbook and legal recording practices of medieval England.8 Perhaps in this light it is unsurprising that the United Kingdom was the first state to develop a yearbook of international law. ‘Year Books’ appeared as forms of legal reporting in medieval England in the late thirteenth and early fourteenth centuries, documenting court dialogues between pleaders and the King’s justices, and with them, the development of distinct legal doctrines and approaches.9 As legal historian David Seipp observes, ‘[i]n the Year Books of the late thirteenth and early fourteenth centuries, a newly emerging legal profession was in the process of developing its own specialized, technical language, gradually and imperceptibly departing from laymen’s usage.’10 Drawing on the Year Books as archiving the development of the English legal tradition, others have documented an early fourteenth century shift away from the continental inheritance based on Roman law to a nascent common law.11 The medieval Year Books illustrate the influence of Roman law, though more through vocabulary and style than through substantive 8 I am grateful to medieval legal historian Karl Shoemaker for pointing out the existence of the ‘Year

Book’ tradition in English common law. 1989, at 176. 10 Seipp 1989, at 188. 11 Lund 2015. 9 Seipp

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principles, with an emphasis on the pleading strategies of practitioners to advance their clients’ interests. Year Books addressed procedural disputes and strategies,12 which appears to prefigure concerns with interpretive practices, the law’s development and application, and notes on cases in the genre of international law yearbooks that emerged in the twentieth century. Within law, as Cornelia Vismann observed, record keeping and filing practices reveal histories of legal production, and files serve as traces of institutional practice that mediate and act into legal production.13 Late medieval Year Books have been described as the ‘extended memory’ of the legal profession.14 Handwritten texts were eventually replaced by printed texts, and the common law expanded in the sixteenth century, accompanied by an increase in printing as a mode of disseminating law.15 Their production ceased under King Henry VIII, and they were heavily curated by Sir Edward Coke in the seventeenth century, with the result that Coke’s work ‘formed the core of what the later legal profession “remembered” about medieval common law’.16 This narrative of professionalisation, producing interpretive authority, developing shared practices and reference points, and conceptual convergences around the substance of the law could be read into the development of yearbooks of international law some seven hundred years later, where an Anglophone professional community sought to produce a narrative about itself and the substance of the evolving form of law that it was practicing. Perhaps the medieval Year Book reveals more about the yearbook genre in international law than the late nineteenth century practice of compiling statistical data, a post-Enlightenment concern with demography and other biopolitical considerations about populations that reveal less about the fabrication of a field of practice. As if demonstrating this shared interest in consolidating a legal field, the first trace of the ‘yearbook’ in a search of the British Library’s catalogue is the 1641 text published by William Cooke in London entitled ‘Special and selected Law-Cases concerning the persons and estates of all men whatsoever. Collected out of the Reports and Year-Books of the Common-Law of England’. The text brings medieval Year Books together with law reports in order to illustrate the development of the common law over time. Taking London as a site of textual production—an archive-as-place—the emergence of Cooke’s text from early modern Britain converges territorially with the British Yearbook of International Law at the pinnacle of twentieth century empire, also produced in London for an expanding field of legal practice.

12 Seipp

2004, at 77. 2008. 14 Ives 1973. 15 Ross 1998. 16 Seipp 2004, at 74. 13 Vismann

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4.5 The British Yearbook of International Law and the Making of a Format The earliest volume of the British Yearbook for 1921 was printed in 1920, and an original copy of the first volume is preserved in the British Library, complete with stamps marking ‘India Office Library 16 Oct 1920’. In 1982, the India Office Records were moved to the British Library, where they were absorbed into its wider holdings. The presence of the stamp on the text marks a colonial bureaucratic interest in the growing field of international law from the time of the Yearbook’s emergence. Projecting international law from a central location of colonial power, this artefact reflects the complex imbrications of colonialism with the emancipatory and protective potential of international legal projects, from constraints upon warfare to decolonisation and treaty succession. The appearance of the British Yearbook seems to mark its own sort of reign: as with anno Domini, ‘in the year of the lord’, or the counting of years by imperial reign, as with the Roman empire, here too we see a marking of an empire, the Latin annualis, for a nineteenth and early twentieth century global power. While the first issue (see Fig. 4.1) situates the volume in a post-war context, suggesting that the Great War had threatened the relevance of international law, it also pairs the normative imperative of developing the field: ‘This Year Book of International Law has been established because its promoters feel that a wider knowledge and comprehension of the subject is essential at the present time, and that a British periodical devoted to international law would help to this end’ (v). Caught in a moment of international law’s seeming inconsequence, where it had been unable to live up to its humanitarian promises built upon half a century of developing rules to restrict the conduct of hostilities, the British Yearbook aimed to valorise and disseminate this law through a British lens. Chapters in the first issue reflect the yearbook’s location, including ‘British Prize Courts and the War’, ‘Changes in the Organisation of the Foreign and Diplomatic Service’, and ‘The Legal Administration of Palestine Under British Military Occupation’. The latter article by then Chief Judicial Officer to the military administration in occupied Palestine, Norman Bentwich, commends the administrative control and procedural reforms carried out before the establishment of the Mandate. Bentwich claims the topic is relevant to international law because it offers an account of legal administration during military occupation. Yet rather than explicitly illustrating the relationship between Article 43 of the 1907 Hague regulations and British practice, Fig. 4.1 The British year book of international law 1920–21. Source The author

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the article instead valorises British changes to Ottoman legal structures within Palestinian territory, which are framed as improvements upon governance by the imperial power that Britain displaced.17 Its concluding line asserts that ‘the ground has been prepared for laying the foundation of British Justice’,18 suggesting a kind of imperial transplantation during a period of military occupation, which was itself enabled by the international legal order. As the first designated yearbook of international law, this text archives the emergence of a genre of international legal scholarship that set the paradigm for yearbooks to follow. Rather than a descriptive account of the field’s development, the British Yearbook also acts into the field, making normative claims about governance and appropriate practice. As a publication explicitly linked to a state with a colonial and imperial history, the yearbook slowly acknowledges developments in the field pertaining to decolonisation (with ‘Independence and Succession to Treaties’ in Vol. 38, 1962, for example, and ‘State Succession and the Effect upon Treaties of Entry into a Composite Relationship’ in Vol. 41, 1965) and later with the principle of non-interference (‘The Organization of African Unity and the Concept of Non-Interference in International Affairs of Member States’ in Vol. 49, 1978). These concerns become more prominent in the 1990s, with attention to the Western Sahara case (Vol. 63, 1992) as well as self-determination and the end of British Empire (Vol. 66, 1995). This period of the Yearbook’s increased interest in decolonisation also corresponded with the emergence of the African Yearbook of International Law/Annuaire Africain de droit international in 1993, which foregrounds colonialism and its legacies in its inaugural issue dedicated to the independence process in Namibia. This is apparent in scholarly accounts of the African Yearbook’s structure, which is described as ‘follow[ing] the customary format of a yearbook’, with ‘a number of articles, (in both English and French), notes and comments, book reviews, and a collection of documents.’19 How this became a ‘customary format’ is tied to the influence of the British Yearbook and its work in shaping a field of practice, bringing reports of the substance of legal developments together with scholarly commentary. We might even trace this influence further back in British history to the Year Books of medieval England, which served as a format of knowledge production that acted into a developing legal field through inclusions and exclusions as well as through the forms of practice that the Year Books consolidate. If the emergence of the British Yearbook during the peak of British Empire sought to revive a pacific international law from a British perspective, the African Yearbook’s arrival some seventy years later takes on 17 Bentwich contends that under British occupation, the reformed Court of First Instance ‘has made criminal justice, which was notoriously halting and uncertain in the Ottoman regime, almost a model of expedition and certainty’ (1920, at 142). He further highlights British ‘expedition’ in moving from continental influence in procedure: ‘While the substantive law has been little affected, greater latitude has been taken with the amendment of the procedure. The Ottoman codes of procedure are rather slavish imitations of the French codes, and are not calculated to secure expeditious justice’ (146). 18 Bentwich 1920, at 148. 19 Dugard 1994, at 414.

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a different political project, suggesting a common regional undertaking rather than a national point of departure. By starting from Namibia, the volume highlights international law’s complicity with colonialism and imperialism in addition to showing its pacific and emancipatory potential. In archiving a field that constrains as well as enables armed conflict and occupation, international law’s yearbooks offer sites for exploring how scholarly constituencies speaking for different entities—whether states such as Britain or regions such as Africa—may consolidate or disrupt conventions of how the field imagines itself. With the Netherlands Yearbook of International Law at 50 and the British Yearbook of International Law at 100, we might look to what their archives reveal as a critical reflection on colonial state practice in/as international law, as well as alternate narratives of international law taken up within these texts and by others who employ the legacy of the yearbook’s format to imagine international law otherwise.

References Bear L (2007) Lines of the Nation: Indian Railway Workers, Bureaucracy, and the Intimate Historical Self. Columbia University Press, New York. Bentwich N (1920) The Legal Administration of Palestine Under British Military Occupation. The British Yearbook of International Law 1:139–148. Derrida J (1995) Archive Fever: A Freudian Impression. University of Chicago Press, Chicago. Dugard J (1994) Book Notice. South African Journal on Human Rights 10(3):414. Foucault M (1977a) Nietzsche, Genealogy, History. In: Bouchard DF (ed) Language, CounterMemory, Practice: Selected Essays and Interviews. Cornell University Press, Ithaca, 139–164. Foucault M (1977b) Discipline and Punish: The Birth of the Prison. Pantheon, New York. Garland D (2014) What is a ‘history of the present’? On Foucault’s genealogies and their critical preconditions. Punishment & Society 16(4):365–384. Ives EW (1973) The Purpose and Making of the Later Year Books. Law Quarterly Review 89:64–86. Kang HY, Kendall S (2020) Introduction: Legal Materiality. Law Text Culture 23. Lund C (2015) The Creation of the Common Law: The Medieval Year Books Deciphered. Talbot Publishing, Clark. Mbembe A (2002) The Power of the Archive and its Limits. In: Hamilton C, Harris V, Reid G (eds) Refiguring the Archive. Kluwer, Dordrecht. Ross R (1998) The Commoning of the Common Law: The Renaissance Debate over Printing English Law, 1520–1640. University of Pennsylvania Law Review 146(2):323–461. Seipp D (1989) Bracton, the Year Books, and the Transformation of Elementary Legal Ideas in the Early Common Law. Law and History Review 7:175–218. Seipp D (2004) The Law’s Many Bodies, and the Manuscript Tradition in English Legal History. The Journal of Legal History 25(1):74–83. Stoler A (2009) Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense. Princeton University Press, Princeton. Vismann C (2008) Files. Stanford University Press, Stanford.

Chapter 5

On Yearbooks Jan Klabbers

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Ambivalence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Dispensability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This contribution addresses the role of national yearbooks of international law in the formation and maintenance of national academic communities (“imagined communities”, if you will), and their potential role in the education of aspiring international lawyers. It takes personal reflections as its starting point, and eventually suggests that such yearbooks are well worth cherishing—they fill a void in the academic industrial process, a void left by the predominance attached to research monographs and journal articles. Keywords international law · yearbooks · education · community

5.1 Introduction I grew up, academically, on yearbooks of international law—they formed a notable part of my education. As an undergraduate student with a serious interest in international law, and later when writing my doctoral dissertation, yearbooks were among the sources of information, knowledge and understanding I keenly pursued. Partly this was because one just had to make do with whatever one could find: Al Gore (or whoever) had not yet invented or popularized the internet, so all I had available to me was whatever subscriptions were held by the law library of the University of Amsterdam and had arrived as physical copies. Among these were a variety of yearbooks. J. Klabbers (B) University of Helsinki, Helsinki, Finland e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_5

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But there was more to it than just the old adage that “beggars can’t be choosers”. There was something about the yearbooks, or at least some of them, that made them seem valuable beyond being merely repositories of academic articles of varying quality. Somehow the yearbooks seemed to speak for entire communities, in ways that rarely apply to journals, let alone research monographs.1 Additionally, and perhaps more obviously, the yearbooks were sources of information concerning the state practice of their respective states, and by selecting materials from state practice and judicial practice they taught me about what is legally relevant and what is legally not so relevant, or at least what some considered to be relevant or not so relevant. Reading yearbooks amounted, in a sense, to reading the language of international law as it is actually used, outside the context of research monographs, learned articles, and textbooks. By reproducing practice, the yearbooks provided a glimpse into that very practice, and helped me develop my skills as a doctrinal international lawyer.

5.2 Ranking Let us first get one issue out of the way: yearbooks are not usually known for the quality of the articles they contain. Obviously, as a general statement this is far too blunt and over-the-top, and especially in the days when yearbooks were the main outlet for academic international lawyers (whether within their state or more broadly), they could contain excellent work. Imagine the British Yearbook without the contributions by Sir Hersch Lauterpacht, Lord McNair, or Sir Gerald Fitzmaurice, and the point will become clear at once. Yearbooks moreover have a tradition, and still have the possibility, of publishing longer articles. The wonderful work by Fitzmaurice on the ICJ case-law in the British Yearbook was followed, decades later, by equally wonderful work by Thirlway: lengthy and systematic analyses of the case-law of the International Court of Justice, of a length and depth that would have rendered these pieces unlikely to be published elsewhere. The space offered by the British Yearbook, moreover, also informed the structure of the analysis: the way these articles were composed would not have been possible in even a serial format of shorter pieces. It was the format of the yearbook article which allowed for discussion in minute detail, although it remains uncertain perhaps whether this was facilitated by the venue being a yearbook, or by the 1 Although

occasionally a textbook-like collection can approach something similar, almost (but not quite) in the manner of a 1960s East-German Autorenkollektiv, what I have in mind is Horbach et al. 2007, offering a collection of Dutch authors writing in Dutch on international law, emphasizing issues that resonate with the Dutch, by and large reflecting Dutch pre-occupations. It differs from the Autorenkollektiv though in that individual chapters are individually signed. On a lesser level of cultural homogeneity, something similar may apply to Evans 2018, which by and large offers a British perspective but also uses authors born and educated outside the UK, and some who have no particular affiliation with the UK, this coming closer to the cosmopolitanism underlying MacDonald and Johnstone 1983, encompassing authors from all over the globe or, likewise, Sörensen 1968. For the record, those cosmopolitan enterprises, for all their cosmopolitanism, comprised exclusively male authors.

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relatively absence of the cookie-cutter model of peer reviewed articles. d’Aspremont surely had a point when observing (on a blog, mind you) that he himself, when writing with peer reviewed journals in mind, sticks to a fairly conventional way of writing and thinking.2 And sometimes yearbooks get lucky, in that they stumble on a piece, usually someone’s public lecture, which captures the Zeitgeist, which captures something of relevance for that particular moment. The best example may well be Sir Robert Jennings’ ‘What is International Law and How do we Tell it when We See It?’, published in the Swiss Yearbook of International Law and probably the most-cited article ever to have been published in that yearbook—and probably by a considerable margin at that.3 But by and large, seminal articles tend to get published in journals rather than yearbooks, as is reflected in national rankings of periodicals. The venerable British Yearbook, e.g., is in the Finnish system4 given the grade 1 (basic), as are some other yearbooks (the Canadian Yearbook of International Law, the Annuaire Francais du Droit International, and a handful of others). Therewith, they are ranked below a journal such as the Leiden Journal of International Law (ranked in category 2, leading journals) or the European Journal of International Law (category 3, top journals). The classifications themselves, of course, are questionable: it is nigh-on impossible to sense the difference between “leading” and “top”, but similar problems afflict other comparative schemes: funding agencies may differentiate between “excellent” and “outstanding” scholars in ways that baffle the rest of us; and to be considered a “very good” scholar is, in these contexts, rather insulting. That the British Yearbook ranks below the Leiden Journal and the European Journal is, on current form, perhaps not all that surprising. What is more surprising is that it also ranks below the Nordic Journal (category 2, leading) and even the Finnish law journal Lakimies5 (also 2), despite the circumstance that it is considerably easier to get published in Lakimies than in the British Yearbook—although, in the Finnish language and amongst Finnish lawyers, Lakimies is indeed by far the

2 https://www.ejiltalk.org/destination-the-wasteland-of-academic-overproduction-part-1/ (accessed 25 May 2020). 3 Jennings 1981. 4 Known as Julkaisufoorumi (Publication Forum), or JuFo in abbreviated form. When journals are sometimes listed as 0, the explanation is that their quality has not been assessed, mostly, one may assume, because it is not a popular venue for Finnish scholarship. The JuFo rankings are used not just to assess the level of publications, but also of such activities as being engaged in peer review: reviewing a submission for the European Journal is somehow more “valuable” than reviewing an article for the British Yearbook. 5 The word means, literally, Lawyer. Lakimies is published 8 times a year on behalf of the national lawyers’ association, and a typical issue comprises four to six articles of regular length, two or three shorter contributions, and some book reviews. The tenor is highly doctrinal and no field of law is excluded. That said, Finland’s international lawyers rarely publish in Lakimies, probably because they have other venues at their disposal.

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leading law journal.6 This suggests two things. First, it suggests that those rankings are eminently open to manipulation: if Lakimies would not be given a high rank (higher than arguably is merited on substantive grounds or in light of the statistical probability of getting a submission accepted7 ), Finnish domestic lawyers would rarely be in a position to publish in a journal of such ranking, unless they would look to publish internationally. This, in turn, would make the domestic lawyers look bad when compared to their international law colleagues, and would also make them look bad in comparison to Finland’s social scientists. Ex hypothesi, it cannot be the case that lawyers are worse scholars than others in the humanities or social sciences, but since a purely quality-based ranking of journals would suggest as much, the ranking has to be interfered with—there is no other option once the idea of ranking publications has been accepted, and given the largely domestic audience for most academic work in fields such as consumer protection law or urban planning law. Second though, and more to the point for present purposes, the British Yearbook’s score reflects the relatively low regard in which yearbooks are held these days which, in turn, will mean that they become less attractive as venues for publication. Some classic pieces have been published in yearbooks. On the topic of selfcontained regimes, e.g., which pre-occupied international lawyers for a while before they re-christened it “fragmentation”, no bibliography is complete without reference to Bruno Simma’s contribution to the Netherlands Yearbook.8 Likewise, on the evergreen issue of treaty conflict, Manfred Zuleeg’s piece in the 1977 German Yearbook is a compulsory reference. Both articles set the tone on their topic for quite some time to come and were thus highly influential. Both are also somewhat atypical: Simma’s was written for a special issue for the Netherlands Yearbook, a concept increasingly embraced by the Netherlands Yearbook, obscuring the differences between yearbooks and edited volumes. Zuleeg’s was somewhat atypical for being published in German, despite English being the main publishing language (already then) of the German Yearbook.9 Curiously, one suspects that if both pieces were now offered for peer review, they might not survive the process. That is no slight on the articles— both are classics, and deservedly so. But Simma’s makes most sense in the context of a special issue, with several related pieces being published, while Zuleeg would nowadays face a language barrier. But this says more about peer review practices which, in law and the humanities (and qualitative social sciences) are hopelessly overrated to begin with.

6 There is not much competition, to be honest: the main competitor is a journal called Defensor Legis,

which is more closely associated with legal practice, publishing case notes and short and snappy overview pieces, but little that involves the type of reflection usually associated with academic work. 7 Lakimies has a page budget of some 1200 pages per year, divided over eight issues. The pool of authors being able and willing to write academic legal texts in Finnish (population 5.5 million, four law schools) is relatively small. 8 Simma 1985. 9 Zuleeg 1977.

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5.3 Ambivalence Yearbooks are curiously ambivalent products, and are ambivalent typically in two ways. First, as intimated above, they are often produced by and on behalf of a particular national international law community and this, by default, must cover not just the academics but also those representing that state in matters related to international law: foreign office lawyers, perhaps also those nationals working for international institutions or organs. To the extent that the yearbooks comment on national practices and positions, therefore, they represent a community commenting on itself. The yearbook is both subject and object, both author and lead character—and this alone makes the yearbook stand out. There is, however, a pre-condition: this only applies to those yearbooks which actually somehow represent a national community, and not all yearbooks do this. The German Yearbook of International Law, e.g., has by and large remained a publication of the Walther Schücking Institute in Kiel. It sometimes has been very “German”, but that is because some of the Kiel-based academics fit nicely in the post-war German tradition of international legal thinking—someone like Jost Delbrück, for instance. But the German Yearbook has intuitively never functioned as the unofficial mouthpiece of German international law. The role of mouthpiece was already taken by the much older and much more “established” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, and arguably, this role has diminished since the latter has started to refer to itself in English as the Heidelberg Journal of International Law. All of a sudden, the Zeitschrift was not from Germany, but from Heidelberg—a subtle difference, but a difference nonetheless. It also does not help to give a yearbook a specific focus: there is nothing wrong with the Max Planck Yearbook of United Nations Law, or the Yearbook of International Environmental Law, but these are essentially just serial publications on the parts of international law that can be associated with the United Nations (if that is what United Nations law represents) or aiming to cover international environmental law. But these are not yearbooks in quite the same way as the British, Netherlands, French, Canadian or Polish Yearbook of International Law—they do not construct and manifest a community of individuals based in a particular place in quite same way.10 That said, those communities themselves have also undergone considerable change. If the British Yearbook could still think of itself as British with an Australian (co-)editor in chief until a few years ago, its Britishness has become much more cosmopolitan (ironically perhaps, at a time when Britain has turned inward) with an Israeli at the helm. Likewise, the particular Finnish-ness of the Finnish Yearbook 10 They might speak to a differently-oriented community, as one of the reviewers of this piece suggested (i.e. the community of UN lawyers, or the community of international environmental lawyers), but those would appear to be different kinds of communities. One can join these communities (indeed, several simultaneously) by taking a subscription, whereas one does not become a Dutch international lawyer by taking a subscription to the Netherlands Yearbook. And the idea of becoming part of the Dutch, Polish and French communities of international lawyers by subscribing to their respective yearbooks lacks credibility.

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was hardly highlighted when its editor in chief hailed from the Netherlands, something well understood in other jurisdictions: it would be unthinkable to have the Annuaire Francais run by someone from outside France, or at least from outside the Francophone community.11 Intriguingly however, and perhaps because it started much later, the Annuaire Francais is somehow less French, less community oriented, than the Revue Générale de Droit International Public, which was published as early as the 1890s, and has always carried aspects of French state practice. The Annuaire Francais, by contrast, seems to have aimed at fostering not a national community but a cosmopolitan one, by providing overviews of international judicial practice, including the practice of international administrative tribunals. Moreover, it has arguably the most extensive book review section of any regular publication. If the Revue Générale caters to the domestic audience, the Annuaire Francais caters to a cosmopolitan audience. Whether it does so successfully is open for debate however—it probably does not help its cause by being exclusively Francophone.12 But nonetheless, the contrast is telling, unless one would hypothesize that the Annuaire Francais caters to the Francophone community, covering parts of Belgium and Switzerland and parts of Africa. The second sense in which the yearbook is ambivalent is that it is unclear whether it should be seen as a book series, or as a journal. When I grew up (academically, again), the law library in Amsterdam treated the yearbooks as journals, and copies could be found alphabetically next to the bound volumes of journals, with the Netherlands Yearbook wedged in between the Netherlands International Law Review and the Nordic Journal of International Law.13 This is how I grew accustomed to yearbooks, and funny enough, this is still how I think they should be treated. Despite having been exposed to it for more than twenty years by now, I have been unable to internalize the Finnish practice of treating yearbooks as books, and thus physically locating them in the book sections of libraries. The differences are getting smaller of course now that most resources are electronically available: I can access articles from yearbooks online in much the same way as journal articles or chapters in edited volumes (the latter are books, of course, in my mental scheme). Plus, and inconsistently enough, for purposes of ranking publications, yearbooks are regarded by Finland’s educational authorities (the aforementioned JuFo) as serial publications, i.e. in the same way as journals.

11 Then again, it is curiously reflective of Europe that two of the main figures in the history of the European Journal of International Law, Philip Alston and Joseph Weiler, both long-time editor in chief, are both non-Europeans by birth. 12 It may be suspected that the cosmopolitan ambitions of the Annuaire Francais are premised on the perceived position of French as the lingua franca of the community of cosmopolitan international lawyers. 13 This is actually not true: the Nordic Journal, for some mysterious reason, was kept not in the law library those days but in the main university library. I have forgotten though which journal was standing next to the Netherlands yearbook. Perhaps next to the Netherlands Yearbook was the Neue Juristische Wochenschrift.

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What makes yearbooks historically attractive is the additional consideration that in some jurisdictions, they were among the main publication outlets. The British may have had venerable law journals which would occasionally publish something on international law (the Law Quarterly Review, Cambridge Law Journal), but for about three decades the British Yearbook was the only dedicated international law outlet, until the International and Comparative Law Quarterly was set up in the 1950s. And much the same applies to other jurisdictions, which are too small to sustain the three or four issues per year associated with most journals, but might just manage a single ‘national’ publication annually: the Finnish, or the Czech, or the Polish, or the three Baltic states combined producing the Baltic Yearbook of International Law. The Austrians have settled, pragmatically perhaps, on a hybrid solution: they publish what is effectively a yearbook, complete with large overviews of Austrian state practice, but it still carries the title of the journal which it replaced, the Austrian Review of International and European Law.14

5.4 Community Quite possibly the best thing about yearbooks is that they sometimes offer excerpts from relevant state practice and judicial practice. The British Yearbook always has been exemplary, with extensive sections detailing Foreign Office practice (excerpts from memoranda, opinions on current incidents, et cetera) and a separate section on judicial practice. These would be compiled and edited by serious young scholars who en passant received a very fine traditional training in international law, which has no doubt helped them in their academic careers. In addition to the regular section on judicial practice (outlining the judiciary’s approach to matters of international law) and the equally regular section on diplomatic and parliamentary section (by and large representing the government’s approach), the Netherlands Yearbook long had a third section, listing Dutch publications during the past year. This was highly entertaining and revealing for a while, suggesting that Professor Indolent had again managed not to publish anything the whole year, or that “op ed” pieces in small regional newspapers could also count among the publications of Professor Dryasdust. At some point this got a little stale, and that point was probably the point when the discipline became more professionalized, about 10–15 years ago, with people thinking of big-team research projects, preferably “paradigm shifting” and complete with “work packages” and “deliverables”. It is open to serious questioning whether the quality of scholarship has improved as a result, but it is clear that in terms of quantity, the output has increased tremendously, so much so that a section on “Dutch publications during the previous year” would no longer be feasible.

14 It

is effectively a yearbook in that it is published once a year, and combines academic articles with sections on Austrian state practice.

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One of the charms of that section (and an additional reason for its current impracticality) was also that it generated conversations on inclusion and exclusion, in much the same way as those conversations take place in other more or less organic communities.15 It opened up vistas on who actually qualified as Dutch and, as with many governments, it would seem that the application of the standard for Dutch-ness was rather random and pragmatic. Upon moving to Finland, I still qualified for a while as Dutch, it seems, but at some point, interest dried up and I disappeared from the statistics, despite me retaining my Dutch nationality (and, more importantly, despite me still cheering for Dutch football), and notwithstanding the fact that I was publishing with some regularity. Conversely, the growth of big-time research projects brought a steady stream of people born outside the Netherlands to work at Dutch universities, either for PhD projects or as post-doctoral researchers, and thus (at least initially) for a limited period of time. So at what moment did Alessandra Arcuri become Dutch? Or Machiko Kanetake? And while traditionally, Dutch-speaking Belgians have held positions in the Netherlands (Karel Wellens for a long time at Radboud University Nijmegen, or Cedric Ryngaert at Utrecht today), were they ever considered Dutch? Thus put, the annual section raised intriguing questions about both national and professional identity. The function of publishing excerpts from state practice and judicial practice is not limited to yearbooks. The venerable American Journal of International Law has done so since forever, as has the Zeitschrift. The Nordic Journal of International Law too tried to do so for a while, but stumbled on two problems, one inherent to the genre, and one specific to the Nordic Journal. The genre problem is that someone needs to actually compile and edit the work. Some institutional settings can accommodate this: with the British Yearbook being predominantly an Oxbridge product, often enough the work was delegated to junior scholars at Cambridge or Oxford. But the Nordic Journal lacked such an institutional background, even while physically located at the Raoul Wallenberg Institute in Lund—an ideal institutional setting for editorial continuity, one would think, but perhaps not that suitable for a general international law publication: the Institute’s strength rests with human rights, and while there is some overlap, human rights lawyers and international lawyers move in different circles—with all this entails for identifying peers for reviewing purposes, for instance. The specific problem for the Nordic Journal was (and is) that it marks collaboration between five Nordic states, and thus would have to cover the state practice of not just one, but five states.16 While these may overlap and sometimes in the name of efficiency are represented by one of them speaking on behalf of all of them, nonetheless the net result was that practical problems increased five-fold. Five authors first

15 The

notion of organic community here is meant to differentiate such communities from communities one can join by purchasing their products, as in the “community of users of shampoo X”. 16 The Nordic Journal is unique in that representatives of its member states’ Foreign Ministries sit on the editorial board, together with a number of academics.

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needed to be found and invited, and then needed to be chased just before the deadline; five authors whose texts needed to be edited; five authors whose work required some coordination. The pool, moreover, is small: the general international section at the Finnish Foreign Ministry comprises a handful of individuals, and there is little reason to assume that the corresponding sections at the Foreign Offices of the other Nordic states are much bigger. The attempt was valiant, but proved short-lived,17 and yet, during its short lifespan made a valuable contribution: I can safely say that without the information thus collected and published, some of my own work would have been much more difficult to produce.18 There is, however, another issue with state practice digests which requires commenting, and it is this. It has become almost impossible for someone outside Foreign Office practice closely to follow whatever a state is doing in its foreign policy. There is, for one, too much going on, not just at the Foreign Office but also, and still increasingly so, at other departments. Defence ministries, Justice ministries, Transport ministries, Environment ministries, Culture ministries: they all have their own international activities these days and may all have to do with international law in one way or another, so much so that few people can keep track.19 In addition, a lot of this practice may be officially sold as non-legally binding and thus never even be reported, or not be reported where it would be expected. This is not a new phenomenon: already in his classic advocacy piece on the “informal international instrument”, often referred to as Memorandum of Understanding, the late Tony Aust warned about problems of coordination and possible retrieval problems,20 and amongst foreign office lawyers it would seem that the quay has turned the ship around by now: Foreign Office lawyers are increasingly critical of the use of ostensibly non-legally binding instruments, precisely because they can no longer control what other ministries are up to.21 When the boundaries between law and non-law become porous, and when many different authorities (different ministries, but also water boards and other administrative units, and cities) and even private actors can be said to somehow be involved in international law, the concept of a “national practice” becomes unwieldy, and reporting on it will always be incomplete and vulnerable to criticism about what ought to have been included or excluded.

17 Briefly,

the Finnish Yearbook tried to take over, at least with respect to Finnish practice, but this too proved short-lived without some institutional backing. 18 I wrote several pieces on treaty reservations for instance, which clearly benefitted from the easy availability of materials. See, e.g., Klabbers 2000. 19 For an excellent anthropological account of one of the Nordic foreign ministries (though not focusing on the international law section), see Neumann 2012. 20 Aust 1986. 21 Klabbers 2020.

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5.5 Dispensability During my formative years, academic research was both easy to find and hard to find. It was easy in the sense that a decent library had an x-amount of journal and yearbook subscriptions, and if its subscriptions covered a reasonable amount of generalist publications as well as specialist outlets on particular topics, one could always find something to work with: the flow of possibly relevant earlier work was manageable, and while one would know that there existed other journals and other yearbooks as well, in addition to those held by the local university library, it somehow only rarely felt really, really important to have a look at some piece in some obscure or unavailable periodical. And of course, doing my graduate and doctoral work in the Netherlands, I was extremely fortunate: if it actually seemed, however rarely, that a particular article in a particular journal was indispensable yet unavailable in the Amsterdam international law library, I could simply take the train to The Hague and visit the Peace Palace Library, which had a far larger collection of journals—something far less easy to do when one is based in, say, Turku, or Palermo—let alone outside Europe. And while I did so occasionally, I did not do so regularly; it only happened if I had become convinced that this particular piece, unavailable in Amsterdam, was absolutely indispensable. And that impression would usually only emerge upon seeing it referred to or discussed in works by others. In this sense, the process was rather self-referential: an article became important because others referred to it, and I sometimes had to reach the conclusion (upon finally reading it) that actually it was not very good, or not very helpful—and that was educational in its own right: one should not always trust what the herd says. None of this is applicable anymore, except perhaps for that conclusion: articles become important because others say they are important. But it is no longer so difficult to find things: I have electronic access to journals that I never knew existed, that I have never held in my hands, that I have never seen in hard copy. And the number of journals has multiplied over the last three decades or so. I do not remember from my student days that there were student-run journals in the Netherlands; nowadays, without checking, I can identify at least a handful, with law faculties in Utrecht, Rotterdam, Tilburg, Groningen, and Free University of Amsterdam all publishing their own law review, however irregularly perhaps. And while I am writing this (quite literally), a leading publishing house announces the launch of a new law journal dedicated to international human rights law: the European Convention on Human Rights Law Review.22 This adds to a landscape that already comprises a number of specialized human rights journals, and where the generalist journals too publish articles on human rights developments with some regularity. The promise is clear: no stone will be left unturned, no practice will be left unstudied, no activity will be left unscrutinized. Whether that promise will be met is a different issue altogether. It can safely be predicted that the new journal will comment on case-law developments, and will comment on highly publicized public statements by some of the parties to the 22 https://brill.com/view/journals/eclr/eclr-overview.xml

(visited 28 October 2019).

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European Convention. It might publish socio-legal work on the composition of the Court, and whether or not the nationality of a judge is reflected in his or her voting behaviour. It may even come to publish work that is critical of the European Court, a critique of a particular decision or set of decisions. But it is unlikely to publish much that is not already done elsewhere, and is done just as competently elsewhere, in the Human Rights Quarterly, or in the variety of journals with near-identical titles: the Human Rights Review, the Human Rights Law Review, or the International Human Rights Law Review, or any other of the many journals already dedicated to human rights law. This is precisely the reason why three decades ago, the relatively limited supply of research work available to me did not seem to affect my work too much: much of what is published tends to be repetitive, both in terms of topic and in terms of analysis. The newly announced journals promise to add yet more of the same, but is unlikely to do much more. And indeed, it is unclear what that “more” could even be. Given the increase in the number of journals, and the emergence of blogs (where self-aware authors can—and do—serialize or advertise their own articles) and tweets, the yearbook is bound to take on a different role. If in the 1920s and 1930s it was still thinkable to publish a case-comment in a yearbook (a case in point being the analysis, under pseudonym, of the Oscar Chinn case in the British Yearbook),23 such is no longer thinkable: time just moves too quickly. Still, serving the global community, there is a role for yearbooks as filtering devices. This is not unlike what they used to do (filtering judicial practice, filtering state practice, filtering literature), and it is clear that the demand for such work has only increased. The marketplace of international legal scholarship (and other academic disciplines, for that matter) is bombarded by Oxford Handbooks, Cambridge Companions, Research Handbooks, Very Short Introductions, Advanced Introductions, and much, much else besides. Oxford University Press publishes bibliographies on-line; publishes International Law in Domestic Courts on-line, publishes an International Organizations database, as well as the large Max Planck Encyclopedia of Public International Law, soon to be accompanied by a Max Planck Encyclopedia of Comparative Constitutional Law. Cambridge University Press is less active here (it may have missed the boat), but still publishes the International Law Reports. What these publications have in common is their filtering function: they teach novice and experienced scholar alike what is relevant and what is not; what is worth looking at and what is not. Moreover, the role of both fostering and manifesting a particular domestic community of international lawyers remains of some relevance. If often producing a yearbook is the work of obsessive individuals,24 it could also be produced by a dedicated 23 O

1935. I had somehow surmised that “O” was a pseudonym for Hersch Lauterpacht, but this is probably untenable: he published other short case notes as “H.L.”. 24 The Czech Yearbook of International Law is inextricably linked to Alexander J. Belohlávek and Nadezda Rozehnalova, e.g., as is the Czech (and Central European) Yearbook of Arbitration. Intriguingly, there is a competing publication, the Czech Yearbook of Public and Private International Law, just as inextricably linked to Pavel Sturma.

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national institution, with the T.M.C. Asser Institute in the Netherlands, so wonderfully re-invigorated in recent years, as an inspirational model. The Chinese have already understood this of course, with the Chinese Journal of International Law doing an excellent job as a forum for official policy, and nurturing and reflecting a Chinese approach to international law.25 In a world where it is no longer assumed that international law is actually international,26 a yearbook might be the ideal venue where a well-funded research community (whether institutionalized or not) could concentrate, expand and use its epistemic authority. And epistemic authority is quite possibly the most relevant form of authority to begin with. Sadly though, the current fascination for rankings, scientific breakthroughs, and paradigm shifts (as if…), entails that the yearbook is bound to remain a retrograde venue, tolerated more than stimulated. In terms of the quality of the research published in most yearbooks this may be justifiable, but as so often, the measurable tells only half the story. I would have been a different, and quite possibly considerably worse, international law academic without the yearbooks; they perform an introductory role to the discipline in ways that other publications will find difficult to emulate. My rites of passage came from yearbooks, more so than from more heralded publications. Working with the state practice section of the Netherlands Yearbook or the British Yearbook taught me more than the average Google search can teach, and in ways that can hardly be replaced by reading an extra textbook or two or an additional slew of journal articles. The great Michael Oakeshott once suggested in full Aristotelian mode that education is best done one-on-one, with the pupil sitting beside the master and learning by doing: “… practical knowledge can neither be taught nor learned, but only imparted and acquired. It exists only in practice … [and] … can be acquired only by continuous contact with one who is perpetually practicing it.”27 That is probably no longer feasible, but yearbooks used to be a decent substitute, helping to initiate the novice international lawyer to become a more competent international lawyer, and doing so by opening up the practice of states which, on some conceptions, remains the basis of international law.28 There are obvious drawbacks of course: since any selection of materials is selective, a comprehensive overview is always filtered by the gate-keeper, and by making state practice available, states could exercise influence over the formation of new rules and the proper interpretation of others in ways that were not available to states too poor or disorganized to publish their state practice. As manifestations of epistemic authority, there is good reason to be suspicious of the yearbook, but this too is a lesson that can be learned by actually using the yearbook. 25 The Chinese reservoirs are so large that enough material can be generated to fill a journal four times per year, as is the case with the American Journal of International Law, which has done much the same since 1906. There is no need for a yearbook. Incidentally, the Chinese Journal also seems happy to serve as an outlet for none-too-subtle pieces highly critical of the US government: see Talmon 2019. 26 Roberts 2017. 27 Oakeshott 1962, at 11. 28 Klabbers 2018.

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References Aust A (1986) The Theory and Practice of Informal International Agreements International and Comparative Law Quarterly 35:787–812. Evans M (ed) (2018) International Law, 5th edn. Oxford University Press, Oxford. Horbach N, Lefeber R, Ribbelink O (eds) (2007) Handboek Internationaal Recht. T.M.C. Asser Press, The Hague. Jennings Sir R (1981) What is International Law, and How Can We Tell It When We See It? Schweizerisches Jahrbuch für Internationales Recht 37:59–88. Klabbers J (2000) Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties. Nordic Journal of International Law 69:179–193. Klabbers (2018) On Epistemic Universalism and the Melancholy of International Law. European Journal of International Law 29:1057–1069. Klabbers J (2020) Governance by Academics: The Invention of Memoranda of Understanding. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 80:35–72. MacDonald R St J, Johnstone DM (1983) The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory. Martinus Nijhoff, The Hague. Neumann I B (2012) At Home with the Diplomats: Inside a European Foreign Ministry. Cornell University Press, Ithaca NY. O (1935) The Chinn Case. British Yearbook of International Law 16:612–164. Oakeshott M (1962) Rationalism in Politics. In: Oakeshott M Rationalism in Politics and Other Essays. Methuen, London, 1–36. Roberts A (2017) Is International Law International? Oxford University Press Oxford. Simma B (1985) Self-Contained Regimes. Netherlands Yearbook of International Law 16:112–136. Sörensen M (ed) (1968) Manual of Public International Law. St. Martin’s Press, New York. Talmon S (2019) The United States under President Trump: Gravedigger of International Law. Chinese Journal of International Law 18:645–668. Zuleeg M (1977) Vertragskonkurrenz im Völkerrecht. Teil 1: Verträge zwischen souveränen Staaten. German Yearbook of International Law 20:246–276.

Part II

Contributions by Yearbooks of International Law

Chapter 6

African Yearbook of International Law: A Quarter-Century of Contribution to the Development and Dissemination of International Law Fatsah Ouguergouz

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Historical Background of the African Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Function and Main Features of the African Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Editorial Team of the African Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Structure and Content of the African Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Main Challenges Faced by the African Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The African Yearbook is one of the only two existing public international law publication issued annually on a continent-wide scale. The idea of such a yearbook was launched in 1969 but did not materialize until 1993. The Yearbook, published in English and French, provides an intellectual forum whereby issues of international law as they apply to Africa, as well as Africa’s contribution to the progressive development of international law, are systematically analyzed. The Yearbook is also meant to bring its contribution to the consolidation of Statehood and rule of law in Africa. Over the years, the Yearbook has highlighted the role of African States in the revision of certain traditional rules of international law and their contribution in the development of new rules. It has also endeavored to show the role that international law can play in ensuring a greater protection of human rights and the peaceful resolution of conflicts in Africa. The Yearbook is incidentally providing a forum for young African international lawyers who are not offered the opportunity to publish their work in other periodicals. Between 1993 and 2019, 22 volumes of the Yearbook have been published, for a total of 292 contributions altogether. The Yearbook has become a widely-read and a highly respectable publication known Fatsah Ouguergouz is former Associate Editor of the African Yearbook and Guest Editor of Volume 23 (2017). F. Ouguergouz (B) Arusha, Tanzania e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_6

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to reflect the highest standards of scholarship. despite the lack of institutional and financial support. It is still looking for a solid and sustainable basis. Keywords International Law · African Association of International Law · African Union · Geographical representation

6.1 Introduction First and foremost, I would like to thank and congratulate the Editorial Board of the Netherlands Yearbook of International Law for having organized this symposium on the occasion of the 50th Anniversary of their periodical, which is one of the most ancient international law yearbooks published on a national level.1 This symposium is all the more welcome as it is organized in the wake of the Second World Meeting of Societies for International Law held in The Hague on 2 and 3 September 2019. The close link between international law publications and international law societies is sufficiently well known that it is not necessary to dwell on it here. Yet, as I will show, this link is particularly clear as regards the African Yearbook. I would like to underscore, first of all, that together with the Asian Yearbook of International Law2 published under the auspices of the Foundation for the Development of International Law in Asia,3 the African Yearbook of International Law4 is so far the only existing public international law yearbook published on a continent-wide scale. There are of course other international law periodicals of a general and continental scope, but they are published on a quarterly basis: the European Journal of International Law,5 the Revista Latinoamericana de Derecho Internacional6 and the African Journal of International and Comparative Law.7 The Anuario HispanoLuso-Americano de Derecho Internacional,8 published in Spain on a bi-annual basis, must be categorized separately because of its “transcontinental” nature. On the African continent, alongside the African Yearbook of International Law and the African Journal of International and Comparative Law, there are a few rare

1 For

a historical survey, see de la Rasilla 2018, pp. 137–168. https://www.cambridge.org/core/journals/asian-journal-of-international-law/volume/A8E DC3DBB67713C5D4701FB12CF0AE3B. 3 See https://www.dilafoundation.org/about-the-asian-yearbook-of-international-law.html. 4 See https://www.afil-fadi.org/african-yearbook-of-international-law-annuaire-africain-de-droitinternational-volume-11-2003. 5 See https://www.ejil.org. 6 See https://www.revistaladi.com.ar/publicar/. 7 See https://www.euppublishing.com/loi/ajicl; General Editors: Professor Rachel Murray, Dr Kofi Oteng Kufuor. The Journal was initially published by the African Society of International and Comparative Law; since 2005, it is published by Edinburgh University Press. 8 See https://ihladi.net/anuario/. 2 See

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national periodicals, i.e. the South African Yearbook of International Law (1975),9 the Ethiopian Yearbook of International Law (2016),10 and the Nigerian Yearbook of International Law (2017).11 The role of the African Yearbook and other yearbooks as important vectors of dissemination of international law has recently been acknowledged in a survey by the Secretariat of the United Nations, issued as a memorandum on ways and means for making the evidence of customary international law more readily available.12 This memorandum has also underlined that there is a discrepancy in the availability of resources specifically devoted to international law and that this discrepancy “appears to be regional in nature”: “while specialized resources are present in most States in the Western European and Others Group, and in a number of States in the Latin American and Caribbean Group and in the Eastern European Group, they are much rarer in States in the African and Asia–Pacific Groups”. The memorandum has indeed underscored that out of 194 bibliographical resources relating specifically to international law, 102 resources relate to 23 States (out of 29) in the Western European and Others Group, while only 8 resources relate to 5 States (out of 54) in the African Group.13 The United Nations General Assembly has taken note of this memorandum in its Resolution 73/203 adopted on 20 December 2018 by consensus and entitled “Identification of Customary International Law”. More importantly, the general Assembly also “acknowledge[d] the utility of published digests and surveys of practice relating to international law, including those that make legislative, executive and judicial practice widely available, and encourage[d] States to make every effort to support existing publications and libraries specialized in international law”. This only highlights the importance of the role of the Yearbook in the dissemination and progressive development of international law.

6.2 Historical Background of the African Yearbook The idea of an African yearly publication in the field of international law was first articulated in 1969 by Mohammed Bedjaoui, a former President of the International Court of Justice, who was then Minister of Justice of Algeria and Member of the International Law Commission. The African legal community then felt that while 9 https://journals.co.za/content/journal/jlc_sayil. 10 https://www.springer.com/series/15093. 11 See

https://www.springer.com/gp/book/9783319714752; formerly, the Nigerian Annual of International Law, see https://www.worldcat.org/title/nigerian-annual-of-international-law/oclc/ 4966087. 12 Identification of customary international law—Ways and means for making the evidence of customary international law more readily available- Memorandum by the Secretariat, UN Doc. A/CN.4/710/Rev.1, 14 February 2019, Annex I, p. 128. Available at: https://legal.un.org/docs/index. asp?symbol=A/CN.4/710/Rev.1&referer=http://legal.un.org/cod/&Lang=E 13 Ibid., pp. 29–30.

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Nations of Africa, like others in the world, have exerted a significant influence on the development of international law and the latter had a profound impact on their own evolution, they did not, unlike other nations, dispose of an intellectual forum whereby issues of international law as they applied to Africa, as well as Africa’s contribution to the progressive development of international law, were systematically analyzed and scientifically dissected. Mohammed Bedjaoui therefore submitted a plan to the Organization of African Unity, the pan-African organization established in 1963 (six years earlier), for the publication of an African Yearbook of International Law.14 The Organization of African Unity welcomed and accepted his initiative, but it did not implement it. When the African Association of International Law,15 which is the very first continental international law society ever established, was launched in Lusaka (Zambia) on 28 September 1986, the 70 founding members decided to give life to the Yearbook project. These founding members included Georges Abi-Saab, Mohammed Bedjaoui, Boutros Boutros Ghali, Taslim O. Elias, Keba Mbaye, Abdul Koroma, Ahmed Mahiou, Abdulqawi Yusuf: that is, a future Secretary-General of the United Nations, three presidents of the International Court of Justice and three of the only four Africans16 who have so far given the general course in public international law at The Hague Academy.17 The association appointed Mohammed Bedjaoui, who had in the meantime become a Judge at the International Court of Justice, as Editor-inChief of the Yearbook and elected an Editorial Advisory Board to assist him in his mission. Judge Bedjaoui made significant progress in the preparation for the publication of the first volume of the Yearbook and signed a contract with Kluwer Academic Publishers B.V. for the publication of the Yearbook. However, on 9 January 1991, he decided to resign from his position mainly due to lack of time and paucity of financial and human resources at his disposal. In a letter to Dr. Tunguru Huaraka (Namibia), the then Secretary-General of the African Association of International Law,18 Judge Bedjaoui wrote: 14 See Organisation de l’Unité Africaine, Treizième session ordinaire du Conseil des Ministres, Projet de création de l’Annuaire Africain de Droit International, Doc. CM/290, Addis-Abeba, Ethiopia, 27 August/6 September 1969. 15 The Statutes of the African Association of International Law were published in the very first volume of the African Yearbook, see Volume 1 (1993), pp. 327–330; the Statutes are also available at: https://www.aail-aadi.org. 16 Georges Abi-Saab (Egypt), Mohammed Bedjaoui (Algeria) and Ahmed Mahiou (Algeria). The fourth African who gave the general course is Mohamed Bennouna (Morocco). 17 See list at https://docs.wixstatic.com/ugd/ec5c06_7242a6830e3506b7c25db19f137d4c1b.pdf. 18 The African Association of International Law was then composed as follows: President: Taslim O. Elias (Nigeria), First Vice-President: Keba Mbaye (Senegal), Vice-Presidents: Kader Asmal (South Africa), Mikuin Leliel Balanda (Zaire), Madjid Benchikh (Algeria), Blondin Beye (Mali) Teshome G.M. Bokan (Ethiopia), Mark D. Bomani (Tanzania), Abdul G. Koroma (Sierra Leone), Muna Ndulo (Zambia), Secretary-General: Tunguru Huaraka (Namibia), Assistant Secretary-General: Bonaya Godana (Kenya), Patron: Kenneth Kaunda, former President of the Republic of Zambia, Honorary Life Member: Nelson Mandela (South Africa).

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[c]’est avec une grande tristesse que je renonce, cette fois-ci définitivement, à lancer l’Annuaire africain de droit international, faute de moyens matériels, de locaux, de secrétariat et de temps. J’abandonne ainsi un vieux rêve que je caressais depuis longtemps.

In August 1991, after consultation with the other members of the Editorial Board of the Yearbook, Dr. Huaraka approached Dr. Abdulqawi Yusuf (Somalia), and asked him if he was willing to assume the position of Editor-in-Chief and to take over the responsibility of launching the first volume of the Yearbook. Dr. Yusuf accepted the challenge, hoping that an African university would soon take over the task of continuing the publication of the Yearbook after the first volume. Dr. Yusuf started to work on the first volume of the Yearbook without any available financial resources. He was at the time the representative and head of the New York Office of UNCTAD, and found some support in the persons of Dr. Fatsah Ouguergouz (Algeria) and Dr. Mpazi Sinjela (Zambia), who were both working at the Office of Legal Affairs of the United Nations.19 Dr. Yusuf succeeded in bringing together nine authors and, with the assistance of his two young colleagues, who would later become Associate Editors of the Yearbook, produced the first volume of the Yearbook which was devoted to the freshly acquired independence of Namibia,20 the development of the law of the sea,21 the emerging concerns of African States for the environment22 and the newly-adopted Treaty Establishing the African Economic Community.23 One can already recognize some of the issues dear to the African States: decolonization and economic development, which, together with peace and security, will continue to be the focus of the Yearbook. This first and inaugural volume of the Yearbook (numbering 341 pages in total) was published in 1993. This was in the early years of the United Nations Decade for International Law (1990–1999), one of the main objectives of which was “to encourage the teaching, study, dissemination and wider appreciation of international law”.24

6.3 Function and Main Features of the African Yearbook One of the purposes of the African Association of International Law, under the auspices of which the African Yearbook was initially published, is

19 Their

contribution was formally acknowledged from Volume 3 (1995) onwards in the Yearbook. 1993; Sinjela 1993; Jituboh 1993 Ntchatcho 1993. 21 Belhaj 1993; Djiena Wembou 1993. 22 Adede 1993; Ouguergouz 1993. 23 Senghor 1993. 24 General Assembly Resolution 44/23, United Nations Decade of International Law, 17 November 1989, Paragraph 2 (d). 20 Abi-Saab

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F. Ouguergouz to foster the development and dissemination of African perspectives and practices of international law, in particular, through the publication of an African Yearbook of International Law.25

The main function of the African Yearbook is indeed to provide an intellectual forum whereby issues of international law as they apply to Africa, as well as Africa’s contribution to the progressive development of international law, would be systematically analyzed and scientifically dissected. As highlighted by its General Editor, Dr. Yusuf, in the foreword to the first volume of the Yearbook, the latter was meant to contribute to the promotion, acceptance of and respect for the principles of international law, as well as to the encouragement of the teaching, study, dissemination and wider appreciation of international law in Africa [and] to present the African perspectives and practices of international law in a systematic and scientific manner in order to contribute to the broader development of international law”.26

Moreover, according to Dr. Yusuf, a clear articulation of Africa’s views on the various aspects of international law based on the present realities of the Continent as well as on Africa’s civilization, culture, philosophy and history will undoubtedly contribute to a better understanding among nations.27

Published shortly in the wake of the demise of the one-party system and the beginning of the democratization process in a large number of African countries, the African Yearbook was also meant to bring its contribution to the consolidation of Statehood and rule of law in the African continent by “examining the tensions underlying the State in Africa”, “by shedding more light on the causes of the fragility of African States institutions so as to facilitate the identification of appropriate remedies” and by addressing “the tension and inter-relationship among issues such as territorial integrity, self-determination, ethnic diversity and nation-building”.28 Over the years, the Yearbook has thus highlighted the role of African States in the revision of certain traditional rules of international law and their contribution in the development of new rules in areas such as decolonization, the law of treaties, the law of the sea, or human rights. The Yearbook has also endeavoured to show the vital role that international law, and the many African conventions in particular, can play in ensuring a greater protection of human rights and the peaceful resolution of conflicts in the African continent. The Yearbook has also persistently spread the message that the establishment of institutions, such as the African Economic Community, the African Union or international courts and tribunals, reflects a new commitment of African States to the promotion of democratic change and economic development and for creating an environment conducive to the rule of law throughout the continent. The nature and magnitude of the abovementioned objectives of the African Yearbook are in line with its continental scope. The bilingualism (English/French) of the 25 Article

3 (a) of the Statutes. 1 (1993), p. i.

26 Volume 27 Ibid. 28 Ibid,

p. xii.

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Yearbook is also intended to disseminate as widely as possible international law in Africa and to involve as many people as possible in the achievement of its objectives. The editorial team has thus endeavored to always maintain a balance between the English and French languages. One of the functions of the Yearbook was incidentally to provide a forum for young African international lawyers who were never offered the opportunity to publish their work in other periodicals. The Yearbook has for example enabled many African scholars to embark on a university career by facilitating their participation in the “agrégation” competition organised by the Conseil Africain et Malgache pour l’Enseignement Supérieur (CAMES).29

6.4 Editorial Team of the African Yearbook The very first Editorial Advisory Board of the Yearbook was composed as follows: Professor Georges Abi-Saab (Egypt), Dr. Andronico O. Adede (Kenya), Professor G.K.A. Afosu-Amaah (Ghana), Professor R.H.F. Austin (Zimbabwe), Judge Mohammed Bedjaoui (Algeria), Professor Bipoun Woum (Cameroon), Mr. R.M.A. Chongwe (Zambia), Professor Robert Dossou (Benin), Professor Aziz Hasbi (Morocco), Dr. Yilma Makonnen (Ethiopia), Professor N. Makoundzi-Woko (Congo), Professor E.I. Nwogugu (Nigeria), Professor Ebere Osieke (Nigeria), Professor Nasila Rembe (Tanzania), Professor Albie Sachs (Mozambique), Professor Akolda Man Tier (Sudan) and Professor Francis V. Wodie (Côte d’Ivoire). This composition remained unchanged until the publication of the ninth volume of the Yearbook (2001). From volume 10 (2002) onwards, the Yearbook was published under the auspices of the African Foundation of International Law,30 incorporated and headquartered in The Hague.31 The objective of this foundation is in particular “to promote study, research and analysis on international legal matters of particular interest and relevance to African countries and to foster the teaching and dissemination of international law in Africa”.32 On the occasion of the publication of this tenth volume (2002), the composition of the Editorial Advisory Board has been reduced from seventeen to ten members: Professor Georges Abi-Saab (Egypt), Dr. Andronico O. Adede (Kenya), Judge Mohammed Bedjaoui (Algeria), Professor Sayeman Bula-Bula (Democratic Republic of Congo), Professor Christof Heyns (South Africa), Professor Maurice Kamto (Cameroon), Dr. Edward Kwakwa (Ghana), Professor Chris Maina Peter 29 https://www.lecames.org/programmes/agreg-sjpeg/. 30 On

the institutional evolution of the African Yearbook, see the editorial by Yusuf 2002, at 3–9. at the Chamber of Commerce of The Hague under the following number: 27264619. 32 The Governing Board of the African Foundation for International Law was initially composed as follows: Georges Abi-Saab (Egypt), Edward Kwakwa (Ghana), Tiyanjana Maluwa (Malawi), Fatsah Ouguergouz (Algeria), Mpazi Sinjela (Zambia), Abdulqawi A. Yusuf (Somalia). For the current composition of the Board, see https://www.afil-fadi.org. 31 Registered

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(Tanzania), Professor Tiyanjana Maluwa (Malawi) and Professor Muna Ndulo (Zambia). As from the publication of this volume 10 (2002), the Yearbook has been provided with the support of an editorial assistant in the person of Professor Roland Adjovi (Benin). Since most of the editorial efforts were resting on the shoulders of the General Editor and the Associate Editors, and with the aim of revitalizing the editorial process, it was later decided to create an Editorial Committee alongside the existing Editorial Advisory Board and to slightly change the composition of the latter. The Editorial Committee established in 2010 was composed of Roland Adjovi (Benin), Mouloud Boumghar (Algeria), Jackson Maogoto (Kenya) and Djacoba L. Tehindrazanarivelo (Madagascar). The new General Editor, Professor Gerard Niyungeko, is in the process of recomposing the Editorial Committee; the new Committee is expected to be established in the first half of the year 2020. The Editorial Advisory Board, for its part, is currently composed as follows: Professor Georges Abi-Saab (Egypt), Judge Mohammed Bedjaoui (Algeria), Professor Sayeman Bula-Bula (Democratic Republic of Congo), Judge Robert Dossou (Benin), Professor Christof Heyns (South Africa), Dr. Edward Kwakwa (Ghana), Professor Chris Maina Peter (Tanzania), Professor Tiyanjana Maluwa (Malawi) and Professor Muna Ndulo (Zambia). As can be seen, both the Editorial Committee and the Editorial Advisory Board are composed exclusively of Africans and essentially from the academic world. One can also note that, while the geographical representation of all regions of the African continent has been relatively assured since the creation of the Yearbook, the same cannot be said for gender representation. Efforts were however made over the past 15 years to ensure this gender balance but they have not proved successful so far.

6.5 Structure and Content of the African Yearbook The African Yearbook is generally structured as follows: • • • • • • •

articles relating to a special theme of particular relevance to the African continent, articles on general issues of international law, notes and comments, book reviews, State and judicial practice relating to international law, documentary section (mainly African Union resolutions and African conventions), index.

The general articles were notably devoted to internal conflicts, humanitarian law, human rights, international criminal law, law of the sea, economic development and cooperation, environmental protection, peaceful settlement of disputes, developments in African regional organizations or within the framework of the United Nations.

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The purpose of the special themes is to provide an in-depth examination of certain international law issues of particular interest to African States. Since its inception, the Yearbook has thus focused on the following 18 topics: • • • • • • • • • • • • • • • •

•

“Namibia: the Independence Process”;33 “Nation-Building, Internal Conflicts and Humanitarian Intervention in Africa”;34 “Human Rights and Development in Africa”;35 “Civil Conflicts in Africa”;36 “Regional Economic Integration in Africa”;37 “Refugees and Displaced Persons in Africa”;38 “The African Union”;39 “Africa and the International Trading System”;40 “Reflections on Some Forms of Statehood in Africa”;41 “International Criminal Law and Jurisdictions in Africa”;42 “Realizing Economic and Social Rights in Africa: Innovations, Challenges, and prospects”;43 “International Migration in Africa”;44 “International Criminal Justice in Africa”;45 “Africa and International Law”;46 Proceedings of the “Maputo Conference: Revitalizing the African Association of International Law” (5–6 October 2012);47 Proceedings of the “Colloquium on Africa and the Future of International Law, in Honour of Professor Georges Abi-Saab’s Eightieth Birthday (Geneva 31 May 2013)”, and Proceedings of the “Trento Workshop on Africa 2013: Was there something missed in the decolonization process ?”.“Selected Papers on International Law and Development in Africa presented at the 2015 AAIL Conference Libreville (Gabon);48 and “Canadian-Nigerian International Human Rights Engagements (1999–2011)”.49

33 Volume

1 (1993). 2 (1994). 35 Volume 3 (1995). 36 Part I, Volume 4 (1996) and Part II, Volume 5 (1997). 37 Part I, Volume 6 (1998) and Part II, Volume 7 (1999). 38 Volume 8 (2000). 39 Volume 9 (2001) and Volume 11 (2003). 40 Volume 12 (2004). 41 Volume 13 (2005). 42 Volume 14 (2006). 43 Volume 15 (2007). 44 Volume 16 (2008). 45 Volume 17 (2009). 46 Volume 18 (2010). 47 Volume 19 (2011/2012). 48 Volume 21 (2015). 49 Volume 22 (2016). 34 Volume

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For volume 23 (2017) of the African Yearbook, which is under preparation, the chosen special theme is “African States and Investment Law and Arbitration: Challenges and Opportunities” The purpose of this special theme is to examine international investment law in the making on the African continent and to see to what extent it is likely to reduce or even eliminate the existing imbalance in favour of investors, both at the level of the applicable law, by taking into consideration certain fundamental interests of African States, and at the level of dispute settlement mechanisms generally characterised by asymmetry in favour of investors. As of Volume 12 (2004), the editorial team has introduced the practice of inviting a Guest Editor for the Special Theme to whom the responsibility for identifying potential authors and editing their contributions is entrusted. The following scholars have served as Guest Editors: • • • • • • •

Edward Kwakwa;50 Roland Adjovi;51 Obiora Chinedu Okafor;52 Ibrahim Awad;53 Makane Mbengue and Ignacio de la Rasilla del Moral;54 Robert Dossou;55 and Fatsah Ouguergouz.56

One topic in particular has attracted considerable interest: the African Union. This question has indeed been the focus of two volumes57 which prompted the subsequent publication of a book, in both English58 and French,59 on the occasion of the 50th anniversary of the pan-African organization. With regard to “Notes and Comments”, eight volumes published in the early years of the African Yearbook contain a subsection entitled “The United Nations and Internal/International Conflicts in Africa: A Documentary Survey”.60 In the Yearbook’s section on State and judicial practice,

50 Volume

12 (2004): “Africa and the International Trading System”. 14 (2006): “International Criminal Law and Jurisdictions in Africa”; Volume 17 (2009): “International Criminal Justice in Africa”. 52 Volume 15 (2007): “Realizing Economic and Social Rights in Africa: Innovations, Challenges, and prospects”; Volume 22 (2016): “Canadian-Nigerian International Human Rights Engagements (1999–2011)”. 53 Volume 16 (2008): “International Migration in Africa”. 54 Volume 18 (2010): “Africa and International Law”. 55 Volume 21 (2015): “Selected Papers on International Law and Development in Africa presented at the 2015 AAIL Conference Libreville (Gabon)”. 56 Volume 23 (2017): “African States and Investment Law and Arbitration: Challenges and Opportunities” (upcoming). 57 Volume 9 (2001) and Volume 11 (2003). 58 Yusuf and Ouguergouz 2012. 59 Yusuf and Ouguergouz 2013. 60 Volumes 2 (1994), 3 (1995), 4 (1996), 5 (1997), 6 (1998), 7 (1999), 8 (2000) and 9 (2001). 51 Volume

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the case-law of the International Court of Justice and International Criminal Tribunal for Rwanda has attracted particular attention.61 Between 1993 and 2019, 22 volumes of the Yearbook have been published, for a total of 292 contributions altogether: 72 articles on general issues of international law, 137 articles relating to a special theme and 83 notes and comments. 189 of these contributions were written in English and 103 in French. These 292 contributions were authored by a total of 325 persons, some articles and notes being signed by several people. During the same period, 46 book reviews have also been published. The size of the volumes has varied from 29162 to 776 pages.63 A few additional statistics are of particular interest, such as the gender and geographical origin of the contributors. No women contributed to the first three volumes. This figure rose to two in Volume 4 (1996) and then varied between one (Volume 5, 1997) and five (Volume 15, 2007) female authors per volume. The breakdown by gender is as follows: out of 325 contributors, 277 are male and 48 are female. In volume 1 (1993) of the Yearbook, contributors were exclusively of African origin. The African Yearbook then gradually opened up to contributors of non-African origin writing on general issues not necessarily of special interest to Africa; James Crawford and Philippe Sands, for example, wrote on the legal aspects of a prospective convention on nuclear weapons (Volume 6, 1998). So far, 232 contributors were of African origin and 93 from other parts of the world; the ratio is thus approximately one contributor of nonAfrican origin (29%) to two contributors of African origin (71%), which testifies to the opening of the African Yearbook to a wider pool of authors from all over the world.

6.6 Main Challenges Faced by the African Yearbook Since its inception in 1993, the African Yearbook has gradually managed to rise to the level of other quality periodicals in the field of international law, despite the lack of institutional and financial support. The Yearbook has become a widely-read and a highly respectable publication known to reflect the highest standards of scholarship. Twenty-six years after its launching, the African Yearbook is however still looking for a solid and sustainable basis. It currently faces four main challenges: • lack of financial and human resources; • headquarters; • more visibility and further development of good quality contributions from young African scholars; and • dissemination of the Yearbook in Africa. 61 See

Volumes 8 (2000), 9 (2001), 10 (2002), 11 (2003), 12 (2004), 13 (2005), 14 (2006) and 17 (2009). 62 Volume 22 (2016). 63 Volume 10 (2002).

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Lack of financial and human resources. Since its inception in 1993, the African Yearbook has been published with no financial assistance and very little human support. It was carried by a couple of dedicated people. This has the following consequences: two volumes have so far been published combining two years: Volume 19 (2011/2012) and Volume 20 (2013–2014). Volume 10 (2002) has been published with no special theme. Furthermore, there is sometimes a certain delay in publication of the volumes of the Yearbook: for example, Volume 23 (2017) is currently under preparation and will not be published until late 2020. Headquarters. As stated by the General Editor in the very first volume of the Yearbook, it is still “our ardent desire to find a permanent home for the Yearbook in Africa and to repatriate it”.64 A first step has been taken in this direction early 2018 with the appointment as General Editor of Dr. Gerard Niyungeko, Professor at the Law School of Bujumbura (Burundi) and former President of the African Court of Human and Peoples’ Rights. Visibility and further development of good quality contributions from young African scholars. It would also be desirable to enhance the visibility of the Yearbook: it is now provided with a website enabling it to reach a wider audience; calls for papers are posted on this website.65 A further objective of the Yearbook’s website will be to lay the foundations for an African e-Journal of International Law that will enable African scholars to establish an effective dialogue and exchange views on international legal issues of particular interest to Africa. This would give further impetus to the contribution of young African scholars to the Yearbook. Wider dissemination of the Yearbook in Africa. Since the hard copies of the African Yearbook are much too expensive for the libraries of the African continent (Universities, Ministries of Foreign Affairs etc.), it would further be desirable to disseminate more widely the African Yearbook in Africa: dissemination of an electronic version through the Global Online Access to Legal Information (GOALI) program66 launched in 2018 by the International Labour Organization with Brill as founding publisher, and promotion of a paper-back edition which would be affordable to African individual readers (e.g. scholars and practitioners). Finally, there is no doubt that a closer relationship between the Yearbook and the African Institute of International Law (AIIL), which is based in Arusha (Tanzania),67 would facilitate the repatriation of the Yearbook which could finally become one of the main research platforms of the Institute and could eventually be published under the auspices of the Institute itself, instead of the African Foundation for International Law.

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1 (1993), Foreword, p. xii. communications and contributions to the Yearbook can be addressed by Electronic Mail ([email protected]) or to the General Editor, African Yearbook of International Law, c/o BRILL, Martinus Nijhoff Publishers, P.O. Box 9000, 2300 PA Leiden, The Netherlands. 66 GOALI is a programme providing free or low-cost online access to legal research and training in the developing world, see https://www.ilo.org/goali/lang--en/index.htm. 67 See https://aiil-iadi.org. 65 All

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References Abi-Saab G (1993) Namibia and International Law: An Overview. African Yearbook of International Law 1:3-11. Adede A O (1993) Towards New Approaches to Treaty-Making in the Field of Environment. African Yearbook of International Law 1:79-121. Belhaj F (1993) Réflexions sur la Convention des Nations Unies sur le Droit de la Mer, Dix ans après son Ouverture à la Signature: la Question du Régime d’Exploitation des Fonds Marins. African Yearbook of International Law 1:123-146. de la Rasilla I (2018) A Very Short History of International Law Journals (1869–2018). European Journal of International Law, Volume 29, Issue 1, February 2018, 29(1):137-168. Djiena Wembou M-C (1993) L’Afrique et le Droit International de la Mer. African Yearbook of International Law 1:147-179. Jituboh G (1993) Namibia: The Supervision and Control of the Electoral Process by UNTAG. African Yearbook of International Law 1:35-59. Ntchatcho H (1993) Political Amnesty and Repatriation of Refugees in Namibia. African Yearbook of International Law 1:61-78. Ouguergouz F (1993) The Bamako Convention on Hazardous Wastes: A New Step in the Development of the African International Environmental Law. African Yearbook of International Law 1:195-213. Senghor J (1993) The Treaty Establishing the African Economic Community: An Introductory Essay. African Yearbook of International Law 1:181-193. Sinjela M (1993) The Role of the United Nations Transition Assistance Group (UNTAG) in the Independence Process of Namibia. African Yearbook of International Law 1:13-34. Yusuf A (2002) Looking Forward: the Tenth Anniversary of the Yearbook. African Yearbook of International Law 10:3-9. Yusuf A, Ouguergouz F (eds) (2012) The African Union: Legal and Institutional Framework - A Manual on the Pan-African Organization. Martinus Nijhoff Publishers, Leiden/Boston. Yusuf A, Ouguergouz F (eds) (2013) L’Union africaine: cadre juridique et institutionnel – Manuel sur l’Organisation panafricaine. Editions Pedone, Paris.

Chapter 7

Australian Year Book of International Law Donald R. Rothwell

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 History of the AYBIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Development of the AYBIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Function and Impact of the AYBIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Future of the AYBIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Australian Year Book of International Law is the longest standing dedicated international law journal published in Australia. The Year Book was established in 1966 and over the intervening years has focussed on developments in international law which particularly impact upon Australia and the region. A feature of the Year Book is that it also includes an official entry on Australian Practice in International Law which is prepared by the Australian government. This entry has evolved to become the authoritative statement by the Australian Department of Foreign Affairs and Trade on Australian state practice in international law. The Year Book has in recent years also included dedicated Agora collections which provide commentary on significant developments on international law and Australia. Agoras have been published on the Australia-Timor Leste Timor Sea Conciliation, the Whaling Case in the International Court of Justice, the South China Sea Arbitration, and the Plain Paper Packaging litigation that arose in various forums. Keywords Australia · Year Book · International Law · State Practice

Donald R. Rothwell is Professor of International Law at ANU College of Law, ANU, Australia; Co-Editor and General Editor, Australian Year Book of International Law (2007–2019). D. R. Rothwell (B) Donald R. Rothwell, ANU College of Law, ANU, Canberra, Australia e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_7

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Table 7.1 Editors of the Australian Year Book of International Law (Source The author)

Editors of the Australian Year Book of International Law Philip Alston: 1992–1995

Andrew Byrnes: 2002–2006

Hilary Charlesworth: 1997–2006 D W Greig: 1968–1970; 1978–1999 Sarah Heathcote: 2013–2014

Pene Mathew: 2006–2007

Robert McCorquodale: 2000–2001

R H Miller: 1975

H B O’Connell: 1971

Donald R Rothwell: 2008-

Kim Rubenstein: 2007–2015

Imogen Saunders: 2018-

Esmé Shirlow: 2019–

J G Starke: 1965–1968

Matthew Zagor: 2014–2018

7.1 Introduction The Australian Year Book of International Law (AYBIL) is the longest running continuously published international law journal in Australia. The AYBIL emerged at a time when Australia was beginning to more actively assert itself in international affairs and find its own distinctive international law ‘voice’. Over the more than 50 years of its publication the AYBIL has been able to chronicle some of the distinctive contributions that Australia has made to the development of international law, discuss, critique and record Australia’s practices in international law, and provide a forum for academics, scholars, researchers, practitioners and students of international law to contribute to debates and analysis of current international legal issues with a particularly Australian perspective. The 2019 publication of volume 36 of the AYBIL was an important milestone as it represented a shift away from publication by the Australian National University to publication by Brill, one of the most respected publishers of international law texts, monographs, collections and journals.

7.2 History of the AYBIL The AYBIL was developed by Professor J.G. Starke, an eminent Professor of International Law (Table 7.1),1 who was the first Editor.2 Starke was able to have his proposal for the AYBIL endorsed by Butterworths, at that time a large legal publisher with a presence in Australia, New Zealand and the UK. Volume 1 was published in 1966, but was titled The Australian Year Book of International Law 1965 so as to reflect the coverage of Australian international law state practice, which in a further curiosity extended across 1964–1965. 1 See 2 For

e.g. Starke 1972; and Shearer 2006, i–v. a list of Editors, see Table 7.1.

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The publication of the AYBIL came at a time when international law as a discipline was gaining strength in the Australian academy and within the Australian government. Professor D.P. O’Connell (Adelaide) and Professor Julius Stone (Sydney) held prominent chairs in international law at the time. O’Connell had also edited the first volume of International Law in Australia3 in 1964, which was the first book that sought to comprehensively record Australia’s engagement with international law.4 The 1960s was also a time when Australia’s international legal personality was beginning to bloom following the events of World War II, Australia’s engagement with the development of the United Nations,5 and during the term of Australia’s first permanent Judge to the International Court of Justice, Sir Percy Spender (1958–1967). It reflected a time when Australia had emerged from under the umbrella of Britain, and while the Cold War had seen Australia forge an alliance with the United States, a more distinctive Australian foreign policy was developing which could also be seen in Australia’s position on international law matters. At the time, there were also no journal or law reviews published in Australia with a specific focus on international law. The major Australia law journals published at the time,6 only occasionally published works with an international law focus, while subsequent dedicated international law publications such as the ILA sponsored Australian International Law News first appeared in 1983,7 and the University of Melbourne sponsored Melbourne Journal of International Law first appeared in 2000. There was, therefore a clear need for a dedicated international law publication in Australia and the AYBIL sought to fill that gap. Starke described the first volume as follows: …its purpose is to present an annual survey of current problems of public and private international law, together with a digest of Australian practice in the field of public international law during the preceding twelve months. That such an annual survey should at last make an appearance is a measure of the increasing interest in both subjects exhibited here by Australian practitioners and scholars. The modest aim of the publishers and the editor is, above all, to be informative, and thereby to contribute to the extension of the world rule of law.8

Volume One opened with a contribution from Sir Percy Spender with an article on “The Office of the President of the International Court of Justice”.9 Other contributors included Sir Zelman Cowan,10 then Dean of the Faculty of Law, University of Melbourne and later Governor-General of Australia.11 Starke also wrote and edited a 3 O’Connell

1966. author was the co-editor of the 3rd edition of International Law in Australia: Rothwell and Crawford 2017. 5 See e.g. Devereux 2005. 6 Sydney Law Review, Australian Law Journal, Melbourne University Law Review, Adelaide Law Review. 7 Since renamed the Australian International Law Journal. 8 Starke 1966. 9 Spender 1966. 10 Cowan 1966, at 23–35. 11 From 1977–1982. 4 The

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section titled “Digest of Australian Practice in International Law, 1964–1965” which included short entries on Australian state practice in areas such as states and non-state entities, recognition, jurisdiction, law of the sea, international economic law, aliens, law of treaties, and the law of war and non-war armed conflicts.12 The 1966 volume, which appeared in 1968, was also under Starke’s editorship and broadly mirrored the mix of content found in volume 1. From volume 3, editorship of the AYBIL passed to D.W. Greig, then a Senior Lecturer in Law (Monash University), then to H.B. Connell (Monash University) for volume 4, R.H. Miller (Monash University) for volume 5, before reverting to D.W. Greig, who was now a Professor at the Australian National University. It was at this time that the initial publishing arrangements with Butterworths ceased and from volume 6 (1974–1975) onwards, the AYBIL became connected to the Australian National University where it remains. Greig remained editor until volume 19 (1998), and retains a connection with the AYBIL as Editor Emeritus.13

7.3 Development of the AYBIL Over the 36 volumes published between 1965 and 2019 the AYBIL has evolved consistent with the development of Australia’s practice and engagement in international law, and in recognition of important milestone events, including recent additions to the annual international law calendar in Australia. The two pillars of the AYBIL over its history have been first a mix of scholarly articles and reflections contributed by academic, government and private practitioners, and students, and second institutional contributions primarily from Australian government international law agencies and departments, but also from others who submit multi-authored reviews on the current state of international law in Australia. Each of these will be separately assessed. The first section, comprising scholarly articles and commentary has in recent years evolved to include the annual papers presented at two prominent international law lectures delivered in Australia: the Kirby Lecture sponsored by the Australian National University, and the Lauterpacht Lecture sponsored by the Department of Foreign Affairs and Trade. These lectures held in Canberra have become landmark events in the Australian international law calendar with the lecturers including prominent international lawyers from Australia and abroad.14 In addition to these lectures, the collected papers from a major international law conference or workshop have 12 Starke

1966, 159–168. Greig’s retirement from the Australian National University, two volumes of the AYBIL appeared as part of a festschrift; see Charlesworth and McCorquodale 1999, i–ii; Higgins 1999, iii– v and the contributions that appear in his honour in (1999) 20 Australian Year Book of International Law 1–339 and (2001) 21 Australian Year Book of International Law 1–158. 14 The Kirby lectures as published have been delivered by James Crawford (2008), Hilary Charlesworth (2009), Gareth Evans (2010), Louise Arbour (2011), Gillian Triggs (2013), Andrew Byrnes (2014), Gerry Simpson (2015), Justin Gleeson (2016), Bill Campbell (2017), Melissa Perry 13 Upon

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occasionally been published, usually when there has been an ANU connection with the relevant event.15 The Editors have also from time to time invited contributions to specially curated collections of papers on a significant theme that has especial significance for international law in Australia. Examples of such collections include those focussing on “The Howard Government and International Law”.16 The Editors have also over the past decade invited contributions to dedicated Agora collections, similar in style and format to that utilised by the American Journal of International Law, where there has been a focus on significant developments in international law for Australia arising either from a decision of an international court or tribunal, or from a treaty negotiation. Agora collections using that format have focussed on: • The 2014 ICJ decision in Whaling in the Australia (Volume 32);17 • The 2016 South China Sea Arbitration between the Philippines and China (Volume 34);18 and • The 2018 Timor Sea Treaty and associated conciliation between Australia and Timor-Leste (Volume 36);19 The Agora format has proven to be particularly helpful in shaping a collection of shorter articles and comments for publication in the AYBIL on matters of great substance for international law in Australia or within Australia’s region. An effort has been made with the Agora format to invite contributions from both legal and nonlegal scholars, either based in Australia or elsewhere, and from Australian government lawyers. This range of perspectives on the significance of international law for Australia has allowed for a mix of views to be presented so as to promote greater balance and diversity in the legal analysis and opinion.

(2018), and Sir Ken Keith (2019); the Lauterpacht lectures as published have been delivered by James Crawford, (2017), Tim McCormack (2018), and Anne Orford (2019). 15 See (1996) 17 Australian Year Book of International Law 1–86 containing papers delivered in Canberra to celebrate the 50th Anniversary of the International Court of Justice. 16 Rothwell and Rubenstein 2008 and the papers that follow in (2008) 27 Australian Year Book of International Law 11–192. 17 Whaling in the Antarctic (Australia v Japan; New Zealand intervening) [2014] ICJ Rep 226. 18 In the Matter of an Arbitration before An Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines and the People’s Republic of China, PCA Case no 2013–19, Award on Jurisdiction and Admissibility of 29 October 2015; In the Matter of an Arbitration before An Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines and the People’s Republic of China, PCA Case no 2013–19, Award of 12 July 2016. 19 In the Matter of the Maritime Boundary between Timor-Leste and Australia before a Conciliation Commission constituted under Annex V of the 1982 United Nations Convention on the Law of the Sea between the Democratic Republic of Timor-Leste and the Commonwealth of Australia, PCA Case no 2016–10, Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea of 9 May 2018; and 2018 Treaty Between Australia and The Democratic Republic of Timor-Leste Establishing their Maritime Boundaries in the Timor Sea, OS - 6 March 2018, [2019] ATS 16.

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The other foundation for this first section of the AYBIL is unsolicited scholarly articles which are published following a traditional double-blind peer review process. In this regard, the AYBIL publishes high quality submissions that relate to: (a) General international law that is relevant to a wide range of states including Australia; or, (b) Specialised areas of international law with an Australian interest or dimension; and (c) International law matters in which Australia has been directly involved or engaged, including Australia’s practice of international law. It can be seen from the above, that the Editors always ask whether an article received for publication has an Australian dimension or reflects upon an international law matter of interest to Australia. This somewhat parochial perspective not only reflects the history of the AYBIL, emerging as it did at a time when there was no distinctive outlet for Australian international legal scholarship, but also the ongoing objective of promoting that scholarship and providing authors with an opportunity to publish their work in order to provide an Australian ‘voice’ on matters of significance to international law. Finally, this section of the AYBIL also includes Book Reviews and occasionally Review Essays. Again, there is a parochial element to this section with the works of Australian international lawyers and work with a focus on international law in Australia favoured. The next section of the AYBIL includes a series of regular features that encompass: • Cases before Australian Courts and Tribunals Concerning Questions of Private International Law; • Cases before Australian Courts and Tribunals Concerning Questions of Public International Law; • Cases before International Courts and Tribunals Concerning Questions of Public International Law Involving Australia; • Australian Legislation Concerning Matters of International Law; • Australian Practice in International Law; and • Australian Treaty Action. This section of the AYBIL has evolved and expanded over time, partly reflecting the growth in importance of international law in Australia, especially before municipal courts. The largest of these entries, which are predominantly contributed by institutional authors, is ‘Australian Practice in International Law’ prepared by the Australian Department of Foreign Affairs and Trade. This section comprises the official published collection of Australian state practice in international law and collectively is the longest entry in the AYBIL and one of the most significant features of the AYBIL which distinguishes it from other international law publications, including other Yearbooks of international law. In this regard, the AYBIL has benefited from a long and productive relationship with the Australian Department of Foreign Affairs and Trade (and its predecessors) and that support has been critical to its success and longevity.

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7.4 Function and Impact of the AYBIL The function of the AYBIL has evolved over time. Initially, its principal aim was to provide a forum for collective writings on contemporary international law issues of relevance for Australia, and as a repository of Australian state practice in international law. In this latter regard, a major development took place with volume 6 under Greig’s editorship when the first entry prepared by the Australian government on ‘Australian practice in International Law’ for 1974–1975 appeared. This entry, prepared under the guidance of the then Legal Advisor on International Law to the Australian Government, Professor Eli Lauterpacht,20 was a 197-page contribution to volume 6 comprising more than half of the content of that volume. The ‘Australian practice’ section has remained a regular feature of the AYBIL ever since and the contribution made by the Australian government to this entry has been indispensable. Over the intervening years, the AYBIL has aimed to position itself among the world’s most outstanding international law journals. It strives to be a leading resource for international lawyers in Australia and overseas, including judges, practitioners, scholars, government officials and students. It seeks to maintain its reputation as a leading authority for international law in Australia by continuing to provide a unique record of Australia’s international activity, and by attracting topical and well-written contributions from leading global international law scholars and practitioners on matters of public and private international law that are of interest to a global audience. While other international law journals are now published in Australia, and there are multiple publishing outlets for international lawyers working in Australia or wishing to write about Australia and international law, the AYBIL aims to maintain its position as the voice of a dynamic Australian international legal community. In this respect, the AYBIL seeks to remain a journal of record for international law in Australia. This is achieved either by way of the publication of individual articles or collections by way of an Agora that seek to record, assess, and critique significant international law ‘events’ for Australia. This can extend to matters involving Australia’s engagement in international litigation, a major international legal incident involving Australia, or a significant Australian government initiative that has international legal consequences. Here the AYBIL’s capacity to also record official Australian government positions on international law matters remains of significance. Not only does the Australian Department of Foreign Affairs and Trade provide the Editors with an annual entry on Australian state practice, but it can also utilize the AYBIL as a forum for the publication and promotion of that state practice. In this respect, it needs to be recalled that notwithstanding the vast amounts of state practice than can now be located on the official websites of relevant Australian government departments and agencies and their Ministers, not all state practice is readily available on the internet and as 20 Greig

1978, at vii; Erika Feller was the relevant Australian government officer responsible for preparing that initial collection of Australian practice in international law and her reflections on that process can be found in an interview at National Library of Australia, “Erika Feller interviewed by Kim Rubenstein in the Trailblazing women and the law oral history project” (November 2013) at https://catalogue.nla.gov.au/Record/6387436.

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such publication in the AYBIL remains an important statement as to the significance of statements made by Australian government officials in various settings.

7.5 Future of the AYBIL Writing in 2008 in volume 27 of the AYBIL, the then Dean of Melbourne Law School, Professor James C Hathaway asked “Is there still a place for a ‘Yearbook’ of International Law?” Hathaway responded as follows: In establishing real, action-based consent by states to putative customary norms, the role of the international yearbook is vital. Its primary distinguishing feature – the recapitulation of state practice in a way that can constitute a record of actions genuinely capable of being invoked in support of international legal argumentation – is a function unique to its genre. The Australian Year Book of International Law provides the authoritative record of Australian practice in relation to international law. It is thus a critical piece in the network of yearbooks in jurisdictions around the world, offering international lawyers the raw material of positivist customary international legal argumentation.21

In these remarks, Hathaway captures the unique place of the AYBIL and many national Yearbooks of International Law. It remains a parochial publication with a focus on Australian state practice, whether that be actual Australian practice in international law as recorded by the Department of Foreign Affairs and Trade in the annual ‘Australian Practice’ entry, as articulated by Australian government Ministers,22 or as it is reviewed, outlined and critiqued in scholarly articles.23 In this respect, the AYBIL still retains the essential qualities and objectives as outlined by Starke in the 1960s, notwithstanding that Australia’s place in the world has greatly changed since those times including Australia’s deep engagement with international law.24 Moving forward and looking to the future, the AYBIL will retain its unique focus on Australian contributions to and perspectives on international law, as well as Australia’s role as a global citizen and a regional and normative power. It will also begin to publish articles on topics of broader international importance, contributing to and influencing contemporary debates within the discipline. It will continue to explore contemporary issues through the Agora format, showcasing the perspectives of peak scholars, practitioners and thinkers on topical matters of international concern. It will also continue to consolidate and build upon its position as the official source for Australian state practice, working closely with the Australian government to ensure its state practice section is accurate, comprehensive and accessible. The AYBIL has revised its strategic aims, and has improved aspects of its publishing 21 Hathaway

2008, at ii. 2017. 23 See e.g. the following recent contributions: Abadee and Rothwell 2007; Bliss 2007; Pert 2012; Chia, McAdam and Purcell 2014. 24 For some works that record Australia’s current engagement with international law see Blay, Piotrowicz and Tsamenyi 2005; Charlesworth et al 2006; Haward and Griffiths 2011; Pert 2014; Rothwell and Crawford 2017; Rothwell et al 2018. 22 Brandis

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practices in order to progress towards these goals. The change in publishing arrangements in 2019 commencing with Brill will further assist in achieving these strategic aims.

7.6 Concluding Remarks The AYBIL has been on a remarkable journey from somewhat modest beginnings25 (with unsettled publishing arrangements, and for at least its first two decades publishing on a less than annual cycle), to a volume that in 2019 published 585 pages and for the first time with Brill. In addition to an Editorial Board comprising representatives from Australia’s premier Law Schools and Australian government agencies that practice in international law, the AYBIL now also has an Advisory Board whose members include distinguished Australian international lawyers from academia, government practice and the international bar. With its future secure, the AYBIL has the capacity to move forward with confidence in a challenging international publishing environment and continue to expand its influence and impact on an understanding of international law through its unique Australian perspective. Acknowledgements The assistance of the Editors, Dr Imogen Saunders and Dr Esmé Shirlow, and the Assistant Editor, Ms Helen Whalan, in the preparation of this contribution is acknowledged. Comments from former Editors, Associate Professor Sarah Heathcote and Professor Kim Rubenstein are also acknowledged.

References Abadee N, Rothwell D R (2007) The Howard Doctrine: Australia and Anticipatory Self-Defence against Terrorist Attacks. Australian Year Book of International Law 26:19-62. Blay S, Piotrowicz R, Tsamenyi B M (eds) (2005) Public International Law: An Australian Perspective. Oxford University Press, Oxford. Bliss M (2007) Amity, Cooperation and Understanding(s): Negotiating Australia’s Entry into the East Asia Summit. Australian Year Book of International Law 26:63-86. Brandis G (2017) The Right of Self-Defence Against Imminent Armed Attack in International Law. Australian Year Book of International Law 35:55-66. Charlesworth H, McCorquodale R (1999) Don Greig. Australian Year Book of International Law 20:i-ii. Charlesworth H et al (2006) No Country is an Island: Australia and International Law. UNSW Press, Sydney. Chia J, McAdam J, Purcell K (2014) Asylum in Australia: ‘Operation Sovereign Borders’ and International Law. Australian Year Book of International Law 33:33-64. Cowan Z (1966) Marriage, Matrimonial Clauses, Legitimacy and Adoption: Miscellaneous Notes on Recent Australian Statutes. Australian Year Book of International Law 1:23-35.

25 Volume

1 comprised a modest 170 pages.

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Devereux A (2005) Australia and the birth of the International Bill of Human Rights 1946-1966. Federation Press, Annandale, NSW. Greig D W (1978) Preface. Australian Year Book of International Law 6:vii. Hathaway J C (2008) The Value of Year Books of International Law. Australian Year Book of International Law 27:i-ii. Haward M, Griffiths T (eds) (2011) Australia and the Antarctic Treaty System: 50 Years of Influence UNSW Press, Sydney. Higgins R (1999) Foreword. Australian Year Book of International Law 20:iii-v. O’Connell DP (ed) (1966) International Law in Australia. Law Book, Sydney. Pert A (2012) The Good International Citizenship of the Rudd Government. Australian Year Book of International Law 30:93-145. Pert A (2014) Australia as a good international citizen. Federation Press, Sydney. Rothwell D R, Crawford E (eds) (2017) International Law in Australia, 3rd edn. Thomson Reuters, Sydney. Rothwell D R, Rubenstein K (2008) Introduction: Australia and International Law during the Howard Years. Australian Year Book of International Law 27:1-10. Rothwell D R et al (2018) International Law: Cases and Materials with Australian Perspectives, 3rd edn. Cambridge University Press, Cambridge. Shearer I (2006) J G Starke, QC. Australian Year Book of International Law 25:i-v. Spender P (1966) The Office of the President of the International Court of Justice. Australian Year Book of International Law 1:9-22 . Starke J G (1966) Digest of Australian Practice in International Law, 1964-1965. Australian Year Book of International Law 1:159-168. Starke J G (1972) Introduction to International Law. Butterworths, London. Starke J G (1996) Preface. Australian Year Book of International Law 1:3.

Chapter 8

The Canadian Yearbook of International Law/Annuaire canadien de droit international: Founding, Function, Future John H. Currie

Contents 8.1 Origins: The Founding and Anticipated Functions of the Canadian Yearbook . . . . . . . . 8.2 The Evolution of the Canadian Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 The Function and Impact of the Canadian Yearbook Today and in the Foreseeable Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Founded in the early 1960s and published annually since 1963, The Canadian Yearbook of International Law/Annuaire canadien de droit international (‘Canadian Yearbook’) was originally conceived as a means of bringing international legal scholarship to Canada, but also as a venue through which distinctive Canadian perspectives on international law could be incubated and projected to the world. It was also expected to serve both the academic and practising professional communities of international lawyers in Canada, and to do so in both of Canada’s official languages. The Canadian Yearbook has done and continues to do all of these things, but in recent years has sought to broaden not only its readership but also its authorship beyond Canadian shores. It has succeeded in doing so by leveraging the advantages of ‘continuing’ online publication as an accompaniment to the traditional publication of an annual, bound volume. The result has been more timely dissemination of its contents to a growing worldwide readership through, inter alia, an ever-increasing subscription base of academic and other institutional libraries around the globe. As such it seems probable that the Canadian Yearbook, as Canada’s leading scholarly serial publication devoted to international legal issues, will continue to serve as a John H. Currie is Editor-in-Chief of The Canadian Yearbook of International Law/Annuaire canadien de droit international; Professor of Law in the Faculty of Law, University of Ottawa, Canada; and former president of the Canadian Council on International Law/Conseil canadien de droit international ([email protected]). J. H. Currie (B) Faculty of Law, University of Ottawa, Ottawa, Canada e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_8

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central pillar not only of Canada’s international legal community but also of Canada’s contributions to international legal scholarship and practice for the foreseeable future. Keywords Annuaire canadien de droit international · Canada · The Canadian Yearbook of International Law · international law · international legal journals · yearbooks of international law

8.1 Origins: The Founding and Anticipated Functions of the Canadian Yearbook By all accounts, the founding of The Canadian Yearbook of International Law/Annuaire canadien de droit international (‘Canadian Yearbook’) was a hesitant and uncertain affair. Early, abortive attempts had been made in this direction in the 1930s, as part of a larger project to found a Canadian international law society or association—of which one of the primary purposes, it was foreseen, would be to publish a distinctly Canadian yearbook or other suitable publication dedicated to the study of international law.1 But the project’s early proponents were few in number, consisting essentially of Canada’s only two full-time professors of international law at the time: Professor N.A.M. (‘Larry’) MacKenzie of the University of Toronto, and Professor (and Dean of Law) Percy E. Corbett of McGill University in Montreal.2 Thus, notwithstanding initial encouragement and support from the American Society of International Law and the Carnegie Endowment for International Peace, the initiative lost momentum when Corbett left Canada to join Yale Law School in 1937, and was subsequently entirely derailed by the intervention of the Second World War (‘WWII’).3 It was not until several years following the end of WWII that the idea of establishing a Canadian yearbook or similar publication dedicated to international legal issues would be revived. Auspiciously, a Canadian branch of the International Law Association (‘ILA’) had been established in 1952 by a group of mainly Montrealbased lawyers who were ‘concerned at the lack in Canada of non-governmental legal activity on the international level’, and convinced that ‘Canadians … have much to contribute to the international pool of legal knowledge from the great laboratory of civil and common law that is Canada.’4 With a significant academic presence on the executive of the newly established Canadian branch of the ILA, including Professor 1 Harrington

2012, at 5. 1963, at 7–8. MacKenzie did however note that the occasional political scientist or part-time teacher also lectured on the subject of international law at various Canadian universities: ibid., at 7. See also Harrington 2012, at 5–6. The relative dearth of full-time international legal academics in Canada was thought to have scarcely changed in 1950, by which time ‘there were perhaps no more than two professional teachers of International Law in Canada”: Cohen 1950, at 284–285. See also Harrington 2012, at 9. 3 MacKenzie 1963, at 8–9; Harrington 2012, at 7. 4 FitzGerald 1953, at 1021. 2 MacKenzie

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Maxwell Cohen of McGill University as president and MacKenzie (now president of the University of British Columbia) as honorary president, as well as other supportive executive members such as Gerald F. FitzGerald (a legal advisor with the International Civil Aviation Organization in Montreal) as vice-president, proposals for the Canadian branch of the ILA to facilitate the establishment of a Canadian scholarly publication devoted to international law soon followed. By 1955, Cohen and FitzGerald were arguing that ‘the need for a journal had become evident … as a result of Canada’s newly acquired status as a middle power in the post-war years’, the ‘multiplication of its international contacts’, and the increased number of Canadian ‘instructors of international law’.5 The growth in the number of international lawyers in Canadian government service, and the emergence of areas of international legal specialization in Canadian universities (such as air and space law at McGill University and oceans law at Dalhousie University in Halifax) were also considered favourable factors.6 Yet successive attempts (including by way of a formal written proposal submitted by FitzGerald in 1960) to persuade the executive of the Canadian branch of the ILA to proceed with the founding of a scholarly journal were rejected due to financial concerns.7 It would thus fall to Professor Charles B. Bourne of the University of British Columbia, upon assuming the presidency of the Canadian branch of the ILA in 1961, to break the impasse.8 He would do so, with the assistance of MacKenzie and the University of British Columbia, by securing sufficient donations from academic sources, private benefactors and the Canada Council9 to allow the project to proceed.10 Thus the Canadian Yearbook was founded in 1962 with Bourne as Editorin-Chief, and its first annual volume was published in 1963 through the University of British Columbia (UBC) Publications Centre (later to become UBC Press, which would publish the Canadian Yearbook until its 51st volume in 2013).11 In his preface to the Canadian Yearbook’s inaugural volume, Bourne explained the impetus behind the new publication as a ‘growing feeling … that the time was ripe for a Canadian publication devoted exclusively to international legal matters’, and referred to ‘a need for a publication that would make available to Canada and to the international community a systematic presentation of the thinking of Canadians 5 Macdonald

1996, at 35. 2012, at 10. 7 Ibid.; see also Bourne 1987, at 389. 8 MacKenzie 1963, at 9. 9 The Canada Council was the predecessor to the modern-day Social Sciences and Humanities Research Council of Canada, one of Canada’s major scholarly granting councils. 10 Harrington 2012, at 10–11; Bourne 1985, at 328; Bourne 1963, at 11. Bourne would later credit MacKenzie with having been the ‘financial godfather of the [Canadian] Yearbook [who] made the whole thing possible’: Macdonald 1996, at 36. 11 Bourne 1963, at 11. Note that Macdonald traces the decision to found the Canadian Yearbook to 1961: Macdonald 1996, at 35–36. This is likely a reference to the 1961 decision in principle to establish a yearbook, which was followed in 1962 by the decision to proceed with the establishment of the Canadian Yearbook and the appointment of an inaugural editor in chief: see Bourne 1987, at 389–390. 6 Harrington

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in the field of international law.’12 Key to understanding this need, noted Bourne, was the great increase, since the end of WWII, in the number of Canadians who had studied international law abroad and subsequently returned to work in Canadian law schools, government service and even private practice. ‘There was, therefore, a sufficiently large pool of scholars to sustain a learned journal devoted to international law.’13 One can discern in these observations, coupled with Bourne’s firm commitment from the outset that the Canadian Yearbook would publish contributions in both English and French,14 the outline of a mission for a distinctly Canadian yearbook of international law. Seemingly it was to be, first and foremost, a publication by and for Canadian international lawyers, including academics and practising professionals (whether in public or private practice).15 And yet it was also clearly envisaged, at least by Bourne, that the Canadian Yearbook would equally serve to acquaint the world with Canadian perspectives—‘the thinking of Canadians’—on issues of international law. Some have interpreted this latter aspect of Bourne’s vision as consistent with viewing the Canadian Yearbook as ‘a venue for exploring international legal matters of interest to those working in Canada’, as distinct from ‘a yearbook devoted to exploring what it means to bring a Canadian approach … to current problems of international law.’16 And yet some contemporaneous participants in the project, explicitly invoking the notion of ‘Canadian perspectives’ on international law, were plainly hopeful that the advent of the Canadian Yearbook would ‘provide a forum for … ideas of international law derived … from the Canadian experience’.17 It therefore seems likely that the founders of the Canadian Yearbook viewed it as more than a vehicle by which international law would be brought to, and discussed by, international lawyers in Canada; it was also to be an incubator of Canadian perspectives on international law and a platform from which these would then be projected to the world. In particular it was envisaged that such perspectives would be shaped by, inter alia, Canadians’ colonial legacy and their experience of reconciling distinct 12 Bourne

1963, at 11. See also Macdonald 1989, at 19; Cohen 1963, at 16. 14 Bourne 1963, at 12. 15 Though not necessarily by and for Canadians by nationality, as distinct from international lawyers linked to Canada by residence, professional calling or career trajectory, whatever their nationality: see Harrington 2012, at 12–13. 16 See ibid., at 12, relying in part on MacKenzie’s hailing of the establishment of ‘a yearbook on international law for Canada’: MacKenzie 1963, at 7 [emphasis added]. See further Harrington’s reference to ‘[t]his vision of a journal “for Canada,” but not necessarily for the development of a Canadian approach to international law’: Harrington 2012, at 14. 17 Cohen 1963, at 15, 21–26; see also Harrington 2012, at 20–21, 31. Cohen also wrote of Canada’s wartime and post-war experiences as forming ‘a framework out of which a modern Canadian concern and experience with international law must necessarily evolve’, and of the opportunity afforded by the Canadian Yearbook to ‘project [the Canadian] experience into that larger world of research and publication now coming to be known generally as “international legal studies”’: Cohen 1963, at 17 [emphasis added]. It is notable that Cohen was a founding member of the Canadian Yearbook’s editorial board, on which he would serve for 23 years before becoming an honorary board member. 13 Ibid.

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legal systems, cultures and languages within a federal system; Canada’s post-war emergence as a middle power politically committed to multilateral institutions; its embrace of international trade, navigation and capital flows; and its experience of managing the complex environmental, economic, resource exploitation, defence and security, polar sovereignty and other challenges associated with sharing ‘a common continent with a great and powerful neighbour’.18 It also seems clear that the inspiration for publishing a yearbook as such, as distinct from a journal such as the American Journal of International Law, was a desire to emulate the model of The British Yearbook of International Law, founded in 1920.19 This was not merely a manifestation of some lingering post-colonial tendency towards emulation of the former ‘mother country’. Rather, the founding editors of the Canadian Yearbook placed real importance on the opportunity afforded by a yearbook to devote significant space to documenting the Canadian practice of international law, whether in the form of official government positions and practice, parliamentary statements, or judicial decisions relating to international legal issues.20 This had been a feature of the British Yearbook since its inception, and one that was thought to be a principal raison d’être of the newly-established Canadian Yearbook.21 Thus, the mission was not purely academic or theoretical: it was also practical, with an eye to serving not only a scholarly but also a professional, practising international legal community.22 Yet, with a mission devoted in part to reporting on government practice comes the potential for governmental influence, whether or not by design. Thus in at least one other respect the blueprint established by the British Yearbook was to be influential in the shaping of the Canadian Yearbook: that of its structural independence from government and indeed private organizations. For the founding editors of the British Yearbook, this was an ‘absolute’ requirement, secured by the independence of an academic editorial board and affiliation with an academic publisher.23 Similarly, the Canadian Yearbook was to have a wholly independent editorial board dominated by

18 Cohen

1963, at 17. e.g. MacKenzie 1963, at 7, expressly invoking The British Yearbook of International Law as a model for the Canadian Yearbook; see also Macdonald 1996, at 37; Harrington 2012, at 15– 16. It should be noted that the original designation of The British Year Book of International Law was changed to The British Yearbook of International Law with the publication of its 81st volume (2010). The latter designation is used in this article when referring to the publication generally. 20 Bourne 1963, at 12; Cohen 1987, at 27; Harrington 2012, at 27. 21 Harrington 2012, at 15–16; Macdonald 1996, at 37. Indeed it is reported that Bourne himself viewed ‘[t]he section on Canadian practice as the most important part of the [Canadian] Yearbook’: see Macdonald 1996, at 40. Writing some 25 years after the founding of the Canadian Yearbook, Cohen appears to have taken the same view: see Cohen 1987, at 31. 22 Macdonald 1996, at 41. 23 Editors 1920–21, at 16. 19 See

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academics,24 and would be published exclusively through academic presses.25 As such, even its arm’s-length affiliation with learned societies was only ever notional, as intimated by prefatory statements alluding somewhat cryptically to the Canadian Yearbook being published ‘under the auspices’ of the Canadian Branch of the ILA and, later, the Canadian Council on International Law.26

8.2 The Evolution of the Canadian Yearbook Since its inception, the Canadian Yearbook has been marked by a considerable degree of constancy, but also, more recently, by significant change. Chief among the Canadian Yearbook’s points of stability have been the overall structure and composition of its editorial board. The inaugural structure of an editorin-chief and an editorial board consisting of five editors and six associate editors (along with a number of ‘honorary editors’) was rapidly simplified, by the second volume, into the structure that has remained in place ever since, which is to say: an editor-in-chief with overall editorial responsibility along with specific responsibility for English-language content; an associate editor with particular responsibility for French-language content;27 and an undifferentiated board of between eight and twelve editors, representing Canada’s two official language groups and dominant legal traditions as well as its geographical diversity, with broadly advisory functions.28 To this structure were added two assistant editors, from volume 12 (1975), one each to assist the editor-in-chief and associate editor respectively. The composition of the editorial leadership of the Canadian Yearbook, thus structured, has also remained remarkably stable over time. To illustrate, the Canadian Yearbook has had only three editors-in-chief, and four associate editors, in its 57-year history.29 While there has been greater turnover in the composition of the remainder of the editorial board, it has been consistently and heavily dominated by senior members 24 Macdonald

1996, at 37, alludes to Bourne’s conscious maintenance of distance from even the Canadian Branch of the ILA. It is notable, however, that the editorial board of the Canadian Yearbook has occasionally included members serving with international organizations, in the judiciary or in government service, although never in an official representative capacity. 25 I.e., University of British Columbia (UBC) Press (and its predecessor UBC Publications Centre) (volumes 1–51, 1963–2013); and Cambridge University Press (CUP) (from volume 52, 2014). 26 The Canadian Council on International Law (CCIL) was established in 1972 as the connection between the academic international legal community in Canada and the Canadian Branch of the ILA gradually faded: see Harrington 2012, at 11–12; Macdonald 1996, at 37–38. 27 Indeed this role was presaged by the Canadian Yearbook’s founding editor-in-chief in his preface to the first volume: see Bourne 1963, at 12. 28 It should also be noted that since its inception, the editorial board of the Canadian Yearbook has had a number of ‘honorary editors’, consisting of eminent but mainly retired members of the Canadian international legal community. 29 Editors-in-chief: Charles B. Bourne (1963–1992), Donald M. McRae (1993–2009), and John H. Currie (2010–present). Associate editors: Jacques-Yvan Morin (1964–1973), A. Donat Pharand (1974–1982), ALC de Mestral (1983–2009), and René Provost (2010–present).

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of the international legal academy in Canada (as well as Canadian academics serving in universities abroad),30 thus preserving its independence from governmental and non-governmental influence alike. The essential makeup of the Canadian Yearbook itself has also remained relatively constant over time, although its extent has doubled from early annual volumes in the 350-page range to its current size of approximately 700 pages annually. The Canadian Yearbook has always devoted the preponderance of its space to scholarly articles, notes and comments, whether relating to public or private international law, and contributed by both academics and practising professionals. In addition, and in keeping with the intentions of its founders,31 it has consistently devoted significant space to annual digests of official Canadian practice relating to international law. Beginning in the second volume of the Canadian Yearbook with a compendious digest of ‘Canadian Practice in International Law During 1963’,32 over time this aspect has been refined and differentiated to consist of annual digests not only of Canadian practice in international law at Global Affairs Canada, but also of Canadian cases dealing with both public and private international law (from 1969), Parliamentary statements and debates related to international law (from 1973), and treaty actions by Canada (from 1978). In addition to these ‘inwardly’ focused reviews of official Canadian practice, from 1989 more ‘outwardly’ focused annual digests of developments in international economic law (both trade and investment) were added,33 a model subsequently replicated in 2013 with the addition of an annual digest of developments in Inter-American law.34 Throughout, and again in keeping with the founding vision for the Canadian Yearbook, a balance has been maintained between English- and French-language contributions; indeed, some contributions assume a bilingual format, alternating between French and English depending on the specific subject matter under discussion.35 Some aspects of the undertaking have, however, undergone significant change, particularly in more recent years. Chief among these was the end, in 2012, of the Canadian Yearbook’s long-standing (indeed, founding) relationship with UBC Press as publisher. This change was driven by a number of factors, the most prominent of which related to the Canadian Yearbook’s desire to enhance its mission of bringing Canadian perspectives on international law to the world; and also to diversify the international legal perspectives it was bringing to its Canadian readership. Both were tied to a need to broaden the global reach of the Canadian Yearbook in order to attract 30 To illustrate, 10 of 11 members of the current editorial board hold academic appointments, with the 11th now a member of the judiciary (following an earlier academic career). Two members of the current board hold their academic appointments outside of Canada (at the University of Cambridge and the National University of Singapore respectively). 31 See text accompanying notes 20–22 above. 32 Lawford 1964. 33 See e.g. Prince 2018; Côté 2018. 34 See e.g. Duhaime and Décoste 2018. 35 Indeed this bilingual format is used in several of the annual ‘practice’ digests featured in the Canadian Yearbook. See e.g. Kessel 2018; Logvin and Ositashvili 2018; Luton 2018; van Ert 2018; Blom 2018.

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both readers and authors from outside Canada. This in turn was closely tied to the need to move from a purely traditional, annual hardcopy publication to one that could take advantage of the flexibility and reach of modern electronic publishing. This transformation was ultimately achieved by concluding a publication arrangement with a different academic publisher with greater global reach and welldeveloped digital and online publishing capabilities: Cambridge University Press (‘CUP’). The result has been to permit the Canadian Yearbook to greatly expand its reach beyond a relatively modest number of traditional hardcopy subscribers (consisting mainly though not exclusively of institutional libraries concentrated in North America and Europe), to a much more significant cross-section of digital and hardcopy subscribers in all regions of the world.36 Moreover, and as described more fully below, access to electronic publishing, while still preserving annual publication of a bound, hardcopy volume, has permitted the Canadian Yearbook to make its content available to its readership in a much more timely way than ever before. The net result, unsurprisingly, has been to significantly increase not only the Canadian Yearbook’s readership, but also the number and quality of submissions it receives. The greater global reach of the Canadian Yearbook under its new publication model has also had the salutary effect of diversifying the origins of authors seeking to publish in its pages, as discussed more fully below.

8.3 The Function and Impact of the Canadian Yearbook Today and in the Foreseeable Future To query the function and impact of the Canadian Yearbook today and in the near future is in reality to ask about the three dimensions of the venture that are so neatly captured in its title, which is to say: what role for (1) a distinctly Canadian scholarly publication (2) taking the particular form of a yearbook (3) devoted specifically to international law? Regarding the first of these dimensions, one might query the continued need for, or relevance of, a distinctly Canadian scholarly publication devoted to international law, particularly in an era of globalized publishing and scholarly communities in which geography has lost much of its significance and outlets for the dissemination of scholarly work proliferate.37 This of course is not a dilemma that is unique to

36 Indeed, recent circulation statistics indicate that the Canadian Yearbook is now available through several thousand institutional libraries worldwide, in addition to its direct availability through CUP’s own online journals platform (Cambridge Core) as well as through third-party online content aggregators (e.g. HeinOnline, EBSCO, ProQuest, etc.). 37 See Harrington 2012, at 4. I am particularly indebted in this connection to my colleague and friend, Professor Joanna Harrington of the University of Alberta (and Assistant Editor of the Canadian Yearbook), who has written thoughtfully about the ‘Canadian’ dimension of the Canadian Yearbook in the context of its 50th anniversary: see generally ibid. See also, for an earlier retrospective, Cohen 1987.

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the Canadian Yearbook, but is one faced by all geographically defined or identified yearbooks and scholarly publications more generally. The Canadian Yearbook itself has not tried to deny these realities. Rather, it has attempted to transcend them. As seen above, following more than half a century of publishing experience with a Canadian university press, it has chosen in recent years to embrace a new relationship with a non-Canadian academic publisher, one with greater global reach. Perhaps more fundamentally, it has also consciously adjusted the focus of its editorial policy in order to more explicitly encourage submissions from abroad and thus welcome into its pages the work and perspectives of authors from all over the globe. Whereas in its first decades its authorship was overwhelmingly ‘Canadian’,38 thus fostering the emergence and dissemination of Canadian scholarship (and perhaps even Canadian ‘perspectives’, as outlined above) on matters of international law of particular interest to Canada or Canadians,39 more recently a significant proportion of its articles have been authored by scholars with no particular connection to Canada at all. This diversification of the origins of the scholarly content of the Canadian Yearbook is likely only to become a more common feature in the foreseeable future. And yet the Canadian Yearbook is none the less Canadian for such an evolution in its authorship. To begin with, it might be argued that such openness to ‘other’ or ‘outside’ perspectives is quintessentially Canadian in itself. But beyond this perhaps conceited observation, it remains the case that the composition of the Canadian Yearbook’s editorial board remains essentially Canadian, in the sense that it is dominated by Canadian academics (albeit in some cases serving in institutions abroad).40 This serves to ensure that the editorial policy of the Canadian Yearbook will likely continue to be influenced by Canadian perceptions of, inter alia, the needs and interests of the Canadian international legal community. Moreover, and perhaps more concretely, the founding vision of the Canadian Yearbook as serving the important function of preserving and disseminating a record of specifically Canadian official practice (governmental, legislative, judicial, etc.) in relation to international law has not been displaced over time.41 Indeed, given the continuing (and arguably ascendant) centrality of the sovereign state in the modern international legal order, it seems likely that access to such information will continue to be important, and that the Canadian Yearbook will continue to play a key role in its distillation and dissemination in the foreseeable future.42 It is perhaps in this

38 In

the sense indicated in note 15 above. the Canadian Yearbook’s founding editor-in-chief, Bourne, viewed its priority as publishing pieces ‘by Canadian authors or material dealing with Canada’: see Macdonald 1996, at 41. 40 See text accompanying note 30 above; and see further Harrington 2012, at 29–30. 41 See text accompanying notes 20–22 and 31–35 above. 42 See Hathaway 2008, at i–ii, underscoring the continuing relevance of a positivist account of international law and the ‘vital’ role of international law yearbooks in evidencing ‘real, action-based consent by states’ to norms within such a context. 39 Certainly

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sense, more than any other, that there will continue to be an important and distinctive role for geographically-identified yearbooks of international law.43 With respect to the second dimension identified above, that is, the future of a yearbook of international law as such, the principal question that arises concerns the relevance of an annual scholarly publication in an age of electronic publishing and the expectations of instantaneous access to current information that this fosters.44 Concerns regarding whether a yearbook can ever really be ‘current’, warranted or not, can have very practical consequences. For example, authors anxious to have their research disseminated in a timely manner may forego submission to a yearbook in favour of a journal with a more frequent rate of publication. Reviewers of recently published monographs may similarly opt for more nimble publication venues in order to maximize the relevance and impact of their book reviews. Researchers keen to access the latest developments in international legal scholarship may overlook the archival-sounding ‘yearbook’ in favour of the ‘quarterly’ or its online equivalent. As suggested above, these expectations of ever more timely publication are driven in part by the rise of electronic scholarly publishing. Yet paradoxically, I would argue that the advent of electronic publishing has the potential, if anything, to level the playing field between yearbooks of international law and their more frequently published cousins. This in fact has been the experience of the Canadian Yearbook since affiliating itself with its current publisher. The Canadian Yearbook continues to be published as an annual, bound volume, both in hardcopy and electronic format, and this is unlikely to change in the foreseeable future. Yet the Cambridge Journals online platform (‘Cambridge Core’) also allows for individual articles or other pieces to be published electronically as soon as editorial work on them has been completed. Taking advantage of this ‘continuous’ publication feature has required that the Canadian Yearbook adjust its review and acceptance processes away from a once-yearly exercise of consideration and acceptance/rejection of all submissions for a given volume. Instead, it has moved to a ‘rolling acceptance’ model in which submissions are reviewed and accepted or rejected on a continuing basis throughout the year. As a result, the content of each volume of the Canadian Yearbook can be incrementally published, online, throughout the year typically required to assemble the full content of an eventual, bound, annual volume. Thus, both the ‘posterity’ (i.e. preservation of research for future generations) and ‘current developments’ (i.e. facilitation of timely scholarly exchange) functions of a yearbook are served by the publication of an annual volume as well as the ‘interim’ publication of that volume’s constituent elements respectively. Naturally, many journals also benefit from this ability to publish content electronically on an interim basis, pending finalization of a particular issue or volume. But the point is that, with access to such a facility, a yearbook is in just as good a position as a more frequently published periodical to provide rapid, worldwide access to current scholarship on international law. 43 See International Law Commission, Memorandum by the Secretariat: Identification of Customary International Law: Ways and Means for Making the Evidence of Customary International Law More Readily Available, UN Doc A/CN.4/710/Rev.1, 14 February 2019, para 47. 44 See Harrington 2012, at 5.

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Aside from timely publication of scholarship, some may also doubt the value of an international law yearbook’s other typical (or even, as suggested above, distinctive) function—that is, the documenting of developments in the practice of international law. In particular, at a time when information regarding every conceivable event or development is assumed to be ubiquitously available, in real time, at the touch of a screen or keyboard, it may be wondered whether there is much point in collating annual digests or summaries of the past year’s events. And yet I would argue that it is precisely in such an information-laden environment that rigorously curated distillations of events in specific areas of activity are most useful and needed.45 To give a concrete illustration: every word spoken in Canada’s parliament is recorded and reported, via Hansard, which in turn is instantaneously available to Canadians and anyone else in the world with an internet connection.46 Yet if the only matters of interest happen to be parliamentary statements pertaining to particular areas of international law, the availability of an unfiltered sea of information is in fact a hindrance rather than an aid to accessing what is relevant. The Canadian Yearbook’s annual digest of parliamentary statements related to international law, filtered from the much larger mass of parliamentary debates and classified according to international legal categories, thus fills an important informational and analytic need. The same is true, for example, of the Canadian Yearbook’s annual digests of Canadian court cases dealing with issues of public and private international law respectively. Not only do the authors of such digests carefully select the most prominent such cases, they also offer insight and commentary on their particular significance to the Canadian judiciary’s overall treatment of international legal issues. Beyond this role in cutting through ‘information overload’, a yearbook can also play an important role in revealing information relating to the practice of international law that might otherwise never enter the public realm. Contrary to the common assumption that the advent of the internet is ineluctably conducive to transparency, it remains the fact that many governmental functions are (understandably and quite properly) veiled behind various layers of confidentiality or even secrecy. It should not surprise any lawyer, for example, that legal advice to governments (including in relation to international legal matters) may attract solicitor-client privilege; or that considerations motivating a given course of governmental action in international relations may be classified or otherwise confidential. Moreover, the potentially ephemeral nature of certain forms of electronic communication, now an integral part of the governmental policy-making process, may also mean that the ingredients of modern-day policy-making are not always systematically documented or preserved. In this context, a standing relationship between the legal division within a foreign ministry (such as the Legal Affairs Bureau within Global Affairs Canada) and a

45 See International Law Commission, Memorandum by the Secretariat: Identification of Customary

International Law: Ways and Means for Making the Evidence of Customary International Law More Readily Available, 2019, para 47. 46 See Linked Parliamentary Data Project, https://www.lipad.ca, accessed 9 December 2019. See also Beelen et al. 2017.

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yearbook of international law wishing to publish a digest of official practice in international law (such as the Canadian Yearbook) can have a number of salutary effects, including: (1) inviting annual reflection, by officials, regarding which aspects of governmental practice having a bearing on international legal matters may advisedly be placed on the public record, even if originally classified or protected by privilege; (2) incentivizing the maintenance of some form of internal record-keeping system to facilitate the annual exercise of collecting, vetting and editing materials for potential submission to the relevant yearbook; and (3) preserving, in the public domain, a record of official practice in matters of international law that might otherwise never be revealed or simply lost in bureaucratic limbo. In short, there is an important role to be played by a yearbook of international law not only in gathering, but also in analyzing, distilling, categorizing, reporting, and preserving—in a word, curating—a record of national practice in international legal matters. These functions are uniquely suited to yearbooks,47 and without doubt will continue to be served by the Canadian Yearbook in the years to come. As for the future of the final dimension of the Canadian Yearbook’s mission identified above—international law itself—that is, as the expression goes, beyond the scope of this contribution. Suffice it to say that, as with the periodically announced ‘end of history’,48 current apprehensions regarding the imminent demise of the international legal order seem greatly exaggerated.49 There is thus every reason to believe that there will continue to be a role and a need for the Canadian Yearbook, and indeed other yearbooks of international law, to document national practice as well as further scholarly discourse and critical inquiry relating to international law—whatever future form or directions the discipline may take. Acknowledgements This contribution is adapted from remarks made at the seminar ‘Yearbooks in International Law: History, Function and Future’ organized in The Hague on 26–27 September 2019 to mark the 50th anniversary of the Netherlands Yearbook of International Law. The author is grateful to the organizers of that seminar for their kind invitation to participate and for their generous hospitality.

References Beelen K, Thijm TA, Cochrane C, Halvemaan K, Hirst G, Kimmins M, Lijbrink S, Marx M, Naderi N, Rheault L, Polyanovsky R, Whyte T (2017) Digitization of the Canadian Parliamentary Debates. Canadian Journal of Political Science 50(3):849–864. Blom J (2018) Canadian Cases in Private International Law in 2017/Jurisprudence canadienne en matière de droit international privé en 2018. The Canadian Yearbook of International Law 56:571–608. 47 See

Hathaway 2008, at ii. e.g. Fukuyama 1992. 49 With apologies to Mark Twain (see FM White, Mark Twain Amused, New York Journal, 2 June 1897, at 1). 48 See

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Bourne CB (1963) Preface. The Canadian Yearbook of International Law 1:11–12. Bourne CB (1985) In Memoriam: Norman Archibald MacRae MacKenzie. The Canadian Yearbook of International Law 23:328–329. Bourne CB (1987) In Memoriam: Gerald F FitzGerald. The Canadian Yearbook of International Law 25:389–390. Cohen M (1950) The Condition of Legal Education in Canada. Canadian Bar Review 28(3):267–314. Cohen M (1963) Some Main Directions of International Law: A Canadian Perspective. The Canadian Yearbook of International Law 1:15–39. Cohen M (1987) The Canadian Yearbook and International Law in Canada after Twenty-Five Years. The Canadian Yearbook of International Law 25:3–27. Côté C-E (2018) Chronique de droit international économique en 2018/Digest of International Economic Law in 2018: Investissement. Annuaire canadien de droit international 56:424–452. Duhaime B, Décoste É (2018) Les développements en droit interaméricain pour l’année 2018. Annuaire canadien de droit international 56:365–391. The Editors (1920–21) Introduction. The British Year Book of International Law 1:iii–iv. FitzGerald GF (1953) The Canadian Branch of the International Law Association. Canadian Bar Review 31(9):1021–1027. Fukuyama F (1992) The End of History and the Last Man. Free Press, New York. Harrington J (2012) Exploring the ‘Canadian’ in the Canadian Yearbook of International Law. The Canadian Yearbook of International Law 50:3–33. Hathaway J (2008) The Value of Year Books of International Law. The Australian Year Book of International Law 27:i–ii. Kessel AH (2018) Canadian Practice in International Law at Global Affairs Canada in 2018/Pratique canadienne en matière de droit international aux Affaires mondiales Canada en 2018. The Canadian Yearbook of International Law 56:453–483. Lawford HJ (1964) Canadian Practice in International Law During 1963. The Canadian Yearbook of International Law 2:271–315. Logvin A, Ositashvili R (2018) Parliamentary Declarations in 2018/Déclarations parlementaires en 2018. The Canadian Yearbook of International Law 56:484–532. Luton G (2018) Treaty Actions Taken by Canada in 2018/Mesures prises par le Canada en matière de traités en 2018. The Canadian Yearbook of International Law 56:533–540. Macdonald R St J (1989) Maxwell Cohen at Eighty: International Lawyer, Educator, and Judge. The Canadian Yearbook of International Law 27:3–56. Macdonald R St J (1996) Charles B Bourne: Scholar, Teacher, and Editor, Innovator in the Development of the International Law of Water Resources. The Canadian Yearbook of International Law 34:3–88. MacKenzie NAM (1963) Foreword. The Canadian Yearbook of International Law 1:7–9. Prince HA (2018) Chronique de droit international économique en 2018/Digest of International Economic Law in 2018: Commerce. Annuaire canadien de droit international 56:392–423. van Ert G (2018) Canadian Cases in Public International Law in 2018/Jurisprudence canadienne en matière de droit international public en 2018. The Canadian Yearbook of International Law 56:541–570.

Chapter 9

Chinese (Taiwan) Yearbook of International Law and Affairs: Contributing to the Grotian Moment in Asia Ying-jeou Ma, Chun-i Chen and Pasha L. Hsieh

Contents 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 The Formative Years of the Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 The Current Operation and Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Contents Focused on Asia and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Collaboration with the ILA and ASIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The contribution examines critical developments of the Chinese (Taiwan) Yearbook of International Law and Affairs and its contribution to the ‘Grotian moment’ in Asia. The Yearbook is the first publication specialized in international law in Greater China, a Chinese-speaking region that includes Mainland China, Taiwan, Hong Kong and Macau. The founding of the Yearbook in 1981 was a response to the unique status of the Republic of China (ROC) rendered after its loss of representation Ying-jeou Ma received his S.J.D. from Harvard Law School in 1981 and taught international law at National Chengchi University (NCCU) as an adjunct associate professor from 1981 to 1998. After he served as President of the Chinese (Taiwan) Society of International Law from 1999 to 2002, he became the Editor-in-Chief of the Chinese (Taiwan) Yearbook of International Law and Affairs. In the meantime, he was President of the Republic of China (ROC) from 2008 to 2016. Chun-i Chen is the Associate Editor-in-Chief and Executive Editor of the Yearbook and a professor of law at NCCU. Pasha L. Hsieh is the Managing Editor of the Yearbook and an associate professor of law at Singapore Management University. Y. Ma Chinese (Taiwan) Yearbook of International Law and Affairs, Taipei, Taiwan e-mail: [email protected] C. Chen National Chengchi University (NCCU), Taipei, Taiwan e-mail: [email protected] P. L. Hsieh (B) Singapore Management University, Singapore, Singapore e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_9

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in the United Nations under General Assembly Resolution 2758 of 1971. Over the past 40 years, the Yearbook has become an intellectual depository of research on the Diaoyutai/Senkaku Islands, the Taiping Island (known as Itu Aba in the West), and related territorial and delimitation disputes in the East and South China Seas. It also provides a scholarly forum for discussions on the ROC’s state practice, concepts of recognition in divided states, cross-Taiwan Straits relations and the status of Hong Kong. To foster dialogues on transnational legal issues related to the Asia–Pacific region, the Yearbook has published papers selected for presentation at research forums jointly organized by the International Law Association and the American Society of International Law. The Yearbook will further digitalize its contents and enhance collaboration with academic societies around the globe in order to galvanize the understanding of international law from Asian perspectives. Keywords Asia · Cross-Strait Relations · Greater China · Recognition · Taiwan · UN

9.1 Introduction On behalf of the editorial board, we are honored to contribute a chapter on the history, function, operation and future of the Chinese (Taiwan) Yearbook of International Law and Affairs. As the first yearbook of international law in the Chinese-speaking world, our Yearbook continues to be among the few Asia-based publications specialized in international law. Since its first publication in 1981, the Yearbook has galvanized Asia’s ‘Grotian moment’ by universalizing international law and documenting key events in the Asia–Pacific region with global implications. The background of the Yearbook is intertwined with modern China’s reception of international law and the unique legal status of Taiwan since 1895. The beginning of international law research can be traced back to the publication of Hugo Grotius’ De Jure Belli ac Pacis (On the Law of War and Peace) in 1625. Nevertheless, China’s early encounters with foreign (primarily Western) nations did not affect the evolving international law in the West. The Netherlands, which placed Taiwan under its colonial rule from 1624 to 1662, played a momentous role in Chinese diplomacy. The 1662 peace treaty that General Zheng Chenggong (Koxinga) of China’s Ming Dynasty concluded with the Dutch governor constituted the prelude to China’s international agreements with foreign countries.1 After Zheng won the nine-month battle, the Treaty led to the withdrawal of the Dutch troops from Taiwan. In the following two and half centuries, understanding international law ascended to China’s top priority. The primary reasons were the proliferation of ‘unequal treaties’ after the signing of the 1842 Treaty of Nanjing with the United Kingdom as a result

1 Taiwan was under Dutch rule from 1624 to 1662. The Zheng-Dutch Peace Treaty consists of Dutch

and Chinese versions, which include 18 and 16 provisions, respectively. This treaty preceded the 1689 Treaty of Nerchinsk relating to Sino-Russia border conflicts.

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of the Opium War (1839–42) and Qing officials’ participation in two Hague Peace Conferences.2 Following the overthrow of the Qing (Manchu) empire in 1912, the newly founded Republic of China (ROC) government upheld the concept of civilized nations, so that China could ‘obtain the rights of a civilized state.’3 In Republican China from 1912 to 1949, university education and academic societies largely accelerated international law knowledge. China’s first-generation international lawyers took part in the League of Nations and contributed to the founding of the United Nations (UN). ROC diplomats and judges, including Wang Chung-hui (王寵惠1920–30; 1931–36) and Cheng Tien-hsi (鄭天錫1936–45) of the Permanent Court of International Justice and Hsu Mo (徐謨1946–56) and Wellington Wei-jun Koo (顧維鈞1957–67) of the International Court of Justice, advanced the nation’s international status during World War II and in the post-war era.4 They also significantly enhanced the ROC’s international law capacity after it relocated to Taiwan following the civil war (1947–49) with the Chinese communist forces. Since 1949, the ROC’s new international law challenges shifted to its diplomatic competition in the international community with the People’s Republic of China (PRC) on the Chinese mainland.

9.2 The Formative Years of the Yearbook There are two pivotal events that prompted the idea for publishing a Taiwan-focused international law yearbook. First, the 1971 UN General Assembly Resolution 2758 transferred the ROC’s ‘China’ representation to the PRC. Notably, the title “Republic of China” continues to remain in Articles 23 and 110 of the UN Charter. Second, Washington decided to switch diplomatic recognition from Taipei to Beijing in 1979 but continued to keep “unofficial” relations with Taiwan. Diplomats and legal academics realized that the ROC’s state practices and agreements were no longer included in UN materials and the ‘Treaties in Force’ published by the US Department of State.5 Accompanied by the wave of de-recognition, the decrease in Taiwan’s visibility on the global stage weakened the ROC government’s diplomatic capacities. An international law yearbook pertinent to Taiwan could thus serve two fundamental purposes. First, it documents the ROC’s participation in international organizations and bilateral relations, including particularly those treaties and agreements concluded with the United States, which de-recognized the ROC 2 The

term ‘unequal treaties’ was first coined by the Chinese Nationalist Party (KMT). See Chiu 1972. 3 Proclamation of President Sun Yat-sen on the Establishment of the Republic of China on 1 January 1912. 4 For details, see Hsieh 2015. 5 Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force, US Department of State, https://www.state.gov/treaties-in-force/ (accessed 27 August 2019). After 1979, the US Federal Register includes only the reference number rather than the text of the ROC-US agreements.

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diplomatically in 1979 but re-recognized Taiwan domestically as a foreign state or government under the Taiwan Relations Act (TRA) in the same year. These official materials that symbolize the sovereign status of the ROC counter the PRC’s claim to be the ‘only legitimate government of China.’ Second, the publication provides a forum for scholarly works that focus on legal issues related to Mainland China and Taiwan such as cross-strait relations. It also enables foreign academics and governments to understand Taiwan’s domestic implementation of international law in legislation and judicial decisions irrespective of its diplomatic isolation. The predecessor to the current Yearbook is the Annals of the Chinese Society of International Law (CSIL). Nineteen volumes of the Annals were published in English from 1964 to 1982. As its title suggests, the Annals was affiliated with the CSIL, an academic society that was established in Taipei in 1958 and joined the International Law Association (ILA) in 1961.6 As the first CSIL president, Tien-fong Cheng ( 程天放), emphasized in the first volume, the purpose of the Annals was ‘to arouse the interest in and to propagate the study of international law.’7 The first Editor-inChief of the Annals was Professor Yi-ting Chang (張彝鼎) of National Chengchi University (NCCU), a former secretary to Generalissimo Chiang Kai-shek. From Volume 7, Professor Yuen-li Liang (梁鋆立) assumed the Editor-in-Chief position.8 Liang had served as the Director of the UN Secretariat’s Division of Development and Codification of International Law before he returned to Taiwan. While almost all editors were based in Taiwan, Professor Bing Cheng (鄭斌) of the University College London, a leading authority on air and space law, joined the editorial board in 1970 and contributed several articles to the Annals.9 While the Annals gathered a team of international law scholars, the fact that it was only published in Taiwan severely limited its distribution. In 1981, President Yi-ting Chang of the CSIL invited Professor Hungdah Chiu of the University of Maryland School of Law to serve as the Editor-in-Chief and to compose a new editorial board for the new Yearbook that replaced the Annals.10 Chiu’s scholarship, capability and international prestige significantly influenced foreign and domestic legal scholars who focus on China and Taiwan issues. He was a key figure to advocate and advise for the passage of the TRA of 1979 by the U.S. Congress. The TRA preserves the legal status of the ROC as a foreign state or government under US law in US courts

6 Chen

2003. 1964. 8 Yuen-li Liang was listed as the Editor-in-Chief from Volume 7 (1970) to Volume 10 (1973) and Yi-ting Chang was primarily responsible for subsequent volumes of the Annals. Chen 2005. 9 Bin Cheng is the son of Judge Cheng Tien-hsi of the Permanent Court of International Justice. His contributions include Bin Cheng (1981) Moon Treaty: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies within the Solar System Other Than the Earth, December 18, 1979. 18 Annals of the Chinese Society of International Law 1 and Bin Cheng (1994–95) How Should We Study International Law? 13 Chinese Yearbook of International Law 214. 10 The Chinese version of the Yearbook 中國國際法與事務年報 (with similar but different contents from the English version), which was published by Taiwan Commercial Press, includes 17 volumes from 1989 to 2003. Chiu also served as the first Editor-in-Chief. 7 Cheng

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and the ROC embassy property known as the ‘Twin Oaks’ Estate even after the United States established diplomatic relations with the PRC.11 Since its initial publication in 1981, the format of the Yearbook has been influenced by that of British, Canadian, German and the Netherlands Yearbooks of International Law, as well as the American Journal of International Law. Based on Professor Chiu’s suggestions, the title of the Yearbook includes the word ‘affairs’ because international law is intertwined with foreign affairs, particularly in the case of Taiwan.12 Different from the previous Annals, the new Chinese Yearbook of International Law and Affairs was published in the United States with the financial support of the CSIL.13 On Mainland China, the PRC’s Chinese Society of International Law, which was founded in 1980, only started publishing its Chinese Yearbook of International Law in Chinese in 1982.14 Operated by Mainland Chinese scholars, the Chinese Journal of International Law, published in English, commenced publication in 2002.15 Distinct from the Yearbook published in Beijing, the Journal is affiliated neither with the PRC’s Society nor its government and only includes limited PRC state practice materials.

9.3 The Current Operation and Challenges In 2001, the executive board meeting chaired by CSIL President Ying-jeou Ma passed a resolution to change the title of the Yearbook to the Chinese (Taiwan) Yearbook of International Law.16 The resolution was to differentiate the Yearbook from the one published in Mainland China and to reflect the change of the CSIL’s title in the ILA from the China (Taiwan) Branch to the Chinese (Taiwan) Branch in 1976.17 In addition, Chiu stepped down as the Editor-in-Chief after being responsible for 11 Based on the Taiwan Relations Act (22 U.S.C. § 3303 (2000)), the US court recognized that Taiwan is deemed ‘as if derecognition has not occurred.’ Dupont Circle Citizens Ass’n v. D.C. Bd. of Zoning Adjustment, 530 A.2d 1163, 1170 (D.C. 1987). 12 Chang 1981. 13 The funding contributed to the East Asian Legal Studies Program of the University of Maryland School of Law. Two full-time staff members and editors, Chih-Yu T. Wu and Yu-fan Li, were recruited to assist Hungdah Chiu. The predecessors to Wu and Li were Shirley Lay and Su Yun Chang. 14 Introduction to the Chinese Society of International Law, 10 May 2014, https://www.csil.cn/News/ Detail.aspx?AId=16, accessed 28 August 2019. In 1983, Beijing’s Chinese Society of International Law published the ‘Selected Articles from Chinese Yearbook of International Law’, which translated Volume 1 of their Yearbook into English. Subsequent volumes were not accompanied by English translations. 15 Chinese Journal of International Law, https://academic.oup.com/chinesejil/issue/1/1, accessed 28 August 2019. 16 Volume 19 (2001) is the first volume of the Yearbook that uses the revised title. 17 Chen 2003, at 423. As of 2019, the People’s Republic of China has yet to accede to the International Law Association.

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volumes 1–22 of the Yearbook. In 2007, Ma succeeded as the Editor-in-Chief and moved the editorial board back to Taiwan.18 When Ma was elected ROC President in 2008, he simultaneously served as the Editor-in-Chief during his eight-year presidential terms. From Volume 23, Professor Chun-i Chen of NCCU became the Associate Editor-in-Chief and Executive Editor. At the invitation of Chen, Pasha L. Hsieh, who was a legal affairs officer at the World Trade Organization, joined the editorial board as the Managing Editor. Under the supervision of Pei-Lun Tsai, the Associate Editor, student editors at NCCU and Singapore Management University have assisted in editing the Yearbook. Since 2015, NCCU’s Research Center for International Legal Studies and its Hungdah Chiu International Law Library have also provided academic and logistical support to the editorial board. There are two important steps that the editorial board of the Chinese (Taiwan) Yearbook of International law took in order to increase its impact on academic and professional communities. First, we have significantly ‘internationalized’ our editorial board in the past decade. Our editorial board encompasses members of the advisory board and editors. Senior colleagues who joined the advisory board in recent years include Professor Jerome A. Cohen of New York University, Professor Jacques deLisle of the University of Pennsylvania, Professor Stefan Talmon of the University of Bonn, and former Judge Helmut Tuerk of the International Tribunal for the Law of the Sea (ITLOS). Almost all advisory board members have visited Taiwan and consistently provided feedback to the Yearbook. Our editors who ensure the efficient review and editing of our submissions are professors and judges in Mainland China, Japan, Singapore, Taiwan and United States. With the assistance of editors and invited external reviewers, we are able to reach the publication decision and provide review comments within four to six weeks from the dates of submission. Second, the commercialization and digitalization of the Yearbook have become critical to the timely dissemination of developments in contemporary international law. Commercialization denotes the academic society’s cooperation with established publishers with experience in marketing. It also substantially reduces human resource costs for the editorial board and enhances the efficiency of publication. From Volume 22 to 30, the Yearbook was published by CMP Publishing (formerly Cameron May).19 Since Volume 31, Brill Publishers (Brill) became the publisher of the Yearbook.20 Unlike journals, yearbooks are published on an annual basis and the fact that volumes are often published one or even two years behind the year that the volume actually presents can undermine the prospective authors’ interests in submission. We find it efficient to complete typesetting in Leiden, where Brill is based, in six months. Complimentary copies are also directly mailed to authors and main research institutions from the Netherlands.

18 Ma

has been the Editor-in-Chief for Volume 23 (2005), which was published in 2007, to Volume 37 (2019), which is expected to be published in 2020. 19 The agreement was concluded in 2007. 20 The agreement was concluded in 2015.

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The salience of digitalization responds to the reality of contemporary legal research that relies more on electronic files. Many university libraries also tend to subscribe to lower-cost electronic versions of publications. Consequently, based on the CSIL’s agreements with William S. Hein & Co., Inc. and Thomas Reuters, all volumes of the Yearbook are made available on HeinOnline and Westlaw.21 Furthermore, Brill’s website allows the purchase of files of Yearbook chapters on an individual basis. The royalty payments that we have received demonstrate the increase in the use of the Yearbook’s electronic files over its print copies.

9.4 Contents Focused on Asia and International Law In comparison with law journals, the Yearbook aims to publish scholarly works that address more doctrinal, historical and fundamental legal issues. Most volumes of the Yearbook are divided into the following sections. The Articles section covers three key areas or ‘selling points’ that make the Yearbook authoritative in international law scholarships. First, the section focuses on the legal status and foreign agreements of the ROC on Taiwan, cross-strait relations, and the status of Hong Kong in light of the 1984 Sino-British Joint Declaration and the PRC Basic Law.22 Second, the section provides rich literature on the concept of divided states after World War II, the criteria of statehood, recognition of states and governments in international law, state immunity and succession.23 These issues are closely intertwined with the pragmatic legal challenges that Taiwan has faced. Finally, the section puts a particular emphasis on the law of the seas research on Diaoyutai/Senkaku Islands in the East China Sea and the Taiping/Itu Aba Island in the South China Sea.24 As the ROC has exercised effective control over the Taiping Island (the largest natural island among the Spratly Islands) since 1945, the Yearbook offers first-hand information on the area. For example, Volume 33 of the Yearbook reprints the CSIL’s amicus curie submission to the Tribunal of the South China Sea Arbitration in 2016, which dealt with disputes between the PRC and the Philippines. The CSIL’s 400-page submission includes a variety of scientific and photographic evidence to demonstrate that the Taiping Island meets the definition of ‘an island’ rather than a rock under Article 121 of the UN Convention on the Law of the Sea. Volume 34 includes a special section on the decision of the South China Sea Arbitration, contributed by German, Taiwanese, Vietnamese and US scholars. In addition to academic articles, our Essays section includes personal reflections of prominent legal scholars. A leading Chinese law expert, Professor Jerome A. Cohen, authored the first essay that explains the beginning of his research on the 21 The two agreements were signed in 2007 and 2009, respectively, and continue to be implemented by Brill Publishers. HeinOnline also includes electronic files of the previous volumes of the Annals. 22 E.g. Chiu 1988–89; Mushkat 2013. 23 E.g. McWhinney 1997–98; Roth 2012. 24 E.g. Ma 1982; Yu 1989–90; Chiu 1996–97; Shaw 2008.

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legal system of ‘red China’ in the 1960s.25 The Special Report section provides a concise analysis of contemporary Asia or Taiwan-specific events and compiles relevant official documents that facilitate easy reference for readers. For instance, the section includes detailed information on the Kuang Hua Liao (光華寮in Chinese and Kokaryo in Japanese) case rendered by Japanese courts on the ownership of the dormitory property that the ROC purchased in 1952.26 It also covers the first-ever Beijing-Taipei free trade agreement entitled the ‘Cross-Strait Economic Cooperation Framework Agreement’ (known as the ECFA) of 2010.27 Tellingly, the Contemporary Practice and Judicial Decisions section compiles selected official documents on the ROC government’s position on key issues, ranging from its participation in the World Health Assembly to the legalization of same-sex marriage. Assisted by judges and Lee and Li Attorneys-at-Law, the section includes translations of judicial and administrative interpretations of Taiwan’s application of international law. To illustrate, the issues cover the court’s recognition of arbitral awards in line with the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the implementation of the 1966 International Covenant on Civil and Political Rights in cases involving the death penalty. The Treaties/Agreements section also provides a chronological list of international agreements that Taiwan concluded with international organizations and countries with which Taiwan has and does not have diplomatic relations. Selected texts of critical agreements are also reprinted in the section. Some volumes of the Yearbook also contain the Book Review section that includes review comments on monographs and edited collections relating to legal issues on Taiwan or the Asia–Pacific.

9.5 Collaboration with the ILA and ASIL To promote the Grotian moment in Asia, we have strived to enhance the quality and quantity of submissions to the Yearbook. Other than regular email submissions, the Yearbook accepts submissions via ExpressO, an online manuscript delivery service that many US-based law journals use. As QS World University Rankings that take into account citations in the Scopus database became increasingly influential, academics in the region (particularly junior scholars) prefer to submit manuscripts to Scopusindexed journals. The Yearbook is currently going through a review process for it to be a Scopus-indexed publication. More importantly, the Yearbook and the CSIL have organized international conferences with the ILA and the American Society of International Law (ASIL). Members of ILA branches in Australia, Japan and Korea have actively participated in these events. The proceedings and selected articles from speakers have been published in 25 Cohen

2015. 2007. 27 Hsieh and Tsai 2010. 26 Chen

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the Yearbook. Holding the conferences not only provides a forum for Asia-focused international law scholars, but also increases submissions from both prominent jurists and young scholars. Organized by the Yearbook’s late Editor-in-Chief, Hungdah Chiu, the first ILA’s Asia–Pacific regional conference was held in Taipei in 1995. ILA President, Ricardo R. Balestra and Chairman of the Executive Council of the ILA, Lord Slynn of Hadley gave the opening remarks.28 The CSIL also hosted the ILA’s 68th Biennial Conference in 1998, in which President of the ITLOS, Judge Thomas A. Mensah and Professor Louis B. Sohn, delivered keynote speeches on the law of the sea and international law.29 To commemorate the centennial anniversary of the founding of the ROC, the CSIL held the ILA’s Asia–Pacific regional conference in 2011. The current Editor-inChief, also the ROC President Ying-jeou Ma, gave his welcome address and explained Taiwan’s Mainland China policy based on the ‘mutual non-recognition of sovereignty and mutual non-denial of governing authority’ principle. Distinguished speakers include ILA President Nicolas J. Schrijver, the Chair of the Executive Council of the ILA, Lord Mance, and Justice Mariano C. Del Castillo of the Supreme Court of the Philippines. The keynote speeches of Judge Helmut Tuerk, Vice President of the ITLOS, and ASIL President David Caron are included in the Yearbook.30 Further collaborating with the ASIL, the CSIL organized the biennial ILA-ASIL Asia–Pacific Research Forum since 2013.31 Invited guests, including Brill’s International Law Publishing Director, Marie M. Sheldon, also met with President Ma and discussed regional developments and the Yearbook operation in the Presidential Office. The recent forums have focused on the South China Sea, mega-regional trade agreements and human rights issues. Prominent speakers include ASIL President Lori Damrosch, Professor Torsten Stein, President of the ILA’s German Branch, and Chief Justice Michael Hwang of the Dubai International Financial Centre. At the recent 2019 Research Forum, Dr. Christopher Ward, President of the ILA and its Australian Branch, gave the inaugural Hungdah Chiu Lecture. The regional events that the CSIL and the Yearbook organize have fortified the ‘voice of Asia’ in international law research and cultivated the interests of academics and lawyers in exploring Asia-related legal issues with global significance. In our experience, the open call for papers has enabled the organizing committee and the Yearbook to attract scholars across the globe and the mere 40% acceptance rate indicates the quality of their submissions. Looking forward, we will seek additional funding to sponsor young scholar awards, and with senior academics’ comments, help junior colleagues publish in the Yearbook. Furthermore, we noted that British, Japanese and the Netherlands Yearbooks of International Law and other eminent 28 13

Chinese Yearbook of International Law and Affairs 9, 10–14 (1994–95). Chinese Yearbook of International Law and Affairs 50, 62–79 (1997–98). 30 29 Chinese (Taiwan) Yearbook of International Law and Affairs 172, 183–200 (2011). 31 Yearbook editors, Chun-i Chen and Pasha L. Hsieh, served as Co-Chairs of the American Society of International Law-Pacific Rim Region Interest Group from 2016–18 and 2018–20, respectively. Recent research forums were organized with the Interest Group and financially supported by the Chinese (Taiwan) Society of International Law and NCCU. 29 16

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journals have published articles on Taiwan’s legal status.32 Many of the highlydebated issues are not geographically confined but are instead pivotal to international law developments. Consequently, we look forward to enhancing collaboration with our colleagues and promoting the universalization of international law. Acknowledgements We thank Professor Pei-Lun Tsai for participating in the Netherlands Yearbook of International Law—50th Anniversary Seminar in The Hague and Sicong Chen for his research assistance. Previous volumes of the Yearbook are available on the website of Brill Publishers: https://brill.com/view/serial/CTYB. Inquiries about the Yearbook and the chapter can be directed to [email protected].

References Chang Yi-ting (1981) Foreword. 1 Chinese Yearbook of International Law v, v. Chen CV (2005) Foreword. 23 Chinese (Taiwan) Yearbook of International Law and Affairs 11, 11. Chen Chun-i (2003) Chinese (Taiwan) Society of International Law – An Academic Society that Actively Promotes International Law Research [中華民國國際法學會 - 一個積極推動國際法 學研究的學術社團]. 17 Chinese Yearbook of International Law and Affairs 415, 415–417 (in Chinese). Chen Chun-i (2007) The Kuang Hua Liao (Kokaryo) Case. 25 Chinese (Taiwan) Yearbook of International Law and Affairs 139. Cheng Tien-fong (1964) Foreword. 1 Annals of the Chinese Society of International Law 1, 2. Chiu Hungdah (1972) Comparison of the Nationalist and Communist Chinese Views of Unequal Treaties. In: Cohen, Jerome A. (ed) China’s Practice of International Law: Some Case Studies 239, 241–246. Chiu Hungdah (1988–89) International Legal Status of the Republic of China. 8 Chinese Yearbook of International Law and Affairs 1. Chiu Hungdah (1996–97) Analysis of the Sino-Japanese Dispute over the T’iao yutai Islets (Senkaku Gunto). 15 Chinese Yearbook of International Law and Affairs 9. Cohen JA (2015) Establish Yourself at Thirty: My Decision to Study China’s Legal System. 33 Chinese (Taiwan) Yearbook of International Law and Affairs 1. Hsieh PL (2015) The Discipline of International Law in Republican China and Contemporary Taiwan. 14:1 Washington University Global Studies Law Review 87, 104–119. Hsieh PL, Tsai Pei-Lun (2010) Cross-Strait Economic Cooperation Framework Agreement (ECFA). 28 Chinese (Taiwan) Yearbook of International Law and Affairs 204. Ma Ying-jeou (1982) East Asian Seabed Controversy Revisited: Relevance (Or Irrelevance) of the Tiao-Yu-T’al (Senkaku) Islands Territorial Dispute. 2 Chinese Yearbook of International Law and Affairs 1. McWhinney E (1997–98) New International Law and International Law-Making: New Thinking on Recognition and State Succession. 16 Chinese Yearbook of International Law and Affairs 33. Mushkat R (2013) The Intricacies of Implementation International Law: A Juxtaposition of Theories with the Actualities of the Sino-British Declaration regarding the Future of Hong Kong. 31 Chinese (Taiwan) Yearbook of International Law and Affairs 1. Oda S (2011) Taiwan as Sovereign and Independent State - Status of Taiwan under International Law. 54 Japanese Yearbook of International Law 386.

32 E.g.

Sik 1982; Serdy 2004; Oda 2011.

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Roth BR (2012) Parsing Mutual Non-Recognition and Mutual Non-Denial: An International Law Perspective on Taipei’s Current Framework for Cross-Strait Relations. 30 Chinese (Taiwan) Yearbook of International Law and Affairs 15. Serdy A (2004) Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity. 75:1 British Yearbook of International Law 183. Shaw Han-Yi (2008) Revisiting Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order. 26 Chinese (Taiwan) Yearbook of International Law and Affairs 95. Sik KS (1982) The Dutch-Taiwanese Submarines Deal: Legal Aspects. 13 Netherlands Yearbook of International Law 125. Yu S Kuan-Tsyh (1989–90) Who Owns the Paracels and Spratlys – An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims. 9 Chinese Yearbook of International Law and Affairs 2.

Chapter 10

Czech Yearbook of Public and Private International Law on the Occasion of Its 10th Anniversary: Achievements and Perspectives Pavel Šturma

Contents 10.1 The History of the Czech Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 The Development of the Czech Yearbook over Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 The Function and Impact of the Czech Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 The Future of the Czech Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Czech Yearbook of Public and Private International Law will celebrate its 10th anniversary. It was established by the Czech Society of International Law in 2010. It was done thanks to the Board and members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such specialized journal or yearbook. The Czech Yearbook, in spite of a difficult beginning, has succeeded to attract a sufficient number of authors and readers in the Czech Republic and abroad. It found its place among other similar publications on international law. Therefore, it looks with a moderate optimism into the next decade. Keywords Czech Society of International Law · Czech Yearbook · history · development · future · impact

Prof. Dr. Pavel Šturma is professor and head of the Department of International Law at Charles University, Faculty of Law, Prague, and member of the UN International Law Commission, Geneva. He serves as Editor-in-Chief of the Czech Yearbook of Public and Private International Law. P. Šturma (B) Department of International Law, Faculty of Law, Charles University, Prague, Czech Republic e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_10

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10.1 The History of the Czech Yearbook The Czech Yearbook of Public and Private International Law (CYIL)1 is a publication 2 ˇ acting in cooperation of the Czech Society of International Law (CSMP—CSIL), with the Czech Branch of the International Law Association (ILA). The Czech Society was established in 1993 as the successor of the Czechoslovak Society of International Law, acting under the auspices of the Czechoslovak Academy of Sciences from 1950s. The current CSIL is a non-for-profit, scholarly organization, established in a form of association (spolek) under Czech civil law. It is a member of the Council of Scientific Societies of the Czech Republic, through which it receives subsidies for its activities. The registered seat of the Czech Society and its Yearbook is at the premises of the Institute of Law of the Academy of Sciences of the Czech Republic in Prague. It clearly reflects the genuinely academic and non-for-profit nature of the Czech Yearbook. The Czech Society closely cooperates with the Czech Branch of the International Law Association (ILA) and with foreign societies for international law.3 The ILA Branch represents, through its members, the Czech scholarship of international law in various international scholarly organizations, at international conferences and on other similar occasions. One of the main activities of the Czech Society is publishing the Yearbook. In a sense, our Yearbook, (re)established, under the name “Czech Yearbook of International Law” in 2010, draws inspiration from and builds on the best democratic traditions of the Czechoslovak scholarship of international law, as well as the very first Czechoslovak Yearbook of International Law published by the Czechoslovak Branch of ILA in London (1942). It is symptomatic that the first Yearbook appeared in the darkest days of the War and the Nazi occupation of Czechoslovakia and most other countries of the continental Europe, thanks to the effort of Czechoslovak lawyers associated with the Czechoslovak Government in Exile in London. Our modern Czech Yearbook also recognizes the legacy of the later, post-WW II Czech and Slovak international legal scholarship reflected mainly in two other periodicals published, with some interruptions, between 1955 and 1990. This may open two additional questions. What did happen with the two other Czech (or Czechoslovak) international law periodicals? And why was the modern Czech Yearbook established as late as in 2010? The former journals and yearbooks had a complicated history, reflecting the general history of communism and revolution in Czechoslovakia. The first of them ˇ was the Journal for International Law (Casopis pro mezinárodní právo), published in Czech language in the former Czechoslovakia from 1957 until 1971. This journal with four issues per year received contributions on both public and private international law from leading Czech and Slovak academics and practitioners. Its quality, in 1 See

www.cyil.eu. ˇ Czech: Ceská spoleˇcnost pro mezinárodní právo; see www.csmp-csil.org. 3 Recently, the CSIL was represented and took an active part in the World Meeting of the Societies for International Law, held in The Hague (Peace Palace, 2–3 September 2019). 2 In

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particular in the 1960s, was comparable with foreign journals of international law. It was discontinued for political reasons after the suppression of the democratic reform movement (the so-called Prague Spring) by the Soviet intervention in 1968, because some articles or their authors became unacceptable.4 The second periodical that existed in the past was Studies in International Law (Studie z mezinárodního práva), published by “Academia”, the publishing house of the Czechoslovak Academy of Sciences in Prague. This was a different kind of publication, similar more to a yearbook rather than a journal, appearing less regularly but mostly one volume per year. The Studies accepted rather longer studies than short articles on various topics of public and private international law and even on then EC law, which was a little-known branch of law in socialist Czechoslovakia before 1990. Although most contributions came from Czech and Slovak authors and were written in their mother tongues, the Studies also accepted, in particular in the 1980s, studies written in other languages (English, French, German) and even by foreign authors. This trend became stronger in the late 1980s. However, the story ended with volume 23 in 1990. This time, the reason for discontinuation was not political but economic in nature. The first years of the economic transformation and the breakthrough of the market economy in the early 1990s brought a disruption or at least major financial problems for publishers of academic publications. The traditional state-owned publishing houses discontinued or limited their activities, and it took a while before the new, private or foreign publishers started to explore the unchartered waters of the book market in Czechoslovakia and the Czech Republic (since 1993). Neither private nor foreign publishers were interested in specialized international law publications with a too low circulation to become profitable. In other words, with the exception of textbooks and law commentaries, legal publications (and in particular on public international law) did not have an easy life at all. This situation started at change at the end of the 1990s and in the first decade of the new millennium. The academic or university publishing houses restarted and new private publishers, including the local branches of foreign or multinational companies expanded their activities. However, the growing number of books and new law journals reflect mostly the demand of law professionals: practicing lawyers, judges, prosecutors, etc. Public international law remains at the margins because of the limited numbers of both readers and authors. Indeed, law practice in public international law is exercised in London, New York or Paris, rather than in Prague or Bratislava. It is a kind of paradox that the Czech and Slovak international lawyers had more opportunities to publish in their specialized periodicals in Czechoslovakia in the 1960s or 1980s than in the free, democratic and economically growing Czech Republic. This is particularly in contrast with the upscale position of international law in the Czech legal order. First, the 1993 Czech Constitution made international conventions on human rights directly applicable and prevalent over national laws. Then, the 2001 amendment to the Constitution even expanded the role of international 4 See,

ˇ e.g., Cepková 1968; Mencer 1969a, b.

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law, declaring that the Czech Republic respects its obligations arising from international law. Article 10 of the Constitution was amended to incorporate all binding international treaties, ratified after the consent of the Parliament and promulgated into the Czech legal order. Another provision provided for a status of treaties whereby the Czech Republic may transfer some competences to an international organization or institution, opening the way to the accession to the European Union and to effects of EU law.5 In addition, some authors who went abroad or left academic posts for practice in the early 1990s returned fully or in part to the academia. Moreover, a new generation of students or lawyers in international law, who did not even remember the situation prior to 1990, appeared. Last but not least, the generation born in the 1960s, which graduated and entered into professional life just before 1990 and experienced studies or research stays abroad, came to senior or leading positions. It was felt that a journal or a yearbook of international law was lacking. At the same time, the enthusiasm of some members of the CSIL and its Board and external pressure (in particular, the introduction of academic evaluation for the authors working at universities and other research institutions) led to the conclusion that international legal scholarship would need a periodical in English, open to both Czech and foreign authors. While there were possibilities to submit articles for review and possible publication in foreign journals, the high number of contributions and the level of competitiveness are obstacles, in particular for young authors who have no experience with publications in English. The lack of its own journal or yearbook thus means a comparative disadvantage for the small but growing community of international lawyers, in particular in a relatively small country like the Czech Republic. In brief, after one or two years of debate, the Board of the Czech Society of International Law decided to launch a new publication in the form of a Yearbook. The first volume appeared in October 2010. It was decided to establish a yearbook rather than a journal of international law for various reasons. Not being institutionally linked to any Czech university (Faculty of Law) or the Academy of Sciences, the Czech Yearbook is a publication of the CSIL, a not-for-profit scholarly association with limited financial resources and no full-time staff. In other words, the members of the Editorial Board as well as the Editor-in-Chief do their work as volunteers. Therefore, the demanding tasks of editorial work are manageable if done once a year. It would be much more difficult if instead of a yearbook there was a journal that had three or four issues per year. At the same time, the Board of the CSIL was not sure that the new periodical would attract a sufficient number of quality articles in English to fill more issues per year. The number of journals and yearbooks of international law worldwide is significant and any new title has to struggle to become known to and interesting for authors and readers. The fact that it is not linked to one academic institution (for example, one of the Law Faculties) necessitates fund-raising to maintain the regular publication of one volume every year. However, the independent status of the Czech Yearbook that belongs to the Czech Society also has certain advantages. The Yearbook is much 5 See,

e.g., Malenovský 2004. Cf. also Malenovský 2017.

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more inclusive because its authors do not come predominantly from one institution. The CSIL includes members from all Czech and some Slovak faculties of law, other schools and research institutes, as well as lawyers from the Governmental bodies (mainly the Ministry of Foreign Affairs) and private law firms. It seems that such diversity is helpful from the perspective of both authors and readers. Moreover, any change in the position of a Dean or Vice-Dean responsible for research and publications at one or another Faculty does not have an impact on our Yearbook. Finally, the members of the Editorial Board have no reasons, even implicit, to favour contributions from a given academic institution. Instead, the Czech Yearbook has always been open for contributions from any Czech or foreign author.

10.2 The Development of the Czech Yearbook over Time As was mentioned above, the first volume of our Yearbook appeared in October 2010 under the title “Czech Yearbook of International Law”. This was almost 20 years after the end of the Studies in International Law published then by the Czechoslovak Academy of Sciences. From its very beginning the Yearbook was shaped according to models of some well-known foreign yearbooks. It has an emphasis on Public International Law but also accepts contributions from the fields of Private International Law and EU Law. Nevertheless, the short title that is also reflected in the abbreviation used in our Web domain (www.cyil.eu) seemed to be preferable for the editors recruited mainly from the Board and members of the Czech Society (CSIL). However, soon after the publication of the first volume, the Czech Yearbook had to change its name. It was not the intention of the Editors but rather the result of an unfortunate development that offset to some extent the satisfaction of the epistemic community (at least the majority of members around the CSIL) that the Czech scholarship of international law finally had its own English-language journal or yearbook. It happened that after more than two decades of the lack of any international legal periodicals in our country, two publications named “Czech Yearbook of International Law” appeared within the space of a few months in 2010. The other “Czech Yearbook” was a private project,6 interested mainly in Private International Law and commercial or investment arbitration. This also reflects the content of the other Yearbook, published first by Juris Publishing (NY, USA), probably with an important subsidy, later by Lex Lata, BV, a company newly established for that purpose. In spite of the fact that the parallel existence of two Czech Yearbooks might have created some confusion for foreign readers, the original idea was to “let blossom all flowers”. However, this atmosphere did not last. Although the original project of the Czech Yearbook was born and long discussed within the CSIL, the owner of the other Yearbook registered the name as a trade mark. The CSIL and in particular the small Czech private business that ensured the type-setting and printing of our Yearbook 6 The

project was run by one Czech lawyer and arbitrator. See www.czechyearbook.com.

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faced the threat of lawsuits. In 2011, however, we reached a friendly settlement regarding the emerging dispute. The agreement meant the title was changed. From volume 2 (2011), we became “Czech Yearbook of Public and Private International Law”. The Yearbook did not change anything but the name, having basically the same content, with a wide range of articles from all areas of international law. However, despite some doubts, our Czech Yearbook that never had the same funds as the other project not only survived but also attained recognition in the academic community as a truly academic periodical publication. This was possible thanks to the great effort of all those associated with the project, namely the Board of the CSIL, editors, authors and even some sponsors. We ensured regular publication: the Czech Yearbook appears in autumn (usually in October or November) of each calendar year. The continuing publication of our Yearbook is also facilitated by some technological developments that made low-cost academic publications feasible. First, we have relied on a digital print that makes economically sustainable even publications with 200–300 copies. Indeed, this is an average number of printed copies of our Yearbook, Second, we have also introduced an on-line version of the Yearbook, accessible to be read for free. The combination of the printed and on-line versions thus helps to keep the costs reasonable and provides the publication with a broader impact. Beginning with volume 3 (2012), we have offered the electronic version in a userfriendly format of an E-book, suitable for PCs, notebooks and tablets. Since 2014, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals by the Governmental Research Council (RVVI). From volume 5 (2014), the Czech Yearbook has been published by the new international (Czech-German) publishing project, RW&W (Passau-Berlin-Prague), and distributed through the company Südost Service GmbH abroad, mostly in Germany. The most important achievement took place in 2015 when the Czech Yearbook was included in the Scopus international database. Of course, this also enhanced the prestige of the Yearbook and the interest of Czech and foreign authors to submit their articles. In 2017, Volume 8 broke the CYIL’s record when it numbered 660 pages. The growth of the Czech Yearbook now ranks it among the larger publications of this kind in an international comparison. However, the size of the Yearbook also warranted some technical improvements, such as a larger format for pages and better paper and cover quality used in the print version.

10.3 The Function and Impact of the Czech Yearbook As is probably the case with many yearbooks of international law, this Czech Yearbook aims at serving multiple functions, for both academics and practitioners. First, it is not a monograph series, it is a real periodical publication. Its regular publication in the autumn of each year is maintained. Second, it is open for contributions from all areas of Public International Law but it also welcomes articles on Private International Law (although they are not many) and on some aspects of EU Law. This

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became a regular section because of the number of authors who contribute. It may be due to the fact that the Czech market of academic law journals does not offer any journal focused on EU law. Third, the Yearbook usually includes one (or more) Symposiums, which is a thematic section announced in the call for papers but accepts also other studies and short articles, as well as book reviews. Moreover, it also has the regular section on “Czech Practice of International Law” that presents, in addition to the list of ratified international treaties which entered into force for the Czech Republic, various kinds of information, including on Czech cases before the European Court of Human Rights. Finally, the Yearbook brings a survey of Czech international law bibliography. Such practical, informative sections are highly appreciated and distinguish the Yearbook from other journals published in our country. The Yearbook covers a wide range of topics, from the history and theory of international law,7 to the international law of human rights and international investment and trade law. To give a better picture, let me present the contents of Volume 9 (2018). In view of the commemoration of the end of WWI and the establishment of Czechoslovakia, it includes first the Symposium on “Czechoslovak State in the Focus of Anniversary”. The other sections are as follows: II. Studies in International Law and Organizations (which is a standard part of all volumes); III. International Law and European Law; IV. Human Rights and International Humanitarian Law; V. Health Law, Ethics, and Human Rights; VI. Views on Investment and Trade Law; VII. Czech Practice of International Law; VIII. Shorter Articles and Notes; IX. Book Reviews; and X. Survey of Czech International Law Bibliography. A variety of articles on different subjects is typical for our Yearbook. Although we support monothematic sections (Symposia), for which subjects are usually selected by the Editors, sometimes proposed by authors, those articles never fill more than one half of the respective volume. We also receive many individual submissions on various topics. This seems to strengthen the periodical (journal-like) character of the Yearbook and may even attract the interest of readers other than those belonging to the relatively narrow community of international lawyers. However, it is fair to say that the unique position of the Czech Yearbook in our country may result partly from the fact that we do not have other well-established journals focused exclusively on international law or EU law. It seems that our Yearbook has its impact mainly on academia. Indeed, this was our intention from the very beginning, as was explained in the historical part of this contribution. It is foremost a means of communication of research papers and information for the members of the epistemic community. The 10-year experience proved that it was a good and timely decision. Both Czech and foreign authors (coming mostly but not exclusively from Central and Eastern Europe) welcomed the opportunity. At the same time, the involvement of some practitioners, mostly from the Ministry of Foreign Affairs, in writing and editing contributions for the Yearbook proved to 7 See,

e.g. Šturma 2010; Kuklík 2018; Jílek 2018.

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be very helpful. Unlike some foreign law journals that became extremely theoretical and difficult to read for persons outside of academia, the Czech Yearbook tries to keep both the academic quality and the practical usefulness of articles. It does not shy from publishing articles written in the traditional style of analytical positivism or even simple informative notes. Therefore, it is also read by lawyers working in diplomatic or other State services and in private practice. However, the Editors do not yet have information if and how much the Yearbook has had an impact on judges and case-law. This remains one of the tasks for the future.

10.4 The Future of the Czech Yearbook The 10th anniversary of the Czech Yearbook is certainly a good occasion not only for evaluating the past but also for looking into the future. Of course, lawyers are not usually good at prognostics. Moreover, it seems to be quite difficult to forecast the position of the Yearbook in the coming ten or twenty years, given the extremely dynamic developments in the market of international law publications and the impact of new technologies. However, the fact that this Yearbook survived its difficult first years and has still more authors and readers allows for moderate optimism. Some measures we took originally because of necessity (a limited budget) may become advantages in the long run. The Yearbook appears in both print and online, which gives us a certain flexibility to increase or decrease the costs. It seems that some readers would prefer printed copies even in the future, while others prefer electronic publications. Of course, the Yearbook is not suitable, by its nature (one issue per year), for a timely publication of short notes or debates on topical issues of international law and relations. Like other similar publications, the Czech Yearbook cannot compete with online journals or discussion webs. Its role is and will be different, as described above. Since the Yearbook is a not-for-profit project of the scholarly association (CSIL), the decisions on its form and content depend on the Editors and the CSIL, not on commercial publishers. This seems to ensure a greater autonomy of the Yearbook. At the same time, it may limit the expansion of the Yearbook unless it obtains sufficient resources. When it comes to the content, one of the gaps that we wish to fill is Czech case-law related to international law, both public and private. This requires involving more authors from among the national judges or research assistants or lawyers working in the field at the Ministry of Justice. From the formal perspective, we will follow new technical editorial and publication tools (such as print-on-demand, an improved catalogue system, etc.). Ultimately, we would consider, together with our publisher, cooperating closely with one of the major European publishers of scientific and legal books, in order to ensure a better impact and a wider distribution of our Yearbook.

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All in all, it seems that there is still space for yearbooks of international law, including the Czech Yearbook of Public and Private International Law, in the future.

References ˇ Cepková A (1968) Pakty — nový standard lidských práv [Covenants – a new standard of human ˇ rights]. Casopis pro mezinárodní právo 12:365. Jílek D (2018) Czechoslovakia: Certificates and Passports of Refugees (1918–1930). Czech Yearbook of Public and Private International Law 9:38–66. Kuklík J (2018) The Establishment of the Independent Czechoslovak State and its Frontiers in the Light of International Law and Politics of 1918–1920. Czech Yearbook of Public and Private International Law 9:3–16. Malenovský J (2004) Mezinárodní právo veˇrejné: jeho obecná cˇ ást a pomˇer k jiným právním systém˚um, zvláštˇe k právu cˇ eskému [Public International Law: General Part and Relation to other Legal systems, in particular to Czech Law] 409–457. Malenovský J (2017) L’agonie sans fin du principe de non-invocabilité du droit interne. Revue générale de droit international public 2:291–334. Mencer G (1969a) K pojmu a podstatˇe intervence na pozvaní [On the concept and substance of the ˇ intervention for invitation]. Casopis pro mezinárodní právo 13:2. Mencer G (1969b) Ius cogens a zásada nevmˇešování [Ius cogens and the principle of nonˇ intervention]. Casopis pro mezinárodní právo. 13:162. Šturma P (2010) The History and Development of the Czech Doctrine of International Law. Czech Yearbook of International Law 1:3–22.

Chapter 11

Ethiopian Yearbook of International Law: Towards Diversifying and Democratizing Voices in the Making and Development of International Law Zeray Yihdego, Melaku Desta and Martha Belete

Contents 11.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1.1 Who Founded It and When? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1.2 Functions of EtYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Development, Function and Impact of the Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.1 Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.2 Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.3 Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 The Future of EtYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Ethiopian Yearbook of International Law (EtYIL) is a young peerreviewed academic journal whose inaugural issue—EtYIL 2016—was published only in 2017. At the time of writing, EtYIL 2019, the fourth issue in the annual series, is under publication. The idea of establishing an EtYIL came out of a perceived need for a dedicated platform for high quality debate and scholarship on international law issues of significance to Ethiopia, the Horn of Africa, and Africa more generally. Its future is full of excitement. The editors, with support and guidance from members of the Advisory Board and other scholars, aimed to use EtYIL as a platform for high quality research and scholarship on international law issues of particular interest to our geographical region of interest. The Yearbook has been received positively by Z. Yihdego School of Law, University of Aberdeen, Aberdeen, UK e-mail: [email protected] M. Desta School of Business and Law, De Montfort University, Leicester, UK e-mail: [email protected] M. Belete (B) Addis Ababa University, Addis Ababa, Ethiopia e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_11

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the community of scholars and practitioners, giving us the confidence and the energy to continue to aim high and progressively establish EtYIL as the preferred outlet for researchers working on international law issues in the context of Ethiopia, the Horn of Africa, and Africa more broadly. Keywords Ethiopia · yearbooks · international law · Africa

11.1 Historical Background 11.1.1 Who Founded It and When? The Ethiopian Yearbook of International Law (EtYIL) was founded in 2015, with its inaugural issue—EtYIL 2016—published only in 2017. Next to the South African Yearbook of International Law that was established in the 1970s,1 EtYIL is only the second peer-reviewed international law yearbook published in sub-Saharan Africa. The main mission of EtYIL from day one has been to contribute towards filling the gap in international law scholarship from the perspective of African countries in general, and Ethiopian and the Horn in particular. With this mission in mind, the idea of launching EtYIL was conceived in Dundee, Scotland, as far back as Spring 2013 when its founders, Professors Zeray Yihdego and Melaku Desta,2 held their first meeting on the subject. Originally from Ethiopia and teaching at two Scottish Universities at the time, Dundee and Aberdeen, these two scholars of international law held a series of discussions on the banks of the River Tay and decided to launch the initiative and started making preparations. At the same time, the two scholars also appreciated that, for such an initiative to be successful and sustainable, it needs to establish and maintain an organic link with the Addis Ababa University (AAU) Faculty of Law, the premier academic institution that was the only of its kind in the country until barely two decades ago. It was then that the two founders invited Dr. Fikremarkos Merso, Associate Professor of Law and former Dean of the Faculty of Law, to join them as a core member of the editorial team, which he graciously accepted.

1 See

de la Rasilla 2019. After the publication contract was signed with Springer, the editors of EtYIL were pleased to learn of the emergence of the Nigerian Yearbook of International Law. 2 The two scholars were joined by Dr. Fikremarkos Merso of Addis Ababa University in 2015. When Dr. Merso resigned for personal reasons in 2017, Mrs. Martha Belete Hailu of the same University joined almost immediately after the resignation. From the outset, the editorial team was assisted by Student Editors—Julide Bredee, Jasmin Hansohm and Emily Hirst. A year later Julide resigned and Abubakri Yekini joined the team. The members of the Editorial Advisory Board’s role in the development of the Yearbook must also be acknowledged. They come from different universities, countries, and disciplines. All of them are dedicated to the aims and purposes of the Yearbook. Their participation in the development of the Yearbook ranges from providing peer-reviewed reports to the Editors to making contributions to the volumes. For details, see https://www.springer.com/ser ies/15093?detailsPage=editorialBoard.

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The editorial team of three then developed a concept note and shared it with a diverse group of senior scholars and practitioners of international law for their feedback. The editorial team then defined the mission of the Yearbook, which was articulated in the maiden issue of EtYIL 2016 as follows: EtYIL is dedicated to those issues of international law that are of particular interest to the African continent in general and Ethiopia and the Horn in particular. EtYIL’s point of departure is the fact that these countries do not just lack adequate representation at the table where international law is made and interpreted; their ability to contribute to the evolution of international law is also severely constrained owing, in part, to their absence from the scholarly debate in the field. A key mission of EtYIL is therefore to provide a platform for purpose-oriented scholarly analysis and debate on issues of particular significance for these countries so as to enhance their capacity to contribute to this evolution. More generally, the Yearbook aims to contribute towards the long-term goal of rebalancing the narrative of international law in a manner that better reflects the diversity of its actors and subjects.3

The editorial team then deliberated on the name of the yearbook. Among the proposals that were given serious consideration were the Horn of Africa Journal of International Law and the Eastern Africa Journal of International Law. However, the team finally settled on the Ethiopian Yearbook of International Law partly driven by a desire to anchor the Yearbook to a particular national legal system with which the editors have the closest affinity. As a nation with one of the oldest and most frequent encounters with international law on the African continent, sometimes as a beneficiary but often as a victim,4 the choice of name of the Yearbook is also designed to reflect the founders’ intention to give Ethiopia a central place in the whole project. This, of course, would not in any way detract from the original intention to ensure EtYIL serves a broader, regional, and even continental purpose. From this perspective, EtYIL complements similar endeavours to give international law the prominence 3 See

Yihdego et al. 2017, at 3. early example here would be Italy’s attempt to use its 1889 Treaty of Wuchale with Ethiopia as an instrument of international law to gain “legitimacy” in the eyes of fellow European colonial powers for its colonial plans over Ethiopia, which was put to rest only after the advancing Italian colonial army was defeated at the Battle of Adwa in 1896. Forty years later, when Italy relaunched its colonial plans and invaded Ethiopia in 1935, the League of Nations, of which both were members, famously betrayed Ethiopia, turning a deaf ear to the personal appeal of Ethiopian Emperor Haile Selassie who challenged the League saying what was at stake was “collective security: it is the very existence of the League of Nations. It is the confidence that each State is to place in international treaties. It is the value of promises made to small States that their integrity and their independence shall be respected and ensured. It is the principle of the equality of States on the one hand, or otherwise the obligation laid upon small Powers to accept the bonds of vassalship. In a word, it is international morality that is at stake. Have the signatures appended to a Treaty value only in so far as the signatory Powers have a personal, direct and immediate interest involved?” The Emperor was prophetic in his diagnosis when he said: “I ask the fifty-two nations, who have given the Ethiopian people a promise to help them in their resistance to the aggressor, what are they willing to do for Ethiopia? And the great Powers who have promised the guarantee of collective security to small States on whom weighs the threat that they may one day suffer the fate of Ethiopia, I ask what measures do you intend to take?” See Haile Selassie, Appeal to the League of Nations (Geneva, June 1936, emphasis added), available at https://www.mtholyoke.edu/acad/intrel/selassie.htm (accessed 15 June 2020). See also Hunt 1957; Stern 1936.

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it deserves in academic and policy discourse on the African continent5 and in the developing world more broadly. Once the name of the Yearbook was decided, its mission articulated, its Advisory Board members appointed, the next question was to choose a publisher. Fortunately, this part of our task was made that much easier because of the speed and professionalism with which Springer responded to our approach.

11.1.2 Functions of EtYIL As indicated already, unlike most journals, EtYIL is dedicated to those issues of international law that are of significant interest to Ethiopia and the Horn of Africa in particular and to Africa and developing countries in general. EtYIL’s point of departure is the fact that these countries do not just lack adequate representation at the table where international law is made and interpreted; their ability to contribute to the evolution of international law is also severely constrained owing, in part, to their absence from the scholarly debate in the field. That is why the very idea of launching EtYIL was motivated by the goal of providing a platform for purposeoriented scholarly analysis and debate on issues of particular significance for these countries to enhance their capacity to contribute to this evolution. It is in this way that the Yearbook aims to contribute towards the long-term goal of rebalancing the narrative of international law in a manner that better reflects the diversity of its actors and subjects. Finally, by compiling and commenting on international materials that largely concern developing countries ranging from national case law, parliamentary debates and relevant regional and UN instruments, the editors aim to broaden the sources and materials scholars and experts of international law refer to when studying, interpreting and developing international law norms and institutions.

11.2 Development, Function and Impact of the Yearbook 11.2.1 Development Since the publication of its maiden volume—EtYIL 2016—in 2017, the editors had clarity of vision as to where to take the Yearbook. EtYIL 2016 came out with contributions from invited authors, with a focus on providing a historical context to some fundamental international issues of particular relevance to Ethiopia, Africa and the wider community of developing nations. Using an editorial titled Towards Rebalancing the Narrative of International Law, the editors laid out an ambitious vision 5 To

our knowledge there are only three additional yearbooks of a similar nature in Africa—The South Africa, African and Nigerian Yearbooks of International Law. There is of course the African Journal of International and Comparative Law.

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to establish a Yearbook that will serve as a credible platform for alternative voices in international law and increasingly become the preferred outlet for cutting edge scholarship on issues of particular relevance for Ethiopia, the Horn of Africa and beyond. The issues covered in that volume include a discussion on: the famous South West Africa Cases before the ICJ,6 the place of international law in Ethiopian Legal System of today,7 Ethiopia’s WTO Accession process,8 decolonisation in the context of Jus Cogens and Erga Omnes obligations,9 natural resources and international investment law,10 the Sustainable Development Goals11 and climate change.12 These major articles were also supplemented with two “current development” pieces relating to the 2015 Declaration of Principles signed between Egypt, Ethiopia, and Sudan relating to the Grand Ethiopian Renaissance Dam13 and on the South Sudan Crisis.14 As can be seen from the historical and current relevance of the issues covered, EtYIL 2016 thus set the bar high for the Yearbook. According to data received from the publisher, EtYIL 2016 has so far been downloaded over 3739 times. The success of EtYIL 2016 meant that the second volume, EtYIL 2017,15 had to match, and preferably exceed, the standards and expectations already set for the Yearbook. To start with, the editorial team was expanded to four with the addition of Ms. Martha Hailu, also of the AAU Faculty of Law, with a view to further strengthening the link between EtYIL and Ethiopia. Secondly, just as the editors used EtYIL 2016 to articulate the mission and vision of the Yearbook, in EtYIL 2017 they chose to focus on one major theme relevant for Ethiopia, the Horn and Africa at large—that of regional integration. The editorial thus introduced the volume by highlighting the need for resolving development, integration and security challenges of developing countries through international law.16 The articles in the volume covered such issues as the law and policy of foreign direct investment in Ethiopia,17 Ethiopian natural resources law in the context of international law,18 the Grand Ethiopian Renaissance Dam and its international law implications for the riparian countries,19 and

6 See

Mbengue and Messihi 2017. Weldemariam 2017. 8 See Bienen 2017. 9 See Allain 2017. 10 See Desta 2017. 11 See French 2017. 12 See Woolley 2017. 13 See Salman 2017. 14 See Hansohm and Yihdego 2017. 15 See 2017 Ethiopian Yearbook of International Law 2. 16 See Yihdego et al. 2018. 17 See Hailu and Yihdego 2018. 18 See Hunter 2018. 19 See Salman 2018. 7 See

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the emerging African Continental Free Trade Area,20 and UN peacekeeping operations.21 The current developments section then adds contributions on the KenyaSomalia Maritime boundary dispute,22 and on Africa and the International Criminal Court.23 This is followed by a case note on Petro Trans Company ltd. v Ministry of Mines of Ethiopia (by Snider et al.). Two short book reviews along with a reprint of a UN Security Council Resolution on peacekeeping complete the volume. It is clear that EtYIL 2017 was also received favourably by our target readership. To use the same metric we used to measure the success of EtYIL 2016 earlier, according to data received from the publisher, EtYIL 2017 has so far been downloaded over 3600 times. EtYIL 2018, the last published volume in the series by the time we submitted this contribution, also saw a change in the composition of the editorial team as we had to accept the resignation of Dr. Fikremarkos Merso from his role due to other commitments, thus reducing the number of the editors back to three once again. It was also with EtYIL 2018 that the editors decided to supplement the title of each volume of the Yearbook from hereon with a sub-title, thus EtYIL 2018 being titled as Ethiopian Yearbook of International Law 2018: In Pursuit of Peace and Prosperity. Needless to say, many of the contributions contained in EtYIL 2018 broadly revolved around the role of international law in the pursuit of peace and prosperity, a choice motivated by the fact that it was from around 2018 that multilateralism and its institutions came under siege—Brexit and trade wars between powerful nations dominating the news headlines, the US withdrawal from the Paris Climate Agreement, etc. But, in 2018, Africa stood out as a region that upheld the principle of rules-based multilateralism, which it demonstrated by the adoption of the AfCFTA Agreement in March of that year. At the regional level, too, 2018 went down as a turning point with the conclusion of a peace agreement between Ethiopia and Eritrea that ended two decades of hostilities between the two countries. Accordingly, the major articles in EtYIL 2018 addressed such issues as the decisions of the Eritrea-Ethiopia Claims Commission,24 the use and misuse of European patent law on Ethiopia’s staple and indigenous grain called Teff,25 the sharing of transboundary water resources in Europe and the lessons that could be learnt by African countries,26 evolving rules governing economic relations between Africa and the European Union in the context of Brexit,27 contractfarming in the African cocoa and chocolate industry,28 cyber-attacks and the role of

20 See

Desta and Gerout 2018. Roberts 2018. 22 See Olorundami 2018. 23 See Mbengue et al. 2018. 24 Snider and Nair 2019; Yiallourides and Yihdego 2019. 25 Melkamu 2019. 26 Reichert 2019. 27 McMahon 2019. 28 Callahan 2019. 21 See

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international law,29 and the law of production sharing agreements on extractives.30 EtYIL 2018 concludes with two current development pieces—on the lifting of UN sanctions against Eritrea, the peace agreements signed between Eritrea and Ethiopia; two book reviews, and a reprint of the relevant UN Security Council Resolution and the peace agreements. Applying once again the same metric we used to measure the success of the first two volumes mentioned above, according to data received from the publisher, EtYIL 2018 has so far been downloaded over 1335 times. In sum, the three volumes in all their aspects—nature of topics, diversity and quality of contributions and contributors have shaped the development of the Yearbook. At the time of writing this contribution, the editors have submitted the fourth volume, EtYIL 2019, and expect its publication by the end of summer 2020. Following the approach adopted in EtYIL 2018, the fourth volume will also have its own subtitle reflecting the pressing challenges faced due to the Covid-19 crisis, thus coming out as Ethiopian Yearbook of International Law 2019: Towards a Global Order Based on Principles of Fairness, Solidarity and Humanity.

11.2.2 Challenges Developing a Yearbook from scratch, maintaining a quality and diversity of content that meets the high standards and aspirations set by the editors in the very first volume, and sustaining it over an extended period of time is no easy task. Among the challenges that have been encountered so far are: (i) overly busy schedules of the editors; (ii) while rising, a still limited number of high quality manuscripts submitted for consideration by prospective contributors; (iii) time constraints faced by our peerreviewers; and (iv) competition with established and highly reputable international law yearbooks and journals. At the same time, the fact that such a young Yearbook as EtYIL has managed to publish a good number of consistently high quality articles every year on a diversity of issues of practical relevance to the target countries provides evidence of the ingenuity with which the editors have addressed these challenges so successfully.

11.2.3 Impact EtYIL’s vision is to foster a culture of ethical and critical scholarship among scholars with an interest in international law issues of relevance to Ethiopia, the Horn of Africa, Africa and beyond so as to help entrench rule of law in inter-state relations. Whether or to what extent EtYIL has achieved any of its purposes is difficult to say at this stage, for two reasons. Firstly, neither the editors nor the publisher have 29 Okwori

2019. 2019.

30 Paterson

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conducted a systematic impact assessment of the Yearbook; the only grounds on which we can claim success is so far limited to the number of downloads and the general hard copy circulation of the Yearbook. Secondly, considering the relative youth of EtYIL, as editors we believe that its distribution is still limited to university libraries and research institutions. Even then, the number of university libraries in our target countries, starting with Ethiopia itself, that can afford to subscribe to the Yearbook remains questionable. At the same time, the fact that EtYIL was recently reviewed favourably by the Scopus International Board, which decided to include it in its index of periodicals, provides independent evidence of EtYIL’s recognition by the scholarly community. EtYIL has also been entered in W&L Law Journal Rankings, thus further suggesting that EtYIL is increasingly being recognized as a credible outlet for serious scholarship in international law.31

11.3 The Future of EtYIL The future of EtYIL is promising. The fact that this is only one of three Yearbooks of international law in sub-Saharan Africa already indicates the yawning gap between the demand for targeted and purposeful scholarship and the supply of it. While there are a large number of international law journals around the world, none of them would easily consider the place of international law in the Ethiopian legal system or report on the decisions of Ethiopian courts relating to international law. EtYIL was launched with Ethiopia as its core but its ambition is greater, covering the Horn of Africa, Africa and even beyond. To ensure EtYIL’s regional and continental ambitions are realized, the editors are consciously seeking to involve scholars from the sub-region and the continent in their editorial work.

11.4 Conclusion Looking back, EtYIL has been a success by all measures. Since the publication of EtYIL 2016, the number of copies sold, both in soft and hard copy, and the reaction from the community of international law scholars and practitioners has been encouraging. At the same time, our decision to launch EtYIL is also our statement of faith in international law. With all its constraints and problems, international law remains an indispensable tool for peaceful co-existence and cooperation among sovereign nations, large and small. With its unequivocal stance on the sanctity of human rights and human dignity,32 coupled with the principles of the rule of law and the peaceful 31 de

la Rasilla 2019. See also the entry regarding the Yearbook with W&L Law Journal Rankings at https://managementtools4.wlu.edu/LawJournals/ (accessed 22 January 2020). 32 See e.g. UN 2004, https://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world. pdf.

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settlement of disputes, today’s international law represents a significant achievement in human history. Yet, to exploit the enormous potential and promise of international law to the fullest and rectify its shortcomings, Ethiopia and its fellow African states cannot afford to continue to stay on the periphery of the scholarly debate that shapes existing international law and its future. All volumes of the Yearbook published thus far attempted to tackle these and related issues from historical, doctrinal, theoretical and practical perspectives.

References Allain J (2017) Decolonisation as the Source of the Concepts of Jus Cogens and Obligations Erga Omnes. Ethiopian Yearbook of International Law 2016 1:35–59. Bienen D (2017) Ethiopia’s WTO Accession at the Crossroads. Ethiopian Yearbook of International Law 2016 1:95–116. Callahan L (2019) Contract-Farming in Cocoa Value Chains in Africa: Possibilities and Challenges. Ethiopian Yearbook of International Law 2018 3:149–180. de la Rasilla I (2019) A Very Short History of International Law Journals (1869–2018). European Journal of International Law 29(1). Desta G (2017) Competition for Natural Resources and International Investment Law: Analysis from the Perspective of Africa. Ethiopian Yearbook of International Law 2016 1:117–149. Desta M, Gerout G (2018) The Challenge of Overlapping Regional Economic Communities in Africa: Lessons for the Continental Free Trade Area from the Failures of the Tripartite Free Trade Area. Ethiopian Yearbook of International Law 2017 2:111–141. French D (2017) The Global Goals: Formalism Foregone, Contested Legality and “Re-imaginings” of International Law. Ethiopian Yearbook of International Law 2016 1:151–178. Hailu MB, Yihdego Z (2018). The Law and Policy of Foreign Investment Promotion and Protection in Ethiopia: An Appraisal of Theories, Practices and Challenges. Ethiopian Yearbook of International Law 2017 2:13–47. Hansohm J, Yihdego Z (2017) The South Sudan Crisis: Legal Implications and Responses of the International Community. Ethiopian Yearbook of International Law 2016 1:223–238. Henderson C (2018) UN Security Council Resolution 2378 (2017) and the Progressive Peacekeeping Agenda: A Commentary. Ethiopian Yearbook of International Law 2017 2:229–238. Hunt BW (1957) The League of Nations and the Italo-Ethiopian conflict. Graduate Student Theses, Dissertations, & Professional Papers. 8650. https://scholarworks.umt.edu/etd/8650 (accessed 26 December 2019) Hunter T (2018) Comparative Perspective on Exhaustible Resource Development in Ethiopia: Lessons from the Norwegian Legal Framework and Experience. Ethiopian Yearbook of International Law 2017 2:49–78. Mbengue M, McClellan K et al (2018) The ICC and Africa: Should the Latter Remain Engaged? Ethiopian Yearbook of International Law 2017 2:187–203. Mbengue M, Messihi N (2017) The South West Africa Cases: 50 Years Later. Ethiopian Yearbook of International Law 1:11–33. McMahon J (2019) Production Sharing Agreements in Africa: Sovereignty and Relationality. Ethiopian Yearbook of International Law 2018 3:181–203. Melkamu B (2019) Patenting Developing Countries’ Traditional Knowledge As New Invention: An Examination of the Teff Processing Patent Claim by a Dutch Company and the Way Forward. Ethiopian Yearbook of International Law 2018 3:63–89.

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Okwori E (2019) The Obligation of Due Diligence and Cyber-Attacks: Bridging the Gap Between Universal and Differential Approaches for States. Ethiopian Yearbook of International Law 2018 3:205–242. Olorundami F (2018) The Kenya/Somalia Maritime Boundary Delimitation Dispute. Ethiopian Yearbook of International Law 2017 2:173–185. Paterson J (2019) Production Sharing Agreements in Africa: Sovereignty and Relationality. Ethiopian Yearbook of International Law 2018 3:119–147. Reichert G (2019) International Water Cooperation in Europe: Lessons for the Nile Basin Countries? Ethiopian Yearbook of International Law 2018 3:91–118. Roberts P (2018) Like Fish in a Stream? Considering the Agency of the UN Peacekeepers of the Global South: Rwanda and India as Case Studies. Ethiopian Yearbook of International Law 2017 2:143–169. Salman SMA (2017) The Declaration of Principles on the Grand Ethiopian Renaissance Dam: An Analytical Overview. Ethiopian Yearbook of International Law 2016 1:203–221. Salman SMA (2018) The GERD and the Revival of the Egyptian–Sudanese Dispute over the Nile Waters. Ethiopian Yearbook of International Law 2017 2:79–110. Snider T, Nair AS (2019) Ten Years on: A Look at the Legacy of the Eritrea-Ethiopia Claims Commission. Ethiopian Yearbook of International Law 2018 3:11–34. Stern WB (1936) The Treaty Background of the Italo-Ethiopian Dispute. American Journal of International Law 30:189–203. Weldemariam GA (2017) The Place of International Law in the Ethiopian Legal System. Ethiopian Yearbook of International Law 2016 1:61–93. Woolley O (2017) Developing Countries Under the International Climate Change Regime: How Does the Paris Agreement Change Their Position? Ethiopian Yearbook of International Law 2016 1:179–200. Yiallourides C, Yihdego Z (2019) Disputed Territories and the Law on the Use of Force: Lessons from the Eritrea-Ethiopia Case. Ethiopian Yearbook of International Law 2018 3:34–61. Yihdego Z, Desta M, Merso F (2017) Towards Rebalancing the Narrative of International Law. Ethiopian Yearbook of International Law 2016 1:3–7. Yihdego Z et al (2018) Towards Resolving Our Development, Integration and Security Challenges Through International Law. Ethiopian Yearbook of International Law 2017 2:3–9. Yihdego Z, Desta M, Hailu M (2019) In Pursuit of Peace and Prosperity through International Law. Ethiopian Yearbook of International Law 2018 3:3–8

Chapter 12

Finnish Yearbook of International Law—Past, Present, and Future Tuomas Tiittala

Abstract This contribution highlights a few milestones in the evolution of the Finnish Yearbook of International Law from 1984 to the present time. FYBIL is still the only periodical devoted to public international law having its base in Finland. From the beginning, it has strived to bring together practitioners, researchers and students working in the field. In doing so, FYBIL’s pages have served practically and theoretically inclined readers alike. Keywords Yearbook · Public international law · Publishing · Editing The Finnish Yearbook of International Law was honoured to participate in the convention in the Hague and to celebrate the 50th anniversary of the Netherlands Yearbook of International Law. The event was a rare and educative opportunity to learn best practices from representatives of fellow yearbooks. Speaking of anniversaries, this year the Finnish Yearbook of International Law (FYBIL) turns thirty, having released its first volume in 1990. It is thus an appropriate time to reflect briefly on the history, present, and the future of our publication. In 1983, three Finnish law students and one graduate—Juhani Kortteinen, Juhani K. Parkkari, Kari T. Takamaa, and Matti Tupamäki—came together to found an association for students and practitioners specializing in public international law, and subsequently the Ius Gentium association was established. In its first year, the association had only four members (the founding fathers), but, by 1990, the membership had grown to well over a hundred people comprising nearly everyone researching or practicing in the field of public international law at the time in Finland. From the beginning, Ius Gentium had publishing as its core activity. The main publication was initially called Ius Gentium—Kansainoikeus (KOIG). Its language was mainly Finnish, which served the aim of offering a platform for and uniting Finnish lawyers, students and scholars of public international law. Yet prospective authors were advised that contributions in various languages might be accepted. T. Tiittala (B) University of Helsinki, Helsinki, Finland e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_12

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In the years 1984–1988, KOIG was published in annual volumes, each ideally comprising two to four issues. In the years 1984–1988, authors were instructed to aim for a text of 5–40 double-spaced pages and otherwise follow the style used in texts published in KOIG in the past. If a text exceeded the recommended length, the authors could divide it into two parts; this was done by Juha-Pekka Rentto, for example, in volumes 2 (issue 4–5/1985) and 3 (issue 1–2/1986). The first article published in KOIG was by Arto Kosonen on classical humanitarian intervention. This piece was the first of two articles by Kosonen on this topic. The second part appeared in number 2, Volume 1 of KOIG in 1984. Themes covered in KOIG 1984–1988 included, but were not limited to, humanitarian intervention; the relationship between law and ethics; United Nations seabed administration; consular immunity; terrorism; International Labour Organisation labour standards; jurisdiction; nuclear weapons; and peremptory norms of international law. In 1988, the first Helsinki Summer Seminar on International Law took place. The editors of KOIG saw the seminar as an opportunity to invite topical contributions from renowned speakers. The collaboration between KOIG/FYBIL and the summer seminar has continued to this day: the 31st summer seminar on international law was held in the summer of 2019 with a focus on environmental law; and FYBIL has invited contributions on this topic for its Volume 26. A decision to turn KOIG into a yearbook was made in 1988. The plan was that the yearbook would come out once every year comprising the same number of pages as each volume of KOIG had included. The difference would be that individual issues would not appear separately but together in an annual volume. The first volume of FYBIL appeared in 1990, published by the Helsinki University Press. The language of the publication had by now changed into English, catering for a more international audience than it had in the past. The foreword of Volume 1 by Bengt Broms, chairman of the advisory board at the time, recounted the central milestones of KOIG/FYBIL by that time. He mentions that the first volume of KOIG comprised 134 pages, the second volume numbered 270 pages, while the third and fourth volumes each had a page-count of at least 400. Broms added that the founders of KOIG had from the start entertained the thought of publishing for a wider audience than Finnish lawyers, scholars and students. In 1988, it was possible to expand the readership owing in particular to the association’s financial situation; when launching KOIG the founders of Ius Gentium had used their personal study loans for this project. Also, the nascent tradition of the Helsinki summer seminar on international law provided a source of high-quality material on current developments from a diverse group of scholars, students, and practitioners. The first article published in FYBIL’s volume 1 was by Vladimir-Djuro Degan on the customary forces in international law. Other contributors included Martti Koskenniemi, Veijo Heiskanen, Frank Horn, and Hagen Henry. The first volume had a section for articles; shorter articles, notes and comments; book reviews; and documents and reports on the international relations of Finland which later was shortened to Finnish state practice.

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To further highlight some of the contents of the first volume of FYBIL, the following can be mentioned: Hagen Henry discussed the new international economic order referring to a transition in international relations and especially in the operations of the United Nations to emphasize economic development as opposed to maintaining peace among nations, which according to Henry was the traditional focus in international relations. Henry goes against the notion of an overarching conception of justice and the good life and favours a more pluralistic view of justice and economic arrangements. In his own way, he is dealing with similar questions of global ethics as Juha-Pekka Rentto has done in his several contributions to KOIG and FYBIL over the years. Rentto has considered and advocated for a theory of ethics based on goods that all humans share, along the lines of John Finnis. Volume 7, published in 1996, was an occasion to once again re-evaluate where FYBIL is coming from, where it is now, and what the future looks like. The foreword by Martti Koskenniemi, Editor-in-Chief at the time, acknowledged the achievements of the founders of KOIG/FYBIL, stating they remain the driving force behind the publication. A special thank you was given to Kari Takamaa for employing his worldwide networks to internationalize FYBIL’s contributors and readership. Koskenniemi briefly reflected on the implications of FYBIL becoming a publication of an international publisher, Kluwer Law International, while still having roots in a particular country. He reflected on how this signified the blurring of the boundary between the national and international levels and compared this with the blurring of borders between various subfields of international law. Later, in the anniversary article published in FYBIL’s twentieth volume, Koskenniemi delved deeper into this theme: what it means to keep editing and publishing a Finnish yearbook of international law (or African or American one for that matter). He stressed that having a national or regional perspective, implicated by the publication’s title, does not mean parochialism. As before, FYBIL would keep striving for a broad outlook on international law including European law. He said having a particular, anchored viewpoint may actually liberate one from the arrogant view of being able to speak objectively about the international life, how it is and how it should be. As said, the first volume also included a section on documents and reports on the international relations of Finland. The importance of this section—state practice— should not be underestimated as part of FYBIL, as it serves scholars and practitioners alike by informing them of new international commitments of Finland. The section on state practice is something that many yearbooks of international law seem to share. For the volume in preparation, a legal expert working in the Ministry for Foreign Affairs of Finland was asked to write a summary of Finnish state practice. Whether a volume will include a section on state practice depends on developments in this area over the past years and on the expert’s schedule given that this contribution to FYBIL would add to his or her other duties. Throughout its history, KOIG/FYBIL has welcomed writings from a variety of perspectives whether from within public international law, from other fields of law, or even from outside law altogether, provided the topics seem relevant for international law and international lawyers. In keeping with its profile as a yearbook in law, much

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of KOIG’s and FYBIL’s contents comprises doctrinal work: explaining, analyzing and systematizing the existing law. An example of this is Vladimir Kopal’s article on the United Nations and the evolution of international space law published in Volume 7 of FYBIL. In the nearly 60-pages-long article, Kopal recounts and discusses most, if not all, legal documents produced by that time on international space law. Coming close to a book, extensive accounts like this one have been helpful especially for international lawyers trying to grasp the state of the art in a subfield that is not their own expertise area. In contrast to FYBIL and perhaps other yearbooks of international law, most law reviews probably would not publish articles longer than 20–30 pages. It must be noted, however, that FYBIL currently advises prospective authors to keep their submissions short, to around 30 pages, unless justified by the subject matter. FYBIL has been open to new outlooks emerging in the field of public international law. Examples of such new approaches include many of the articles contributing to the symposium of Volume 17 on the fragmentation of international law and to the debate section of Volume 22 on critical practice. Nearly every volume of FYBIL has included an article or two analyzing international law from a critical perspective, namely discussing issues of power; inclusion and exclusion in global decision-making; and the origins and foundations of human rights and jus cogens, for example. This owes a lot to the critical bent of the public international law faculty in Helsinki. This has attracted students, practitioners and scholars interested in new approaches to come to study, research, and attend events. Subsequently many of them have published in FYBIL. A particular feature of FYBIL has been that it has since Volume 11 published lectures (lectio praecursoria) given by Ph.D. candidates when defending their doctoral theses. By making their dissertations known to a wider audience in this way, FYBIL has wanted to serve young scholars in their nascent academic careers. In recent years, the dissertations section has paired the Ph.D. candidate’s lecture with his/her opponent’s statement thus replaying in written form the debate held in the thesis defense. The first thesis defense lecture published in FYBIL was by Tuomas Kuokkanen under the title “International Law and the Environment: Variations on a Theme”. The author of this contribution has been involved with FYBIL since 2013, first as an associate editor and later as the editor-in-chief. Over these years, it has been the aim to conserve FYBIL’s established place as a repository of high-quality material on public international law in Finland and on the international publishing scene. This has been possible only through the committed, productive and respectful collaboration between the contributors, the editorial board, external reviewers, the Ius Gentium association, and the publisher, which since 2008 (Volume 19) has been Hart Publishing. A special thank you is due to the Ministry for Foreign Affairs of Finland for supporting FYBIL. Obviously, without contributors our pages would be blank, so a humble thank you to them. The contributors have become part of FYBIL’s network of friends who have spread the word regarding our new call for papers, for example. Having received a submission to FYBIL, it is turned over to a team of editors. The editors are senior or nascent experts in their respective fields who volunteer their time for the reviewing

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and editing. The editorial board has included both long-term members, who often are former students of public international law in Finland but later have embarked on scholarly or professional careers in the field, and more recent members who are current students of public international law. Several former editors have been enlisted as external, blind reviewers of submissions. I want to take this opportunity to thank all the former and current editors and external reviewers for their essential and hard work for FYBIL. After a volume has been finalized by FYBIL’s editors, it is sent to the publisher. It is in this phase that the volume is polished for publishing for the benefit of the authors and readers alike. Also, great efforts are put into marketing the upcoming volume. It has been a pleasure to work with our current publisher. As for the future, FYBIL will strive to remain committed to serving public international lawyers whether they are academics or practitioners in Finland or abroad. Whether this is best done through holding on to tradition or innovating remains a question for each subsequent editorial board to answer and act on. Despite the constantly evolving industry of academic publishing, the author believes yearbooks of international law, FYBIL among them, will, at least for the next decade, retain their distinctive identity and role in the publishing scene, namely viewing international law from a particular geographical standpoint in order to collect and publish interesting material of enduring value.

Chapter 13

Annuaire Français de Droit International Mathias Forteau

Contents 13.1 History and Main Features of the AFDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1.1 Genesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1.2 Object and Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1.3 Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Editorial Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3 The Development of the AFDI over Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Function and Impact of the AFDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 Challenges for the Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Annuaire Français de Droit International, which was created in 1955, was, and still is, the first French Yearbook of international law aimed at covering the entire field of international law. The present contribution explores the origins, format, editorial operating method, architecture and challenges ahead of the Annuaire. It stresses in particular its specific nature, as a Yearbook designed to address not only the French practice of international law, on a systematic basis, but also current and substantial developments of contemporary international law, which are of interest to any international lawyer. It also underlines the particular position of the Annuaire which, as a French-language publication, has to confront the increasingly monopolistic nature of English in the international academic arena. Keywords Annuaire français de droit international · Chroniques · General International Law · Peer Review · Ranking

M. Forteau (B) University of Paris Nanterre, Paris, France e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_13

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13.1 History and Main Features of the AFDI 13.1.1 Genesis The Annuaire français de droit international was created in 1955, well after the creation of the first two French International Law journals, the Journal du droit international (Clunet) (first published in 1874) and the Revue Générale de Droit International Public (first edition in 1894). It is the first French Yearbook of international law, and still the only one, at least covering the entire field of international law. As the Director of the AFDI stressed in 1964, the aim of the Annuaire is to contribute to a better knowledge of legal problems arising in the international sphere and the way the AFDI was designed, which was quite unprecedented when the AFDI was launched in 1955, was replicated since its creation in other countries.1 The AFDI was created at the initiative of the French Group of the ‘Attendees and Alumni of The Hague Academy of International Law’ (‘Auditeurs et Anciens Auditeurs de l’Académie de Droit International de La Haye’, which was part of the Association of Attendees and Alumni of The Hague Academy of International Law, the A.A.A., created in 1923). It explains why the President of the Curatorium of The Hague Academy, Gilbert Gidel, prefaced the first volume of the AFDI in 1955.2 Gidel stressed on that occasion the common goals shared by the Academy and the AFDI, the publication of the AFDI being seen, as the mere existence of the Academy, as ‘un acte de foi dans le droit international, dans sa valeur, dans son avenir, dans les services que doit attendre de lui une humanité en proie plus que jamais à une dangereuse confusion’.3 Most of the first professors and practitioners working for the AFDI were alumni of the Academy, according to the foreword of the first volume of the AFDI.4 The first director—for 24 years—of the AFDI, Professor Suzanne Bastid, played a prominent role in its creation, as Joe Verhoeven, former Secretary-General of the Institute of International Law and the then director of the AFDI, pointed out at the occasion of the 50th anniversary of the AFDI celebrated in January 2006.5 The first page of each volume of the AFDI indicates today that it was created (‘fondé’) by Mme Suzanne Bastid. Professor Bastid was in particular the first woman elected at the Institut de droit international, in 1948, the first woman to appear before the ICJ, the first woman member and then President of the UN Administrative Tribunal, and Judge ad hoc at the ICJ.6

1 See

Bastid 1964, at VIII. Gidel 1955, at VII–IX. 3 Ibid., at IX. 4 ‘Avant-propos’, signed by the Editorial Committee (‘Comité de rédaction’), ibid., at XII. 5 See Verhoeven 2005, at IX. 6 See Vignes 1994, at 7. On professor S. Bastid’s career, see also [https://www.sfdi.org/internationa listes/bastid/] (last accessed on 11 June 2020). 2 See

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The form of an annual publication, which characterizes yearbooks, was adopted by the AFDI for two reasons: first, because no French yearbook of international law (i.e. an annual publication reporting the main elements of practice, case-law and doctrine of each year, as systematically as possible) existed in 1955; second, because it was considered that to have a journal focusing on international legal issues year by year would facilitate on the long term international legal research.7

13.1.2 Object and Purpose The object and purpose of the AFDI was clearly set forth by the Editorial Committee in the foreword of the first volume: to develop a legal approach in the observation of ‘international life’ (in that respect, even though some attention is given to International Relations as a science distinguished from International Law, the main focus, and perhaps the exclusive one today, of the AFDI are international legal issues);8 and to adopt a comprehensive approach to international law, by focusing not only on general rules applicable between States, but also on special international rules, including the constitutional law of international organizations.9 As the Editorial Committee put it in 1955, ‘le domaine ainsi défini est immense’10 and this is the reason why the ‘problèmes essentiels’, i.e. the main trends and events, were designed as being the ones to be scrutinized in particular, including (but not limited to) the developments that took place during the year corresponding to each volume.11 According to these goals, it was decided when the AFDI was created to give ‘special attention’ to the case-law/jurisprudence of international courts and tribunals, in particular to the decisions which contribute to the elaboration of common notions and develop the general principles of law, which the Statute of the ICJ refers to.12 Following this comprehensive approach, it was also decided at the inception of the AFDI to insert in each volume a ‘general chronology of internationally relevant facts’ (‘chronique générale des faits internationaux’).13 These different goals were inspired in 1955 by a particular approach to the study of international law, which has to take into account the social context within which law operates in the international sphere (even though it is not the principal object of such study) in order to prevent ‘the construction of useless and dangerous systems, 7 Comité

de rédaction 1955, at XIV. recently, in 2000, a French Yearbook of International Relations has been created (Annuaire français des relations internationales). 9 Comité de rédaction 1955, at XII. On the other hand, the main focus of the AFDI is public international law. Issues of private international law are dealt with in the AFDI to the extent only that they are linked to public international law. 10 Ibid., at XIII. 11 Ibid. 12 Ibid., at XIII. 13 Ibid. 8 More

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detached from the reality of international life’.14 In other words, the doctrinal approach of the AFDI is both positivistic and objectivistic, in the sense that it is focused—at least such was the intention in the first years of the AFDI—on the presentation of existing international law, considered in its social context.15 As a result, the academic analysis of international law was conceived by the founding members of the AFDI as playing an important social role, in harmony with the position expressed by the UN Secretary-General at that time, i.e. that international law would be strengthened through its study, which would increase its ‘certainty’.16 This approach explains why the AFDI is focused not only on international law in its entirety, but also on French practice of international law. As the foreword of the first edition pointed out, the AFDI could contribute in precising positive international law by supplying information on French practice, as national yearbooks of international law usually do for the relevant national practice. Accordingly, the AFDI collects, presents and analyses, in specific ‘Chroniques’, treaties and other diplomatic documents related to France, the practice of French courts related to international law, and French practice (in particular of the Executive branch) of international law. This orderly, systematic, annual presentation of France’s judicial and non-judicial practice of international law is particularly crucial to help practitioners in identifying customary international law, as well as treaty practice. The important role that yearbooks of international law play in that regard has been recently underscored by the Secretariat of the International Law Commission in its Memorandum on ways and means for making the evidence of customary international law more readily available, released in its final version in February 2019.17 So far as France is concerned, the AFDI is one of the main resources relating specifically to international law listed in that Memorandum.18 In Resolution 73/203 on the identification of customary international law (adopted on 20 December 2018), the UN General Assembly ‘noted’ the said memorandum and ‘acknowledge[d] the utility of published digests and surveys of practice relating to international law, including those that make legislative, executive and judicial practice widely available (…).’ Emmanuelle Jouannet once observed that French journals and a yearbook of international law could likely convey a ‘French internationalist thinking’.19 It does not mean however that the AFDI is mostly French-oriented, as regards both the

14 Ibid.

(‘éviter de construire des systèmes inutiles et dangereux, détachés des réalités internationales’). 15 Bastid 1964, at XIII: The object and purpose of the AFDI is to ‘suivre attentivement la formation du droit dans cette société des Etats où s’affirme l’interdépendance, de définir les nécessités sociales auxquelles ce droit doit répondre, d’en relever les lacunes ou les contradictions, d’en montrer l’évolution et les conséquences nécessaires’. 16 Comité de rédaction 1955, at XIII: ‘il est évident que la certitude du droit est la première condition de son efficacité’. 17 See A/CN.4/710/Rev.1, 14 February 2019, paras 47–48. 18 Ibid., Annex I, at 66. 19 Jouannet 2000, at 4.

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topics selected and the materials used, as Christian Tomuschat recently suggested.20 The AFDI has a twofold nature: it is not only aimed at presenting and diffusing French approaches to and practice of international law; it is also aimed, on an equal footing, at participating in the study of international law in its entirety, by both analyzing important international law issues, even if not specifically related to France,21 and welcoming and soliciting contributions by non-French authors (mainly French-speaking ones).22 The double nature of the AFDI (both a French and a real international Yearbook of international law) is reflected by the global structure of each volume, which remained nearly the same since 1955. Each volume is approximately—at least in the recent years—900–1000 pages. Each volume consists of two main categories of studies, ones more analytical or conceptual, ones more documentary, as initially observed by Gidel in the first volume of the AFDI.23 A first part of the AFDI consists in legal studies on a given thematic topic (be it a theoretical topic, the commentary of a new instrument or a specific crisis or event, the analysis of a specific legal notion or legal regime, etc.). A second part includes ‘Chroniques’. It constitutes a very important (and innovative) part of the AFDI, in both quantitative and qualitative terms. It constitutes a useful tool of information and thinking (thanks also to the indexes at the end of each volume, restated in a separate volume approximately every five years). The ‘Chroniques’ are not limited to France’s practice.24 They consist of three elements. First, the AFDI includes ‘Chroniques’ devoted to France’s international conduct and practice in relation to international law, articulated along three different ‘chroniques’: the practice itself, i.e. the practice of non-judicial branches of government; the practice of French courts and tribunals; and (but not any longer in the 20 See

Tomuschat 2017, at 221: ‘The openness of the RGDIP contrasts with the general approach of the Annuaire français de droit international. In this publication, the editors wish to show, inter alia, the living presence of international law in the relevant French fora. The articles focus mostly on sources in French without becoming blind to relevant other materials. Essentially, however, the AFDI is conceived as a monument of French scholarship, a reminder that indeed the French language can legitimately claim to be number two in the science of international law’. 21 For instance, among many other examples, the first volume (1955) included an article on the relationship between the United States of America and Panama, an article on the application of the reciprocal assistance Treaty of Rio de Janeiro in the case Costa-Rica/Nicaragua, or a study on the competences of the UN Secretary-General. Similarly, in the last volumes, see for instance in 2017 the articles on Francisco Suarez, on the judicial cases about annexation of Crimea, on the Tallinn 2.0 Manual, or on the BEPS Convention concluded within the OECD; in 2018 the articles on the lines of allocation of territories, on the 2018 Agreement between North Macedonia and Greece, on the decision of the United States to recognize Jerusalem as the capital of Israel, on the recent practice on denunciation of treaties, on the use of chemical weapons in Syria, on climate change litigation, on the 2018 Agreement on the Caspian Sea, or on the new free trade agreement between Canada, Mexico and the United States. 22 Verhoeven 2005, at X (‘Les plumes viennent de tous les coins de la francophonie, et même d’au-delà’). 23 See Gidel 1955, at VII. 24 Verhoeven 2005, at IX.

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AFDI itself, but soon on its website) the list of treaties and agreements concluded by France, as well as other legal instruments. Second, the AFDI contains a few book reviews, of many pages each, and a very extensive ‘Critical Bibliography’ of international law books recently published in French, English, but also Spanish, Italian, … It also includes an annual list of the ‘thèses’ (Ph.D.) in International and European law presented at French universities. There also used to be, starting in 1967, a ‘review of reviews’ (‘revue des revues’), which summed up in one or two paragraphs, and in a quasi-systematic and exhaustive way, the content of all the articles published in other international law journals, but it ceased to exist in 2002. It has been substituted by a much more selective and concise presentation of the content of some international law journals (mainly some other yearbooks and the collected courses of The Hague Academy). Third, the AFDI includes international ‘chroniques’, that is to say ‘chroniques’ that are devoted to international law issues not specifically related to France. Some of these ‘chroniques’ adopt a selective approach, focusing each year on three or four separate topics; others are systematic in character and are supposed to present and analyze the whole practice of the year of a given institution (or at least its most salient aspects). These annual (or, for some of them, bi-annual) ‘chroniques’ are quite diverse: they currently cover the work and activity of: (i) international organizations; (ii) the International Law Commission and the Sixth Committee of the UN General Assembly; (iii) International administrative bodies and tribunals; (iv) the European Union; (v) International Criminal Courts and Tribunals; (vi) Investment arbitration; (vii) the Dispute settlement body of the WTO; (viii) the European Court of Human Rights; (ix) Human Rights Treaty Bodies. There is no specific ‘chronique’ for the ICJ, or the ITLOS or interstate arbitral tribunals, because most of their decisions, judgments or awards are subject to individual contributions by separate authors in each volume. It is interesting to note that these international ‘chroniques’ follow a specific approach. They are not supposed to present the activity of these institutions in every detail, as a specialized field of international law, but rather, so far as possible, to insist on general international law issues arising in the course of their activity that could be of particular interest for the readers of the AFDI. It means that the AFDI is conceived, first and foremost, as a tool for international lawyers in the general meaning of the term, i.e. those who are not—or who do not want to be—clinically isolated in a specialized domain of international law.

13.1.3 Language The AFDI is a French-language yearbook. It consists solely of articles published in French. From time to time, articles translated from English are published in the

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AFDI.25 Since 2008, abstracts both in French and English are included at the top of each study.

13.2 Editorial Organization The AFDI is managed by an Editorial Committee (‘Comité de rédaction’), which is composed nowadays of 15 members. The Committee is assisted by an Editorial Team (the ‘direction’), that is to say one director (since 2015, three co-directors) of the AFDI, and the Secretariat of edition (‘Secrétariat de rédaction’) (one or two people). The first director, Professor Suzanne Bastid, acted for more than 20 years. She was succeeded by Professor Daniel Bardonnet, then Professor Jean Combacau (since 1994) and Professor Joe Verhoeven (since 2002). Since 2015, there are three codirectors, coming from three different (Parisian) universities (Professors Gérard Cahin, Mathias Forteau and Evelyne Lagrange). Daniel Vignes served, in the first years closely with Professor Bastid, as a member of the editorial team since 1955, for 43 years, which is quite remarkable. The current Secrétaire de rédaction is, since 2015, Laurent Trigeaud, maître de conférences at the University Paris II. The composition of the Editorial Committee reflects the specific nature of the AFDI. It is mainly composed of professors of international law, who are, with a very few exceptions only, from France (and in their great majority from Parisian universities). It includes, acting within their personal capacity, French practitioners, from core institutions related to international law (French Judge and French former Judge at the ICJ; Director of the legal service of the French Ministry of Foreign Affairs). It also includes French-speaking prominent international judges (currently: Judge Yusuf, President of the ICJ; and Judge Sicilianos, Member and former President of the European Court of Human Rights). The Editorial Team and the Editorial Committee play a crucial role in identifying possible topics. For the most part of the articles published in the AFDI, it is the Editorial Team and Committee which identify possible topics and then possible authors for the topics selected, who are then contacted by the Editorial Team. The manuscripts are scrutinized by the Editorial team, that engages in a dialogue with authors as needs be. This being said, a growing number of articles are submitted spontaneously and then peer-reviewed. The AFDI has its seat at the University Paris II (Panthéon-Assas). It is published with the assistance of the Centre National de la Recherche Scientifique (CNRS) and the University Paris II. In terms of material resources, today, the AFDI is funded exclusively by the University of Paris II.26 It has an annual budget of approximately 4500 euros. The University Paris II also provides a small office, a computer and a

25 See

for instance O’Connell 2003, at 3–16. 2005, at IX.

26 Verhoeven

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photocopier, and some compensation for teaching hours for the Secrétaire de rédaction. On the other hand, the directors of the AFDI are put at the disposal of the AFDI by their respective universities without any kind of compensation. The material and human resources of the AFDI can be considered as being very modest, as compared to the extensive scientific and editorial work that must be done to prepare each volume on an annual basis.

13.3 The Development of the AFDI over Time Although it is quite impossible to sum up in a few words the evolution over 65 years of the AFDI, some main evolutions can be pinpointed at. As regards the editorial form itself, the AFDI follows the same format as the one initiated in the first volume in 1955. It is generally true also as regards its spirit, which remains essentially the same as the one defined in 1955.27 On the substance, each volume of the AFDI is denser today than it was in 1955. The articles and studies are much longer than they used to be. In the first volumes, short contributions were preferred, which entails that there were more articles per volume than in the more recent period (with in particular in the first three decades many specific contributions on the practice of international organizations). Today, most of the articles are more than 25 pages long and then more substantial. In addition, more materials are quoted in the studies (no doubt thanks to an easier access to international materials, and because of the great expansion of international law). The subject-matters of the ‘Chroniques’, which form an important part of the AFDI and its added value as a yearbook, have necessarily evolved over time. For instance, with the creation of international criminal courts, first the ICTY and the ICTR, then the ICC and other tribunals, the need was expressed to have a ‘chronique’ on international criminal courts and tribunals, which was thus created in the 1990s. Other ‘chroniques’ were anchored in a specific period and then logically disappeared (see the ‘Chronique’ on legal issues related to new States, born from decolonization, which was active from 1961 to 1967). Others were substituted by new forms of ‘Chronique’. For instance, the one on the jurisprudence of the European Court of Justice (EU) was transformed in 2015 in a new ‘Chronique’ on the Law of the EU (international aspects). It means that the case-law of the European Court of Justice is no longer the exclusive focus of the ‘Chronique’. Conversely, the former ‘Chronique’ of International Economic Law, which was instituted in 1968, ceased to exist in 1996 and has been substituted by two Chroniques, one on the case-law of the WTO, the other one on the case-law of Investment Arbitral Tribunals. In addition, the creation of the Annuaire du droit de la mer (Yearbook of the law of the sea) in 1996 may explain why there is no longer a ‘Chronique’ on the law of the sea in the AFDI (this ‘Chronique’ was published, on an irregular basis, from 1969 to 2000).28 Another 27 See

Vignes 1994, at 8. 1969 to 1971, 1973 to 1975, 1977, 1981 to 1982, 1985, 1987, 1988, 1990, and 2000.

28 From

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‘Chronique’ on the practice of Specialized Institutions was experienced for two years only (1996–1997). There is now, since 2016, a general ‘Chronique’ on the law and practice of international organizations. It has also to be noted that the ‘Chronique’ on ‘Teachings and conferences’ (‘Enseignements et congrès’), which task was to present what was discussed at the main conferences and colloquiums of the year, no longer appeared in the AFDI after 1997. Finally, the first volume of the AFDI in 1955 reproduced some international documents in a section entitled ‘Documents’, but it was not renewed in other volumes. The AFDI is since the 2000s freely accessible online, on open access, at no cost at all, on ‘Persée’ (accessible at [https://www.persee.fr/collection/afdi]). All the volumes, since the first one, are accessible, with three years of embargo. A website dedicated to the AFDI has been created in the 2000s (accessible at [https://www.ihei. fr/afdi_annuaire_francais_droit_international/]). It is still a work in progress, and will soon be improved to provide more information to potential or actual readers. The website provides information on the last table of contents of the AFDI and on its history.

13.4 Function and Impact of the AFDI The addressees of the AFDI are students, practitioners and scholars, specialized in public international law. Given the wide scope of the topics embraced by the AFDI, and in particular the diversity of the ‘Chroniques’, which cover the main bodies of general international law, the AFDI is designed to be used by any international lawyer willing to follow-up the developments of public international law as a whole. Of course, the fact that it is published in French means that it is mainly used by French-speaking internationalists (meaning internationalists who can use French as a working language). The AFDI is a successful yearbook. It is frequently quoted in articles published in other journals, international law books, Ph.D. dissertations, pleadings before the ICJ, etc. It is generally bought by French Universities libraries, as well as by non-French universities. Subscriptions come from all over the world (Europe, the Americas, the Middle East, Asia, Africa, Oceania). It is difficult however to assess its impact with more precise data. It is not likely to be captured by Anglo-Saxon rankings, first because the AFDI is published in French, second because the AFDI does not resort to anonymous peer-review for the selection of articles to be published. In addition, it does not seem to exist data on indexations, factors of impact, etc., on the AFDI or, beyond, French-language international law journals or yearbooks. This is obviously an issue for which there is considerable room for improvement.

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13.5 Challenges for the Future The main challenges ahead for the AFDI and more generally the main issues discussed from time to time within the Editorial Committee as regards what the AFDI should look like and whether it should evolve and in which directions are the following ones: a. How to accommodate the annual rhythm of publication, with its inevitable delays (the AFDI being published in the second semester of the year that succeeds the one that is commented in the published volume), with the fact that in a digital era and a trend towards more reactive academic publications (in particular on blogs and online), the legal studies released through the AFDI could be seen as outdated even on the day they are published, or at least quickly thereafter? Does it mean that yearbooks should focus on transversal, more doctrinal studies rather than on specific events or trends of the year? But is it the role of yearbooks to do so? That raises the question of what the relation to time of academic works should be, i.e. what balance should be found between the need to be reactive and then audible as lawyers and the need to take time to properly analyze recent events. How to reconcile in particular the need for more reactive and interactive academic studies and the still very important and crucial need for (i) a systematic assessment on an annual basis of international law practice, which is useful for scholars and practitioners who have in the course of their activity to establish in a systematic manner the evolution of international law on a given topic over a long period of time, and the need for (ii) sufficient hindsight to permit thoughtful, lucid and in-depth legal analysis? b. Should the AFDI be more open to ‘Symposium’, that is to say to focus a substantial part of some volumes on specific topics? It is interesting to note in that regard that in September 2020, the AFDI took for the first time the initiative to issue a call for papers, dedicated to Covid-19 and International Law, which will be published as a Symposium in the AFDI 2020 to be published in 2021. c. In a time of increased specialization of international law, which has an impact on the formation and careers of international lawyers, is it realistic/appropriate to maintain a ‘general international law’ approach in the AFDI? Should the AFDI (i) focus on general international law issues only, (ii) study any field, including specialized fields, of international law through the lens of a general approach, or (iii) adopt a mixed approach (general international law studies together with more specialized articles)? For instance, how should the AFDI approach contemporary environmental law: should it study it as a specific field of international law, in and by itself, or should it focus on the elements that can be of interest for other fields of international law or the general theory of international law? d. What balance to be struck between general studies and ‘Chroniques’ in a world where the number of international institutions, quasi-judicial bodies and courts and tribunals is in expansion? Is it realistic to try to follow, each year, the practice of so many institutions? If no, which criteria should be used to proceed to a selection between these institutions?

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e. Which format should follow the ‘Chroniques’? Should they be exhaustive in the presentation of the relevant activity or case-law? Or should they focus each year on some aspects only (such is the decision that has be taken in particular by the AFDI recently for the ‘Chroniques’ on the law and practice of international organizations and on the law of the European Union)? f. Which criteria should be favored when selecting the relevant topics? In addition, to what extent the editorial team should be directive in proposing topics? What balance should be struck between proposals by the Editorial Committee and proposals submitted to peer-review? Also, to what extent should the AFDI favor anonymous peer-review? g. What is the best balance in the composition of the editorial team (professors/practitioners; nationals/foreigners; French-speaking/non-French-speaking; Parisian/non-Parisian; degree of diversity of doctrinal approaches)? h. How to ensure a better diffusion of the AFDI? (Wikipedia? Facebook? Twitter? Online libraries?) i. Would it be useful to include an abstract of each study, not only in French and English, but also in Spanish (as the RGDIP does)? And/or another foreign language? j. What kind of editorial strategy should French-language yearbooks (and journals) follow in a world where there is a powerful trend towards ‘switching to English’ for international law journals?29 On the one hand, there is a need for Frenchspeaking international lawyers to publish more in English to widen their audience to the whole world. On the other hand, the fact that there are fewer non-English international law journals and yearbooks than there used to be makes it all the more necessary to maintain a yearbook such as the AFDI to give a home to academics willing to publish articles in French.

References Bastid S (1964) Avant-propos. Annuaire Français de Droit International 10:VII–XIII. Comité de rédaction (1955) Avant-propos. Annuaire Français de Droit International 1:XI–XV. Gidel G (1955) Préface. Annuaire Français de Droit International 1:VII–IX. Jouannet E (2000) Regard sur un Siècle de Doctrine Française du Droit International. Annuaire Français de Droit International 46:1–57. O’Connell M (2003) La doctrine américaine. Annuaire Français de Droit International 49:3–16. Tomuschat Ch (2017) The (Hegemonic?) Role of the English Language. Nordic Journal of International Law 86:196–227. 29 On

this trend, see Tomuschat 2017, at 214 ff. Tomuschat observes in particular at 215 that in Germany ‘the trend seems to be unstoppable. Only the Archiv des Völkerrechts has kept its sole title in German but has also switched to publishing articles in English and on some rare occasions also in French. In general, however, the French language seems to be drying up in all of the German periodicals of international law’. In addition, he points out at p. 216 that ‘It is striking that some publications that first appeared in French were eventually translated into English since it could not be overlooked that the French version received little attention in international legal circles.’

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Verhoeven J (2005) Allocution. Annuaire Français de Droit International 51:VIII–X. Vignes D (1994) In Memoriam: Madame Bastid, 1906–1995. Annuaire Français de Droit International 40:7–9.

Chapter 14

German Yearbook of International Law: Origins, Development, Prospects Andreas von Arnauld and Daley J. Birkett

Contents 14.1 Origins: The Jahrbuch für Internationales und Ausländisches Öffentliches Recht . . . . . 14.1.1 The Context: International Law Periodicals in Post-War Germany . . . . . . . . . . . 14.1.2 Troubled Beginnings: The First Two Volumes of the Jahrbuch 1948/49 . . . . . . . 14.2 From the Jahrbuch to the German Yearbook of International Law (GYIL) . . . . . . . . . . . 14.3 Structure and Contents of the Jahrbuch/GYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.1 Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.2 Reports on Practice in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.3 International Legal Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.4 Book Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.5 Walther Schücking Lecture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.6 Outstanding Doctoral and Post-Doctoral Theses . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4 Thematic Focuses in Hindsight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4.1 Topics of the 1950s and 1960s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4.2 Topics of the 1970s and 1980s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4.3 Topics of the 1990s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5 Going Glocal: The GYIL in the New Millennium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5.1 Globalisation and Digitalisation as Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5.2 Forward to the Past? Reclaiming the Local . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

150 150 153 155 157 157 159 160 160 161 161 162 162 162 163 164 164 164 166

Abstract This chapter examines the history, development, function, and future of the German Yearbook of International Law (GYIL). The chapter traces the evolution Parts of this chapter draw upon von Arnauld and Kresse 2017. All errors remain, of course, the responsibility of the present authors. A. von Arnauld (B) Walther Schücking Institute for International Law, Christian-Albrechts Universität Zu Kiel, Kiel, Germany e-mail: [email protected] D. J. Birkett Northumbria Law School, Northumbria University, Newcastle, UK e-mail: [email protected] War Reparations Centre, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_14

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of the GYIL over many decades, from its inception in the aftermath of the Second World War to the present day, demonstrating how it has moved beyond its origins as a forum in which German scholars could publish their research to become a global platform for the dissemination of scholarship in international law. The chapter also aims to show how the structure and contents of the GYIL have developed in the years since its establishment, reflecting in particular on the impact of the decision to begin to publish contributions authored in English in order to reach the widest possible international audience and the introduction of a double-blind peer review procedure. The chapter concludes that the function and future of the GYIL lie in its capacity to inform a global readership about current research and practice in the sphere of international law taking place in Germany while, at the same time, presenting international viewpoints to a German audience. Keywords German Yearbook of International Law · (Public) International Law · Germany · Second World War · Kiel · Peer Review

14.1 Origins: The Jahrbuch für Internationales und Ausländisches Öffentliches Recht 14.1.1 The Context: International Law Periodicals in Post-War Germany The Second World War largely brought the publication of German international law journals to a standstill.1 Though a number of journals devoted to law in general, but which occasionally also dealt with matters of international law, later recommenced operations, there were no longer any periodicals exclusively devoted to international law in Germany in the years immediately following the end of the war.2 This situation was the subject of the first post-war conference of German international law experts in Hamburg. This gathering, which took place in March 1947 at the invitation of Rudolf Laun (1882–1975), Head of the Hamburg Research Centre for Foreign Public Law 1 Kunz

1949, at 508–509 (‘The most devastating effect of the war on periodical publications on international law was, of course, in Germany. The journal Völkerbund und Völkerrecht was terminated. All the great German periodicals of international law were continued through the first years of the war, but sooner or later came to an end. This was the case of Niemeyer’s Zeitschrift für Internationales Recht, and of the Zeitschrift für Völkerrecht. The very important Zeitschrift für ausländisches öffentliches Recht und Völkerrecht came to an end in 1939. None of these great German periodicals has been revived up to now.’). To this should be added Die Friedens-Warte, a journal founded by Alfred Fried in 1899 and which had considerably gained in scholarly status after Hans Wehberg assumed the role of editor in 1924. Since 1928, however, the editorial office was in Switzerland as Wehberg had been appointed Professor at the Institute des Hautes Études Internationales in Geneva. On the history of German international law journals before World War II, see Hueck 1999; von Arnauld and Kresse 2017, at 368–379. 2 Kunz 1949, at 509 (‘Immediately after Germany’s total defeat and during 1946 and even 1947 there were no periodical publications of international law.’).

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and International Law and also the Rector of the University of Hamburg, was attended by scholars from all four zones of occupation.3 In addition to resolutions on the legal status of Germany, attendees also discussed the establishment of a new periodical, to be published by Laun together with the Director of the Kiel Institute for International Law, Hermann von Mangoldt (1895–1953).4 While the future yearbook was intended to react to the lack of journals on international law, only a few years later there were already three international law periodicals in Germany: The Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV ) appeared again from 1950/515 and, in the same year as the Jahrbuch für internationales und ausländisches öffentliches Recht (Jahrbuch), 1948, the first issue of the Archiv des Völkerrechts (AVR) was published.6 The motives behind the foundation of the AVR merit further research; particularly against the background of the mandate that Laun and von Mangoldt had received in Hamburg for their periodical, its foundation seems like an act of opposition. The Hamburg conference had met with criticism, especially among remigrants and other victims of Nazi persecution, because the international law experts gathered there ‘stylised the Germans as victims’.7 The founding editors of the AVR, Walter Schätzel (Mainz, later Bonn), Hans-Jürgen Schlochauer (Cologne, later Frankfurt) and Hans Wehberg (Geneva), all had close connections to the pacifist German international lawyer and judge of the Permanent Court of International Justice (and, ironically, Director of the Kiel Institute from 1926 to 1933), Walther Schücking (1875–1935).8 True to Schücking’s belief in peace through law and international organisation,9 with the very first volume of the AVR and a focus on the United Nations the editors embraced the new world order— while the Jahrbuch at its inception was more indebted to a ‘traditional’ State-centred conception of international law. Another major difference between the AVR, the Jahrbuch, and (later) the ZaöRV was that the latter two had institutional ‘home bases’: While the Jahrbuch was edited jointly by the long-established Institutes in Kiel and Hamburg (founded in 1914 and 1923, respectively), the ZaöRV was edited by the Max Planck Institute for 3 On

the Hamburg post-war conferences and the re-establishment of the Deutsche Gesellschaft für Völkerrecht (DGVR), see Mosler 1990, at 9–17. 4 See Laun and von Mangoldt 1948b, at 242. 5 The ZaöRV had first appeared in 1929. Its last edition until 1950/51 (volume 12) was published in 1944 (not in 1939 as reported by Kunz 1949, at 509). 6 de la Rasilla 2018, at 154. The Zeitschrift für Internationales Recht und Diplomatie (Journal for International Law and Diplomacy), published by Rudolf Laun on behalf of the German Society for Foreign Policy from 1956 onwards and which ceased to appear in 1977–80, should also be mentioned. See Stolleis 2012, at 90. 7 Stahl 2015. 8 Wehberg (1885–1962) had been a close collaborator already before World War I and had coauthored an important commentary on the Covenant of the League of Nations with Schücking; Schätzel (1890–1961) had received his post-doctoral qualification (Habilitation) in Kiel in 1927 under his tutelage; Schlochauer (1906–1990) had briefly worked as Schücking’s assistant at the Permanent Court of International Justice after emigrating from Germany due to racist persecution. 9 Cf. Tams 2011; Bodendiek 2011; García-Salmones 2011; Delbrück 2011.

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Comparative Public Law and International Law in Heidelberg, which had taken over from the formerly Berlin-based eponymous Kaiser Wilhelm Institute. With these institutions gradually rebuilt after the war, it came naturally that their members and associates should contribute to their respective ‘house publications’ whereas the AVR had to rely on contributions by the prolific Schlochauer and the Editors’ professional networks. That said, those networks necessarily overlapped given the relatively small and well-connected international law community in Germany that was, at the time, the main target group for all three periodicals—which were predominantly published in German and only occasionally included contributions in English or French. Thus, clear ‘profiles’ were not easy to maintain and would regardless vary over time due to changes in the editorial boards.10 At the same time as Schätzel, Schlochauer and Wehberg first published the AVR, Laun and von Mangoldt founded their new Jahrbuch für internationales und ausländisches öffentliches Recht. The choice of the title was based on pragmatic considerations:11 A yearbook was covered by a publisher’s licence, even if it appeared—like the Jahrbuch—in several issues, while a periodical would have required a special licence from the occupying power—subject to a fee.12 Instead of ‘Völkerrecht’ (‘public international law’), the term ‘internationales Recht’ (‘international law’) was chosen in order not to use the word ‘Recht’ (‘law’) twice in the title. In their foreword to the first volume (1948), the two Directors of their respective North German institutes emphasised their joint commitment to the establishment of the Jahrbuch.13 They had regarded it as ‘one of their most urgent tasks’ to create an organ for the two institutes and for German international lawyers which could ‘publish the results of their research work’.14 Laun and von Mangoldt, who were entrusted with the role of Editors, described their task as making available to German scholars the ‘particularly fluid international legal material after the world wars’ for the preservation of peace and the reconstruction of relations between States.15 In addition, as von Mangoldt writes elsewhere, their aim was to overcome years of isolation by reprinting the research results of German international law scholars and thus to contribute to the integration of Germany into the community of States and the maintenance of peace.16

10 For

a closer analysis, see von Arnauld and Kresse 2017, at 391–400. generally Hecker 1983, at 185–428 (especially at 369 and following). 12 von Arnauld and Kresse 2017, at 382. 13 Laun and von Mangoldt 1948a, at 3. 14 Laun and von Mangoldt 1948a, at 3 (translation by authors). 15 Laun and von Mangoldt 1948a, at 4 (translation by authors). 16 As von Mangoldt wrote in a letter to James T. Shotwell, President of the Carnegie Endowment for International Peace on 14 August 1949. Cited in Rohlfs 1997, at 67. 11 See

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14.1.2 Troubled Beginnings: The First Two Volumes of the Jahrbuch 1948/49 The first volume of the Jahrbuch presented papers from the 1947 Hamburg conference and its 1948 follow-up as well as articles on related topics. From the 1947 conference, two papers dealing with the legal status of Germany were chosen, one by Rudolf Laun himself,17 and one authored by a presiding judge of the Hamburg Higher Regional Court.18 These were accompanied by—doubtlessly commissioned—articles on the same topic written by Eberhard Menzel (Hamburg)19 and F. A. Mann (London).20 While the German contributions were keen to prove that the unconditional surrender had not affected German statehood and to qualify the Allied powers as occupying forces, Mann, himself a German emigrant, leant more towards a sui generis status. However, both he and Menzel rejected Hans Kelsen’s idea that Germany had become a condominium of the Allied powers in 194521 and instead identified it as a coimperium. A third paper taken from the 1947 Hamburg conference began a section on the law of occupation: Hans Peter Ipsen (Hamburg) highlighted problems of Allied interference with the German judiciary,22 a practice also criticised by a senior civil servant from the Hamburg Justice Department.23 One theme running through these and further contributions on the topic was that the measures taken by the Allied forces in Germany in certain respects went beyond the powers accorded to the occupant under international law.24 The basso continuo of the first volume’s first instalment—to ‘normalise’ Germany’s legal status and to bind the Occupying Powers to their legal obligations—is also discernible in the second instalment. Here Hermann von Mangoldt argues for a limitation of criminal prosecution to war crimes proper and against concepts like ‘crimes against peace’ or ‘crimes against humanity’.25 Curiously, he decided to publish his paper, already finished in June 1945, unaltered, perhaps as to not openly comment on the Nuremberg trials. This fell to Hermann Mosler (Bonn, later Heidelberg) who warned against French proposals to criminalise any (i.e. also lawful) military action conducted by an aggressor State’s forces.26 By taking up the main topic of the 1948 Hamburg conference, the second volume sets out in a less traditionalist and introspective vein. The topic being the development of international law prompted Rudolf Laun to open with his own reflections on the

17 Laun

1948a, b. der Decken 1948. 19 Menzel 1948. 20 Mann 1948. 21 Kelsen 1945. 22 Ipsen 1948. 23 Dernedde 1948. 24 See also Schmid 1948; Butz 1948; Stappert 1948. 25 von Mangoldt 1948. 26 Mosler 1948. 18 von

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place of natural law in a basically positivist international legal system,27 a theme echoed in the Hamburg paper of Hermann Jahrreiß (Cologne), which pointed toward the coexistence of, and frictions between, a State-centred law of nations and the law of a World State.28 While both Laun and Jahrreiß, to a certain degree, showed some sympathy with the latter, the positivist, State-centred model certainly loomed large in two commissioned articles that follow, by former diplomat Paul Barandon on the lack of willingness on the part of States to submit to the newly created International Court of Justice,29 and by another German émigré, Georg Schwarzenberger (London), championing the inductive method in international law.30 The first two volumes reflect the central function of the Hamburg conferences for selecting the Jahrbuch’s topics: commissioned articles came mostly from younger scholars and practitioners from Germany. That the only contributions from non-German authors were from German emigrants (both naturalised in Britain), illustrates the estrangement that in general still existed between international lawyers in Germany and abroad. However, as witnessed by the contributions by Laun and Jahrreiß in the second volume, international legal scholarship in Germany also tried to catch up with the changes in international law. At the second Hamburg conference in April 1948, Gerhard Leibholz explained in his speech that ‘the traditional concept of the international legal community is increasingly about to cease to exist in political reality […] such homogeneity existed among the members of the traditional international legal community until the twentieth century’.31 For him there was therefore ‘a contradiction between codified international law, which still continues in the old traditional forms and does not take note of the fundamental structural changes in inter-state life, and political reality’.32 In agreement with this analysis (and on a more positive note), Laun and von Mangoldt include the reorganisation of the relationship between the individual and international law among these fundamental changes: ‘Until now, positive international law was essentially a law between States, today the individual, as a subject of international law and obligation, stands alongside the State.’33 Not everything ran as harmoniously as the preface to the first volume of the Jahrbuch might suggest. The founders’ original plan was to establish a joint editorial department in Hamburg, but this seems to have failed due to tensions between von Mangoldt and the de facto managing director of the Hamburg Research Centre, Eberhard Menzel (1911–1979).34 In the midst of these disputes, a plan had arisen in Hamburg to establish its own international law journal (an idea that Menzel himself did not support); von Mangoldt even asked Laun to dismiss Menzel from the editorial 27 Laun

1949. 1949. 29 Barandon 1949. 30 Schwarzenberger 1949. 31 Leibholz 1949, at 418. The article was published in the AVR, most probably because of the editorial troubles the Jahrbuch witnessed in 1948/49. 32 Leibholz 1949, at 421f. 33 Laun and von Mangoldt 1948a, at 3 (translation by authors). 34 von Arnauld and Kresse 2017, at 383. 28 Jahrreiß

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staff.35 It was eventually agreed that editorial supervision over the four instalments of the Jahrbuch planned for each year should rotate between the Hamburg Research Centre and the Kiel Institute for International Law. After the first issue of 1948, edited in Hamburg, the next two issues were edited in Kiel, with the fourth again edited in Hamburg. The publication was also burdened by difficulties with the publisher. The Hamburg publisher Robert Mölich and his Rechts- und Staatswissenschaftlicher Verlag had taken over the distribution of the Jahrbuch.36 Due to an acute shortage of paper, however, it was difficult to procure the six tonnes required for printing, especially since the planned participation of the Europa-Archiv in the documentation part did not materialise. The first issue was slated to be published before the start of the second Hamburg conference, but could not be published in time. When the publisher ran into financial difficulties after the currency reform in the three Western occupied zones of Germany in June 1948, the fourth issue, which had already been printed, could no longer be published there. It was ultimately published in 1950 by Hansischer Gildenverlag in Hamburg as the second volume (1949) of the Jahrbuch.37

14.2 From the Jahrbuch to the German Yearbook of International Law (GYIL) Due to financing problems, the second volume was the last for several years. It was not until 1954 that the third volume could be published under the new title Jahrbuch für internationales Recht. The change of title was deliberately intended to include private international law, which was also practised at the Kiel Institute, not least because of lucrative commissions for expert opinions.38 Publication and printing were transferred to the Göttingen publishers Vandenhoeck & Ruprecht, with whom von Mangoldt was able to obtain more favourable conditions due to family relationships.39 Three issues were to be published annually, which were to continue to be edited alternately in Hamburg and Kiel. In Kiel, von Mangoldt was involved in the editorial work together with the staff of the Institute, while on the Hamburg side, Rudolf Laun, by then Emeritus, acted as Editor in a personal capacity with his former assistant, Dimitri Constantopoulos (1916–2008), serving as the Managing Editor. The Research Centre only ‘participated’ in the editorial work—and in return received 30 free copies of each volume.40 The financing of the Jahrbuch was largely 35 Hecker

1983, at 370, fn. 29. 1983, at 370 (and following). 37 Hecker 1983, at 371. 38 von Arnauld and Kresse 2017, at 384. Another reason was that there was no further need to cover foreign public law with the ZaöRV appearing again from 1950/51. Böhmert and Laun 1950/51, at 8. 39 The publishing house belonged to his cousin, Günther Ruprecht. See Rohlfs 1997, at 67. 40 Rohlfs 1997, at 67. 36 Hecker

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secured by von Mangoldt. In close cooperation with the Nordwestdeutscher Rundfunk and the Hans Bredow Institute for Radio and Television at the University of Hamburg, he succeeded in incorporating a radio and broadcasting law department into the Kiel Institute, thereby obtaining financial support.41 The Jahrbuch dedicated a separate section to radio and broadcasting law from the third volume onwards, covering some controversial topics—these were the days of Cold War propaganda—like the freedom of States to broadcast,42 the legal status of transmitter stations on foreign soil43 or at sea,44 or the freedom of information,45 but also less contested issues like the International Broadcasting Organisation46 or recent national broadcasting legislation.47 The financing was thus shared equally between the Kiel Institute, the Hans Bredow Institute and (for the Hamburg partners) the Joachim Jungius Society of the Sciences.48 The endeavour proved protracted, however, so much so that when the third volume was finally published in 1954, it opened with an obituary for Hermann von Mangoldt, who had died unexpectedly on 24 February 1953. The by-then-only-indirect influence of the Hamburg Research Centre diminished further after volumes three and four in 1954. This did not change when its Managing Director, Eberhard Menzel, took over the directorship of the Kiel Institute for International Law in 1955, as successor to von Mangoldt, and Herbert Krüger succeeded Laun as head of the Research Centre. Laun and Constantopoulos remained partners on the Hamburg side. When the latter was appointed Professor in Thessaloniki in 1960 and thus retired from the editorial staff, the Jahrbuch was in fact edited solely in Kiel from volume 10 (1962) onwards. Only the commemorative volume for Laun’s 80th birthday, volume 11 (1962) of the Jahrbuch, was redacted by the Research Centre. From volume 14 (1969) onwards, any remaining involvement on the part of the Hamburg partners ceased, and, when the publisher changed from Vandenhoeck & Ruprecht in Göttingen to Duncker & Humblot in Berlin beginning with volume 17 (1974), operations were, finally and officially, run only from Kiel.49 With the Kiel Institute having assumed sole responsibility for the editorial work (and with a secure financial basis), the need to have the Jahrbuch published in separate issues was eliminated. From volume 12 (1965) on, it appeared in book form, every two years at first, and annually after the change of publisher. Starting with volume 19 (1976), not only did Jost Delbrück and Wilfried Fiedler join Wilhelm Kewenig as Co-Directors of the Kiel Institute and Editors of the Jahrbuch, but the Jahrbuch also changed its title a second time, to the German Yearbook of International Law (GYIL). The GYIL and, from volume 20 (1977) onwards, its individual sections were given 41 Rohlfs

1997, at 68. 1950/1; Joeden 1952/53. 43 Schuster and Preßler 1955. 44 Krämer 1961/62. 45 Rudolf 1954. 46 Krause-Ablaß 1965. 47 Thiem 1956; Stahl 1967. 48 Hecker 1983, at 371. 49 Ibid. 42 Joeden

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English titles. However, only some of the contributions were published in English. In the foreword to volume 19 (1976), Kewenig writes: ‘Unfortunately, the editorial staff does not have sufficient funds at its disposal to provide English translations of all the contributions written in German’.50 This said, Kewenig also noted the success of the editorial staff ‘in widening considerably the circle of foreign authors’.51 A conversion to English (but for reports on the activities of select international organisations and institutions addressed to a German audience) did not take place until volume 35 (1992). The complete switch to English in 2009 and the introduction of a formalised peer review procedure the following year were further steps on that same path to secure the GYIL its standing in a global community of international lawyers in which the German language could no longer be expected to be understood the way it was when the Jahrbuch was inaugurated in 1948.

14.3 Structure and Contents of the Jahrbuch/GYIL The developments sketched out so far are also mirrored in the changes in structure and content of the Jahrbuch/GYIL over the decades. Two main trends can be detected which could be summarised as ‘internationalisation’ and ‘scientification’. The first of these trends is manifest in the gradual conversion to an English language publication and in the growing number of non-German authors and authors not linked to the Kiel Institute. As expressions of scientification, a shift can be seen from documentation and information to scholarly analysis, together with an expansion and internal differentiation of the essays section (‘Forum’, ‘Focus’, ‘General Articles’), as well as the introduction of international peer review standards.

14.3.1 Articles Since its foundation, the Jahrbuch/GYIL has pursued the goal of providing its readers with academic essays and information on events and documents relevant to international law as well as on literature on international law, although in the course of its development it has pursued different focal points and internal differentiations. Scholarly articles can be found from volume 1 (1948) in the ‘Essays’ section. From volume 3 (1954) to volume 10 (1962), this section was divided into articles on general international law, private international law, and international radio and broadcasting law as well as shorter articles. The latter addressed more technical problems, such as the execution of judgments by English courts in Germany,52 or commented on

50 Kewenig

1976, at 5.

51 Ibid. 52 Bülck

1954.

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specific court decisions;53 however, they also included shorter contributions on more general topics.54 As this subdivision was abandoned, so were contributions to private international law. In the GYIL, essays can be found in the ‘Articles’ section, named ‘General Articles’ since volume 43 (2000), and in shorter case notes and commentaries, labelled for some time as ‘Notes and Comments’ and ‘Comments and Case Notes’. Since volume 38 (1995), each volume has had a thematic focus, under the section title ‘Focus’ since volume 39 (1996). Since volume 44 (2001), at the beginning of each volume, there is also a ‘Forum’ section which contains reflections on current international legal questions of somewhat greater import.

14.3.1.1

Number and Scope

Over time, the size of the Jahrbuch/GYIL’s essay section has steadily increased: from around 270 to 300 pages (1950s), through 350 (1960s), 400 (1970s) and 450 (1980s and 1990s), to an average of 500 pages (2000s). From 2009 onwards, the ‘German Practice’ reports (see Sect. 14.3.2), which correspond in content and scope to the earlier ‘Comments and Case Notes’ section, have once again significantly increased the number of essays per volume and the scope of the sections that go beyond reports and documentation. Until 2009, the number of scholarly essays varied on average between 12 and 16 per issue, but since then it has totalled around 30 articles (in the ‘Forum’, ‘Focus’, ‘General Articles’, and ‘German Practice’ sections) with an average of 750 pages of text (with volume 53 (2010) reaching 1,010 pages).

14.3.1.2

In-House and External Contributions

While the share of scholarly contributions to the Jahrbuch/GYIL has steadily increased over time, the number of authors affiliated to the Kiel Institute for International Law (and, in the earlier volumes, also to the Hamburg Research Centre), or who are otherwise close to it, such as alumni and former Ph.D. students, has tended to decrease. In the first 20 volumes, members of this group generally contributed three to six articles per issue, but in more recent years (excluding the ‘German Practice’ section) this has been, at most, a single article, and often none at all.

14.3.1.3

Domestic and Foreign Contributions

From the beginning, foreign authors also wrote in the Jahrbuch/GYIL, partly in English or French. While contributions by non-German authors in the 1950s accounted for between a third and a half of the total, from volume 8 (1959) onwards 53 E.g.

Münch 1959.

54 E.g. Schultz 1954 on the Soviet conception of international law; Hecker 1955 on the international

legal protection of children.

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the proportion fell to a few contributions (one to three) in each issue. A possible explanation for this development could be that—with the former Nazism- and warrelated isolation overcome—no pressing need for internationalisation was felt at the time within German legal scholarship (made plausible by comparable figures in the cases of AVR and ZaöRV ), resulting in only occasional invitations to colleagues outside Germany. This trend was broken following the renaming of the Jahrbuch to the GYIL by a new generation of scholars with formative research experience in the United States.55 Apart from some phases in which the rate was again between 30 and 50% (1981–1985, 1991, 1995), the majority of contributions from volume 20 (1977) and later generally came from foreign authors. After the share fell again from volume 44 (2001) onwards, the contributions of non-German authors have generally accounted for 60–80% of scholarly essays since approximately 2010 (again excluding the ‘German Practice’ section).

14.3.2 Reports on Practice in International Law Reports on international legal practice can be found over the decades in various sections of the Jahrbuch/GYIL. The section ‘Aus der Praxis’ (‘From Practice’), later renamed ‘Berichte’ (‘Reports’), contains relevant judgments and the practice of international organisations and institutions, mostly over a reporting period of several years. In the GYIL, this is reflected in the ‘Reports’ section, whose contributions were mainly written in German even after the transition to English. From volume 36 (1993) onwards, an independent section on German practice in international law was established, known as the ‘German Section’ (or ‘German Law Developments’) until volume 52 (2009) when it was renamed ‘German Practice’. In the same year (2009), the traditional reports on the practice of international institutions were discontinued. This development indicates a change in the target audience: While at the outset one of the aims of the Jahrbuch was to make the ‘particularly fluid international legal material’ available to German academics, the switch to the English language has gradually brought to the fore the goal of familiarising international readers with processes in Germany relevant to international law. As stated by the Editors in 2009: ‘By presenting this section in English, the editors hope to raise international awareness of significant decisions made by the German legislature, executive and judiciary and stimulate discussion of German practice on the federal and state level outside Germany.’56 Occasionally, conference reports and obituaries have also been included in the Jahrbuch/GYIL, some of which have appeared in ephemeral sections such as ‘Umschau’ (‘Review’) or ‘Commemoration’.

55 Wilhelm

Kewenig (1934–1993) had obtained an LL.M. at Harvard Law School in 1967, Jost Delbrück (born 1935) at the Indiana University School of Law in 1960. 56 Giegerich and Proelss 2009, at 635.

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14.3.3 International Legal Materials Probably the most striking changes have taken place in the publication of international law documents in the Jahrbuch/GYIL. In view of their availability on the Internet, it is hardly surprising that the ‘Documents and Materials’ section (later named ‘Documentation’) no longer exists. Its demise, however, started earlier, due perhaps to publications such as International Legal Materials, edited by the American Society of International Law since 1962, which had become widely available in Germany and satisfied the need for mere documentation, while at the same time space was needed for the ever-expanding essays section. The last document published in the GYIL was the Palestinian Declaration of Independence in volume 31 (1988). In the first decades, documents had taken up a lot of space: In the 1950s, the documentation section accounted for about a quarter of the Jahrbuch, while in the course of the 1960s the ratio increased by about 50%. Around 1970, the documents section shifted to the research focus of the Kiel Institute under Eberhard Menzel: volume 13 (1967) and volume 14 (1969) contain documents on international and regional arms limitation and arms control, documents on the Federal Government’s policy of détente and documents on international and national radio law as subcategories. Volume 14 (1969) also contains an extensive collection of international and national legal documents on the continental shelf, reflecting a focus on the recent judgment of the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases,57 with Menzel having belonged to, and having authored an expert opinion for, the German delegation. In the same volume, the focus on radio and broadcasting law also ended, most probably because the Kiel Institute had enough resources by then to operate without the help of its former partners. Occasionally, in addition to documents, tables58 and lists59 were published in the appendix.

14.3.4 Book Reviews In the first decades, book reviews, published under the heading ‘Literatur’ (initially with a separate section for radio and broadcasting law) or ‘Book Reviews’, also took up considerable space. The reviews are followed to this day by a list of unreviewed books sent to the Editors (under the heading ‘Incoming Books’ or ‘Books Received’). From volume 14 (1969) to volume 30 (1987), individual reviews were regularly preceded by review essays on specific topics, usually written by members of the Institute’s staff. From volume 15 (1971) to volume 22 (1979), reviews of works published in the series of the Institute for International Law can be found at the end of the review section. While most of the reviewers used to be members of the 57 North

Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), ICJ, Merits, Judgment, 20 February 1969. 58 See volume 14 (1969). 59 See volume 13 (1967) to volume 15 (1971).

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Institute’s staff, the majority of reviews published in the GYIL nowadays are written by reviewers outside of the Institute, predominantly by non-German authors.

14.3.5 Walther Schücking Lecture Volume 60 (2017) saw the addition of another section in the GYIL, namely that of the annual Walther Schücking Lecture in Kiel. The first lecture, ‘Beyond War and Diplomacy: A Giant Step for Mankind’,60 delivered by Philip Allott, was followed in volume 60 (2017) of the GYIL by a special section comprised of papers presented at the ensuing international Ph.D. workshop with Professor Allott: ‘Towards Utopia— Rethinking International Law’.61 The second in this series of invited guest lectures named, like, since 1995, the Kiel Institute of International Law, after its former director and the first German judge at the Permanent Court of International Justice, was delivered by Christine Chinkin, with her lecture on ‘Women, Peace, and Security’ being published shortly thereafter in volume 61 (2018).62 The third lecture, given by Alan Boyle, ‘Progressive Development of International Environmental Law: Legislate or Litigate?’, is due for publication in volume 62 (2019).

14.3.6 Outstanding Doctoral and Post-Doctoral Theses Volume 61 (2018) signified another substantial milestone for the GYIL, with the introduction of a new section: ‘Outstanding Doctoral and Post-Doctoral Theses’ (a catchier title is in planning). With the stated aim ‘To draw attention to German scholarship in international law beyond the occasional book review and to support junior scholars from Germany […] [i]t is meant as a forum in which authors of excellent doctoral or post-doctoral dissertations on international and European law at German universities can present their theses to a wider international audience.’63 The first wave of such submissions led to the publication of seven English-language summaries of doctoral or post-doctoral theses, which are generally written in German and awarded the highest grades. Examples from volume 61 (2018) include dissertations examining the use of comparative reasoning in constitutional jurisprudence,64 the shifting structure and foundational principles of international law,65 and the protection of human rights in the European and Inter-American regional systems.66 60 Allott

2017. et al 2017. 62 Chinkin 2018. 63 von Arnauld et al 2018, at 543. 64 Martini 2019. 65 Rauber 2019. 66 Vasel 2019. 61 Theilen

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14.4 Thematic Focuses in Hindsight The main thematic focuses of the Jahrbuch/GYIL can only be dealt with cursorily here. The aim is to offer an overview of the general choice of topics and the position on fundamental or current issues of international law and international relations for the period beginning with the early days of the Jahrbuch (for the first two volumes, see Sect. 14.1.2) up to the GYIL at the turn of the millennium.

14.4.1 Topics of the 1950s and 1960s After its ‘new start’ in 1954 (backdated to 1950/51), the Jahrbuch is characterised by a wide range of topics and diversity. It mixes reflections on fundamental and structural questions of international law with contributions on current topics. In the 1950s, for example, there were contributions on the Suez crisis, the Saarfrage, and the Sputnik crisis. In the 1960s, European Economic Community (EEC) issues were increasingly discussed, along with the issues of disarmament, security and defence, decolonisation and self-determination. Volume 12 (1965) contains a comprehensive documentation of the Cuban missile crisis of 1962. Volume 14 (1969), which pays tribute to the ICJ judgment in the North Sea Continental Shelf Cases in both the essays and documents sections, begins a continuous consideration of the international law of the sea, accompanying the Third United Nations Conference on the Law of the Sea, which began in 1973. It is therefore all the more surprising that the 1982 United Nations Convention for the Law of the Sea is not acknowledged per se in the GYIL, but only in a series of articles on individual topics over the following years. However, in December 1982 the Kiel Institute devoted a symposium to the ‘new Law of the Sea’, which was published in an anthology.67

14.4.2 Topics of the 1970s and 1980s In the 1970s and 1980s, the selection of topics and stances sharpened the ‘critical’ profile of the Jahrbuch/GYIL. At that time, the Jahrbuch/GYIL had a reputation for not shying away from dealing with topical, and sometimes sensitive, political issues.68 Such topics included global and regional peacekeeping, disarmament and nuclear weapons, East–West German relations,69 international development law, and the New International Economic Order. Current events and decisions are usually taken into account quickly—as far as the production rhythm of a yearbook permits: 67 Delbrück

1984. 1973, at 711. 69 The series of treaties with Eastern Europe is the subject of the ‘Focus’ section in volume 18 (1975). 68 Hula

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the Vienna Convention on the Law of Treaties and the American Convention on Human Rights (both 1969) in volume 15 (1971), the definition of aggression of the United Nations General Assembly (1974) in volume 18 (1975), the Nuclear Tests Case before the ICJ (1974) and its Western Sahara Advisory Opinion (1975) in volumes 19 (1976) and 20 (1977), the (first) Turkish invasion of Cyprus (1974) in volume 21 (1978), and, in the same volume, the 1977 Additional Protocols to the Geneva Conventions of 1949. The Vienna Agreement on State Succession in Treaties (1978) is dealt with in volumes 23 (1980) and 24 (1981), the Convention on State Succession in Property, Archives and Debts (1983) in volume 26 (1983), and the Greenland Referendum on Resignation from the European Communities (1982) in volume 25 (1982). Volumes 26 (1983) and 27 (1984) deal with the Falklands conflict, while volume 27 (1984) devotes considerable space to the conflict between the United States of America and Western European States over the construction of a gas pipeline to Siberia (1981/82)—who is reminded of Nord Stream 2 in 2019/2020 here?—which is examined from various points of view.

14.4.3 Topics of the 1990s It is surprising that the upheavals in Central and Eastern Europe in 1989 and 1990 and the dissolution of the Soviet Union on 26 December 1991 find practically no echo in the GYIL. Volume 33 (1990) focuses on the EEC and integration in Western Europe. Volume 34 (1991) contains a marginal contribution to the role of the United Nations ‘after the Cold War’, and volume 36 (1993) contains a shorter report on the ‘two plus four process’. The conflicts in the Balkans after the disintegration of Yugoslavia do not extend beyond the ‘Reports’ section of the GYIL. In view of the dramatic political events of those years (and the numerous new questions of international law they posed), the GYIL here seems somewhat ‘out of touch’. Recurring themes of the early 1990s in the GYIL are environmental protection and human rights; however, clear focal points can no longer be identified. This changes with volume 37 (1994), which completely revolves around the Maastricht Treaty and the judgment of the Federal Constitutional Court. From volume 38 (1995) onwards, the new ‘Focus’ section provides a clear emphasis on further topics. It begins with the topic of migration, followed by GATT/WTO in volume 39 (1996), international law and domestic law in volume 40 (1997), international law and the Internet in volume 41 (1998), treaty law in the twenty-first century in volume 42 (1999) and cooperation in the Baltic Sea region in volume 43 (2000).

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14.5 Going Glocal: The GYIL in the New Millennium 14.5.1 Globalisation and Digitalisation as Challenges The GYIL has also changed since the year 2000: The ‘Focus’ section, introduced in 1995, enabled the Editors to identify topical issues of international law. Where these follow the hot topics in the discourse on international law or anniversaries, there are of course overlaps with other journals: the globalisation of the discourse does not make individual profiling necessarily easier. The Focus in volume 50 (2007) (‘Is There a German Approach to International Law?’) and the publication of contributions to the law of the sea symposium on the occasion of the 100th anniversary of the Walther Schücking Institute in volume 57 (2014), might stand out for individuality. The same overlaps with other German and non-German journals exist, by and large, with regard to the ‘Forum’ section that has dealt in recent years with topics like the Ukraine conflict (2015), the Paris Agreement on Climate Change (2016), the relationship between African States and the International Criminal Court (2017) and ‘The Trump Administration and International Law’ (2018). A significant change took place in 2010 with the introduction of the peer review procedure. Before that, submitted and invited manuscripts alike had been reviewed internally by the Editors. Since 2010, the contributions to the ‘General Articles’ section have been subject to a double-blind review by external experts, while in the ‘Forum’ and ‘Focus’ sections authors in general continue to publish at the invitation of the Editors. Thus, the GYIL was the first of the Germany-based periodicals devoted to international law in general to adopt this global publication standard. Since the introduction of the peer review procedure and possibly causally linked to it, foreignauthored contributions now account for the majority of essays published in the GYIL, including in the ‘General Articles’ section, which is open to submissions. While switching from German to English only in 1992 and introducing the peer review procedure in 2010 have significantly widened the GYIL’s audience and impact, the next challenge ahead is to develop a consistent and up-to-date epublication strategy. Questions of how to deal with making content freely available online on platforms such as SSRN today face numerous periodicals, and yearbooks especially. For example, what is the appropriate ‘moving wall’ for pay-only content of an annual publication? Having a small Germany-based publishing house as a partner, however, can pose further challenges in this respect as much as it offers the advantage of a direct line to the publisher.

14.5.2 Forward to the Past? Reclaiming the Local In a globalised discourse on international law and with a scholarly culture that has long been shaped by American standards, the combined effects of what we have called ‘internationalisation’ and ‘scientification’ obviously present a danger that an

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international law periodical might lose its profile. An interesting development is how visible (or invisible) the connection between the GYIL and its editing institution, the Walther Schücking Institute for International Law in Kiel, had become over time. This was largely due to the transformation of the GYIL from a forum predominantly for German international legal scholars speaking to an international audience to an international periodical on international law edited in Germany. Hand in hand with this process, the institutional home base of the GYIL faded out. While Eberhard Menzel frequently opened the Jahrbuch with his own lead essay, under the new structure the Editors have increasingly assumed the role of moderators who occasionally contribute an introduction or even just an introductory commentary. The ‘Forum’ section, introduced in volume 44 (2001), initially counteracted this development; in the first few years, as a rule, one of the Editors published their critical reflections on a current event. Since 2010, however, this section has also been written by invited authors. For several years, the ‘German Practice’ section was the strongest tie between content and editing institution. As in previous decades, these reports are written predominantly by members of the Institute’s staff or by people who are otherwise associated to the Institute. The institutional link has become more visible, however, since the introduction of the Walther Schücking Lecture in 2017. Furthermore, the ‘Focus’ section of volume 61 (2018) built on papers presented at a symposium on ‘International Health Law’ co-hosted by the Walther Schücking Institute in Kiel, a practice that will be continued for future symposiums hosted by the Institute. Both steps have been taken deliberately by the current Editors to sharpen the GYIL’s profile and individuality. If these latest editorial decisions connect the GYIL more prominently with the Walther Schücking Institute, one question remains: How ‘German’ is the GYIL today? The ‘Focus’ or ‘Forum’ section may occasionally take up a ‘typisch deutsch’ theme; in general, however, they will reflect an internationalised legal discourse, perhaps with a somewhat higher percentage of contributions by German scholars than in periodicals published in other countries. Even more so, the ‘General Articles’, which are submitted in response to an international call for papers, cannot and will not strengthen the ‘German’ profile. Here, the GYIL presents itself as an ‘international’ periodical. Two sections, however, are specifically designed to present contributions to international law from Germany. For decades now, the ‘German Practice’ section has provided readers outside of Germany with information about relevant German practice in international legal matters, from court rulings to policy decisions. This has been recently complemented by the new section for thesis summaries in order to publicise research ‘made in Germany’. In a sense, with this editorial decision the present Editors want to build on the founding idea of the Jahrbuch and adapt it to the current state of international legal discourse, i.e. to make it clear that German scholarship on international law still has a part to play in the development of international law in the twenty-first century. About the Authors and Acknowledgments Andreas von Arnauld, Co-Editor, together with Kerstin von der Decken and Nele Matz-Lück, German Yearbook of International Law; Professor for Public Law, Public International and European Law and Co-Director, Walther Schücking Institute

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for International Law, Christian-Albrechts Universität zu Kiel [[email protected]]. Daley J. Birkett, Vice-Chancellor’s Senior Fellow, Northumbria Law School, Northumbria University; Research Fellow, War Reparations Centre, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam; former Assistant Editor, German Yearbook of International Law [[email protected]]. The authors would like to express their gratitude to Lilo B. Rösch for research assistance.

References Allott P (2017) Beyond War and Diplomacy: A Giant Step for Mankind. German Yearbook of International Law 60:269–312. Barandon P (1949) Die Krise der internationalen Geichtsbarkeit. Jahrbuch für internationales und ausländisches öffentliches Recht 2:667–675. Bodendiek F (2011) Walther Schücking and the Idea of ‘International Organization’. European Journal of International Law 22:741–754. Böhmert V, Laun R (1950/51) Vorwort der Herausgeber. Jahrbuch für internationales Recht 3:8–9. Bülck H (1954) Das Erfordernis der Gegenseitigkeit bei der Vollstreckung englischer Urteile. Jahrbuch für internationales Recht 5:92–101. Butz (1948) Die Rechtsquellen für die Besatzungsleistungen. Jahrbuch für internationales und ausländisches öffentliches Recht 1:129–138. Chinkin C (2018) Women, Peace, and Security: Tackling Violence Against Women in the Contemporary World? German Yearbook of International Law 61:185–205. de la Rasilla I (2018) A Very Short History of International Law Journals (1869–2018). European Journal of International Law 29(1):137–168. Delbrück J (ed) (1984) Das neue Seerecht. Internationale und nationale Perspektiven. Duncker & Humblot, Berlin. Delbrück J (2011) Law’s Frontier – Walther Schücking and the Quest for the Lex Ferenda. European Journal of International Law 22:801–808. Dernedde C (1948) Justiz und Besatzung in der britischen Zone. Jahrbuch für internationales und ausländisches öffentliches Recht 1:115–122. García-Salmones M (2011) Walther Schücking and the Pacifist Traditions of International Law. European Journal of International Law 22:755–782. Giegerich T, Proelss A (2009) German Practice. Foreword from the Editors. German Yearbook of International Law 52:635. Hecker H (1955) Der Schutz der Kinder im Völkerrecht. Jahrbuch für internationales Recht 6:254– 262. Hecker H (1983) Die Forschungsstelle für Völkerrecht und ausländisches öffentliches Recht von 1946 (mit ihren Vorläufern), das Institut für Auswärtige Politik und die Vereinigung (1973) zum Institut für Internationale Angelegenheiten. In: Gantzel K (ed) Kolonialrechtswissenschaft, Kriegsursachenforschung, Internationale Angelegenheiten: Materialien und Interpretationen zur Geschichte des Instituts für Internationale Angelegenheiten der Universität Hamburg, 1923–1983 im Widerstreit der Interessen. Nomos, Baden-Baden, 185–428. Hueck I (1999) Die Gründung völkerrechtlicher Zeitschriften in Deutschland im internationalen Vergleich. In: Stolleis M (ed) Juristische Zeitschriften. Die neuen Medien des 18.–20. Jahrhunderts. Klostermann, Frankfurt, 379–420. Hula E (1973) Jahrbuch für Internationales Recht. Volume 15 (Book Review). American Journal of International Law 67:611. Ipsen HP (1948) Deutsche Gerichtsbarkeit unter Besatzungshoheit. Jahrbuch für internationales und ausländisches öffentliches Recht 1:87-114.

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Jahrreiß H (1949) Die Fortentwicklung des Völkerrechts. Jahrbuch für internationales und ausländisches öffentliches Recht 2:654–666. Joeden J (1950/51) Die Funksendefreiheit der Staaten. Teil 1: Äthersouveränität oder Ätherfreiheit. Jahrbuch für internationales Recht 3:85–128. Joeden J (1952/53) Die Funksendefreiheit der Staaten. Teil 2: Die Schranken der Ätherfreiheit. Jahrbuch für internationales Recht 4:71–119. Kelsen H (1945) The Legal Status of Germany according to the Declaration of Berlin. American Journal of International Law 39:518–526. Kewenig WA (1976) Foreword. German Yearbook of International Law 19:5–6. Krämer H-R (1961/62) Zur Rechtsstellung von Rundfunksendern auf See. Jahrbuch für internationales Recht 10:206–263. Krause-Ablaß G (1965) Die internationale Rundfunkorganisation. Begriff, Zielsetzung, Struktur, Funktion und Rechtsstellung. Jahrbuch für internationales Recht 12:301–340. Kunz JL (1949) The Present State of Foreign Periodical Literature of International Law. American Journal of International Law 43:503–509. Laun R (1948a) Zweierlei Völkerrecht. Jahrbuch für internationales und ausländisches öffentliches Recht 2:625–653. Laun R (1948b) Der gegenwärtige Rechtszustand Deutschlands. Jahrbuch für internationales und ausländisches öffentliches Recht 1:9-21. Laun R, von Mangoldt H (1948a) Geleitwort. Jahrbuch für internationales und ausländisches öffentliches Recht 1:3–5. Laun R, von Mangoldt H (1948b) Umschau. Jahrbuch für internationales und ausländisches öffentliches Recht 1:239–255. Leibholz G (1949) Zur gegenwärtigen Lage des Völkerrechts: Referat zur Tagung der deutschen Völkerrechtslehrer in Hamburg am 15. April 1948. Archiv des Völkerrechts 1:415–423. Mann FA (1948) The present legal Status of Germany. Jahrbuch für internationales und ausländisches öffentliches Recht 1:27–42. Martini S (2019) Comparative Constitutional Justice. German Yearbook of International Law 61:545-548. Menzel E (1948) Deutschland – ein Kondominium oder Koimperium – eine Auseinandersetzung mit den Thesen von Prof. Kelsen. Jahrbuch für internationales und ausländisches öffentliches Recht 1:43-86. Mosler H (1948) Die Kriegshandlung im rechtswidrigen Kriege. Jahrbuch für internationales und ausländisches öffentliches Recht 1:335–357. Mosler H (1990) Die Deutsche Gesellschaft für Völkerrecht. Ihr Beitrag zum Internationalen Recht seit der Wiedergründung im Jahre 1949. Berichte der Deutschen Gesellschaft für Internationales Recht 30:9–17. Münch F (1959) Das Sumatra-Tabak-Urteil des Hanseatischen OLG Bremen. Jahrbuch für internationales Recht 9:84–91. Rauber J (2019) The Changing Structure of International Law as a Change of International Law’s Foundational Principles. German Yearbook of International Law 61:553–555. Rohlfs AO (1997) Hermann von Mangoldt (1895–1953). Das Leben des Staatsrechtlers vom Kaiserreich bis zur Bonner Republik. Duncker & Humblot, Berlin. Rudolf W (1954) Informationsfreiheit und Rundfunk im Völkerrecht. Jahrbuch für internationales Recht 5:256-288. Schmid K (1948) Die Neuregelung des Besatzungsrechts. Jahrbuch für internationales und ausländisches öffentliches Recht 1:123—128. Schultz L (1954) Die sowjetische Völkerrechtslehre. Jahrbuch für internationales Recht 5:78–91. Schuster F, Preßler H (1955) Die Stellung fremder Funkstellen im Hoheitsgebiet eines anderen Landes auf Grund des Internationalen Fernmeldevertrages. Jahrbuch für internationales Recht 6:225–241. Schwarzenberger G (1949) Die induktive Methode im Völkerrecht. Jahrbuch für internationales und ausländisches öffentliches Recht 2:676–689.

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Stahl D (2015) Entschließungen deutscher Völkerrechtler. In: Arbeitskreis Menschenrechte im 20. Jahrhundert (ed) Quellen zur Geschichte der Menschenrechte, http://www.geschichte-menschenr echte.de/schluesseltexte/entschliessungen-deutscher-voelkerrechtler/. Accessed 29 April 2020. Stahl K (1967) Die Reform des französischen Staatsrundfunks 1964. Jahrbuch für internationales Recht 13:263–298. Stappert A (1948) Die alliierte Kontrollbehörde in Deutschland. Jahrbuch für internationales und ausländisches öffentliches Recht 1:139–159. Stolleis M (2012) Geschichte des öffentlichen Rechts in Deutschland, Band 4: Staats- und Verwaltungsrechtswissenschaft in West und Ost 1945–1990. C.H.Beck, Munich. Tams C (2011) Re-Introducing Walther Schücking. European Journal of International Law 22:725– 739. Theilen JT, Hassfurther I, Staff W (2017) Guest Editors’ Introduction: Towards Utopia – Rethinking International Law. German Yearbook of International Law 60:315–334. Thiem H (1956) Die Neuordnung des Britischen Fernsehwesens durch den Television Act 1954. Jahrbuch für internationales Recht 7:106–133. Vasel JJ (2019) The Emancipation of Regional Human Rights Protection Mechanisms. German Yearbook of International Law 61:565–567. von Arnauld A, Kresse L (2017) Zeitschriften am Institut für Internationales Recht. Das German Yearbook of International Law und seine Vorgänger. In: von Arnauld A (ed) Völkerrecht in Kiel: Forschung, Lehre und Praxis des Völkerrechts am Standort Kiel seit 1665. Duncker & Humblot, Berlin, 367–404. von Arnauld A, von der Decken K, Matz-Lück N (2018) Editors’ Note. German Yearbook of International Law 61:543. von der Decken M (1948) Die Grenzen der Geltung der Haager Landkriegsordnung. Jahrbuch für internationales und ausländisches öffentliches Recht 1:22–26. von Mangoldt H (1948) Das Kriegsverbrechen und seine Verfolgung in Vergangenheit und Gegenwart. Jahrbuch für internationales und ausländisches öffentliches Recht 1:283–334.

Chapter 15

The Past, Present and Future of the Hungarian Yearbook of International Law and European Law—An Evolving Story Marcel Szabó

Contents 15.1 History of the Hungarian International Law Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2 Direct Causes and Circumstances of Creating the Hungarian Yearbook . . . . . . . . . . . . . 15.3 Sections of the Yearbook—Then and Now . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4 Can a Yearbook Be Considered to Be Topical? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.5 Adapting the Hungarian Yearbook to the Digital Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.6 The Impact of the Hungarian Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7 Instead of Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Hungarian Yearbook of International Law and European Law (established in 2013) represents a new forum in Central and Eastern Europe for primarily the Hungarian academic community to publish peer reviewed articles in a foreign (English) language journal presenting the Hungarian position and new findings on topical issues of international law and European law. Overcoming the existing language barrier, the Yearbook published in English by Eleven International Publishing in the Hague seeks to enrich Hungarian legal literature and have an impact on international law and European law scholarship at large. The chapter introduces the history of the Hungarian international law scholarship, the way towards the foundation of the Hungarian Yearbook, the structure of the Yearbook, the question whether a yearbook shall be topical, the adaption of the Hungarian Yearbook to the challenges of the digital age and the impact of the Yearbook. Keywords Academic community · legal scholarship · Hungarian Yearbook of International Law and European Law · Hungary · Central and Eastern European relevance M. Szabó (B) Pázmány Péter Catholic University, Budapest, Hungary e-mail: [email protected] Constitutional Court of Hungary, Budapest, Hungary © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_15

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15.1 History of the Hungarian International Law Scholarship Hungary’s independent international law scholarship dates back to almost a century. The first Hungarian language textbooks, discussing international law independently, were published following the Austro-Hungarian Compromise of 1867, in the era of the Austro-Hungarian Empire. Typically, those textbooks were translations of leading German language textbooks without any own added value. István Kiss based his book—entitled ‘European International Law’ published in 1876—on Johann Caspar Bluntschli’s work,1 while István Apáthy’s book—entitled ‘Positive European International Law’—was inspired by August Wilhelm Heffter’s work.2 Somló Bódog was the first Hungarian international lawyer and philosopher of law whose oeuvre was available in languages other than Hungarian.3 Hungary’s international law scholarship has always been characterised by the fact that its representatives addressed topics regularly with scientific professionalism that were politically important for Hungary. This was not least due to the fact that there was a rather limited number of faculties of law in Hungary (following the Peace Treaty of Trianon after World War I there were four faculties of law in total, and after World War II, over a longer period of time there were only three faculties of law in Hungary). Furthermore, leading international lawyers had typically close links with the Ministry of Foreign Affairs (mostly with its Department of International Law). Before World War I such topics included the international law status of the Danube4 or the legal position of Bosnia and Herzegovina.5 Between World War I and World War II, Hungarian scholarship addressed, in particular, the legal relevance and consequences of peace treaties,6 as well as the international law framework for minority protection.7 However, World War II had to be considered as the end of an era in the history of Hungary’s international law scholarship. The most prominent international lawyers of the era preceding World War II either died8 or were sidelined by the socialist government, depriving them of their jobs and publication opportunities, as well as

1 Bluntschli

1872. 1844. 3 Somló 1917. 4 Lers 1891. 5 Buza 1911. After the Congress of Berlin (1878), Bosnia and Herzegovina nominally remained under sovereignty of the Ottoman Empire but was de facto ceded to Austria-Hungary. In 1908 the Austro-Hungarian Empire announced the annexation of Bosnia and Herzegovina, and from this date Bosnia and Herzegovina was formally under the Austro-Hungarian sovereignty. The annexation immediately led to an international crisis, which was solved in 1909 when the Ottoman Empire recognised the annexation—after a material compensation paid by Austria-Hungary. 6 Wlassics 1922a; Buza 1933. 7 Buza 1930; Wlassics 1922b; Flachbarth 1937. 8 E.g. Ferenc Faluhelyi in 1944 and Gyula Teghze in 1939. 2 Heffter

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their membership in the Hungarian Academy of Sciences (HAS).9 The scholarship of that era was characterised by the socialist approach to international law, e.g. emphasis on citizens’ rights instead of human rights, a broad interpretation of internal affairs and politically motivated consideration of the International Court of Justice (ICJ) and the UN, in accordance with the expectations of the Soviet Union.10 In this period, however, László Buza formulated his concept of ‘program-type norms’ in Szeged, becoming one the first scholars to establish the theoretical foundations for what we now call soft law.11 The context of international law scholarship (and the newly emerging European law scholarship12 ) changed fundamentally in the post-transition period (after 1989). The number of legal faculties increased significantly in Hungary (today, eight Hungarian universities have a separate faculty of law and other two universities have high profile courses in international law, international relations and diplomacy). This necessarily brought about an increase in the number of professionals specialised in international law. While in the pre-transition period only the Scientific Qualifications Committee of the HAS was entitled to grant the Candidate of Sciences (CSc) title, universities have also obtained the right to grant Ph.D. degrees providing much more room for members of the scientific community to set the research agenda. Hungary’s new priorities (including, first of all, membership in the Council of Europe, the EU and NATO) have naturally contributed to the expansion of research topics. Furthermore, an improved knowledge of English (and, as the case may be, French and German) is self-evident for younger generations of international lawyers (and lawyers specialised in EU law). Moreover, travelling without state restrictions13 and Internet-based communication also contributed to a significant increase in researchers’ contacts and their collaboration in research projects abroad. 9 E.g.

Artúr Balogh or Albert Irk had previously also received the former Corvin Chain Award (an award founded in 1930 which could be held simultaneously by not more than twelve persons for their high record in promoting Hungarian science, literature and arts, as well as Hungarian education). 10 This was an example of the general reluctance of the Soviet Union and East-European states to accept compulsory dispute resolution and the jurisdiction of the ICJ. Rosenne refers to the’widespread political dissatisfaction in the manner in which the Court handled the South West Africa case’ as the main reason of the Soviet and East European reservations to the dispute settlement regime of the VCLT. Rosenne 1970, at 81. According to the reservation made by the Soviet Union, ‘the consent of all the parties to the dispute is required in each separate case’. The Hungarian People’s Republic (like other states under the Soviet Union’s strong influence) made the same reservation. 11 Buza 1957, at 19–20. 12 The Member States of the COMECON (Council for Mutual Economic Assistance, an economic organization between 1949 and 1991 under the leadership of the Soviet Union) did not recognise the European Economic Community (EEC) as an independent international organisation. Hungary entered into a bilateral economic and commercial cooperation agreement with the EEC only in 1988. Even though certain international public and private lawyers addressed the question of European integration in the 1980s (e.g. Mádl 1974; Valki 1977), Hungary’s own European law scholarship emerged only in the 1990s. 13 In Hungary, passports that are valid for all countries of the world were only available from 1 January 1988. Prior to that date, travelling was subject to a special state permission, except for travelling to socialist states.

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While the community of Hungarian international lawyers grew significantly, there was no similar increase in the number of foreign language publication fora in Hungary. The foreign (English) language journals established by universities were necessarily competing with each other (and with the Hungarian language journals of the same universities),14 and they were and are published only electronically owing to the dire financial situation of the Hungarian higher education over the past (at least) 10 years.15 Nowadays, in Hungary there is only one printed journal (in addition to the Hungarian Yearbook) which accepts publications in English on a regular basis: the law journal Acta Juridica launched by the HAS in 1959, published four times a year under the title Acta Juridica Hungarica—Hungarian Journal of Legal Studies.

15.2 Direct Causes and Circumstances of Creating the Hungarian Yearbook The Editor-in-Chief of the Yearbook (and author of this chapter) decided to establish the Hungarian Yearbook in 2013. At that time, he was Deputy Commissioner for Fundamental Rights and Ombudsman for Future Generations, as well as head of department at Pázmány Péter Catholic University, Budapest. This decision was reinforced also by the fact that international lawyers in the majority of the states in Central and Eastern Europe had already launched their own Yearbooks16 —in addition to the traditional Yearbooks that had existed for decades—while in Hungary no such initiative emerged. This is true despite the fact that excellent Hungarian international lawyers—from time to time—held and hold serious positions in the Hungarian and international scientific community.17 14 Without giving an exhaustive list, the ELTE Law Journal (by ELTE Law School), the Miskolc Journal of International Law (by the University of Miskolc), the Pázmány Law Review (by Pázmány Péter Catholic University) and the Pécs Journal of International Law and European Law (by the University of Pécs) may be mentioned. Currently, only the Pécs Journal of International Law and European Law is functioning as a publication forum and is published regularly, twice a year. 15 Since the economic crisis in 2008, Hungary’s higher education system has experienced serious budget cuts and financial reforms, including the creation of the position of the chancellor in 2014, who is responsible for the non-academic (financial) activity of the institution. As of 2019–2020, the Hungarian Government has started to introduce a new, foundation-funded model of higher education, mostly for budgetary reasons. 16 E.g. the first edition of the Slovak Yearbook of International Law was published in 2008, the Czech Yearbook of Public & Private International Law has been in existence since 2010 and the Croatian Yearbook of European Law and Policy was published in 2005 for the first time. 17 Without giving an exhaustive list: Péter Kovács was Justice of the Constitutional Court of Hungary when the Yearbook was established and now he is serving as a Judge at the International Criminal Court (ICC) in the Hague. Árpád Prandler—since deceased—was an ad litem judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as President of the International Law Association (ILA) Hungarian Branch in the year when the Yearbook was founded. Vanda Lamm had been the Director of the Institute for Legal Studies of the HAS for a long time. In 2013, she became a full member of the HAS. Currently, she is Vice-president of the HAS and President

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According to the Introduction in the first edition of the Yearbook launched in 2013, Although the community of Hungarian international lawyers and EU-lawyers had always been very active, the publication of a yearbook has not materialized until today. This publication is especially meaningful, since it has been compiled in the common effort of all Hungarian law faculties’ departments for international and European law.18

The Yearbook was created in order to establish a new forum which belongs to the members of the Hungarian scientific community regardless of their university affiliations and where they can publish, examine certain topics from different aspects and reflect on each other’s writings. To this end, the founding editorial team was set up involving the heads of all Hungarian university departments of European and international law. The Yearbook is dedicated to both (public) international law and European law for practical reasons. First and foremost, teaching and research activity concerning the law of the EU is carried out by the departments of international law in at least half of the Hungarian law faculties, without establishing a separate department of European law (only the name of the department was changed). It is also clear that EU Member States’ position in the field of public international law is strongly influenced by the law of the EU—especially in a newly joined state like Hungary.19 Since the foundation of the Yearbook the editorial board has been led by Péter Kovács (former Justice of the Hungarian Constitutional Court, current Judge of the International Criminal Court in the Hague). In addition to the Editor-in-Chief, the Yearbook was edited by Petra Lea Láncos (lawyer specialized in EU law) and Réka Varga (expert in international law). Both Petra Lea Láncos and Réka Varga are associate professors at Pázmány Péter Catholic University, and, as such, they are close colleagues of the Editor-in-Chief.20 The Hungarian Yearbook was founded in order to present the most important results of Hungarian international law and European law scholarship to the foreign

of the ILA Hungarian Branch since 2014. Erzsébet Szalay-Sándor has been the Ombudsman for the Rights of National Minorities since 2013 and she was awarded the professor honoris causa by the Babe¸s-Bolyai University in Cluj-Napoca (Romania) in 2015. 18 Szabó 2013, at XXI. 19 As an example of the close connection between EU law and public international law, see the Urgenda case decided by the Supreme Court of the Netherlands in 2019 with direct reference to the European Convention on Human Rights (ECHR)—after a preliminary ruling of the Court of Justice of the European Union (CJEU). In 2019–2020 both the Grand Chamber of the European Court of Human Rights (ECtHR) and the CJEU (in a preliminary ruling) dealt with the Hungarian refugee system and the so-called transit zones, established at the external (non-EU) borders of Hungary. Vol. 8. (2020) of the Hungarian Yearbook introduces both the Urgenda case and the transit zone cases. 20 Furthermore, Tamás Molnár (expert in international law, senior lecturer at Budapest Corvinus University at that time) was involved in the editing of Vol. 2 (2014) of the Hungarian Yearbook.

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professional audience therefore, a foreign publisher was sought to publish the Yearbook. The editors of the Hungarian Yearbook were delighted that Eleven International Publishing undertook to publish the Yearbook from the beginning. The forthcoming Vol. 8 (2020) is expected to be published in December 2020.

15.3 Sections of the Yearbook—Then and Now The Hungarian Yearbook was not aimed only at creating a high-profile publication forum for all Hungarian lawyers specialized in international law and EU law. The Yearbook would like to provide the possibility also for presenting the Hungarian (academic) position on current questions of international and EU law, while enabling foreign authors to assess, from their point of view, certain legal questions that are of particular interest for Hungary as a sovereign state actor of the field of public international law, or as one of the EU Member States. Furthermore, our objective is to present, from time to time, the case-law of Hungarian courts (especially the Curia of Hungary) and the Constitutional Court that may be relevant from the aspect of international law or EU law and may be of interest even abroad. This last objective is particularly important considering that also Hungarian case-law contains practical findings and conclusions that may be outstanding even at the European level and globally, without however exerting any direct cross-border effects due to the existing language barrier.21 The structure of the first (2013) Yearbook followed the approach indicated below. The ‘thematic part’ provided an opportunity for a more thorough analysis of the topic selected by the editorial team. Between 2013 and 2020, the thematic part was about ‘New values after Lisbon’ (2013), ‘Identity, nationality and citizenship’ (2014), ‘International humanitarian law, international criminal law and human rights law’ (2015), ‘Protection of cultural property’ (2016), ‘Migration’ (2017), ‘Treaty of Rome 60 years’ (2018), ‘The role of legal sciences and jurisprudence in responding to climate change and environmental challenges’ (2019), and ‘New tendencies of the law of foreign investments in European law and public international law’ (2020). The section called ‘forum’ included papers on a Hungary-related topic by authors (who often arrived at different conclusions in respect of the same case). The ‘forum’ section dealt with the Hungary v. Slovakia (President of the Republic László Sólyom’s) case at the CJEU (2013), the Baka v. Hungary (former president of the Supreme Court of Hungary) case before the ECtHR (2014), the X. Y. v. Hungary (legal questions of pre-trial detention) case at the ECtHR (2015), the judgment of the CJEU after an infringement procedure concerning the Hungarian regulation on fringe benefits (2016). After Vol. 4 (2016) the ‘forum’ section was absorbed into the other sections of the Yearbook. 21 In Hungary, every court adopts its decisions in Hungarian (the official language of Hungary). Whether or not such decisions will be translated into English, depends on the financial resources of the institution in question.

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Every year, an independent section was dedicated to the ‘developments of international law’ and the ‘developments of European law’. These sections include the authors’ research results that are not included in the thematic part. The section called ‘Hungarian state practice’ provided an overview on the relevant Hungarian legal practice in the preceding year (including first of all the case-law of the Constitutional Court and the Curia of Hungary), and reviews of the most excellent books written by Hungarian authors could also be published. Accordingly, these sections served different objectives and included writings of different genres and length. The content of the thematic part depended, to a large extent, on the editorial team’s ideas, while the sections called ‘developments’ included contributions on any topic of the international and European law, representing the diversity and research directions of Hungary’s international law and European law scholarship. The section ‘Hungarian state practice’ had a dual purpose: it covered analyses of Hungarian case-law which may be relevant abroad and provided a publication opportunity also for researchers who do not consider themselves to be primarily international lawyers or EU lawyers (e.g. academics dealing with comparative constitutional law, competition law or environmental law, where the influence of public international law or EU law is significant). Since 2013 the above described sections (with the exception of ‘forum’) of the Yearbook have practically remained unchanged, but the editorial team re-thought the structure of the sections of the Yearbook to some extent starting with the 2020 volume, in order to further emphasize the ‘Hungarian’ nature of the Yearbook. This is meant to distinguish the Hungarian Yearbook (as one of the newly established yearbooks) from other existing ‘traditional’ yearbooks of international law and European law. The most important change is that every year in the new section called ‘anniversaries’ the Yearbook provides fora to the discussion of an anniversary-related topic that is of great relevance for Hungary and Hungary’s (international law) scholarship, saluting the historical traditions of Hungary and Hungary’s excellent legal scholars. ‘Anniversaries’ section on Vol. 8 (2020) deals with the 100th anniversary of the Peace Treaty of Trianon concluded with Hungary after World War I, examining the temporal effect of the treaty as well as nationality issues in Central Europe after World War I. ‘Anniversaries’ section in Vol. 9 (2021) is planned to be dedicated to Ferenc Mádl, former President of the Republic in Hungary, who (as a professor of law) was amongst the first scholars in Hungary who started to deal with the law of the European Communities in the 1970s. The relatively small ‘anniversaries’ section contains a limited (2–3) number of contributions every single year. While the section entitled ‘Hungarian state practice’ will be kept, a separate section called ‘case notes’ will also be created with the aim of presenting briefly and separately the most important cases of the Constitutional Court, the Strasbourg and Luxembourg courts, which were of particular concern for Hungary in the relevant year.

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15.4 Can a Yearbook Be Considered to Be Topical? Perhaps the most important question is whether the content of a yearbook—which is published only once a year—is topical (and whether a yearbook published annually should be considered topical at all). Answers to this question may differ depending on the relevant yearbook. A yearbook may be aimed at giving an overview of the most recent developments of jurisprudence and case-law (similarly to the Hungarian Yearbook), where topicality means that contributions in the yearbook reflect recent international law developments. The other way would be for a yearbook to provide a summary of the scientific questions and academic results of the previous year(s) after some period of time, while journals and blogs can deal with recent developments. In this regard, the Hungarian Yearbook had to take into account market processes: for a yearbook of a relatively small country (like Hungary having a population of hardly 10 million people) it is particularly important that its content be topical at the date of its publication, especially if the yearbook is published by a foreign publisher. A further aspect regarding the question of topicality is that in a non-English state with a limited number of academic and higher education institutions, like Hungary, only very few English-language journals exist. The number of potential authors and the number of contributions concerning issues of international law or European law clearly determine the understanding of ‘topicality’ that the Hungarian Yearbook must follow. Based on the above, the editorial team of the Hungarian Yearbook (in agreement with the publisher) decided to bring ahead the deadline for submitting the manuscripts22 and to publish the relevant volume of the Yearbook in December of the relevant year by speeding up the editorial process (according to earlier practice, the Hungarian Yearbook was always published in the spring of the subsequent year). In order not to omit any year in the history of the Hungarian Yearbook, Vol. 6 (2018) was out in summer 2019, Vol. 7 (2019) were published in January 2020, while the expected date of release of Vol. 8 (2020) is December 2020. As the time available for editing was significantly cut, keeping continuous contact with the authors, peer reviewers, proofreaders and the publisher has become particularly important for us, therefore, a new managing editor, Sándor Szemesi joined the editorial team of the Yearbook in the spring of 2019.23 The managing editor is responsible primarily for ensuring the publication of the Hungarian Yearbook, while the editors and editorial assistants are responsible for the content, the proofing and style of the Hungarian Yearbook.24 22 Manuscripts

will have to be submitted by mid-April starting from Vol. 8 (2020). Szemesi is not only a chief counselor at the Constitutional Court and a colleague of the Editor-in-Chief at the Constitutional Court, but he also has scientific (Ph.D., habil.) and journal editing experience. 24 Starting from Vol. 7 (2019), in the editorial team of the Hungarian Yearbook Réka Varga founding editor was replaced by Laura Gyeney associate professor (Pázmány Péter Catholic University, Budapest); Petra Lea Láncos has been an editor from the beginning. The editorial assistants coming mostly from Pázmány Péter Catholic University perform very important technical work in editing the 23 Sándor

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It should not be ignored that the editorial team may only influence the topicality of the Hungarian Yearbook to a limited extent, by shortening the period between the submission date and the publication of the Yearbook and by picking the ‘thematic section’. The topicality of the Yearbook depends primarily on the authors. That is why the editorial team considers it important to inform the Hungarian professional readership regularly about the most recent developments of the Yearbook, the planned thematic part and the expected publication dates, and has launched a brand-new website of the Hungarian Yearbook at www.hungarianyearbook.com.

15.5 Adapting the Hungarian Yearbook to the Digital Age By genre, a yearbook may be considered both a journal and a book published once a year. Even though the difference between these two categories is minimal for the reader and it makes no difference in the editorial process (double blind peer review), there may be a huge difference in terms of the professional classification of the relevant publication. In Hungary, e.g. writings published as chapters in books in relation to the granting of the title of Doctor of Science (DSc) of the HAS have a (typically lower) weighting compared to articles published in high-ranked Englishlanguage journals published abroad. The HAS classified the Hungarian Yearbook as a book from its foundation until 2019, but from Vol. 7 (2019)—in order for the authors’ contributions to be given more weight in their academic career—the editorial team decided to publish these writings in the form of a journal, fulfilling all the requirements of the HAS applicable to journals. Having regard to the fact that today only a small number of law journals are published in English in Hungary (while several English-language books are published by Hungarian authors as demonstrated by the book reviews featured in the Hungarian Yearbook), the Hungarian Yearbook has a solid position in Hungarian academic life. If a journal is to exist over a longer period of time (and the Hungarian Yearbook is clearly destined for the long run), it cannot ignore the demands of our ever more digitalised world. The already mentioned new and separate website—which was launched in autumn 2019—partially serves this purpose. The website will display news and events that are important for the Hungarian academic community (cases, conferences) in addition to actual information about the Yearbook (e.g. call for papers, formal requirements, submission deadlines and planned publication dates). Furthermore, the website allows for searching the abstracts and keywords of articles, as well as for downloading free sample articles. Therefore, the separate website has a double purpose: it raises the attention of the academic community to the Yearbook as a publication opportunity and it also increases the possibility that the articles published in the Yearbook will be referenced and bought.

Hungarian Yearbook. Former and current editorial assistants include, in particular, Balázs Tárnok, Kinga Debisso, János Czigle, Zsuzsanna Máthé-Fäller and Lilla Munkácsi.

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Digitalisation challenges affect both the editorial teams of journals and the publishers. The spreading of Internet-based publication forms may be both a blessing and a curse. The editorial team of the Hungarian Yearbook was of the view from the very beginning that even in the twenty-first century a prominent publication may not be published solely on-line: that authors may open their publications not only in pdf format, but may take them from the bookshelf and hold them in their hands, is the recognition of traditions and scholarly work. However, the Yearbook as a business commitment is prepared for the fact that most academics shall not wish to buy an entire yearbook, they only want to read certain articles that are related to their own research topics. Therefore, in addition to buying the Hungarian Yearbook in print or in the e-book format, Eleven International Publishing also allows readers to buy specific articles (pay per article). In addition, from the year 2019 onwards, the electronic publication of previous volumes of the Hungarian Yearbook is available in HeinOnline, with a two-year embargo on newly published volumes.

15.6 The Impact of the Hungarian Yearbook The academic performance and ultimately the quality of a journal is determined by its impact factor—at least, in the field of natural or medical sciences. The use of this impact factor, however, may lead to different results in the various fields of science. In medical science and natural sciences, both the referencing rules and scientific issues are essentially the same throughout world, since in these fields, the world’s scientific community deals with the same scientific issues (having the same root). By contrast, in social sciences—including the field of law—scholarly works typically attract scientific interest in the given country, which means that impact factor numbers are significantly lower in general, especially for journals originating from a relatively small country like Hungary. Instead of the universal level of classification, national rankings concerning law journals could determine the real added value of a journal in question. This means that, because of the lack of a universally applicable journal ranking system in the field of law, the classification of journals by the HAS—taking into account e.g. the procedures for granting the title of DSc of the HAS (and awarding Ph.D.s and habilitations in a growing number of universities)—reflects recognition by the scientific community rather than the accomplishment of precise scientific indicators. By repositioning the Hungarian Yearbook as a journal from 2019, the editorial team set as an objective the fulfilment of the highest level of requirements in the list of journals considered relevant by the HAS, with the aim of achieving the highest classification on a medium term (the date of revision of law journal rankings by the HAS is expected in 2021– 2022). Interactions between the Hungarian Yearbook and the academic community are already clear and unquestionably demonstrated by the fact that the majority of Hungarian academics from the field of international law and EU law have already published their writings in earlier volumes of the Hungarian Yearbook. However,

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the Hungarian Yearbook also takes into account the prevailing situation of the scientific community: both the editors of the Yearbook and membership of the editorial board are renewed from time to time (editorial board members are invited for a 3year period). The opinion of our editorial board consisting of renowned Hungarian and foreign members is regularly requested in the most important issues regarding the Hungarian Yearbook (e.g. the proposed topics for the thematic part, cases to be analysed in the next volume, possible peer reviewers etc.). Even the members of the editorial board may propose topics that they deem suitable for scientific discussion. Therefore, the members of the editorial board include, besides respected members of the academic community, e.g. the President of the Constitutional Court, the President of the Curia of Hungary, the Commissioner for Fundamental Rights and his deputies (the ombudsman for future generations and the ombudsman for national minorities) or the Minister of Justice. While editorial board members can suggest interesting cases or topics to the editors, their influence to the content of the Hungarian Yearbook is limited, and the full independence of the Yearbook is guaranteed. As to the Code of Publishing Ethics of the Hungarian Yearbook underlines, the editors and the editor-in-chief are solely and independently responsible for deciding the thematic section of the forthcoming volume and for deciding which submitted paper should be published (based on the peer reviewer’s opinion). A scientific journal such as the Hungarian Yearbook does not directly affect politics or legal practice, because of the fact that neither the Hungarian Yearbook nor the editorial team can be considered a think tank that performs research and advocacy in the sphere of politics. An indirect effect of the writings published in the Yearbook, however, can be discerned. Vol. 6 (2018) of the Hungarian Yearbook introduced the decision of the Hungarian Constitutional Court in which the obligation to preserve biological diversity was deemed as a ius cogens norm of international law,25 while Vol. 7 (2019) featured a paper on the Constitutional Court’s decision according to which the precautionary principle is an integral part of the Fundamental Law of Hungary and has constitutional value.26 Such decisions are relatively well-known by the Hungarian academic community however, the Hungarian Yearbook is a pioneer in presenting them abroad (not least because the Constitutional Court’s decisions, as well as the decisions of all Hungarian judicial organs, are adopted in Hungarian). It is also desirable that findings published in the Hungarian Yearbook reach decisionmaking bodies, lawyers and judges: editorial board members (who are amongst the very first to know the titles of the contributions to the next volume) can call the attention of their colleagues to these findings and papers. Lessons from the case-law of the ECtHR, the CJEU, and other international courts and tribunals could be useful when determining the framework of new legislation or evaluating amendments adopted earlier.

25 Szabó 26 Szabó

2018, at 485–499. 2019, at 67–83.

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15.7 Instead of Conclusions In 2015, the book entitled in English (translated by the author of this chapter) ‘The Science of Law. Writings on Philosophy of Science and History of Science with Practical Advice’ was published. In this work, Márton Varju makes the following observations in relation to Hungary’s European law scholarship: Hungary’s European law scholarship has the opportunity to define – in accordance with the thematic structure of that field of science – those questions and issues that are relevant domestically and the examination of which should be carried out with the methods and approaches of this scientific field, as well as those elements which may contribute successfully to the work of other fields of scholarship. The other opportunity for Hungary’s European law scholarship is to address European or even global issues in addition to the domestic ones in order become involved in European and global legal scholarship. As far as the latter is concerned, it is important that academic activity be carried out in a language used in international law scholarship (English, German, French) in addition to the Hungarian language. The answer to this question will be largely influenced by the results of the Hungarian Yearbook of International Law and European Law, i.e. the first domestic English language thematic journal which seeks to follow international standards.27

Varju’s observations were published in 2015, when only two volumes (2013 and 2014) of the Hungarian Yearbook had been released. At that time it was a real question whether the Hungarian Yearbook could survive on the very strong market of international law and European law journals and yearbooks, and whether the Hungarian Yearbook could become an impressive law journal with great contributions and high quality standards. Based on the experience gained in the eight years since the first edition of the Hungarian Yearbook, it can be said that the Yearbook has clearly become the leading forum for addressing questions of European and global importance in addition to domestic ones, thereby contributing to European legal scholarship with Hungary’s academic results in international law and European law, with an established academic prestige—also beyond the borders of Hungary. In my view, this is the most important result of the Hungarian Yearbook of International Law and European Law and this is why the Hungarian Yearbook was established in 2013.

References Bluntschli JC (1872) Das moderne Völkerrecht der civilisirten Staaten: als Rechtsbuch dargestellt. Verlag C. H. Beck, Munich. Buza L (1911) Legal Status of the State of Bosnia and Herzegovina [Bosznia és Herczegovina államjogi helyzete]. Budapest. Buza L (1930) The Legal Status of Minorities [A kisebbségek jogi helyzete]. Budapest. Buza L (1933) The International Legal Bases of Revision [A revízió nemzetközi jogi alapjai]. Budapest. 27 Varju

2015, at 372.

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Buza L (1957) The Principle of Legality and Justice [Törvényesség és az igazságosság elve a nemzetközi jogban]. Szeged. Flachbarth E (1937) System des internationalen Minderheitenrechtes. Budapest. Heffter AW (1844) Das europäische Völkerrecht der Gegenwart. Schroeder, Berlin. Lers V (1891) The International Legal Status of the Danube River [A Duna folyóra vonatkozó nemzetközi jogállapot]. Budapest. Mádl F (1974) The Law of the European Economic Community [Az Európai Gazdasági Közösség joga]. Akadémiai, Budapest. Rosenne S (1970) The Law of Treaties: A Guide to the Legislative History of the Vienna Convention. Sijthoff, Leiden. Somló F (1917) Juristiche Grundlehre. Leipzig. Szabó M (2013) Introduction. Hungarian Yearbook of International Law and European Law 1:XXI. Szabó M (2018) Importance of the Legal Protection of Biological Diversity. Thoughts on the Constitutional Court’s Decision No. 28/2017. (IX. 25.) AB. Hungarian Yearbook of International Law and European Law 6:485–499. Szabó M (2019) The Precautionary Principle in the Fundamental Law of Hungary: Judicial Activism or an Inherent Fundamental Principle? Hungarian Yearbook of International Law and European Law 7(2019):67–83. Valki L (1977) The Organisational and Decision-making System of the Common Market [A Közös Piac szervezeti és döntéshozatali rendszere]. Közgazdasági és Jogi Könyvkiadó, Budapest. Varju M (2015) The European Law Scholarship in Hungary [Az európai jog tudománya Magyarországon]. In: Jakab A, Menyhárd A (eds) The Science of Law. Writings on Philosophy of Science and History of Science with Practical Advice [A jog tudománya. Tudománytörténeti és tudományelméleti írások, gyakorlati tanácsokkal]. HVG-ORAC, Budapest. Wlassics G (1922a) The Right of Self-Determination. Budapest. Wlassics G (1922b) The Substantial and Procedural Law of Minority Protection [A kisebbségvédelem anyagi és alaki joga]. Budapest.

Chapter 16

Indonesia and the Absence of a Yearbook on International Law Arie Afriansyah and Hadi Rahmat Purnama

Contents 16.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2 The Writing Culture in Indonesia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.3 Going Places: Indonesian Legal Journals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.4 The Possibility of an Indonesian Yearbook of International Law . . . . . . . . . . . . . . . . . . . 16.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter observes the existence of the Yearbook of International Law specifically in Indonesia. It first briefly analyses the writing culture of legal science in Indonesia and identifies several hurdles for achieving international publication. Subsequently, the chapter tries to discuss the emerging desire to have more scientific publications that are policy-driven. It observes an increasing number of new journal platforms to provide the forum to publish the articles. Nevertheless, very few journals specialise in international law. Despite this situation, the chapter suggests that the publication of its own Indonesian Yearbook of International Law would be timely. Such urgency is not only for the benefit of practical purposes but also to develop international law in Indonesia. Finally, the chapter identifies some issues that might become challenges in the efforts to publish the yearbook. Keywords Indonesia · Yearbook · International Law · Publications

16.1 Introduction The development of international law in Indonesia can be said to have only begun after Indonesia gained its independence in 1945. This does not mean, however, that A. Afriansyah · H. R. Purnama (B) Faculty of Law, University of Indonesia, Jakarta, Indonesia e-mail: [email protected] A. Afriansyah e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_16

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international law did not directly influence the development of Indonesia. At the beginning of its independence, Indonesia immediately had to apply the principles and norms in international law to ensure the legitimacy of its independence and the acquisition of its territory from the previous colonial powers.1 In fact, to maintain its independence, Indonesia was actively using international law in justifying its policies in the years following its independence.2 In the development of the law of the sea, Indonesia has an active role in shaping the rule of law, especially in the concept of the law of the archipelago.3 This starts with a unilateral declaration by Indonesia concerning the concept of “archipelagic state” where Indonesia claims that Indonesia is an archipelagic nation and the waters around its islands are a unifying territory so that their status is the same as internal waters.4 This declaration was known as the Djuanda Declaration in 19575 and Indonesia continued to be active in the development of the law of the sea until finally the 1982 UNCLOS was agreed. Furthermore, Indonesia has always been active in the development and implementation of international law to date. Domestically, developments in international law are less popular than in other fields of law such as criminal law, civil law and constitutional law. This can be understood because, in daily life, the people of Indonesia are not too invested in discussing international law. Only certain groups such as academics and students focus on this field, as do diplomats from the Ministry of Foreign Affairs, independent research institutions and NGOs that have projects related to international law. When it becomes a national issue, it is heavily exposed by national media such as the issue of sea borders6 and fisheries resource management.7 In addition, the government sometimes overlooked the development of international law in the domestic sphere because of its inward focus. This was exemplified by the fact that not much attention was given to the Constitutional Court’s Judicial Review on the ratification of the ASEAN Charter8 and Indonesia’s review on its bilateral investment treaties.9 In the literature of international law, the discussion and recording of the practices and behaviour of a state towards international law have generally been stated in the form of a Yearbook of International Law. Until now, there have been many 1 Angelo

1950, at 569–572. 1991; Saltford 2000, at 71–92. 3 Andrew 1978, at 49. 4 Schofield and Arsana 2009, at 57. 5 Lentsch 1983, at 180. 6 R Wardi, T Nathalia, Indonesian Military on Full Alert in North Natuna Sea After Border Trespass by Chinese Vessels, Jakarta Globe, 3 January 2020, https://jakartaglobe.id/news/indonesianmilitary-on-full-alert-in-north-natuna-sea-after-border-trespass-by-chinese-vessels, accessed on 2 May 2020. 7 D Mariska, Gov’t to Speed Up Construction of Sanctuary for Indonesian Fishermen in North Natuna Sea, Jakarta Globe, 7 January 2020, https://jakartaglobe.id/news/govt-to-speed-up-constr uction-of-sanctuary-for-indonesian-fishermen-in-north-natuna-sea/, accessed on 2 May 2020. 8 Widagdo et al 2014. 9 Jailani 2016. 2 Suraputra

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jurisdictions issuing yearbooks from various parts of the continent both individually10 and regionally.11 As a country that is also actively involved in international law, unfortunately, Indonesia does not yet have a publication that specifically serves as a forum for scientific analysis of Indonesia’s practices and behaviour in international law. Nevertheless, some writings about Indonesia have been present in several yearbooks.12 Although in the end, this chapter argues that it is time for Indonesia to have its own Yearbook. Two factors have most likely hindered the publication of an Indonesian Yearbook of International Law, namely the culture of scientific writing in the field of law in general and the limited national journals that focus on the field of international law. This chapter begins its analysis by observing how publications of scientific writing in the field of law in Indonesia which can reach the level of “internationally accepted” are still very minimal. Furthermore, this chapter sees that despite the strong policy to increase the number of publications, legal journals focusing on the field of international law in Indonesia are still very limited. This shows that the popularity of the area of international law research is still very low in Indonesia. Finally, this chapter provides some arguments for the importance of Indonesia to publish its own Yearbook of International Law.

16.2 The Writing Culture in Indonesia Scientific research in the field of law has been carried out since the establishment of the Faculty of law in universities in Indonesia. However, the research is mostly conducted to carry out obligations that are mandated by state regulations to lecturers covered in the “Tri Dharma” (three main pillars) of Higher Education, namely teaching, research, and community engagement.13 Among students, research is conducted more towards the final task of the study period and as one of the prerequisites for graduating education at the level of bachelor, masters, and doctorate.14 Often the results of this research end up in the storage cabinet of research reports in the library without making any real contribution to the development of law in general. There are not many studies outside the university that produce scientific literature published for the public. Employees in government ministries, especially those related to elements of international cooperation or international law, only conduct 10 The examples of these individual publications are the Netherlands Yearbook of International Law, Japanese Yearbook of International Law, Ethiopian Yearbook of International Law, and Canadian Yearbook of International Law. 11 The examples of these regional publications are the European Yearbook of International Law, African Yearbook of International Law, and Asian Yearbook of International Law. 12 Afriansyah 2018, at 283–300; Ong 2000, at 67–122. 13 Lutfi 1990, at 199. 14 Indonesia, Law Number 12 Year 2012 on Higher Education, Article 45.

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legal scientific research in the interests of practical decision-making. On the other hand, independent research institutes and NGOs also conduct research but are almost always project-based and advocacy-oriented. The topic and direction of that research is often determined by donors with an interest in the issue at hand. From these kinds of studies, there is one thing in common that the results of the research can almost certainly not be published to the public because it is confidential because of the interests of certain parties. As a consequence, there is no scientific publication from this group either. This situation significantly changed, at least among university academics, when the university ranking system became the main concern of the government and the education industry in Indonesia. Before the attention was focused on the ranking of a university, identification of good quality higher education was only monopolized by state universities spread throughout Indonesian provinces. Among the state universities, several universities traditionally became the main referral universities and often produce prominent people in Indonesia. This implies that there are quality differences in these universities. This might be analogous to the university group in the United States called “the Ivy League”. With this ranking system, the Indonesian government in particular has the convenience of determining the quality of a university-based publication on statistical data provided by the ranking institutions websites. Until now, there are two international ranking institutions websites that are referred to nationally, QS World University Rankings15 and Times Higher Education (THE) World University Rankings.16 It is interesting to note that the two institutions utilise similar resources of scholarly publications data in calculating these rankings. The data comes from the indexation institution called Scopus and it is a subsidiary of Elsevier.17 This makes Scopus the main reference for academics and researchers to choose journals to publish their research results in so as to be considered “international publications”.18 It is undeniable that most of the legal journals indexed in Scopus are journals that already have a high reputation in their respective fields.19 Most international academics and researchers publish in these journals. This makes a little less confidence from Indonesian writers. However, it can be argued that it is difficult for writers from Indonesia to publish in many international journals due to the lack of ability on three levels. First, writers from Indonesia are not familiar with international journal 15 QS

World University Rankings, 2020 Result, https://www.topuniversities.com/qs-world-univer sity-rankings, accessed on 11 May 2020. 16 Times Higher Education World University Rankings, World University Rankings 2020, https:// www.timeshighereducation.com/world-university-rankings/2020/world-ranking#!/page/0/length/ 25/sort_by/rank/sort_order/asc/cols/stats, accessed on 11 May 2020. 17 QS World University Rankings, Methodology, https://www.topuniversities.com/qs-world-univer sity-rankings/methodology, accessed on 11 May 2020; Times Higher Education World University Rankings, Methodology, https://www.timeshighereducation.com/world-university-rankings/ world-university-rankings-2020-methodology, accessed on 11 May 2020. 18 Indonesia, Minister of Research, Technology and Higher Education Regulation No. 20 Year 2017 on Incentives for Lecturers and Professors. 19 See the list from Scimago Journal & Country Rank, https://www.scimagojr.com.

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writing format standards due to limited access to such journals. Second, Indonesian writers are not accustomed to starting their research by knowing the existing relevant academic debates on the issue to be raised. Finally, Indonesian writers find it difficult to turn their local research into a literary contribution to international readers. Based on the experience in managing several legal journals in Indonesia, it can be seen that the writing standards for Indonesian writers differ from the standards in journals indexed by Scopus. The writings of Indonesian writers in the field of law tend to directly present the substance of the writing from the beginning without any introduction giving a general description of the writing. The papers are also not accustomed to conveying the main findings or conclusions at the beginning of the writing so the reader must read the writing to the end to get that conclusion.20 Finally, there is a tendency for lengthy writing that does not indicate the depth of the analysis. This implies a lack of comprehension of succinctness. Journal writing will be valuable if it can show a real contribution to the academic debate or scholarship that is already available.21 Such contribution shows a gap that has not been discussed by the scholars on the topic.22 Articles often only refer to the existing writings that support the writing being made. Rarely do we observe writings that compare and contrast earlier work on the topic. This is also often the reason why writing from Indonesia has difficulties to penetrate international journals. Finally, it is obvious that many Indonesian academics and researchers write with a focus on Indonesia. Despite focusing on international law, these writings relate difficultly to general scholarship that exists in a global context or can be accepted by readers outside Indonesia. This is what more or less affects the unfamiliarity to follow the existing academic debates.

16.3 Going Places: Indonesian Legal Journals In line with the growing encouragement of the Indonesian government for scholarly publications, the enthusiasm of Indonesian academics and researchers to write also increased significantly. However, this development was not followed at the same time with new fora for publication—the journals. Previously, the existence of scientific journals in tertiary institutions was merely to publish an article to promote employment status. This is not a top priority as it never becomes the main concern of most universities. This situation has changed in the last five years, especially in the field of law. With strong encouragement (even obligations) from the Indonesian government, this not only applies to academics but also to students as part of the completion of their studies. As a consequence, many new scientific journals are made by universities throughout Indonesia. One university can even create more than one scientific journal with a 20 Belcher

2019, at 291. 1994, at 100. 22 Kraus et al. 2020. 21 Kelly

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different field of focus. This is of course to meet the need for publishing writings that have been made by academics and students. Of course, in the above it is very visible that the obligation relates solely to the increase of publications in terms of quantity. This policy was intended to improve the culture of writing publications among academics and students. After the increase in quantity, an improvement in quality is expected. This is implemented with the accreditation program to standardise the journal quality and conducted nationally by the Indonesian government.23 With this accreditation, journals should meet a number of management and articles quality standards set by the Ministry of Higher Education. After going through the accreditation process, the journals will be categorized based on the ranking obtained by the value from the previous accreditation process.24 Thus, so many journals meeting national standards will increase the selection of the quality of writings published by these journals. To meet the needs of Indonesian literature in a foreign language, several journals also open up opportunities for Indonesian writers who want to publish their writings in languages other than Indonesian. The most commonly chosen foreign language is English. It is assumed that English is a language that can be understood in many jurisdictions in the world. In fact, for the sake of a journal’s ambition to be indexed in international databases such as Scopus, the main language accepted in these journals is English even though the journal is published by an Indonesian institution. Although they have not yet achieved good English quality, at least the international community has been able to recognize or access legal developments in Indonesia in general. It is worth noting that most of the legal journals in Indonesia have a general scope of their publications and do not target certain fields of law such as international law. This is solely intended to make it easy for academics and students to send their writings to these journals without worrying about the scope of the writings that are not included in the journal category. This makes it difficult to find a scientific forum that focuses on a particular field. This situation also applies to the field of international law. There are not many journals of law in Indonesia that focus on the field of international law. One scientific journal which has long focused on the field of international law is the “Indonesian Journal of International Law/IJIL”25 published by the Center for International Law Studies, Faculty of Law, Universitas Indonesia.26 This journal has been published since 2003 until now and can be accessed through international database institution such as HeinOnline. Later in the last three years, two additional journals focused on the field of international law were established, namely “Padjadjaran Journal of International Law/PJIL”27 and “Lampung Journal of International Law/LaJIL”.28 23 Akreditasi

Jurnal Nasional (National Journal Accreditation), https://arjuna.ristekdikti.go.id. (Science and Technology Index), https://sinta.ristekbrin.go.id. 25 Indonesian Journal of International Law, https://ijil.ui.ac.id/index.php/home. 26 Center for International Law Studies, https://cils.ui.ac.id. 27 Padjadjaran Journal of International Law, https://jurnal.fh.unpad.ac.id/index.php/PJIL. 28 Lampung Journal of International Law, https://jurnal.fh.unila.ac.id/index.php/lajil/index. 24 Sinta

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One scientific journal in this field which is also worth mentioning is the “Opinio Juris” journal which is managed by the Ministry of Foreign Affairs of the Republic of Indonesia.29 The lack of scientific journals that focus on the field of international law is understandable because, in reality, it is difficult to get many writings that focus on this field in Indonesia. As has been stated at the beginning of this chapter, the field of international law including the field of law is still less popular in Indonesia. Those who focus on developing this field are limited to certain circles.

16.4 The Possibility of an Indonesian Yearbook of International Law In the development of international law, the practice carried out by the state is one of the things that is highly considered. This means two things, namely the practice of the state as an implementation of international norms and the practice of the state as a reality of how the state behaves in the international community, which can then be translated into a certain norm within their national legal system. In the context of a scientific publication, writing published in a journal or book on state practice becomes important. This is based on two things, namely the publication as an analysis of explanations of practice and also records all matters relating to the practice of the country in a particular field. This practice can be seen in a multilateral and individual collective context in the country. In this latter case, this chapter will try to see how important it is to pay attention to Indonesian practice. Although there are a few journals focused on international law in Indonesia, there has not been a scientific publication that consistently focuses on how state practices are towards international law. Such publications are generally known as “Yearbook of International Law” from various state jurisdictions individually. This publication has certain characteristics where the main focus is to make a publication that mainly originates from that particular country. This yearbook usually consists of several categories of content, namely research articles, case or legislative reviews that are relevant to international law, diplomatic events that such a state is involved in. However, this category is not rigid from every existing jurisdiction and is adjusted to the characteristics of each such as the New Zealand Yearbook of International Law which also includes the South Pacific region in its publication.30 Specifically related to Indonesia, the existence of a special yearbook regarding this jurisdiction is equally important to be realized. There are at least four things that become the reasons why Indonesia need to have a publication like this Yearbook of International Law. First, Indonesia needs to have a scientific record of its practice of international law. Second, Indonesia needs to have an academic forum to 29 Opinio

Juris, https://pustakahpi.kemlu.go.id/content.php?content=file_opinijurisdaftar. Zealand Yearbook of International Law, https://www.canterbury.ac.nz/law/research/intlaw/ new-zealand-yearbook-of-international-law/. 30 New

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explain its legal policies related to international law to the general public, especially the international community. Third, the practice carried out by Indonesia today has become a worldwide concern. Finally, the existence of a yearbook is very important in contributing to an international quality publication forum. Since its independence in 1945, Indonesia has in fact been actively involved and contributed to the development of international law. Any actions and policies that have been carried out by Indonesia are important to be recorded for historical records which may be needed in various ways. In the interest of scientific research, looking at historical records is a very common method to analyse and to understand what and how a practice is carried out by Indonesia. One example is how Indonesia began proposing the concept of an archipelago in international law of the sea from 1957 through the Djuanda Declaration. This is still relevant when conducting research on the ocean that relates to Indonesia.31 Also, the scientific record in this yearbook is very useful for resolving disputes between countries that may occur in the future. With a good historical record, then all parties will be able to easily get complete historical evidence with all the necessary attributes of information. The statement or formal policy taken by the state is one of the important historical facts to note, although sometimes it is not discussed much in other scientific publications. In conducting its international relations, Indonesia sometimes has limitations in explaining what has been taken as a view and/or legal policy. The yearbook could provide a forum that has the flexibility to provide a place of objective explanation that can be written by anyone through the analysis as outlined in the results of their research or through legislative review. When formal diplomatic forums cannot provide broad discretion, then the Yearbook can serve as a fulfilment of these needs. It should also be noted, however, that the yearbook should not be perceived as the mouthpiece of the Indonesian government. This forum will provide an objective and independent explanation so that it can be accepted by all parties. As a country that has a free and active foreign policy, supported by geographical factors and a very large population, many parties are concerned by the decisions and positions taken by Indonesia. Indonesia has been internationally actively involved in initiating the Non-Aligned Movement (NAM)32 and in the establishment of ASEAN to date.33 Besides being active in various international activities, Indonesia is also consistent in contributing to the UN peacekeeping forces.34 In terms of the world economy, Indonesia is also known as one of the international market targets35 and production centres as part of the global supply chain.36 Therefore, the practice carried

31 Arif

and Kurniawan 2018, at s79. 1995, at 313. 33 Smith 2000. 34 Hutabarat 2014, at 184. 35 A Budiman, H Chhor, R Razdan, Understanding the Diversity of Indonesia’s Consumers, McKinsey, 1 April 2013, https://www.mckinsey.com/featured-insights/asia-pacific/understandingthe-diversity-of-indonesias-consumers#, accessed on 12 May 2020. 36 Soltania et al 2011, at 275. 32 Sukma

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out by Indonesia concerning international norms will always be considered by various parties globally. Finally, in addition to provide benefits to the international world, the existence of a yearbook about Indonesia in the field of international law provides an opportunity for academics, researchers and practitioners to develop their qualities in the form of international-standard publications. The quality of the yearbook must be of international standard as it will be read by various parties globally. If you do not have this quality, many will consider the yearbook a publication that is not serious and it becomes a useless effort. In this case, it is important to involve various academics who are qualified in their field to be involved in managing the yearbook in the editorial board position to ensure the quality of this publication. After seeing the various considerations above, it can be crystallized that the existence of the Indonesia Yearbook of International Law/IndoYBIL is to be realized very urgently. The international law lecturer association in Indonesia, known as the Indonesian Society of International Law Lecturers (ISILL), has sufficient credibility to give birth to the birth of IndoYBIL. In addition, the support from the Ministry of Foreign Affairs would even strengthen the publication in terms of the supply of data relevant to Indonesia’s practices in many international forums. Nevertheless, in starting the publication of this yearbook, several challenges especially in the Indonesian context need to be considered. Such challenges need to be anticipated because it will be a waste if the yearbook is only published once and there is no continuance of it. These challenges are regarding timely publishing, substance quality and yearbook management. From the management side of the yearbook, maintaining the rhythm of publishing is highly dependent on the availability of the manuscript and how good the review process works. As explained earlier, along with the lack of popularity of the topic of international law in Indonesia, the results of research in this field are still very limited. Therefore, to be able to ensure the availability of the manuscripts, inviting writers with potential is a wise option. In ensuring that the yearbook provides quality writing, substance is one of the hardest tasks for yearbook management. The writing in this yearbook is slightly different from writing in scientific journals in general. The writing in the yearbook tends to be longer because of the large amount of state practice material or because of the depth of analysis of the writing. However, the management in the initial review can assess whether the article is worthy of consideration for publication or not. This includes assessing whether the length of the article is substantially justified. Only then, the peer-review process can be carried out. Finally, when managing a yearbook from a country, it desires the personnel involved come from representatives of the country’s majority academics. A large team might be formed. Motivation to join a team will vary. The most crucial thing is the work environment in managing a publication that is very supportive of one another. The commitment of each individual involved will be very different so that it can cause conflict within the management of this publication. Therefore, it would be better for someone to be the chief editor then he/she will choose the person who will help him/herself in the editorial team. This is expected with the personal judgment

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and good relations of the editor in chief, a management team can solidly manage this publication for at least a long period.

16.5 Conclusion This chapter has shown that the record of a country’s practice towards international law in the form of scientific publications is very important both in practical and academic terms. The beneficiaries of this publication are not only coming from within the country but are also observers outside the country. This observation has been made in general for “Yearbooks of International Law” and from several countries in the world. Until now, annual publications like this have not lost their relevance compared to journal publications which can be routinely published several times a year. Indonesia, as one of the major countries in Southeast Asia, unfortunately, does not yet have a publication of the “Yearbook of International Law” even though its track record in the development of international law has existed since its independence in 1945. However, this does not mean that Indonesia cannot start the publication. Therefore, this chapter argues that it is time for Indonesia to have such a yearbook. To support this publication, there are currently at least two agencies that can support the publication of this publication, the Indonesian Society of International Law Lecturers (ISILL) and the Ministry of Foreign Affairs of the Republic of Indonesia. However, it is necessary to anticipate several things that might be a challenge in the publication of this publication. These include the difficulty of getting quality texts, the preferences of writers who prefer to publish their writings in the form of scientific journals, and the work of the team managing this publication. As discussed earlier, these challenges can be anticipated. One of the most important things to always be maintained is a shared commitment to the importance of Indonesia having a publication such as the “Indonesia Yearbook of International Law”.

References Afriansyah A (2018) Indonesia’s Practice in Combatting Illegal Fishing: 2015-2016. Asian Yearbook of International Law 22:283–300. Andrew D (1978) Archipelagos and the Law of the Sea. Marine Policy 2(1):46–64. Angelo HG (1950) Transfer of Sovereignty Over Indonesia. American Journal of International Law 44(3):569–572. Arif M, Kurniawan Y (2018) Strategic Culture and Indonesian Maritime Security. Asia & the Pacific Policy Studies 5(1):77–89. Belcher WL (2019) Writing Your Article Journal in Twelve Weeks, 2nd edn. University of Chicago Press, Chicago. Hutabarat LF (2014) Indonesian Participation in the UN Peacekeeping as an Instrument of Foreign Policy: Challenges and Opportunities. Global & Strategis 8(2):183–199.

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Jailani A (2016) Indonesia’s Perspective on Review of International Investment Agreements. In: Singh K, Ilge B (eds) Rethinking Bilateral Investment Treaties: Critical Issues and Policy Choices. BothEnds-Madhyam-Somo, New Delhi, 113–128. Kelly G (1994) Writing for Publication: The Structure of a Journal Article. British Journal of Occupational Therapy 57(3):99–102. Kraus S, Breier M, Dasí-Rodríguez S (2020) The Art of Crafting a Systematic Literature Review in Entrepreneurship Research. International Entrepreneurship and Management Journal. Lentsch PDV (1983) The Right of Overflight Over Strait States and Archipelagic States: Developments and Prospects. Netherlands Yearbook of International Law 14:165–225. Lutfi M (1990) Higher Education System in Indonesia. Comparative Education 16:198–205. Ong DM (2000) The Legal Status of the 1989 Australia-Indonesia Timor Gap Treaty Following the End of Indonesian Rule in East Timor. Netherlands Yearbook of International Law 31:67–122. Saltford J (2000) United Nations Involvement with the Act of Self-Determination in West Irian (Indonesian West New Guinea) 1968 to 1969. Indonesia 69:71–92. Schofield C, Arsana IMA (2009) Closing the Loop: Indonesia’s Revised Archipelagic Baselines System. Australian Journal of Maritime & Ocean Affairs 1(2):57–62. Smith AL (2000) Strategic Centrality: Indonesia’s Changing Role in ASEAN. ISEAS, Singapore. Soltania E, Azadegan A, Liao Y, Phillips P (2011) Quality Performance in a Global Supply Chain: Finding Out the Weak Link. International Journal of Production Research 49(1):269–293. Sukma R (1995) The Evolution of Indonesia’s Foreign Policy: An Indonesian View. Asian Survey 35(3):304–315. Suraputra DS (1991) Revolusi Indonesia dan Hukum Internasional (Indonesian Revolution and International Law). Universitas Indonesia Press, Jakarta. Widagdo S et al (2014) Judicial Review of the Law on Ratification of Treaty (A Study on Judicial Review Case of the Law on Ratification towards ASEAN Charter). Journal of Law, Policy and Globalization 32:46–56.

Chapter 17

Italian Yearbook of International Law: Genesis, Development and Prospects Riccardo Pavoni

Contents 17.1 Birth, Disappearance and Resurrection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2 Background and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.1 Historical and Scholarly Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.2 Precursors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.3 Development and Challenges Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The present contribution sets out the genesis, evolution and prospects of the Italian Yearbook of International Law (IYIL). After sketching the main stages of development from its creation to the current Volume 28, consideration is given to the dynamic scholarly and historical context which favoured the emergence of the IYIL in the 1970s. Notwithstanding several precursors, a rising number of competitors and the growing reliance on Internet-based services by international law researchers and practitioners, it is submitted that the IYIL was born out of and continues to appear as a distinctive and peculiar experience in the Italian legal publishing environment. Keywords State practice · Italian scholarship · Positivism · International law-making process · International law journals · Online publishing

17.1 Birth, Disappearance and Resurrection The Italian Yearbook of International Law (IYIL) was founded in 1975 by Francesco Caportorti, Benedetto Conforti and Luigi Ferrari Bravo, who may certainly be included in the restricted list of the most renowned Italian international and European law scholars of the last century. Sadly, all of them have now passed away, after Riccardo Pavoni is Professor of International and European Law and member of the Board of Editors of the Italian Yearbook of International Law. R. Pavoni (B) University of Siena, Siena, Italy e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_17

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Conforti and Ferrari Bravo died—at a distance of a few days from one another—in the early weeks of 2016.1 They left behind an enormous intellectual legacy which the current Editors of the IYIL are striving to honour. The IYIL was born with the mission of communicating and disseminating within a larger international audience the Italian scholarship and practice in the field of public international law. This was done with the awareness and pride that such scholarship and practice had a significant and enduring relevance for the discipline.2 The IYIL was originally published by Editoriale Scientifica, a well-known publisher in Naples particularly active in the area of international law. It represented a breakthrough in Italian academic publishing, at least for two reasons. First, the IYIL was intended to only cover issues of public international law, thus deviating from the well-entrenched and persistent Italian tradition of periodicals (and scholars) dealing with both public and private international law.3 Secondly, and most importantly, it was the first ever Italian international law periodical entirely written in English. Nowadays, this essentially remains the case.4 Although in line with a growing trend of the 1970s,5 the choice of English for the national yearbook of international law was somehow revolutionary in the Italian context. It broke with a deep-rooted habit in Italian scholarship. When at the time Italian scholars wanted to express themselves in a foreign language, either orally or in writing, they were almost invariably using French. Contributions in English from Italian authors were exceptional, and these exceptions normally involved works translated from—and frequently already published in—Italian. Yet the choice of English would prove to be an enduring challenge for the IYIL. It is safe to observe that the main reason for the termination of the first series of the IYIL in 19966 had to do with overwhelming problems associated with the full translation into English of an increasing amount of documentation relating to Italian practice (especially judicial decisions), as well as of—occasionally—scholarly contributions.

1 Capotorti

died in 2002; for an overview of his contribution to international law scholarship and a full bibliography of his works, see Starace 2003. For tributes and bibliographies relating to Conforti and Ferrari Bravo, see Francioni 2016; Iovane 2015; Pisillo Mazzeschi 2016a, b; Cataldi 2017; Raimondi 2016; Nesi 2016; Sacerdoti 2015; Caggiano and Triggiani 2016. See also the various contributions in Nesi and Gargiulo 2015, and in Conforti and Ferrari Bravo 2018. 2 See ‘Foreword’, (1975) 1 IYIL vii, viii. 3 Ibid., vii. In the same context, the Editors made clear that contributions on European law would be considered only insofar as they dealt with aspects relevant to public international law, ibid., vii–viii. 4 The thriving e-journal QIL-Questions of International Law, established in May 2014 by a group of Italian scholars, publishes prevalently in English, but it sometimes includes contributions in French. Its present editor-in-chief is Maurizio Arcari; see www.qil-qdi.org/about-us. Invariably written in English is instead The Global Community: Yearbook of International Law and Jurisprudence, a yearbook published since 2001 (currently by Oxford University Press) which contains doctrine, as well as summaries and excerpts of international judicial practice. As its title and the composition of its boards indicate, this publication vindicates a ‘global’ identity; however, it has a firm connection with Italy, since it was created at the University of Salerno, where it continues to be based under the general editorship of Giuliana Ziccardi Capaldo. 5 de la Rasilla 2018, 137, 166. 6 See further in this section.

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Translations were also a challenge to the overall quality of the IYIL, as duly underlined in a lengthy note in the Canadian Yearbook of International Law reviewing the first two volumes of the IYIL.7 The first series of the IYIL was relatively short-lived. It consisted of eight volumes unevenly published between 1975 and 1996. The production process went smoothly only for the first three volumes (Vol. I (1975); Vol. II (1976); Vol. III (1977)), which duly covered one year of practice and were timely released. As to doctrine, these volumes included many cutting-edge articles written by established and emerging Italian scholars which covered a variety of areas of international law, such as the law of the sea,8 the law of treaties,9 the rights of minorities,10 the law of armed conflicts,11 international law in domestic legal systems,12 and the history and theory of international law.13 The following two volumes (Vol. IV (1978–1979) and Vol. V (1980–1981)) showed a first symptom of a looming crisis, since they each covered two years of Italian practice and were published less punctually. The Editors reacted to this situation with a change of publisher. Giuffrè (now Giuffrè Francis Lefebvre), a company based in Milan with a prestigious pedigree in the field of legal science and practice, regularly published Vol. VI (1985) in 1986 and Vol. VII (1986–1987) in 1988, whereas Vol. VIII (1988–1992) had to wait until 1996 to see the light. Crucially, Vol. VIII did not contain a doctrinal section. It was just made up of some 400 pages of Italian practice, plus a bibliographical index of literature on international law published in Italy from 1987 to 1992. This volume opened with a sombre preface where the Editors informed the readership about unexpected and persistent (yet unspecified) difficulties that had prevented the production of the IYIL in the previous years.14 They announced, however, their decision to release the considerable amount of Italian practice which had meanwhile been collected in order to avoid its obsolescence.15 The preface ended with a wishful note observing that the publication of the volume had to be regarded ‘as a sign of the Board of Editors’ intention to keep the initiative alive, hoping the Yearbook can once again be published regularly in the near future’.16

7 Ianni 1978, 358 (underscoring that ‘[i]n an undertaking of this nature dependent as it is upon trans-

lation services, infelicities of phrase and minor errors are bound to creep in’, and concluding however that ‘by and large these examples are rare’ and that ‘in this regard, Volume 2 is an improvement over Volume I’). 8 See, e.g., Conforti 1975; Giuliano 1975; Francioni 1975; Treves 1976. 9 Gaja 1975; Caggiano 1975; Napoletano 1977. 10 Capotorti 1976. 11 See especially Ronzitti 1975. 12 Cassese 1976; Condorelli 1976; Sacerdoti 1976; Sperduti 1977. 13 See especially Ago 1977. 14 ‘Preface’, (1988–1992) 8 IYIL xi. 15 Ibid. 16 Ibid.

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Volume VIII marked the irreversible crisis of the first series of the IYIL. At the same time, it became clear that, in order to fulfil the wish expressed in the preface to that volume, radical innovations had to be introduced, starting from the Board of Editors, the publisher, and—to a certain extent—the structure and contents of the IYIL. Under the leadership of Conforti and Ferrari Bravo, these innovations were soon planned and implemented, thus leading to the resurrection of the IYIL, which opened its second series with Vol. IX (1999), released in 2000. Since then, twenty volumes have been published regularly (Vols. IX (1999)-XXVIII (2018)). In the last volumes of the first series, the number of members of the Board of Editors had surged to sixteen17 and there was no explicit indication of an editor or editors-in-chief18 who would take primary responsibility for the realization of the project. This formula proved unsuccessful. Evidently, a certain lack of cohesiveness and unity of purpose among the Editors gradually undermined the viability of the IYIL.19 By contrast, at the time of refoundation, a restricted Board of Editors made up of five scholars with different academic affiliations and diversified scientific expertise was established: Conforti and Ferrari Bravo were joined by Francesco Francioni, Natalino Ronzitti and Giorgio Sacerdoti. Simultaneously, Conforti and Ferrari Bravo played another trump card when they identified Francioni as the General Editor of the ‘new’ IYIL, a position which he has uninterruptedly held for more than fifteen years,20 that is, until 2016 when Massimo Iovane took over as from Vol. XXV (2015) up to Vol. XXVII (2017).21 Francioni’s role has proved pivotal in consistently and effectively securing the planning, production and publication of the second series of the IYIL. His skilful coordination of complex research networks and editorial projects, his perfect (mother language-like) English, his impressive and exponentially growing22 web of international affiliations, contacts and colleagues—coupled with pragmatism, endless scientific curiosity and proverbial intuitions about expanding areas and future directions of international law—have translated into invaluable assets for the ‘new’ IYIL. In turn, I was honoured and thrilled when, as a young law graduate from Siena and Oxford with just a couple of articles in my CV, I was asked by Francioni to take responsibility for the editorial matters and overall organizational aspects of a new series of the IYIL.23 Concurrently, 17 In addition to Capotorti, Conforti and Ferrari Bravo, these were Antonio Cassese, Luigi Condorelli, Laura Forlati, Francesco Francioni, Giorgio Gaja, Andrea Giardina, Riccardo Luzzatto, Paolo Picone, Natalino Ronzitti, Vincenzo Starace, Antonio Tizzano, Tullio Treves and Ugo Villani. 18 Plausibly, the role then played by Capotorti, Conforti and Ferrari Bravo was that of intellectual leaders, inspirators, and general supervisors of the IYIL, rather than editors-in-chief stricto sensu. 19 Francioni 2016, 499. 20 See Francioni 2015. 21 On the introduction of a rotating system for the position of General Editor, see Sect. 17.3. 22 Obviously, a key factor in this regard was Francioni’s appointment—in 2003—to the prestigious Chair of International Law and Human Rights at the European University Institute in Florence. He had previously held the Chair of International Law at the Faculty of Law of the University of Siena since 1980. 23 Since then, I have consecutively held the positions of Assistant Editor (Vols. IX–XIV), Associate Editor (Vols. XV–XXIV), and member of the Board of Editors (from Vol. XXV on).

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each member of the Board was entrusted with the general supervision of a research unit in charge of drafting one of the four sections making up the part of the IYIL devoted to the Italian practice of international law.24 While for obvious reasons I will refrain from expressing specific comments on the scientific value of the volumes of the past twenty years, it is fair to note that the foregoing editorial set-up has achieved a reasonable and effective balance between centralization and decentralization in the production of the IYIL, as well as a clearer division of responsibilities. In 1999, digital advances in academic publishing were rapidly emerging and the publishing market was fast-changing and increasingly global. It was crystal clear to the Editors that a non-Italian, international publisher had to be identified, one that would make state-of-the-art technologies available and secure worldwide distribution of the IYIL. Under the guidance of Francioni, a deal was struck with then Kluwer Law International which published Vols. IX-XI, whereas, following the restructuring of that publisher, all of the following volumes of the new series have been published by Brill Academic Publishers, under the imprint Martinus Nijhoff (Vols. XII-XXII) and—lately—Brill Nijhoff (Vols. XXIII-XXVIII). By contrast, less radical innovations involved the structure and contents of the second series of the IYIL vis-à-vis the first series. The IYIL was still made up of three essential parts. The first part was devoted to doctrinal contributions (with a more definite distinction between ‘articles’ stricto sensu and ‘notes and comments’, as well as a growing preference for ‘focus’25 or ‘symposium’26 sections zooming in on topical issues of international law), the second part to Italian practice, and the third part to bibliographies (including an Italian bibliographical index of international law and a gradually expanding book review section). A crucial change, however, was implemented with regard to Italian practice. This part would no longer contain integral translations of Italian documentation, as it would henceforth be made up of concise personal accounts and reports on the relevant manifestations of practice. Translations would be exceptional (that is, only involve key passages of—inter alia— a judicial decision or parliamentary speech) and taken care of by the individual reporters. It is clear that this innovation has greatly eased the editorial process, while perhaps making the pertinent part of the IYIL more attractive.27 24 Conforti, Ferrari Bravo, Ronzitti and Sacerdoti had to look after, respectively, Italian judicial decisions, diplomatic and parliamentary practice, treaty practice, and legislation. 25 See e.g., ‘The ICJ Judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’, (2011) 21 IYIL 133, with contributions by B Conforti, R Pavoni, C Espósito and M Sossai. 26 See, e.g., ‘International Law in Italian Courts: Ten Years of Jurisprudence’, (2009) 19 IYIL 1, collecting a set of contributions arising from a symposium organized at the European University Institute on 8 April 2010 by Francesco Francioni; ‘The Future of the ECHR System’, (2010) 20 IYIL 1, featuring a variety of topical pieces by leading experts—including several judges—of the law of the European Convention on Human Rights, which were first presented at a symposium organized in April 2011 by Giuseppe Cataldi at the Higher Education School of the University of Naples ‘L’Orientale’ in the island of Procida. 27 See Sect. 17.3 for current prospects involving this part of the IYIL. Significantly, the Editors of the new series expressed their hope that a selective approach to Italian practice ‘may stimulate

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Before reverting to the recent evolution of the IYIL, it is apposite to take a step back and consider its genesis in more detail.

17.2 Background and Context 17.2.1 Historical and Scholarly Environment Given the present space constraints, this is certainly not the right context to engage in comprehensive reflections on the place of the IYIL within the complex and thorny discussion about the Italian methodologies and schools of thought in the area of international law.28 I will therefore confine myself to a few general observations, which clearly do not render justice to the impressive intellectual heritage represented by outstanding scholars such as—just to mention a few—Anzilotti, Quadri, Morelli, Ago and Sperduti, or to that of their succeeding generations. First, the IYIL adventure set off in a climate of profound renewal in the Italian scholarship of international law. Indeed, the 1970s are commonly regarded29 as the turning point for the gradual shift from an ‘old’ Positivism—championed by Italian scholars since the beginning of the XX century and frequently translating into a mechanical, aseptic and overly theoretical approach to the law—to a ‘modern’ or ‘inductive’ Positivism increasingly focused on a meticulous analysis of practice and discreetly open to the examination of the socio-economic foundations of the law. Certainly, the original Editors of the IYIL perceived themselves as key players of this movement towards an overhaul of the positivistic method in Italy. In their Foreword to Vol. I (1975), they pointed out that ‘articles and comments relating to present and actual situations will have priority over studies of a predominantly theoretical nature’,30 and that ‘this should also help to confute the belief that Italian doctrine on international law has a leaning towards abstract subjects (a belief which, today at least, is incorrect)’.31 Secondly, this methodological approach was in line with the choice of English as the language of the IYIL. Clearly, the style of various Italian authors—with their elaborate theoretical disquisitions, doctrinal quarrels, endless sentences and footnotes—was utterly inconsistent with the short propositions, pragmatic statements,

interest in the original sources of Italian legal culture, and, indirectly, in the Italian language itself’, see ‘Foreword’, (1999) 9 IYIL vii. 28 For thoughtful accounts and exhaustive references, see Bartolini 2020; Palchetti 2018; Messineo 2013; Salerno 2018; Salerno 2012; Salerno 2007; Cannizzaro 2004. For a less recent, yet excellent and illuminating contribution, see Cassese 1990, 113. 29 Cassese 1990, 124–136; Cannizzaro 2004, 9. The evolution of Ago’s thought and method is also insightful in this respect, see Ziccardi 1995, 315–316; Cassese 1990, 122. 30 ‘Foreword’ (n 2), viii. 31 Ibid. On this belief, see also Cassese 1990, 114, 145–147.

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and practical mindset associated with the use of legal English and with a vast share of the Anglo-American tradition of international law scholarship. Thirdly, the founders of the IYIL were no doubt protagonists of the modernization of international law studies in Italy as from the 1970s, as is best epitomized by the publication of the first editions of Ferrari Bravo’s and Conforti’s textbooks in those years. Ferrari Bravo released its Lezioni di diritto internazionale in 1974, a book characterized by the attention paid to the historical, diplomatic and political dimensions of international law concepts and institutions.32 In 1976, Conforti inaugurated what was to become the leading textbook of international law33 in Italian universities for decades.34 The style, purpose and structure of this textbook—kept essentially intact throughout its succeeding editions—were perfectly corresponding to the foregoing manifesto of the original Editors of the IYIL. It was denoted at once by extreme clarity, incisive analysis and a clever combination of methods.35 Yet, the hallmark of the textbook was its ‘domestic approach’, according to which international law was examined and explained through the lens of its application by domestic legal operators, chiefly domestic courts. Massimo Iovane, in his moving mémoire of Conforti, neatly recalls the origins and purposes of this pioneering perspective:36 it was meant by Conforti as a reaction to the widespread criticism coming from several colleagues who would pompously announce that, after all, international law was not positive law, but a blend of law, politics, sociology, and whatever else pleases one; actually, an area of study especially useful to the general cultural education of students and researchers, and not primarily for people aspiring to become skilled lawyers. In order to debunk such a myth, Conforti saw it fit to show how international law was bound to become practical and effective through its increasing use by domestic authorities operating as agents of the international community. Thus, the renewal of the positivistic method was also intended as a means to ensuring the survival of Positivism as a viable approach to the study of international law. The multitude of largely theoretical, deductive and abstract works which had mushroomed in Italian scholarship in the wake of orthodox Positivism was evidently throwing itself to the just mentioned ‘academic wolves’. Fourthly, and finally, the expanding practice-oriented approach to international law, especially in a pre-digital era such as the 1970s, could successfully be undertaken by scholars with a deep knowledge of international law-making processes and 32 Ferrari

Bravo 1974. See the positive remarks by Cassese 1990, 135, 137–138. 1976. This textbook, later renamed Diritto internazionale and translated into various languages, has recently been published in its eleventh edition, edited by Massimo Iovane (Conforti 2018). 34 Cf. Francioni 2016, 498 (referring to Conforti’s textbook as an incredible evergreen and an exceptional manual). In a review of the seventh edition (dated 2006) of this textbook, Bruno Simma, after summing up its remarkable qualities, concluded that they ‘explain why in Italian universities the name Conforti is frequently used as synonymous with international law’, Simma 2006, 450. 35 Simma 2006, 447, views Conforti’s approach as a bold, yet successful, blend of realism and Kelsen’s Pure Theory of Law. On this combination of methods in Conforti’s scholarship, see also the insightful remarks by Iovane 2015, 7–9, and Pisillo Mazzeschi 2016a, 793–795. 36 See Iovane 2015, 6. 33 Conforti

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their interaction with domestic legal orders, accompanied by a well-trained capacity to research and supervise research of endless archival materials, law reports and official documents. The founders of the IYIL were surely in that position. Capotorti had already published, for instance, several analytic commentaries on the Italian judicial practice of international law.37 As said, Conforti, after digging hundreds of United Nations documents for his 1968 monograph,38 was increasingly focusing on domestic judicial practice, a predilection which will lead to the publication of authoritative repertories of case law39 and to his appointment as rapporteur of the Institut de droit international on the ‘Activities of National Judges and the International Relations of their State’.40 In turn, on the heels of a growing involvement in Italian delegations to international forums,41 Ferrari Bravo was nurturing his interest in the diplomatic practice of States and its multiple manifestations. A key achievement in that regard was his leadership of the research network engaged with the systematic collection of Italian diplomatic documents relevant to international law from the years 1887–1918, which resulted in the monumental second series of La prassi italiana di diritto internazionale.42 Eventually, this insider, profound knowledge of the variety of expressions of diplomatic practice, their historical significance and their place in the customary law-making process was one of the highlights of Ferrari Bravo’s insightful course at the Hague Academy.43

17.2.2 Precursors The IYIL was established at a time—the 1970s—when a veritable ‘gold rush’ to State practice, especially judicial practice, was taking place among and within the various Italian ‘schools’ of international law, as reflected in the pertinent publications and existing periodicals. In that pre-digital era, this scholarly competition about the best way to collect, select and systematize Italian judicial decisions relevant to (public and private) international law invariably resulted in bulky and partly overlapping

37 See,

e.g., Capotorti 1953. 1968. 39 Picone and Conforti 1988. 40 See, e.g., Conforti 1993. 41 This increasing and relentless experience in international affairs led to Ferrari Bravo’s appointment as the Legal Adviser at Italy’s Permanent Missions to the United Nations (first in New York, 1981– 1984, then in Geneva, 1984–1985) and, subsequently, as the Head of the Legal Service (Servizio del Contenzioso Diplomatico) of the Italian Ministry of Foreign Affairs (1985–1994). 42 In introducing the series, Roberto Ago, who was co-editor-in-chief (with Riccardo Monaco), singled out and praised Ferrari Bravo for his work and ascribed to him the principal merit for the realization of the oeuvre: Ago 1979, xiii, xiv. See Sacerdoti 2015, 16; Nesi 2016, 858–859. 43 Ferrari Bravo 1985. 38 Conforti

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volumes.44 Perhaps more than scientific works stricto sensu, these volumes were conceived as useful professional tools to be constantly consulted by domestic courts and lawyers, thus giving them (and their authors) high visibility. Yet, they were bound to be examined only by readers with knowledge of Italian language, as their clear limitation was that both jurisprudence and related commentaries and indexes were published, indeed, in Italian. Around the same period of time, a few Italian periodicals also regularly included extensive sections on the Italian practice relating to international law. The prestigious quarterly Rivista di diritto internazionale has always reproduced relevant Italian judicial decisions and legislation, as well as information on treaties binding upon Italy, in dedicated parts. To a certain extent, the same holds true for periodicals intended as annual publications, that is, in fact, the Italian precursors of the IYIL. Comunicazioni e studi, a yearbook founded at the University of Milan in 1942 by Ago, subsequently developed with the help of other prominent scholars—such as especially Giuliano and Ziccardi—and irregularly published until 2007 for a total of twenty-three volumes, was characterized by a peculiar technique. Indeed, it normally featured—inter alia and with the exception of the latest volumes—lengthy critical surveys on the Italian jurisprudence of international law, rather than verbatim reproductions of the individual decisions.45 This model is comparable to the current approach of the IYIL to Italian practice, save for the use of English and much shorter case reports in the IYIL. Even though they have now gone extinct, three further annuals should be noted. The first was Jus Gentium: annuario italiano di diritto internazionale, which appeared in 1938 and was marked by a robust propagandistic outlook in favour of the Fascist regime.46 However, this yearbook did not contain any materials on Italian practice, with the exception of a few selected treaties binding upon Italy. Moreover, it was a transient experiment,47 which resulted in four volumes only, published between 1938 and 1942.48

44 The project La giurisprudenza italiana in materia internazionale, aimed at collecting the Italian jurisprudence relevant to (private and public) international law as from 1861, has resulted in seventeen volumes published between 1973 and 1997; see, e.g., Lamberti Zanardi et al 1973, reviewed by Duintjer Tebbens, (1974) 21 Nederlands Tijdschrift voor Internationaal Recht 359. See also Gaja 1966; Starace and De Caro 1977; Picone and Conforti 1988. For similar initiatives relating to treaty practice, see Cassese 1990, 131. 45 See, e.g., Capotorti 1953, and, more recently, Grandi and Fumagalli 1985 46 Oddly, the first volume (Vol. I (1938)) did not provide any information about the Editors of this yearbook and their programme of work, as noted by a bewildered reviewer in the AJIL, see Riesenfeld 1938. According to a study dating back to those years, the general editor of Jus Gentium was Pietro La Terza, see Giannini 1948, 389. 47 After World War II, it was renamed Jus Gentium: diritto delle relazioni internazionali and in this guise twelve volumes were published between 1949 and 1985. 48 See Bartolini 2012, 282; Bartolini 2015, 55, 60–61; Ingravallo 2020, 190, 203–204; de la Rasilla 2018, 152–153.

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Another precursor of the IYIL was Diritto internazionale, a periodical founded in 193749 and originally directed by Giorgio Balladore Ballieri.50 It primarily pursued an informative and documentary function,51 given that its bulk was constituted by a systematic collection of Italian judicial, legislative and treaty practice relating to private and public international law, as well as a meticulous account of developments of international concern, multilateral treaties and decisions by the International Court of Justice. Yet, Italian practice was again exclusively published in its original language with no explanatory notes or summaries in English (or French). In addition, this periodical had an especially troubled history. Its publication was first interrupted after the release of five volumes between 1938 and 1942. It was relaunched as Annali di diritto internazionale after World War II with an essentially unchanged purpose and structure.52 Under this guise five further volumes were produced between 1951 and 1957, before another break led to the resumption of the initial name Diritto internazionale and the concomitant transformation into a quarterly journal. The latter was released from 1959 to 1974, when it definitively disappeared upon decision of the institution53 which had until then sponsored its publication.54 Finally, mention must be made of the Annuario di diritto internazionale, created in 1965 and directed by Rolando Quadri. This yearbook contained doctrine, bibliographies, book reviews and the text of selected treaties, to the exclusion—however—of Italian practice. All such materials were, with a few exceptions, published in Italian. The exclusion of Italian practice was probably due to a desire to avoid competition and duplication with Diritto internazionale,55 which—as previously indicated— was overwhelmingly devoted to the collection of that practice and, as from 1959,56 featured Quadri as one of its editors-in-chief. Unfortunately, the Annuario lasted for three volumes only, respectively dated 1965, 1966 and 1967–1968, and published between 1966 and 1970.57 It is safe to assume that the disappearance of this yearbook was a matter of deep regret for Quadri and, as such, played a significant role in 49 On the genesis of this periodical and its pre-World War II attitude towards the Fascist regime, see Bartolini 2012, 281–282; Ingravallo 2020, 204, 209–210. 50 The number of editors-in-chief progressively increased in the following years. At the time of disappearance of the periodical in 1974, these were Balladore Pallieri, Giuseppe Biscottini, Giorgio Cansacchi, Rodolfo De Nova, Rolando Quadri and Giancarlo Venturini. 51 See the unauthored foreword to the first volume, (1937) 1 Diritto internazionale ix. 52 See the unauthored foreword in (1949) 7 Annali di diritto internazionale v. For a brief notice of this volume welcoming the resumption of publication of the periodical, see Kunz 1952. 53 That is, the Istituto per gli studi di politica internazionale (ISPI) in Milan. 54 See the foreword to the last issue (published in March 1974), De Nova 1971. 55 At any rate, this failure to consider Italian practice by a periodical which—though not presenting itself as a national yearbook—had been created, based and edited in Italy, was quite controversial. See indeed the criticism expressed on this point in a review to the third and final volume (1967–1968) of the Annuario (Bardonnet 1971, 662). 56 As said, in 1959 Diritto internazionale became a quarterly journal. It is thus easy to speculate that Quadri saw fit to step in with ‘his own’ yearbook, which would be in direct competition with the other remaining Italian yearbook, that is, Comunicazioni e studi. 57 A plausible reason for its termination were financial hurdles, see Ingravallo 2020, 211.

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the genesis of the IYIL and its resurrection towards the end of the 1990s. Conforti and Ferrari Bravo were pupils of Quadri and were part of the editorial staff of the Annuario. Therefore, their unbending determination to establish the IYIL in the 1970s and to resume its publication in the 1990s may also be regarded as a means to avenging the failure of that periodical. The first volume of the IYIL appeared in December 1975, just a few months before Quadri died in April 1976.58 It is suggestive to think about two of Quadri’s most beloved pupils handing him Vol. I of the IYIL, thereby easing the hardship he was experiencing in the last weeks of his existence. To sum up, the IYIL emerged from this fragmented, frequently overlapping and inaccessible-to-non-Italian-speakers publishing environment, with the ambition to become an authoritative reference—entirely written in English and covering only public international law—for cutting-edge Italian scholarship, as well as reports and documentation on Italian practice.

17.3 Development and Challenges Ahead As the IYIL is approaching the 45th anniversary of its creation and its 30th volume, a few considerations about its evolution and future prospects may be made. I will particularly refer to the transformation of the governing bodies of the IYIL and to the impact of online publishing on substantive matters. The IYIL is currently experiencing a new phase of its development, which has started with the publication of Vol. XXV (2015) in 2016, a few months after the decease of Conforti and Ferrari Bravo. In October 2015, the five original Editors of the second series implemented a substantial transformation of the IYIL governing bodies. First, upon Francioni’s resignation from his long-standing mandate, they introduced a rotating system for the position of General Editor, pursuant to which the latter would periodically change following the publication of a given number of volumes under her/his leadership. Accordingly, Massimo Iovane was General Editor for three volumes (Vols. XXV (2015)-XXVII (2017)), before being succeeded by Giuseppe Nesi. Secondly, the size of the Board of Editors was doubled and consisted (and still consists) of ten members, including—for the first time—two renowned non-Italian scholars.59 Thirdly, also the Editorial Committee was renovated and enlarged.60 Last but not least, Daniele Amoroso was appointed as Associate 58 A brief tribute to Quadri by the Board of Editors was published in the second volume of the IYIL, see Board of Editors 1976. For an excellent overview and insightful reflections on Quadri’s contribution to the science of international law, see Conforti 1978. 59 In addition to Francioni, Ronzitti and Sacerdoti, the current Board of Editors includes Giuseppe Cataldi, Pierre-Marie Dupuy, Marco Gestri, Massimo Iovane, Giuseppe Nesi, Riccardo Pavoni and Nigel White. 60 The Editorial Committee has continued to expand in the ensuing years, so that it now includes the following fourteen members: Pia Acconci, Giulio Bartolini, Leonardo Borlini, Andrea Caligiuri, Alessandro Chechi, Serena Forlati, Pietro Gargiulo, Federico Lenzerini, Marina Mancini, Raffaella Nigro, Marco Pertile, Elena Sciso, Paolo Turrini and Valentina Vadi.

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Editor, i.e., the position—midway between the Board and the Editorial Committee— which I have previously held for many years and which performs a key function of coordination and organization of the whole editorial process. A rotating system for the position of editor-in-chief is a rare occurrence in Italian legal periodicals. Its introduction by the original Editors of the second series evidently aimed at boosting dynamism and pluralism in the production of the IYIL. It is too early to assess whether this innovation lived up to the expectations of the original Editors. Much will depend on the continued willingness of the Board’s members to operate in a cohesive environment with the exclusive purpose of maintaining the standard which the IYIL has gained in the past decades. As to the steady enlargement of the Board itself and the Editorial Committee, what seems important is that any new entry should be motivated by the necessity for the IYIL to avail itself of the specific expertise and skills of the scholar in question, and accordingly assign her/him precise responsibilities. In this regard, the appointment of Marco Gestri as Book Review Editor starting from Vol. XXII (2012) constitutes a successful model. With respect to substantive matters, we have seen that—similarly to many other national yearbooks—the IYIL was created with a fundamental mission of collecting and disseminating Italian practice of international law, duly excerpted and commented upon in English. However, upon resumption of publication in 2000, digital technologies were fast developing and within a few years, together with the expansion and increasing centrality of the Internet, they dramatically transformed the techniques for researching materials and instruments pertaining to State practice relevant to international law. Since then, the World Wide Web has largely supplanted hard copies of yearbooks as the locus for finding and studying the primary materials constituting State practice. The growing reliance on the Internet and online publishing by researchers has also signified the end of the monopoly of the IYIL about the English coverage of Italian practice. A number of online services and platforms aimed at collecting and reviewing domestic practice has indeed been created. Mention must be made of at least three online tools. The first is ‘Italy’s Diplomatic and Parliamentary Practice on International Law’, a website launched in 2014 at the University of Trento which contains English excerpts of Italian diplomatic and parliamentary documents, as well as brief introductions thereto.61 The second is ‘Italy and International Law’, a bilingual (Italian and English) online publication started in 2014 under the aegis of the Institute for International Legal Studies of the

61 See

https://italyspractice.info. The founder and Editor-in-Chief is Marco Pertile. The website includes materials dating from March 2011. It should be noted that this website is basically run by the same scholars who are in charge of the section on Diplomatic and Parliamentary Practice of the IYIL. For the purposes of the IYIL, the materials published online are further selected, revised and elaborated upon. Therefore, this website may be regarded as a sort of spin-off of that section of the IYIL.

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National Research Council of Italy. It publishes inter alia the text of, and commentaries on, Italian judicial decisions and legislation relevant to international law.62 Finally, a third (non-Italian) online tool is the ‘Oxford Reports on International Law in Domestic Courts’ (ILDC), an impressive service providing original text, headnotes, and selected English translations of thousands of judicial decisions—mostly from 2000 on—from about seventy jurisdictions, including Italy.63 Whither the IYIL mission in the face of this constant proliferation of ‘competitors’? Should the IYIL revisit its original agenda and accordingly put a stop to, or at least play down, its emphasis on domestic practice? I would firmly answer in the negative: if the IYIL wants to retain a distinct identity among the plethora of existing and emerging periodicals, it should maintain a robust focus on Italian practice of international law and scholarship relating thereto. This conviction also stems from the traditional and growing richness of that practice, which has never been a peripheral phenomenon in Italy. Of course, this does not mean that the structure and contents of the IYIL should not be continuously reviewed and reshaped. In recent years, several changes have already been operationalized. Thus, the section on Judicial Decisions now contains contributions increasingly resembling short doctrinal comments with their own title, rather than mere case notes.64 A similar evolution can be observed about the section on Diplomatic and Parliamentary Practice,65 whereas the meticulous reproduction of the list of agreements to which Italy is a party has in fact been abolished as from Vol. XXVI (2016) and replaced by insightful pieces on the most significant treaty practice.66 Plausibly, the future achievements of the IYIL will closely be dependent on the capacity to reinvent its treatment of Italian practice of international law. Following the lead taken by other national yearbooks,67 this process may unfold through a progressive integration of the analysis of practice into the doctrinal sections of the IYIL. In this regard, preference might well be given to contributions which display innovative and analytic approaches to the study of domestic practice, for instance through its contextualization within the history and theories of international law.

62 See

https://www.larassegna.isgi.cnr.it/en. The current Editors-in-Chief are Giuseppe Palmisano and Ornella Ferrajolo. The time span covered so far is the years 2012–2017. 63 See https://opil.ouplaw.com/page/ILDC/oxford-reports-on-international-law-in-domesticcourts. The current Editors-in-Chief are André Nollkaemper (co-founder with Erika de Wet) and August Reinisch. I have been coordinating the work of Italian reporters for some fifteen years, on the assumption that there would be no duplication with the IYIL section on Judicial Decisions. This is indeed the case, since the format of headnotes in ILDC and that of case notes in the IYIL is very dissimilar, the latter being much more elaborated. 64 See (2017) 27 IYIL 427, and (2018) 28 IYIL 455. 65 See (2017) 27 IYIL 465, and (2018) 28 IYIL 505. 66 See, e.g., Ronzitti 2016; Mancini 2016. 67 Reference is especially made to the section on German Practice inaugurated by the German Yearbook of International Law since its Vol. 52 (2009), see Giegerich and Proelss 2009.

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References Ago R (1977) Pluralism and the Origins of the International Community. The Italian Yearbook of International Law 3:3. Ago R (1979) Foreword. In: La prassi italiana di diritto internazionale. Seconda serie (1887–1918), Vol. I. Oceana Publications, New York. Bardonnet D (1971) Review. Revue internationale de droit comparé 23:661. Bartolini G (2012) The Impact of Fascism on the Italian Doctrine of International Law. Journal of the History of International Law 14:237. Bartolini G (2015) Le leggi razziali e la dottrina italiana di diritto internazionale. In: Resta G, Zeno-Zencovich V (eds) Le leggi razziali: passato/presente. Roma TrE-Press, Rome. Bartolini G (ed) (2020) A History of International Law in Italy. Oxford University Press, Oxford. Board of Editors (1976) In memoriam – Rolando Quadri. The Italian Yearbook of International Law 2:299. Caggiano G (1975) The ILC Draft on the Succession of States in Respect of Treaties: A Critical Appraisal. The Italian Yearbook of International Law 1:69. Caggiano G, Triggiani E (2016) In ricordo di Luigi Ferrari Bravo. Studi sull’integrazione europea 11:7. Cannizzaro E (2004) La doctrine italienne et le développement du droit international dans l’aprèsguerre: entre continuité et discontinuité. Annuaire français de droit international 50:1. Capotorti F (1953) Problemi di diritto internazionale nella giurisprudenza italiana recente. Parte terza: anno 1952. Comunicazioni e studi 5:387. Capotorti F (1976) The Protection of Minorities under Multilateral Agreements on Human Rights. The Italian Yearbook of International Law 2:3. Cassese A (1976) Parliamentary Control of Treaty-Making in Italy. The Italian Yearbook of International Law 2:165. Cassese A (1990) Diritto internazionale. In: Bonanate L (ed) Studi internazionali. Edizioni della Fondazione Agnelli, Turin. Cataldi G (2017) Il contributo di Benedetto Conforti al diritto internazionale del mare. Rivista di diritto internazionale 100:98. Condorelli L (1976) Acts of the Italian Government in International Matters before Domestic Courts. The Italian Yearbook of International Law 2:178. Conforti B (1968) La Funzione dell’accordo nel sistema delle Nazioni Unite. Cedam, Padova. Conforti B (1975) Does Freedom of the Seas Still Exist? The Italian Yearbook of International Law 1:3. Conforti B (1976) Appunti dalle lezioni di diritto internazionale, 1st edn. Editoriale Scientifica, Naples. Conforti B (1978) L’Opera di Rolando Quadri. Rivista di diritto internazionale 61:5. Conforti B (1993) Final Report. Annuaire de l’Institut de droit international 65-I:428. Conforti B (2018) Diritto internazionale, 11th edn. Editoriale Scientifica, Naples. Conforti B, Ferrari Bravo L (2018) From Naples to Strasbourg and Beyond: An Extraordinary Journey. Proceedings of the Colloquium held in Strasbourg on 24 February 2017. Editoriale Scientifica, Naples. de la Rasilla I (2018) A Very Short History of International Law Journals (1869–2018). European Journal of International Law 29:137. De Nova R (1971) Foreword. Diritto internazionale 25:iii. Ferrari Bravo L (1974) Lezioni di diritto internazionale. Libreria Scientifica Editrice, Palermo. Ferrari Bravo L (1985) Méthodes de recherche de la coutume internationale dans la pratique des Etats. Recueil des cours 192:233. Francioni F (1975) Criminal Jurisdiction over Foreign Merchant Vessels in Territorial Waters: A New Analysis. The Italian Yearbook of International Law 1:27. Francioni F (2015) Foreword: On My Way Out. The Italian Yearbook of International Law 25:xxi. Francioni F (2016) Ricordo di Benedetto Conforti. Rivista di diritto internazionale 99:493.

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Gaja G (1966) Decisioni della Corte costituzionale in materia internazionale. Giuffrè, Milan. Gaja G (1975) Reservations to Treaties and the Newly Independent States. The Italian Yearbook of International Law 1:52. Giannini A (1948) Il diritto internazionale in Italia (1851–1948). Rivista di studi politici internazionali 15:377. Giegerich T, Proelss A (2009) Foreword from the Editors. The German Yearbook of International Law 52:635. Giuliano M (1975) The Regime of Straits in General International Law. The Italian Yearbook of International Law 1:16 . Grandi B, Fumagalli L (1985) I problemi di diritto internazionale nella giurisprudenza italiana (1976–1980). Comunicazioni e studi 17/18:855. Ianni R W (1978) The Italian Yearbook of International Law. Canadian Yearbook of International Law 16:342. Ingravallo I (2020) The Formation of International Law Journals in Italy: Their Role in the Discipline. In: Bartolini G (ed) A History of International Law in Italy. Oxford University Press, Oxford. Iovane M (2015) Benedetto Conforti. The Italian Yearbook of International Law 25:3. Kunz J L (1952) The United Nations and the Rule of Law. American Journal of International Law 46:144. Lamberti Zanardi P, Luzzatto R, Sacerdoti G, Santa Maria A (1973) La giurisprudenza di diritto internazionale, Vol. I (1861–1875), Vol. II (1876–1890). Jovene, Naples. Mancini M (2016) The Memorandum of Understanding between Italy and UNESCO on the Italian “Unite4Heritage” Task Force. The Italian Yearbook of International Law 26:624. Messineo F (2013) Is There an Italian Conception of International Law? Cambridge Journal of International and Comparative Law 2:879. Napoletano G (1977) Some Remarks on Treaties and Third States under the Vienna Convention on the Law of Treaties. The Italian Yearbook of International Law 3:75. Nesi G (2016) Ricordo di Luigi Ferrari Bravo. Rivista di diritto internazionale 99:857. Nesi G, Gargiulo P (eds) (2015) Luigi Ferrari Bravo. Il diritto internazionale come professione. Editoriale Scientifica, Naples. Palchetti P (2018) International Law and National Perspective in a Time of Globalization: The Persistence of a National Identity in Italian Scholarship of International Law. KFG Working Paper Series, No 20 (November 2018). Picone P, Conforti B (1988) La giurisprudenza italiana di diritto internazionale pubblico. Repertorio 1960–1987. Jovene, Naples. Pisillo Mazzeschi R (2016a) Benedetto Conforti, innovatore della cultura giuridica internazionalistica. Laudatio. Studi senesi 128:792. Pisillo Mazzeschi R (2016b) Benedetto Conforti ed il suo contributo scientifico in materia di diritti umani. Diritti umani e diritto internazionale 10:277. Raimondi G (2016) Benedetto Conforti prima Commissario poi Giudice dei diritti umani a Strasburgo. Diritti umani e diritto internazionale 10:287. Riesenfeld S A (1938) Review of Jus Gentium: annuario italiano di diritto internazionale. American Journal of International Law 32:871. Ronzitti N (1975) Wars of National Liberation – A Legal Definition. The Italian Yearbook of International Law 1:192. Ronzitti N (2016) The Agreement between France and Italy on the Delimitation of Maritime Frontiers. The Italian Yearbook of International Law 26:617. Sacerdoti G (1976) Application of G.A.T.T. by Domestic Courts: European and Italian Case Law. The Italian Yearbook of International Law 2:224. Sacerdoti G (2015) Luigi Ferrari Bravo. The Italian Yearbook of International Law 25:13. Salerno F (2007) La Rivista e gli studi di diritto internazionale nel periodo 1906–1943. Rivista di diritto internazionale 90:305.

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Salerno F (2012) L’affermazione del positivismo giuridico nella scuola internazionalista italiana: il ruolo di Anzilotti e Perassi. Rivista di diritto internazionale 95:29. Salerno F (2018) L’influenza di Santi Romano sulla dottrina e la prassi italiana di diritto internazionale. Rivista di diritto internazionale 101:357. Simma B (2006) Book Review. The Italian Yearbook of International Law 16:447. Sperduti G (1977) Dualism and Monism. A Confrontation to Be Overcome. The Italian Yearbook of International Law 3:31. Starace V (2003) Francesco Capotorti. Rivista di diritto internazionale 86:152. Starace V, De Caro C (1977) La giurisprudenza costituzionale in materia internazionale. Editoriale Scientifica, Naples. Treves T (1976) Devices to Facilitate Consensus: The Experience of the Law of the Sea Conference. The Italian Yearbook of International Law 2:39. Ziccardi P (1995) Il diritto internazionale nell’insegnamento di Roberto Ago. Rivista di diritto internazionale 78:305.

Chapter 18

The Development and Future of the Japanese Yearbook of International Law: From Japanese Perspectives to International Academic Forums Keiichiro Niikura and Koichi Morikawa

Contents 18.1 The Historical Circumstances of Creating JAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.1.1 The Establishment of ILA Japan Branch, and Objectives for JAIL . . . . . . . . . . . 18.1.2 Background to the Launch of JAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2 The Development from JAIL to JYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2.1 The Structure and Topics of JAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2.2 Birth of JYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.3 Functions of JAIL/JYIL—The Impact on Academia, Politics, and Precedents . . . . . . . . . 18.3.1 Impact on Academia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.3.2 Impact on Politics and Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.4 The Future of JYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

212 212 213 213 213 218 220 220 221 222 223

Abstract The Japanese Yearbook of International Law (JYIL) is a representative international law yearbook in Japan published by the ILA Japan Branch. Since it was first published in 1957 when Japan aimed to re-join the international community after the Second World War, the JYIL has had great significance in Japanese international law. This chapter examines the historical development, functions, and future prospects of the yearbook. First, this chapter elucidates the historical background of the origin of the JYIL and its development to the present, that is, the transition from the Keiichiro Niikura is Associate Professor at [email protected]. Koichi Morikawa is Editor-in-Chief of JYIL, [email protected].

Tokyo Professor

Metropolitan of

Senshu

University. University.

K. Niikura (B) Tokyo Metropolitan University, Tokyo, Japan e-mail: [email protected] K. Morikawa Koichi Morikawa, Senshu University, Chiyoda, Tokyo, Japan © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_18

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era of the Japanese Annual of International Law (predecessor of the JYIL), which focused primarily on international law issues related to Japan, to the JYIL, which aims to become an international academic forum. After considering the impact of the JYIL on academia, politics, and precedents, the future prospects of the yearbook are shown. Keywords Japanese Annual of International Law · Japanese Yearbook of International Law · ILA Japan Branch · International Academic Forum · Digitalization of Yearbook

18.1 The Historical Circumstances of Creating JAIL 18.1.1 The Establishment of ILA Japan Branch, and Objectives for JAIL In 1920, the Japan Branch of the International Law Association (ILA) was founded, making it the first Asian branch, due the efforts of Dr Thomas Baty (then legal advisor to the Ministry of Foreign Affairs),1 Dr. Sakutaro Tachi (former professor at the then Tokyo Imperial University),2 Tadao Yamakawa (former Director-General of the Cabinet Legislation Bureau), and Dr Saburo Yamada (former professor at the then Tokyo Imperial University).3 With the outbreak of the Second World War, however, the organisation entered a period of dormancy. After the war, the Japan Branch of the ILA became increasingly active; with the many international legal issues that Japan faced, the Japan Branch resumed activity in 1955.4 The Japan Branch of the ILA’s Articles of Incorporation, registered on 14 January 1960,5 cite the objectives, ‘in cooperation with the International Law Association, to study International Law, public and private, to promote their development, to study Comparative Law, to cooperate in international activities for the unification of law and to thereby contribute to the promotion of good will and mutual understanding

1 For

more information on Dr. Thomas Baty, please refer to Carty 2013. more information on Dr. Sakutaro Tachi, please refer to Akashi 2013. 3 For more information on Dr. Saburo Yamada, please refer to Kitazawa 2013. 4 See Zadankai: genka no kokusaiteki h¯ oritsu mondai—kokusai h¯oky¯okai ny¯uy¯oku s¯okai o ch¯ushin to shite [Symposium: current international legal issues—focusing on the International Law Association New York General Meeting], Jurist 159(1958), at 19; see also Hatano 1964. 5 Until then, the Japanese Branch of the International Law Association Statute provided its objects more generally as follows: The objects of the Branch shall be to promote the objects of the Association amongst persons of Japanese nationality and persons normally resident in Japan and such other objects consistent herewith as the Council may determine. See, The Japanese Branch of the International Law Association Statute, Japanese Annual of International Law 1 (1957), at 112. 2 For

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among the lawyers and jurists of the world’.6 To achieve these objectives, it stipulates that, ‘Each year an English language annual report shall be issued, publishing academic perspectives as well as introducing Japanese precedents and materials’.7 The Japanese Annual of International Law (JAIL), the predecessor of the Japanese Yearbook of International Law (JYIL), was launched as an official journal of Japan Branch of the ILA. Its two primary purposes are publishing academic research on international law and providing an introduction to national implementation in Japan for the purpose of promoting research on international law and improving good will and mutual understanding among jurists around the world. The operation of JAIL (and JYIL) has been based on these purposes.

18.1.2 Background to the Launch of JAIL The first volume of JAIL was launched in 1957, five years after Japan regained independence through the 1952 Treaty of San Francisco, only one year after its admission to the United Nations. JAIL’s launch came at a time when, legally, Japanese publicists had already imported the teaching and academic views of European publicists, so that international legal studies in this country had become established as an independent discipline with the capacity to cope with practical needs of the moment.8 Politically, Japan was facing a plethora of challenges in the process of re-joining the international community and solidifying its position as an equal member. The 1964 ILA Tokyo Conference directly influenced the launch of JAIL. The then-president Shigeru Kuriyama (former Supreme Court Justice), a leading figure in the resumption of activities at the Japan Branch aimed to host an ILA Biennial Conference in Tokyo. He planned to demonstrate that Japan was a potential venue for the Conference by creating an English-language institutional journal on Japanese research in international law.

18.2 The Development from JAIL to JYIL 18.2.1 The Structure and Topics of JAIL JAIL’s history began in 1957. Its structure was comprised of ‘Articles’, ‘Notes’, ‘Judicial Decisions’, ‘Chronology of Japanese Foreign Affairs’, ‘A Chronological Lists of Treaties and other International Agreements concluded by Japan’, ‘Documents’, and ‘Activities of the Japan Branch’. 6 Articles of Incorporation of the Japan Branch of the International Law Association, INC. Japanese

Annual of International Law 4 (1960), at 304. 7 Ibid. 8 Ishimoto

and Hirobe 1987, at 92.

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Right through its change into the Japanese Yearbook of International Law in 2008, the journal transmitted ‘Japanese perspectives on international law’.9 Its printed content gradually changed against the background of Japan’s changing stance on interacting with the international community. It moved from a period exemplified by passivity, during which Japan was focused on dealing with post-war issues, to a period of proactive involvement after having established a firm position in the international community. Despite its gradual change in focus, the journal continued to deal with international legal issues concerning Japan.

18.2.1.1

1957–1970s

General Trends in ‘Articles’ and ‘Notes’: Political Issues Generally speaking, the papers submitted as Articles and Notes were written by Japanese academics who were commissioned by JAIL’s board of editors.10 Until the early 1970s, the majority of its papers introduced or analysed points of international law that related to important political issues facing Japan. At the time, these issues included the legal issues following the Second World War, such as the conclusion of peace treaties, territorial issues, and post-war compensation with the Soviet Union, China, and South Korea. Japan’s position was strengthened by seeking admission to international organisations, such as the United Nations, and reforming the US-Japan Security Treaty. Many papers covering these issues were contributed to JAIL. In addition to the publication of many articles on the Northern Territories, the Ogasawara Islands, Takeshima, and the Senkaku Islands,11 a special issue (No 16) was put together in 1972, when Okinawa was returned to Japan. In addition to articles on the conclusion of the Sino-Japanese Peace Treaty (1952) and the Treaty on Basic Relations between Japan and the Republic of Korea (1965), a special issue was released in 1973 (No 17) on the Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China. It discussed various issues, including the relationship with Taiwan, the end of the war, and fishery. In 1956, Japan was finally admitted to the United Nations after a joint declaration with the Soviet Union. Obtaining equal status through admission to international organisations, such as the United Nations, was an extremely significant political matter for post-war Japan. JAIL published many papers on the relationship between international organisations (including the International Court of Justice) and Japan as well as legal issues concerning international organisations as they pertained to Japan.12

9 Okuwaki

2014, at 2. 2008. 11 Examples include Taoka 1958, Takano 1959 and Biwata 1970. 12 See Takano 1957, Taoka 1959 and Yamamoto 1965. 10 Oda

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Security was another key political theme for Japan at that time. After the war, Japan became a signatory to the United Nations Charter and concluded the USJapan Security Treaty, deciding to participate in the collective security system of the Western nations. However, this decision posed a problem for Japan in terms of Article 9 of the Constitution, which stipulated that Japan could not maintain war potential. JAIL introduced and analysed the judgment in the Sunagawa Case, which dealt with the problem of unconstitutionality of the Self-Defence Forces under Article 9. It also provided more general research, by leading Japanese scholars, including Dr Kisaburo Yokota, on the relationship between treaties and the Constitution.13 Though not a political issue within Japan, the Law of the Sea remains a very important legal field for Japan, an island nation. During this period, the Law of the Sea progressed towards the United Nations Convention on the Law of the Sea in Geneva, which consisted of adopting four treaties. JAIL was very active in publishing introductions and analyses of the Law of the Sea, primarily by former International Court of Justice judge, Shigeru Oda.14 Although exceptional, contributions from globally renowned international law scholars, such as Wilfred C. Jenks (No 9)15 and Leo Gross (No 11),16 followed the 1964 ILA Tokyo Conference. Introduction of Japanese Practices and Materials on International Law JAIL aims to play an important role in the introduction of Japanese precedents and materials, as per the Japan Branch’s Articles of Incorporation. The journal has provided several sections introducing the national implementation of international law in Japan since its launch. The ‘Judicial Decisions’ section presents judicial decisions in Japan that include points of issues concerning international law (or private international law). The ‘Documents’ section lists treaties that Japan has entered into in a given year, as well as extra-treaty documents relating to Japan’s implementation of international law. The journal has introduced important judicial decisions relating to atomic bomb litigation, post-war compensation litigation, litigation over the choice of law in a divided state, and the unconstitutionality of the US-Japan Security Treaty. It has also presented important documents, such as Treaties ratified by the Diet (Japan’s bicameral legislature) and the Declaration of Japan Recognising the Compulsory Jurisdiction of the International Court of Justice. Historically significant judgments of the Allied Power-Japanese Property Commissions derived from the Treaty of San Francisco and of the review of the award of a wartime prize court (the Santa Fé Case) have been analysed individually in Articles and Notes. The serialisation of the ‘Annual Review of Japanese Practice in International Law’, which covers the Japanese implementation of international law outside of domestic judicial decisions, commenced with No 8 (1964) by former International Court of Justice judges, Oda and Owada. In recognition of the importance of publishing in 13 See

Yokota 1960 and Takano 1964. example, see Oda 1957. 15 See Jenks 1965. 16 See Gross 1967. 14 For

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English, JAIL introduced materials in this section that demonstrated the appropriate application of international law in Japan and involved the state’s implementation of international law, offering Japanese perspectives thereon (such as Diet deliberations, diplomatic negotiations, and statements at international conferences), under themes such as ‘State’, ‘Recognition’, and ‘Territory’. Such efforts were already underway in Britain, the United States, France, and Germany, but it was the first attempt to introduce Japanese material in English. Beforehand it had been difficult for people in the Anglophone world to access this information.

18.2.1.2

1980s–2007

Having resolved, to a certain extent, the problems remaining from the Treaty of San Francisco and having achieved rapid economic growth, Japan began facing new problems of responding domestically to globalisation in this era. As the movement of people, goods, and services crossing national borders proliferated, and the interdependence between nations progressed, the scope of international law expanded into areas, which had formerly been entrusted to domestic law, leading to significant interpenetration of international and domestic law. Japan, as a member of the international community, began to actively participate in this practice of international law. Accordingly, JAIL emphasised the analysis and ‘accurate’ introduction of the execution of positive laws concerning Japan. General Trends in ‘Articles’ and ‘Notes’: Domestic Implementation of International Law Trends in Articles and Notes during this period can be summarised as follows. First, although a number of papers continued dealing with leftover political issues following the Second World War, such as post-war compensation, the proportion of this type of paper declined. The number of papers on the domestic implementation of a range of international laws, such as conventions on human rights,17 counterterrorism,18 environmentalism,19 and the General Agreement on Tariffs and Trade (GATT) increased.20 From the 1980s, along with this change of topic, more papers sought to demonstrate to the rest of the world that Japan was more actively contributing to the implementation of international law. A special feature on ‘Japan’s Contribution to the Contemporary International Law’ was edited for No 36 (1993). It provided analyses

17 For

example, see Iwasawa 1991 and Yakushiji 2003. example, see Yamamoto 1989. 19 For example, Kato 2000. 20 For example, Tsuruoka 1995. For other examples in addition to those given above: Tanaka 1995, Nakayama 1995, Asada 1996, Kodera 1996, Morikawa 2002, and Furuya 2004. 18 For

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of how the principle of international cooperation in the Constitution of Japan, pacifism in Article 9 of the Constitution, and laws concerning peace-keeping operations have contributed to the implementation of international law.21 Finally, although limited in number, JAIL began publishing papers on international law more generally, which were removed from the Japanese context.22 The aim was to present papers that dealt with general and theoretical issues facing the international community, apart from the individual context of Japan. This shift was important in terms of the development of JYIL. Introduction of Japanese Practices and Materials on International Law As an active participant in the international law community, the introduction of Japanese practices in international law was very important from the viewpoint of identifying customary international law as well as the analysis of actual regulation by specific international law regimes. The structure of these sections remained essentially the same as in the previous period. However, a new section titled ‘The Japanese Digest of International Law’ was established. A working group supervised by then-editor and former International Tribunal for the Law of the Sea, Judge Soji Yamamoto, organised this column, which launched in No 42 (1999). It filled the gap left by the sporadic coverage of the Annual Review of International Law between No 31 (1988) and 33 (1990) and the suspension, for approximately ten years, thereafter.23 The objective of this section is fundamentally the same as that of the Annual Review—to introduce documents showing the established legal position of international law in Japan. However, the Annual Review was divided in periods of one to two years, and it adopted a format in which some of the material released in a given period was referred based on particular themes.24 With the Japanese Digest, in contrast, JAIL began attempting to drill specific cases and precedents and domestic law over a given period. After introducing developments in international law in detail, it presents Japan’s legal position on related issues through material from the full period in which that position is established.25 Book Reviews and Activities of Academic Associations Although papers introducing general trends in Japanese research on international law had been published before,26 a new book review section was launched in issue No 30 (1987). It marked the beginning of an attempt to discuss individual Japanese research concerning international and private international law in English with the rest of the world. It is a manifestation of the policy that Japan should actively contribute to 21 Hirobe

1993; Yanai 1993. example, Matsui 1994. 23 The Japanese Digest of International Law: Introductory Note. Japanese Annual of International Law 42 (1999):62–63. 24 For a compilation of Japanese implementation published in the Annual Review from No. 8 to No.17, see Oda and Owada 1982. 25 For example, Kanehara 1999. 26 Takano 1962; Ikehara et al 1962; Oda 1965. 22 For

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developments in international jurisprudence, and it is an emerging feature of the development of the journal towards JYIL.27 The section dealing with the activities of the Japan Branch, and related academic associations in Japan, has been vital in communicating Japanese research to the rest of the world. At its launch, JAIL carried a section that detailed the activities of the ILA’s Japan Branch and reported on activities of Japanese Society of International Law (JSIL), which has been at the centre of research on international law in Japan since its establishment in 1897. The report of the activities of JSIL had been suspended in No 5 (1961). In 1989, in No 32, simultaneously to the launch of the book review section, JAIL reintroduced a sub-section that reported on research by the Japanese Association of World Law (the principal founding objective of which was ‘research relating to world law and world federation’), JSIL and the Private International Law Association of Japan.

18.2.2 Birth of JYIL In commemoration of its 50th anniversary in 2008, JAIL was renamed the Japanese Yearbook of International Law and was reborn as a new journal. According to Judge Oda, the then president of ILA Japan Branch, three changes to the research of international law in Japan formed the basis at that time. The first was Japan’s changing role in the international community. When JAIL was launched in 1957, Japan’s attitude was extremely passive, guided by a desire to be accepted as a peace-loving nation by the international community. By 2008, Japan had taken a leading position in the international community. The second changing idea was that the rule of law in international relations had expanded dramatically. The journal needed to steadily accelerate this expansion. Third, the role of Japanese international lawyers had gradually evolved with Japan’s growing global interaction. In the 2000s, international lawyers in Japan were frequently required to provide their perspectives not only on Japan-related issues, but also on the problems faced by the international community. In light of these changes, the ILA Japan Branch decided to renew JAIL’s objectives: it would be reborn as an important academic forum for research on international law. The new aim of the journal was to be a forum where people from a diverse range of backgrounds could exchange views on issues facing the international community. The journal would seek authors from overseas and publish papers with a greater variety of perspectives that were not limited to Japan. Based on this new concept, JAIL was reborn as JYIL under the direction of a working group led by Akira Kotera (former professor at the University of Tokyo), the chief editor at the time. While seeking papers from researchers around the world and publishing about more general points of international law, JYIL also increased the number of papers that it published and enhanced its content. The structure of 27 There are also papers from after the 1980s that describe trends in Japanese research on international law: Onuma 1986, Onuma 1990; and Ishimoto and Hirobe 1987, Ishimoto and Hirobe 1988.

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the journal was renewed as follows: (1) peer-reviewed articles, (2) notes on both general and Japan-related issues, (3) digests pertaining to current Japanese practices in international law, (4) digests relating to major judicial decisions by Japanese courts in the field of public and private international law, (5) book reviews, (6) related documents including treaties and legislations, and (7) reports on the activities of the ILA’s Japan Branch and related academic associations.28

18.2.2.1

JYIL as an International Academic Forum

The birth of JYIL as an international academic forum has brought about (1) a breakaway from an exclusively Japanese perspective on the issues, and (2) regular contributions from renowned authors all over the world. Timely special features have been put together, such as ‘The Law of the Sea: Enduring Principles and Contemporary Challenges’, ‘Recent Trends and Challenges of the ICJ Jurisprudence’, ‘Criminalisation of International Law’,‘The Great East Japan Earthquake and International Law’, ‘Redefining the Theoretical Grounds for the Collaboration between Public Law and Private Law in the Era of Globalization’ and ‘Unilateralism and Multilateralism in Regulating Cross-Border Business Transactions’ with a wide range of contributing international authors with expertise in each theme. To this point, papers have been contributed by prominent authors, such as Rüdiger Wolfrum,29 Anthony Aust,30 Christine Gray,31 Douglas Guilfoyle,32 Peter H. Sand,33 Hugh Thirlway,34 Alexander Orakhelashvili,35 Ronald A. Brand,36 Peter Mankowski,37 Mary Keyes,38 Horatia Muir Watt,39 Stéphanie Francq,40 Ralf Michaels41 and Geneviève Saumier.42 In addition, the book review section, as seen in the review of Bruno Simma and Daniel Litwin about the work of Yasuaki Onuma,43 functions as a place not only to introduce the writings of the Japanese, but to conduct academic criticism across the

28 Oda

2008. 2008. 30 Aust 2009. 31 Gray 2009. 32 Guilfoyle 2010. 33 Sand 2011. 34 Thirlway 2012. 35 Orakhelashvili 2012. 36 Brand and Fish 2008. 37 Mankowski 2008. 38 Keyes 2015. 39 Watt 2015. 40 Francq 2016. 41 Michaels 2016. 42 Piché and Saumier 2018. 43 Simma and Litwin 2018. 29 Wolfrum

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country. JYIL as an international academic forum has been realized in this respect too.

18.2.2.2

Publication on HeinOnline as a Measure to Enhance Penetration Overseas

The digitalization of JYIL is critically important to functioning effectively as an international academic forum. In 2011, HeinOnline consulted the ILA’s Japan Branch about their desire to upload JAIL and JYIL to the HeinOnline database. The editorial board considered this possibility, and although they thought that joining HeinOnline might affect JYIL’s print sales, ultimately, they decided that achieving a wider readership would enhance the journal’s status. In 2014, they entered into a contract with HeinOnline, providing all content from JAIL and JYIL through HeinOnline’s services. However, for the three most recent volumes of JYIL, only the list of contents can be seen, and the PDF text data cannot be accessed. Initially, it was decided only to allow the use of the JAIL tables of contents. Although the copyright for online use of the manuscripts published in JYIL belongs to the ILA’s Japan Branch, there is no such arrangement with authors published in JAIL. From 2014 to 2015, the JYIL editorial board contacted the authors of manuscripts published in JAIL, or their copyright successors, and carried out the relevant procedures to obtain consent for online publication. As a result, all content printed in JAIL became available in 2016. Because contact information for some of the copyright holders is unknown, there are papers for which procedures have not been carried out to obtain consent for online publication; there is a link for requesting such information on the JYIL website.

18.3 Functions of JAIL/JYIL—The Impact on Academia, Politics, and Precedents 18.3.1 Impact on Academia JAIL and JYIL papers and sections on national practices have been cited in many overseas papers. Overseas researchers have referred to the sections extensively in documents related to national implementation as they are the sole medium through which the nature of implementation in Japan can be accurately understood in English.44 It is important to communicate in English about the implementation of international law in Japan. Despite Japan’s unique background, there is a certain level of universality in, for instance, the judgment in the Shimoda Case (which ruled on the legality of the use of nuclear weapons under international law) and judgments on the choice of 44 For example: Fox 2019, at 25 note 19, referring to an English translation of ‘Act on Jurisdiction over Foreign States’ in JYIL documents section as a Japanese implementation of the UN Convention on Jurisdictional Immunities of States and their Property.

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national law in nations divided after the war (such as Korea and China). The journal is often cited when such implementation is considered.45 When it comes to impacting overseas academia, it is important to offer online access. The ILA’s Japan Branch has provided users of HeinOnline’s database service with PDF data from JYIL since 2014 and from JAIL since 2016. The number of times the journal has been retrieved by keyword searches has increased significantly with all data, including JAIL, becoming available in 2016, even though only the tables of content are provided for the three most recent volumes. The increase also applies to the search hit frequency, the number of times PDF data has been downloaded (paper reference frequency), and the number of pages reviewed via web browsers (see Table 18.1). Although a comparison with other journals is impossible due to the inaccessibility of their data, it would seem that the journal is referenced more widely than when it was offered only in print.

18.3.2 Impact on Politics and Precedents Every year the Ministry of Foreign Affairs purchases a significant number of JYIL volumes and distributes them to diplomatic establishments overseas as well as for diplomatic activities. JYIL also benefits from the supporting membership of leading Japanese law firms such as Anderson M¯ori & Tomotsune Law Office, Ishii Law Office, Matsuo Sogo Law Table 18.1 Search hit frequency, paper reference frequency, and number of pages reviewed via web browsers Period

Search hit frequency

Paper reference frequency

Number of pages reviewed

January–December 2018

68,920

12,224

6746

January–December 2017

67,456

9670

7379

January–December 2016

80,669

9644

4325

January–December 2015

18,068

3287

1358

May–December 2014

3372

457

194

Source The authors

45 For

example: Folks 1965, at 759.

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Office, Mori Hamada & Matsumoto, Nagashima Ohno & Tsunematsu Law Office, Nakamura & Partners Patent & Law Office, Nishimura & Asahi and Oh-Ebashi LPC & Partners. These firms handle many international lawsuits (such as investment agreements, competition law, and human rights law), and judicial decisions are indirectly affected through their advocacy. Additionally, decisions of international significance, such as the Shimoda Case, are cited and referred to in international courts46 and the domestic courts of other states.47 The English translations provided in the journal are often used in such circumstances.

18.4 The Future of JYIL JYIL aims to be an important academic forum for research on international law, and to that end, a special feature is organised for each volume of the journal, with foreign scholars invited to contribute. Most of these invitations are accepted, for which the ILA’s Japan Branch is extremely grateful. As a result of these efforts and the journal’s provision on HeinOnline, the international recognition of the journal has increased. However, when JAIL was transformed into JYIL, it made an open call for papers, and the response was not particularly enthusiastic. So far, there have been 36 submissions in response to the open call, out of which one article, two notes, and two book reviews have been published. It has been over ten years since JAIL became JYIL, and at the moment, it seems necessary to continue enhancing the quality of the journal through measures including plans for attractive special features, inviting contributions from outstanding Japanese and foreign authors, and undertaking a rigorous editing process. JYIL is currently published in paper form and is available via HeinOnline for three years after publication. The possibility of direct online publication will also be investigated in the near future. Many challenges will need to be resolved for that to occur, and it will be necessary to examine such challenges in more detail in the coming years. Acknowledgements We are most grateful to Junichi Akiba (Professor Emeritus at the Hitotsubashi University), Kazuya Hirobe (Professor Emeritus at the Seikei University), Naoya Okuwaki (Professor Emeritus at the University of Tokyo), Tadashi Mori (Professor of the University of Tokyo), Dai Yokomizo (Professor of Nagoya University) and Sonoko Kawai (Assistant to the editor of JYIL) for giving very helpful comments and other assistance on this contribution. All errors are ours.

46 For example, The Legality of Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,

I.C.J Reports 1996, Dissenting Opinion of Judge Weeramantry, note 5. 47 For example: Mitsubishi Materials Corporation et al., Petitioners, v. The Superior Court of Orange County, Respondent; Frank H. Dillman et al., Real Parties in Interest., Court of Appeal, Fourth District, Division 3, California (2003), 130 Cal.Rptr.2d 734, footnote 19.

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References Akashi K (2013) Sakutaro Tachi: A Blend of Scholarship and Practitionership, and Its Fate in Japan. Japanese Yearbook of International Law 56:122–143 Asada M (1996) National Implementation of the Chemical Weapons Convention in Japan-Its Relevance and Irrelevance to the Tokyo Subway Incident-. Japanese Annual of International Law 39:19–54 Aust A (2009) The Comprehensive Nuclear-Test-Ban Treaty - Problem of Entry into Force. Japanese Yearbook of International Law 52:1–34 Biwata T (1970) The Restoration of the Ogasawara Islands to Japan. Japanese Annual of International Law 14:48–58 Brand AR, Fish T (2008) An American Perspective on the New Japanese Act on General Rules for Application of Laws. Japanese Yearbook of International Law 51:298–313 Carty A (2013) Thomas Baty: An International Lawyer as Public Intellectual between Imperial Japan and the Republic of China. Japanese Yearbook of International Law 56:70–94 Folks RA (1965) The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki. American Journal of International Law 59:759–793 Fox H (2019) The Restrictive Rule of State Immunity-The 1970s Enactment and Its Contemporary Status. In: Ruys T, Angelet N (eds) The Cambridge Handbook of Immunities and International Law. Cambridge University Press, 21–39 Francq S (2016) Party Autonomy and Regulation - Public Interests in Private International Law. Japanese Yearbook of International Law 59:251–299 Furuya S (2004) Implementing International Refugee Law through a National Legal System: Practice in Japan. Japanese Annual of International Law 47:1–33 Gray C (2009) The Use of Force to Prevent the Proliferation of Nuclear Weapons. Japanese Yearbook of International Law 52:101–126 Gross L (1967) International Law and Peace. Japanese Annual of International Law 11:1–14 Guilfoyle D (2010) Combating Piracy: Executive Measures on the High Seas. Japanese Yearbook of International Law 53:149–177 Hatano R (1964) Tokush¯u II kakkoku kokusaih¯o gakkai no gaikyo: kokusaih¯o ky¯okai —t¯oky¯o s¯okai o mukaeru ni atatte [Special feature II overview of the International Law Association in each country — on the occasion of the International Law Association Tokyo Biennial Conference]. S¯og¯o H¯oritsu [General Law] 7(2):27–28 Hirobe K (1993) Article 98 Paragraph 2 of the Constitution of Japan and International Effects of the Resolutions of the United Nation Security Council. Japanese Annual of International Law 36:17–32 Ikehara S, Yamada R, Sawaki T (1962) Post-war Studies in Private International Law in Japan. Japanese Annual of International Law 6:95–106 Ishimoto Y, Hirobe K (1987) Development of Post-War Japanese Studies in Public International Law: Part 1: 1945-1964. Japanese Annual of International Law 30:89–129 Ishimoto Y, Hirobe K (1988) Development of Post-War Japanese Studies in Public International Law: Part 2: 1965-1987. Japanese Annual of International Law 30:89–129 Iwasawa Y (1991) The Impact of International Human Rights Law on Japanese Law-The Third Reformation for Japanese Women. Japanese Annual of International Law 34:21–68 Jenks CW (1965) Freedom under Law in the World Community. Japanese Annual of International Law 9:1–9 Kanehara A (1999) The Japanese Legal System Concerning Innocent Passage of Foreign Vessels (1990-1998). Japanese Annual of International Law 42:90–110. Kato H (2000) Implementation of Multilateral Environmental Agreements in Japan through Domestic Environmental Legislation. Japanese Annual of International Law 43:117–149 Keyes M (2015) Party Autonomy in Dispute Resolution: Implied Choices and Waiver in the Context of Jurisdiction. Japanese Yearbook of International Law 58:223–246

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Kitazawa A (2013) Nobushige Hozumi and Saburo Yamada. Japanese Yearbook of International Law 56:181–195 Kodera S (1996) Implementation of the Convention on the Elimination of All Forms of Discrimination against Women within Japan. Japanese Annual of International Law 39:149–184 Mankowski P (2008) The New Japanese Private International Law Act from a European Perspective. Japanese Yearbook of International Law 51:241–297 Matsui Y (1994) Countermeasures in the International Legal Order. Japanese Annual of International Law 37:1–37 Michaels R (2016) Towards a Private International Law for Regulatory Conflicts? Japanese Yearbook of International Law 59:175–201 Morikawa K (2002) Japan’s Legal Responses to United Nations Security Council Resolutions. Japanese Annual of International Law 45:34–52 Nakayama N (1995) The Enforcement of the TRIPs Agreement in Japan. Japanese Annual of International Law 38:51–64 Oda S (1957) The Continental Shelf. Japanese Annual of International Law 1:15–37 Oda S (1965) Teaching and Research of International Law in Japan. Japanese Annual of International Law 9:85–100 Oda S (2008) On Launching the Japanese Yearbook of International Law. Japanese Yearbook of International Law 51:1–2 Oda S, Owada H (eds) (with the assistance of Hirobe K) (1982) The Practice of Japan in International Law 1961–1979. University of Tokyo Press, Tokyo Okuwaki N (2014) The Honorable Dr. Soji Yamamoto (1928–2013). Japanese Yearbook of International Law 57:2 Onuma Y (1986) Japanese International Law in the Prewar Period. Japanese Annual of International Law 29:23–47 Onuma Y (1990) Japanese International law in the Postwar Period. Japanese Annual of International Law 33:25–53 Orakhelashvili A (2012) Substantive Applicable Law, Consensual Judicial jurisdiction, and the Public Interest in International Litigation. Japanese Yearbook of International Law 55:31–76 Piché G, Saumier G (2018) Consumer Collective Redress in Canada. Japanese Yearbook of International Law 61:231–259 Sand PH (2011) Environmental Dispute Settlement and the Experience of the UN Compensation Commission. Japanese Yearbook of International Law 54:151–189 Simma B, Litwin D (2018) Book Review of International Law in a Transcivilizational World, by Onuma Yasuaki. Cambridge University Press, Cambridge, pp. xx, 711. Japanese Yearbook of International Law 61:351–357. Takano Y (1957) Japan and International Organization. Japanese Annual of International Law 1:38–42 Takano Y (1959) The Territorial Problems between Japan and the Soviet Union. Japanese Annual of International Law 3: 52–64 Takano Y (1962) Post-War Studies in Public International Law in Japan. Japanese Annual of International Law 6:79–94 Takano Y (1964) Conclusion and Validity of Treaties in Japan: Constitutional Requirements. Japanese Annual of International Law 8:9–23 Tanaka T (1995) Implementation of International Criminal Law - Reconsideration from the Perspective of Japanese Law. Japanese Annual of International Law 38:65–82 Taoka R (1958) Legal Status of Okinawa-Present and Future. Japanese Annual of International Law 2:98–103 Taoka R (1959) Japan and Optional Clause. Japanese Annual of International Law 3:1–11 Thirlway H (2012) Some Observations on Recent Trades in the Work of the International Court of Justice. Japanese Yearbook of International Law 55:4–30 Tsuruoka K (1995) The General Agreement on Trade in Services - Implementation by Japan. Japanese Annual of International Law 38:26–50

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Watt HM (2015) Party Autonomy in Global Context: The Political Economy of a Self-Constituting Regime. Japanese Yearbook of International Law 58:175–195 Wolfrum R (2008) The Settlement of Dispute Before the International Tribunal for the Law of the Sea-A Progressive Development of International Law or Relying on Traditional Mechanisms? Japanese Yearbook of International Law 51:140–163 Yakushiji K (2003) Domestic Implementation of Human Rights Conventions and Judicial Remedies. Japanese Annual of International Law 46:1–45 Yamamoto S (1965) Global Commercial Communications Satellite. Japanese Annual of International Law 9:46–56 Yamamoto J (1989) Current Treaty Systems to Combat International Terrorism. Japanese Annual of International Law 32:34–52 Yanai S (1993) Law concerning Cooperation for United Nations Peace-Keeping Operations and Other Operations-Japanese PKO Experience. Japanese Annual of International Law 36:33–75 Yokota K (1960) Renunciation of War in the New Japanese Constitution - As Interpreted by the Supreme Court in the Sunakawa Judgement. Japanese Annual of International Law 4:16–23

Chapter 19

Mexican Yearbook of International Law: A Concept for Researching, Disseminating, and Teaching International Law Manuel Becerra-Ramirez

Contents 19.1 19.2 19.3 19.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The History of the Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The MYIL’s Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Development of the Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.4.1 The Latin American Network of International Law Journals (RELAREDI) . . . . . 19.4.2 Selected Papers from the Mexican Yearbook of International Law . . . . . . . . . . . 19.5 The Function and Impact of the Yearbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.6 MYIL Gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.7 The Yearbook’s Adaptation to Technological Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.8 The Future of the MYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.9 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

228 229 230 233 234 234 235 236 236 237 237 237

Abstract In the two hundred years of the existence of the Mexican State, the Mexican Yearbook of International Law (MYIL) is the first publication of its kind. Created by the Institute of Legal Research of UNAM, it has been published since the year two thousand. It is the product of its international geopolitical historical environment, a response to the post-Cold War period at a time when the Mexican State was inserted into the phenomenon of globalization and in which there was in Mexico an increase in the value of international law. The MYIL was the starting point for the creation of a system of research, teaching and dissemination of international law not only in Mexico but also in Latin America. Indeed, since its first publication, a Latin American seminar of annual operation, as well as a network of journals on international law in the region, have been organized. The MYIL is published in English, French, Portuguese and, for the most part, in Spanish. Occasionally, articles from Mexican authors are translated into English in order to widen their dissemination. Manuel Becerra-Ramirez is the Director of the Mexican Yearbook of International Law. M. Becerra-Ramirez (B) Mexican Yearbook of International Law, Mexico City, Mexico e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_19

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Keywords Mexico and international law · Latin American international law · Mexican Yearbook of International Law

19.1 Introduction In 2010, the States that now compose the region of Latin America celebrated two hundred years of independence, after three centuries of colonization by Spain and Portugal. During these two hundred years of independent life, Latin American countries have suffered not only attempts at domination by some European powers and brutal onslaughts, such as the US war against Mexico (which resulted in the loss of half of their territory), but also conflicts with each other.1 The magnitude of these disputes has not been the same as that of certain European conflicts which, in a century, have triggered large-scale war phenomena such as World Wars I and II, and, even more, a bloody war that followed the disintegration of Yugoslavia. During this time, the Latin-Americans have created their institutions and their nationalities. Because of this, we can say that Latin America is composed of young States with great capacity for creation and with the potential to widely contribute to the history of humanity. The cultures that where formed after the emancipation of the European powers constitute today a hope for the emergence of a new civilization. Part of the legal doctrine states that there is a Latin American international law;2 that is, a system of rights that is created and practiced in the region. The more than twenty cases related to Latin America that have been settled by the International Court of Justice in recent years prove how important it is for states in the region to attach to international law¸ using it as a means of resolving their disputes.3 The latter can be exemplified by the creation of the Central American Court of Justice in 1907, which was the first international permanent court of the world. Hence the significance of publications on international law. It is certainly a way to strengthen both research and teaching on this subject. 1 During the 1970s and early 1980s, twentieth century “… military dictatorships, which applied the

“national security doctrines”, experienced territorial disputes reaching even wars, or at least pre-war situations. For example, Argentina and Chile, in the late 1978; Chile, Peru and Bolivia, between 1977 and 1979; Guatemala and the United Kingdom, in Belize, in 1972, and, as a culmination, the war adventure of the Argentine Military Junta in the South Atlantic, in 1982”. See: Cairo and Lois 2014, at 45–67. 2 In his Dissenting Opinion at the International Court of Justice in Colombian—Peruvian Asylum case, Judge Alvarez, stated: “This expression “American international law” has been accepted in various ways which need not be mentioned here. This expression does not mean, as may appear at first sight and as many would have us believe, an international law which is peculiar to the New World and entirely distinct from universal international law, but rather the complex of principles, conventions, customs, practices, institutions and doctrines which are peculiar to the Republics of the New World”; see Asylum (Colombia v. Peru), ICJ, Counter-claims, Judgment, 20 November 1950 (‘Asylum’). 3 It is recommended to see: Separate opinion of Judge Cançado Trindade, at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), ICJ, Preliminary Objections, Judgment, 24 September 2015 (‘Obligation to Negotiate’).

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19.2 The History of the Yearbook In Mexico, the oldest trace of a journal specialized in international law dates from the 1920s, a post-revolutionary era in which many of the cultural activities in the country flourished. Unfortunately, the only publication from back then was short-lived, since its creators only managed to publish one edition. During the Cold War, Mexico’s foreign policy founded itself on the principles of international law;4 such base, which characterized the policy itself, allowed it to navigate in the turbulent waters of the bipolar confrontation. One of its principles was indeed the “respect towards international law”. Despite its importance, international law was seen by the Mexican government only as formal, political rules that where scarcely binding and whose influence was limited to the regulation of relations between States and international organizations, rather than having a real impact on domestic law. Thus, for example, the Mexican State used to conclude international treaties that could narrowly give attention to compliance because they were not seen as interfering with domestic law.5 This jurisprudence discussion helped to revalue all the treaties concluded by Mexico, especially those dealing with human rights. Indeed, it was only from the 1990s onwards that international law started to reshape Mexico’s internal legal structure. Before this time, in the specific context of the Cold War, it had been mainly relevant on the inter-state level. We can thus appreciate two (internal and international) very different manifestations of the role that international law has played. Another important event that reconfigured the relevance of international law in Mexico is its acceptance of the jurisdiction of the Inter-American Court of Human Rights in 1998. For two specific reasons: first because the courts had to resort to the human rights treaties recognized by the treaties and then because the Inter-American Court of Human Rights began to issue judgments against Mexico for violation of human rights treaty law. Indeed, this factor both required and allowed the application of international human rights law, fundamentally of conventional nature, since customary rules were and still are viewed with distrust (like a marshy terrain).6 In this movement towards strengthening the system of protection of human rights, the Institute of Legal Research (ILR) of the National Autonomous University of Mexico (UNAM for its initials in Spanish) played a very important role. Firstly, Professor Héctor Fix-Zamudio was a relevant factor due to his work as former director of ILR as well as Judge and President of the Inter-American Court of Human Rights. In addition, he also influenced the creation of the Human Rights Commission in 1990, before Mexico had joined NAFTA. The ILR was created in 1940 in the National Autonomous University of Mexico by Spanish refugees. At the time of its foundation it was dedicated only to legal research. Indeed, the ILR was the first institute to professionalize legal research in 4 See:

Gómez-Robledo 2001. Becerra-Ramírez 2000. 6 See: Becerra-Ramírez 2012. 5 See:

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Mexico and, while ILR researchers were mostly specialists in constitutional law, there was a small group of researchers in international law. It is within this political framework that in 1999 the National Autonomous University of Mexico’s Institute of Legal Research accepted the publication of a Mexican Yearbook of International Law (MYIL/AMDI). The creation of a scientific publication on international law was carried out by Manuel Becerra-Ramírez,7 researcher at the ILR, and a small group of young lawyers trained in international law, most of them in European universities: Luis Benavides, Gabriela Rodríguez, Susana Hernández, Juan Manuel Portilla, Juan Carlos Velázquez. Why “Yearbook”? The project was originally a “Mexican Journal of International Law”, however, the Institute’s board considered that there were not enough experts in international law to write with such frequency on the subject. Thus, it was decided it would be better to start with something published on a yearly basis. It is also important to mention that because the MYIL is a publication funded by the National Autonomous University of Mexico’s ILR, it relies on a public institution. This gives it financial solvency and, from an academic point of view, great independence. That is, it does not follow the guidelines of the foreign ministry or any other state agency. Thanks to this support, in 2001 the first issue of the MYIL was published. To find out which were the concerns of Mexican academics at the time, we can review its first issue. Here we can appreciate four works on human rights and one on NAFTA; the former continues to be referred to. It is striking that, even at the beginning of the new century, it continues to be interesting to write about NAFTA, already six years old. In this first issue we can also find three articles on international treaties (the issue of treaties was very important at the time, especially for the courts); and two on the Inter-American Court of Human Rights as well as others on various topics.

19.3 The MYIL’s Structure The MYIL has a classical government structure of two collegiate bodies: an Editorial Board, composed of renowned jurists from various countries, and a Referee Council, with a Director. The Editorial Board is very important because in its annual meetings gives the general guidelines of the MYIL, in addition to knowing its development during

7 Manuel

Becerra-Ramirez is a lawyer specialized in public international law who was educated in international law at the Moscow State University, where he earned his PhD under the direction of Professor Grigory I. Tunkin. There, Professor Becerra-Ramirez understood the importance of periodicals on international law and the gap that existed in the country by not having a specialized publication. Especially at the time of the Mexico’s integration into globalization.

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the previous year. Prominent lawyers from both Mexico and abroad are part of the Editorial Board.8 In practice, the Director has a technical secretary9 who carries out the operational part of the MYIL, by receiving articles, submitting them to the referees,10 and, in general, keeping communication between the authors and the referees. This is a modest team, but the Institute of Legal Research has a structure of expert editors and publishers. Usually the Yearbook is divided into several sections, some are permanent others depends on what happens in the year: • Doctrine/Articles: those works that have a high level of research, in the opinion of the Referee Committee. • Comments/articles: these are works that by their level of inquiry, in the opinion of the Referee Committee, are more of a dissemination. • The International Mexican Practice: includes shorter papers that deal with a particular regulation, resolution, or any other aspect that has been recently relevant to the practice of international law carried out by the Mexican State authorities. • Publication reviews: it presents the main ideas, from a critical and analytical perspective, of a work published on the previous two years, by international jurists, regarding topics on international law. Its extension should be five pages maximum. • International conjuncture: brief, descriptive news about an important event for international law that occurred during the year. For example, issue 3 of the MYIL publishes a commentary on the dispute between Mexico and the United States over the breach of the Limits and Waters treaty concluded in 1944 between Mexico and the United States. • Controversy: several works with the same theme and with opposing views. For example, in issue 2006 the MYIL published works by Mexican and Spanish authors on “About the legality of the 2003 Iraq War”.

8 For

example, Jean Michel Arrighi (OAS), Luis Benavides (Mexico), Michael Byers (Canada), Carlos Bernal (Mexico), Vaughan Lowe (UK) Rein Mullerson (Estonia), Simon Chesterman (Australia), Beatriz Pallarés (Argentina), Loretta Ortíz (Mexico) Gabriela Rodríguez (Mexico), Elizabeth Salmon( Peru); Juan Carlos Velázquez (Mexico); Rodolfo Cruz Miramontes (Mexico), Ricardo Méndez-Silva (Mexico); Stefan Talmon (Germany) Yoram Dinstein (Israel), Kuen-chen Fu (China), Soledad Torrecuadrada (Spain), Andreas Paulus (Germany), Nuria González (Mexico), Luiz Quadros (Brazil), Tatiana Ribeiro (Brazil), Luis Peraza (Spain); Alberto Szekely (Mexico), José Luis Vallarta (Mexico), Jorge Witker (Mexico); Judge of The International Tribunal for the Law of the Sea Alonso Gómez-Robledo; Judge of the International Court of Justice, Antonio Cançado Trindade; members of the International Law Commission Georg Nolte and Juan Manuel Gómez Robledo; former judges of the International Court of Justice, Thomas Buergenthal, Bernado Sepúlveda and so on. 9 The technical secretaries are young students who have contributed a lot to the MYIL; in addition to managing the reception of articles, they contribute ideas of dissemination. In the history of the MYIL the names of the technical secretaries are: Leyda Castillo, Ingrid Berlanga, Zuily Zarate, Evelyn Tellez, Andrea Hernández, Evelyn Tellez, Xavier Ramírez, Mónica Núño, Raúl Eugenio. 10 The MYIL has a list of arbitrators performing their function on a pro bono basis. They are mostly academics from different universities, many of them being authors of the Yearbook´s papers.

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• Special section: in the latest volume of the Yearbook a special section about “Donald Trump and International Law” was created, given the profuse amount of papers submitted for publication regarding the different aspects of the U.S. foreign policy specifically carried out by President Donald Trump. • In Memoriam: This section includes comments about prestigious jurists who have passed away and whose legacy has been significant for international law. The articles of the Yearbook, related to both research and dissemination, are subject to a strict opinion, under the “peer review” rule. An important feature is that, since its inception, the publication of the MYIL has been both on paper and electronic. This has contributed to a broader dissemination. In addition, it is freely accessible, in accordance with the philosophy of a public university like UNAM.11 Of course, that does not mean that behind that “philosophy” lies a particular political agenda or approach to international law that is manifested in the substance and direction of the yearbook. Substantively, the MYIL tries to participate in the theoretical discussion and in the dissemination of the thoughts of experts in international law of Mexico and Latin America, about global, regional, or domestic aspects. Although the original purpose of the Yearbook was to offer a space to Latin American jurists to express their views, currently there are more experts worldwide that have shown interest in publishing their articles in the Yearbook, which makes it better known and contributes significantly to its enrichment, dissemination, prestige, and enhancement. The Yearbook is open to all trends and languages (Spanish, English, French and Portuguese); the limits are given by the peer review. However, it has achieved some popularity in Latin America because every volume is followed by the Seminar of the Mexican Yearbook of International Law (SAMDI), which is attended mainly by young internationalist jurists from Latin America. The SAMDI in recent years has been itinerant. The last one was held in 2019 at the University of Trujillo in Peru. The next one was planned to take place this year, 2020, in Mendoza, Argentina. The Seminar has become a forum for discussion on relevant topics of international law. But there is no ideological or theoretical line to follow. The only common denominator is that academic participants are Latin Americans with different backgrounds. The results of the seminars are not necessarily published in the MYI. However, projects sometimes might emerge from the discussions and might be carried out separately afterwards. For example, the idea of a publication titled “The Cases of Latin America before the ICJ”, emerged from one of the seminars. On the other hand, the need to have a scientific publication on international law in Mexico was very evident. It is currently the only publication in Mexico that specializes in international law. In fact, the outlook in Latin America is quite meagre, if we take into consideration that the whole region only has approximately 23 journals on this subject, compared to the 20 that are published only in the United States. One of the fundamental objectives of the MYIL (set by the Editorial Board that meets annually) is to strengthen the Latin American doctrine of international law. 11 Article

3 of the Mexican Constitution states: “All education provided by the State shall be free”.

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There is a strong stream of legal thinking that asserts that the region is governed by its own rules.12 The region has institutions that have contributed to the progressive development of international law and to the principles of international law, such as peaceful dispute resolution, intervention in domestic affairs of States, as well as original rules governing the region, such as diplomatic asylum or conventionality control, and many more. The MYIL aims at becoming a platform of development and strengthening of Latin American law. In that sense, it can be said that the MYIL has been “latin-americanized”, bearing in mind the nationalities of its authors, who are mostly from Latin America. In the first volume, 14 out of the 16 authors were Mexican. The other two were Spanish. Comparatively, in the 19th volume, eight out of the 23 authors were Brazilians, five Mexicans, four Spanish, three Chileans, two Argentines, and one Colombian. In the 20th volume, 12 out of 25 articles were written by Mexicans, five by Spanish, two by Argentines, two by Colombians, one by a Bulgarian, one by a Venezuelan, and one by a Brazilian. It is important to mention that the MYIL has no ideological bias in its selection of articles. The filter is provided by the referees, in the peer review. The MYIL appoints the arbitrators who are selected according to their field of expertise and their selection is quite rigorous. For example, for the last issue of the MYIL, 28 out of 98 submitted papers were accepted for publication. It means a large percentage of declined articles.

19.4 The Development of the Yearbook From the beginning, the MYIL was conceived not as a publication of articles on international law, but as a project with three axes: research, dissemination, and training of students in international law, which converge with the objectives of the Institute of Legal Research, as part of the National Autonomous University of Mexico: research, teaching and dissemination. The Institute has no students, reason thus the MYIL seminar (SAMDI) was created to outreach students and experts in international law who wish to expand their knowledge and networking with other students interested in the same topics. The Seminar is organized on a yearly basis. Originally, the participants were only young Mexican experts and students interested in international law, but nine years ago it started becoming internationalized, with the participation especially of participants from other Latin American countries that meet to discuss their research papers. Currently, nine seminars have been held. The SAMDI has opened the possibilities of other related research projects, which will be mentioned next.

12 See:

Abello-Galvis and Arevalo-Ramírez 2018; Arrighi 2015.

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19.4.1 The Latin American Network of International Law Journals (RELAREDI) One of the projects that has emerged in parallel is the Latin American Network of International Law Journals (RELAREDI), founded on 26 November 2015, in Bogota, Colombia. It has held meetings in Lima, Peru (2016), Queretaro, Mexico (2017), Cordoba, Argentina (2018), and Trujillo, Peru (2019). The Network meets on a yearly basis to discuss common policies of international law publications, simultaneously to the seminars. The objectives of RELAREDI are: • Sharing a common list of journals referees and peers of the RELAREDI offering their expertise to its members, with prior authorization; • Setting guidelines for the dissemination of publications, the period of reception of articles, the rules of publication, and the promotion of common efforts among its members; • Consolidating an increasing list of participating publications; • Coordinating the events of the Network, the next one to take place in Argentina 2020; • Disseminating the doctrine of Latin American international law among the academy,13 as well as sharing and transmitting it to the students. Rescuing the Latin American vision of International Law. • Self-criticizing and recognizing the quality of the doctrine of International Law from Latin America. • Cooperation between members, partners and their respective institutions. RELAREDI still has a great growth potential because of its current embryonic stage. At this moment, common policies and cooperation systems have not been established yet, so the real potential of the Network has not been fully explored.

19.4.2 Selected Papers from the Mexican Yearbook of International Law Since the beginning, the MYIL Editorial Board discussed the possibility of being published in English given the undeniable truth that contemporary science takes English as a universal language. However, the idea that the publication was made in Spanish prevailed for two important reasons. First, the cost of the translation or the handling of the English-language publication would be too high and unaffordable for the Institute of Legal Research; secondly, the publication in English of papers written by Spanish-speaking authors was seen as a setback to the Spanish language spoken by 13 The literature on Latin American international law is very broad, see, for example, the following: Alvarez 1909, at 269–353; Cançado-Trindade 2014, at 525; García-Amador 1974, at 33–50; Kohen 2001, at 64; Becerra-Ramirez 2016; Obregón 2012, 1–15.

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millions of people in the world, being Mexico the largest Spanish-speaking country in the world. For this reason, the MYIL decided to make a selection of outstanding works, originally published in Spanish, and to translate them into English to provide them with greater visibility. However, the practicality of using English for writing science cannot be underestimated. It is important to mention that some of the works written in English published in the MYIL have been already cited in the jurisprudence of the International Court of Justice.14 The selection criteria were set by the Editorial Board. Mexican nationality and the level of consultations that they had in the network were some of the elements taken into account. This was seen as an additional incentive to authors who performed well and who are looking to promote their work among readers. With the Selected Papers from the Mexican Yearbook of International Law the MYIL intended to make available to the non-Spanish speaking audience those papers by Mexican jurists that had already been published in the Yearbook. These documents concerned two issues of great importance, such as the law of the sea and international humanitarian law, written by recognized experts on these topics (Alonso Gómez Robledo, Susana Hernández Pacheco, Mario Limón González, Luis Benavides, and David Henríquez). Their papers were selected because they are very well-known among Spanish-speaking readers, and their knowledge is worth being disseminated among English-speaking readers, jurists, or experts in international relations. There is a very feasible chance that the next MYIL publication will be the cornerstone for other volumes of the Selected Papers from the Mexican Yearbook of International Law.

19.5 The Function and Impact of the Yearbook Undoubtedly, the AMDI has had a significant impact on the academy. In Mexico, it has become an important reference in research and has had a definite impact on the formation and dissemination of international law. An important fact to mention that supports this idea is that the MYIL has been ranked three in the list of SJR Q3. At the academic level, it is included the Index of Excellency Journals of the National Council of Science and Technology (CONACYT), which is a Mexican governmental agency.

14 See:

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo vs Belgium), ICJ, Joint separate opinion of judges Higgins, Kooijmans and Buergenthal, 14 February 2002 (‘Arrest Warrant’), para 44; where Luis Benavides (see Benavides 2001) is quoted.

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19.6 MYIL Gaps The MYIL is open to academics, diplomats, and practitioners of international law, Yet, its impact on public policies is still limited. Public officers in the Ministry of Foreign Affairs, Ministry of Environment, or the Supreme Court of Justice, do not view the Yearbook as a tool or even a reference to the execution of their policies. It would be a positive way forward if Mexican decision-makers, policy-executors, and lawyers used the MYIL as a tool for their work and capacity-building structures. Thus, it remains a challenge to continue promoting this publication and to gradually consider the implementation of its contents at all levels of domestic and international affairs. In its twenty years of existence, the MYIL has been able to create a network of young Latin American internationalists. However, the big problem is that the spaces for international practice of these Latin American youth are limited if they are not connected with international centres of European or American universities. It would be very positive if in the future young people could have the possibility to study international law at the Universities of Buenos Aires, Bogota or Mexico City, or any other capital of a Latin American country, and will then gain enough skills and knowledge to litigate in regional and international courts.

19.7 The Yearbook’s Adaptation to Technological Change The technological changes reflected in the level, amount, and speed of the dissemination of information worldwide, converged with the Yearbook’s aim to increase its outreach capacity and scope of readers. This motivated the emergence of an electronic version of the Yearbook on 2007 downloadable in a pdf format at no cost. This positive shift has increased significantly the accessibility of the Yearbook by people from all over the world, not only Spanish, but also English-speakers, as some of the articles are written in this language. The yearbook can be accessed via the following link, as part of the publications of the Institute of Legal Research: https://revistas.juridicas.unam.mx/index.php/derecho-internacional Moreover, the MYIL also has its Facebook page (Anuario Mexicano de Derecho Internacional). On this platform, the events organized around the MYIL, articles, seminars, roundtables and workshops are published and commented by a considerable number of scholars and students. The Yearbook also has a twitter account amdi_iij created in 2011. As a result of the Yearbook, as mentioned above the RELAREDI has its Facebook page, on which jurists from all over Latin America publish their articles, events, conferences, and other relevant aspects of Latin American international law.

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The Yearbook has been adapting to the needs and challenges of the technological revolution and has embraced it as a window of opportunity for improvement, outreach, and pluralization of knowledge in international law.

19.8 The Future of the MYIL Now we are planning the “continuing publication”. Which means the publication on Internet of works immediately after positive review. It is also something that has been put on the table. On the other hand, the strengthening of dissemination and training in international law will be promoted. Prospectively, the goal is that in five years, the MYIL will reach level SJR Q1.

19.9 Conclusions In the 20 years of the MYIL’s life, it has undoubtedly helped strengthen research and teaching in international law in Mexico. In addition, it has become one of the leading publications in Latin America as well as an important factor in the training of young lawyers, due to MYIL-based seminars organized in different Latin American countries. The creation of RELAREDI has also been an important factor for the reinforcement of Latin American publications on international law. Because the MYIL is economically independent, it maintains some degree of independence which allows it to criticize state decisions that are not in conformity with international law. During these 20 years of the MYIL’s existence, it has addressed the great issues of Latin America, as well as issues that have impacted international relations (as an example, see Donald Trump Special Section and International Law). We are currently elevating scientific rigor in the works we publish and thus trying to make the MYIL a reference publication in the world. Something which seems very difficult, given the predominance of English in contemporary science. Acknowledgements We appreciate the feedback from Ingrid Berlanga, Xavier Ramírez, Mariana Becerra-Núñez and Monica Nuño.

References Abello-Galvis R, Arevalo-Ramírez W (2018) The influence of the Latin American doctrine on International Law. The rise of Latin American doctrines at the Hague Academy during the early

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twentieth century. In: Wojcikiewicz P, Sorel J (eds) Latin America and the International Court of Justice. Contributions to international law. Routledge, London and New York, 15-27. Alvarez A (1909) Latin America and International Law. American Journal of International Law 3(2):269–353. Arrighi JM (2015) La OEA y el derecho internacional. Porrúa, Mexico. Becerra-Ramírez M (2000) Tratados internacionales se ubican jerárquicamente por encima de las leyes y en un segundo plano respecto de la Constitución Federal (amparo en Revisión 1475/98). Cuestiones Constitucionales 3:169–177. Becerra-Ramírez M (2012) La recepción del derecho internacional en el derecho interno, 2nd edn. UNAM-IIJ, Mexico. Becerra-Ramirez M (2016) La Corte Interamericana de Derechos Humanos a veinticinco años de su funcionamiento. IIJ-UNAM, Mexico. Benavides L (2001) The Universal Jurisdiction Principle: Nature and Scope. Anuario Mexicano de Derecho Internacional 1:20–96. Cairo H, Lois M (2014) Geografía política de las disputas de fronteras: cambios y continuidades en los discursos geopolíticos en América Latina (1990-2013). Cuadernos de Geografía: Revista Colombiana de Geografía 23(2):45–67. Cançado-Trindade A (2014) The Construction of a Humanized International Law: A Collection of Individual Opinions (1991-2013). Brill-Nijhoff, Leiden. García Amador F (1974) The Latin American Contribution to the Development of the Law of the Sea. American Journal of International Law 68(1):33–50. Gómez-Robledo VA (2001) La política exterior mexicana: sus principios fundamentales, Anuario Mexicano de Derecho Internacional, Vol. 1. Kohen M (2001) La contribución de América Latina al desarrollo progresivo del Derecho Internacional en materia territorial. Anuario Español de Derecho Internacional 17:57–78. Obregón L (2012) Regionalism Constructed: A Short History of Latin American International Law. European Society of International Law Conference Paper Series 5:1–15.

Chapter 20

‘There Was an Idealism that This Information is Useful’—The Origins and Evolution of the Netherlands Yearbook of International Law Otto Spijkers and Dimitri Van Den Meerssche

Contents 20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.2 ‘There Was a Desire to Create Something New’—The Origins of the Yearbook . . . . . . 20.2.1 The ‘Young Turks’—Building a Cosmopolitan Collective . . . . . . . . . . . . . . . . . . 20.2.2 ‘A Whole Philosophy that Has Gotten Lost’—The Idealism of Systematisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.3 Managerial Change and Existential Hesitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter gives an account of the Netherlands Yearbook of International Law’s history and the evolving aspirations that were projected on this collective project. The analysis aims to connect this history with ideals and images of international legal order emanating elsewhere. This narration of and critical reflection on the life of the Yearbook unfolds in two parts. The first part explores the inception of the NYIL and its original agenda. The second part traces the evolution of the NYIL as a story of administrative, technological and institutional change. It maps the continuous change in the politics of the medium and its quest for a raison d’être.

Otto Spijkers is Member of the Editorial Board of the Netherlands Yearbook of International Law, and Professor of Public International Law at the China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University. Dimitri Van Den Meerssche is Postdoctoral Researcher at the T.M.C. Asser Institute and Managing Editor of the Netherlands Yearbook of International Law. O. Spijkers (B) China Institute of Boundary and Ocean Studies (CIBOS), Wuhan University, Wuhan, China e-mail: [email protected] D. Van Den Meerssche T.M.C. Asser Institute, The Hague, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_20

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Keywords International law · professional practice · cosmopolitanism · cultural technique

20.1 Introduction It is not only in plenary halls of global politics, sites of international adjudication or corridors of diplomacy that international law’s fabric is woven together.1 International law is as much about ‘what international lawyers do and think’:2 about the professional routines, shared social conventions and bureaucratic practices that tie these lawyers together in collective projects and common images of the world and their place in it.3 In this chapter, we focus on the Netherlands Yearbook of International Law (‘NYIL’ or ‘Yearbook’) as a collective project of precisely this kind. In retelling the story of how and why the NYIL was originally conceived, how the project evolved and what was gained or lost throughout this evolution, this chapter opens up to a range of questions: who were the individuals creating and leading the Yearbook and what were their aspirations? How was the project institutionally embedded and on which administrative forms or arrangements did it hinge? Which ideals of international law’s progressive development did it envisage and promote? Who exercised control over this particular medium and how did they manage controversies on the Yearbook’s substantive direction? Addressing these questions has a dual purpose. On the one hand, drawing on interviews with (most of) the general editors of the Yearbook,4 we give an account of the Yearbook’s history and the evolving aspirations that were projected on this collective project. On the other hand, we aim to connect this history with ideals and images of international legal order emanating elsewhere. This exercise in narration and critical reflection unfolds in two sections. Section 20.2 focuses on the inception of the NYIL and its original agenda. Section 20.3 traces the evolution of the NYIL as a story of administrative, technological and institutional change. It maps the continuous quest for a raison d’être.

1 On

international law’s ‘backstage’ in general, see Boer and Stolk 2019. is famously stated, of course, in Koskenniemi 2001, 7. See also Werner et al 2017. 3 On this routinized ‘politics of form’, see Haskell in Chap. 3 in the present Volume. Haskell also refers to this as international law’s ‘disciplinary unconsciousness’. His argument aligns with Megret’s work on the ‘social grammar’ of international law. See Megret 2017, 267ff. 4 Dimitri Van Den Meerssche interviewed Bert Barnhoorn, Willem van Genugten, André Nollkaemper and Niels Blokker; Otto Spijkers interviewed Ko Swan Sik, Ige Dekker, Harry Post, Ellen Hey and Malgosia Fitzmaurice. 2 This

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20.2 ‘There Was a Desire to Create Something New’5 —The Origins of the Yearbook Instigated by the Dutch commission on international law (commissie volkenrecht), the Yearbook was launched in 1970 under the umbrella of the T.M.C. Asser Institute. As noted by one of the founding editorial members, the aim of the NYIL was ‘not to tread traditional paths’: ‘there was really a progressive idea behind this … a desire to create something new with the generation of young lawyers who were pursuing their doctorate at that point’.6 In this section, this ‘progressive idea’ is explored along two different lines. First, we situate the creation of the NYIL in the broader landscape of international legal academia in the Netherlands during this time. This provides an insight into the community the Yearbook sought to foster and the tradition of legal scholarship it sought to counteract (Sect. 20.2.1). Secondly, our analysis turns to the specific mode in which the founding editors of the NYIL aimed to further the ‘progressive development of international law’: the organisational template and technique of systematisation of the Dutch practice in the field of public international law (Sect. 20.2.2).

20.2.1 The ‘Young Turks’—Building a Cosmopolitan Collective ‘The Young Turks—that is the expression we used to refer to the early days’, a former general editor somewhat epically reminisces about the Yearbook’s genesis.7 In the multiple interviews conducted, these founding members of the Yearbook are described as ‘pioneers’, ‘idealists’ and ‘progressives’ seeking to counteract established publication platforms in the Netherlands (the Netherlands International Law Review in particular). To a large extent, this was a generational as much as a substantive rupture: in the recollection of a founding member, the creation of the Yearbook was driven by the enthusiasm and voluntarism of ‘young men who want to work together’.8 When the editorial board was expanded to include members from across the Netherlands, the ambition—one interviewee claimed—was to avoid the ‘old goats’ (who already managed the established Netherlands International Law Review) and give a platform to the ‘young guard’.9 5 Interview

with former general editor, September 2019 (translated from Dutch by author).

6 Ibid. 7 Interview

with former general editor, November 2019 (translated from Dutch by author). with former general editor, September 2019 (translated from Dutch by author). The clearly gendered dimension of the quote also gives us an image of the broader features of sociological differentiation and status displayed by the creation of the Yearbook. 9 Ibid., Indeed, there is a remarkable age gap between the original editorial board of the NYIL and the editorial board of the NILR at that point. 8 Interview

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This (demographic, generational) composition of the board was reflected also in the substantive orientation of the Yearbook in its early years and in its choice of contributions. Modelled according to the design of the British Yearbook of International Law, the NYIL was divided in two sections: a section aimed at ‘thorough and heavy’ contributions and a section aimed at systematising the Dutch state practice in international law (on which the next section touches).10 In the first substantive section, the aim, as described by a former general editor of the Yearbook, was animated clearly by a ‘progressive ideal’: ‘if possible, we would always privilege pieces on lex ferenda over lex lata’.11 Indeed, when consulting the early volumes of the NYIL, this orientation is remarkable. These contributions (written predominantly by Dutch men) questioned for instance the ‘status of consent’ in international law,12 called for a limitation of state sovereignty for the purpose of lasting peace,13 and developed a progressive legal agenda against pollution or environmental degradation.14 It was a distinctly liberal and cosmopolitan vision that animated the substantive direction of the Yearbook in its early years—a vision oriented towards expanding and thickening the normative net of international law. Underlying this cosmopolitan vision was the premise, as articulated in the editorial of the first volume, that the world witnessed a ‘growing interdependence of states’, which would inevitably enhance the salience and social need for international law: ‘more and more rules of international law apply, not only to the actions of State representatives but also to the daily life of the citizen’.15 It was on the waves of Friedmann’s liberal international legal imaginary that the ‘young guard’ of the NYIL set sail.16 The substantive section had a preference for lengthy, academic, more contemplative and reflective pieces, as opposed to commentary on recent developments.17 It provided a publishing platform to young and emerging scholars in the Netherlands. This was referred to by one of the interviewees as the ‘egalitarian function’ of the Yearbook.18 In the early days, excellent students were invited by the editorial board to publish a revised version of their thesis. Youngsters—such as Johan Lammers,19 Fred

10 Ibid. 11 Ibid. 12 Tammes

1971. 1973 (‘The price of lasting peace will inter alia be interference with unlimited national sovereignty, restriction of the individual country’s freedom of decision in matters concerning armaments, economic structure, ideology and culture, environmental protection and national law’). 14 See, inter alia, Lammers 1974. 15 The Editors 1970. Interestingly, this particular theme (the place of citizens in international law) would be taken up in various pieces in subsequent years. See, inter alia, Riphagen 1975. 16 We are referring to Friedmann’s observation in 1964 that international had shifted (or should be shifting) from a ‘law of coexistence’ to a ‘law of cooperation’. See Friedmann 1964. 17 Interview with former general editor, September 2019 (translated from Dutch by author). 18 Interview with former general editor, November 2019. 19 Lammers 1974. Lammers defended his doctoral dissertation at Leiden University in 1984. 13 Röling

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Soons,20 and Harry Post21 —were given the opportunity to publish a contribution and thereby make a name for themselves. These contributions were subjected to a lengthy and rigorous peer review, which took almost a year, with papers going back-and-forth between author and editorial board up to four times. The “participatory role” of the author in this lengthy peer review process distinguished the Yearbook from ordinary reviews, and, added one of the foreign editors we interviewed, also made it typically Dutch.22 The discussions took place in a “collegial and friendly atmosphere”, and often went astray, in the sense that the paper under review was hardly mentioned anymore, and instead the paper’s theme became the focus of the board’s attention.23 Many interviewees have very fond memories of these discussions, taking place at the Asser Institute, bringing together the international law professors from all the universities in the Netherlands. Interviewees referred to these discussions as a wonderful example of the interuniversity characteristic of the Yearbook and Institute. Indeed, institutionally, the initiative was intimately intertwined with the creation of the Asser Institute (in 1965), which would house the Yearbook and provide the necessary editorial, administrative and financial support. The founder and former director of the Asser Institute, Bert Voskuil, fully supported the initiative. Back then, one interviewee noted, the Asser Institute had a ‘truly inter-university character’, bringing together international law scholars from all the universities in the Netherlands. As the introduction to the first volume notes: During the preparatory phase of the first volume of the Yearbook new developments took place in the Dutch world of international legal learning. Within the inter-university context of the [Asser] Institute under whose auspices the Yearbook is published, agreement was reached to expand membership of the board of editors so as to reflect more truly the idea of interuniversity co-operation in the Netherlands in the field of international law.24

Counting editorial members from the Universities of Utrecht, Leiden, Tilburg, Nijmegen, Amsterdam, Rotterdam, Twente, Maastricht and the Asser Institute itself, one interviewee observed, the Yearbook performed a crucial ‘constitutive function’ in forming the ‘field’ of international law in the Netherlands.25 In line with this 20 Peters, Soons and Zima 1984. Fred Soons obtained a Ph.D.-degree at Utrecht University in 1982. 21 Post 1976. In 1987, he defended his doctoral dissertation at Queen’s University in Canada. He later joined the editorial board of the NYIL. He told us in the interview that his contribution to the NYIL was the beginning of his lifelong career as scholar of international law. 22 Interview with former general editor, November 2019. 23 Idem. 24 The Editors 1970. 25 Interview with former general editor, August 2019 (translated from Dutch by author). In the sense that this field was shaped by a shared professional habitus and served as a terrain of struggle for (symbolic) authority and status, this story could also be read through the prism of Bourdieusan sociology. Remarkable, in this sense, is how the Yearbook served as a key instrument for the redistribution and renegotiation of symbolic capital between different generations of scholars and media of authoritative discourse. As one interviewee states: ‘there was always a certain hierarchical aspect to the Yearbook. It definitely had an elitist character. Then more than now. If someone became professor of international law, he [once more the gendered aspect] could use the Yearbook as a forum to express what international law in the Netherlands is about’. This resonates with Bourdieu’s observations. Cf. Bourdieu 1987.

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‘constitutive dimension’, another interviewee noted, the Yearbook ‘brought the world together … This was perhaps the most important thing’.26 ‘It forced us’, a former editor summarizes, ‘to oversee the field and evaluate what we had in common’.27 The Yearbook, these interviews indicate, functioned as an essential focal point—‘a centre of coordination’28 —in the emergence of a Dutch international law community. Those present in these early years refer to the NYIL not as only one of many publication fora but as the enactment of a common ‘project’ or even ‘culture’—animated by the recurrently rehearsed founding story of the ‘Young Turks’.29

20.2.2 ‘A Whole Philosophy that Has Gotten Lost’—The Idealism of Systematisation In the previous section, we have explored how the Yearbook—embedded as an interuniversity initiative—privileged a particular (liberal, teleological) ideal of international law and figured as important focal point for a new generation of international lawyers in the Netherlands. While that analysis has revealed a number of salient sociological features and substantive orientations at the heart of the initiative, the most important function of the Yearbook—as expressed by the general editors—is still missing from this picture. This function, on which this section focuses, was grounded in what one interviewee described as an ‘implicit idealism’: a belief that detailed information on national practice would enhance international law’s progressive development.30 In this sense, as described in the introduction to the inaugural volume, one of the main purposes of the Yearbook was to make Dutch legal materials related to international law available to the wider world. ‘Our idea was really to bring Dutch practice across the border’, one of the Yearbook’s founding members stated.31 This was expressed in the Yearbook’s ‘documentation section’ in which Dutch international legal materials—obtained from the Government, Ministry of Foreign Affairs and local courts—were classified, translated and made accessible.32 26 Interview 27 Interview

with former general editor, September 2019 (translated from Dutch by author). with former general editor, August 2019 (translated from Dutch by author).

28 Ibid. 29 One

interviewee, who became associated with the Yearbook decades after its creation stated: ‘when I arrived at the NYIL it had already existed for a long time—I do not consider myself an editor of the early days. I noticed that many people spoke about that beginning with nostalgia. A project of people who had something in common and wanted to shape it’. Interview with former general editor, October 2019 (translated from Dutch by author); Interview with former general editor, September 2019 (translated from Dutch by author). 30 Interview with former general editor, August 2019 (translated from Dutch by author). 31 Interview with former general editor, September 2019 (translated from Dutch by author). 32 The Editors 1970 (‘the editors expect to publish each year the Netherlands practice formulated during the previous year as selected and digested by the public international law department of the T.M.C. Asser Institute’). To find relevant case law, the staff of Asser maintained close contacts

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Testifying to the importance of this section for the identity of the Yearbook is the following description on the website of Cambridge University Press (which was the Yearbook’s publishing partner from 2010–201433 ): The Documentation section of the NYIL contains an extensive review of Dutch state practice from the parliamentary year prior to publication, an account of developments relating to treaties and other international agreements to which the Netherlands is a party, summaries of Netherlands judicial decisions involving questions of public international law (many of which are not published elsewhere), lists of Dutch publications in the field and extracts from relevant municipal legislation.

This aim of the Yearbook was explicitly connected to recommendations and resolutions adopted by international bodies. The inaugural issue refers to the UN secretariat’s recommendation to prepare ‘digests of materials illustrating the national point of view in questions of international law’ and publish the ‘decisions of national courts dealing with international problems’.34 In the context of Europe, the volume refers to the recommendation by the Council of Ministers of the Council of Europe to publish ‘digests of national practice in the field of international law’.35 Ko Swan Sik, the first general editor of the NYIL who played a crucial role in its establishment, explained that a key motivation behind the initiative was a resolution, adopted by the Council of Europe in 1968 containing a Model Plan for The Classification of Documents Concerning State Practice in The Field of Public International Law.36 In the resolution, the Council, … referring to Article 24 of the Statute of the International Law Commission, in which the collection and publication of documents concerning state practice in questions of international law is mentioned as one means of making the evidence of customary international law more readily available, expresses the hope that the appended model plan may be used by member states of the international community as a basis for preparing digests of their national practice and as a system for the future classification of documents concerning such practice.

This Model Plan was studied by the Asser Institute and adjusted to the needs and particularities of the Netherlands. It was to become the skeleton of the ‘documentation section’ of the NYIL, which differentiated it—besides the highly academic contributions—from the Netherlands Review of International Law and other existing journals. Sik explained why he was so keen to establish the Yearbook: the way people with the local courts. The courts sent judgments with relevance for international law directly to the editors of the Yearbook. 33 The Netherlands Yearbook of International Law was first published by A. W. Sijthoff in Leiden, followed by Martinus Nijhoff Publishers. When T.M.C. Asser Press was established (in 1999), it became the Yearbook’s publisher. From 2010–2014, T.M.C. Asser Press and Cambridge University Press were involved in a publishing partnership; and in 2015, Springer took over the role of partner. 34 Ibid. 35 Ibid. 36 Model Plan for The Classification of Documents Concerning State Practice in The Field of Public International Law, annexed to Resolution (68) 17, adopted by the Committee of Ministers of the Council of Europe on 28 June 1968.

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wrote about international law in the existing journals at that time was too theoretical, he felt, and too much coloured by personal preferences. In a remarkable contrast to the substantive (contributions) section of the Yearbook, which leaned towards aspirational scholarship, Sik believed that the documentation section at the heart of the NYIL was to remain neutral. What the NYIL had to do, he felt, was focus on facts: show what the State of the Netherlands actually did and what the Government said it did and produce documents without scholarly comments. That was, in his view, the only way one could accurately reflect State practice. Not all interviewees agreed with this policy of neutrality. According to one general editor, it was regrettable that no context or critical comments were provided, because it was difficult for foreign scholars and practitioners to appreciate excerpts of (translated) documents in splendid isolation. Reproducing only such snippets without context was like serving only “half of the story”.37 The Documentation Section was the responsibility of the staff of the Asser Institute and for many years was coordinated by Bert Barnhoorn. The Yearbook editors only made sure there were no “major omissions”, which was seldom the case. “In the eight years that I was on the editorial board”, noted one interviewee, “we never found reason to request the Asser staff to revisit (parts of) their Documentation Section”.38 Most documents reflecting Dutch state practice were only available in Dutch, and that was “a serious handicap” for foreign scholars. And thus, a translation into English was fundamental.39 This translation was originally provided by the staff of the Asser Institute, and later on by external translators and revisors. Pursuant to the policy of neutrality, the staff of Asser was instructed to restrict themselves to making primary documents available, without comment. ‘Otherwise’, said Sik, ‘what are we actually talking about when we talk about international law? Aren’t we just sharing beautiful stories about how we like the world to be?’ According to Sik, the essence of the Yearbook was not the ambition of substantive agenda-setting but an exercise in ‘neutral’ reproduction, classification and representation. The underlying idea was that through the NYIL, Dutch state practice or opinio juris could be induced, which would not only cater to a wide audience of legal scholars and practitioners (for whom this information was not otherwise available) but also respond to the calls by the UN secretariat and the Council of Europe referred to above. ‘In this way’, the inaugural volume noted, ‘the Yearbook assumes a decidedly national character’.40 While the NYIL was not specifically established to provide judges of the International Court of Justice and members of the International Law Commission or Institut de Droit International with evidence to identify Dutch customary international law, those institutions may very well have used the Yearbook for this purpose.

37 Interview 38 Interview

with former general editor, November 2019. with former general editor, September 2019 (translated from Dutch by author).

39 Idem. 40 The

Editors 1970.

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Beyond these immediate practical purposes, there was also a set of ideals and commitments to international law’s progressive development immanent in these efforts of systematisation. ‘Our idea’, one former editor stated, ‘was to organise international law in a specific way that could then also be adopted by others’.41 The motivation behind this ‘scientific’ systematisation went beyond the immediate instrumental use of information by third parties. ‘There was an idealism to this exercise’, another interviewee noted, ‘that was more fundamental’: an ‘idealism that in the progressive development of international law, the systematic availability of information about what states do has something of a unifying, integrating effect—there was a whole philosophy behind this that has gotten lost’.42 Systematisation does not appear here as a passive mode of repetition but as an active intervention in the development of international law. An intervention shaped and mediated by templates of ordering. For decades, Fig. 20.1 (which shows only the first title page in a classification scheme of almost twenty pages) was included in the NYIL as a ‘sort of advertisement idea for our model of systematisation’.43 The driving ambition behind this was the emergence of ‘shared knowledge’ and substantive ‘convergence’ facilitated by particular textual techniques of classifying, ranking and representing.44 There was also a section called “Dutch literature”, consisting of a long list of publications on international law, written by scholars employed at any of the Universities in the Netherlands. The idea was to provide foreign scholars and practitioners with a comprehensive overview of the “teachings of the most highly qualified publicists” of the Netherlands—a reference to Article 38 of the Statute of International Court of Justice, which refers to such teachings as “subsidiary means for the determination of rules of law”.45 An additional purpose of this list was to promote Dutch scholarship abroad. When the Documentation Section was removed from the Yearbook itself, the editorial board briefly experimented with a web-based version (www.asser.nl/ nyil/documentation). Between 2011 and 2015, a “bibliographic survey” was offered, consisting of a list of Dutch Literature in the Fields of Public and Private International Law, European Community Law and Related Matters, prepared annually by employees of the Peace Palace Library. Before the internet, these Dutch publications were hard to find; but today, such a list no longer serves any purpose. Its disappearance from the Yearbook was thus generally considered not to be a “terribly big loss”.46

41 Interview

with former general editor, September 2019 (translated from Dutch by author). with former general editor, August 2019 (translated from Dutch by author). 43 Interview with former general editor, September 2019 (translated from Dutch by author). 44 Interview with former general editor, August 2019 (translated from Dutch by author). This observation aligns with recent scholarship on how international (legal) sources, encounters and relations are mediated by technical and textual artefacts. See, inter alia, Adler-Nissen and Drieschova 2019. 45 Interview with former general editor, September 2019 (translated from Dutch by author). 46 Idem. 42 Interview

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Fig. 20.1 Classification scheme (The scheme was used for all materials: Dutch state practice, treaties, legislation, judicial decisions and literature.) (Source The authors)

20.3 Managerial Change and Existential Hesitations The previous section has identified three pivotal features of how the NYIL was conceptualized at its inception and shaped during its first decades: a fairly aspirational substantive orientation; a grounding in the relatively cohesive community of Dutch international lawyers and a focus on the importance of systematised representation of Dutch legal materials as an instrument of international law’s progressive development. For anyone familiar with the NYIL’s orientation in the past few years, this will seem like an alien project. As the Yearbook evolved, the ‘Young Turks’ grew older, the substantive direction took a more critical (or at least heterogeneous)

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tone in the turn to thematic volumes,47 the professional community partially scattered in networks of transnational passage,48 and the ‘documentation section’—the backbone of the Yearbook as it had been conceived—did not survive the NYIL’s fortieth birthday.49 Particularly this final change was (almost unanimously) voiced as cause for concern by former editors of the Yearbook. Former general editors including Ko Swan Sik, Bert Barnhoorn, Niels Blokker and André Nollkaemper openly wondered what the NYIL’s raison d’être would be in the absence of a sustained and systematic link with Dutch state practice. As discussed above, the ‘documentation section’ was not perceived as merely a factual companion to the substantive contributions of the Yearbook—it was the expression of how many envisaged the contribution of this project to the progressive development of international law. ‘I have always felt that giving this up was a big step. I think this was a mistake’, one former editor voices his concern.50 Those editors arguing in favour of taking out the elaborate documentation section claimed that digitalisation rendered the exercise superfluous and that more added value could be provided through conceptual, thematic volumes aimed at ‘inspiring readers’, ‘influencing practice’ and ‘serving policy-makers’.51 Yet, for those clinging to the ideal of systematisation, that exercise had always been about more than making documents accessible: ‘the effect of digitalisation is exaggerated … [The documentation section] was about more than just making things available. A gap has emerged. And this did not only happen in the Netherlands. OUP is now trying to bring this back with its OUP series, OXIO reports etc.’52

The commitment to systematisation appears, as noted above, to reach far beyond either client satisfaction or mere accessibility. Emerging from our interviews, however, a different narrative emerges that has little to do with the digital era. As elaborated in the previous section the NYIL had, 47 Indicative is the recent volume on ‘Populism and International Law’ which has a distinctly critical flavour. See Nijman and Werner 2019. 48 As one interviewee notes: ‘the big difference is that thirty years ago the Dutch international law community [volkenrechtelijk Nederland] was a much more coherent collective … Now this community has become much more transnational and ephemeral—there is not really a community left’. Interview with former general editor, August 2019 (translated from Dutch by author). 49 Volume 40 on the theme of ‘necessity’ was the final volume that contained both the classification scheme and the related documentation section. The description of the NYIL on the website of the current publishing partner (Springer) now states: ‘as of 2012 each Yearbook includes a section entitled ‘Dutch Practice in International Law’, which replaces the section previously dedicated to Documentation’. 50 Interview with former general editor, August 2019 (translated from Dutch by author). 51 Interview with former general editor, July 2019 (translated from Dutch by author). ‘For us the reader was always central, and we increasingly realized that these readers have other ways of getting access to these material … Nobody is waiting for the Yearbook to provide this’. An additional disadvantage here was that the NYIL’s way of keeping up with State practice was not searchable. It was not a database. Instead, the documentation of each year was simply published in each new issue of the NYIL. 52 Interview with former general editor, August 2019 (translated from Dutch by author).

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from its inception, always been embedded in the Asser Institute, which functioned as an inter-university platform and was therefore ideally suited to perform the role as centripetal point for both community coordination and administrative support. Yet, starting at the turn of the millennium, a sequence of managerial changes had gradually altered the nature of the Asser Institute, in the words of one interviewee, towards an ‘independent’ research institute no longer merely ‘serving’ the Dutch international law community. With these managerial changes came budgetary targets and a more deliberate orientation towards billable labour. As a high-cost and lowreward exercise, the documentation section of the NYIL was eventually considered to be financially irrational. This was a ‘purely utilitarian calculus’, an interviewee noted, associated with the changed role and financial model of the Asser Institute.53 The speculative commitment to the virtue of holistic systematisation was traded for a calculative and managerial approach to client needs and budgetary exigencies. In response to these managerial transformations, the general editors sought to find alternatives to keep up with Dutch state practice. One plan was to select important documents (Government memos or judgments), translate these into English and make them internationally available. In other words, this proposal was no longer to be comprehensive, but to select the most important contribution of the Netherlands to the development of international law. Another proposal was to replace it with a chronicle of international law (similar to the Nederlands Juristenblad and Ars Aequi Kwartaalsignaal) with brief summaries of the most important developments. Both initiatives, however, failed to ever materialise. As managerial considerations and the associated institutional changes had displaced the central raison d’être of the Yearbook, a new direction was found in the production of thematic issues that sought to link conceptual international legal questions with contemporary controversies or political challenges. This is exemplified by the Agora on the legality of the war in Iraq in 2003, which did not only involve academic experts but also people directly involved in the decision-making process relating to the war in Iraq—and, more specifically, relating to the decision by the Netherlands to provide political support for this invasion.54 While this Agora format was not repeated, the thematic focus on the NYIL has now become established. In this practice, the editors invite specific experts to contribute a paper on a selected theme. The first thematic issue was about necessity (2010) and most issues of the NYIL published afterwards had a theme. Initially, these themes were closely aligned with the traditional topics of international law. In more recent times, however, more interdisciplinary themes emerged, such as “Populism and International Law” (the theme of the 2018 edition). Not all interviewees were equally enthusiastic about this more interdisciplinary character of the Yearbook; one interviewee called for a return to a more classically oriented approach, with special issues focussing on the formation of customary law, general principles, state responsibility, and so on.55

53 Interview

with former general editor, July 2019 (translated from Dutch by author). and Hey 2011. 55 Interview with former general editor, November 2019. 54 Dekker

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1970–1981: Ko Swan Sik and Herman Meijers 1982–1990: Ko Swan Sik and Frits Kalshoven 1991–1997: Bert Barnhoorn and Karel Wellens 1998–1999: Harry Post and Peter Malanczuk 2000: Harry Post and M.A. Fitzmaurice 2001–2003: Niels Blokker and Nico Schrijver 2004–2006: Deirdre Curtin and André Nollkaemper 2007–2008: André Nollkaemper and Ige Dekker 2009–2011: Ige Dekker and Ellen Hey 2012: Ellen Hey and Willem van Genugten 2013–2016: Willem van Genugten and Ramses Wessel Since 2017: Ramses Wessel and Wouter Werner

20.4 Conclusion Based on numerous interviews with former general editors of the NYIL, we have reconstructed the history of this publication platform as a collective professional project on which a variety of aspirations and ideals have been projected. Many of our interviewees bluntly questioned the raison d’être of the Yearbook in its current form—pointing to radical changes in the substantive orientation, administrative organization and sociological foundation of the project. This chapter does not partake in this existential doubt or nostalgia but traces both the original vision of the NYIL and its gradual transformation (fuelled by managerial exigency) to wider changes in the idealised role of international legal scholars(hip) and the conditions of academic labour. In this sense, it is a story of one particular publication medium set against a background of general changes in the role and form of Yearbooks that others will—we expect—find recognisable (see Table 20.1).

References Adler-Nissen R, Drieschova A (2019) Track-Change Diplomacy: Technology, Affordances, and the Practice of International Negotiations. International Studies Quarterly 63(3): 531–545. Boer L, Stolk S (eds) (2019) Backstage Practices of Transnational Law. Routledge, Abingdon. Bourdieu P (1987) The Force of Law: Toward a Sociology of the Juridical Field. The Hastings Law Journal 38:805–853. Dekker I, Hey E (eds) (2011) NYIL – Agora: The Case of Iraq: International Law and Politics. Netherlands Yearbook of International Law 42. Friedmann W (1964) The Changing Structure of International Law. Columbia University Press, New York. Koskenniemi M (2001) The Gentle Civilizer of Nations – the Rise and Fall of International Law 1870-1960. Cambridge University Press, Cambridge.

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Lammers J G (1974) International cooperation for the protection of the waters of the Rhine basin against pollution. Netherlands Yearbook of International Law 5:59–110. Megret F (2017) Thinking about What International Humanitarian Lawyers ‘Do’ – An Examination of the Laws of War as a Field of Professional Practice. In: Werner W, De Hoon M, Galan A (eds) The Law of International Lawyers: Reading Martti Koskenniemi. Cambridge University Press, Cambridge. Nijman J, Werner W (eds) (2019) Populism and International Law. Netherlands Yearbook of International Law 49. Peters P, Soons A H A, Zima L A (1984) Removal of installations in the Exclusive Economic Zone. Netherlands Yearbook of International Law 15:167–207. Post H H G (1976) Classification of the rules of international law according to spheres of validity. Netherlands Yearbook of International Law 7:161–174. Riphagen W (1975) Some Reflections on “Functional Sovereignty”. Netherlands Yearbook of International Law 6:121–165. Röling B V A (1973) International law and the maintenance of peace. Netherlands Yearbook of International Law 4:1–103. Tammes A J P (1971) The status of consent in international law. Netherlands Yearbook of International Law 2:1–28. The Editors (1970) Introduction. Netherlands Yearbook of International Law 1:ix. Werner W, De Hoon M, Galan A (eds) (2017) The Law of International Lawyers: Reading Martti Koskenniemi. Cambridge University Press, Cambridge.

Chapter 21

The Palestine Yearbook of International Law: A Medium for a Principled International Law on Palestine and the Palestinian People Ata R. Hindi

Contents 21.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.2 History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.3 Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.4 Function and Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.5 The Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

254 255 257 259 261 262 263

Abstract The purpose of this contribution is to reflect on the ‘history, development, function, impact, and future’ of the Palestine Yearbook of International Law (PYBIL), published by Brill Nijhoff and hosted by the Institute of Law (IoL) at Birzeit University. The PYBIL is currently the only international law publication that is specifically focused on Palestine and the Palestinian people, and published annually. Over the course of its nearly 40-year history, the PYBIL has undergone significant substantive and administrative changes. It has attempted to keep up with the legal issues of its day facing Palestine and the Palestinians, while also serving as a resource for critical legal studies (in international law), including those voices emanating from Third World Approaches to International Law (TWAIL). It has particularly impacted, and been impacted by, the community of international lawyers and jurists working on justice and accountability for the Palestinians. The PYBIL strives to explore innovative means and methods of knowledge production and sharing to meet the demands of that community. The PYBIL endeavors to continue to be a leading resource on international law related to Palestine and the Palestinians. Ata R. Hindi is the Assistant Editor of Palestine Yearbook of International Law, ([email protected]) and a Research Fellow in International Law at the Birzeit University Institute of Law. A. R. Hindi (B) Birzeit University Institute of Law, PO Box 14, Birzeit, West Bank, Palestine e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_21

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Keywords Palestine · yearbook · international law · human rights · TWAIL

21.1 Introduction The Palestine Yearbook of International Law (PYBIL) is published in cooperation with Brill Nijhoff Publishers (which is based in The Netherlands). The PYBIL was founded in 1984 through the Al-Shaybani Society of International Law by Dr. Anis Kassim, and who served as its Editor-in-Chief until the publication of Volume X (1998–1999). The Institute of Law (IoL) at Birzeit University then assumed responsibility of editorship. Camille Mansour, who was serving as Director of the IoL at the time, became Editor-in-Chief. The IoL was still in its beginnings, having been founded only a few years before in 1995. In his farewell as Editor-in-Chief, Kassim kindly expressed that ‘in a short period of time, the [IoL] has become a wellestablished and well-recognized forum for the entire Palestinian legal community,’1 then passing the torch to Mansour. The PYBIL has attracted many prominent international law scholars from all over the world—predominantly those with a profound interest and passion in working on justice and accountability for the Palestinians. It has been a leading reference source of legal materials relating to Palestinian issues for the international legal community in both academia and practice. In addition to leading articles on topical and thematic problems and issues, it has included key legal materials (legislation, court decisions, etc.) in English (including those translated from other languages), that have affected Palestine and the Palestinians in one way or another. The purpose of this submission, as requested by the organizers, has been to reflect on the history, development, function and impact, and future of the PYBIL. The PYBIL currently remains the only international law publication that is specifically focused on Palestine and the Palestinian people, and published annually (with a few exceptions over the years during transitional periods). Over the course of its nearly 40-year history, the PYBIL has undergone significant substantive and administrative changes. It has attempted to keep up with the legal issues of its day facing Palestine and the Palestinians, while also serving as a resource for critical legal studies (in international law), including those voices emanating from Third World Approaches to International Law (TWAIL). It has particularly impacted, and been impacted by, the community of international lawyers and jurists working on justice and accountability for the Palestinians. The PYBIL strives to explore innovative means and methods of knowledge production and sharing to meet the demands of that community. The PYBIL endeavors to continue to be a leading resource on international law related to Palestine and the Palestinians.

1 Kassim

1998–999, at xiii.

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21.2 History The Al-Shaybani Society for International Law was founded by Dr. Anis Kassim as the home and publisher of the PYBIL in 1984 in Cyprus. Kassim started his university studies in Damascus and then moved to the United States, where be obtained his PhD in Law from George Washington University in 1973. He was a judge at the Supreme Administrative Court of the League of Arab States (LAS) between 1981 and 1984. Kassim served as Editor-in-Chief of the Palestine Yearbook of International Law between 1984 and 2000. In his decorated legal career, he represented Palestine before the International Court of Justice (ICJ) on the 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and served as a consultant to the Palestinian delegation in the peace negotiations held in Madrid and Washington, DC between 1991 and 1993.2 The PYBIL was established during a transitional (or perhaps even transformational) period in the Palestinian leadership’s strategies and tactics towards freedom and liberation. Over time, the leadership has tested various means and methods towards freedom and liberation including, but not limited to, rebellion, armed struggle, negotiations, and diplomacy. Today, these ‘tactics’ have largely been deprioritized due to their ineffectiveness, particularly towards the overall goal of ending the occupation. On the ground, however, the Palestinians have creatively and continuously explored the potentials and limits of both international law and popular resistance. Whereas international law and popular resistance have now become part of the very core of Palestinian civil society’s work, they have gradually come to shape, and now even embody, the Palestinian leadership’s contemporary strategies and tactics. To expand further on the above, some historical context is useful. The Palestinian cause has epitomized the anti-colonial and anti-imperial experience. In its essence, the cause demanded freedom and liberation in the entirety of historic Palestine and the return of all Palestinian refugees. Years after the Nakba (or the ‘Catastrophe’) of 1947–1948, which left in its wake the Palestinian refugee population, the Palestine Liberation Organization (PLO) was created under the auspices of the LAS, drafting a charter which conveyed a commitment to self-determination within the entirety of historic Palestine.3 In 1968, after the Naksa (or the ‘setback’) of 1967, the charter was amended; while largely reflecting the same ends, it adopted armed struggle as its strategy, rather than as a tactic amongst others.4 A few years later, in 1974, one year 2 For

more, see Birzeit University, Dr. Anis Kassim, https://www.birzeit.edu/en/biography/dr-aniskassim (last accessed 9 July 2020). 3 See Institute for Palestine Studies, , https://www.palestine-studies.org/ar/resources/documents (last accessed 9 July 2020). A translated version of the 1964 Palestinian National Charter is archived at: Permanent Observer Mission of Palestine to the United Nations, Palestine National Charter of 1964, https://web.archive.org/web/201 01130144018/http://www.un.int/wcm/content/site/palestine/pid/12363 (last accessed 9 July 2020). 4 Institute for Palestine Studies, , https://www. palestine-studies.org/ar/resources/documents, 29 September 2019. A translated version is available at: PAC-USA, The Palestinian Charter, https://www.pac-usa.org/the_palestinian_charter.htm, 29 September 2019 (last accessed 9 July 2020).

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after the 1973 war, the PLO drafted the so-called ‘Ten-Point Program,’ which largely rejected any effort determined to be detrimental to the right of self-determination and the right of return for all Palestinian refugees.5 The PLO began to back away from its dependence on armed struggle, and it became but a tactic amongst others. The dynamics of the conflict shifted, as did the discourse. In 1988, the PLO would declare Palestine’s independence and the discourse would adopt the language of the two-State solution. The Declaration recognized the ‘historical injustice’ of United Nations (UN) General Assembly (UNGA) Resolution 181 (1947), but perceived it as a means towards exercising sovereignty. As such, the PLO would embrace Resolution 181 and, subsequently, UN Security Council (UNSC) Resolutions 242 (1967) and 338 (1973), calling on Israel’s withdrawal from the territories occupied in 1967. Shortly after the declaration of independence, the PLO would publicly take part in negotiations with the Israelis. The territories occupied in 1967 became the PLO’s ‘Palestine’ for the purposes of negotiations and statehood. Historically, the PLO’s discourse was largely devoted to armed struggle and international solidarity, not unlike that of the other decolonizing or decolonized States. But, as the dynamics and discourse shifted, the Palestinian leadership began to test the possibilities and constraints of international law. While understanding its colonial and imperial underpinnings and subsequent limitations, the Palestinians explored the realms of self-determination and other areas of international law. The process was slow, but steady. It was only in 1974, for example, that the UNGA decided to confer observer entity status for the PLO at the UN.6 Yet, while the international plane showed signs of progression, the facts on the ground showed quite the opposite. Nevertheless, for the Palestinians, international law became part of the strategy; and it is against this backdrop that the PYBIL was created. The discourse became one of autonomy and the two-State solution, and was dependent on international law as one of its main tools. Traditional and alternative discourses were still prominent in the background, and against the two-State solution, by prominent Palestinian intellectuals (like the scholar Edward Said and the poet Mahmoud Darwish) and the population in general. The PYBIL’s very first volume, for example, included contributions reflecting on the discourse—focused on the Palestinian legal system and its development (from the Ottoman empire onwards), juridical bases for self-determination, and autonomy.7 In that volume, John Quigley gave his assessment on the United States’ complicity in violations of Palestinian rights,8 beginning the PYBIL’s long-standing tradition of exploring justice and accountability issues. Throughout the PYBIL’s history, justice and accountability contributions have been featured prominently, on topics including, but not limited to: the ICJ; the International Criminal Court (ICC); universal jurisdiction; and the Boycott, Divestment, and Sanctions (BDS) movement. 5 Ibid. 6 See

Observer Status for the Palestine Liberation Organization, UN Doc G.A. Res. 3237, 22 November 1974. 7 Kassim 1984; Mallison and Mallison 1984; Ott 1984. 8 Quigley 1984.

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While the discourse was shifting, popular resistance was an ongoing struggle on the ground, culminating in monumental events in Palestinian history (such as Land Day protests in in 1976, and the First Intifada beginning in 1987). Yet, at its inception in 1984, popular resistance was not a focal theme of the PYBIL, although this has changed over time. Instead, the PYBIL had very much been focused on the ‘Statehood’ project. While the PYBIL didn’t align itself with the PLO, the contributions were certainly reflective of the language of negotiations and claims within the parameters of the 1967 borders and all the law that came with it. As such, the PYBIL has viewed itself not unlike other international law yearbooks – while not administratively connected with the State, it has certainly been reflective of the State and population’s legal discourse vis-à-vis international law through its topical and thematic contributions and materials. Thus, over time, the PYBIL has largely channelled that discourse. Since its inception, the PYBIL has done what it can to further those timely discussions on international law relevant to a very unique situation.

21.3 Development The previous section largely covered the context of the PYBIL’s inception, but also touched upon certain aspects of its development and evolution over time (the discourse on justice and accountability as an example). These changes can be placed into two categories: administrative and substantive. From the administrative end, the biggest change was the PYBIL’s move from the Al-Shaybani Society of International Law to the Institute of Law at Birzeit University. This brought the PYBIL home to Palestine, and to a prominent institution with a rich history of education and resistance. It introduced another dimension to the PYBIL’s work, linking it to wider academic networks and greater diversification in terms of scholarly contributions. While academic institutions in Palestine do not have the ability, as of yet, to operate with the same capacity and resources as some of its peers abroad, Birzeit University has provided immense support to the PYBIL’s development and evolution. One such example was the IoL’s ability to host its 2013 conference on ‘Law and Politics: Options and Strategies of International Law for the Palestinian People,’ which hosted a collective of prominent international lawyers and jurists. The conference developed a set of guidelines in advocating for the Palestinian cause in line with international law, and resulted in a number of papers that were published by the PYBIL in the following year (further discussed below). In terms of editorial responsibilities, Kassim’s tenure as Editor-in-Chief was followed by: Camille Mansour (2000–2005), who was Director of the IoL; Mervat Reshmawi (2006–2007), a Palestinian international lawyer and human rights practitioner; and Ardi Imseis (2009–2019), a Palestinian international lawyer who is now Assistant Professor at Queens University Law School in Canada. Just recently, Nimer Sultany, Reader of Law at SOAS University of London, assumed the title. In terms of publication, the PYBIL was published directly through the Al-Shaybani Society for International Law until Volume VII (1992–1994). It was then published by Kluwer

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Law International in cooperation with Al-Shaybani between Volumes VIII (1994– 1995) and X (1998–1999). Kluwer Law remained its publisher in cooperation with the IoL at Birzeit University for Volume XI (2000–2001). Then, a partnership was struck with Martinus Nijhoff (now Brill), who has published in cooperation with the IoL since Volume XII (2002–2003). In terms of substantive developments, the PYBIL’s contributions have largely reflected the prominent legal issues faced by Palestine and the Palestinians at the time and/or have been devoted to thematic issues. Volume IX (1996–1997), for example, focused largely on Jerusalem,9 while also welcoming a contribution of negotiations issue of water.10 Volume VIII (1994–1995) was largely reflective of the implications of the Oslo Accords.11 During its first 10–15 years, there is a visible record of scholarship and other materials related to Palestinian State-building and the so-called ‘peace process,’ while also habitually covering issues related to Israel’s violations against Palestinian rights. The PYBIL has largely been reflective of international law developments—and at times, a lack thereof—affecting Palestine and the Palestinians. For example, a number of articles over the last few years have covered different aspects of the ICC’s preliminary examination into Palestine.12 After the Gaza Conflict in 2008– 2009, and the subsequent release of the report of the UN Human Rights Councilmandated fact-finding mission on the Gaza Conflict, the PYBIL published a number of pieces analyzing the aftermath of the conflict, as well as the report of the factfinding mission.13 After the ICJ Wall advisory opinion, the PYBIL similarly focused a number of articles on that conversation, including on the British (and international) legal foundations behind the wall, its implementation, and the overall decision.14 In light of Belgium’s failure to prosecute Ariel Sharon for war crimes through its universal jurisdiction law, the PYBIL focused largely on the topic of international criminal justice, with contributions from the late Professor Cherif Bassiouni, William Schabas, and John Quigley, and others.15 Another volume focused on the topic of Palestinian refugee rights, featuring the likes of Susan Akram, John Quigley, and Michael Lynk.16 From a more thematic perspective, the PYBIL is one text, amongst others, that attempts to analyze and critique international law from a postcolonial perspective. Over the years, the PYBIL, under the auspices of the IoL, has dedicated greater space to reflect different approaches to international law, particular ‘Critical Legal Studies’ on international law, including the ‘Third World Approaches to International Law’

9 See

(1996–1997) Palestine Yearbook of International Law IX. Abouali 1996–1997. 11 See (1994–1995) Palestine Yearbook of International Law VIII. 12 See, e.g., Aysev 2017; Al-Khudayri 2017. 13 (2010) Palestine Yearbook of International Law XVI. 14 (2004–2005) Palestine Yearbook of International Law XIII. 15 (2002–2003) Palestine Yearbook of International Law XII. 16 (2000–2001) Palestine Yearbook of International Law XI. 10 See

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(TWAIL). PYBIL Volume XV (2009), for example, largely focused on TWAIL.17 Since then, there have been other articles that have focused on the colonial nature of Israel’s occupation.18 Further, the PYBIL has also been open to exploring interdisciplinary approaches, including the relationship between international law and geopolitics,19 economics,20 and democratic action.21

21.4 Function and Impact In Palestine and around the world, the PYBIL has been the only text that has systematically tackled issues of international law in relation to Palestine and the Palestinians. Its contributions have attempted to bring forth academic research and analysis covering issues that other texts might not. In that regard, it has played a unique role in international law knowledge production and sharing. In Volume XVII (2014), the PYBIL published the Proceedings of the IoL’s conference on ‘Law and Politics: Options and Strategies of International Law for the Palestinian People.’22 Subsequently, the IoL and its partners published the ‘Advocating for Palestinian Rights in Conformity with International Law: Guidelines.’23 The purpose of the event and subsequent publications were to highlight arguments on the insufficiency of discussing international humanitarian law and specifically the law of occupation alone; particularly where it is necessary to discuss settler-colonialism, population transfer (ethnic cleansing), and apartheid. The conference resulted in a number of pieces published by the PYBIL, including those related to supporting the Boycott, Divestment, and Sanctions (BDS) movement.24 Many PYBIL submissions on this topic (and others) have been, and would likely be, rejected elsewhere—not due to their quality, but to the ‘political sensitivities’ associated with these topics. Over the past few years, the PYBIL has issued general calls for papers, although of course most welcoming those particular submissions on international law related, 17 (2009)

Palestine Yearbook of International Law XV. e.g., Reynolds 2015; Gunneflo 2017. 19 See, e.g. Falk 2017. 20 See, e.g., Roy 2006–2007. 21 See, e.g., Ulgen 2015. 22 See Birzeit University Institute of Law, Options and Strategies of International Law for the Palestinian People, https://lawcenter.birzeit.edu/lawcenter/en/conferences/956-options-and-strate gies-of-international-law-for-the-palestinian-people (last accessed 9 July 2020). Institute of Law at Birzeit University et al., ‘Law and Politics: Options and Strategies of International Law for the Palestinian People,’ Summary of Proceedings and Outcomes https://lawcenter.birzeit.edu/userfiles/ Public_Report_BZU_Conference_FINAL.pdf (last accessed 9 July 2020). 23 Institute of Law at Birzeit University, Guidelines for Advocating for Palestinian Rights in conformity with International Law, https://lawcenter.birzeit.edu/lawcenter/en/homepage/publicati ons/155-publications/1043-guidelines-for-advocating-for-palestinian-rights-in-conformity-withinternational-law (last accessed 9 July 2020). 24 See, e.g., Barghouti 2013–2014; Handmaker 2013–2014. 18 See,

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or of interest, to Palestine and the Palestinians. For example, PYBIL contributors have covered topics on the right to rebel,25 the applicability of investment treaties to occupied territories,26 and the debate on the so-called ‘fragmentation’ of international law.27 The PYBIL has also regularly explored current and future avenues of justice and accountability. More recently, this has included exploring the bounds of universal jurisdiction for international crimes,28 as well as the prospects for an additional ICJ advisory opinion on the features and legal consequences of the occupation for Israel and third States.29 The PYBIL has also been a forum for prominent international lawyers and jurists that have considerably worked on international law related to Palestine and the Palestinian people. Contributors have included, amongst others, John Dugard, Cherif Bassiouni, William Schabas, John Quigley, and Susan Akram. It has also included Palestinian international lawyers and jurists, like Victor Kattan and Salma Karmi-Ayyoub. The PYBIL has also published contributions challenging the absurdities of the Israeli High Court of Justice’s rulings. For example, in 2017, Allegra Pacheco wrote on the so-called ‘quarrying’ cases, which effectively gave a green light to Israel’s exploitation of Palestinian natural resources.30 Additionally, the PYBIL has been a forum for the publication of documents deemed controversial. Of course, the PYBIL does not see it that way. In 2017, the PYBIL re-published Richard Falk and Virginia Tilley’s ECSWA report on apartheid, after it was retracted by the UN.31 With respect to book reviews, the PYBIL has attempted to critically engage a number of texts, and facilitate discussions on those texts. Some of these texts have directly been on issues relating to Palestine and the Palestinians, while others have covered thematic legal issues of interest. In terms of materials, the PYBIL has consistently aimed at collecting legal materials applicable (or at least relevant to) Palestine and the Palestinians. The first issue of the PYBIL included a number of decisions of the Israeli High Court of Justice, including those covering the issues of home demolitions, settlements, and land confiscations.32 A year later, the PYBIL covered those decisions pertaining to various military orders and the deportation of civilians.33 It also has included those pieces of Israeli legislation, translated into English, specifically affecting Palestinians. This does not imply, in any way, that the PYBIL views Israeli judicial decisions on the Palestinians as having any true legal authority. It instead has been an attempt to highlight the absurdity of those decisions, and

25 Redaeli

2016. 2016. 27 Shongwe 2016. 28 Karmi-Ayyoub 2016. 29 Dugard 2013–2014. 30 Pacheco 2013–2014. 31 Falk and Tilley 2017. 32 See (1984) Palestine Yearbook of International Law I. 33 See (1985) Palestine Yearbook of International Law II. 26 Mayorga

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its impact upon Palestinians (such as the High Court of Justice’s refusal to recognize the illegality of settlements, or punishment of home demolitions as applying to only Palestinians, and not Israelis).34 The PYBIL has also attempted to include laws and legislation impacting the Palestinians, including the refugee and diaspora populations.35 In line with the historical background and later developments, the Palestinians have sought to collect materials coming from Palestinian representation, including the PLO.36 Over the past few years, the PYBIL has also attempted to underline the importance of various UN resolutions and other documents, that are largely ignored. These have included, in particular, those resolutions adopted annually within the UN General Assembly as well as the UN Human Rights Council. Yet, as the next section explains, the PYBIL has considered how to move forward in content and structure in the future.

21.5 The Future As mentioned, the PYBIL has been published for some time by Brill. Moving to Brill has been an important administrative change for the PYBIL. Beyond that, it is also important to consider greater readership and familiarity with the contributions of the PYBIL. Over time, hard copies are becoming less relevant. Of course, there is some availability online, through HeinOnline, for example. Some authors have also published drafts of their papers on SSRN, Academia.edu, and similar sites. Other means of communication are necessary. Different approaches have been considered, including complementing Brill’s publication through open-source means of communications. Some of these discussions have revolved around the possibility of a blog, for example. Others ideas have revolved around regular, continuous workshops and other events to present the contributions to the PYBIL, both in Palestine and abroad. More accessibility is ideal, particularly in dealing with legal issues related to Palestine and the Palestinian people which require greater awareness, discussion, and cooperation. The PYBIL has keenly observed that many forums will not publish the articles that the PYBIL publishes. For example, it is probably a given that most journals will refrain from publishing a legal analysis of racial discrimination and apartheid, or on colonization in Palestine. These issues are highly important legal issues that need to be addressed and are still living issues. Consider, for example, the fact that Palestine filed an inter-State complaint against Israel under the International Convention on 34 See

Kretzmer 2012; HCJ 8091/14—HaMoked: Center for the Defence of the Individual et al. v. Minister of Defense et al. Judgment, 12 February 2015. 35 See (1985) Palestine Yearbook of International Law II [collecting legal materials impacting Palestinians in Syria, Iraq, and Egypt]. 36 Ibid. [as one example amongst others]. For example, more recently, the PYBIL published the ‘Statement Issued by the Central Council of the [PLO]’ which deals with a number of international legal issues]. See (2017) Palestine Yearbook of International Law XX.

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the Elimination of All Forms of Racial Discrimination,37 or that the ICJ just recently handled issues of colonization in the Chagos advisory opinion.38 Gradually, the PYBIL will be looking to achieve both a greater online presence, as well as greater personal interactions with the legal community in Palestine and abroad. Just recently, for example, a collective of TWAIL scholars have released the TWAIL Review, which includes an online journal, as well as a serious of ‘reflections’ and ‘dialogues’ in blog format.39 It is a commendable and much-needed step for knowledge production and sharing, and a forum to publish what many Western journals may deem unpublishable. The experiences of other yearbooks have also been informative, and have provided valuable insights and opinions on content and structure changes. For example, it is moving on from simply publishing materials to commentaries, and has shifted into a complete peer-review system. It is also looking to more prominently feature Palestinian scholarship and increase the coverage of Palestinian State practice. On a final note, the PYBIL’s Advisory Board has been fortunate to feature prominent legal intellectuals, including Georges M. Abi-Saab, Mohammed Bedjaoui, Nabil Elaraby, Awn Al-Khasawneh, and others. Currently, the PYBIL is working to have its Advisory feature persons who can more actively engage and demonstrate the work of the PYBIL in the coming years.

21.6 Conclusions This chapter has covered the history, development, function and impact, as well as the future (including some ideal predictions) of the PYBIL. Of course, this contribution is brief, and one can definitely compose a full book manuscript about these various aspects of the PYBIL, and its place in international law academia and practice as a reference source and medium of discussion. Its history runs parallel with the Palestinians’ testing the possibilities and limits of international law towards freedom and liberation. It has developed its own traditions of soliciting contributions on justice and accountability for Palestine and the Palestinian people, while also embracing the scholarship of Critical Legal Studies in international law, particularly TWAIL. It expects to continue developing on this track, to concretize its function and impact, while also contributing to the future of international law – one that is principled, progressive, and one that reaches a greater audience. The PYBIL has provided a space for publishing those discourses that are deemed too ‘controversial’ and for challenging those discourses working against Palestine and the Palestinians through critical legal scholarship. It will continue on this track. 37 See Hassan, Palestine Sets Precedent with Legal Complaint, Alshabaka, 17 June 2018, https://alshabaka.org/memos/palestine-sets-precedent-with-legal-complaint/ (last accessed 9 July 2020). 38 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 2019 I.C.J. Gen. List No. 169 [Feb. 25]. 39 See TWAILR, https://twailr.com/ (last accessed 9 July 2020).

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In essence, the PYBIL is a text committed to a principled approach to international law and bound to its constituency of Palestine and the Palestinian people. As such, it continues to welcome all contributions on international law relating to Palestine and the Palestinians people, as well as those emanating from the Critical Legal Studies, TWAIL, Critical Race Studies, and other similar movements in international legal scholarship. Acknowledgements Many thanks to Ms. Reem Botmeh, Director of the Institute of Law at Birzeit University, who provided valuable insights and contributions to this chapter.

References Abouali G (1996–1997) Continued Control: Israel, Palestinian Water and the Interim Agreement. Palestine Yearbook of International Law IX:63–113. Al-Khudayri Y (2017) Procedural Haze: The ICC’s Jurisdiction over the Situation in Palestine. Palestine Yearbook of International Law XX:117–147. Aysev U (2017) Continuing or Settlement: Prosecution of Israeli Settlements under Article 8(2)(b)(viii) of the Rome Statute. Palestine Yearbook of International Law XX:33–83. Barghouti O (2013–2014) Upholding International Law, Asserting Palestinian Rights. Palestine Yearbook of International Law XVII:115–143. Dugard J (2013–2014) Lifting the Guise of Occupation and Recourse to Action before the ICJ and ICC. Palestine Yearbook of International Law XVII:9–27. Falk R (2017) The Tragic Interplay of International Law and Geopolitics. Palestine Yearbook of International Law XX:153–170. Falk R, Tilley V (2017) Israeli Practices towards the Palestinian People and the Question of Apartheid. Palestine Yearbook of International Law Volume XX: 201–262 [originally published as: Falk R and Tilley V (2017) Israeli Practices towards the Palestinian People and the Question of Apartheid, E/ESCWA/ECRI/2017/1]. Gunneflo M (2017) Settler-Colonial and Anti-Colonial Legalities in Palestine. Palestine Yearbook of International Law XX:171–190. Handmaker J (2013–2014) Taking Academic Freedom Seriously: Exploring the Legal and Moral Underpinnings of BDS. Palestine Yearbook of International Law XVII:101–114. Karmi-Ayyoub S (2016) Prosecuting Israeli Perpetrators of International Crimes under Universal Jurisdiction: Prospects for Success. Palestine Yearbook of International Law XIX:96–135. Kassim A (1984) Legal Systems and Developments in Palestine. Palestine Yearbook of International Law I:19-35. Kassim A (1998–1999) Farewell. Palestine Yearbook of International Law X:xiii. Kretzmer D (2012) The Law of Belligerent Occupation in the Supreme Court of Israel. International Review of the Red Cross 94. Mallison SV, Mallison WT Jr (1984) The Juridical Bases for Palestinian Self-Determination. Palestine Yearbook of International Law I:36-67. Mayorga O (2016) Occupants, Beware of BITs: Applicability of Investment Treaties to Occupied Territories. Palestine Yearbook of International Law XIX:136–176. Ott DH (1984) Autonomy and the Palestinians: A Survey. Palestine Yearbook of International Law I:68-94. Pacheco A (2013–2014) The Israeli Supreme Court Case on Israeli Quarrying Licenses in the West Bank: Why a Second ICJ Advisory Opinion on Palestine is Needed. Palestine Yearbook of International Law XVII:57–82.

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Quigley J (1984) United States Complicity in Israel’s Violations of Palestinian Rights. Palestine Yearbook of International Law I:95-120. Redaeli C (2016) The Right to Rebel against Violations of Human Rights: A New Role for the Responsibility to Protect. Palestine Yearbook of International Law XIX:8–41. Reynolds J (2015) Anti-Colonial Legalities: Paradigms, Tactics and Strategy. Palestine Yearbook of International Law XVIII:8–52. Roy S (2006–207) Introduction: The Palestinian Economy: Beyond Decline. Palestine Yearbook of International Law XIV:1–12. Shongwe MN (2016) The Fragmentation of International Law: Contemporary Debates and Responses. Palestine Yearbook of International Law XIX:177–221. Ulgen O (2015) Boycotts, Funds, and Class Actions: Democratic Imperative Mechanisms against Corporate Complicity in Human Rights Violations. Palestine Yearbook of International Law XVIII:115–143.

Chapter 22

Polish Yearbook of International Law: A History of Constant Change and Adaptation Lukasz Gruszczynski and Karolina Wierczynska ´

Contents 22.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.2 Origins of the PYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.3 From the Past to the Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.4 The PYIL’s Functions and Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.5 The Future of the PYIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Polish Yearbook of International Law (PYIL) is one of the few Polish legal journals published in English. Founded in the dark times of communism as an attempt to build intellectual bridges with the West, it went through the difficult period of wild capitalism in the 1990s, characterised by a permanent lack of public funding, only to more recently face the challenges posed by the technological revolution in the area of scientific publishing and the rapidly accelerating process of research quantification. This chapter tells the story of the PYIL. It starts by examining the origins of the Yearbook (i.e. when was it founded; by whom; and in what historical context). This discussion is followed by the presentation of its development over the last five decades (i.e. its evolution, nature of and reasons behind the relevant changes). Next the chapter turns its attention to the function and impact of the PYIL in the academic, political, and judicial spheres. The last section looks into the future Lukasz Gruszczynski is Managing Co-Editor of the Polish Yearbook of International Law. Karolina Wierczy´nska is Deputy Editor-in-chief of the Polish Yearbook of International Law and vice-president of the Committee on Legal Sciences. L. Gruszczynski (B) Kozminski University, Warsaw, Poland e-mail: [email protected] Centre for Social Sciences-Institute for Legal Studies, Budapest, Hungary K. Wierczy´nska Institute of Law Studies of the Polish Academy of Sciences, Warsaw, Poland e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_22

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of the Yearbook and articulates the general publication visions of the current Editorial Board for the upcoming decade. Keywords international law · yearbooks · Poland · professional community

22.1 Introduction The Polish Yearbook of International Law (PYIL or Yearbook)1 is one of the few Polish legal journals published in English.2 Its story is also a history of contemporary Poland in a nutshell. Founded in the dark times of communism as an attempt to build intellectual bridges with the West, it went through the difficult period of wild capitalism in the 1990s, characterised by a permanent lack of public funding, only to more recently face the challenges posed by the technological revolution in the area of scientific publishing and the rapidly accelerating process of research quantification. The history of the Yearbook is therefore a story of constant changes and adaptation. This chapter attempts to address various questions that were put forward by the Editors of the Netherlands Yearbook of International Law (NYIL) and discuss them in the context of the PYIL. It starts by analysing the origins of the Yearbook (i.e. when was it founded; by whom; and in what historical context). This discussion is followed by the presentation of its historical development over the last five decades (i.e its evolution, nature of and reasons behind the changes). Next the chapter turns its attention to the function and impact of the PYIL in the academic, political, and judicial spheres. The last section looks into the future and articulates the general publication visions of the current Editorial Board for the upcoming decade.

22.2 Origins of the PYIL The PYIL was formally established in 1966, and its first volume was published in 1968. The main institution behind the Yearbook was the Institute of Law Studies (ILS) of the Polish Academy of Sciences, which was supported by the Polish Institute of International Affairs (PISM) and the Polish Branch of the International Law Association (PB-ILA). The first Editorial Committee consisted of a total of five people representing all the entities involved in the project.3 The above also means that the PYIL is one of the oldest international law yearbooks in Europe (at least

1 Polish Yearbook of International Law, PL ISSN 0554-498X, DOI 10.7420 (until the end of 2018),

10.24425/pyil (since 2019); website: https://pyil.inp.pan.pl. 2 Other titles that are worth mentioning here include the Polish Review of International and European

Law and the Comparative Law Review. were Wojciech Góralczyk, Jerzy Jakubowski, Adam D. Rotfeld, Janusz Šach and Jerzy Sztucki.

3 These

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among those which still exist).4 Of course, it cannot compete in terms of seniority with such publications as the British Yearbook of International Law (1929), Jahrbuch für Internationales Recht (1947), or Annuaire Français de Droit International (1955), but it was created earlier than the NYIL (1970) and long before its younger siblings from Central and Eastern Europe (CEE) emerged.5 The first volume of the PYIL was delivered at a very peculiar and complex moment in Polish history. The country (at that time known as the Polish People’s Republic) was neither independent nor democratic. The Polish authorities, including the Polish United Workers’ Party (PUWP), were effectively controlled by the Soviet Union, while the elections had only a formal character and there was no parliamentary opposition. The PUWP was constitutionally identified as a state party and the leading political force of the society in building socialism.6 At the international level Poland, although formally recognized as a sovereign state, had a very limited autonomy, being institutionally and politically subordinated to the Soviet Union through the Council for Mutual Economic Assistance and the Warsaw Pact (under which Poland hosted a Soviet military contingent of 300,000 soldiers). The Polish economy was based on central planning and tight state control. Although the period after World War II was characterised by a relatively rapid economic growth—mainly resulting from the post-war reconstruction process—its rate slowed down at the end of the 1950s and stagnated in the 1960s. The main reason for this negative dynamic was the inefficiency of central planning and management, partially connected with incompetence of the state bureaucracy and inefficient allocation of resources. This stagnation had an obvious negative impact on the popularity of the PUWP in the society. The authorities responded by gradually tightening the regime (after some liberalization in 1956). Rather than calming down the situation however, these changes had the opposite effect, producing social anger that culminated in a series of protests and strikes organized by students and other intellectuals in 1968. This coincided in time with the similar events in Czechoslovakia (the socalled ‘the Prague Spring’) and Western Europe. What was, however, characteristic for Poland is that the party responded not only with police force, but also fostered an official anti-Jewish rhetoric, accusing Poles of Jewish origin of being a ‘fifth column’ of imperialistic capitalism. Such a strategy was seen not only as a useful way to channel the social unrest, but was also connected with an internal struggle between different factions within the party.7 As a consequence of these events, about 13,000 Poles of Jewish origin left the country between 1968-1973, including some of the PYIL’s editors and researchers from the ILS.8 4 For

a very good overview of the history of international law journals, including yearbooks, see de la Rasilla 2018, particularly at 137 et seq. 5 For example, an inaugural volume of the Baltic Yearbook of International Law was published in 2001; the Czech Yearbook of Public & Private International Law in 2010; and the Hungarian Yearbook of International and European Law only in 2013. 6 Article 3.1 of the Constitution of the Polish People’s Republic of 22 July 1952, O.J. 1976, No. 7, item 36. 7 For a good overview of these events, see Stola 2000. 8 One of them was prof. Jerzy Sztucki, see Sztucki 1974.

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The PYIL was born precisely in these turbulent times. While we do not have access to any written accounts or oral testimonies that would support our claim, it is reasonable to assume that the spirit of intellectual rebellion was an important factor behind the creation of the journal, an assumption which corresponds with the general mood in Polish academia at that time. Of course, there was also a pragmatic reason. Polish international law scholars wanted to make their research more visible abroad. Due to the character of the communist regime, their opportunities were limited. Although Poland had the least autocratic regime in the entire Eastern bloc (with the possible exception of Yugoslavia, which was however only loosely connected with the other socialist countries), it was still not very easy to publish a text in a Western legal journal. Creating a Polish periodical in English would obviously expand the existing publishing opportunities. Such a journal would also allow for building bridges with the Western academia. This issue was particularly important because there was a common perception among Polish internationalists that they were a part of the intellectual traditions of the West rather than heralds of new socialistic conceptions of international law.9 The editorial included in the first volume of the PYIL confirms the above assessment. The editors particularly noted that ‘it has been felt that writings published in the Polish language would not be easily accessible abroad to all those who might be interested in the development of the science of international law in Poland and in the legal thinking of the Polish authors.’10 They also clearly promoted cosmopolitan ideals by emphasizing the importance of international law in the management of international affairs and the need for cooperation between scholars, noting that ‘in this process of the progressive development of the law, scholarly legal thinking is a factor of importance and this seems to hold true also for an exchange of scholarly ideas in this field, which might contribute to a better mutual knowledge and understanding.’11 At the same time, the choice of the language was obvious as English was already a leading means of scientific communication in the field.12 One may therefore make a strong argument that the creation of the Yearbook was primarily a bottom-up initiative of the Polish academia rather than a state-sponsored project aimed at the dissemination of communist propaganda abroad.13 This claim is also affirmed by the composition of the journal’s editorial board (i.e. leading Polish scholars working in the area of international law) as well as the content of the volumes published in the Yearbook’s early years, wherein the authors generally used the same concepts as their Western counterparts (to the extent possible under the existing circumstances). For example, the inaugural volume included articles 9 Interview with prof. Janusz Symonides (in the past a member of the Editorial Committee and later

the Editor-in-Chief of the PYIL), dated 9 April 2019, on file with the authors. (1966/67) 1:5. 11 Ibid. 12 Although throughout the decades texts in French were also published in the PYIL. 13 This distinguishes the PYIL from the Soviet Yearbook of International Law (1958-1991), which clearly concentrated on the ideological struggle with the ‘imperialistic’ West and the promotion of the Socialist vision of international law (see Hazard 1972, at 222). 10 PYIL

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that dealt with the general issues (e.g. M. Lachs, “On the Importance of International Law in a Dangerous World”, L. Antonowicz “Definition of State in International Law Doctrine”) and the international organizations (e.g. K. Skubiszewski, “The Application of Non-military Measures by the General Assembly of the United Nations” or K. Wolfke, “Practice of International Organizations and Customary Law”). The texts that addressed specific socialist-related problems constituted a clear minority (e.g. L. Gelberg, “Problems of Dual Nationality in the Light of Legislation and Treaties of the Socialist Countries”).14 The fact that one of the founding institutions (i.e. PISM) was connected with the Ministry of Foreign Affairs does not alter this conclusion. PISM at that time was widely seen as a quiet asylum for more open-minded experts from the Ministry.15

22.3 From the Past to the Present Initially, the PYIL only had a single body in the form of its Editorial Committee. Although there was no woman in the first Committee, this changed already in 1971 when Maria Frankowska was appointed as a member.16 The first Editor-inChief of the yearbook was Remigiusz Bierzanek, this function was later performed by Wojciech Morawiecki (1970-1975), Janusz Symonides (1976-1985), Henryk de Fiumel (1986), Andrzej Wasilkowski (1988-1998), Renata Szafarz (1999-2009) and Władysław Czapli´nski (since 2010). The institutional structure behind the Yearbook also evolved. The third volume was published solely by the ILS, although some informal contacts with PISM and PB-ILA were maintained for some time. The internal structure changed as well—the Editorial Committee was transformed around the same time into a supervisory body that was expected to set some general publication guidelines for the journal, while the newly created Editorial Board took over responsibility for the daily management of the Yearbook.17 This internal structure has survived until the present time (with slightly modified names), while the institutional setting changed again in 2013 when

14 In this context, it should be also mentioned that Manfred Lachs later became a judge of the International Court of Justice, while Krzysztof Skubiszewski was the Polish Minister of Foreign Affairs in the first independent, post-communist government, and judge ad hoc of the International Court of Justice. 15 Interview with Prof. Symonides, supra note 9. 16 From the interviews with Prof. Maria Frankowska (a member of the Editorial Board and later the Deputy Editor-in-Chief) and Prof. Renata Szafarz (also a member of the Editorial Board and later the Editor-in-Chief), dated 20 April 2019, on file with the authors. 17 The first Editorial Board was composed of Wojciech Morawiecki, Witalis Ludwiczak, Andrzej Wasilkowski, and Katarzyna Michałowska), while the new Editorial Committee included Lech Antonowicz, Leon Babi´nski, Remigiusz Bierzanek, Wojciech Góralczyk, Manfred Lachs, Stanisław Nahlik, Zbigniew Rotocki, Krzysztof Skubiszewski, Mieczysław So´sniak, Janusz Symonides, Karol Wolfke and Remigiusz Zaorski.

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the Committee on Legal Sciences of the Polish Academy of Sciences (a separate entity from the ILS) became a co-publisher.18 During the first two decades of its existence, the Yearbook almost exclusively published articles and works by Polish scholars. In the majority of cases the articles were translated from Polish (some of them had been previously published in Polish, while others were simply prepared in Polish and subsequently translated). At the same time, the topics that were addressed were quite diverse. Some of them were directly connected to Poland (this was particularly visible in those volumes which were published after some important international law events involving Poland19 ), but more frequently they simply reflected the scientific interests of specific authors. The connection to Poland was more visible in other parts of the Yearbook. For example, the book reviews section only included reviews of monographs on international law published by Polish authors in Polish (this was regarded as a kind of summary for foreign readers). Another section consisted of abstracts of the decisions of Polish courts involving international elements. The PYIL also featured short notes on the Polish position in ‘selected matters involving legal issues dealt with by international organizations, especially by the United Nations and its specialized agencies,’20 as well as so-called ‘chronicles’ containing various information on scientific life in Poland, and a Polish bibliography on international law. While most of those additional features, which started in 1972, were published irregularly (only the book reviews and bibliography sections were included in every volume), the Yearbook as a whole could have been seen as a showcase of Polish scholarship in the field of international law, with the emphasis on public international law. A turning point for the Yearbook was 1992, when Prof. Władysław Czapli´nski (at that time an assistant professor) joined the Editorial Board. While the texts of Polish authors still constituted a majority of the Yearbook’s content, articles by foreign scholars (not only from the West but also from other CEE countries) became more frequent, in some volumes even attaining a 50:50 ratio). On the other hand, the review section switched its focus completely from Polish scholarship to that of foreign authors. The section on the Polish practice in international law was resurrected, providing not only abstracts of pertinent judicial decisions but also more detailed analyses and summaries relating to both judicial and state practice.21 Later, the scope of the Yearbook was widened in order to accommodate EU law, because of the significance of the European integration process for Poland and the shift of many Polish authors from international to European law. Last but not least, the new Board 18 This decision was predominantly motivated by financial reasons, making it possible to access to additional financial resources. 19 Those events included, for example, the conclusion of the Treaty of Warsaw between Poland and West Germany in 1970, which confirmed the existing borders of Poland, or the launch of the Conference on Security and Co-operation in Europe (1973) and the subsequent Helsinki Process (1973-1975) in which Poland was very much involved. 20 PYIL (1966/67) 1: 6. 21 For example, the Yearbook published for some time a conspectus of international agreements concluded by Poland during the period covered by each specific volume.

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also introduced ‘calls for papers’.22 Prior to this decision in most cases potential authors were simply identified by the Board and invited to submit their manuscripts (and were paid for their work). The opening of the journal to foreign scholars coincided in time with the painful period of transformation of the Polish economy from the centrally-planned regime to the free-market, capitalist system. This period was characterized by the severe austerity policies and general underfunding of all public institutions, including research centres such as the ILS. The Yearbook suffered as well. Individual volumes of the PYIL were frequently published with considerable delay, and eventually some of them covered more than one year. Financial stabilization was reached in 2010 with the publication of 29th volume. Since then the Yearbook has been published regularly on an annual basis. The share of foreign texts has remained at the same (high) level set in 1990s by Prof. Czapli´nski. A partially new Editorial Board has also kept some of the PYIL’s traditional sections, such as the Polish practice in international law or book reviews (although not limited to Polish authors). In 2017, the Editors decided to discontinue publication of the Polish bibliography of international law, recognizing that the relevant data were easily accessible on other specialized platforms (e.g. in the Polish Legal Bibliography series published by the ILS). Currently the great majority of the articles published in the PYIL are submitted in response to its call for papers. Individual volumes have remained general, although from time to time the Yearbook has dedicated parts of its content to some specific issues (e.g. in the form of mini-symposiums).23 The publication strategy in terms of substantive content is discussed in the subsequent section of this chapter. Over the last decade the Yearbook, following the general trends in the publishing business, has also become ever more digitalised. In 2012, the ILS launched a journal webpage. The Yearbook has also been gradually included in the most important legal electronic databases, such as Westlaw, HeinOnline, LexisNexis, and EBSCO. It has also become available in the regional Central and Eastern European Online Library (CEEOL) as well as on local digital platforms such as the PAS Electronic Library run by the Polish Academy of Sciences and Czytelnia Czasopism by a Polish subsidiary of the international publisher Wolters Kluwer. The PYIL is currently indexed in the Emerging Sources Citation Index (ESCI), which is a part of the prestigious Web of Sciences (since 2014); the European Reference Index for the Humanities and the Social Sciences (ERIH PLUS) (since 2017); the Central European Journal of Social 22 The first call stated ‘The Polish Yearbook of International Law publishes articles on public international law, conflicts of laws, and different aspects of relationship between international law and municipal legal systems. The Yearbook is open for Polish and foreign authors.’ The call also asked for a submission of manuscripts, which was a novelty at that time—at least in Poland, in the form of digital files to be sent on IBM PC diskette elaborated using Word Perfect 5.1 (see PYIL (1991–1992) 19:6. 23 For example, a special section dedicated to the judgment of the European Court of Human Rights in the Janowiec and Others v. Russia case (PYIL (2013) 33:205-362; the Ukrainian-Russian conflict (PYIL (2014) 34:37-132); or the mini-symposium on general principles of international law (PYIL (2017) 37:232-272).

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Sciences and Humanities (CEJSH) (since 2008); as well as in the Index Copernicus (since 2009). In 2020 the Yearbook has been included in the Scopus database. Most of the articles are also available on the Social Science Research Network (SSRN), albeit only some time after their publication in the hard copy version. The submission process has been digitalized as well, a process which culminated in the implementation of a fully automated editorial platform in 2019. All of these efforts relating to digitalization and the journal’s wider reach have translated into a growing interest on the part of Polish and foreign scholars in publishing with the Yearbook. The submission rate has grown exponentially, reaching a 6:1 ratio (submissions v. published papers) in 2018/19. While some texts are commissioned by the Editorial Board (although they are still subject to review), the great majority go through a regular double-blind review process and are selected solely on the basis of the assessments prepared by reviewers (note that about half of them are affiliated with foreign research institutions).

22.4 The PYIL’s Functions and Impact As indicated above, the initial function of the Yearbook was to provide a platform for Polish scholars for dissemination of the results of their research to a wider international audience. It seems that the ‘missionary’ objective of sharing the Polish experiences in the application of international law with the rest of the world was only of a supplementary (or instrumental) character, mainly performed by other PYIL sections. This situation has changed over time. The collapse of communism throughout the CEE region opened the many new doors for Polish international law scholars. They did not need to limit themselves to one specific journal, but could publish their scholarship wherever they wanted (although from the practical point of view it might have been easier to successfully submit an article to one of the local publishers). At the same time, the increasing specialization and proliferation of scientific journals also worked against the initial publication model of the Yearbook. As a consequence, the PYIL had to rethink its objectives and open itself to foreign authors. The Editors decided to maintain the general character of the journal and define its objectives in terms of scientific excellency rather than through some ‘missionary’ or niche reference points. This translated into a greater diversity of the voices contained in the Yearbook, but sometimes led to a lack of clear focus. If something was valuable from the scientific point of view, it was published irrespective of its connection to Poland. Interestingly, various yearbooks in other parts of the world (including in those countries that have never experienced any kind of totalitarian regime) went through the same process. Initially they primarily aimed at attracting local authors and serving as a platform for dissemination of their research results at the international level, but with the growing globalization and digitalization of the world they have also realized that the nation-based publication model is simply outdated (except perhaps for the biggest and most influential countries).

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More recently however, the PYIL Editorial Board has attempted to redefine the objectives of the Yearbook once again. There seems to be a growing feeling among the Polish (or more generally CEE) scholars that research coming from this part of Europe remains marginalized in the mainstream literature. Indeed, the Western journals seem to be dominated by authors coming from a group of the leading universities in Western Europe, the United States, Canada and Australia. Of course, the simplest reason behind this phenomenon could be quality of their research. While such an explanation may be true to some extent, in our opinion this does not really explain the whole situation. In many instances the limited presence of Polish (as well as other CEE) researchers is caused by other factors, such as lack of international experience and contacts (especially in case of younger and older scholars), inadequate language competences, or a lack of recognition of what currently constitutes a ‘fashionable’ topic. All these issues seem to be more of a technical rather than substantive nature, and in most cases they can be properly addressed in the course of the publication process. It also seems that certain topics are particularly important for this part of Europe, but may remain underappreciated in the ‘Western’ scholarship (here a good example could be the judgment of the European Court of Human Rights (ECtHR) in the Katy´n case,24 which generated a lot of attention in Poland and the CEE countries).25 This situation has been seen not as a challenge, but rather as an opportunity for the Yearbook, allowing it to publish high quality research that, for various reasons, has limited opportunities to appear elsewhere. Of course, such an approach requires some additional technical work, but this is seen a price worth paying. The Yearbook also aims to contribute to the current important scientific and political debates in the field of international and European law, particularly if they relate to the CEE region. The various controversial reforms introduced in Poland over the last four years may serve as a good example here. The PYIL has published two critical analyses of the amendment to the Act on the Institute of National Remembrance—Commission for the Prosecution of Crimes against the Polish Nation, which in its initial version limited freedom of expression, including in academic debates, over the role of Poles in the Holocaust.26 Several articles relating to the rule of law crisis in Poland, including its assessment under EU law, have also appeared in the Yearbook.27 Following the annexation of Crimea by the Russian Federation, a series

24 The

Katy´n massacre was a series of mass executions of Polish military officers and intelligentsia carried out by the Soviet Union between April and May 1940. Altogether about 22,000 people were killed. The case in the ECtHR originated from two applications brought by fifteen Polish nationals in 2007 and 2009 against the Russian Federation. The applicants claimed that the Russian Federation had failed to conduct an effective investigation against suspected perpetrators and as a consequence violated the duty to investigate incorporated in Art. 2 (right to life) of the Convention for the Protection of Human Rights and Fundamental Freedoms. 25 ECtHR (Grand Chamber), Janowiec and Others v. Russia, App. Nos. 55508/07 and 29520/09, Judgment of 21 October 2013. 26 Wierczy´ nska 2017; Grzebyk 2017. 27 See e.g. Bard 2016; Kochenov 2019.

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of articles referring to the Ukrainian – Russian conflict was published in 2015.28 At the same time, we need to admit that much more could have been done.29 The PYIL has a good reputation among Polish legal scholars, who praise its scientific quality and the independence of the review process. As a consequence (also keeping in mind that the publication opportunities are greater than ever before) in recent years the PYIL has witnessed a constant growth in the number of submissions from local authors, and for most of them the Yearbook is the journal of their first choice. The scientific position of the Yearbook has been also formally recognized by the Polish Ministry of Science and Higher Education, which consistently identifies it as one of the leading Polish legal journals.30 It is hard to measure the impact of the Yearbook outside of Poland. The articles which appear in the Yearbook are steadily cited in the international literature. Occasionally the Yearbook is also referred to by international courts and institutions (perhaps the most prestigious reference was made by the International Court of Justice in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case).31 At the same time, we do not have any effective tools to measure its influence or compare it with other yearbooks. One indication of the Yearbook’s rank is its inclusion in 2014 in the ESCI, which according to its publisher ‘aims to extend the scope of publications in the Web of Science to include high-quality, peer reviewed publications. This ensures important research is visible in the Web of Science Core Collection even if it is not yet internationally recognized.’ We tend to agree that this statement realistically captures the current position of the Yearbook within the international law scholarship.

22.5 The Future of the PYIL The very general objective set by the Editorial Board for the future is to increase the international visibility of the Yearbook. A key step in this context is the inclusion of the Yearbook in the Web of Science Core Collection (which implies calculation of its impact factor). This step should not only increase the impact of the journal but also attract new authors, thus expanding the submission base and giving the Editors an even greater choice of high-quality papers. 28 Grzebyk

2014: 39-60; Cwicinskaja 2014: 61-87; Grant 2014: 89-114; Värk 2014: 115-131.

29 The PYIL planned the publication of a special section dedicated to the rule of law crisis in Poland.

Unfortunately, this did not work out, mainly because of a lack of high-quality submissions. 30 For the latest assessment, see Komunikat Ministra Nauki i Szkolnictwa Wy˙zszego z dnia 31 lipca 2019 r. w sprawie wykazu czasopism naukowych i recenzowanych materiałów z konferencji mi˛edzynarodowych wraz z przypisan˛a liczb˛a punktów (2019) [Communique of the Minister of Science and Higher Education from 31 July 2019 on the list of scientific journals and reviewed international conference materials, together with a number of assigned points (2019)], available at: https://bit.ly/2GEJ8eo (accessed 9 July 2020). 31 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ, Judgement, 3 February 2012, para. 68.

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At the same time, the Board believes that specialization will be increasingly important as a way to distinguish the Yearbook from competitors. While the PYIL intends to remain a general journal of international law, specialization can be secured by other means. Our plan is to focus even more intensively on the CEE region. In practical terms, this means that the majority of the texts that are published in the Yearbook should come from the authors from the region (without however any specific country dominating the volume) or from those who are writing about issues that are particularly relevant for the CEE. Poland, as the largest country in the CEE (both in terms of its size and available resources), seems to be well placed to be a leading voice of the region (although our colleagues from Czech, Slovakia or other CEE countries may legitimately disagree with such a vision). Some initial elements of this strategy have already been implemented. In particular the Board distributes the PYIL’s calls for papers through its communication channels within the CEE and takes into account this objective of the Yearbook as an additional criterion when selecting texts for publications. Of course there is always a room for improvement. One may enhance dissemination of PYIL’s calls for papers in the region, e.g. through the authors that have published with the Yearbook in the past or relevant national branches of the ILA. We also see potential in our Scientific Board,32 which includes a number of leading international law scholars from the region. The Committee on Legal Sciences of the Polish Academy of Sciences—co-publisher of the Yearbook—may also serve as a platform for connecting the PYIL with the legal institutes of national Academies of Sciences from the region.33 Although we do not exclude co-operation with other CEE yearbooks, the potential that exists in this sphere seems to be limited. Due to the overlapping objectives (i.e. offering fora for scholars from the same region and making their work more visible to the international audience), these journals are naturally more competitors rather than allies. The biggest difficulty in the successful implementation of the above plans is related to the limited financial and human resources available to the Editorial Board. Although some progress has been made over the last decade, there are still no longterm financial guarantees and budgets are approved on yearly basis. In addition, the available resources are also insufficient to implement new projects or advertise the Yearbook more extensively, and only allow for the publication of individual volumes. There are also some important questions which still need to be answered by the Editorial Board. For example, it needs to be decided whether Yearbook should still be published in Poland or rather moved to one of the international publishing houses. While the latter solution may restrict some of the freedoms enjoyed by the Board, it will also make the Yearbook accessible to a wider distribution network and increase its access to relevant international publishing expertise. As an alternative strategy, the 32 The current Scientific Board is composed of Przemysław Saganek (Chair), Maurizio Arcari, Louis

Balmond, Jan Barcz, Stephan Hobe, Jerzy Kranz, Stefan Oeter, Photini Pazartzis, Jerzy Poczobut, Pavel Šturma, Erica de Wet, Roman Wieruszewski, and Andreas Zimmermann. 33 The Polish Academy of Sciences has cooperation agreements with all its national counterparts from the region.

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Editorial Board is also considering the full digitalization of the Yearbook, combined with full open access to the content of the journal. Both moves would be revolutionary from the perspective of the current PYIL, but they might fit nicely into its history of constant change and adaptation.

References Bard P (2016) Scrutiny over the Rule of Law in the European Union. Polish Yearbook of International Law 36:187–208. Cwicinskaja N (2014) The legality and Certain Legal Consequences of the “Accession” of Crimea to the Russian Federation. Polish Yearbook of International Law 34:61–87. de la Rasilla I (2018) A Very Short History of International Law Journals (1869-2018). The European Journal of International Law 29(1):137–168. Grant T D (2014) The Budapest Memorandum of 5 December 1994: Political Engagement or Legal Obligation? Polish Yearbook of International Law 34:89–114. Grzebyk P (2014) Classification of the Conflict between Ukraine and Russia in International Law (Ius ad Bellum and Ius in Bello). Polish Yearbook of International Law 34:89–114. Grzebyk P (2017) Amendments of January 2018 to the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation in Light of International Law. Polish Yearbook of International Law 37:287–300. Hazard J N (1972) Soviet Yearbook of International Law, 1969. Edited by the Soviet Association of International Law. Nauka Publishing House, Moscow. Kochenov D (2019) Article 7 TEU: A Commentary on a Much Talked-about “Dead” Provision. Polish Yearbook of International Law 38:165–187. Stola D (2000) The anti-zionist campaign in Poland 1967–1968, available at: https://web.ceu.hu/ jewishstudies/pdf/02_stola.pdf. Sztucki J (1974) Jus cogens and the Vienna Convention on the Law of Treaties: A critical appraisal. Springer-Verlag, Vienna/New York. Värk R (2014) The Advisory Opinion on Kosovo’s Declaration of Independence: Hopes, Disappointments and Its Relevance to Crimea. Polish Yearbook of International Law 34:115–131. Wierczy´nska K (2017) Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation as a Ground for Prosecution of Crimes against Humanity, War Crimes and Crimes against Peace. Polish Yearbook of International Law 37:275–286.

Chapter 23

Anuario Español de Derecho Internacional: History, Functions and Future Eugenia López-Jacoiste and María José Cervell Hortal

Contents 23.1 History and Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.2 Internal Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.3 Recent Developments and Manuscript Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.4 Visibility and Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.5 Some Final Remarks About the Future and New Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The Anuario Español de Derecho Internacional (AEDI) provides an annual report on new developments, trends and challenges in international law and international relations. Doctrinal studies and other articles published in this Yearbook address issues of enduring interest for scholar and practitioners in international law. With a long-standing tradition close to half a century, this Yearbook relies on the solidity and continuity of the successive editorial teams. Good work, research of scientific interest, selection of the collaborators, and opportunity of the contents, have led our Yearbook towards a growing recognition by Spanish and European scholars. Keywords International Law · International Relations · research of scientific interest · impact and visibility

E. López-Jacoiste Universidad de Navarra, Pamplona, Spain e-mail: [email protected] M. J. Cervell Hortal (B) University of Murcia, Murcia, Spain e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_23

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23.1 History and Function This Anuario Español de Derecho Internacional was founded in 1974 as Anuario de Derecho Internacional (Yearbook of International Law, which must not be confused with Spanish Yearbook of International Law, founded in 1991 and edited by the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales) but in 2006, the name changed to Anuario Español de Derecho Internacional (AEDI) just to make a better identification. The foundation date of the Yearbook is not trivial. With more than 20 years of teaching experience the School of Law of the University of Navarra (Spain) was launched to take new challenges regarding research and scientific journals. In order to favour the investigation and the visibility of the results of the legal investigation, the dean of the Faculty proposed the Rector’s Office to create a new scientific journal of International Law. The acceptance of the proposal corroborated the long-term and pioneering vision of the University. Regardless of the system of government of Spain at that time, since Spain still lacked a democratic constitution, the University of Navarra was committed to academic freedom and well-done scientific research, like other large and well-known universities in the Europe. Therefore, the main foundational objective of the Yearbook was exclusively academic. It was intended to promote research and facilitate cooperation between researchers in the field of international law, in general. In the Spain of those years, the discipline of international law encompassed both public international law, as well as private law. All chairs of international law at Spanish universities were in charge of teaching and researching both disciplines. The Faculty of Law of the University of Navarra fulfilled its mission of teaching Law as well as the rest of Spanish universities, according to current national laws. The formal and academic separation of these two branches of law would come later. These contextual circumstances help to better understand the raison d’être of the Anuario de Navarra and its evolution. Issues until 1985 were focused on both disciplines, including a special section on Spanish practice on private and public international law. However, as of 1994, studies and contributions to this Yearbook are limited to the area of public international law and international relations which undoubtedly constitute two sides of the same coin. Nowadays, the Anuario Español de Derecho Internacional is one of the many publications of the University of Navarra. Regarding its origin, two important aspects must be highlighted: first, that the University of Navarra is a private university and second, that the Anuario Español de Derecho Internacional does not depend on a commercial publishing house. The University of Navarra is a private university, founded in 1952.1 At that time there were only two private universities in Spain (Deusto and Navarra) due to the legal framework in force on higher education. The University of Navarra was not an initiative of the Spanish State. The regulations then in force in Spain only allowed initiatives in the field of education under the authority of a public entity—as the 1 For

more information about the University of Navarra, see https://www.unav.edu/en/home.

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State—or the Catholic Church, in accordance with the negotiations of the new Agreements between Spain and the Holy See formally signed in 1953. Moved by the impulse of Saint Josemaría Escrivá de Balaguer, founder of Opus Dei, a group of law professors belonging to that institution of the Catholic Church, decided to promote a university, a space for university education in all the knowledge of science and without political interference after the Spanish civil war. Since then and until today, the State authorizes the studies and the issuance of academic titles of the University of Navarra according to national laws, but as a non-state educations centre, it enjoys organizational, economic and financial autonomy in accordance with its own Statutes. As mentioned above, the Anuario does not depend on a commercial publisher. This issue has its organizational and academic advantages, but also the difficulty of its financing. It receives institutional, technical and financial support from the publications service of the university. The Anuario is also supported thanks to the fees from subscribers. Since the University of Navarra is a non-profit institution, subscriptions prices only cover the costs of layout and printing. This Yearbook provides an annual report on new developments, trends and challenges in international law and international relations. Articles published in this Yearbook address issues of enduring interest for scholar and practitioners in international law. Articles can cover any topic on public international law and international relations, but leaving aside private international law, moreover since in Spain there are others specific journals of private international law. Over the years, the Yearbook has addressed very varied issues, but all of them of great interest and topical at the time of publication, for example about the Islamic State,2 the sustainable development goals of the UN,3 or the refugee’s crisis in Europe.4 As is known, in 2005 the United Nations was faced with a very complex organizational reform. The Secretary-General’s report “In larger freedom: towards development, security and human rights for all” contained many reforms proposals and recommendations in order to update the United Nations. That’s why our Anuario brought a special section that year, regarding the reform of the United Nations.5 In 2011, the development of the Arab Spring in North Africa was a great challenge to international peace and security system. The situation in Libya was particularly complex. It provoked the armed intervention by NATO and other States without express authorization of the Security Council. These facts led the editorial board to propose a monograph number of the Yearbook. Number 27 offered several doctrinal studies on the Libya crisis.6 The issue published in Spring 2019 also presents a special section focused on the crisis in Catalonia and the international law on selfdetermination and the creation of new States.7 Authors from Spain and around the 2 Longobardo

2017. Barrado 2016. 4 Ramon Chornet 2015. 5 See, particularly, Bermejo and López-Jacoiste 2005; Gutiérrez Espada 2005; Scovazzi 2005. 6 See Echevarría 2011; Oliva Martinez 2011; Cervell Hortal 2011. 7 See, for instance, Fernández Liesa 2019; Calduch 2019; López-Jacoiste 2019. 3 Díaz

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world8 are invited to publish peer-reviewed articles in Spanish, the Yearbook’s official language. Nevertheless, contributions written in French9 or English10 will be published too.

23.2 Internal Organization With a long-standing tradition close to half a century, this Yearbook relies on the solidity and continuity of the successive editorial teams. Today we have two kinds of editors: two senior (professors Romualdo Bermejo and Cesáreo Gutiérrez Espada) and two executive editors, (Maria Jose Cervell and Eugenia López-Jacoiste) since both senior editors retired in September 2018. All editors share the same goal: the publication of relevant legal studies for the scientific community in the field of international law and international relations. As executive editors, we coordinate the editorial process, but always pursuing the final assessment of the senior editors. Members of the Editorial Advisory Board also participate, when required, in this process to guarantee the journal’s quality standards. As editors, we have responsibilities toward the authors who provide the content of the journal, the peer reviewers who comment on the quality of manuscripts for publication, the journal’s readers and the scientific community as a whole. This responsibility is exercised thanks to a fluid and cordial communication between the directors and collaborators.

23.3 Recent Developments and Manuscript Management Good work, research of scientific interest and selection of the collaborators, and opportunity and interest of the contents, have led our Yearbook towards a growing recognition by Spanish and European scholars. During the last 5 years, editors have been working hard to adapt the Anuario to the quality criteria required for scientific and research evaluation. This Yearbook publishes a printed version and an open access electronic version too (or online) after a year of embargo. Some years ago, we began to be aware of the convenience of adopting our Yearbook to new times. Increasing and improving our presence on the Internet became not only convenient but also necessary. Since November 2016, you can consult its website in the portal of scientific journals of the Publications Service of the University of Navarra, which uses an Open Journal System 8 Schreiber

1978; Gros Espiell 1978; Rey Caro 1985; Barberis 1982; Arcari 1997; Mousourakis 1998; Kovács 2001; Kohen 2001; Acquaviva 2001; Meireles Pereira 2001; Citroni 2003; Pineschi 2004; Scovazzi 2005; Odello 2006; Real 2006; Haugen 2009; Seatzu 2015; Binder 2015; Longobardo 2017; Dailler 2018; Caflisch 2018; Eisemann 2018; Giraudeau 2018; Estrada Tank 2019; Coppelli 2019; Cocchini 2019; Delalic 2019; Wengler 1985. 9 Schreiber 1978; Caflisch 1993; Kovács 2001. 10 Ramcharan 1975; Kovács 2004; Milano 2006.

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(OJS) platform.11 On this website you can access all the volumes of the Anuario from its beginnings, as well as all the specific information of the publication, according to the quality criteria required by the prestigious databases. As is well known, the most important criteria when considering the quality of a research journal are: the composition of the Editorial Committee and the Advisory Board—sufficiently outsourced to avoid manipulation—the timeliness of publication, the peer review, the visibility and impact of the publication, a code of ethics and open access to the contents. All these criteria are already met in our Yearbook. All contributions must be original and still unpublished; papers already printed elsewhere will not be accepted. In addition, to ensure true plagiarism-free investigation, every article received is subjected to an anti-plagiarism program (Turnitin) before starting the external peer review process. In order to guarantee the periodicity of the Yearbook all manuscripts and contributions must be submitted through our website or by e-mail before 15 January. The printed version will be published in the following spring. This Yearbook has different sections: 1. Doctrinal Studies: This section includes legal research papers that are unpublished and that correspond to current affairs and interests of international order and international relations. It is open to free participation and contributions are subject to peer review. 2. Notes are foreseen for the analysis of Spanish diplomatic, legislative, judicial and other domestic practices with an incidence in international law. This section also includes studies and legal comments shorter than Doctrinal Studies, which deal with current affairs of the international order. It is open to free participation and contributions are subject to peer review. 3. Decision of judicial bodies: This section collects and analyzes the main and most emblematic decisions of the Spanish judicial bodies applying international law. The directors of the Yearbook can propose to a series of authors if they want to collaborate. 4. Books reviews: this section presents comments on the new published monographs of international law that are argumentative and innovative. These reviews are carried out by scholars previously designated by the Editors of the Yearbook. Any text considered as Doctrinal Studies and Notes will be subject to a blind review process. The ‘instructions for authors’ indicate procedures for blinding author identities or reviewer selection. Accordingly, the Executives Editors will request two experts on the field to issue two separate reports in order to make a publication decision. In case of disagreement between the two peer reviewers, a third report will request. Reviewers who accept the evaluation request receive the anonymous manuscript and the evaluation form. Once the publications decisions are filled, authors may be required to proofread the first printed proofs, and to return them within a limited period of time, 11 See

https://www.unav.edu/publicaciones/revistas/index.php/anuario-esp-dcho-internacional/index

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(approximately 10–15 days). At this stage no substantial changes will be allowed. Authors will receive a hard copy of the Yearbook where their text is published and a digital copy of their article. After describing peer review and the editorial process from the perspective of innovations as a contentious set of procedures, we describe the method used to gather data.

23.4 Visibility and Impact The Anuario Español de Derecho Internacional has a paper edition (800 pages per year) and an electronic version (Open Journal System platform, OJS). All the subscribers to the printed edition, as well as the exchanges and the donations can have free access to the electronic edition. The electronic edition is in open access after one year of embargo.12 Online or traditional (printed) publication has been a continuous debate in recent years. Statistical data show that younger researchers normally use the digital version of the Yearbook, due to the obvious advantages such as an easier access, immediacy and agility. But we cannot deny the fact that printed editions are still necessary and that making them disappear would be premature. Converting the Yearbook into an exclusively online version could reduce expenses and it would even accelerate the editorial process, but universities continue to count the volumes of books and magazines that house their libraries. As long as almost all of our subscribers to the print edition are libraries and some of our readers continue to prefer the direct touch of a piece of paper, we will try to provide them with that opportunity. In this global era of digitalization, all good scientific research must be also registered in the various databases and repositories. The Anuario Español de Derecho Internacional is present in several databases to full text belonging to EBSCO,13 ProQuest14 and HeinOnline.15 Additionally, lawyers and practitioners can find full text papers in several databases repositories, such as, for instance, in Dadun,16 Dialnet17 or Latindex. Just as any other academic scientific journal, the Anuario Español de Derecho Internacional is evaluated by the most important Systems of Integrated Classification of Scientific Journals, such as, for instance, CIRC, MIAR or CARHUS Plus+ 2018. Furthermore, the AEDI receives citations from the journals included in this database. The publications service of the University of Navarra regularly studies the impact of all its journals and provides the respective directors with their results. Thus, for example, the evolution of the visibility and impact of 12 https://www.unav.edu/publicaciones/revistas/index.php/anuario-esp-dcho-internacional/index 13 https://www.ebsco.com/). 14 https://www.proquest.com/products-services/periodicals_index.html 15 https://home.heinonline.org/titles/Law-Journal-Library/Anuario-Espanol-de-Derecho-Internaci onal/?letter=A 16 https://dadun.unav.edu/handle/10171/39736 17 https://dialnet.unirioja.es/servlet/revista?codigo=122

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Fig. 23.1 AEDI—citation in Google Scholar. (Source Google Scholar)

our Yearbook can be observed in the following graph (see Fig. 23.1) through the quotations made in Google Scholar:

23.5 Some Final Remarks About the Future and New Goals All good work must have a projection of the future. The editors of this Yearbook periodically review and update the short and medium-term objectives of this publication. Of course, the Anuario Español de Derecho Internacional can improve the internal working of manuscripts and the information on the website, in order to offer a better service for all researchers and to be more efficient in the management of manuscripts. Our desire is to be able to achieve greater visibility for the Academy and to have more contributions from good scholars and international law practitioners. We intend to attract more authors through the publication of “Call for papers” on blogs, mailing lists and International Law institutions websites. Likewise, we are considering to include every year a fixed section on a specific subject (anniversaries commemorations, special events, current international problems or controversies…). A topic for future discussions is, as we already observed, whether the printed version of the Yearbook is destined to disappear or not. We are convinced that a high-quality library cannot do without the printed version of specific journals, but we cannot underestimate online facilities. The course of recent events has helped us to confirm that online solutions are more necessary than ever: in March 2020, during the COVID-19 crisis, when the publisher house had to delay its editing work, the readers

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of the Anuario enjoyed an easy access to the then just published 2020 volume thanks to the online version. Furthermore, thanks to technology, all the contributors had their articles published on time. Perhaps in ten years this tendency will consolidate and time will confirm that online version is the only and natural option.

References Acquaviva G (2001) Libertà o dominio dei mari: Il caso della Santa Catarina. Anuario de Derecho Internacional 17: 239-268. Arcari M (1997) The Codification of the Law of International Watercourses: The draft articles adopted by the International Law Commission. Anuario Español de Derecho Internacional 13:332. Arcari M (2004) Rermarques ocassionelles sur les contradictions de l’action du Conseil de Sécurité dans le domaine des droits de l’homme. Anuario Español de Derecho Internacional 20:3-33. Barberis J A (1982) El concepto de Tratado Internacional. Anuario Español de Derecho Internacional 6:3-28. Bermejo Garcia R, Lopez-Jacoiste E (2005) Un mundo más seguro: la responsabilidad que compartimos, informe del grupo de alto nivel sobre las amenazas, el desafío y el cambio. A modo de introducción. Anuario Español de Derecho Internacional 21:3-12. Binder Ch (2015) El Tribunal Europeo de Derechos Humanos y el Derecho de los Tratados, ¿Fragmentación o Unidad? Anuario Español de Derecho Internacional 31:297-321. Caflisch L (1993) Le règlement pacifique des différends internationaux à la lumière des bouleversements intervenus en Europe Centrale et en Europe de L’Est. Anuario Español de Derecho Internacional 9:17-39. Caflisch L (2018) Religion et cours de natation. Anuario Español de Derecho Internacional 34:551573. Calduch Cervera R (2019) The international failure of the Catalan independence movement: legal and political causes. Anuario Español de Derecho Internacional 35:127-148. Cervell Hortal MJ (2011) La resolución 1970 (2011) del Consejo de Seguridad y la remisión de la cuestión libia a la CPI: ¿la unión hace la fuerza? Anuario Español de Derecho Internacional 27:77-107. Citroni G (2003) “Desaparición forzada de personas”: desarrollo del fenómeno y respuestas de la Corte Interamericana de Derechos Humanos. Anuario Español de Derecho Internacional 19:373407. Cocchini A (2019) ¿Hacia una responsabilidad objetiva del Estado que «no puede» combatir el terrorismo internacional? Anuario Español de Derecho Internacional 35:297-331. Coppelli Ortiz G (2019) Entre el libre comercio y el proteccionismo. Impacto de los obstáculos sobre la equidad en el comercio en el marco de la Agenda 2030. Anuario Español de Derecho Internacional 35:333-371. Dailler P (2018) L’héritage de Georges Scelle, une utopie, une théorie ou une doctrine juridique? Les trois à la fois, peut-être. Anuario Español de Derecho Internacional 34:5-8. Delalic S (2019) EU Common Foreign and Security Policy and Bosnia and Herzegovina. Anuario Español de Derecho Internacional 35:617-654. Díaz Barrado C (2016) Los objetivos de desarrollo sostenible: un principio de naturaleza incierta y varias dimensiones fragmentadas. Anuario Español de Derecho Internacional 32:9-48. Echevarría Jesús C (2011) Revueltas, guerra civil tribal e intervención militar extranjera en Libia. Anuario Español de Derecho Internacional 27:185-201. Eisemann PM (2018) François de Callières et l’art de la négociation. Anuario Español de Derecho Internacional 34:9-27.

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Estrada Tank D (2019) Civil resistance in Public International Law. Anuario Español de Derecho Internacional 35:373-403. Fernandez Liesa C (2019) The legal nature of the “Procés". Anuario Español de Derecho Internacional 35:83-101. Giraudeau G (2018) La Santa Sede y el Consejo de Europa. Anuario Español de Derecho Internacional 34:207-228. Gros Espiell H (1978) La seguridad colectiva en América Latina y el Tratado de Tlatelolco. Anuario Español de Derecho Internacional 4:185-197. Gutiérrez Espada C (2005) El “uso de la fuerza” en los Informes del Grupo de Alto Nivel (2004), del Secretario General (2005) y, a la postre, en el documento final de la cumbre de Jefes de Estado y de Gobierno (Naciones Unidas, Nueva York, septiembre de 2005). Anaurio Español de Derecho Internacional 21:13-49. Haugen H M (2009) The UN and Western Sahara - Reviving the UN Charter. Anuario Español de Derecho Internacional 25:355-382. Kohen M G (2001) La contribución de América Latina al desarrollo progresivo del Derecho Internacional en materia territorial. Anuario Español de Derecho Internacional 17:57-77. Kovács P (2001) Beaucoup de questions et peu de réponses autour de l’imputabilité d’un acte terroriste à un Etat. Anuario Español de Derecho Internacional 17:39-54. Kovács P (2004) Rather judgement than opinion? Or can we speak about a third type judicial procedure before the lnternational Court of Justice? (Note under the advisory opinion of the International Court of Justice delivered about the “Wall” built on Palestinian Territory). Anuario Español de Derecho Internacional 20:447-465. Longobardo M (2017) The self-proclaimed statehood of the Islamic State between 2014 and 2017 and International Law. Anuario Español de Derecho Internacional 33:205-22. López-Jacoiste E (2019) The right to self-determination in International Law and Catalonia’s claim. Anuario Español de Derecho Internacional 35:149-178. Meireles Pereira MC (2001) Sinibaldo de Más: el diplomático español partidario del Iberismo. Anuario Español de Derecho Internacional 17:351-370. Milano E (2006) The new Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing too far South? Anuario Español de Derecho Internacional 22:413-457. Mousourakis G (1998) Applying Humanitarian Law to Non-International Armed Conflicts. Anuario Español de Derecho Internacional 14:293-319. Odello M (2006) The Developing Legal Status of the Organization for Security and Co-operation in Europe. Anuario Español de Derecho Internacional 22:351-392. Oliva Martinez D (2011) Cuestiones en torno a la legitimidad del Consejo Nacional de Transición Libio a raíz de su reconocimiento por la Asamblea General de las Naciones Unidas. Anuario Español de Derecho Internacional 27:153-183. Pineschi L (2004) Non-compliance mechanisms and the proposed center for the prevention and management of environmental disputes. Anuario Español de Derecho Internacional 20:241-278. Ramcharan B G (1975) Progress of the new international economic order: development and international economic co-operation [General Assembly Resolution 3362 (S-VII)]. Anuario Español de Derecho Internacional 2:401-409. Ramón Chornet C (2015) Sobre el impacto de la crisis de refugiados en la PCSD de la Unión Europea. Referencia a la contribución de España. Anuario Español de Derecho Internacional 31:241-264. Real B (2006) La Commission de consolidation de la paix: une organe avec un avenir prometteur? Anuario Español de Derecho Internacional 22:485-503. Rey Caro E (1985) El Tratado argentino-chileno sobre la cuestión del Beagle. Anuario Español de Derecho Internacional 8:83-100. Scovazzi T (2005) L’ambiente nel rapporto del Gruppo di Alto Livello su minacce, sfide e cambiamento. Anuario Español de Derecho Internacional 21:89-98.

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Schreiber M (1978) Reflexions sur la protection internationale des droits de l’homme au trentième anniversaire de la Déclaration Universelle. Anuario Español de Derecho Internacional 4:3-14. Seatzu F (2015) Sulla convenzione dell’organizzazione degli stati americani sui diritti delle persone anziane. Anuario Español de Derecho Internacional 31:349-366. Wengler W (1985) Efectos de los acuerdos no jurídicos entre Estados. Anuario Español de Derecho Internacional 8:17-37.

Part III

Dutch Practice

Chapter 24

Fundamental Rights in Digital Welfare States: The Case of SyRI in the Netherlands Sonja Bekker

Contents 24.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.2 Development of SyRI and Its Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.2.1 Concerns in the Drafting Stage of the Decision on SyRI . . . . . . . . . . . . . . . . . . . . 24.2.2 SyRI in Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.2.3 Context of Court Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.3 Respect for Private Life and Protection of Personal Data . . . . . . . . . . . . . . . . . . . . . . . . . . 24.3.1 Necessity, Proportionality and Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.3.2 Does SyRI Make (Automated) Decisions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.4 The Right to a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.5 Court Ruling: SyRI Violates Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.6 Outlook on Fundamental Rights in Digital Welfare States . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Public authorities are increasingly using new technologies to perform public services. Worldwide, there are many examples of what the United Nations calls ‘digital welfare states’. Although governments argue that new technologies make their services more efficient and cost-effective, many however express concern about the ‘surveillance’ of citizens. Given the widespread emergence of digital welfare states, universal guidelines are needed to explore the opportunities they offer but also their legitimate boundaries. A Dutch court case on the System Risk Indication (SyRI) is one of the first to use human rights as a basis to assess the use of new technologies for fighting social security fraud. The court case may serve as an example of how human rights may offer relevant guidance to public authorities using new technologies in a responsible manner and making sure that these contribute to the economic and social wellbeing of all citizens. Sonja Bekker holds the Jean Monnet Chair European Social Policy and is Associate Professor at Utrecht University and Tilburg University, both in the Netherlands. [email protected]. S. Bekker (B) Utrecht University, Utrecht, the Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_24

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Keywords Digital welfare state · Privacy · SyRI

24.1 Introduction Big data not only promises a wealth of information to scientists and private companies. Public authorities also have an increasing interest in using big data. The United Nations (UN) even speaks of emerging and already existing ‘digital welfare states’.1 These may be found in many part of the world, and have many different forms. Yet, digital welfare states always consist of systems of social protection and assistance which are ‘… increasingly driven by digital data and technologies that are used to automate, predict, identify, surveil, detect, target and punish’.2 This contribution gives a key example of the use of a digital system in the context of social security in the Netherlands, named SyRI (System Risk Indication). SyRI matches several public data sources in order to detect an increased risk at social security fraud.3 SyRI has been the subject of one of the first legal challenges, which considers human rights in digital welfare states. The UN has called the recent court decision a landmark ruling.4 Thus, the SyRI case is a unique example of litigation in which the use of digital tools to prevent and detect welfare fraud has been challenged on grounds of human rights.5 The purpose of this contribution is to map out which human rights feature in this court case, and to explain why the plaintiffs as well as the court find these human rights relevant. It thus provides input into international debates on human rights in the digital welfare state. Scholars argue that digitalisation, the use of big data, algorithms and artificial intelligence raises a range of questions on human rights protection.6 Not only privacy is at stake. Questions expand to the impact of digitalisation on public and ethical values, autonomy, human dignity and wellbeing.7 Such fundamental questions go beyond the single case of SyRI in the Netherlands, but feature in any developing e-government and digital welfare state.8 Additionally, they do not concern solely the use of an algorithm or technology, yet cover the broad social and political context in which technological tools are designed and used. Bertelsmann Stiftung and Algorithm Watch argue that the focus should be on the entire society that ‘…. affect 1 UN ‘Report of the Special rapporteur on extreme poverty and human rights’ Seventy-fourth session,

Item 72(b) on the provisional agenda, A/74/48,037, 11 October 2019. p. 1. 3 Decision on SyRI (Besluit SyRI), Ministry of Social Affairs and Employment the Netherlands, 17 April 2014, number 0056263. 4 UN ‘Landmark ruling by Dutch court stops government attempts to spy on the poor—UN expert’, Press release, 5 February 2020. 5 Ibid., at 1. 6 Gerards 2019; Yeung and Lodge 2019; Jak and Bastiaans 2018; Mantelero 2018. 7 Gantchev 2019; Mantelero 2018; Rathenau Instituut (2018) Doelgericht digitaliseren – Hoe Nederland werkt aan een digitale transitie waarin mensen en waarden centraal staan. Rathenau Instituut, The Hague; Allen 2016. 8 Rathenau Instituut (2018) Doelgericht digitaliseren – Hoe Nederland werkt aan een digitale transitie waarin mensen en waarden centraal staan. Rathenau Instituut, The Hague. 2 Id,

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justice, equality, participation and public welfare, either directly or indirectly’.9 Taking a holistic approach includes assessing the broad socio-technological framework, encompassing the decision-making model, the algorithm that converts this model into a computable code, the data this code uses as an input, as well as the political and economic environment surrounding its use. This context is also relevant to assess the use of SyRI, including its specific purpose to fight fraud. Questions about SyRI thus cover whether the use of the data is legal and what decision-making model is applied.10 Does this decision-making model have certain problematic biases (e.g. using a biased data set or being developed by people with underlying prejudices that were not controlled for)? Why did the government come up with the idea to use SyRI? Is there a problem that cannot be addressed in any other way (e.g. viewing the inherent complexity of the problem)? What role did austerity measures have in deciding to limit the number of ‘human’ caseworkers, and start using automation as a cheaper option? Were decisions taken in a political climate leading to increased pressure on poor people to take on low-paying jobs?11 Studying SyRI and the arguments used in court helps sketching the implications of the use of big data and algorithms in welfare provision for the protection of human rights, including the political context and societal implications. Therefore, the recent court decision is seen as a landmark ruling, which sets a strong legal precedent for other courts.12 This contribution first sketches the main characteristics of the SyRI system and the context of the court case. Then, it reviews the main fundamental rights challenges, mainly focusing on the respect of private life, the protection of personal data, and the right to a fair trial. Subsequently, it gives the key points of the court ruling. It concludes with an outlook on fundamental rights in digital welfare states.

24.2 Development of SyRI and Its Characteristics “I think that people underestimate what the threat of SyRI can do to people. My mother is panicking. She has a spare bed for guests. Sometimes my grandmother spends the night at our house. Due to SyRI my mother is scared. She is afraid that the spare bed might be explained as us having a housemate, which would affect her benefit entitlements”.13 This quote is from a worried son, living in a neighbourhood in Rotterdam that was part of a SyRI project. The quote not only sketches the context 9 Bertelsmann

Stiftung and Algorithm Watch (2019) Automating Society; Taking Stock of Automated Decision Making in the EU, Bertelsmann Stiftung and Algorithm Watch, Berlin. Bertelsmann Stiftung and Algorithm Watch 2019:9. 10 Bertelsmann Stiftung and Algorithm Watch 2019:9. 11 Ibid., at 10. 12 Ibid., at 4. 13 FNV 2019. Press release, FNV en bewoners Rotterdamse wijken Hillesluis en Bloemhof vieren intrekking SyRI-project Rotterdam, 16 July 2019, https://www.fnv.nl/nieuwsbericht/sector nieuws/uitkeringsgerechtigden/2019/07/fnv-en-bewoners-rotterdamse-wijken-hillesluis-en-b(last accessed 9 July 2020).

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in which SyRI was created and used: a focus on detecting fraud in vulnerable neighbourhoods. It also shows the operation and impact of SyRI: citizens not knowing whether they are surveilled and what behaviour ‘the system’ sees as suspicious. This might result in fear and anxiety. Such elements of a lack of transparency and anxiety feature both in the arguments of the plaintiffs and in the ruling of the court. It is not surprising that Dutch citizens do not know whether they are inspected by SyRI, or which characteristics lead to a suspicion of committing fraud. SyRI may gather a wide range of personal data, and its analytical methods are deliberately kept secret. SyRI enables public administrations in the Netherlands to combine standalone data sources containing personal data. The purpose is to detect social security fraud, tax and social premium fraud, or violation of labour law by individuals or companies. Data matching via SyRI is quite extensive, making it an example of the wide range of different systems that governments may use to understand and monitor citizens.14 SyRI did not emerge suddenly. Like in many states, the Netherlands has a long history of incorporating new technologies in the operation of its social security provisions, including for detecting fraud.15 Such early practices already received critical comments by the Dutch Data Protection Authority (DPA) on the scope of data processing vis-à-vis the principles of proportionality and transparency.16 The Dutch DPA also posed critical questions about follow-up initiatives of these early practices. Relevant issues included linking stand-alone databases in order to detect fraud, but also starting investigations without having a prior suspicion of fraud. Moreover, the insufficient purpose limitation and transparency rights of individuals were criticised.17 Arguably, such criticisms have been a reason for the Dutch government to develop a legal basis for data matching projects, eventually leading to the implementation of SyRI. Around 2012, the Dutch government started developing ideas on the design of SyRI, and these were discussed in the Second Chamber of Parliament. SyRI was not developed as a separate Act, but as an amendment of the existing Act SUWI (Structure of the Implementation of the Labour and Income Act of 2001). SUWI arranges the structure of the different public organisations that provide different types of social security, such as welfare, pensions, child-care allowances and unemployment benefits.18 As SyRI was only a small amendment of Act SUWI, it is called the Decision on SyRI (Besluit SyRI). The court, in its ruling, however calls it SyRI-legislation. Originally, SyRI combined different aims. It should enable sharing data between different public service providers in order to prevent and fight fraud.19 Moreover,

14 Ibid.,

at 1. Van der Sloot and Van Schendel 2019. 2019; Olsthoorn 2016; Brief by the United Nation Special Rapporteur on extreme poverty and human rights as Amicus Curiae in the case of NJCM c.s./De Staat der Nederlanden (SyRI) before the District Court of The Hague (case number: C/09/550,982/HA ZA 18/388). 16 Gantchev 2019, at; Brief by the United Nation Special Rapporteur, at 15. 17 Gantchev 2019; Brief by the United Nation Special Rapporteur, at 15. 18 Act SUWI of 29 November 2001: Wet structuur uitvoeringsorganisatie werk en inkomen. 19 Kamerstukken II 2012–2013, 33 579 nr. 7, 25 June 2013. 15 Gantchev

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SyRI should increase the efficiency of public administration, creating one data entrypoint for citizens, after which other public administrations could make copies. Additionally, SyRI would reduce implementation costs. Later on, the aim to fight fraud started to prevail. This all happened in a context of austerity measures on public administrations, and experiments with digitalization of public services.20 The decision on SyRI mentions a number of ‘partners’ in data sharing, including the Dutch Tax and Customs Administration, the Labour Inspectorate, the Public Employment Service, municipalities, the organisation that implements the Dutch national insurance schemes (SVB), the Ministry of Social Affairs and Employment and the Ministry of Finances. These public organisations all have single databases with data of citizens and/or companies. Article 64(1) of Act SUWI adds that, depending on the particular SyRI project and its goals, other administrative bodies and persons may become partner in data sharing as well, if they perform public law tasks. The Ministry of Social Affairs and Employment is formally responsible for the processing of personal data.21 The Act SUWI lists the categories of personal information that feed the algorithm.22 It includes 17 different categories of which one or more may be used, including information on employment, detention, sanctions, fiscal information, and information on education, pension, child-care allowances, benefit receipt, health insurance. This data may stem from different databases of the government, which may be linked to each other in order to get a more complete profile of persons.23 Public administrations collect this data for various reasons, for instance because they are responsible for establishing the right to child-care benefits or provide for pensions. In the explanatory note attached to the decision on SyRI, the legislator explains that the list does not include sensitive personal data, for instance because no data on the health of people is processed, but only data on their health insurance.24

24.2.1 Concerns in the Drafting Stage of the Decision on SyRI Already in the drafting of the decision on SyRI, concerns have been raised, notably by key advisory bodies to the government. The Dutch DPA has given two negative advices on legislative proposals to implement SyRI, both in 201225 and in 2014.26 20 Bekker

2020. at 19. 22 Besluit [Decision] SyRI Article 2 on the preconditions for the use of SyRI. 23 Article 3 Besluit [Decision] SyRI. 24 Explanatory note (Nota van Toelichting), p. 7.) 25 At that time still called SARI (System Anonymous Risk Indication), CPB, Advice for the Ministry of Social Affairs and Employment, 4 June 2012, number z2012-00237. 26 CPB, Advice to the Ministry of Social Affairs and Employment, 18 February 2014, number z2013-00969. 21 Ibid.,

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It has had a number of remarks and critiques, yet the main ones refer to Article 8 of the European Convention on Human Rights (ECHR) on the right to respect for private and family life, home and correspondence. The DPA argues that the government should describe in more detail which types of data may be processed of which groups of citizens, which circumstances require the processing of data, and what procedures apply. Moreover, it has made comments on the principles of specified, explicit and legitimate purposes of data processing, data minimisation and storage limitation.27 The 2014 advice repeats some of these concerns, specifically addressing issues such as the principle to ‘select before you collect’ in order to limit the risk of including data of too many individuals. Moreover, the Dutch DPA questions practices that make profiles based on negative characteristics such as debts, violations and sanctions, as this risks breaching an individual’s privacy to a larger degree than might be necessary. In addition, the government’s idea to collect and process special categories of personal data was criticised. Data sharing includes information on detention and health. The Dutch DPA argues that using such sensitive data requires more convincing arguments.28 In 2014, another key institution in the Netherlands, the Council of State, has given similar concerns in its advice on the decision on SyRI to the government and Parliament.29 It has advised the government to assess critically the large number of categories of personal information gathered, and the necessity to have that much data included in data sharing and profiling activities. It advices the government to explore less intrusive methods to detect social security fraud. The Council of State finds that the list of types of personal data is very extensive, and can hardly think of data that would not be included in data sharing and profiling activities. To the Council of State, it even seems that the government wants to keep all options open, whereas the government should mind data minimisation. A second main concern, which is similar to the Dutch DPA’s conclusion, is the use of special personal data on health and sanctions. The Council of State recommends to take these types of data out of the proposed Act. Third, the Council points at the principle of ‘select before you collect’ and advices to improve the proposal. Fourth, it argues that the government should consider informing persons that they are subject of investigations which might lead to a risk alert. Regarding the latter, in SyRI, a certain combination of scores on indicators leads the system to identify persons (or organisations) with a higher risk of committing fraud. The Council argues that such a risk alert is not insignificant, as a risk alert points at a concern of breaking the law, which is then reported to the public organisation responsible for further investigating the suspicion. If such an investigation does not lead to a sanction (e.g. because the person is innocent), that person is not likely to find out that he or she was subject of 27 Ibid.,

at 23. at 23. 29 The Council of State (Raad van State) advises the government and Parliament on legislation and governance. Its advice is Raad van State ‘Ontwerpbesluit houdende regels voor fraudeaanpak door gegevensuitwisselingen en het effectief gebruik van binnen de overheid bekend zijnde gegevens (Besluit SyRI), met nota van toelichting’, W12.14.0102/III, 15 May 2014, Staatscourant 2014, number 26306. 28 Ibid.,

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investigation. Hence, he or she will never inquire whether or not (s)he is registered as a person with a high risk of committing fraud. The concerns raised in the drafting stage of the decision on SyRI led to some alterations of the proposal, however these have found to be quite superficial or pragmatic.30 Although SyRI was discussed by the Second Chamber of Parliament, many feel that this discussion was not extensive enough, viewing the act’s far-reaching impact.31 Eventually, SyRI entered into force in 2014, offering a legal basis to data-sharing practices that had already been taken place.32

24.2.2 SyRI in Operation The past years SyRI has been in operation several times, making information available on its use and effectiveness. This has given rise to further concerns, which also have been raised in court. SyRI operates as follows. For each SyRI project, the project goal determines which databases and data is required. Each project has its own set of indicators, or risk model, which is seen as predictive for higher risks at committing social security fraud. The collected personal data is encrypted and then matched by the body responsible for the data analysis.33 If data matches the risk model, the respective personal data are decrypted and send back to the public administration. Moreover, the risk notification is added to a central register, which will keep the notification for two years.34 The risk notifications may be used by the public administrations that are part of the particular SyRI project in order to conduct follow-up research into the high-risk fraud case. So far, SyRI has been used in neighbourhoods of four Dutch cities, mostly neighbourhoods with a higher concentration of poorer and more vulnerable groups.35 Seemingly, this has not led to a conviction or sanction of people committing social security fraud.36 In the court case, both in the hearing and in the ruling, many concerns have played a role, which were expressed already in the 30 Gantchev

2019. Parliamentary documents Kamerstukken II 2012–2013, 3357, nr. 7; Olsthoorn 2016, who interprets the limited Parliamentary discussion as the Act getting unanimous support. 32 Olsthoorn 2016. 33 Gantchev 2019. 34 Gantchev 2019. 35 Brief by the United Nation Special Rapporteur on extreme poverty and human rights as Amicus Curiae in the case of NJCM c.s./De Staat der Nederlanden (SyRI) before the District Court of The Hague (case number: C/09/550,982/HA ZA 18/388. 36 RTL Nieuws, ‘Blijf met je klauwen van m’n wijkie af’: vier vragen over fraudedetector SyRI, 29 October 2019; see also data on use, number of households surveilled and evaluation on effectiveness in the document: Ministry Social Affairs and Employment, wobverzoek over Systeem Risico Indicatie, 26–06-2019, 2018–0,000,185,252, notably the annex. Last accessed 03–02-2020, https://www.rijksoverheid.nl/documenten/wob-verzoeken/2019/06/26/ besluit-op-wob-verzoek-over-systeem-risico-indicatie; Olsthoorn 2016 gives some numbers for uncovering fraud before 2014 (thus before SyRI yet using data linkage), taken into account a wider range of fraud detecting activities than welfare fraud only. 31 See

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drafting stage of the decision on SyRI. The plaintiffs in the court case have requested a thorough check of SyRI against the requirements of international law. They claim that SyRI has never been subject to an integral check against legal principles, the more so because it passed the Parliament without notable discussions, in spite of negative advices and criticisms by the Dutch DPA and the Council of State.37

24.2.3 Context of Court Case Eights parties have formed a coalition and started a lawsuit against the state, including NGOs, the largest Dutch trade union (FNV) and two citizens, challenging the practice of mass profiling of citizens who are not suspected of any violation or crime.38 SyRI, they argue, profiles whole neighbourhoods in order to assess the likelihood that citizens commit fraud when using social security provisions. The algorithm on which SyRI runs is not transparent and consequently cannot be checked. A salient factor is that SyRI has been used especially in neighbourhoods and areas with a higher concentration of people experiencing poverty or people belonging to vulnerable groups. A combination of concerns has led the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, to write an amicus brief to the Dutch district court, presenting his views on the case from the perspective of human rights. His interests include the possible legal precedent which the case may set concerning human rights protection of poor and vulnerable individuals living in a digital welfare state.39 In particular, Alston addresses the right to social security and the right to privacy. He sees the broad coalition of diverse NGOs entering into the legal proceeding, as a sign of widely shared concerns about the human rights implications of SyRI. Moreover, while focusing on specific groups of people, SyRI might be expanded to larger groups of individuals, likely affecting everyone’s rights in the future. The next sections zoom in on the main human rights categories that play a role in the court case: respect for private life, the protection of personal data, and the right to a fair trial. The hearing 37 In December 2019, the Dutch DPA published a list that further details when a Data Protection Impact Assessment should be made, before the processing of personal data may start. This list includes the large-scale processing and/or structural monitoring of (sensitive) personal data for the purpose of fighting fraud. It gives as an example fighting fraud by social services or by insurance companies. 38 The coalition of plaintiffs exists of: Platform for the Protection of Civil Rights (Stichting Platform Bescherming Burgerrechten), Dutch Committee of human rights lawyers (Nederlands Juristen Comité voor de Mensenrechten (NJCM), Privacy First Foundation (Stichting Privacy First), Foundation Psychotherapists and Psychologists (Stichting Koepel van DBC-vrije Praktijken van Psychotherapeuten en Psychiaters (KDVP), and the National Board of clients (representing associations of e.g. pensioners and people who have a chronic disease - Landelijke Cliëntenraad), supported by authors Tommy Wieringa and Maxim Februari. In July 2018, the national trade union FNV (Federatie Nederlandse Vakbonden) joined the coalition. 39 Brief by the United Nation Special Rapporteur at 15.

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in the district court has taken place on 29 October 2019 and the ruling was given on 5 February 2020.40

24.3 Respect for Private Life and Protection of Personal Data Privacy is one of the first human rights concerns mentioned when debating the use of personal information, by either private companies, research or public administrations.41 Such concerns feed overarching questions on big data and privacy.42 Do certain privacies face extinction, and if so, does this matter? Are privacy rights fundamental or only optional? Do individuals still have ethical responsibilities to care for the protection of their personal information?43 Individuals might feel or be quite powerless in their attempts to safeguard their personal data. Thus, is there a need to develop a collective and political approach to the protection of privacy?44 Related to governments and public administrations, some authors call to strengthen and protect public values when developing and using digital tools for public services.45 This should include safeguarding the relationship between citizens, the government, and businesses. Others sketch the dilemma for the state to protect personal freedom of citizens while also being responsible for the security of its citizens.46 Indeed, fighting fraud in order to maintain support for social security has been a main reason for the Dutch government to develop SyRI.47 Moreover, by introducing SyRI, the government provided a legal basis for already existing data matching activities.48 In the court case, the plaintiffs have brought forward Article 8 EHCR and Articles 7 and 8 of the European Charter of Fundamental Rights (Charter) on the respect for private and family life and the protection of personal data, underlining that citizens should be protected against disproportionate and arbitrary interference of public authorities in their private lives.49 Exceptions to this rule are possible, yet should 40 Case

number C/09/550,982/HA ZA 18/388, the Netherlands. 2019; Rathenau Instituut (2018) Doelgericht digitaliseren – Hoe Nederland werkt aan een digitale transitie waarin mensen en waarden centraal staan. Rathenau Instituut, The Hague. 42 The set of questions is asked by Allen 2019: 1. 43 Allen 2019: 1. 44 Allen 2016. 45 E.g. Van der Sloot and Van Schendel 2019; Bertelsmann Stiftung and Algorithm Watch 2019:9, Automating Society; Taking Stock of Automated Decision-Making in the EU; ibid., at 1. 46 Broeders et al. 2017; Gerards 2019. 47 Kamerstukken II 2012–2013, 33 579 nr. 7, 25 June 2013. 48 Olsthoorn 2016. 49 Pleitnotities NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388. Reference is also made to Article 17 of the International Covenant on Civil and Political Rights, determining that: 17(1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 17 (2) Everyone has the right to the protection of the law against such 41 Gerards

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be subject to strict demands. It has to be ‘… in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’50 The plaintiffs and the government agree that the decision on SyRI limits these rights.51 However, then citizens are entitled to information and transparency, the plaintiffs argue. Moreover, limitations to such rights have to be necessary, and there should be an effective and independent reviewer.52 Similar rules on the necessity, proportionality and subsidiarity are part of the European General Data Protection Regulation (GDPR).

24.3.1 Necessity, Proportionality and Transparency Article 8(2) ECHR thus sets that if the right to respect for private life is curtailed, this has to be prescribed by law, necessary, and there should be an independent inspectorate. A first question thus concerns whether it is indeed necessary for the Dutch government to match and run personal data from various public authorities in order to prevent and detect fraud. The (still) little effectiveness of SyRI to detect welfare benefit fraud points at the state having more effective tools to fight fraud which moreover requires less data processing (i.e. special police officers investigating fraud and only scrutinising a few people). The plaintiffs argue that necessity should be checked against the existence of a pressing social need, and question this given the ineffectiveness of SyRI.53 However, if large-scale data matching is necessary, a second question refers to transparency. Many arguments are attached to this second question. The plaintiffs summarise these as the requirement that the law should be accessible, foreseeable, and sufficiently precise, and moreover should take safety measures against abuse and arbitrary decisions.54 One difficult issue emerges already at the start of data collection. Each public administration collects data of citizens for a different purpose. This purpose might be legitimate, for instance to know whether someone is resident of a municipality. However, this citizen does not know that this data will or might be used for fraud interference or attacks. See Dagvaarding bodemprocedure SyRi, Deikwijs advocaten, 27 March 2018. See Gantchev 2019 for outlining related EU General Data Protection Regulation (GDPR) such as Article 5 on the principle of lawful, transparent and fair data processing, as well as purpose limitation and Article 6 on proportionality. 50 Article 8.2 EHCR. 51 Kamerstukken II, 2012–2013, 33,579 nr.3 The government argues in its explanations to Parliament that it has weighed the aims of the protection of economic welfare fighting fraud against the protection of privacy, and finds the former to have a larger weight, section 3a. 52 See Dagvaarding bodemprocedure SyRi, Deikwijs advocaten, 27 March 2018. 53 Pleitnotities NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388, section 7.1 to 7.3. 54 Dagvaarding bodemprocedure SyRi, Deikwijs advocaten, 27 March 2018, section 4.7.

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detection as well. In addition, while sharing some data with a public administration might be harmless, the interconnection of databases converts isolated data into a rich description of someone’s life. Moreover, citizens can hardly ever opt-out from giving their data to the government, for instance people are obliged to declare their income and savings to the tax authorities. Authors argue that defining the purpose of data collection is an important question when dealing with big data, as this often involves the reuse and matching of data. This characteristic of big data seems at odds with the requirements that personal data may only be collected and processed for a specific purpose.55 The plaintiffs in the court case argue that specifically described purposes are not only a requirement by law. They are also necessary in order to check whether data processing is necessary and proportionate.56 The plaintiffs address this issue partly under the heading of purpose limitation. They refer to the government’s deliberate aim to use a wide definition of purpose limitation, in order to facilitate the cooperation of public administration when detecting fraud. The government acknowledges this, but argues that by defining a specific purpose in each SyRI investigation, the amount of data will be limited. The purpose of the investigation determines which data needs to be shared by whom.57 The plaintiffs argue that such wide purpose limitation could be seen as a contradiction in terminis.58 Additionally, the plaintiffs find that by using data sources that were never intended for ‘secret’ investigations, every interaction between citizens and the government may have legal consequences. They call it ‘shadow accounting’ by the state. This may have a large impact on the trust citizens have in the government, potentially leading to a chilling effect on the willingness of citizens to share their data with public administrations.59 This effect is increased by the lack of an independent inspectorate checking the SyRI system,60 and the lack of information to citizens about the processing of their data. Both the special rapporteur of the UN and the plaintiffs state that SyRI’s data-linking exercises might give a very intimate picture of individuals’ lives61 collected via an intrusive process, using data that was originally collected for and justified by reference to a specific goal, and via SyRI gets used in 55 Kool

et al. 2015; Rathenau Instituut 2018. The explanation of Article 5a.1 explicitly mentions that data collected by public services in order to establish the legitimacy of benefit receipt, may be used also for SyRI projects, based on Article 64 Act SUWI. See Nota van Toelichting, Staatsblad 2014, 320; 11–09-2014. 56 Pleitnotities NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388, sections 6.4 and 6.5. 57 Kamerstukken II, 2012–2013, 33,579 nr.3 https://zoek.officielebekendmakingen.nl/kst-33579-3. html 58 Dagvaarding bodemprocedure SyRi, Deikwijs advocaten, 27 March 2018, 5.11. 59 Dagvaarding bodemprocedure SyRi, Deikwijs advocaten, 27 March 2018, section 1.7. 60 See Article 13 ECHR. 61 E.g. Municipalities collect personal data to establish residence of people, including names, gender, date and place of birth, home address, family constellation and social security number. Public employment services might have data on work history and, depending on a person’s situation, reintegration activities, extent to which someone is found fit to work, benefit receipt, etc. Such sources are linked.

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ways that were not foreseen and unannounced.62 The plaintiffs argue that the purpose of data processing is extremely broad, meaning that there is no meaningful limitation of the competences of the government.63 Additionally, the plaintiffs and the special rapporteur of the UN find that the SyRI-legislation lacks clarity. This means that citizens will face difficulties in knowing or expecting in advance about how SyRI could affect their rights. SyRI only gives a very general idea of its functioning and what effect this will have.

24.3.2 Does SyRI Make (Automated) Decisions? Related to above, an important question to answer is whether SyRI actually takes a decision. Additionally, it is relevant to know that if SyRI makes decisions, whether or not this is automated decision-making. The GDPR arranges the right not to be subject to a decision based solely on automated processing.64 According to the Dutch government, SyRI merely checks for discrepancies between the data within the different databases, and this does not involve automated decision-procedures.65 If there are discrepancies between the data sources, one or more of the administrative bodies involved in the particular SyRI project should conduct further research prior to taking decisions that may have an effect on people’s legal rights.66 This means that SyRI merely signals discrepancies between the data and the designated risk indicators, after which investigations by humans follow (if one of the public bodies indeed decides to start further research). Could SyRI thus be viewed as just a tool that does not make decisions itself? Does the use of SyRI lead to decisions solely based on automated processing? In the literature there is much debate on such questions. One such line of debate involves at which moment in time we should speak of a decision: before, during

62 Brief by the United Nation Special Rapporteur at 15; and Pleitnotities NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388. 63 Pleitnotities NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388, section 6.5. See also similar remarks of the Council of State on the draft legislation in 2014, which the Council of State repeated in its unsolicited advice in 2018. 64 Article 22 GDPR ‘The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.’. 65 Letter to Dutch Parliament of 8 June 2018: Kamerstukken II, 2017–2018, 32 761, nr. 122; repeated in a government reaction to the unsolicited advice of the Council of State, Ongevraagd advies over de effecten van de digitalisering voor de rechtsstatelijke verhoudingen, Number W04.18.0230/I, 31 August 2018. 66 Letter to Dutch Parliament of 8 June 2018: Kamerstukken II, 2017–2018, 32 761, nr. 122; repeated in a government reaction to the unsolicited advice of the Council of State, Ongevraagd advies over de effecten van de digitalisering voor de rechtsstatelijke verhoudingen, Number W04.18.0230/I, 31 August 2018.

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or after the automated processing?67 Follow-up questions include the role of civil servants. Do they base their decision on whatever the automated outcomes suggest? The Guidelines on Automated individual decision-making and Profiling explain that human involvement in decision-making should be meaningful, and not just a token gesture.68 Additionally, questions should be posed on the effect of decisions. Do decisions have a ‘legal’ or ‘similarly significant’ effects on people?69 Here, the parties in the court case have different views. The government speaks of merely checking for ‘discrepancies between data sources’, after which the real investigation and decisiontaking is done by humans. Others speak of ‘risk alerts’ or ‘flagging’, which already refers to a more serious effect on people.70 The UN interprets such flagging, as a result of data base combinations by SyRI, as individuals being quite significantly ‘inconvenienced’ by becoming the object of government scrutiny.71 Also the Council of State finds that being ‘flagged’ is not insignificant,72 specifically as all risk alerts pointing at potential fraud are collected in a central data base and stored for two years.73 Moreover, individuals may never find out that they have been flagged, if no sanction or conviction follows. The UN finds that also without being flagged, individuals are ‘inconvenienced’ for the mere fact that their personal data becomes part of much higher level of analysis than citizens who are not part of the database.74 Building on the question concerning clarity, the plaintiffs argue that automated data processing and decision-making requires particularly, clear descriptions of the circumstances in which and the conditions under which public governments may exercise their rights.75 They find that SyRI does not meet this requirement, as it is an unspecified automated processing of personal data based on risk models. Moreover, these risk models remain unknown to the public and are deliberately kept secret, an argument

67 E.g. Jak and Bastiaans 2018; Rathenau Instituut (2018) Doelgericht digitaliseren – Hoe Nederland

werkt aan een digitale transitie waarin mensen en waarden centraal staan. Rathenau Instituut, The Hague. Such questions may also include what the minimum role of humans should be at which stage of decision-making. 68 Jak and Bastiaans 2018; Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, p.21. 69 Article 22 GDPR. 70 Vetzo et al. 2018. 71 Brief by the United Nation Special Rapporteur at 15: 9. 72 As explained above as an argument by the Council of State 2014. 73 Article 6 Decision on SyRI. 74 Brief by the United Nation Special Rapporteur on extreme poverty and human rights as Amicus Curiae in the case of NJCM c.s./De Staat der Nederlanden (SyRI) before the District Court of The Hague (case number: C/09/550,982/HA ZA 18/388): 9. 75 Ibid., pleading note, section 6.1. Plaintiffs refer to the case of S. AND MARPER v. THE UNITED KINGDOM, ECHR 4 December 2008, no. 30562/04 and 30,566/04. See also Jak and Bastiaans 2018 arguing that automated decision-making should be based preferably on specific legal bases.

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that refers back to the principle of transparency.76 In this respect it is also problematic that SyRI does not operate reactively, but proactively.77 This means that citizens are not investigated based on suspicious individual situation or actions. Rather, they are investigated because they are part of a specific group or category of citizens, for instance because they live in a certain neighbourhood. This means that SyRI goes beyond the scope targeted search, yet represents a way of reasoning based on statistics, including the falls positive and negative conclusions that are part of any exercise based on statistics.78

24.4 The Right to a Fair Trial The transparency that feeds the right to a fair trial might be difficult to realise when algorithms are involved in decision-making. Algorithms are described as ‘…. non-transparent, non-neutral, human constructs’, which are designed, programmed, trained and used by human beings.79 They might thus include the same flaws in reasoning and decision-making as humans. Also, the data that are put into the algorithm might have biases or flaws whereas also the users of algorithms might be non-neutral in their judgement or misinterpret the outcome.80 It seems therefore of eminent importance that the algorithm and its functioning can be assessed in order to find out possible flaws or biases. Here, also the societal and political context is relevant, in which automatic decision-making systems are designed and the purpose for which they are used. Referring to social security, the UN finds that the balance between fair eligibility standards and strict control is easily tipped towards detecting and preventing benefit fraud. Within this context of fighting fraud SyRI was designed and implemented. The UN qualifies this as a part of a partisan political trend.81 It refers to article 9 of ICESCR, requiring that qualifying conditions to welfare benefits should be “reasonable, proportionate and transparent”. The withdrawal from such rights as well the reduction or suspension of benefits should be ‘circumscribed, based on grounds that are reasonable, subject to due process, and provided for in national law’.82 Here, thus, the lack of clarity of SyRI (see above), giving citizens at best a very general idea about its functioning, may mean that SyRI lacks the necessary 76 See

also Brief by the United Nation Special Rapporteur at 15. NJCM c.s. Solv. and Ekker, for Court hearing of 29 October 2019, Case number C/09/550,982/HA ZA 18/388, section 4.7. 78 Ibid., section 4.7. See also Zwenne et al. 2016. 79 Gerards 2019, p. 205. 80 Gerards 2019. 81 Kamerstukken II, 2012–2013, 33,579; The letter of the United Nations Special Rapporteur, p. 7. This refers also to Article 22 of the UDHR 1948 and Article 25 on the right to an adequate standard of living; Article 9 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 82 Ibid., p. 7. 77 Pleitnotities

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fundamental and procedural safeguards.83 As the operation of SyRI may include deciding on social security entitlements, the UN rapporteur also links the case of SyRI to the right to social security.84 The plaintiffs refer to Articles 6 and 13 ECHR85 on the right to a fair trial and the right to an effective remedy. They argue that the European Court of Human Rights gives a wide interpretation, letting Article 6 ECHR cover issues concerning social security and welfare benefits. The plaintiffs point out that SyRI lacks an equality of arms. Due to a lack of transparency, citizens cannot know the risk model or algorithm used and therefore cannot defend themselves against decisions based on SyRI. The government, on the other hand, knows the risk model and has chosen to keep this a secret. The government argues that the secrecy is needed, as otherwise (potential) violators would be able to circumvent the system. After all, violators would know which indicators to dodge.86 For instance, in a pre-SyRI scheme called ‘Waterproof’ the government reasoned that a low use of water could point at welfare fraud, as someone could secretly live somewhere else, while collecting welfare on their address. If people would know that water use is a risk indicator for fraud, they could turn the tap water on from time to time and thus void becoming a suspect.87 However, keeping grounds of decision-making secret, goes against relevant principles, including the rule of law which requires that laws are made public. Moreover, all parties in a court proceeding should have equal access to information.88 Counter questions include whether a risk model is the same as a law, or whether it is merely an internal procedure. Here also, the UN argues that these risk models potentially determine who is keeping and who is losing his or her right to social security and is therefore of public concern.

24.5 Court Ruling: SyRI Violates Human Rights On 5 February 2020, the District Court of The Hague has ruled on the SyRI case, concluding that SyRI violates human rights.89 To the UN it is a landmark ruling that may have large relevance to practices in other digital welfare states.90 The court particularly refers to Article 8 ECHR on the respect for private life, and pays special 83 Ibid.,

p.8. by United Nations Special Rapporteur. Refers to Article 22 of the UDHR 1948 and Article 25 on the right to an adequate standard of living; Article 9 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 85 As well as Article 47 of the Charter, on Right to an effective remedy and to a fair trial. 86 See also Brief by the United Nation Special Rapporteur at 15. 87 See also Brief by the United Nation Special Rapporteur at 15. 88 Gerards 2019. 89 Court The Hague, SyRI-wetgeving in strijd met het Europees Verdrag voor de Rechten voor de Mens, Press release, 5 February 2020. See court ruling number ECLI:NL:RBDHA:2020:865. 90 UN ‘Landmark ruling by Dutch court stops government attempts to spy on the poor – UN expert’, Press release, 5 February 2020. 84 Brief

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attention to Article 8(2) on a fair balance between societal relevance and the limitation of the right on the respect of private life. It finds that the state has a special responsibility to safeguard this fair balance when using new technologies. It rules that SyRI, in its present form, does not meet the requirements of Article 8(2) ECHR. The court finds that SyRI lacks transparency about its functioning. This lack of information could result in unfair judgements on the basis of socio-economic or migrant status. Moreover, the court is concerned about the effect of risk indications (“flagging”) on the privacy of affected individuals. The District Court has explained its ruling in 36 pages, thus paying ample attention to the details of the case and the arguments. The court finds that the government may use new technologies in order to fight fraud. Thus, the SyRI legislation has a legitimate aim to safeguard the economic wellbeing of the society.91 However, equally, new technologies spark questions on the right to the protection of personal data. The court finds that adequate protection of privacy, also in case of data sharing between public administrations, contributes to the trust people have in their governments.92 Thus, both fighting fraud and privacy protection contribute to trust. The court agrees with the plaintiffs that inadequate and untransparent protection of the right on the respect of private life, could lead to a chilling effect, making citizens less willing to share their data with the government. Therefore, on grounds of Article 8 ECHR, the government has a special responsibility to respect private life when using new technologies and come to a fair balance. Based on the law, every citizen should have a reasonable expectation that the use of SyRI sufficiently respects private life. The court finds that the SyRI legislation does not meet this requirement.93 In addition, SyRI legislation does not meet the requirements of Article 8(2) ECHR requiring that limiting the right to respect private life should be necessary, meaning that it is proportionate and related to the purpose of the data processing. The court refers to the EU’s data protection regulations (GDPR and Charter) to spell out more clearly which shortcoming SyRI has, thus harming a fair balance. In particular, the court uses the principles of transparency, purpose limitation and data minimisation.94 It rules that the implementation of SyRI is insufficiently transparent and cannot be checked. Therefore, it judges that Articles 65 and 64 SUWI, which constitute SyRI, as well as chapter 5a of the decision on SyRI, violate Article 8(2) ECHR and declares these Acts to be non-binding. Some specific details of the ruling are worth mentioning a bit more in-depth. The court paid much attention to establishing the extent to which SyRI limits the right on the respect of private life, in order to assess this limitation in the light of Article 8(2) ECHR. The court is bound by limited information, as the state did not provide details on the operation of SyRI. It therefore cannot verify whether SyRI merely compares data bases, using a simple decision-making tree.95 The law does 91 Ruling

District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.4. District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.5. 93 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.6. 94 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.7. 95 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.49. 92 Ruling

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not provide information on this either, yet, leaves options open to move towards decision-making with feedback and learning effects. The law gives, however, a list of categories of data which may be fed into SyRI. The court judges this list is limited (and not unlimited as the plaintiffs argued), however also finds that the seventeen categories listed by SyRI are broad, each category covering a wide range of issues and possible data.96 Moreover, the court notes that the SyRI legislation lacks an obligation to provide information to citizens whose data is processed. Another relevant question to assess the degree of limitation to the right on the respect of private life, is whether a risk assessment or “flagging” imposes private life. An additional question is whether SyRI does this by using profiling or automated decision-making. The court judges that SyRI does not intend to generate legal effects. However, a risk alert does have an effect on the private life of people getting such a risk alert. In this respect the court refers to the guidelines of the Article 29 Data Protection Working Party.97 This view takes into account that the risk alert is stored for two years, whereas also the police and the public prosecutor may request access to the list of risk alerts. Moreover, the court does not find it relevant to know whether decision-making is automatic in order to assess Article 8 ECHR.98 The fact that a risk alert affects someone’s private life suffices. It weighs that citizens are entitled to information about the processing of their data and should be allowed to track the processing of their data in a reasonable way. In its judgement, the court does not go into the question whether the SyRIlegislation is sufficiently accessible and foreseeable.99 However, it finds that SyRI fails to convince of its necessity in a democratic society. Therefore, SyRI does not meet the requirements of Article 8 (2) ECHR. Both parties in the court hearing agree that the purpose of fraud detection is a legitimate aim. The disagreement is on whether there is a ‘pressing social need’ to use the method of SyRI. Here, the court underlines again that fighting fraud is a legitimate goal. Also, it does not see SyRI as an ineffective or an a priori not proportionate instrument to reach its goal.100 The court also finds the choice of the legislator sufficient to create a legal basis in Article 64 Act SUWI as well as the choice to process data using an instrument such as SyRI, in the light of Article 8(2) ECHR. However, the court argues, this does not mean that the instrument that has been chosen, being SyRI, and the related procedures and legal safeguards sufficiently acknowledges the right on the respect of private life.101 Given that a large quantity of data may be processed; using indicators and a risk model that are not public and therefore unknown to those whose data is processed; 96 Ruling

District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.50. District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.59; Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. 98 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.60. 99 Referring to S. AND MARPER v. THE UNITED KINGDOM, ECHR 4 December 2008, no. 30562/04 and 30,566/04; Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.72. 100 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.77. 101 Ruling District Court The Hague ECLI:NL:RBDHA:2020:865, section 6.79. 97 Ruling

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the space the law gives to adjust the risk model based on the feedback of results; as well as the fact that citizens are unaware of having a risk alert, whereas this has a significant impact on their private lives, the court rules that SyRI does not meet the requirement of a fair balance.

24.6 Outlook on Fundamental Rights in Digital Welfare States The UN Special Rapporteur not only applauded the judgment onSyRI because it is a first time that a court has stopped the use of digital technologies and abundant information by welfare authorities, on grounds of human rights.102 He finds it also a key ruling because it sets a strong legal precedent for other courts to follow. It moreover encourage activists elsewhere to file similar legal challenges to address the risks of digital welfare states which have been emerging everywhere in the world.103 Potentially negative and devastating consequences of the use of new technologies are not always taken into account, especially from the perspective of human rights of the poorest and most marginalized.104 The threat of having negative effects on society, including distrust and chilling effects, seems largest if automated decisionmaking is developed in a socio-political context driven by negative associations, such as fraud fighting. This even leads to questions on the right to social security and equal treatment if fraud detection activities are driven by the conviction that certain areas or persons should be surveilled more deeply than others. This underlines the relevance of transparency for citizens whose data is processed. Bertelsmann Stiftung and Algorithm Watch therefore advocate for empowering citizens and NGOs so that they can learn to adapt to new challenges and address the consequences of automated decision-making. Yet, they also argue to empower public administrations so that they can build sufficient expertise to oversee the operation of automated decision-making and its societal impact. The UN points out that, within alternative political and societal context, digital tools and big data could also be used to help people who experience poverty and to safeguard human rights.105 Lastly, an inspiring question is whether there is a need to develop a collective and political approach to the protection of privacy.106 Even if individuals have access to information on automate decisionmaking and the processing of their data, it could be quite complex for individuals to read into this and keep track of all data processing initiatives by the government. Therefore, several authors suggest to create better collective facilities, including

102 UN ‘Landmark ruling by Dutch court stops government attempts to spy on the poor—UN expert’,

Press release, 5 February 2020. 2020. 104 Ibid., at 1. 105 Ibid., at 1. 106 Allen 2016. 103 Blauw

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adequate oversight bodies,107 or data attorneys who have access to and insight in algorithms.108 Acknowledgements I would like to acknowledge the inspiring input of Arjen Kamphuis, teacher in data protection. His introduction into the GDPR was excellent. He never ceased to address the wider context and implications of privacy, underlining the importance of privacy to safeguard human rights, freedom and democracy.

References Allen AL (2016) Protecting one’s own privacy in a big data economy. Harvard Law Review 130:F.71. Allen AL (2019) Imagine an unimaginable future, Speech for Dies Natalis, given at Tilburg University, 5 December 2019. https://www.tilburguniversity.edu/sites/tiu/files/download/Speech%20A nita%20Allen.pdf Last accessed 14 January 2020. Bekker S (2020) Towards an inclusive labour market: ambitions of the Dutch Public Employment Service. Peer Review paper on “Employer service delivery”. Amsterdam, 26–27 March 2020. Blauw S (2020) An algorithm was taken to court – and it lost (which is great news for the welfare state). The Correspondent 10 February 2020. Broeders D, Schrijvers E, Hirsch Ballin E (2017) Big Data and Security Policies: Serving Security, Protecting Freedom. WRR-Policy Brief 6. WRR, The Hague. Gantchev V (2019) Data protection in the age of welfare conditionality: Respect for basic human rights or race to the bottom? European Journal of Social Security, 21(1):3-22. Gerards J (2019) The fundamental rights challenges of algorithms. Netherlands Quarterly of Human Rights 37(3):205–209. Jak N, Bastiaans S (2018) De betekenis van de AVG voor geautomatiseerde besluitvorming door de overheid. Een black box voor een black box? NJB 40:3018–3024. Kool L, Timmer J, van Est R (2015) De datagedreven samenleving. Achtergrondstudie, Rathenau Instituut, The Hague. Mantelero A (2018) AI and Big Data: A blueprint for a human rights, social and ethical impact assessment. Computer Law & Security Review 34(4):754–772. Olsthoorn P (2016) Big Data voor fraudebestrijding. Working Paper nr. 21. WRR, The Hague. Van der Sloot B, Van Schendel S (2019) De modernisering van het Nederlands procesrecht in het licht van big data. Procedurele waarborgen en een goede toegang tot het recht als randvoorwaarden voor een data-gedreven samenleving. TILT/WODC, Tilburg. Vetzo M, Gerards J, Nehmelman R (2018) Algoritmes en grondrechten, Boom Juridisch, The Hague. Wolfswinkel CJ (2020) Willekeur of algoritme? Laveren tussen analoog en digitaal bestuursrecht. Oratie Tilburg University. Yeung K, Lodge M (2019) Algorithmic Regulation. Oxford University Press, Oxford. Zwenne GJ, Steenbruggen W, Reker M (2016) Rechtsbescherming bij het gebruik van big data door toezichthouders: een verkenning. Tijdschrift voor Toezicht (7)4:29–44.

107 Bertelsmann 108 Van

Stiftung and Algorithm Watch 2019:9; Wolfswinkel 2020. der Sloot and Van Schendel 2019.

Chapter 25

The Continuing Saga of State Responsibility for the Conduct of Peacekeeping Forces: Recent Practice of Dutch and Belgian Courts Nataša Nedeski and Berenice Boutin

Contents 25.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.2.1 Mothers of Srebrenica and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.2.2 Mukeshimana and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.3 The Eternal Question: Attribution of Conduct in Peacekeeping Operations . . . . . . . . . . 25.3.1 Attribution of Conduct in Periods of Transition and Withdrawal . . . . . . . . . . . . . 25.3.2 Persisting Meanderings on the Applicable Test for Attributing Conduct of Peacekeeping Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.3.3 Unresolved Issues on the Attribution of Omissions . . . . . . . . . . . . . . . . . . . . . . . . 25.4 Further Exploring the Avenue of Shared Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . 25.4.1 Multiple Attribution of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.4.2 The Obligation of Reparation in Situations of Multiple Causes . . . . . . . . . . . . . . 25.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In this contribution we reflect on two recent high-stakes cases before domestic courts on state responsibility for the actions and omissions of United Nations (UN) peacekeeping forces. Both cases are the result of efforts by surviving relatives of, respectively, victims of the Rwandan genocide in 1994 and victims of the Srebrenica genocide in 1995, to obtain reparation from troop-contributing states for the harm caused by UN peacekeeping troops’ failure to protect civilians. While the facts of both cases display some striking similarities, the courts reached opposite conclusions, with the Dutch Court holding the Netherlands responsible, and the Belgium Court rejecting any responsibility of the Belgium state. We critically review N. Nedeski (B) Amsterdam Center for International Law, Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] B. Boutin Asser Institute, The Hague, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_25

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the two cases, and analyse in particular the approach of each court regarding attribution of conduct, paying particular attention to the specific factual circumstances of transition and withdrawal in both cases, and to the issue of attribution of legal omissions. We further present observations as to the question of shared responsibility in the context of peacekeeping operations. Keywords State responsibility · Attribution of conduct · Peacekeeping operations · United Nations · Genocide · Failure to protect · Shared responsibility

25.1 Introduction In this contribution we reflect on two recent high-stakes cases before domestic courts on state responsibility for the actions and omissions of peacekeeping forces. Both cases are the result of efforts by surviving family members of, respectively, victims of the Rwandan genocide in 1994 and victims of the Srebrenica genocide in 1995, to obtain reparation from troop-contributing states for the harm caused by United Nations peacekeeping troops’ failure to protect certain civilians who were under their care.1 On 19 July 2019, the Dutch Supreme Court ruled2 that the Netherlands bears some legal responsibility for the failure to take action by the Dutch contingent of the United Nations Protection Force (hereafter: Dutchbat), in the face of the real risk that Bosnian Muslim men who had taken refuge in a Dutchbat compound would be exposed to inhumane treatment or execution by the Bosnian Serb army upon Dutchbat’s evacuation and withdrawal. When compared to the preceding Court of Appeal ruling, the Supreme Court judgment reduces the extent of responsibility of the Netherlands and puts forward a more conservative interpretation of the applicable international legal rules on responsibility for conduct occurring in the context of collaborative military operations. We discuss the reasoning of the Dutch Supreme Court and highlight various aspects that deserve further scrutiny from the perspective of international law, focusing in particular on the Court’s application and interpretation of the rules of attribution of conduct; its finding that Dutchbat’s cooperation in the evacuation of male refugees by the Bosnian Serbs outside the Potoˇcari compound was not wrongful; as well as its ruling on (partial) compensation. The Dutch Supreme Court judgment was highly anticipated by international legal scholars and has received quite some attention in international media outlets.3 The 1 It should be recalled that neither of the two cases was concerned with responsibility for the failure

to prevent the commission of genocide as such, but concerned the specific issue of responsibility for failure to protect a number of civilians having sought refuge and protection at the encampments of UN troops. 2 The Netherlands v. Stichting Mothers of Srebrenica and others, Supreme Court of the Netherlands, ECLI:NL:HR:2019:1284, 19 July 2019, available (in English) at https://deeplink.rechtspraak.nl/uit spraak?id=ECLI:NL:HR:2019:1284, accessed 17 April 2020. 3 See, e.g., A Holligan, Srebrenica massacre: Dutch state ‘10% liable’ for 350 deaths, BBC News, 19 July 2019, https://www.bbc.com/news/world-europe-49042372, accessed 23 April 2020; P Karasz,

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same cannot be said for the ruling of the Brussels Court of Appeal, which on 8 June 2018 found4 that Belgium could not be held responsible for the failure to protect civilians by the Belgium battalion of the United Nations Assistance Mission for Rwanda (hereafter: Kibat).5 When on 11 April 1994, Kibat decided to evacuate their encampment at the Ecole Technique Officielle (ETO) before withdrawing from the mission, they left 2000 Tutsi and moderate Hutu refugees who had sought refuge at the ETO to their own devices. Almost all of them were killed by Interahamwe militias shortly thereafter. As will be further discussed throughout this contribution, the facts of both cases display some striking similarities. It is therefore not surprising that the Brussels Court of Appeal discusses the (at that time most recent) ruling from the Court of Appeal of The Hague in the Mothers of Srebrenica case,6 which establishes (some) responsibility on the part of a troop-contributing state. In the end, however, the Brussels Court of Appeal finds that the facts underlying the Belgian case are different, building upon this finding to justify the conclusion that in the case before it, responsibility can be placed exclusively on the shoulders of the United Nations (UN). We critically assess the reasoning that leads to this conclusion, and argue that the constellation of facts underlying the Mothers of Srebrenica and Mukeshimana cases are not so different that they justify the Brussels Court’s conclusion of exclusive UN responsibility as the only possible outcome. We will start with a brief sketch of the factual and procedural background of the two judgments that are the subject of this contribution, before setting out to critically assess the legal reasoning employed by the courts, in particular with regard to attribution of conduct. We further present observations as to the question of shared responsibility in the context of peacekeeping operations.

Netherlands Was 10 Percent Liable in Srebrenica Deaths, Top Dutch Court Finds, New York Times, 19 July 2019, https://www.nytimes.com/2019/07/19/world/europe/srebrenica-massacre-net herlands.html, accessed 23 April 2020; I Rachidi, Holanda tiene un 10% de responsabilidad en las muertes de Srebrenica, El Mundo, 19 July 2019, https://www.elmundo.es/internacional/2019/07/19/ 5d31a1c8fc6c834b7a8b45e0.html, accessed 23 April 2020; Niederlande sind begrenzt haftbar für Morde von Srebrenica, Spiegel, 19 July 2019, https://www.spiegel.de/politik/ausland/srebrenicaniederlande-laut-hoechstrichterlichem-urteil-begrenzt-haftbar-a-1278094.html, accessed 23 April 2020. 4 Mukeshimana-Ngulinzira and others v. Belgium and others, 2011/AR/292 and 2011/AR/294, Brussels Court of Appeal, 8 June 2018 (‘Mukeshimana 2018’). Unofficial publication (in French) available at https://www.justice-en-ligne.be/IMG/pdf/bruxelles--2018-06-08--eto.pdf, accessed 17 April 2020. 5 One commentary of the case was provided by Ruys 2020. 6 Stichting Mothers of Srebrenica and others v. The Netherlands, Court of Appeal of The Hague, ECLI:NL:GHDHA:2017:3376, 27 June 2017 (‘Mothers of Srebrenica 2017’), available (in English) at https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2017:3376, accessed 17 April 2020.

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25.2 Background 25.2.1 Mothers of Srebrenica and Others The Mothers of Srebrenica case concerns the atrocities that took place in the context of the fall of the city of Srebrenica in 1995, during the armed conflict in the former Yugoslavia. Starting 3 March 1994, Dutchbat was installed in the Srebrenica enclave as a contingent of the UN peacekeeping force UNPROFOR, with its headquarters stationed in Potoˇcari (‘the compound’). Dutchbat was tasked with the protection of the Srebrenica safe area pursuant to, in particular, UNSC resolution 836,7 a mission that—in light of its unclear mandate and insufficient training and available resources—has been described as essentially impossible.8 On 6 July 1995, the Bosnian Serb army launched an attack on Srebrenica, and it took five days for the city to fall into their hands. After the fall of Srebrenica on 11 July 1995, Dutchbat set up a mini safe area that included (but was not limited to) the Potoˇcari compound, in which at least 20,000 to 25,000 civilians sought refuge. About 5,000 of these civilians were admitted into the compound. Not all refugees ended up in the mini safe area: approximately 10,000 to 15,000 Bosnian men fled to the woods that surrounded the city of Srebrenica.9 On the same day—in light of the failure of the mission to protect Srebrenica—it was decided at 23:00 to have Dutchbat prepare for the evacuation of Dutchbat and the refugees in the mini safe area; a decision that constituted the starting point of a period of transition and withdrawal. Many of us know the ending to this story. The genocide10 that ensued is one of the darkest moments in modern European history, resulting in the deaths of over 7,000 Bosnian Muslim men. The victims consisted of men captured by the Bosnian Serbs in the woods surrounding Srebrenica, but also included a substantial number of men that had sought refuge in the mini safe area (either in—or outside the compound) but were subsequently separated from the other refugees and evacuated with the cooperation of Dutchbat. In the case currently under discussion, legal proceedings were instituted against the Netherlands by the family members of ten victims that had either fled to the woods or sought refuge in the mini safe area situated outside the compound, as well as by the Mothers of Srebrenica, a foundation under Dutch law representing the interests of approximately 6,000 surviving relatives of victims of the Srebrenica genocide. 7 Mothers

of Srebrenica 2017, paras 2.17–2.20. Instituut voor Oorlogs-, Holocaust- en Genocidestudies, Srebrenica: een ‘veilig’ gebied Reconstructie, achtergronden, gevolgen en analyses van de val van een Safe Area, 2002 (‘NIOD report’), https://publications.niod.knaw.nl/publications/srebrenicarapportniod_nl.pdf, accessed 23 April 2020, at 3136. 9 Mothers of Srebrenica 2017, paras 2.29–2.43. 10 Prosecutor v Krsti´ c, ICTY Appeals Chamber Judgment, Case No IT-98-33-A, 19 April 2004; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment, 26 February 2007 (‘Bosnian Genocide’), at 376. 8 NIOD

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It is worth noting that these same events have formed the basis for judgments delivered by the Dutch Supreme Court in two previous proceedings. In 2012, the Supreme Court ruled in proceedings instituted by the Mothers of Srebrenica and others against the UN that the latter has immunity from jurisdiction;11 leaving open the question of UN responsibility for the actions and omissions of Dutchbat and prompting claimants to further pursue their case solely against the state of the Netherlands. In 2013, the Supreme Court confirmed in proceedings instituted by different claimants that the Netherlands was responsible in relation to the deaths of three specific individuals.12 Muhamed Nuhanovi´c, Ibro Nuhanovi´c and Rizo Mustafi´c had been admitted into the compound after the fall of Srebrenica but were later forced to leave by Dutchbat;13 conduct which the Supreme Court found to be attributable to the Netherlands. As is further discussed below, in its 2019 ruling in Mothers of Srebrenica, the Supreme Court builds on much of the legal reasoning employed in the Nuhanovi´c and Mustafi´c cases, though it also appears to depart from its 2013 ruling on several notable points. Compared to the Nuhanovi´c and Mustafi´c cases, which focused specifically on the deaths of three individuals that had been admitted into the compound, the claimants in Mothers of Srebrenica sought to significantly broaden the responsibility of the Netherlands in relation to the Srebrenica genocide. In essence, they based their claim on the argument that, in general, Dutchbat did too little to stop the advance of the Bosnian Serbs and protect the civilian population of the safe area around Srebrenica and, more specifically, that during the evacuation of refugees from the mini safe area Dutchbat had cooperated in the separation of male refugees from other refugees and had cooperated in the evacuation of male refugees that were staying in the compound.14 Throughout the various stages of legal proceedings that followed— which eventually culminated in the Supreme Court decision—it was accepted by Dutch courts that the Netherlands bore at least some responsibility in relation to these events. However, the extent of responsibility to be borne by the Netherlands turned out to be the main point of contention.

11 Stichting Mothers of Srebrenica and others v. The Netherlands, Supreme Court of the Netherlands, ECLI:NL:HR:2012:BW1999, 13 April 2012 (‘Mothers of Srebrenica 2012’), available (in Dutch) at https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2012:BW1999, accessed 23 April 2020. 12 The Netherlands v. Nuhanovi´ c, Supreme Court of the Netherlands, ECLI:NL:HR:2013:BZ9225, 6 September 2013 (‘Nuhanovi´c 2013’), available (in English) at https://www.rechtspraak.nl/Org anisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Supreme-court-of-the-Netherlands/ Documents/12%2003324.pdf, accessed 23 April 2020; and the identical case of The Netherlands v. Mustafi´c, Supreme Court of the Netherlands, ECLI:NL:HR:2013: BZ9228, 6 September 2013, available (in English) at https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/HogeRaad-der-Nederlanden/Supreme-court-of-the-Netherlands/Documents/12%2003329%20(1).pdf, accessed 23 April 2020. See Boutin 2013. 13 Ibro Nuhanovi´ c had been authorised to stay, but his wife and son were not, which pushed Ibro Nuhanovi´c into deciding to leave together with them. 14 Mothers of Srebrenica 2019, para 2.2.2.

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In first instance15 the District Court displayed a much more limited view on the responsibility of the Netherlands than the one promulgated by claimants. First, it held that none of Dutchbat’s conduct before the decision to evacuate could be attributed to the Netherlands,16 finding that the Netherlands only exercised effective control over Dutchbat’s conduct after it had decided (jointly with the UN) to evacuate the mini safe area.17 This view built on the Supreme Court’s reasoning in Nuhanovi´c and Mustafi´c—in particular the assertion that during this period of transition and withdrawal the situation ‘differ[ed] in one important respect from the normal situation in which troops made available by a State function under the command of the United Nations’18 —and would be reiterated in the proceedings that followed. Second, after evaluating the range of actions and omissions that had followed the decision to evacuate, the Court concluded that only Dutchbat’s cooperation in the deportation of male refugees from the compound (and not the mini safe area as such) amounted to a wrongful act for which the Netherlands could be held liable; rejecting all other claims. This meant that the family members of approximately 350 men were entitled to monetary damages.19 The Court of Appeal set aside this judgment.20 Contrary to the District Court, it did find that the Netherlands was responsible for Dutchbat’s facilitation of the separation of male refugees in the mini safe area outside the compound.21 Nonetheless, the claim for monetary damages of surviving relatives was denied due to the lack of a causal relationship between wrongful act and injury: the Court found it plausible that the men in question would have been killed by the Bosnian Serbs even if the Netherlands would not have committed the wrongful act of facilitating their separation.22 Furthermore, the Court reaffirmed that the Netherlands had acted wrongfully by not giving the male refugees inside the compound the choice of staying. However, it agreed with the state that it had not been established with a sufficient degree of certainty that the men in the compound would have survived if Dutchbat had acted differently. The Court estimated that the Netherlands had deprived those men of a 30% chance of escaping from inhumane treatment and executions, and limited the entitlement to compensation of their family members to 30% of the loss incurred.23 15 Stichting Mothers of Srebrenica and others v. The Netherlands, The Hague District Court, ECLI:NL:RBDHA:2014:8748, 16 July 2014 (‘Mothers of Srebrenica 2014’), available (in English) at https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2014:8748, accessed 23 April 2020. 16 Mothers of Srebrenica 2014, para 4.79. 17 Mothers of Srebrenica 2014, para 4.80. 18 Nuhanovi´ c 2013, para 3.12.2. 19 Mothers of Srebrenica 2014, para 4.339. 20 Stichting Mothers of Srebrenica and others v. The Netherlands, The Hague Court of Appeal, ECLI:NL:GHDHA:2017:3376, 27 June 2017 (‘Mothers of Srebrenica 2017’), available (in English) at https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2017:3376, accessed 30 April 2020. 21 Mothers of Srebrenica 2017, para 61.5. 22 Mothers of Srebrenica 2017, para 64.2. 23 Mothers of Srebrenica 2017, para 69.1.

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This judgment was—once again—set aside by the Supreme Court, which further limited the extent of responsibility by ruling that the Netherlands had only acted wrongfully towards the 350 male refugees inside the compound, and had deprived them not of a 30% chance but a 10% chance of escaping inhumane treatment and execution.24 While the Supreme Court did in the end accept a limited responsibility on the part of the Netherlands, hence providing some redress for some victims, we argue below that in several respects its reasoning on attribution, wrongfulness and compensation has unreasonably limited the possibility of holding a troop-contributing state responsible for the failure to protect civilians under their care.

25.2.2 Mukeshimana and Others The factual background of the Mukeshimana case presents some clear similarities with the Mothers of Srebrenica and Nuhanovi´c and Mustafi´c cases. The UNAMIR peacekeeping force was deployed in Rwanda with a limited mandate and limited resources while a genocide unravelled against Tutsi and moderate Hutu.25 Belgium had contributed 370 troops, 90 of which (‘Groupe Sud’) were stationed at the ETO.26 At the beginning of April 1994, the situation rapidly deteriorated, with Interahamwe militias embarking in widespread ethnic cleansing, as well as the torture and murder of ten Belgian peacekeepers.27 In this context, Rwandan civilians began to seek shelter at the ETO, with around 2000 refugees arriving at the encampment between 7 and 10 April.28 It is also in this context that Belgium and other nations sought to evacuate from the country their expatriated nationals. France and Belgium deployed special forces under national command (thus distinct from UNAMIR chain of command) for this purpose.29 On 11 April, expatriates, who had been gathered at the ETO to organise their repatriation, were safely evacuated. On the same day, after expatriates had left, the troops of Groupe Sud, under the command of Lieutenant Lemaire, left the ETO to gain the airport.30 Lieutenant Lemaire had obtained approval from the commander of the Belgian contingent Kibat, Lieutenant-Colonel Dewez, and the commander of the Kigali sector (including Kibat), Colonel Marchal.31 Left to their own means, 24 Mothers

of Srebrenica 2019, para 4.7.9. See Ryngaert and Spijkers 2019, Dannenbaum 2019. 2018, para 28. See, Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, 16 December 1999, UN Doc. S/1999/1257 Annex, p. 39. 26 Mukeshimana 2018, paras 10–11. 27 Mukeshimana 2018, paras 16 and 20. 28 Mukeshimana 2018, para 20. 29 Mukeshimana 2018, paras 18–19. Almost 1500 Belgian nationals were based in Rwanda at the time. 30 Mukeshimana 2018, para 20. 31 Ibid. 25 Mukeshimana

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the 2000 refugees attempted to leave ETO. The majority of them were immediately massacred.32 A few days later, Belgium formally withdrew from the UN mission and repatriated its contingent.33 The tragic events leading to the case have been recounted in the book by UNAMIR Force Commander General Dallaire ‘Shake Hands with the Devil: The Failure of Humanity in Rwanda’ (2003), and the movie ‘Shooting Dogs’ (2005). In first instance, the Court had found that the decision to evacuate the ETO was attributable to Belgium and not to the UN.34 The Court did not expressly refer to international law and the ILC Articles, but determined that, at the time of the evacuation, the Belgian contingent was in permanent liaison with Belgium top army staff, and that the decision to evacuate the ETO was taken without any consultation with UNAMID Force Commander General Dallaire. Therefore, the Court concluded that at the time of the evacuation the Belgian contingent was acting under Belgian command and not as UN peacekeepers under UN authority.35 The Court further determined that there was a direct causal link between the evacuation of the ETO and the subsequent massacres, as the mere presence of peacekeepers would have protected the refugees.36 The Court however did not address the question of reparation, leaving the issue aside for a future decision.37 On appeal, the Court reversed the decision, holding that Belgium held no responsibility in relation to the ETO evacuation, which, according to the Court of Appeal, was a decision exclusively attributable to the UN.38 It thereby followed the arguments of the state according to which Belgian commanders acted exclusively within the UNAMIR framework,39 and rejected the claim from victims’ relatives that the decision to leave the ETO without offering any protection to the refugees was taken without any coordination with UNAMID Force Commander General Dallaire, and that Lieutenant-Colonel Dewez and Colonel Marchal were at that time taking orders directly from Belgium.40 Having determined that the conduct was not attributable to Belgium, the Court did not examine in more details the questions of breach and of reparation. The decision of the Court of Appeal, which was not challenged in cassation,41 thereby closes the door to any opportunity for redress for the victims. Unlike the Dutch Supreme Court, which adopted a relatively narrow approach as to the extent of responsibility yet recognised that the Dutch state bore some responsibility in 32 Mukeshimana

2018, para 21. 2018, para 24. 34 Mukeshimana-Ngulinzira and others v Belgium and others, Brussels Court of First Instance, 04/4807/A and 07/15547/A, 8 December 2010 (‘Mukeshimana 2010’), para 38. See Ryngaert 2011. 35 Ibid. 36 Ibid., para 51. 37 Ibid., para 52. 38 Mukeshimana 2018, para 70. 39 Mukeshimana 2018, para 32. 40 Mukeshimana 2018, para 35. 41 Ruys 2020, p. 271. 33 Mukeshimana

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relation to the evacuation from the Potoˇcari compound, the Brussels Court of Appeal resolutely rejected any responsibility of the Belgium state for the failure to protect civilians at the ETO.

25.3 The Eternal Question: Attribution of Conduct in Peacekeeping Operations One of the main questions put before each court was whether the conduct of Dutch and Belgian peacekeepers in Srebrenica and Rwanda could be attributed to their respective troop-contributing state; an issue central to the ongoing debate on the responsibility of states and international organizations for the conduct of peacekeeping forces. Peacekeeping forces are composed of national contingents, which are state organs put at the disposal of the UN. Troop-contributing states typically transfer operational control over their troops to the UN, and retain other elements of command and control over their national contingents such as disciplinary authority, criminal jurisdiction, and the authority to withdraw forces. In practice, the division and exercise of command and control is not always clear-cut and may even deviate from what was formally agreed.42 In this context, where a peacekeeping contingent has formal ties to both a state and an international organization, different modalities of attribution become possible that are highly dependent upon factual circumstances: a particular course of conduct could be attributed to the troop-contributing state, the UN, or to both of them. Article 7 of the ILC Articles on the Responsibility of International Organizations (ARIO)43 was explicitly drafted to address attribution of conduct in peacekeeping operations.44 Pursuant to this provision, the conduct of a state organ placed at the disposal of an international organization is attributable to the organization ‘if the organization exercises effective control over that conduct.’ In its commentaries, the ILC explains that, because in peacekeeping operations military contingents still act to a certain extent as organ of the seconding state, such contingents are not ‘fully seconded’45 to the organization, and therefore do not qualify as organs of the organization which conduct would be attributed pursuant to Article 6 ARIO.46 While the UN’s official position remains that, in principle, a peacekeeping force is a subsidiary organ of the UN and hence its conduct is always attributable to the organization,47 the 42 Boutin

2017, at 157–159; Leck 2009, at 352.

43 Articles on the Responsibility of International Organizations, 2(2) ILC Yearbook (2011), UN Doc.

A/66/10, at 40–46 (‘ARIO’); and Articles on the Responsibility of International Organizations with commentaries, 2(2) ILC Yearbook (2011), UN Doc. A/66/10, at 46–105 (‘ARIO commentaries’). 44 ARIO commentaries to Article 7, para 1; Boutin 2017, at 161. 45 ARIO commentaries to Article 7, para 1. 46 ARIO commentaries to Article 7, para 1. 47 ARIO commentaries to Article 7, para 6.

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ILC, supported by a majority of scholars,48 considers that ‘[t]he criterion for attribution of conduct either to the contributing State […] or to the receiving organization is based, according to Article 7, on the factual control that is exercised over the specific conduct’.49 This test is commonly referred to as one of ‘effective control’. Nonetheless, some confusion still persists about the applicable control-based test to determine attribution of conduct in peacekeeping operations, as well as the substance of such a test. We touch upon this ongoing saga of attribution below. We start with some remarks on the attribution of peacekeeping forces conduct in periods of transition and withdrawal, where states often resume—at least partially—control over their troops (Sect. 25.3.1). The existence of such a transitional period is what unites the cases of Mukeshimana and Mothers of Srebrenica, though the two courts do not seem to give the same weight to the existence of such exceptional circumstances. We subsequently focus on the test for attribution applied by each court, which in their respective reasoning appear to deviate from the applicable legal framework set out below (Sect. 25.3.2). Finally, we highlight what we believe to be an important drawback of the interpretations put forward by these two domestic courts, which essentially risks leaving the possibility of attributing omissions to troop-contributing states unresolved (Sect. 25.3.3).

25.3.1 Attribution of Conduct in Periods of Transition and Withdrawal An obvious similarity between the Mukeshimana and Mothers of Srebrenica cases is that they both address—in whole or in part—the question of attribution of conduct in the context of a period of transition, where the national contingent is in the process of withdrawing from a UN peacekeeping operation. Such a transitional period can be an indication of at least some involvement on the part of the troop-contributing state, which would usually at least partly resume the operational command over its contingent. This can have important implications for the question of attribution. In Mothers of Srebrenica, the transitional period that commenced after the decision to evacuate on 11 July 1995 at 23:00 provided an essential factor for the analysis of Dutch courts. Referring to the cases of Nuhanovi´c and Mustafi´c, the District Court had established in first instance that after Srebrenica had fallen, the decision to evacuate Dutchbat and the refugees was taken jointly by the UN and the Netherlands,50 triggering a transitional period—distinct from the situation in which troops placed under UN command normally operate—where the Netherlands exercised effective control over the evacuation in the mini safe area.51 This was reiterated by the Court 48 See,

Boutin 2017, at 160, fn 25. commentaries to Article 7, para 4. 50 Mothers of Srebrenica 2014, paras 4.80–4.83. 51 Mothers of Srebrenica, para 4.87. 49 ARIO

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of Appeal52 and not contested in cassation by the Dutch state, which is why the attribution of conduct to the state after the period of transition and withdrawal was not the subject of further discussion by the Supreme Court. In Mukeshimana, claimants had argued that the conduct of Kibat, in particular the decision to leave the ETO and the subsequent failure to protect the individuals who sought refuge there, was to be attributed to the Belgian state, in view of the particular circumstances surrounding the evacuation of the ETO and the subsequent withdrawal of Belgium.53 While in first instance Belgian courts had found that the factual circumstances justified attribution of conduct to the Belgian state, the Brussels Court of Appeal went to great lengths to arrive at the opposite conclusion. In the process, it underlined what it believed to be essential differences between the situation at the ETO in Rwanda and the situation at the Potoˇcari compound in Srebrenica. Essentially, the Court argued that a distinction should be made between the decision to withdraw from UNAMIR (which was taken by the Belgian state somewhere between 10 and 15 April), and the withdrawal of troops from the ETO on 11 April, which was not explicitly ordered by the Belgian government.54 The utility of this distinction is rather doubtful, particularly if one considers that the evacuation of the ETO had taken place in the wider context of the decision of multiple states (including Belgium) to evacuate their nationals.55 Moreover, as pointed out by Ruys, several features unique to the Mukeshimana case make the existence of factual control on the part of Belgium even more plausible.56 The reasoning of the Brussels Court of Appeal is equally unconvincing in holding that Belgian commanders were unaware of the imminent decision of Belgium to withdraw its contingent and thus remained acting exclusively within the UNAMIR framework under UN command. In its attempt to distinguish the Mukeshimana case from the Mothers of Srebrenica case, the Brussels Court of Appeal sought to demonstrate that Kibat remained under exclusive UN command up until its formal withdrawal from the mission. The Court dismissed the submissions of UNAMID Force Commander General Dallaire, according to whom Belgian Forces stationed at the ETO had progressively been withdrawn from its command,57 and the decision to evacuate the ETO was taken under Belgium command.58 However, the factual circumstances of the case hardly support the Court’s findings. It is indeed undisputed that in the days preceding its formal withdrawal from UNAMIR, the Belgium government was in direct liaison with Belgian Kibat commanders and with the UN SecretaryGeneral.59 In this regard, the facts of Mukeshimana are undeniably comparable to the Mothers of Srebrenica case, in that a period of transition had been entered to, in 52 Mothers

of Srebrenica 2017, para 24.2. 2018, para 39. 54 Mukeshimana 2018, para 69. 55 Ibid. 56 Ruys 2020, at 274. 57 Mukeshimana 2018, para 62. 58 Mukeshimana 2018, para 68. 59 Mukeshimana 2018, paras 47–48. 53 Mukeshimana

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which Belgium arguably exercised at least partial control over its forces. All in all, one cannot escape the feeling that the Court’s resolute conclusion on this point might have been misplaced. This feeling is only exacerbated if one takes a closer look at the way in which it has interpreted the applicable test for attributing the conduct of peacekeeping forces.

25.3.2 Persisting Meanderings on the Applicable Test for Attributing Conduct of Peacekeeping Forces Both the Dutch Supreme Court and the Brussels Court of Appeal did not unequivocally apply the established test of effective control of Article 7 ARIO. In Mothers of Srebrenica, the Court maintained that Article 8 of the ILC Articles on the Responsibility of States (ARSIWA)60 was applicable to determine whether the conduct of Dutchbat could be attributed to the Netherlands. In Mukeshimana, the Court formally upheld that Article 7 ARIO was applicable, but put forward a very narrow interpretation that in some respects echoes the standard of Article 8 ARSIWA, and also appears to draw from the much criticized test of ‘ultimate authority and control’ formulated by the European Court of Human Rights in the cases of Behrami and Saramati.61 After many years of academic and judicial debates on the applicability and interpretation of Article 7 ARIO, it is surprising that both courts in the cases at hand did not follow the mainstream approach and maintained a persisting confusion between different iterations of ‘effective control’ as an attribution test. This is particularly surprising when it comes to the Dutch Supreme Court, which in its earlier rulings in the Nuhanovi´c and Mustafi´c cases had proceeded primarily from Article 7 ARIO when deciding on the attribution of Dutchbat’s conduct to the Netherlands.62 In Mothers of Srebrenica, the Supreme Court’s analysis of the issue of attribution focused exclusively on Dutchbat’s conduct up until 11 July 1995 at 23:00, which, it should be recalled, is the date and time of the decision to evacuate the compound. The victims had directed complaints specifically against the Court of Appeal’s ruling that conduct prior to the decision to evacuate—which set in motion the abovementioned period of transition and withdrawal—could not be attributed to the Netherlands. In the end, the Supreme Court’s decision reaffirmed the Court of Appeal’s finding 60 Articles on the Responsibility of States for Internationally Wrongful Acts, 2(2) ILC Yearbook (2001), UN Doc. A/56/10, pp. 26–30 (‘ARSIWA’); and Articles on the Responsibility of States for Internationally Wrongful Acts with commentaries thereto, 2(2) ILC Yearbook (2001), UN Doc. A/56/10, pp. 31–143 (‘ARSIWA commentaries’). 61 Behrami and Behrami v. France, European Court of Human Rights, 2 May 2007, Application No. 71412/01; and Saramati v. France, Germany and Norway, European Court of Human Rights, 2 May 2007, Application No. 78166/01 (‘Behrami and Saramati’). 62 Nuhanovi´ c 2013, para 3.11.3. However, in para 3.13, it takes into account Article 8 ARSIWA as well, concluding that ‘the Court of Appeal was able to find on the basis of the attribution rule of Article 7 DARIO, which is applicable to this case, partly in view of what is provided in the attribution rule of Article 8 DARS—that Dutchbat’s disputed conduct can be attributed to the State’.

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that in light of all of the factual circumstances and the special context of the case, the state did not have factual control over the conduct of Dutchbat until the formal decision to evacuate and, accordingly, its conduct during the preceding period was not attributable to the Netherlands.63 While the Supreme Court’s conclusion on this point is certainly defensible, we wish to reflect on the road travelled to reach this conclusion, which reveals some confusion as to the applicable test for attribution. The Supreme Court’s choice not to explicitly engage with Article 7 ARIO as a basis for the attribution of Dutchbat’s conduct to the Netherlands was based on its view that this provision solely serves to determine whether a given conduct is attributable to the UN, but is not relevant to decide whether a conduct is attributable to the state.64 In its reasoning, the Supreme Court seems to assume that the ARIO deals exclusively with the responsibility of international organisations and is therefore not relevant for state responsibility; and hence the question of attribution of Dutchbat’s conduct to the Netherlands should be resolved exclusively on the basis of the ARSIWA. However, such a formalistic distinction between the two sets of ILC Articles amounts to a severe oversimplification. In scenarios where both a state and an international organization are involved, the ARIO can be directly relevant for the determination of state responsibility. We can point, for instance, to Articles 58–62 ARIO that address the responsibility of a state in connection with the conduct of an international organization. Besides, as noted above, the commentary to Article 7 ARIO clearly provides that effective control is ‘[t]he criterion for attribution of conduct either to the contributing State […] or to the receiving organization’.65 The Court’s mistaken assumption that Article 7 ARIO was not relevant to the case before it steered it towards engaging exclusively with Article 8 ARSIWA,66 which provides that ‘[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’ This finding of the Supreme Court is particularly criticisable, and stems from a confusion between what are conceptually different types of control-based tests for attribution of conduct. While the tests enshrined in Article 8 ARSIWA and Article 7 ARIO are both referred to as tests of ‘effective control’, each provision has been drafted to address substantially different types of situations, and the tests enshrined in these two provisions do not have an identical content. Article 8 ARSIWA applies to the conduct of private persons or entities which, as a general rule, is not attributable to the state.67 This provision can be seen as an exception to the aforementioned general rule, recognizing that circumstances may arise where the conduct of private actors is nevertheless attributable to the state. Therefore, attribution in this context only occurs upon achievement of a relatively high threshold of ‘actual participation of 63 Mothers

of Srebrenica 2019, para 3.5.5. of Srebrenica 2019, para 3.3.5. 65 ARIO commentaries to Article 7, para 4. 66 Mothers of Srebrenica 2019, para 3.4.2. 67 ARSIWA commentaries to Article 8, para 1. 64 Mothers

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and directions given by [the] State’.68 This test was first fleshed out by the International Court of Justice in the Nicaragua case,69 which concerned the conduct of irregular armed forces, and essentially revolves around positive acts of control. The question whether the conduct of non-state actors with no formal link to a state can be attributed to that state at all is to be distinguished from the question of attribution in peacekeeping operations where state organs have been partially delegated to an international organization and have formal links to at least two international actors.70 As made clear by the ILC in its commentaries to Article 7 ARIO, ‘[i]n the context of the placing of an organ or agent at the disposal of an international organization, control plays a different role. It does not concern the issue whether a certain conduct is attributable at all to a State or an international organization, but rather to which entity—the contributing State or organization or the receiving organization—conduct has to be attributed.’71 The test developed by the International Court of Justice (ICJ) in Nicaragua is thus not of the same nature and threshold as the test of effective control in the context of peacekeeping.72 Essentially, the test of effective control in Article 7 ARIO ‘attempts to verify whether the formal delegation of control by the state to the international organisation was genuine or whether control was actually retained or resumed by the state.’73 In a context where troops have been placed at the disposal of the UN but the state in fact retains or resumes control, active participation and the explicit issuing of directions is not an absolute requirement for attributing conduct to the troop-contributing state. This is of particular relevance, as is further discussed in Sect. 25.3.3, when it comes to the attribution of conduct consisting of omissions. The Brussels Court of Appeal’s ruling in Mukeshimana also reveals much confusion about the substance of the test applicable to the attribution of conduct in peacekeeping operations. Formally, the Court recognised the relevance of the test of effective control of Article 7 ARIO to attribute the conduct of Kibat to the Belgian state. However, it considered that it would only be in the circumstances where Belgium would have given direct and precise instructions to its contingent that countermand the UN command structure that attribution could shift from the UN to Belgium.74 The Court thereby applied a very narrow interpretation of Article 7 ARIO, where only direct orders countermanding the UN command structure justify attribution to a state. As support for this assertion, the Court refers to the Hague Court of Appeal’s ruling in Mothers of Srebrenica,75 but fails to acknowledge that Dutch courts have 68 ARSIWA

commentaries to Article 8, para 4. and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), ICJ, Judgment, 27 June 1986 (‘Nicaragua’), para 115. The test was reiterated by the ICJ in Bosnian Genocide, at 399–400. 70 Montejo 2013. 71 ARIO commentaries to Article 7, para 5. 72 Boon 2014, p. 354. 73 Boutin 2017, at 160. 74 Mukeshimana 2018, paras 44 and 65. 75 Mukeshimana 2018, para 44. 69 Military

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never accepted such a narrow approach. It is worth recalling that in the case of Nuhanovi´c, the Supreme Court precisely noted that ‘[f]or the purpose of deciding whether the State had effective control it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently.’76 The interpretation of effective control under Article 7 ARIO in Mukeshimana is in a way reminiscent of Article 8 ARSIWA, which requires specific instructions and directions. However, as explained above, Article 8 ARSIWA serves an entirely different purpose and its interpretation is not transposable to the situation of UN peacekeeping. While direct instructions from troop-contributing states in contravention of the UN chainof-command clearly warrant attribution to the state, the potential circumstances in which a state exercises effective control over its contingent are much broader. In particular during periods of transition and withdrawal, where lines of command become blurred, it cannot be ignored that a state can at least partially resume control over its troops. Further confusion is brought by the Brussels Court in adding that the UN retained ‘ultimate control’ over Kibat.77 In the decried cases of Behrami and Saramati, the European Court of Human Rights had followed a similar approach, holding that that effective control in the ARIO was the applicable test, yet concluding that conduct was attributable to the UN on the basis of the ‘ultimate authority and control’ that it retained over the conduct of UN-led or UN-authorised forces.78 Since Article 7 ARIO calls for a factual and context-specific analysis of control, while ultimate control ‘hardly implies a role in the act in question’,79 this interpretation of the European Court was widely criticised as unable to grasp the nuances and realities of control in peacekeeping operations.80

25.3.3 Unresolved Issues on the Attribution of Omissions In light of the Dutch and Belgian courts’ approach to the question of attribution of conduct, we wish to highlight what we believe to be an important limitation of interpreting effective control as requiring actual participation of and directions given by the State. Such an interpretation falls short of providing answers when the conduct at stake consists of omissions resulting from a lack of operational instructions. This is particularly relevant with respect to failures to protect or other breaches of positive obligations to take action. Such breaches of positive obligations can be conceptualised as ‘legal omissions’, which themselves can be the result of either factual actions or factual omissions. On the one hand, a positive obligation to protect might often be 76 Nuhanovi´ c

2013, para 3.11.3. 2018, para 65. 78 Behrami and Saramati, para 133. 79 ARIO commentaries to Article 7, para 10. 80 See, e.g., Larsen 2008, Milanovi´ c and Papi´c 2008, Messineo 2011. 77 Mukeshimana

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breached through passive conduct or, in other words, by failing to take any action. On the other hand, positive obligations can be breached by active conduct. In both the Mothers of Srebrenica and the Mukeshimana cases, the failure to protect civilians resulted from active conduct that consisted in the evacuation respectively of the ETO encampment and the Potoˇcari compound (and in the case of Dutchbat, the active cooperation in the evacuation of refugees by the Bosnian Serbs), as well as passive conduct, namely the lack of any protection offered to refugees. Since attribution of conduct is more straightforward with regards to actions than when it comes to factual omissions, courts faced with the issue of attribution of conduct in relation to breaches of positive obligations tend to focus their analysis on identifiable active conduct, and thus seek to determine whether direct orders were given by a state leading to such conduct. This approach however fails to address violations of positive obligations in peacekeeping operations resulting from purely passive conduct that was neither ordered by the UN nor by a state. How can conduct be attributed in the case where peacekeepers simply stood by doing nothing? In previous decisions in the Nuhanovi´c case, Dutch courts had attempted to address omissions by putting forward the test of the ‘power to prevent’.81 Under this relatively broad standard, which was inspired by scholarship,82 conduct would be attributed to the state if ‘it could have prevented the conduct in question’.83 However, this standard was expressly rejected by the Supreme Court in Mothers of Srebrenica when it concluded that ‘the argument that effective control can also be evident from the circumstance that the State was in such a position that it had the power to prevent the specific acts of Dutchbat […] is also based on an incorrect interpretation of the law’.84 At the same time, as it focused its analysis on Article 8 ARSIWA and active participation, the Court was unable to formulate a nuanced position on attribution of omissions. The question of attribution of omissions is more than simply an abstract point of critique, and on that point the Dutch Supreme Court establishes a potentially dangerous precedent, whereby a troop-contributing state can hardly be held responsible for passive conduct in breach of an international obligation. In order to push forward the debate on attribution of omissions, we wish to discuss a number of different approaches that could allow establishing state responsibility for the omissions of peacekeepers. One option for courts faced with the issue of omissions in peacekeeping operations would be to put forward a less far-reaching interpretation of the power to prevent standard. While it would go too far to claim that wrongful conduct can always be attributed to a state if it could have hypothetically prevented it (which will probably 81 Nuhanovi´ c

2013, paras 3.12.2 and 3.12.3. 2010, at 157. 83 Nuhanovi´ c 2013, para 3.12.2; Nuhanovi´c v. the Netherlands, Court of Appeal in The Hague, Civil Law Section LJN:BR5388, 5 July 2011, available (in English) at https://deeplink.rechtspraak.nl/ uitspraak?id=ECLI:NL:GHSGR:2011:BR5388, accessed 17 April 2020 (‘Nuhanovi´c 2011’), para 5.18. 84 Mothers of Srebrenica 2019, para 3.5.3. 82 Dannenbaum

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always remain a theoretical possibility for a troop-contributing state, for instance by resuming command), the notion of ‘power to prevent’ can be relevant in cases where failures to act are to be attributed, in particular if the state is in the process of resuming control, such as is typically the case during periods of transition and withdrawal. As previously argued by one of the authors of this chapter, the essence of the power to prevent standard in the context of peacekeeping is not ‘that conduct would always be attributable to a state on the ground that it could always hypothetically exercise control’ but that ‘the failure of a state to exercise the operational control that it has delegated only becomes relevant when its causal link to the wrongful conduct is proximate enough, such as when a state is in the process of resuming control’.85 Another approach would be to proceed from the assumption that as soon as it has been established that a state is bound by a positive obligation to take action, and no action is taken whatsoever, it is the state that was bound to act that has breached its obligation through its own omission. Indeed, it has been noted that ‘by its very nature a failure on the part of the state to fulfil a positive obligation is conduct of that state. All of the legwork in such a case is done in determining the specific content of the specific obligation to take action and whether it was discharged.’86 For instance, in Mothers of Srebrenica, Dutch courts had ruled that through Dutchbat, the Netherlands had jurisdiction in the compound from 23:00 on 11 July 1994 within the meaning of Article 1 ECHR,87 triggering a range of positive human rights obligations for the Dutch state. If one considers that as a result of this exercise of jurisdiction the Netherlands became bound to the positive obligation to take action prevent violations of the right to life enshrined in Article 2 ECHR and the right not to be subjected to torture or to inhuman or degrading treatment in Article 3 ECHR, it becomes difficult to maintain that a total lack of action on part of the Dutch state—whether through Dutchbat or otherwise—would not be attributable to the Netherlands.

25.4 Further Exploring the Avenue of Shared Responsibility 25.4.1 Multiple Attribution of Conduct While domestic courts faced with claims of responsibility and questions of attribution understandably focus on determining whether conduct occurring in the context of peacekeeping operations is attributable to the troop-contributing state—an inevitable result of the limits of their jurisdiction—under the law of international responsibility it remains possible for the same conduct to be attributed to more than one state or 85 Boutin

2017, at 174. 2015, at 195. See also Stern 2010, at 209, who notes that where there is an omission to act ‘it is not a question of attribution of the act of a private party, but rather a failure of the State itself to comply with its primary obligations’ (emphasis added). 87 Mothers of Srebrenica 2019, para 4.2.1. 86 Jackson

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international organization.88 Accordingly, in the context of peacekeeping, it cannot be excluded that conduct attributed to a state is also attributable to the UN, and vice versa. This is particularly true during transition and withdrawal periods, which are archetypical scenarios of blurred and joint control, often resulting in shared responsibility of the UN and the troop-contributing state for the same conduct. Dutch courts have since 2011 explicitly recognized the possibility of dual attribution of Dutchbat’s conduct to both the UN and the Netherlands.89 Although the courts had to decline to exercise jurisdiction over claims against the UN due to the immunity of the organization, they openly engaged with the issue of multiple attribution of conduct, notably in response to argument of the Dutch state that Dutchbat’s conduct could not be attributed to the Netherlands because it was attributable to the UN. This argument was rejected by Dutch courts, which considered that ‘the possibility that more than one party has “effective control” is generally accepted, which means that it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party’.90 In Mukeshimana, the Court did not explicitly discuss multiple attribution, reasoning mainly in terms of exclusive attribution to either the UN or Belgium,91 and seemed to implicitly reject the possibility of dual attribution in the case, holding that at no point was there a joint control of Belgium and the UN over Kibat.92 In addition, the Court’s interpretation of the applicable test for attribution as requiring Belgium to have given direct instructions to Kibat that would have countermanded the UN command structure in order for responsibility to shift from the UN to Belgium (which we have argued to be an incorrect interpretation) is not particularly open to the possibility of dual attribution.93 Yet, the facts of the case, where both the UN and the Belgium state arguably exercised some degree of control over the operations preceding Belgium’s withdrawal, are archetypal of scenarios where multiple attribution can be argued convincingly. The Court acknowledged that, at the time of the evacuation of expatriates, the UN peacekeepers, including Kibat, were directly collaborating with French and Belgian special forces, but rejected that this resulted in a joint control of UN and Belgium over Kibat.94 It is regrettable that the Brussels Court did not examine more closely whether certain conduct could be jointly attributed to the UN and Belgium, and opted instead to attribute all actions and omissions of Kibat to the UN.

88 ARSIWA commentaries to Article 1, para 6; ARSIWA commentaries to Article 47, para 3; ARIO commentaries to Part Two, Chapter II ARIO, para 4. 89 Nollkaemper 2011. 90 Nuhanovi´ c 2011, para 5.9. 91 This also results from the parties’ arguments, which respectively put forward that the conduct of Kibat was attributable exclusively to the UN (para 32, argued by Belgium) or to the Belgium state (para 39, argued by the victims’ relatives). 92 Mukeshimana 2018, para 65. 93 Dannenbaum 2015, at 410–412. 94 Mukeshimana 2018, para 65.

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Arguably, in both cases, it could have been concluded that conduct was attributable to both the troop-contributing state and the UN, resulting in shared responsibility.

25.4.2 The Obligation of Reparation in Situations of Multiple Causes An important question that arises in any scenario of shared responsibility is how the obligation to make full reparation is to be distributed when harm suffered by injured parties is the result of multiple causes. In both cases under discussion domestic courts were confronted with claims of surviving family members seeking justice for the victims of a genocide that had resulted from the actions and omissions of a plurality of actors, including the non-state armed groups that actively engaged in the horrendous killings of thousands of civilians and the peacekeeping troops whose failure to protect the civilians under their care could arguably be attributed to both the UN and the troop-contributing state. In this final subsection we evaluate the approaches by Dutch and Belgian courts to the question of reparation in situations of multiple causes, with a particular focus on the Mothers of Srebrenica case. Whereas in Mukeshimana it was established in first instance that there was a causal link between Kibat’s withdrawal and the massacres committed by Interahamwe militias, the Brussels Court of Appeal’s ruling contains no discussion of reparation—an obvious consequence of the Court’s conclusion that Belgium did not bear any responsibility. The extent of responsibility and the corresponding reparation due by the Netherlands was one of the main points of contention throughout the proceedings in Mothers of Srebrenica, clearly illustrating the difficulties with adjudicating reparation claims when there are multiple causes of a single damage. Dutch courts engaged with the issue of multiple causes in their discussion of two separate grounds for responsibility of the Netherlands: Dutchbat’s cooperation in the evacuation of refugees outside and inside the Potoˇcari compound. First, contrary to the District Court’s ruling, the Court of Appeal had ruled that the responsibility of the Netherlands extended to Dutchbat’s cooperation in the separation of male refugees in the mini safe area outside of the Potoˇcari compound. Because Dutchbat knew or should have known of the real risk that male refugees would be exposed to a breach of their fundamental rights under Articles 2 and 3 ECHR, it should have ceased its cooperation in the evacuation. However, the existence of multiple causes was an important factor that prompted the Court to issue a declaratory judgment rather than an order for compensation. It considered that even though Dutchbat’s cooperation in the evacuation had facilitated the serious breaches of fundamental human rights committed by the Bosnian Serbs, these violations would have occurred even if Dutchbat had acted differently.95 95 Mothers

of Srebrenica 2017, at 64.2.

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Interestingly, this approach resembles that of the ICJ in the Bosnian Genocide case. In that case, the ICJ considered that the state of Serbia and Montenegro was responsible for its failure to prevent the Srebrenica genocide, but ruled that financial compensation was not an appropriate form of reparation because there was no ‘sufficiently direct and certain causal nexus’ between the breach of the obligation to prevent genocide and the injury caused by Srebrenica genocide. The ICJ found the causal nexus to be lacking because it could not be established that ‘the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations’,96 essentially adopting the but-for (or sine-qua-non) test of causation. This approach to causation in a situation where the same injury can be linked to more than one cause has been critiqued as essentially unconvincing.97 While concepts of causation in international law remain unsettled,98 various commentators have argued that the but-for test of causation is unhelpful in many cases of multiple causes and other causation tests might be more appropriate.99 In cassation, the Dutch Supreme Court found the existence of multiple causes to be a reason to even further limit responsibility of the Netherlands for the conduct of Dutchbat outside of the compound. In light of pronouncements by the European Court of Human Rights that the positive obligation to protect the right to life must be interpreted ‘in a way which does not impose an impossible or disproportionate burden on the authorities’,100 the Court concluded that Dutchbat had been entitled to continue to cooperate in the evacuation of male refugees ‘in order to prevent chaos and accidents’,101 reversing the Court of Appeal’s declaration of wrongfulness on this point. In coming to this conclusion, however, the Court did not convincingly explain how ceasing to cooperate with the Bosnian Serbs would have put an impossible or particularly cumbersome burden on Dutchbat. Instead, it repeatedly emphasized that ceasing to cooperate would not have affected the risk that male refugees outside the compound were facing,102 leaving us with the impression of an unclear fusion of causation and wrongfulness that unjustifiably limits the responsibility of the Netherlands. The inability of a state to prevent human rights violations committed by others simply cannot entitle it to actively facilitate those same violations. The second basis for responsibility of the Netherlands that prompted Dutch Courts to engage with the issue of multiple causes was Dutchbat’s cooperation in the evacuation of 350 refugees inside the Potoˇcari compound. While the responsibility of the Netherlands in this respect was upheld throughout all stages of the proceedings, claimants gradually saw the extent of reparation due by the Netherlands become more and more limited. In first instance, the District Court had ruled that the Netherlands 96 Bosnian

Genocide, at 462. 2007, at 710. 98 Plakokefalos 2015. 99 Plakokefalos 2015, at 477, Pusztai 2017, at 190, Nollkaemper et al 2020, at 25–27. 100 Finogenov and others v. Russia, European Court of Human Rights, 23 October 2002, Applications Nos. 18299/03 and 27,311/03, para 209; Mothers of Srebrenica 2019 at 4.4.2. 101 Mothers of Srebrenica 2019, at 4.5.4. 102 Mothers of Srebrenica 2019, at 4.5.4. 97 Gattini

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was bound to pay full compensation for Dutchbat’s cooperation in the deportation of male refugees from the Potoˇcari compound, finding a causal link between Dutchbat’s conduct and the killings and ill-treatment of those same refugees.103 On appeal, the obligation to pay compensation was reduced ‘in proportion to the probability that these men would have had to safely escape and survive had Dutchbat not acted wrongfully’,104 a chance that was set at 30%. This was further reduced by the Supreme Court, which estimated the chance that the male refugees could have escaped the Bosnian Serbs had they been offered the choice of remaining in the compound to be 10%.105 While the precise method used to arrive at these percentages remains elusive, the link made by Dutch courts between the probability of escape and the extent of compensation was based on the Dutch tort law ‘loss of a chance’ concept, which clearly reflects the idea that the conduct attributable to Netherlands was not the sole cause of the injury suffered, and that this should be directly reflected in the amount of compensation that victims can claim from one responsible party. From an international law perspective, Articles 31 ARSIWA and ARIO provide that a responsible state or international organization is under an obligation to make full reparation for the injury caused by the internationally wrongful act for which it is responsible. This obligation is an expression of the remedial function of the law of international responsibility, which has as one of its main goals to restore the status quo ante and place the injured party ‘in the position which would, in all probability, have existed if that act had not been committed.’106 In cases of shared responsibility of multiple states or international organisations for the same injury, the principle of full reparation in international law implies an obligation to make full reparation incumbent on each responsible actor.107 In other words, international law accommodates a principle of joint and several liability when several subjects of international law contribute to the same injury. As confirmed by the ILC ‘international practice and the decisions of international tribunals do not support the reduction or attenuation of reparation for concurrent causes, except in cases of contributory fault.’108 Such a shared obligation of reparation would enable injured parties to claim full reparation from each responsible state or international organization, and does not leave them with the burden of pursuing all of the actors that have contributed to the harm that they have suffered. It is unclear, however, whether the obligation of joint and several liability as such applies to non-state actors. In the two cases of Mothers of Srebrenica and Mukeshimana, the conduct of non-state actors who perpetrated genocide was without a doubt a significant cause of the damage suffered by victims. This could explain the position of the Dutch Supreme Court, which allowed surviving family members to 103 Mothers

of Srebrenica 2014, at 4.330, 4.338. of Srebrenica 2017, at 69.1. 105 Mothers of Srebrenica 2019, at 4.7.9. 106 ARSIWA commentaries to Article 31, at 91. 107 Nollkaemper et al 2020, at 53–59. 108 Commentaries to Article 31 ARSIWA, at 92. 104 Mothers

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claim only 10% of their damage from the Netherlands and thereby seemed to have apportioned reparation between international subjects on the one hand and nonstate actors on the other hand. While this approach certainly remains unsatisfactory from the point of view of victims who cannot easily claim reparation from non-state actors,109 it can be noted that the Dutch Supreme Court interpretation is consistent with a notion of joint and several liability of the Netherlands and the UN for the 10% of damage ascribed to the conduct of peacekeepers.

25.5 Conclusions This chapter reflected on two recent cases from Dutch and Belgian courts that concerned international responsibility in the context of peacekeeping operations respectively in Srebrenica and in Rwanda. In view of the UN’s immunity from jurisdiction, instituting proceedings before the domestic courts of troop-contributing states remain one of the rare paths for victims to seek reparation for wrongdoing during UN peacekeeping missions. Yet, in both cases, the courts provided either limited or no reparation at all for the victims. In reaching their decisions, both courts exhibited a certain degree of confusion regarding attribution of conduct in peacekeeping. Despite decades of scholarly debates and judicial practice, and notwithstanding the ILC codification work on the issue, the courts erred in determining and interpreting the applicable test for attribution of conduct. Instead of applying a factual test of effective control in line with Article 7 ARIO and taking full account of the specific circumstances preceding the withdrawal of respectively the Netherlands and Belgium from the UNPROFOR and UNAMIR missions, the Dutch Supreme Court applied Article 8 ARSIWA and sought to establish direct orders and active participation of the Netherlands, while the Brussels Court of Appeal indecisively applied two opposite tests of direct state orders and overall UN control. Further, the issue of attribution of omissions—in particular failures to protect—remains unresolved. This chapter offered some guidance and suggest possible approaches for the attribution of omissions in peacekeeping operations. When it comes to reparation, both courts failed to provide full reparation for the victims’ injuries. In this regard, we argued in this chapter that, in view of the specific circumstances of both cases, the conduct of peacekeepers in each case could have been jointly attributed to the troop-contributing state and the UN, and that such scenarios of multiple attribution of conduct entail an obligation of each the state and the UN to provide full reparation for the injury caused. There is growing acceptance in international law for a principle of joint and several liability in situations of shared responsibility,110 and the application of such principle is particularly valuable when 109 The

Mothers of Srebrenica have brought this case before ECHR, and the issue of reparation for the remaining 90% of the harm suffered appears to have been the main motivation for it. 110 Nollkaemper et al 2020, at 55–57.

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the UN shares responsibility with a state. Indeed, claiming full reparation from the state is the only option for victims as the UN remains shielded by its immunity. States on whom an obligation of full reparation is imposed are in a position to either seek contribution from the UN for part of the compensation, or to press the UN to change its policy for instance by providing a reparation fund for victims of internationally wrongful acts on peacekeeping operations. Such progressive changes would be a clear step forward, moving away from the current situation where the UN in principle claims authority over its forces and professes to assume responsibility for their conduct, yet does not indemnify victims.

References Boon K E (2014) Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines. Melbourne Journal of International Law 15(2):330–377. Boutin B (2013) The Netherlands v Nuhanovi´c, Final appeal judgment. Oxford Reports on International Law, ILDC 2061 (NL 2013). Boutin B (2017) Attribution of Conduct in International Military Operations: A Causal Analysis of Effective Control. Melbourne Journal of International Law 18(2):154–179. Dannenbaum T (2010) Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers. Harvard International Law Journal 51(1):113−192. Dannenbaum T (2015) Dual Attribution in the Context of Military Operations. International Organizations Law Review 12(2):401–426. Dannenbaum T (2019) A Disappointing End of the Road for the Mothers of Srebrenica Litigation in The Netherlands. EJIL:Talk!, available at https://www.ejiltalk.org/a-disappointing-end-of-theroad-for-the-mothers-of-srebrenica-litigation-in-the-netherlands (accessed 25 April 2020). Gattini A (2007) Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment. European Journal of International Law 18(4):695–713. Jackson M (2015) Complicity in International Law. Oxford University Press, Oxford. Larsen K M (2008) Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test. European Journal of International Law 19(3):509–531. Leck C (2009) International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct. Melbourne Journal of International Law 10(1): 346–364. Messineo F (2011) Things Could Only Get Better: Al-Jedda beyond Behrami. Military Law and Law of War Review 50:321. Milanovi´c M, Papi´c T (2008) As Bad as it Gets: The European Court of Human Rights’s Behrami and Saramati Decision and General International Law. International and Comparative Law Quarterly 58(2):267–296. Montejo B (2013) The Notion of ‘Effective Control’ under the Articles on the Responsibility of International Organizations. In: Ragazzi M (ed) Responsibility of International Organizations: Essays in Honor of Sir Ian Brownlie. Martinus Nijhoff Publishers, Leiden. Nollkaemper A (2011) Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica. Journal of Law and Criminal Justice 9:1143. Nollkaemper A et al (2020) Guiding Principles of Shared Responsibility in International Law. European Journal of International Law 30(1):15–72. Plakokefalos I (2015) Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity. European Journal of International Law 26(2):471–492.

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Pusztai D (2017) Causation in the Law of Responsibility, PhD dissertation on file at the University of Cambridge. Ruys T (2020) Mukeshimana-Ngulinzira and Others v. Belgium and Others. American Journal of International Law 114(2):268–275. Ryngaert C (2011) Mukeshimana-Ngulinzira and ors v Belgium and ors, First instance judgment. Oxford Reports on International Law, ILDC 1604 (BE 2010). Ryngaert C, Spijkers O (2019) The End of the Road: State Liability for Acts of UN Peacekeeping Contingents After the Dutch Supreme Court’s Judgment in Mothers of Srebrenica. Netherlands International Law Review 66:537–553. Stern B (2010) The Elements of an Internationally Wrongful Act. In: Crawford J, Pellet M, Olleson S (eds) The Law of International Responsibility. Oxford University Press, Oxford.

Chapter 26

The Enemy of My Enemy: Dutch Non-lethal Assistance for ‘Moderate’ Syrian Rebels and the Multilevel Violation of International Law Tom Ruys and Luca Ferro

Contents 26.1 Introduction: Blowing the Lid off the Dutch Non-lethal Assistance Program . . . . . . . . . 26.2 Caught Between a Rock and a Hard Place: Support for the ‘Moderate’ Opposition . . . . . 26.2.1 Facts and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.2.2 Jousting by the Dutch Political and Legal Elite . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.3 Questions of Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.3.1 Aiding Rebels Aiming to Overthrow a De Jure Government: A Prohibited Intervention, Use of Force, or Act of Aggression? . . . . . . . . . . . . . . . . . . . . . . . . . 26.3.2 Facilitating Freedom Fighters’ Faux Pas: (In)direct State Responsibility? . . . . . 26.4 The Legal Framework in Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.4.1 Non-lethal Assistance: What’s in a Name? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.4.2 Assistance to Whom? Moderate Rebels Versus Extremist and Terrorist Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.4.3 Objectives and Oversight of the NLA Program . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Tom Ruys is Professor of international law at the Ghent Rolin-Jaequemyns International Law Institute (GRILI), Ghent University, Belgium ([email protected]). Luca Ferro is a Post-doctoral researcher at the Ghent Rolin-Jaequemyns International Law Institute (GRILI), Ghent University, Belgium ([email protected]). A minor update was conducted in June 2020, to take into account the report of the Commissie van Advies inzake Volkenrechtelijke Vraagstukken (CAVV) and the Adviesraad Internationale Vraagstukken (AIV) on non-lethal assistance solicited by the Dutch parliament: CAVV/AIV, ‘Het leveren en financieren van “niet-letale steun” aan niet-statelijke, gewapende groepen in het buitenland’, 25 June 2020, CAVV Advice no. 35/AIV advice no. 114, available at. https://www.adviesraadinternationalevraagstukken.nl/documenten/publicaties/2020/06/25/nietletale-steun-aan-niet-statelijke-gewapende-groepen-in-het-buitenland (last accessed 9 July 2020). All online sources were last accessed on 17 April 2020, and all direct quotations from Dutch sources are translations by the authors. T. Ruys · L. Ferro (B) Ghent Rolin-Jaequemyns International Law Institute (GRILI), Ghent University, Brussels, Belgium e-mail: [email protected] T. Ruys e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7_26

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26.5 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

Abstract Between 2015 and 2018, the Dutch government has supported Syrian rebels fighting the regime of President Bashar al-Assad through a ‘non-lethal assistance’ (NLA) program. Pertinent questions have been raised regarding the program’s compatibility with international law and a joint commission was tasked with developing criteria to evaluate the legality and political expediency of future programs. This commentary looks in retrospect at the legality of the NLA program. The substantive analysis is divided into three sections: First, it provides an overview of hard-andfast facts about the program that have come to light following an admirable amount of journalistic scrutiny and parliamentary debate. Second, it takes a helicopter view of the legal landscape, touching upon the relevant primary norms of international law. Third, it applies that legal framework to the Dutch NLA program, tackling a threefold question: (1) Is the type of assistance legally relevant? (2) Is the type of beneficiary non-State armed group legally relevant? (3) Is the aim or purpose of the assistance programme legally relevant? While the authors recognize that the program was limited in scope and explicitly designed to stay within (or as close as possible to) the parameters of the international legal framework, they nevertheless conclude that it violated the principle of non-intervention, the prohibition on the use of force and the duty to ensure respect for international humanitarian law. Moreover, it may have led to secondary State responsibility for serious breaches of international law committed by the beneficiary armed groups. This conclusion puts in doubt the legality as a matter of lex lata of any such future program, be it lethal or not. Keywords non-lethal assistance · non-state armed groups · non-international armed conflicts · the prohibition on the threat or use of force · the principle of non-intervention · the duty to respect and ensure respect for international humanitarian law

26.1 Introduction: Blowing the Lid off the Dutch Non-lethal Assistance Program On 10 September 2018, reporting by the Dutch newspaper Trouw and current affairs television program Nieuwsuur caused political uproar in the Netherlands.1 According to the reports, the Dutch government had for years supported Syrian rebels fighting the regime of President Bashar al-Assad through a ‘non-lethal assistance’ (NLA) program. The program as such did not come as an absolute surprise, even if many 1M

Holdert and G Dahhan, Nederland Steunde ‘Terreurbeweging’ in Syrië, NOS, 10 September 2018, https://nos.nl/nieuwsuur/artikel/2249806-nederland-steunde-terreurbeweging-in-syrie.html; G Dahhan and M Holdert, Hoe de Nederlandse Overheid een Syrische ‘Terreurbeweging’ Faciliteerde, Trouw, 10 September 2018, https://www.trouw.nl/nieuws/hoe-de-nederlandse-overheideen-syrische-terreurbeweging-faciliteerde~bd73dd6e/.

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details had until then remained classified.2 More disturbing, however, was the revelation that certain beneficiary groups were labelled as ‘criminal organizations with a terrorist intent’ by the national Public Prosecution Service. Bizarrely, this resulted in criminal prosecutions of nationals for joining such groups who were, at the same time, materially supported by the Dutch government.3 In addition, pertinent questions were raised regarding the program’s compatibility with international law—an allegation that carries significant weight in the Netherlands as a country that prides itself on a constitutional duty to ‘promote the development of the international legal order’.4 A joint commission was tasked with examining the Syrian NLA program for the purpose of developing criteria to evaluate the legality and political expediency of future programs.5 This commentary looks in retrospect at the legality of the NLA program. It is, moreover, informed by (publicly available) legal advice provided to the Dutch government—both internally and externally, as well as a priori and a posteriori.6 The substantive analysis is divided into three sections: First, we provide an overview of hard-and-fast facts about the program that have come to light following an admirable amount of journalistic scrutiny and parliamentary debate, and summarize the back-and-forth between the Dutch government, the External Advisor on International Law (or Extern Volkenrechtelijk Adviseur (EVA)), and members of parliament on the legal issues. Second, we take a helicopter view of the legal landscape, touching upon the relevant primary norms of international law. These include the principle of nonintervention, the prohibition on the use of force, the duty to ensure respect for international humanitarian law (IHL), and the Arms Trade Treaty (ATT). This section moreover discusses possible secondary State responsibility for supporting non-State armed groups acting in breach of international law and takes a look at the possible legal justifications that might preclude wrongfulness. Third, we apply that legal framework to the Dutch NLA program and tackle a threefold question: 1. Is the type of assistance legally relevant? 2. Is the type of beneficiary non-State armed group legally relevant? 2 The Netherlands, Tweede Kamer der Staten-General, Lijst van Vragen en Antwoorden, Kamerstuk

32623 no. 229, 28 September 2018, question 112. e.g., M Holdert and G Dahhan, Vrijspraak voor Teruggekeerde Syriëganger Driss M, NOS, 27 June 2019, https://nos.nl/nieuwsuur/artikel/2290932-vrijspraak-voor-teruggekeerde-syr ieganger-driss-m.html. 4 See Article 90 of the 2008 Constitution of the Kingdom of the Netherlands. 5 The Nederlands, Tweede Kamer der Staten-Generaal, Stemming Brief Toetsingskader voor het Leveren en Financieren van Niet-letale Steun aan Niet-statelijke, Gewapende Groepen in het Buitenland, 5 November 2019, TK 19-15-1. The joint commission submitted its advice on 25 June 2020 (CAVV/AIV 2020). 6 Nollkaemper 2013; The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Minister van Buitenlandse Zaken, Kamerstuk 32623 no. 230, 1 October 2018; The Netherlands, Tweede Kamer der Staten-Generaal, Verslag van een Rondetafelgesprek, Kamerstuk 32623 no. 242, 30 October 2018, at 2-22; Nollkaemper 2018. 3 See,

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3. Is the aim or purpose of the assistance programme legally relevant? It follows from this outline that the contribution deals with the legality of support from States to non-State armed groups, to the exclusion of inter-State military assistance and the ‘intervention by invitation’ doctrine.7 Similarly, it does not intend to take up the legality of multilateral military action against ISIS on Iraqi and Syrian territory.8 Finally, the clear focus will be on Dutch practice and opinio juris, even if the research findings may be extrapolated to other, similar programs in Syria or elsewhere.

26.2 Caught Between a Rock and a Hard Place: Support for the ‘Moderate’ Opposition 26.2.1 Facts and Context Syria has been wracked by deadly conflict since March 2011.9 The country has been left utterly devastated: the war has caused close to 400.000 deadly casualties including 115.000 innocent civilians, led 5.5 million Syrians to desperately seek refuge abroad, and necessitates a reconstruction effort that is currently estimated at between $250 and 400 billion.10 From the very beginning, the involvement of outside Powers was ubiquitous—culminating, among other, in the launch of the US-led, antiISIS Operation Inherent Resolve in 2014; Russian, pro-Assad airstrikes in 2015; and several Turkish military incursions since 2016.11 In Europe, a fragile arms embargo was imposed on Syria on 9 May 2011, which collapsed on 31 May of the same year under heavy French and British pressure.12 7 The

International Law Association (ILA) Committee on the Use of Force has now also taken up the topic (renamed ‘Military Assistance on Request’), see: https://www.ila-hq.org/index.php/com mittees. 8 But see: Corten 2018. 9 International Crisis Group 2020. 10 Syrian Observatory for Human Rights, Nearly 585,000 People Have Been Killed since the Beginning of the Syrian Revolution, 4 January 2020, https://www.syriahr.com/en/?p=152189; UNHCR, Operational Data Portal, Total Persons of Concern by Country of Asylum, https://data2.unhcr.org/ en/situations/syria; J Dahler, The Paradox of Syria’s Reconstruction, Carnegie Middle East Center, https://carnegie-mec.org/2019/09/04/paradox-of-syria-s-reconstruction-pub-79773. 11 For a closer look at the various military actions undertaken in Syria by outside Powers since the second half of 2013, see the bi-annual Digests of State Practice published by the Journal on the Use of Force and International Law at https://www.tandfonline.com/loi/rjuf20. For early reporting and legal analysis, see: Henderson 2014, at 659–664 and Ruys 2014. For an overview of arms transfers to Syrian warring parties, see: De Groof 2013 and Berghezan 2017. For the impact of third-State involvement on the conflict classification, see: Gill 2016 as well as Wallace et al. 2017. 12 EU Council Decision 2013/255/CFSP (31 May 2013), OJ 2013 L 147/14. See also: BBC, EU Ends Arms Embargo on Syrian Rebels, 28 May 2013, https://www.bbc.com/news/world-middle-east-226 84948; EU Sanctions Map (2020) Syria. https://www.sanctionsmap.eu/#/main; SIPRI, EU Arms

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However, from the very beginning an explicit exception was made for so-called ‘non-lethal military equipment or … equipment which might be used for internal repression, intended solely for humanitarian or protective use’.13 That exception was broadened in February 2013 to include ‘non-combat vehicles which … provide ballistic protection’ as well as ‘technical assistance … and other services’ if intended solely for the civilian protection and benefit of rebel forces.14 In June 2013, the then Dutch Minister of Foreign Affairs, Frans Timmermans, informed his Parliament that the lapse of the European arms embargo did not undermine the customary principle of non-intervention, which proscribed military support and training for the armed opposition. However, he also noted that the Assad regime’s lack of legitimacy—given its history of human rights violations on a massive scale— and the broad (political) recognition of the Syrian opposition meant that ‘the supply of military equipment to the [latter], in exceptional cases and under specific conditions, need not be contrary to international law’.15 Fast forward to late 2014 and a new power balance in Syria, pitting the reviled regime against the most extremist rebel groups: Jabhat Al-Nusra and ISIS.16 In the view of the Netherlands, the more ‘moderate’ opposition needed propping up to ‘pose a credible alternative’ to both unpalatable sides and provide citizens with a modicum of safety and protection.17 A fact-finding mission was dispatched to map the risks and opportunities of providing such armed groups with ‘non-lethal assistance’.18 The support was to include solely goods of a non-military nature not subject to an export licence. The resulting NLA program effectively ran from 28 July 2015 until 7 April 2018, costing close to e 28 million,19 but went into high gear following French and American requests to that effect in the aftermath of the November 2015 terror attacks in Paris and the adoption of Resolution 2249 by the United Nations Security Council

Embargo on Syria, 13 November 2013, https://www.sipri.org/databases/embargoes/eu_arms_emba rgoes/syria_LAS/eu-embargo-on-Syria. 13 EU Council Decision 2011/273/CFSP (9 May 2011), OJ 2011 L 121/11, Article 2(1)(b). 14 EU Council Decision 2013/109/CFSP (28 February 2013), OJ 2013 L 58/8, Article 1. However, they cannot be read as calling upon or ordering EU Member States to provide such assistance, see: The Netherlands, Tweede Kamer der Staten-Generaal, Plenair Verslag, 29 January 2019, TK 46-30-19 and 21. 15 The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Minister van Buitenlandse Zaken, Kamerstuk 21501-2 no. 1263, 4 June 2013, at 3. 16 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (‘Syria Commission of Inquiry’), UN Doc A/HRC/28/69, 5 February 2015, at 5ff. 17 The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Ministers van Buitenlandse Zaken, van Defensie en voor Buitenlandse Handel en Ontwikkelingssamenwerking, Kamerstuk 27925 no. 526, 15 December 2014, at 3–5. 18 The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Ministers van Buitenlandse Zaken, van Defensie en voor Buitenlandse Handel en Ontwikkelingssamenwerking, 7 April 2015, Kamerstuk 27925 no. 534, at 4. 19 The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 85 and 66 (respectively).

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(UNSC).20 Overall, the support encompassed 313 vehicles (ambulances, mini-buses, pick-up trucks—some outfitted to withstand improvised explosive devices, trucks, tractors, skid-steer loaders and motorcycles), 600 tactical vests (without ballistic protection), 243 laptops, as well as communication equipment, cameras, printers, food packages, medical kits, generators, uniforms and winter clothing, mattresses and blankets, and two pre-fab containers.21 This support went to 22 rebel groups, part of a larger collection of groups vetted by the United States and all of whom supposedly met three criteria: (1) in favour of an inclusive political solution, (2) against cooperation with extremist groups, and (3) fully committed to international humanitarian law. Groups operating in the north were selected directly by the Netherlands or its implementing partners, whereas recipients fighting in the south were chosen upon suggestion by the United Kingdom.22 Yet both elements of the program—i.e., the type of support and its recipients—turned out to be problematic. For example, the current Minister of Foreign Affairs, Stef Blok, qualified at least some elements of the NLA program as defensive support—thereby conceding it was meant to serve a military purpose.23 Even more damningly, the government botched the redacted release of secret documents,24 accidentally revealing that the vehicles were considered ‘essential for combat operations’.25 Similarly, laptops were employed to select military targets, tactical vests were outfitted with storage compartments for machine guns, and cameras were used to record battles for propaganda purposes.26 It is similarly clear that, directly or indirectly, communication equipment, military fatigues, sleeping gear, medical kits and food packages are useful to the warfighting effort. Taken together, the real if limited military value of the NLA program thus became undeniable. In addition, all three of the abovementioned selection criteria for recipient groups appear to have been violated even if the beneficiaries’ identity remains somewhat

20 Ibid., question 323; UN Security Council, Resolution 2249, UN Doc S/RES/2249, 20 November 2015, at para 5. 21 The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 86 and 172; The Netherlands, Tweede Kamer der Staten-Generaal, Lijst van Vragen en Antwoorden, 25 January 2019, Kamerstuk 32623 no. 247, questions 112 and 134; The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Ministers van Buitenlandse Zaken, van Defensie en voor Buitenlandse Handel en Ontwikkelingssamenwerking, 29 April 2016, Kamerstuk 27925 no. 590, at 6. 22 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 20. Two implementing partners were mentioned in the reporting: the American company Creative Associates International and Turkish company Candor. See also: The Netherlands, Policy and Operations Evaluation Department, Review of the Monitoring Systems of Three Projects in Syria: AJACS, White Helmets and NLA, no 423, August 2018. 23 The Netherlands (n 14) TK 46-30-19. 24 M Holdert and G Dahhan, Blok Openbaart Per Abuis Staatsgeheimen over Syrische Strijdgroepen, NOS, 22 November 2011, https://nos.nl/nieuwsuur/artikel/2260287-blok-openbaart-per-abuis-sta atsgeheimen-over-syrische-strijdgroepen.html. 25 The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 22. 26 Ibid., questions 30 and 41. See also: Dahhan and Holdert (n 1).

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shrouded in mystery.27 First, the definition of ‘moderate’ armed groups hinged on their formal adherence to an inclusive political solution in Syria—evidenced, for example, by signing the 2015 Riyadh-declaration.28 Nevertheless, some signatories—such as Ahrar al-Sham—had a ‘clear jihadist and Salafist background’ and were known to have collaborated with terrorist and jihadist groups.29 They were therefore still considered too radical for inclusion in the program. One former key official bluntly confessed that not all signatories would effectively carry out commitments made in Riyadh if given the chance—exposing the condition’s lack of utility.30 Second, and similarly, certain beneficiary groups were found to have joined military alliances with more extremist groups. The government riposted that while ad hoc cooperation may indeed have occurred on Syria’s complex battleground, such was the result of purely pragmatic considerations—not a sign of shared ideology.31 Third, several recipient groups were accused of committing grave violations of international human rights and humanitarian law.32 Former Chief Prosecutor of the Yugoslav Tribunal and former member of the Commission of Inquiry on Syria, Carla Del Ponte, noted that all parties in the conflict had committed international crimes, of which the Netherlands was well-aware given its seat on the UN Human Rights Council from 2015 to 2017 (under whose auspices the Commission was founded). Consequently, she argued that the Dutch may have been complicit in war crimes.33 Publicly, the government only commented it had taken the former accusations seriously, albeit found them difficult to verify. It had moreover started a dialogue with the accused and provided ‘a few commanders with human rights training’.34 In a handful of cases, the allegations (may) have led the government to cease its support.35

27 The standard government reply invoked (1) the risk of human casualties, (2) obligations towards allies, and (3) the involvement of national intelligence services to stonewall repeated requests for more concrete information. See, for example: The Netherlands, Tweede Kamer der Staten-Generaal, Lijst van Vragen en Antwoorden, Kamerstuk 32623 no 272, 6 September 2019, question 2. 28 The declaration called for a Syrian State with a civil character and respect for democratic principles including human rights and the rule of law. The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 151 and 265; France, Ministry for Europe and Foreign Affairs, Final Statement of the Conference of Syrian Revolution and Opposition Forces Riyadh, 10 December 2015, https://www.diplomatie.gouv.fr/en/country-files/syria/news/article/final-statem ent-of-the-conference-of-syrian-revolution-and-opposition-forces. 29 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 265; The Netherlands, Tweede Kamer der Staten-Generaal, Lijst van Vragen en Antwoorden, Kamerstuk 32623 no 267, 14 June 2019, question 21. 30 The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 8–9. 31 The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 147–8 and 346. 32 Ibid., question 119; The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 47. 33 M Holdert and G Dahhan, ‘Onderzoek Nodig naar Steun aan Gewapende Oppositie Syrië’, NOS, 12 September 2019, https://nos.nl/nieuwsuur/artikel/2250081-onderzoek-nodig-naar-steunaan-gewapende-oppositie-syrie.html. 34 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 274; The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 61. 35 The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 4–5.

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Finally, and linked to the foregoing, the puzzling discrepancy between terrorism definitions as employed by the Ministry of Foreign Affairs (MFA) and Public Prosecution Service (PPS) caused serious legal and political headache for the government, exemplified by the prosecution of Driss M. for joining Jabhat al-Shamiya—one of the (likely) NLA-receivers.36 The government explained that while the MFA primarily relied on international terrorism lists of the UN and EU, the PPS determined whether an accused belonged to a specific part of a specific group which, at a specific time, could be qualified as criminal with terrorist intent.37 The two assessments applied different criteria and their outcome may, therefore, vary.38 In the end, the Dutch NLA program was of minimal scope and impact but resulted in major political backlash whereby the Minister was forced to twice defend against a vote of no confidence.39 Perhaps this is the logical and admirable consequence of a strong rule of (international) law in the Netherlands and a healthy parliamentary system. Indeed, Minister Blok lamented that while assistance was provided by a large number of countries, many of whom going far beyond non-lethal assistance,40 its legality under international law was not debated elsewhere.41 The reader is free to decide on the persuasiveness of that argument—but it is precisely to that legal debate we now turn.

36 This discrepancy complicated prosecutions in at least six criminal cases. M Holdert and G Dahhan, Vervolging Syriëgangers Belemmerd door Steunprogramma BuZa, NOS, 28 February 2019, https://nos.nl/nieuwsuur/artikel/2273861-vervolging-syriegangers-belemmerddoor-steunprogramma-buza.html. Driss M. was ultimately acquitted due to a lack of evidence, allowing the Hague Court of Appeal not avoid issuing judgment on Jabhat al-Shamiya’s terrorist character. Holdert and Dahhan (n 3). 37 The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Minister van Buitenlandse Zaken, Kamerstuk 32623 no. 268, 20 June 2019. 38 There have been other examples of clashing domestic interpretations. For example, in 2015, the British Crown Prosecution Service dropped the criminal case against Swedish national Bherlin Gildo, accused of attending a ‘terrorist training camp’, after it became clear the UK had been supporting the same rebel group. See: R Norton-Taylor, Terror Trial Collapses after Fears of Deep Embarrassment to Security Services, The Guardian, 1 June 2015, https://www.theguardian.com/uk-news/2015/jun/01/trial-swedish-man-accused-terror ism-offences-collapse-bherlin-gildo; and, more generally, Greene 2017. 39 Minister Blok easily survived both motions, likely because he was dealing with the fallout of decisions taking by his predecessors—and was the one who actually shut down the NLA program. NOS, Minister Blok Houdt Vertrouwen Kamer ondanks Fouten bij Steun Syrische Rebellen, 29 January 2019, https://nos.nl/artikel/2269685-minister-blok-houdt-vertrouwen-kamer-ondanks-fou ten-bij-steun-syrische-rebellen.html. 40 For a succinct overview, including helpful reference list, see: Van Veen 2019. See also (n 11); Humud and Blanchard 2020; and Hersch 2014. 41 The Netherlands (n 14) TK 46-30-21.

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26.2.2 Jousting by the Dutch Political and Legal Elite Back in June 2013 (after the European arms embargo’s collapse42 ), the EVA to the Foreign Minister, Professor André Nollkaemper, sent a letter to the government. He opined therein that the non-intervention principle not only prohibited arms deliveries to Syria but proscribed the provision of ‘other forms of support’ too.43 He acknowledged the schism between the principle and the practice of (Western) States, but nevertheless contradicted the argumentation of his Foreign Minister two weeks earlier. In Nollkaemper’s view, relying on the Syrian government’s lack of legitimacy and the widespread political recognition of the Syrian opposition could not provide a lawful work-around. As a result, he argued that the position set out by the Foreign Ministry was ‘not without its international legal risks’.44 Even more problematically, the EVA was not consulted on the legality of the Syrian NLA program and, since May 2015, could have only provided advice in that capacity at the explicit request of the government.45 According to the government, Nollkaemper’s views were known through his June 2013 letter and duly considered in the decision-making process, which included multiple rounds of internal legal advice.46 Nevertheless, the Dutch Parliament hosted a roundtable discussion on 27 September 2018, at which Nollkaemper presented his assessment in his capacity as a scholar rather than as the EVA.47 Generally, he concluded that the NLA program went well beyond a hypothetical brush with international law, which had possibly been violated. First, he dismissed the legal (as opposed to de facto) relevance of distinguishing between lethal and non-lethal or military and non-military goods: ‘The question is whether [the goods] are employed in the context of armed actions … The non-intervention principle prohibits providing active support to groups whose purpose is the overthrow of a government.’48 Second, he (somewhat confusingly) noted that the duty to respect and ensure respect for international humanitarian law prohibited the provision of

42 See

text accompanying n 12–15. 2013, at 3. 44 Ibid., at 4. Strangely, one would expect the EVA to advise first. See also: The Netherlands, Rapport Commissie-Davids, 12 January 2010, https://www.rijksoverheid.nl/documenten/rapporten/ 2010/01/12/rapport-commissie-davids, at 273. 45 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 354. The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Minister van Buitenlandse Zroundtabaken, Kamerstuk 35000-V no 70, 6 May 2019. 46 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 354; The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 164. 47 The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 5. For his written intervention, see: Nollkaemper 2018. From the sources in the latter, it appears that at least part of the legal opinion on the topic more broadly is based on an article by one of the authors of this commentary, i.e.: Ruys 2014. 48 Nollkaemper 2018, at paras 7–8, 10 and 23; The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 5–6. He reiterated that politically recognizing the opposition has no legal consequences. 43 Nollkaemper

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support if it would lead to large-scale human rights violations.49 Third, he strongly resisted the argument that the prohibitions would not apply if the assistance was meant to (help) defeat a regime committing atrocities—arguing that was the more realistic view and juxtaposing it to the more idealistic proponents of regime change.50 Fourth, he restated that supporting terrorist armed groups was proscribed by positive international law also.51 Whereas Nollkaemper propagated a strict interpretation of the law,52 government lawyers espoused a (slightly) broader approach. They agreed that arms deliveries and other lethal support would violate the prohibition on the use of force, the principle of non-intervention, the obligation to (ensure) respect for international humanitarian law, EU arms export legislation and the Arms Trade Treaty, but, conversely, opined that ‘humanitarian, civil or medical assistance would probably be in line with international law’.53 It was moreover thought impossible to judge a priori whether providing non-lethal assistance, as a general category, was compatible with international law and would therefore have to be decided on a case-by-case basis. Given that the envisaged policy was the supply of civil (or non-military), non-lethal support, the risk of legal exposure was judged to be low.54 This concise evaluation was then supplemented by recalling the context in which the NLA program was set up: a battle between the brutal Assad regime and die-hard terrorist organizations, mass casualties amongst Syrian civilians, a paralyzed UN Security Council, the large-scale political recognition of the Syrian opposition, and the explicit exception to the European arms embargo for non-lethal assistance.55 While these latter arguments are certainly appealing on a human (and thus political) level, their value for the legal analysis is minimal—if not zero. That much will be clear from the following sections.

49 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 UNTS 31 (‘First Geneva Convention’), (Common) Article 1; Nollkaemper 2018, at paras 12–13. 50 Nollkaemper 2018, at paras 16–18; The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 6–7. 51 Nollkaemper 2018, at para 15. 52 This has not always been the case. For example, the authors were very surprised to hear Nollkaemper in 2018 (The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 18–19) apparently disavow an expansive position he strongly defended as recently as 2015 (Nollkaemper 2015) and which buttressed the decision to expand military action against ISIS to Syria by the Netherlands and Belgium. See: Ruys et al. 2019, at 139–40. 53 The Netherlands, Kamerstuk 32623 no. 230 (n 6), at 2. The same applied for military training, except for a possible violation of international arms trade law. The compatibility of other types of training with international law was thought to be dependent on the nature of said training. 54 This interpretation seems to be shared by other States, see Nowak 2018, at 72–5; Ferro and Verlinden 2018, at 22–9 and 37–41. 55 The Netherlands, Kamerstuk 32623 no. 230 (n 6), at 2.

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26.3 Questions of Legality The debate on the international legality of the NLA program in the Netherlands was primarily devoted to the question whether the principle of non-intervention had been violated—a question on which expert opinion was divided. It will therefore start off this contibution’s legal analysis also. But given its factual background, the prohibition on the use of force will feature heavily as well. An ancillary debate pertains to the possible (in)direct responsibility of the Netherlands for violations of IHL through material support for those carrying out transgressions, although such concerns were quickly (if carelessly) dismissed. These two legal frameworks will be tackled consecutively, briefly and in the abstract, before applying them to the NLA program as such.

26.3.1 Aiding Rebels Aiming to Overthrow a De Jure Government: A Prohibited Intervention, Use of Force, or Act of Aggression? There is a clear-cut legal question at the heart of what is often a confused and conflated legal debate: Does international law allow one State to assist rebel forces embroiled in armed conflict with the de jure government of another State? The answer may, simply, be no—which would shut down the debate neatly and irrevocably. It is far more likely, however, that the answer is a qualified no, triggering the more complicated follow-up question: Under what conditions does international law allow the provision of aid to rebel armed forces? The answer can (partially) be found in international case law. Strictly humanitarian aid escapes condemnation as a prohibited intervention if provided ‘without discrimination to all in need’.56 Conversely, training and arming rebels carrying out forcible acts of civil strife certainly violates Article 2(4) of the UN Charter. An intermediate category of assistance encompasses, for example, providing rebels with funds, which undoubtedly constitutes ‘an act of intervention in the internal affairs’ of the beleaguered State.57 The Dutch NLA program mostly (but not exclusively) 56 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ, Merits, Judgment, 27 June 1986 (‘Nicaragua’), paras 242– 3. Similarly, see: ICRC 2019, Rule 55: Access for Humanitarian Relief to Civilians in Need. Important guiding principles of humanitarian aid are: humanity (‘saving human lives and alleviating suffering’), impartiality (‘solely on the basis of need’), neutrality (‘must not favour any side’) and independence (autonomy from ‘objectives that any actor may hold’), see: Annex to UN General Assembly, Resolution 46/182: Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, UN Doc A/RES/46/182, 19 December 1991, para 2; UN OCHA, Financial Tracking Service, Criteria for Inclusion of Reported Humanitarian Contributions into the Financial Tracking Service Database, and for Donor/Appealing Agency Reporting to FTS, September 2004, https://fts.unocha.org/sites/default/files/criteria_for_inclusion_2017.pdf, at 2. 57 Nicaragua, para 228.

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appears to fall in that in-between category, the legality of which can therefore best be determined by further untangling the non-intervention principle from its big brother, the prohibition on the use of force. According to the International Court of Justice (ICJ), the principle of nonintervention ‘involves the right of every sovereign State to conduct its affairs without outside interference’—a right which is ‘part and parcel of customary international law’.58 The Court continued: A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.59

Consequently, supporting subversive armed activities in another State is considered a coercive interference in its internal affairs and, thus, a prohibited intervention. Put differently: The aid for armed bands abroad, whose purpose is the violent change of government, ipso facto amounts to intervention—whether or not the assisting State shares that specific objective. This moreover holds true regardless of the type of support that is provided.60 Additionally, the Court noted that ‘participating in acts of civil strife’ abroad breaches the prohibition on the use of force when the acts referred to involve a threat or use of force.61 This echoes the excerpt above, and implies that buttressing forcible rebel activities in another State can constitute an (indirect) use of force. However, the Court then pivoted to the acts of assistance themselves, holding that arming and training rebels (or otherwise providing them with ‘military support’62 ) undoubtedly involved the threat or use of force against the embattled State as opposed to, for example, merely supplying them with funds.63 The question at stake was thus 58 Ibid.,

para 202. para 205 (emphasis added). 60 Ibid., paras 241–2 and 292(3). Confirming that the supporting party need not aim at regime change: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ, Merits, Judgment, 19 December 2005 (‘Armed Activities’), para 163. But see (n 56). 61 Nicaragua, para 228 (emphasis added); Annex to UN General Assembly, Resolution 2625 (XXV): Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc A/RES/2625(XXV), 24 October 1970, at 2. 62 Armed Activities, para 161. 63 See (n 59); Nicaragua, para 228. By contrast, the Court asserted (in paras 195 and 247) that the mere ‘provision of weapons or logistical or other support’ would not qualify as an ‘armed attack’ triggering the right of self-defence. While this obiter dictum has come under blistering attack, both by members of the judiciary and scholars, it appeared to accurately reflect State practice at the time (Gray 2018, at 137–9; Ruys 2010, at 415–18). In addition, the ICJ did not overturn its holding in the 2005 Armed Activities case (paras 146–7). An ‘armed attack’ can, however exist in case State officials participate alongside the armed bands or when these bands operate on the 59 Ibid.,

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whether the aid provided by the United States to the Nicaraguan contras involved a threat or use of force—not whether that was true for the supported acts.64 The prohibition on the use of force further operates irrespective of the motive of the intervening State.65 Specifically, the majority view (among States and scholars) remains that so-called unilateral humanitarian interventions absent proper Security Council authorization are not allowed.66 Similarly, there is no exception to the prohibition on intervention for humanitarian purposes. Indeed, the International Court of Justice explicitly considered whether there might be a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified.67

However, it found that States did not justify their conduct by ‘reference to a new right of intervention or a new exception to the principle of its prohibition’ and thus concluded that no such right or exception existed.68 Finally, it has been argued that breaches of international law might legally warrant (proportionate) counter-measures, including providing support to rebel armed groups.69 One way of conceptualizing that argument is to exclude the application of the non-intervention principle when external pressure is applied for the purpose of upholding international obligations.70 However, that argument cannot hold for aid that constitutes a threat or use of force as it violates a separate norm of international law and can moreover never be the appropriate method to ensure respect for human rights.71 And, in any case, the interference would have to be strictly tailored to that outcome to avoid a prohibition snapback. In addition, while the legality of so-called third-party countermeasures in response to breaches of erga omnes norms was left open by the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) (Article 54) and remains contested, such countermeasures cannot in any case affect the prohibition on the use of force, humanitarian obligations or other peremptory norms (Article 50(1)).72 State’s instructions, directions or under its (effective, or even overall) control, see: ILC 2001, 47–9; Nicaragua, paras 109 and 115; and compare with: ICTY, Prosecutor v Dusko Tadi´c, Judgement, 15 July 1999, Case No. IT-94-1-A, para 137. 64 Nicaragua, paras 116 and 238. 65 See also text accompanying n 191. 66 ILA 2018, at 20–4. 67 Nicaragua, para 206. 68 Ibid., para 207. 69 Ibid., paras 169–70 and 257–69. 70 Such matters do not belong to the domaine réservé, the collection of a State’s competences not qualified by freely accepted international obligations, enjoying the protection of the non-intervention principle: Nicaragua, para 205; Nationality Decrees Issues in Tunis and Morocco, ICJ, Advisory Opinion, 8 November 1921, at 23–4. 71 Nicaragua, para 268. 72 ILC 2001, at 129–35; Jamnejad and Wood 2009, at 379–80 Nicaragua, paras 248–9.

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26.3.2 Facilitating Freedom Fighters’ Faux Pas: (In)direct State Responsibility? In August 2014, more than a year before the actual start of the Dutch NLA program, the UN Commission of Inquiry on Syria unequivocally condemned non-state armed groups (in addition to government forces) for committing massacres and war crimes, including murder, execution without due process, torture, hostagetaking, … enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas.73

Such condemnations had become woefully common following seven predecessor reports carrying a similar message.74 Moreover, in early 2015 the Commission warned that the involvement of outside Powers permitted the warring parties to continue their armed struggle. Driving the message home entirely, it further found that ‘the support given to the so-called “moderates” ha[d] ultimately consolidated the dominance of extremist groups such as ISIS and Jabhat Al-Nusra’.75 These facts potentially trigger three additional legal instruments: the 2013 Arms Trade Treaty, the 2008 EU Council Common Position on arms export (amended in 2019), and (Common Article 1 of) the 1949 Geneva Conventions.76 First, the Arms Trade Treaty outlaws the transfer of (certain) conventional weapons if they ‘would be used in the commission of’ genocide, crimes against humanity or war crimes.77 When those strict conditions do not apply, each export must nevertheless be checked against the overriding (or preponderant) risk they ‘could be used to 73 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/27/60, 13 August 2014, summary. 74 For all reports, see: https://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/Documentation. aspx. 75 2015 Syria Commission of Inquiry Report, at paras 116ff. 76 First Geneva Convention, (common) Article 1; Arms Trade Treaty (2013), 52 ILM 988; EU Council Common Position 2008/944/CFSP of 8 December 2008 defining Common Rules Governing Control of Exports of Military Technology and Equipment (17 September 2019) OJ 2019 L 239/16. The Netherlands is party to both international treaties and legally bound by the Common Position. As for its responsibility under the European Convention on Human Rights, the NLA program does not appear to trigger the jurisdictional clause of Article 1 under either the territorial or personal model of jurisdiction, see: Jackson 2016, at 820–1; Mauri 2019, at 256–68; Tugar v Italy, ECmHR, No. 22869/93, 18 October 1995, at 3–4. However, in 2019 the Oberverwaltungsgericht of Münster found that Germany had not fulfilled its positive obligations arising from the right to life (albeit under the German Basic Law) by allowing the United States to make use of the Ramstein Air Base (as an information hub and relay station) for likely unlawful drone strikes in Yemen. While the Court thus accepts the right’s extraterritorial application, the connection between the assistance and violation is much more tentative for the Dutch NLA program. Moreover, the outlier judgment is currently under appeal. See, generally: Beinlich 2019. 77 ATT, Article 6(3) (emphasis added). For the treaty’s scope of application, see Article 2.

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commit or facilitate’, among other, serious IHL or human rights violations.78 At the EU level, the Council Common Position confirms the obligations of the Arms Trade Treaty. It further specifies that Member States shall deny an export licence in case of a ‘clear risk’ that the weapons might be used for internal repression or serious violations of IHL, or would provoke or prolong armed conflicts.79 However, these instruments apply only in case of arms transfers, meaning their application in casu is more limited (but see Sect. 26.4). On the other hand, Common Article 1 (CA1) prescribes that the ‘High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’.80 According to the authoritative ICRC Commentary,81 this duty pertains to ‘the entire body of international humanitarian law binding upon a particular State’ as well as the guarantees contained in Common Article 3 for all parties to a non-international armed conflict.82 In addition, both negative and positive obligations flow from its second limb (the obligation to ensure respect), meaning States must abstain from encouraging, aiding or assisting in IHL violations as well as act to stop ongoing transgressions and prevent foreseeable ones.83 This negative obligation as a primary rule of international law can nevertheless be interpreted through the lens of Article 16 ARSIWA.84 Article 16, as international custom, prescribes that a State which aids or assists another State

78 ATT,

Article 7(1)(b)(i) and (ii) (emphasis added). Council Common Position 2008/944/CFSP, Articles 2(1)(bb), (2) and (3). For its scope, see Articles 1(1) and 12 referring to the more detailed EU Common Military List (17 February 2020) OJ 2020 C 85/1. See also: User’s Guide to Council Common Position 2008/944/CFSP Defining Common Rules Governing the Control of Exports of Military Technology and Equipment (‘EU User’s Guide’), COARM 153 CFSP/PESC 683, 16 September 2019. 80 See also: ICRC 2019, Rule 144. 81 See, for example: Statutes of the International Red Cross and Red Crescent Movement (1986), https://www.icrc.org/en/doc/assets/files/other/statutes-en-a5.pdf, Article 5(2)(g). 82 ICRC 2016, at paras 126 and 131–2. See also: ICRC 2019, Rule 139; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory Opinion, 9 July 2004, para 158. 83 ICRC 2016, at paras 153–73. See also: Ruys 2014, at paras 20–5. 84 ICRC 2019, Commentary to Rule 144, at note 15 (but see: ICRC 2016, at para 160); Crawford 2012, at 16–17. Many authors prefer to look at Article 16 ARSIWA as the lex generalis to a more specific Common Article 1 for two reasons: First, because the scope of CA1 is broader as it also encompasses a positive obligation (one which is clearly not covered by Article 16) and a prohibition on ‘encouragement’ of IHL violations (which is conceptually distinct from ‘aiding and assisting’, see: Aust 2011, at 388–9; Nicaragua, paras 220 and 255–6). Second, they argue that the conditions of Article 16 are too strict and have been attenuated for complicity in IHL violations through CA1 (ICRC 2016, at paras 159–61; Brehm 2008, at 385–6; Aust 2011, at 389; Dörmann and Serralvo 2014, at 734–5). However, to the extent that the latter concern derives from the intent-requirement for responsibility under Article 16 ARSIWA (as opposed to knowledge under CA1), it is, perhaps, unnecessary. Compare, for example, to ICRC (2013) Arms Trade Treaty, ICRC Statement, Diplomatic Conference, 21 March 2013, https://www.icrc.org/en/doc/resources/docume nts/statement/2013/03-21att-arms-availability-statement.htm. 79 EU

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in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.85

For the purposes of this contribution, there are three main points of contention. The first relates to the knowledge (awareness-based) versus intent (purpose-based) debate: Does it suffice that a State is fully cognizant it is supporting the commission of IHL violations, or is it necessary to additionally evidence that the support was provided with that specific ambition? Strikingly, most commentators appear to agree that the subjective element—however one would define it—is met in case of (virtual or near) certainty by the assisting State that its aid will facilitate an internationally wrongful act—largely defanging the debate in casu.86 A second issue troubling Article 16 ARSIWA is whether such a rule applies not only to cooperation between States but also to the relationship between States and non-State armed groups. In the 2007 Bosnian Genocide case, the ICJ interpreted Article III(e) of the Genocide Convention—declaring that complicity in genocide would be punishable also—along the lines of Article 16 ARSIWA even though the factual background consisted of a State (the Federal Republic of Yugoslavia) assisting a non-State armed group (the Army of the Republika Srpska). According to the Court, a primary obligation not to aid or assist in violations of international law (or, put differently, be complicit therein) can and should be interpreted ‘in a sense not significantly different from that of those concepts in the general law of international responsibility’.87 This is true to the extent that the recipient entity is equally bound by the rule at stake.88 Hence, by force of Common Article 1, a State must refrain from aiding a non-State armed group, embroiled in conflict, in violating the latter’s obligations under Common Article 3—applied along the lines of Article 16 ARSIWA.89

85 ILC

2001, at 65; Bosnian Genocide, para 420. and Aust 2009, at 14–15; Crawford 2013, at 408; Jackson 2015, at 160; Lanovoy 2016, at 237; Moynihan 2016, at 11–22; Ferro 2016, at 147–8; David et al. 2019, at 67–8. While the matter is yet to be conclusively determined by (international) case law, it has been left open (at the least) by the International Court of Justice in Bosnian Genocide (compare paras 421–2 and 432). 87 Bosnian Genocide, para 420. 88 Ibid., paras 242ff; ILC 2001, at 66(1) and (6); Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc CCPR/C/GC/36, 30 October 2018, para 63 jo. Goodman, Heyns and Shany 2019, at 4; Jackson 2015, at 214–15. 89 See (n 82). In 2013, Austria argued that should ‘supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid and assistance in the commission of such acts’. It thereby applied Article 16 ARSIWA directly, rather than use it to interpret Common Article 1. See: J Borger, The Austrian Position on Arms Embargo in Syria— Official Document, The Guardian, 15 May 2013, https://www.theguardian.com/world/julian-bor ger-global-security-blog/interactive/2013/may/15/austria-eu-syria-arms-embargo-pdf. Conversely, the Netherlands ((n 2) question 257; Nollkaemper 2013, at 2) found that no clear international 86 Nolte

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The causal link between the provided assistance and the prohibited act, the socalled nexus element, poses a third and final obstacle. Indeed, the assisting State will only be responsible ‘to the extent that its own conduct has caused or contributed to the internationally wrongful act’.90 The ILC holds that the material aid must not have been ‘essential to the performance of the internationally wrongful act, it is sufficient if it contributed significantly to that act’.91 Aust consequently argues that ‘the support must have made some difference for the main actor in carrying out its deed’, without thereby constituting a conditio sine qua non.92 Moynihan adds that there is a ‘de minimis threshold: aid that assists in a remote and indirect or minimal way is not a sufficient basis for responsibility’.93 The nexus element nevertheless remains underdeveloped, euphemistically labelled as ‘normative and case-specific’.94 However, in its Articles on the Responsibility of International Organizations (ARIO) the ILC suggests that a peacekeeping mission may not provide logistic or ‘service’ support to government forces involved in IHL or human rights violations and must ‘cease its participation … completely’.95 A similar example is that of an international organization directly financing a project involved in human rights violations.96 Further guidance can be found in arms export legislation. Article 7 ATT prohibits a weapons transfer in case they could be used to facilitate a serious IHL or human rights violation. Commentators again turned to Article 16 ARSIWA for its interpretation, arguing that ‘facilitation … should involve a significant contribution to the illegal act even if the assistance only contributed in a minor way to the actual harm suffered’.97 Moreover, such weapons ‘may be one or more steps removed of the actual violation’.98 Similarly, the User’s Guide to the EU Council Common Position warns that a wide variety of equipment can be used repressively, including innocuous items such as body armour and communications equipment. Still according to the guide, consideration should go to what extent the material would allow an ‘increase in operational performance’.99 Finally, the (customary) international criminal law on norm existed on the complicity of States for actions of non-State actors. On the separate yet related discussion on complicity as a ground for attribution, compare: Lanovoy 2017; Plakokefalos 2018. 90 ILC 2001, at 66(2), approvingly quoting the opinion of the UN Legal Counsel. 91 Ibid., at 66(5)–7(10), confirmed by ILC 2011, at 66(4) and Crawford 2013, at 405. Moreover, the wrongful act must have actually been committed. 92 Aust 2011, at 210–19 (quote at 215). 93 Moynihan 2016, at 9–10. She moreover astutely refers to the link between the nexus and mental elements. 94 Aust 2011, at 230. See also: De Wet 2018, at 299–301. 95 ILC 2011, at 66(6). 96 G Gaja, Special Rapporteur, Third Report on Responsibility of International Organizations, 57th Session of the ILC, UN Doc A/CN.4/553, 13 May 2005, at para 28. See also Lanovoy 2016, at 98–9. 97 Casey-Maslen et al 2016, at 255. 98 Ibid. One of the examples is providing weapons to round up people, later executed using different means. 99 EU User’s Guide (n 79), at 49, 77 and 97.

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aiding and abetting, showing obvious similarities, confirms the (de facto) de minimis threshold and does not require that the aid must be specifically directed towards the commission of a crime.100 Admittedly, the image that emerges is rather pixelated. Moreover, caution is required when importing standards from other fields of (international) law. Regardless, it appears that the nexus element casts a wide net, bringing various kinds of material assistance that have a more-than-minimal effect on the commission of the wrongful act under the scope of Article 16 ARSIWA and, therefore, the negative obligation of Common Article 1. Any unease with such an understanding may be offset by reminding of the strict application of the mental element as described above. It is therefore surprising that of the few domestic courts to have taken up such issues— especially in the context of arms transfers to Saudi Arabia used to commit atrocities in Yemen—some seem to insist upon (or, rather, assume) a direct link (requirement) between the aid provided and violations carried out. For example, a Canadian Justice interpreted Common Article 1 as requiring ‘evidence of a substantial risk that [weaponized light armoured vehicles] will be used to commit a violation of [IHL]’, which was not born out in the case before her by the history of the impugned exports to Saudi Arabia.101 However, based upon the foregoing, it is submitted that is an overly restrictive reading. Finally, as noted above, Common Article 1 of the Geneva Conventions also entails a positive obligation, meaning States must ‘take proactive steps to bring violations of the Conventions to an end and to bring an erring Party to a conflict back to an attitude of respect for the Conventions’.102 The obligation is to be carried out with due diligence, which is heavily dependent on ‘the capacity to influence effectively’ the action of States likely to commit wrongful acts.103 While that capacity may be determinative in case of a party to an armed conflict that is highly dependent upon foreign military assistance, it is substantially less so for a non-State actor receiving limited and/or noncrucial assistance in a haphazard manner.104

100 Cryer, Robinson and Vasiliev 2019, at 355–9; Ventura 2019, at 16–19; Aksenova 2016, at 103–12. 101 Daniel

Turp v The Minister of Foreign Affairs, Canada, Federal Court, Reasons and Judgment, 2017 FC 84, 24 January 2017, para 72. A similar reasoning was followed by British judges in Campaign Against Arms Trade v The Secretary of State for International Trade (High Court of Justice, Judgment, [2017] EWHC 1726 (QB), 10 July 2017, para 59), which concerned the application of Europeans arms export legislation. A direct link requirement finds more support in the text of the provision at stake. See, generally: Ferro 2019, at 521–32. 102 ICRC 2016, at para 164. 103 Bosnian Genocide, para 430. 104 ICRC 2016, at para 167; Ferro 2019, at 514–5 (in particular note 64). Genuinely third (or non-involved) States have executed this positive obligation mostly through diplomatic protests and certain collective measures including multilateral sanctions. ICRC 2019, Commentary to Rule 144.

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26.4 The Legal Framework in Action 26.4.1 Non-lethal Assistance: What’s in a Name? Having briefly summarized the international legal framework applicable to thirdState support for non-State armed groups, the first question that needs to be confronted is to what extent the type of goods and equipment provided—and, particularly, the supposedly ‘non-lethal’ nature thereof—impacts the legality of the Dutch assistance programme.

26.4.1.1

A Carte Blanche for ‘Non-lethal Assistance’?

As discussed above, in the Nicaragua case the ICJ famously distinguishes between ‘mere supply of funds’, which it qualifies as a breach of the non-intervention principle but not the prohibition on the use of force, and the ‘arming and training’ of the contras, found to contravene both norms. In another (less well-known) dictum, the Court further notes how the US breached the principle of non-intervention by providing ‘financial support, training, supply of weapons, intelligence and logistic support’ to the contras, thus clearly adopting a broad construction of the principle. These forms of support are contrasted to ‘strictly’ humanitarian aid, which does not constitute a prohibited intervention but must in turn be limited to ‘prevent and alleviate human suffering’ and be given without discrimination to all in need.105 The term ‘non-lethal assistance’ is nowhere found in the Nicaragua judgment.106 More generally, non-lethal assistance is not an established legal category or term of art in international law.107 Better known to international lawyers is the more limited category of ‘non-lethal weapons’, which indeed plays a prominent role in international human rights law, and, to lesser extent, in IHL.108 A useful definition is found, for instance, in the UK Manual on the Law of Armed Conflict, which refers to ‘weapons that are explicitly designed and developed to incapacitate or repel [individuals], with a low probability of fatality or permanent injury, or to disable equipment,

105 Nicaragua,

paras 228 and 242–3.

106 The Court’s reference to relevant US legislation underpinning support to the contras provides few

additional clues either, as it defines ‘humanitarian assistance’ as ‘the provision of food, clothing, medicine, and other’ and excludes ‘the provision of weapons, weapon systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death’ (ibid., para 97 and again at para 243). 107 Occasional references can be found in some national legislation, for instance in 10 U.S.C. § 2557, which provides for a broad negative definition, encompassing all supplies that are ‘not a weapon, ammunition, or other equipment or material that is designed to inflict serious bodily harm or death’. 108 See, for example, the Basic Principles on the Use of Force and Firearms by Law Enforcement Personnel, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana (Cuba), 27 August–7 September 1990, paras 2–3.

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with minimal undesired damage or impact on the environment’.109 Obvious examples include tear gas or plastic bullets. The reference to ‘non-lethal’ ‘weapons’ is telling in and of itself: an object can be ‘non-lethal’ in nature, but still qualify as a ‘weapon’ or ‘military equipment’. This view is corroborated, for instance, by UN Security Council Resolution 1970, which provided for a qualified exception to the embargo on ‘arms and related materiel’ to Libya vis-à-vis ‘non-lethal military equipment intended solely for humanitarian or protective use’.110 And while no similar UN arms embargo was put in place with respect to Syria, the one adopted by the EU contains a similarly worded exception with respect to ‘non-lethal military equipment … intended solely for humanitarian purposes or protective use’, in addition to a separate exception for ‘non-combat vehicles fitted with materials to provide ballistic protection’ destined for the SNCOR and ‘intended for the protection of civilians’.111 Surely, such carve-outs only make sense if ‘non-lethal military equipment’ ordinarily falls within the scope of an arms embargo to begin with. It is therefore submitted that the mere fact that certain equipment is non-lethal, in that it is not designed to inflict serious bodily harm or death, is insufficient to conclude that the provision thereof cannot give rise to an indirect use of force in the sense of Article 2(4) UN Charter.112 Conversely, however, this does not bring us much further in determining which specific non-lethal goods are problematic under Article 2(4) and which are not. To shed further clarity on this matter, cautious excursions into other sub-domains of international law may prove helpful, having regard to the principle of systematic integration.113 Two candidates in particular merit closer scrutiny, namely the law of neutrality as it applies to international armed conflicts, on the one hand, and arms control law, on the other.

26.4.1.2

‘War Material’ and Contraband: Drawing Lessons from the Law of Neutrality

Starting with the former, it is clear that the prohibitions against indirect force and against intervention in non-international armed conflicts have much in common with the duties of non-participation and impartiality with respect to international armed conflicts under neutrality law.114 Indeed, the Nicaragua case’s threefold distinction 109 United

Kingdom Ministry of Defence 2004, at para 6.18.1. Security Council, Resolution 1970, UN Doc S/RES/1970, 26 February 2011, at para 9(a). 111 EU Council Regulation 36/2012 (18 January 2012) OJ 2012 L16/1 (as amended). 112 The Dutch MFA acknowledged that it was impossible to say categorically that non-lethal assistance was compatible with international law. Rather, this had to be determined per item. The Netherlands, Kamerstuk 32623 no. 230 (n 6), at 2. 113 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331, Article 31(3)(c) (‘VCLT’). 114 It is worth recalling that violations of the prohibition of (indirect) use of force or intervention in the context of a non-international armed conflict (NIAC), or breaches of neutrality law in the context of an international armed conflict (IAC), do not automatically render the third (supporting) State a party to the pre-existing NIAC/IAC. In the IAC scenario, a distinction must indeed be made between 110 UN

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between the provision of arms, funding and humanitarian assistance is strongly reminiscent of the basic rules of neutrality law. Thus, Article 6 of Hague Convention XIII (1907) forbids ‘the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever’.115 This rule is echoed, in virtually identical terms, in the 1928 Pan-American Neutrality Convention,116 which further adds a prohibition to grant loans or open credits for a belligerent during the duration of war.117 Finally, Article 70 of the 1977 First Additional Protocol expressly confirms that relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall not be regarded as interference in the armed conflict or as unfriendly acts.118 This threefold rule is further reflected in relevant State practice.119 Given the obvious parallels, the construction of war material under the law of neutrality might be used to shed light on the substantive scope of indirect use of force in the sense of the Nicaragua case. The link between the two concepts finds support in, among other, the 1928 Convention on Duties and Rights of States in the Event of Civil Strife which explicitly uses the same concept of war material featuring in the 1907 Hague Convention XIII in connection with the prohibition of support ordinary violations of neutral duties, on the one hand, and systematic or substantial violations resulting in loss of neutral status and ‘co-belligerency’, on the other (e.g.: United States, Department of Defense, Law of War Manual, June 2015 (as updated), at para 15.4.1; Oppenheim 1912, at para 358 at 439:, restated in Lauterpacht 1952, at § 358). With respect to a NIAC, reference can be made to the ‘support-based’ approach applied by the ICRC to determine when multinational forces become a party to a pre-existing NIAC. According to Ferraro (2013, at 585), who developed the approach, ‘War-sustaining activities such as financial support, or the delivery of weapons/ammunition to a party to the conflict, should be regarded as a form of indirect involvement in hostilities that has no effect on the multinational forces’ status under IHL. A distinction must therefore be drawn between the provision of support that would have a direct impact on the opposing party’s ability to conduct hostilities and more indirect forms of support which would allow the beneficiary only to build up its military capabilities.’ Examples that would meet the test include the transportation of the supported State’s armed forces to the front line or providing planes for refuelling jet fighters involved in aerial operations. In its 2016 Commentary on Common Article 3 GC, the ICRC (2016, at para 446) similarly states that ‘[o]nly activities that have a direct impact on the opposing Party’s ability to carry out military operations would turn multinational forces into a Party to a pre-existing non-international armed conflict.’ 115 Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War (1907), 15 LNTS 436. 116 Convention on Maritime Neutrality (1928), 135 LNTS 187, Article 16(a) prohibits the delivery ‘to the belligerent, directly or indirectly, or for any reason whatever, [of] … munitions or any other war material’. 117 Ibid., Article 16(b). 118 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) (1977), 1125 UNTS 3. As Bothe (2014, at 561– 2) explains, humanitarian assistance must be guided by the needs of those hors de combat, rather than provide a military advantage to one party. See also Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), https://ihl-databases.icrc. org/ihl/INTRO/200?OpenDocument, Article 14. 119 E.g., US Law of War Manual (n 114), at para 15.3.2.1ff; Germany, Ministry of Defence, Humanitarian Law in Armed Conflicts—Manual, August 1992, at para 1110.

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to non-State actors involved in a non-international armed conflict.120 Interestingly, the (admittedly non-binding, nor uncontroversial) 1975 Wiesbaden resolution of the Institut de droit international on non-intervention in civil wars similarly contains a prohibition on the supply of ‘weapons or other war material’.121 An authoritative definition, in conventional law or elsewhere, of ‘war material’ is unfortunately lacking.122 Some texts use slightly different terminology, such as ‘war-related goods and services’,123 yet without shedding further light on the precise scope either. Unsurprisingly, relevant literature tends to focus first and foremost on the supply of arms and ammunition,124 as the archetypical examples of ‘war material’. Yet, others seem to suggest that such are the only goods covered by the prohibition. Thus, Bothe, while acknowledging that the underlying rationale of the rule is to ensure that neutral States ‘abstain from any act which might have an impact on the outcome of the conflict’,125 subsequently states as follows: As to the definition of war materials which may not be supplied to the parties to the conflict, the problem must be distinguished from that of the definition of contraband. There is apparently no state practice to the effect that the rule of neutrality prohibiting supply covers more than weapons stricto sensu, that is material which is capable of being used for killing enemy soldiers or destroying enemy goods. Non-proliferation regimes in the field of arms control usually cover related materials (technology, construction plans etc.).126

The statement calls for some observations. First, Bothe’s argument that the question of State supply of ‘war materials’ must not be conflated with the right of belligerent States to seize cargo transported by sea that qualifies as ‘contraband’ is only partly convincing. On another view, the two rules are—or originally were—two sides of the same coin. As Seidl-Hohenveldern explains: In theory, neutral citizens may trade with the enemy while the neutral State itself must not supply to a belligerent State ‘war material of any kind’ (Article 6). However, the neutral citizen risks having his goods destined for one belligerent being taken by the other belligerent as ‘contraband’. This notion originally meant war material of any kind.127

120 The

1928 Convention on Duties and Rights of States in the Event of Civil Strife (134 LNTS 45) was ratified by 18 American States (including the United States). See, in particular, Article 1. 121 Institut de droit international, ‘The Principle of Non-Intervention in Civil Wars’, Resolution of 14 August 1975, Article 2(2)(c) (emphasis added). Note: this prohibition equally applies to assistance for the de jure authorities. 122 See also Ferro and Verlinden 2018, at 40–1. 123 US Law of War Manual (n 114), at para 15.3.2.1. 124 See, for example: Oppenheim 1912, at para 349, at 350. 125 Bothe 2014, at para 1110 at 561. See also infra note 141. 126 Bothe 2014, at para 1112 at 563. 127 Seidl-Hohenveldern 1986, at 205.

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A similar link is made in the 2015 US Law of War Manual.128 The understanding of ‘contraband’ may accordingly provide clues to interpret the concept of ‘war materials’. Interestingly, contrary to the elusive notion of war materials, the concept of contraband was tackled in considerable detail by States in the 1909 London Declaration concerning the Laws of Naval War.129 In line with the writings of Grotius and others,130 the Declaration distinguishes between three categories of goods. First, articles ‘exclusively used for war’ are regarded as absolute contraband (Articles 22–23), which is always subject to seizure if destined for a belligerent party. Second, articles ‘susceptive of use in war as well as for purposes of peace’ qualify as ‘conditional contraband’ (Article 25). Conditional contraband is liable to capture ‘if it is shown to be destined for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress’ (Article 33).131 Finally, goods that ‘are not susceptible of use in war’ are free articles that may not be declared contraband of war (Article 27). The London Declaration usefully provides illustrative list of goods for each of the three categories, while indicating that States may add additional lists of goods to the categories of absolute and conditional contraband, subject, however, to notification (Articles 23, 25). While some examples are no longer of relevance in modern times in light of the changed nature of the battlefield, it is striking that the concept of ‘absolute contraband’ is not limited to arms and ammunition, but includes other items such as gun-mountings, as well as other non-lethal equipment such as ‘clothing and equipment of a distinctively military character’ (Article 22(6)) or ‘armour plates’ (Article 22(9)).132 In turn, the illustrative list of ‘conditional contraband’ includes ‘vehicles of all kinds available for use in war’ (Article 24(5)), in addition to several items that would nowadays never be regarded as ‘dual-use’, but would even seem

128 US

Law of War Manual (n 114), at para 15.12: ‘Although neutral States must not provide warrelated goods and services to belligerents, neutral persons are not prohibited from such activity by the law of neutrality. The law of neutrality’s rules on neutral commerce and the carriage of contraband have sought to balance the right of neutral persons to conduct commerce free from unreasonable interference against the right of belligerent States to interdict the passage of war materials to the enemy.’. 129 Declaration concerning the Laws of Naval War (1909), https://ihl-databases.icrc.org/ihl/INT RO/255. Note: The Declaration was signed by Austria-Hungary, France, Germany, Italy, Japan, the Netherlands, the Russian Federation, Spain, the United Kingdom and the United States, but never ratified and accordingly never entered into force. Most of the rules were nonetheless believed to correspond to established practice and decisions of national prize courts. 130 See Oppenheim 1912, at paras 391ff. 131 Article 34 further specifies that ‘[t]he destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. …’. 132 According to Oppenheim, ‘[t]hat absolute contraband cannot … be restricted to arms and ammunition only … becomes obvious, if the fact is taken into consideration that other articles … can be as valuable and essential to a belligerent for the continuance of the war.’ Oppenheim 1912, at para 393.

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to qualify as humanitarian support.133 This holds true in particular for ‘foodstuffs’ (Article 24(1)). The distinction between absolute and conditional contraband has not consistently been upheld, however, in State practice134 and the 1994 San Remo Manual, for instance, refers to a single category of contraband encompassing goods ‘destined for territory under the control of the enemy and which may be susceptible for use in armed conflict’.135 As Seidl-Hohenveldern rightly observes, ‘[p]ractice in the First and Second World Wars has interpreted this notion so extensively as to cover any goods which by the widest stretch of imagination could indirectly benefit the armed forces of the enemy.’136 Ultimately then, Bothe is ostensibly right in resisting a simple one-on-one analogy between the concepts of ‘war material’ and ‘contraband’. By contrast, the traditional understanding of ‘absolute contraband’ at the very least provides indirect support to the view that—contrary to what Bothe suggest—‘war material’ cannot be limited exclusively to ‘lethal’ equipment. Leaving aside the possible nexus with the concept of contraband, Bothe’s interpretation of war material appears excessively narrow. Other scholars, such as Lauterpacht, ostensibly take a broader view.137 Likewise, in his work on the law of neutrality, Castrén stresses that ‘it suffices for a State to refrain from delivering to belligerents material which has, exclusively or at least mainly, a military purpose’.138 Others in turn put the emphasis on whether the supplied goods and equipment are capable of influencing the outcome of the armed conflict.139

133 According

to Oppenheim, it was especially controversial whether or not ‘foodstuffs, horses …, coal and other fuel, money and the like, and cotton’ could conditionally be declared contraband (ibid., at para 394). The list included in the London Declaration reflected a compromise between the Powers of the time. 134 See: US Law of War Manual (n 114), at para 15.12.1.1. 135 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), https:// ihl-databases.icrc.org/ihl/INTRO/560, Article 148; US Law of War Manual (n 114), at para 15.12.1. 136 Seidl-Hohenveldern 1986, at 205. 137 Oppenheim 1912, at para 349 (referring to ‘arms, ammunition, vessels and military provisions’). Also, the direct military use of certain metals means their supply by a neutral State may be unlawful (para 739, note 3). 138 Castrén 1954, at 474 (emphasis added). 139 Oppenheim 1912, at para 294, at 654 (‘Since neutrality is an attitude of impartiality, it excludes such assistance and succor to one of the belligerents as is detrimental to the other’); Heintschel von Heinegg 2007, at 565 (neutral States are ‘especially prohibited from assisting one party in a manner that could lead to a temporal, spatial or other widening of the conflict’); Ferro and Verlinden 2018, at 41 (the duty of neutrality ‘certainly proscribes assistance to the belligerent parties that has a direct and effective impact on their war-waging ability’).

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What Impact of Arms Control Law?

Keeping in mind the principle of systemic integration (Article 31(3) VCLT), there is again merit in attempting to clarify the concept of war material in light of contemporary arms control arrangements. The relevance of this branch was implicitly recognized by the Dutch authorities, which repeatedly stressed that they would only provide ‘civilian’ goods, not subject to a license requirement under existing rules on the exportation of arms.140 Conversely, there can be little doubt that goods and equipment covered by the Arms Trade Treaty and by the United Nations Register of Conventional Arms141 ipso facto qualify as arms, the provision of which to a non-State armed group gives rise to an indirect use of force. The ATT covers eight categories of conventional arms (Article 2), as well as the ammunition/munitions used for these arms (Article 3), and the parts and components enabling their assembly (Article 4). For the description of the categories, the ATT refers back to the UN Register of Conventional Arms (Article 5(3)). Most relevant for the purposes of the Dutch NLA program is the inclusion of ‘armoured combat vehicles’ (Article 2(1)(b)), which includes ‘vehicles, with armoured protection and cross-country capability … designed and equipped to transport a squad of four or more infantrymen’.142 A more detailed list can be found in the EU’s own Common Military List.143 Among the items worth mentioning are: • ‘ground vehicles and components therefor, specially designed or modified for military use’ (ML6(a)), including ground vehicles modified by adding ‘armoured protection of vital parts’ or ‘mountings for weapons (note 2); • Vehicles equipped with a certain level of ballistic protection and that meet several cumulative requirements, including that they be designed or modified for off-road use (ML6(b)); • Armoured plates as well as ‘body armour or protective garments’, meeting certain technical specifications (ML13); and • Imaging or countermeasure equipment designed for military use, including ‘infrared or thermal imaging equipment’ (ML15(d)). Apart from the abovementioned military goods (reminiscent of the concept of ‘absolute contraband’ as consisting of articles ‘exclusively used for war’), arms control law also seeks to restrict the trade in ‘dual-use’ goods, i.e., items, including software and technology, which can be used for both civil and military purposes (this category in a sense resembles the notion of ‘conditional contraband’ as encompassing goods ‘susceptive of use in war as well as for purposes of peace’). While hard conventional law is mostly lacking in this domain, the Wassenaar Arrangement144

140 The

Netherlands, Kamerstuk 27925 no. 534 (n 18), at 4. https://www.unroca.org/about. 142 See: https://www.unroca.org/categories. 143 For the latest version (at the time of writing), see: EU Common Military List (n 77). 144 See https://www.wassenaar.org/. 141 See:

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does provide an intergovernmental forum, bringing together 42 participating countries (including e.g., Russia and the United States), which periodically revisits a ‘List of Dual-Use Goods and Technologies and Munitions List’ for national export control purposes.145 The latter list in turn informs the periodically updated EU Dual-Use Regulation,146 which contains in annex an elaborate and highly technical overview of dual-use goods, including some that also feature on the Common Military List (e.g. Annex I, DU 1A005 ‘body armour and components’), as well as many others that do not. Whether the Dutch NLA program encompassed military or dual-use goods in the sense of the abovementioned instruments is difficult to assess on the basis of the available information. Most problematic would appear to be the provision of pick-up trucks outfitted to withstand improvised explosive devices147 and used to transport fighters, as well as of metal bars to be mounted on pick-up trucks and capable of carrying heavy guns.148 Other sensitive items include uniforms,149 tactical vests for M-16s and AK47s (but reportedly without body armour)150 and heat cameras.151 IF the goods concerned were to feature on any of the abovementioned lists of military or dual-use goods (which is uncertain), there can be little doubt that their delivery to ‘moderate’ rebel groups prima facie constitutes an indirect use of force in the sense of Article 2(4) UN Charter. If some of the goods would additionally be covered by the ATT, that might additionally entail a breach of the Arms Trade Treaty, prohibiting the transfer of conventional arms if the State has knowledge that the arms or items would be used in the commission of crimes against humanity or war crimes. Strikingly, in the debates before the Dutch Parliament, the government consistently emphasized that goods and equipment such as heat cameras, metal rods to be mounted on trucks, or tactical vests without body armour were not included in the relevant lists of military or dual-use goods subject to export control,152 seemingly to absolve them of any legal responsibility. Be that as it may, if the relevant goods’ inclusion on the aforementioned lists sufficiently demonstrates that they come within the ambit of the prohibition against indirect use of force, the converse does not hold 145 Wassenaar

Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Public Documents, Volume II, List of dual-Use goods and Technologies and Munitions List, December 2019, https://www.wassenaar.org/app/uploads/2019/12/WA-DOC-19PUB-002-Public-Docs-Vol-II-2019-List-of-DU-Goods-and-Technologies-and-Munitions-ListDec-19.pdf. 146 EC Council Regulation 428/2009 (5 May 2009), OJ 2009, L 134/1 (as amended). 147 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 86. 148 Ibid., question 378; The Netherlands, Tweede Kamer der Staten-Generaal, Brief van de Minister van Buitenlandse Zaken, Kamerstuk 32623 no. 227, 26 September 2018. 149 The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 133 and 172. 150 Ibid., question 30; The Netherlands, Kamerstuk 32623 no. 247 (n 21) questions 30, 41 and 112. 151 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 378; The Netherlands, Kamerstuk 32623 no. 227 (n 148), at 2. 152 The Netherlands, Kamerstuk 32623 no. 227 (n 148), at 2; The Netherlands, Kamerstuk 32623 no. 247 (n 21) questions 2, 39, 41 and 135; The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 122, 203, 216 and 378.

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true. Indeed, it is recalled that the lists of goods and equipment in Annexes I and IV of the EU’s Dual Use Regulation are not exhaustive.153 Rather, Article 4 of the Regulation contains a catch-all clause covering other goods that ‘are or may be intended, in their entirety or in part, for a military end-use’. In the present case, as was explained above,154 the Dutch authorities were fully aware of the risk that some of the equipment would be used for military purposes. Indeed, by admitting that the support was meant to ensure that the rebels could stand their ground and defend the territory under their control, the Dutch government equally accepted its (partially) military purpose. In the margin, it is worth observing that while items such as uniforms or tactical vests are absent from the EU’s Common Military List or the Dual-Use Regulation, the 1909 London Declaration included ‘clothing and equipment of a distinctively military character’ in the list of absolute contraband (Article 22(6)). Military uniforms are also routinely covered by arms embargos imposed by the UN Security Council.155 In short, an item’s absence from a national or European export control list cannot serve as a fig leaf to circumvent the international prohibition enshrined in Article 2(4) UN Charter.

26.4.1.4

Concluding Thoughts on the Nature of the Goods Supplied

In the end, there are strong indications that the Dutch non-lethal assistance effectively entailed an indirect use of force in contravention of Article 2(4) of the UN Charter.156 The authors do not contest that this infringement may have been (far) less grave than in case of other countries providing lethal equipment to Syrian rebels. Yet, even a small-scale breach cannot simply be cast aside as an innocent flirt with the supposedly ‘grey areas’ of the law. Furthermore, little doubt can exist that part of the NLA program infringed the— substantively broader—principle of non-intervention.157 Indeed, as is clear from the Nicaragua judgment, this principle is not limited to the supply of arms and funding, but forbids even the provision of logistic support (with the exception of strictly

153 In

addition, it is obvious that a single State or regional organization (such as the EU) cannot single-handedly narrow the scope of the prohibition on the use of force by drafting its own list of military or dual-use goods. 154 See text accompanying n 23–26. 155 This is illustrated inter alia by the fact that the sale of uniforms is often addressed in the context of UN arms embargoes. See, e.g., Report of the Panel of Experts on Somalia pursuant to Security Council Resolution 1425 (2002), UN Doc S/2003/223, 25 March 2003, at 6 and 8; Final Report of the Panel of Experts Established Pursuant to Resolution 1973 (2011) concerning Libya, UN Doc S/2013/99, 9 March 2013, at para 54. 156 For a more generous appraisal of the NLA program, see Marchal 2017, at 13 (finding it ‘fairly easy’ to conclude that the program did not breach Article 2(4), as it expressly steers clear from (threatening) military force). 157 Again, for a different interpretation, see Marchal 2017, at 13 (suggesting that the Dutch assistance lacked the ‘coercive’ dimension to be considered a breach of the non-intervention principle).

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humanitarian aid) to non-State armed groups embroiled in a NIAC.158 The Institut’s 1975 Wiesbaden Resolution (predating Nicaragua) in turn prohibits the provision of ‘financial or economic aid likely to influence the outcome’ of the conflict (Article 2(2)(d)), while permitting that ‘which is not likely to have any substantial impact’ (Article 3(b)). Taken together, it appears that, at the very least, the vehicles, laptops and communication equipment delivered by the Dutch government constituted a prohibited intervention. A broader reading, equally defensible on the basis of the Nicaragua acquis, would qualify all non-humanitarian assistance to organized armed groups as such—possibly encompassing the NLA program in its totality. Finally, as set out above in Sect. 26.3.2, it is submitted that the ‘non-lethal’ nature of the equipment provided to a group (State or non-State) that is known to commit widespread IHL or human rights violations or core crimes, does not automatically shield the supporting State from being found ‘complicit’ to such violations in the sense of Article 16 ARSIWA, nor does it exclude a possible breach of Common Article 1 of the Geneva Conventions. While, again, noting the limited scope of the NLA program as compared to that of other involved States, it is nevertheless difficult to deny that the goods had a more-than-minimal effect on the commission of wrongful acts. Indeed, even if the aid was one or more steps removed from the actual violations, it also seems to have genuinely facilitated the latter by increasing the armed group’s operational capacity and performance.159 Crucially, as the Netherlands was fully aware of credible information that all parties to the conflict were committing atrocities, the authors therefore agree with Carla Del Ponte’s assessment that the support may have rendered the Netherlands complicit in war crimes and, moreover, led it to fail in its duty to ensure respect for IHL.160 On the latter point, the program also resulted in increased leverage over the recipient armed groups—triggering the due diligence obligation to take all necessary steps to stop IHL violations and prevent future ones. Here it is worth remembering that the government started a dialogue with some of the accused and provided several commanders with human rights training. In a few cases, such concerns may have even led the government to cease support.161 Consequently, the government at least took some steps to use its leverage to tilt beneficiary armed groups towards respect for international law—or cut ties with them altogether, when that proved to be impossible. Having examined the nature of the Dutch support to Syrian armed groups, our next section turns to the beneficiaries of that support, asking in particular whether the legal assessment is informed by the identity of the addressees.

158 Nicaragua,

paras 242–3. text accompanying n 91–100. 160 See text accompanying n 32–33. 161 See text accompanying n 34–35. 159 See

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26.4.2 Assistance to Whom? Moderate Rebels Versus Extremist and Terrorist Groups An important ‘selling point’ of the Dutch government in justifying the NLA program before parliament consisted in the fact that the armed groups receiving support were carefully vetted and selected in consultation with key allies such as the US and the UK. The chosen beneficiaries were supposedly ‘moderate armed opposition groups’ ‘defending the opposition’s territory against attacks from [the] Assad [regime] and extremist groups such as ISIS’.162 Three main criteria guided the selection process: no cooperation with extremist groups, a commitment to an inclusive political solution to the conflict, and a commitment to international humanitarian law.163 The above criteria were clearly of considerable importance from a policy and operational perspective, and contributed to securing political support for the NLA program and increasing its legitimacy. Yet, does the vetting process influence the legality of the assistance under international law? We leave aside for now the apparent failure to consistently apply and verify these criteria—a problem already noted above in Sect. 26.2.1 (see also Sect. 26.4.3 below on the role of monitoring). Instead, for the sake of the argument, we proceed from the vetting process as presented by the government. On the one hand, it is clear that if assistance was provided only to armed groups showing adequate regard for international humanitarian law—that is, groups not engaged in serious and widespread violations of IHL or in crimes against humanity—that would strongly reduce, and arguably eliminate, the legal exposure under Common Article 1 of the Geneva Conventions. Inasmuch as applicable, it would similarly appear to rule out any breach of the Arms Trade Treaty and exclude State ‘complicity’ for internationally wrongful conduct on the part of the supported group. The foregoing observations would arguably not be affected by isolated instances of war crimes committed by individual members of the group receiving assistance, as long as the overall conduct of the group effectively reflected a genuine commitment to IHL. On the other hand, does it matter that the groups assisted are supposedly ‘moderate rebels’, rather than ‘terrorist’ groups? Surely, the prohibition of indirect use of force and the principle of non-intervention are not confined in scope to cover exclusively aid to terrorist groups. This much is clear, for instance, from the 1970 Friendly Declarations Resolution which prohibits ‘assisting … in acts of civil strife or terrorist acts in another State’, or which bans assisting or financing ‘subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or [interference] in civil strife in another State’. The text clearly illustrates that assistance to terrorist groups is merely part of a broader category of prohibited conduct, a point that is confirmed in various other UNGA resolutions.164 162 The

Netherlands, Kamerstuk 32623 no. 229 (n 2) question 133. question 20. 164 See, e.g., Article 3(g) of the Annex to UN General Assembly, Resolution 3314 (XXIX): Definition of Aggression, UN Doc A/RES/3314(XXIX), 14 December 1974. 163 Ibid.,

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In a similar vein, the relevant findings of the ICJ in the Nicaragua case were in no way confined to assistance to ‘terrorist’ groups. This is altogether unsurprising, having regard to the fact that the international community has hitherto failed to agree on an overarching and authoritative definition of international terrorism.165 The lack of consensus in this context (reminiscent of the cliché that ‘one man’s terrorist is another man’s freedom fighter’) is reflected in the fact that States tend to adopt different lists of terrorist groups, and that even at the domestic (and EU) level different approaches are used to determine whether groups qualify as ‘terrorist’ groups for purposes of imposing sanctions (or ‘restrictive measures’), on the one hand and to identify such groups for purposes of criminally prosecuting terrorist offences, on the other hand (as the Dutch example illustrates all too well).166 At the most, then, the fact that assistance is provided to certain ‘terrorist’ groups is an aggravating factor that may potentially result in additional legal exposure for the State concerned under existing UN Security Council resolutions167 or conventional instruments in the counter-terrorism realm (such as the Terrorism Financing Convention).168 Yet, assistance to ‘moderate’ rebels, even to groups committed to compliance with IHL, is undoubtedly just as contrary to the prohibition on the use of force and/or the non-intervention principle. Another interesting issue relates to the political recognition of the Syrian National Council (SNC) by the Netherlands (in 2012) as the ‘legitimate representatives of the Syrian people’.169 Does this recognition alter our assessment relating to the prohibition on the use of force and the non-intervention principle? In a letter to the House of Representatives, the Dutch Foreign Minister seemed to suggest it could: The cabinet understands that, in case the legitimacy of the regime in power decreases and that of the armed opposition increases, the duty of non-intervention is under pressure. … The lack of legitimacy of the Assad regime and the broad recognition of the [Syrian Opposition Council (SOC)] as the legitimate representative of the Syrian people have led the government to conclude that the supply of military equipment to the SOC, in exceptional cases and under specific conditions, need not be contrary to international law.170 165 The

lack of such definition was acknowledged by the Dutch government. The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 11 and 87. Generally, see: Saul 2005. 166 See text accompanying n 36–38. 167 Reference can be made to UNSC counter-terrorism resolutions of a general nature (e.g., Res 1373(2001) or 1624(2005)), as well as those prohibiting arms supplies to entities linked to Al Qaeda (e.g., Res 2083(2012)). 168 However, the ICJ recently held that convention is not applicable to ‘the financing by a State of acts of terrorism’: Application of the International Convention for the Suppression of the Financing of Terrorism and of the Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), ICJ, Preliminary Objections, Judgment, 8 November 2019 (‘Application of ICSFT and CERD’), para 59. 169 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 1. 170 The Netherlands, Kamerstuk 21501–2 no. 1263 (n 15), at 3–4. Interestingly, there was some support among States and scholars that the transfer of arms to the Syrian Opposition Council would be lawful if the SOC were to be/become the de jure government of Syria, see: ‘Syria: France backs anti-Assad coalition’, BBC News, 13 November 2012; https://www.bbc.com/news/world-middleeast-20319787; Schmitt 2014, at 151; Akande 2013.

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Upon closer scrutiny, however, a negative answer is in order.171 Even if one accepts—for the sake of the argument—that the prohibition for third States to provide arms and assistance only applies to the non-State party to a NIAC, and such assistance to the de jure authorities is permitted, two hurdles remain. First, similar to recognitions by (most) other countries, the Dutch recognition of the SNC was of a political nature, rather than a legal one, and mostly sought to strengthen its legitimacy and political standing in reaction to the atrocities committed by the Assad regime.172 Indeed, the Dutch MFA expressly confirmed that this recognition had no international legal implications,173 and, specifically, did not alter the fact that the Assad regime remained the formal representative of the Syrian State (even if diplomatic relations were severed in 2012).174 In sum, at no point did the Dutch government pretend that the SNC constituted the de jure government of Syria. Second, even if the Dutch government would have wished to proceed to a fullyfledged legal recognition of the SNC as the new Syrian government, such act would of itself have been unlawful. Indeed, as one of the authors has argued elsewhere,175 the recognition of de jure governments is not a purely discretionary act. Rather, government status is a legal concept, which presupposes that an individual or group of individuals claiming to be the government of a State exercise effective control over all or most of the State’s territory and is likely to continue to do so.176 Premature recognition of a new de jure government, absent such effective control, is a tortious act against the lawful government in breach of international law. This position, has long been accepted position in legal doctrine177 —notwithstanding occasional challenges (e.g., in the context of the ongoing political crisis in Venezuela).178 Clearly, little would remain of the purpose and relevance of the prohibition of indirect use of force and the non-intervention principle if third States could circumvent its scope simply by unilaterally recognizing a different government. Whether the situation would be different if the recognition were to stem from the UN Security Council is a different matter altogether, which need not entertain us here, however, since the Council made no such pronouncement at any point during the Syrian civil war. The interim conclusion must therefore be that the identity of the beneficiaries of the Dutch NLA programme does not render the aid lawful under the prohibition on the use of force and/or the non-intervention principle. A final caveat is in order, however. 171 This

was also the position of Nollkaemper 2013, at 3–4. In a similar vein, see: Marchal 2017, at 8–15. 172 Further, see: Talmon 2013. 173 The Netherlands, Kamerstuk 21501–2 no. 1263 (n 15), at 3. In a similar vein: CAVV/AIV 2020, at 5. 174 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 1. 175 Ruys 2014, at 37–9. 176 Ibid. 177 Lauterpacht 1947, at 95; American Law Institute (1990) Restatement of the Law—Third. The Foreign Relations Law of the United States, at para 203; Wiesbaden resolution (n 121), Article 2(2)(f). 178 See, e.g., Janik 2019.

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The prohibition on the use of force and the non-intervention principle exclude thirdState support for non-State armed groups that are active in another country. Yet, it may occur that third States provide support to other entities operating in a State plagued by civil strife. In particular, it is recalled that, in addition to the NLA program, the Dutch authorities also provided assistance (esp. financial assistance in the amount of EUR 10 million) to the so-called White Helmets.179 The White Helmets were (and are) a group comprising an estimated 4000 volunteers and staff operating throughout Syria, engaged in activities such as civilian rescue operations after aerial bombardments, fire response, etc.—activities that apparently come under the rubric of ‘civil defence’ as understood in international humanitarian law.180 Having regard to the fact that this group took no direct part in hostilities in Syria, and assuming that it was not involved in ‘acts harmful to’ the warring parties (in the sense of Article 65 AP I), it is fair to conclude that assistance to this group (inasmuch as it was not diverted to armed groups, see Sect. 26.4.3) was not covered by the prohibition on the use of force or the non-intervention principle and/or was covered by the ‘humanitarian’ exception identified in, among other, the Nicaragua case. Obviously, such assistance would raise no objections either under Common Article 1.

26.4.3 Objectives and Oversight of the NLA Program A final point that merits attention relates to the purported objective of the aid and the concomitant monitoring efforts. In particular, apart from emphasizing the supposedly ‘civilian’ nature of the provided goods and equipment, the Dutch government stressed that the overarching purpose of the NLA program was to ‘strengthen the position of the moderate armed opposition’ in order to ‘improve their negotiating position … in Geneva’.181 The support provided aimed at enabling these groups ‘to hold out against extremist groups and the [Assad] regime, providing room for stabilisation and giving people an alternative’.182 By contrast, it ‘did not have an offensive aim’.183 To this end, unequivocal supply conditions were drafted and imposed on the beneficiaries of the support. Specifically, such conditions were introduced for the transfer of vehicles: The anticipated outcome in providing these vehicles is to increase the capacity and protection of fighters by providing necessary vehicles. The equipment is provided under the condition that it is only used for transportation, frontline improvement and logistical communication.184

179 The

Netherlands, Review of the Monitoring Systems of Three Projects in Syria (n 22), at 23–5. Article 61 AP I for an overview of civil defence tasks and a definition of ‘civil defence organizations’. 181 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 191. 182 Ibid. 183 The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 1. 184 Ibid., question 4. 180 See

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Furthermore, the support to ‘moderate armed opposition forces’ in the North of the country and the support to groups operating along the southern border appeared to be underpinned by somewhat different objectives. In the South, the focus was on ‘border protection’, specifically ‘to prevent the smuggling of weapons and drugs and to avoid border crossings by extremist organisations’.185 Conversely, ‘with the armed groups falling outside the border protection programme and that received vehicles, it was agreed that no guns would be mounted on those vehicles’.186 An oversight system was also introduced, of which the purpose was threefold: (1) to monitor the possible commission of war crimes and crimes against humanity by the groups concerned; (2) to ensure that the goods and equipment would not fall into the wrong hands (e.g., by being diverted to, or recaptured by, extremist groups), and; (3) to verify that the goods were not otherwise used in contravention of the agreed supply conditions. Apart from imposing written supply conditions and insisting that goods were intended for civilian use, the Dutch government relied on monitoring by the implementers/subcontractors who had field officers conducting field visits to inspect the provision of equipment and goods. They reportedly used photo and video footage, often with GPS and time-stamps, to verify their presence and delivery. The use of vehicles was controlled not on the basis of license plates, but the vehicle identification number.187 The question again arises to what extent the above objectives and conditions, and the concomitant monitoring efforts, impact the legal analysis. Clearly, it is common practice in export control law to impose upon the purchasers of dual-use goods enduser requirements, and to demand the signing of an end-user certificate, in which the purchaser undertakes to use the goods and equipment concerned solely for certain civilian purposes. Can such practice play a role at the level of State responsibility under international law? One analogy that comes to mind is the reliance on ‘diplomatic assurances’ in the human rights domain. In particular, it is not uncommon for States to request and rely on ‘diplomatic assurances’ that a person that is extradited will not face the death penalty, suffer torture or inhuman treatment. Such assurances have repeatedly been accepted by human rights bodies.188 Yet, the practice of securing such assurances has also been criticized by human rights NGOs as a fig leaf meant to secure ‘plausible deniability’ and human rights treaty bodies have similarly

185 The

Netherlands, Review of the Monitoring Systems of Three Projects in Syria (n 22), at 26. See also: The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 108. 186 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 87. Note: the statement appears to suggest a contrario that groups within the border protection programme were allowed to mount heavy guns on the supplied vehicles. 187 The Netherlands, Review of the Monitoring Systems of Three Projects in Syria (n 22), at 26–7; The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 87. 188 For relevant examples, see: the European Court of Human Rights’ Factsheet on ‘Death Penalty Abolition’, last updated March 2019, https://www.echr.coe.int/Documents/FS_Death_pen alty_ENG.pdf.

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questioned the reliability of such practices, even where follow-up procedures are introduced.189 Returning to the case at hand, it is recalled at the outset that the prohibition on the use of force and the non-intervention principle in principle pay no regard to the motive invoked to justify conduct that comes within the scope of the respective norms.190 Thus, the 1974 UNGA Definition of Aggression reminds us that ‘[n]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression’ (Article 5).191 On the other hand, it could be argued that the initial scope of application of both prohibitions ought to be construed in a functional manner, having regard to the object and purpose of the norms concerned. In particular, the prohibition on the use of force could be said not to cover acts that do not affect the ‘territorial integrity or political independence’ of another State, and that do not otherwise contravene the purposes of the UN Charter. Along the same lines, aid that does not as such support a non-State armed group in its non-international armed conflict with the State or otherwise ‘interfere in civil strife’ could be said not to qualify as coercive action covered by the non-intervention principle. But even if such a teleological reading is adopted, problems remain. First, and most obvious, ‘non-offensive’ use is not equivalent to ‘civilian’ use. The stated objective of the NLA program (to enable the moderate rebels ‘to hold out against extremist groups and the regime’) clearly brings it within the scope of the prohibition on the use of force and/or the non-intervention principle. Thus, the mere fact that vehicles are supposedly not used for offensive operations, but rather for defensive purposes, does not exclude their military use. Quite the contrary, transporting troops, ‘frontline improvement’ and ‘logistical communication’ all fall squarely within the scope of military operations. The agreed supply conditions are accordingly insufficient to exclude liability for indirect use of force and/or unlawful intervention. One might be more positively disposed towards the assistance provided to groups in the South, aimed at preventing criminal activities and border crossings by extremist groups. Yet, here too it seems plausible that the support simultaneously strengthened the position of the moderate rebels vis-à-vis the Assad regime, and could accordingly ‘influence the outcome’ of the conflict (to paraphrase the Institut’s Wiesbaden resolution). Second, even assuming that the Dutch government would have insisted that the goods and equipment provided were to be used exclusively for (genuinely) civilian purposes, obtaining formal confirmation to this end from the beneficiary hardly serves as a carte blanche. Rather, even in such circumstances the Dutch government would remain under a due diligence obligation to ensure compliance with the end user requirement. Three obligations can be tentatively discerned: (1) an obligation to examine whether the supply conditions would in all likelihood be complied with 189 See,

for example: Amnesty International 2017; UN Committee against Torture, Concluding Observations on the Fifth Periodic Report of the United Kingdom, UN Doc CAT/C/GBR/CO/5, 24 June 2013, para 18. 190 See text accompanying n 65–66. 191 For an example from neutrality law, see Article 16(a) of the 1928 Pan-American Neutrality Convention (n 116).

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(based on the group’s prior conduct, the nature of the goods and the assurances obtained), (2) adequate verification efforts and (3) remedial action, especially in the form of a termination of the assistance when violations come to light. Due to the confidential nature of certain information, including the names of the groups receiving support, as well as the monitoring reports themselves, the extent to which these obligations were properly implemented remains difficult to assess. Official documents do suggest that the government undertook substantive efforts in good faith, both at the vetting stage and at the monitoring stage, to ensure that the selection criteria and supply conditions were respected—or at least to mitigate the risk of non-compliance. An internal report by the MFA concluded that the monitoring system of the NLA program was ‘adequate’.192 At the same time, the report clearly acknowledges the challenges to effective monitoring in the extremely volatile and dangerous setting of the Syrian civil war: ‘[c]onstant monitoring is impossible in a warzone context, and commanders sometimes actually restrict access for the staff of implementing organisations’.193 The report also warns of the risk of ‘bias of the implementers’, while regretting the absence of ‘wider coordination’ or ‘exchange of information’ with other ‘donor countries’.194 Especially with respect to groups operating in southern Syria, the report noted that the Dutch MFA did not receive full access to information from the implementer and (different) lead donor, although it participated in monthly meetings and received quarterly reports.195 Ultimately, the report finds that the risk of goods falling into the hands of extremist organisations could not be excluded, particularly not with respect to the NLA destined for South Syria, which could be used ‘as auxiliary material in military operations’.196 Yet, this risk had been ‘accepted at the political level’.197 Furthermore, in response to questions from MPs, the MFA acknowledged that ‘the risks that non-lethal goods would become part of the battle’ were known, and that it was never excluded that certain goods would be used in contravention of the supply conditions.198 The MFA also acknowledged that it knew of some incidents where supplied goods had fallen in the hands of ‘extremists’.199 It moreover recognized that while laptops had been supplied for media/outreach and administration purposes, 192 The Netherlands, Review of the Monitoring Systems of Three Projects in Syria (n 22), at 11–12. 193 Ibid., at 26. See also ibid., at 10 (‘Implementing a programme remotely in a conflict zone such as

Syria is inherently accompanied by risks of irregularities and/or misappropriation.’ Further: ‘The safeguards provided by vetting against international watch lists is limited. … As a result, vetting alone cannot exclude extremist organisations from becoming beneficiaries.’). 194 Ibid., at 26. 195 Ibid., at 27–8. See also: ibid., at 11 (‘Financing programmes through a lead donor can inhibit the MFA’s information position. It should not be assumed that the lead donor will always be forthcoming’). 196 Ibid., at 11–12 and 25–7. 197 Ibid., at 25. 198 E.g., The Netherlands, Kamerstuk 32623 no. 247 (n 21) questions 1, 14, 23, 40 and 135. See also: The Netherlands, Kamerstuk 32623 no. 229 (n 2) questions 13, 94, 120, 152, 213 and 285. 199 The Netherlands, Kamerstuk 32623 no. 247 (n 21) questions 21 and 38; The Netherlands, Kamerstuk 32623 no. 229 (n 2) 106.

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they had also been used for target selection in combats with ISIS, and that pick-up trucks had been used to transport ammunition.200 On some occasions, remedial action was undertaken where the supply conditions were found to have been breached or where the risk of non-compliance was deemed too high.201 Thus, when it was found that vehicles supplied as part of the NLA programme were modified with iron bars capable of being equipped with heavy guns, the government reached out to the implementer and modifications of the vehicles were ‘immediately ceased’.202 At the same time, it was clear that goods and equipment that had been supplied could not possibly be recovered from the conflict zone where a beneficiary violated the agreed conditions.203 As mentioned above, at least one well-placed Dutch official claimed the government also ended its support to several groups after determining they no longer met the criteria set out.204 Mutatis mutandis, similar observations can be made in respect of the Netherlands’ legal exposure under Common Article 1 and on account of complicity for grave breaches of IHL (see Sect. 26.3.2). Indeed, as mentioned above (see Sect. 26.4.2), liability under the aforementioned rules can be excluded where aid is provided only to armed groups committed to compliance with IHL. Yet, formal adherence to IHL hardly provides conclusive evidence to this end—as the MFA acknowledged.205 Rather, it can at best provide but one indication to be considered, together with other indicia, such as past conduct or the fact that a group’s commanders have received proper IHL training. Adequate monitoring and appropriate remedial action in case of non-compliance moreover remain indispensable. In reality, it was clear that human rights violations and core crimes were committed not only by the Assad regime, but also by various armed groups. These violations were well-documented, and well-known to the Dutch authorities.206 The internal MFA report moreover notes how monitoring human rights violations proved particularly challenging, having regard to the ‘negative incentive to report such abuses’ and without constant and independent field presence.207 In the end, then, neither the (well-intentioned) objectives nor the (substantial) oversight efforts can fully serve to 200 The

Netherlands, Kamerstuk 32623 no. 247 (n 21) questions 43, 44 (it is unclear whether this was deemed to come within the scope of (permitted) frontline improvement activities under the supply conditions) and 134. 201 But see, e.g., The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 60. 202 Ibid., questions 71 (see also: ibid., questions 56 and 140). Elsewhere, it is reported that Dutch funding was no longer used for iron bars. The Netherlands, Kamerstuk 32623 no. 230 (n 6), at 2. 203 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 209; The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 101 (confirming that no goods were reclaimed). At most, after the cessation of the NLA programme in the North, the Dutch MFA managed to reach out the ‘implementer’ to make sure that several vehicles that had not yet been delivered, were supplied to a humanitarian organization. The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 99. 204 The Netherlands, Kamerstuk 32623 no. 242 (n 6), at 4–5. 205 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 282. 206 The Netherlands, Kamerstuk 32623 no. 247 (n 21) question 156. 207 The Netherlands, Review of the Monitoring Systems of Three Projects in Syria (n 22), at 26–7. See also text accompanying n 34–35.

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remedy the Dutch NLA program’s vices—at least as far as its international legality is concerned.

26.5 Epilogue This paper has sought to test the Dutch NLA program against the applicable legal framework under international law. It was argued that neither the ‘non-lethal’ character, nor the fact that the goods and equipment provided were absent from the EU’s Common Military List and the Annexes to the EU’s Dual-Use Regulation suffice to exclude breaches of the prohibition on the use of force or the non-intervention principle. Neither were such breaches excluded on account of the fact that assistance was provided solely to ‘moderate’ rebels, recognized as the ‘legitimate representatives of the Syrian people’. In addition, even if the Dutch government acted diligently in vetting the beneficiaries and in imposing and monitoring supply conditions, the latter did not exclude all military use, but only ‘offensive’ use. Finally, it cannot be excluded that the Netherlands incurred secondary State responsibility to the extent that its conduct contributed to human rights and IHL violations carried out by the allied armed groups. And while the Dutch undertook steps to monitor and ensure the groups abided by their obligations under international law, it is unclear whether that sufficiently discharged its positive obligations under Common Article 1. In addition, we previously dismissed the idea that the NLA program, given its humanitarian undertone and inspiration on account of the atrocities committed by the Assad regime, could be justified as a permissible ‘humanitarian intervention’ or as a form of lawful ‘(third-party) countermeasure’.208 Strikingly, neither argument was as such put forth by the Dutch government in support of the program—nor, for that matter, are the authors aware of any other State having explicitly invoked either doctrine to justify assistance to Syrian rebel groups—be it lethal or non-lethal. It is further noteworthy that the impermissibility under extant law of unilateral humanitarian intervention was confirmed in a recent study by an Expert Group set up by the Dutch MFA, with the ‘great majority’ moreover finding that a new exception of this nature was ‘not advisable’ either.209 For the sake of completeness, other justifications such as, for instance, the consent210 of the territorial State or Chapter VII UNSC authorization were equally off the table.211 And while the MFA took the view that arms transfers to rebel groups could potentially be justified as a form of collective

208 See

Sect. 26.4.3. Netherlands, Export Group Established by the Minister of Foreign Affairs, Humanitarian Intervention and Political Support for Interstate Use of Force, December 2019, https://www.rijksoverheid.nl/documenten/rapporten/2019/12/19/humanitarian-interventionand-political-support-for-interstate-use-of-force, at ix. 210 In the sense of Article 20 ARSIWA. 211 In this sense: The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 56. 209 The

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self-defence to protect Iraq against attacks from ISIS212 (the same legal justification that was also invoked to justify the Netherlands’ participation in Operation Inherent Resolve213 ), it acknowledged that such argument was valid only inasmuch as the goods and equipment supplied were to be used exclusively against ISIS—quod non.214 While the present authors accordingly believe the NLA programme contravened the Netherlands’ obligations under international law, two final observations seem in order. First, it is undoubtedly true that the Dutch program absolutely paled in comparison to similar programs by Assad’s other Western and Middle-Eastern enemies, including the United States, United Kingdom, France, Saudi Arabia, Qatar and Turkey, that provided—either openly or clandestinely—arms, military training and/or intelligence to Syrian rebel groups. The Netherlands did take a variety of steps to steer as close as it deemed possible to the applicable international legal framework. As mentioned above, it limited its deliveries to civil and non-military assistance (albeit including all items for which no export licence was required), relied upon a multi-party vetting process of beneficiaries, and installed an extensive third-party monitoring process including regular review and (sporadic) proactive interventions. Importantly, once the bombshell media reports were aired, the government was forthcoming in answering hundreds of parliamentary questions and providing full transparency—uniquely providing insight into the scope and implementation of the NLA program. One might accordingly argue that instead of opting for an excessively ‘legalist’ (or even ‘fetishist’) approach, credit must be given where credit is due, both on account of the government’s transparency and its effort to limit the potential transgression of the law. While there is merit in this position, this is also a double-edged sword. Thus, it was only after the media reports laid bare the true nature of the NLA program, that a government under pressure decided to put all its cards on the table. More importantly, the government also deliberately sought to explore the outer boundaries of the international legal framework and, in so doing, according to the authors, ultimately crossed those very boundaries. The government’s effort to beef up the position of the moderate rebels vis-à-vis both extremist groups as well as the Assad regime, while simultaneously maintaining that it was not in any way ‘intervening’ in the conflict between those rebels and the regime (or at least maintaining an aura of plausible deniability), put it in a catch-22 position from the very start. Perhaps the main takeaway from this incident is that the international legal framework, at least as it stands today, provides little to no room for support to opposition groups fighting for the violent overthrow of a de jure government—especially when 212 Ibid.,

question 61.

213 Note: inasmuch this argument is premised on the assumption that the right of self-defence extends

to cross-border attacks by non-State armed groups, specifically when the State from whose territory to operate is ‘unable or unwilling’ to prevent such attacks, it is not without controversy either. See, generally: ILA 2018, at 16–17; Corten 2016. For the Dutch ‘Article 51 report’ to the UN Security Council, see UN Doc. S/2016/132. 214 The Netherlands, Kamerstuk 32623 no. 229 (n 2) question 61. Also ibid., question 56.

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they are equally accused of committing atrocities (even if on a smaller scale than the opposing party). Indeed, all the admirable precautions taken by the Dutch authorities ultimately does not alter the conclusion that they committed limited but real violations of international law on multiple levels. In the end, a law-abiding State intent upon impacting the outcome of a brutal and deadly civil war can and should stick towards exerting the maximum amount of diplomatic pressure on the warring parties—making full use of the United Nations’ arsenal—and restrict its assistance to that which is strictly humanitarian. Second, a critic might object that this paper presents an overly ‘conservative’ picture of the international legal framework governing third-State support to nonState armed groups. Did not, for instance, the EU explicitly exclude ‘non-lethal military’ equipment from its arms embargo, ostensibly signalling the conviction of the combined EU membership that such aid must be deemed permissible? The authors are very much aware of an increasing body of recent State practice brazenly disregarding this classical understanding of non-intervention—oftentimes involving actual arms transfers, rather than non-lethal support. Against this background some have suggested that legal doctrine should ‘provide meaningful and feasible criteria to frame this practice, rather than simply excluding it by referring to outdated doctrines’.215 It may be that we are witnessing an erosion of the non-intervention principle, in time greenlighting the provision of an intermediate category of assistance that is neither strictly humanitarian (clearly lawful) nor qualifies as an indirect use of force (clearly unlawful). Even so, it cannot be said that this supposedly emerging trend suffices to overturn the existing customary lex lata. Indeed, in order for such legal change to take place, this would require a practice that is sufficiently general and consistent, as well as overt—all the more so if the trend is to alter our understanding of a norm having a peremptory character, such as the prohibition on the use of force. What is more, it would have to be accompanied with the required opinio juris216 —an element that is hitherto lacking. The ambiguous position of the Dutch government is a case in point. Indeed, never did the Dutch government unequivocally state that its NLA program was fully in line with international law. Its lawyers merely emphasized the limited risks under international law and, when pressed, retreated to a favourite safe haven: the legality depends on a case-by-case assessment.217 Importantly, in its advice dated 25 June 2020 solicited by the Dutch parliament, the CAVV/AIV joint commission similarly concludes—in our view correctly—that ‘there does not as yet appear to be a generally accepted opinio juris’ in support of the provision of ‘non-lethal assistance’.218 215 For

controversial practice, see: Nowak 2018, at 72–5 (quote at 75); Ferro and Verlinden 2018, at 22–9; and (n 11). 216 ILC 2018, at 135–40 (conclusion 8 and 9). 217 See text accompanying n 53–55. 218 CAVV/AIV 2020, at 9. The advice observes, on the one hand, that a number of States have openly provided non-lethal (and at times) lethal support to Syrian non-State groups. On the other hand, it notes that a number of States have condemned such support, whereas western States have in turn condemned Russian ‘non-lethal assistance’ to rebels in eastern Ukraine as a breach of the

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Furthermore, for those favouring a loosening of the legal framework de lege ferenda, the case of the Dutch NLA program—given the openness of the dialogue between the government and parliament—presents a unique and insightful experiment into how the legal framework could be shaped. Yet, it also undeniably illustrates the challenges involved, that is, the difficulty—against the background of a complex and ever-evolving conflict—of identifying items of a purely (?) ‘civilian’ nature, to distinguish between ‘moderate’ and ‘extremist’ groups, or to monitor compliance with the supply conditions—challenges that contributed to the government’s decision to pull the plug on the NLA program. In fact, the Dutch experience raises doubts as to the feasibility of creating a workable intermediate category of support that would escape the Nicaragua categorization. Last but not least, as always, those favouring evolutions de lege ferenda would be wise to consider the precedential impact of the suggested change. The risk of creating a novel precedent that would easily lend itself to abuse and/or contribute to conflict escalation is explicitly acknowledged in the advice of the CAVV/AIV joint commission.219 It is precisely for this reason that the joint commission urges the Dutch authorities to be extremely cautious when it comes to contributing to a new legal ground for intervention.220 In the end, in a time when non-international armed conflict is the dominant form of conflict and we are witnessing a remarkable resurgence of proxy warfare, should the law truly embrace the permissibility of ‘non-lethal’ support to non-State armed groups in countries such as Syria, Libya, Yemen et cetera? Those inclined to answer in the positive would do well to consider the body of literature from international relations theory and political science on the impact of third-State intervention in non-international armed conflicts.221 If, ultimately, third-State support tends to prolong and intensify such conflicts, and increase the risk of spill-over effects, without improving the lives of civilians affected by the conflict, then perhaps government officials should think twice before openly undercutting the non-intervention principle through a (so-called) non-lethal assistance program again.

non-intervention principle. The advice finds a lack of an explicit legal justification for the provision of non-lethal assistance coupled with a lack of a clear and unequivocal approval on the part of the international community. No firm position is taken on the (in-)compatibility of the Dutch NLA program with international law. 219 Ibid. 220 Ibid. Note: although the advice would appear to discourage the creation of a novel precedent, it does identify specific criteria that could be employed, in terms of the type of situation (limited to struggles against dictatorial regimes engaged in serious human rights violations), the type of nonState armed group receiving support (groups that have control over a certain area; that are capable of protecting the civilian population against human rights violations, and; which themselves act in accordance with IHL and human rights law), and the type of support (humanitarian support, support for the preservation of public order, border control and the guarding of prisoners). As explained above, however, whether such criteria are ultimately workable is most doubtful. 221 For a rare legal analysis also looking into this literature, see Bultrini 2019.

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Table of Cases*

INTERNATIONAL Court of Justice of the European Union Hungary refugee system and transit zones (2019-2020), 173n19 Hungary v Slovakia (President of the Republic László Sólyom’s), 2013, 174 European Court of Human Rights Baka v Hungary (former president of the Supreme Court of Hungary) case, 2014, 174 Behrami and Behrami v. France, Appl. No. 71412/01, 2 May 2007, 320, 323 Finogenov and others v. Russia, Appl. Nos. 18299/03 and 27311/03, 23 October 2002, 328n100 Hungary refugee system and transit zones (2019-2020), 173n19 Janowiec and Others v. Russia (Katy´n case), Appl. nos. 55508/07 and 29520/09, 21 October 2013, 271n23, 273 S. and Marper v. United Kingdom, Appl. nos. 30562/04 and 30566/04, 4 December 2008, 301n 75 Saramati v. France, Germany and Norway, Appl. No. 78166/01, 2 May 2007, 320, 323 Tugar v. Italy, Appl. No. 22869/93, 1995, 346n76 X. Y. v Hungary (legal questions of pre-trial detention), 2015, 174 International Court of Justice Advisory Opinions Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, 255, 258, 347n82 * The Table of Cases was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected]

© T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7

377

378

Table of Cases

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 2019, 262 Legality of Threat or Use of Nuclear Weapons, 1996, 222n46 Nationality Decrees Issues in Tunis and Morocco, 1921, 345n70 Judgments Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007, 312n10, 328, 348, 350n103 Application of the International Convention for the Suppression of the Financing of Terrorism and of the Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), 2019, 362n168 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005, 344–345n60, n62, n63 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002, 235n14 Asylum Case (Colombia v. Peru), 1950, 228n2 Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985, 12n15 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), 2012, 12n15, 199n25, 274 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), 1986, 322, 343, 344–345, 347n84, 351, 352–353, 359–360, 362, 364, 372 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969, 12n15, 160 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), 2015, 228n3 South-West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), 1966, 171 Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), 2014, 79 International Criminal Tribunal for the former Yugoslavia Prosecutor v. Krsti´c, Case No. IT-98-33-A, 19 April 2004, 312n10 Prosecutor v. Tadi´c, Case No. IT-94-1-A, 15 July 1999, 345n63 Permanent Court of Arbitration Maritime Boundary between Timor-Leste and Australia, Case No. 2016-10, 2018, 79 South China Sea Arbitration between the Philippines and China, Case No. 2013-19, 12 July 2016, 79, 105

Table of Cases

379

NATIONAL Belgium Brussels Court of Appeal, Mukeshimana-Ngulinzira and others v. Belgium and others, 8 June 2018, 311, 316–317, 319–320, 322, 323, 326, 327, 330 Brussels Court of First Instance, Mukeshimana-Ngulinzira and others v. Belgium and others, 316, 319 Canada Federal Court Turp v. Minister of Foreign Affairs, 24 January 2017, 350n101 Germany Oberverwaltungsgericht Münster Ramstein Air Base case, 2019, 346n76 Hungary Constitutional Court Obligation to preserve biological diversity, 2017, 179 Precautionary principle in Fundamental Law of Hungary, 2018, 179 Japan Supreme Court Sunagawa Case (Sakata v Japan), 1959, 215 Tokyo District Court Shimoda case (Compensation claim against Japan brought by the residents of Hiroshima and Nagasaki), 1963, 220, 222 Sunagawa Case (Sakata v Japan), 1959, 215 Various courts Kuang Hua Liao (Kokaryo) Case 106 (1977-2007), 106 Netherlands Supreme Court Netherland v. Mothers of Srebrenica and others, 19 July 2019, 310–311, 313, 315, 319, 320–321, 324, 325, 327, 328, 329–330 Netherlands v. Mustafi´c, 6 September 2013, 313, 314, 318, 320 Netherlands v. Nuhanovi´c, 6 September 2013, 313, 314, 318, 320, 323 Netherlands v. Urgenda, 2019, 173n19 Stichting Mothers of Srebrenica and others v. The Netherlands, 13 April 2012, 313

380

Table of Cases

Court of Appeal The Hague Nuhanovi´c v. the Netherlands, 5 July 2011, 324, 326n90 Stichting Mothers of Srebrenica and others v. The Netherlands, 27 June 2017, 311, 312, 314, 319, 320, 322–323, 327, 328, 329 District Court The Hague Stichting Mothers of Srebrenica and others v. The Netherlands, 16 July 2014, 314, 318, 327, 328–329 Syri case, 5 February 2020, 297, 303–306 United Kingdom High Court of Justice Campaign Against Arms Trade v. The Secretary of State for International Trade, 10 July 2017, 350n101 United States Court of Appeal California Mitsubishi Materials Corporation et al., Petitioners, v. The Superior Court of Orange County, 2003, 222n46 Court of Appeal Columbia Dupont Circle Citizens Ass’n v. District of Columbia Board of Zoning Adjustment, 1987, 103n11

Index*

A Abs, Hermann Josef , 28n26 Absolute contraband, 355, 356, 359 Acta Juridica Hungarica—Hungarian Journal of Legal Studies (journal, Hungary), 172 Acta Juridica (journal, Hungary), 172 Addis Abeba University (AAU), 122 Adjovi, Roland, 68 ‘Advocating for Palestinian Rights in Conformity with International Law: Guidelines’ (Birzeit University Institute of Law), 259 Adwa, Battle of (1896), 123n4 AfCFTA Agreement (African Continental Free Trade Area), 126 Afriansyah, Arie, 4 Africa democratization in, 66 international law scholarship in, 66, 122, 123–124 multilateralism in, 126 African Association of International Law, 64 African Foundation of International Law, 67 African Institute of International Law (AIIL), 72 African Union, 70 African Yearbook of International Law, 61–62 aims/role of, 63, 65–67

bilingualism of, 66–67 editors of, 64–65, 67–68, 70 emergence of, 4, 43–44 future challenges of, 71–72 history of, 63–65 publications in, 65, 68–71 Agamben, Giorgio, 10, 13 Ago, Roberto, 202n42, 203 Agora collections in Yearbooks, 75, 79, 250 Ahrar al-Sham (armed group, Syria), 339 Aiding and abetting international criminal law on, 349–350 see also Complicity Algorithm Watch, 290–291, 306 Algorithms biases in, 18 use in international law of, 15 use in social security fraud detection of, 291–293, 295–296 automated decision-making by, 300–302 criticism of, 293–295 and human rights protection, 294, 296–303 litigation on, 289, 290, 296–297, 303–306 Allott, Philip, 161 Alston, Philip, 47, 50n11, 296 Alvarez, Judge, 228n2 American international law, 228n2 American Journal of International Law, 79 publications in, 22, 51, 56n25

* The

Index was compiled by Ms C.C. Diepeveen, Middelburg, The Netherlands, e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 O. Spijkers et al. (eds.), Netherlands Yearbook of International Law 2019, Netherlands Yearbook of International Law 50, https://doi.org/10.1007/978-94-6265-403-7

381

382 American Society of International Law (ASIL), 106 Amoroso, Daniele, 205–206 Anachronisms, in international law, 14 Annals of the Chinese Society of International Law, 102 Annuaire français de droit international (AFDI), 50, 137 aims/role of, 138, 139–142, 145–147 editors of, 143–144 emergence of, 138–139 impact of, 145 publications in, 141–142, 144–145 Annuaire français des relations internationales, 139n8 Annuario di diritto internazionale (Yearbook, Italy), 204, 205 Anti-Semitism, in Poland, 267 Anuario Español de Derecho Internacional (AEDI), 277 aims/role of, 278, 283 editors of, 280 emergence of, 278 financing of, 279 impact of, 282–283 publications in, 5, 279–280, 281 online availability of, 280–281, 282, 283–284 Anuario Hispano-Luso-Americano de Derecho Internacional, 62 Apáthy, István, 170 Arbitration, in South China Sea territorial disputes, 105 Arcari, Maurizio, 196n4 Archipelagic states, 184 Archiv des Völkerrechts (journal, Germany), 147n29, 151–152 Archives, 37, 38 of international law, 38–39 Yearbooks as, 41, 43, 44 Armed attacks, 344–345n63 Armed conflicts international non-participation and impartiality duties in, 352–353 see also Non-intervention principle in Latin America, 228 non-international parties to, 353n114 third-state intervention in, 372 parties to, 352–353n114 in Syria, 336–337

Index armed groups in, 339, 346, 368 Netherlands support for see Non-lethal assistance (NLA), by Netherlands to armed groups in Syria Armed groups assistance to and non-intervention principle, 343–345 state responsibility for, 346–350 see also Non-lethal assistance (NLA) in Syria conflict, 337, 338 international crimes committed by, 339, 346, 368 Netherlands NLA for see Non-lethal assistance (NLA), by Netherlands to armed groups in Syria Arms see Weapons Arms embargoes by EU imposed on Syria, 336–337, 352, 371 military uniforms covered by, 359 non-lethal military equipment exceptions in, 352, 371 by UN imposed on Libya, 352 Arms embargoes by EU imposed on Syria, 336–337, 352, 371 military uniforms covered by, 359 non-lethal military equipment exceptions in, 352, 371 by UN imposed on Libya, 352 Arms Trade Treaty (2013) Art. 2, 357 Art. 3, 357 Art. 4, 357 Art. 7, 349 on prohibition to contribute to an illegal act, 349 violations by Netherlands NLA support for armed groups in Syria by, 346–347, 358 on war material, 357 Articles on the Responsibility of International Organizations (ILC) Art. 6, 317 Art. 7, 317, 320, 321–323, 330 31, 329 Art. 58-62, 321 on reparations obligation, 329 on responsibility for peacekeeping operations, 317–318, 349

Index and state responsibility, 321 Articles on the Responsibility of States (ILC) Art. 8, 320, 321–322, 323, 324, 330 Art. 16, 347–348, 349, 350, 360 Art. 31, 329 Art. 54, 345 on countermeasures, 345 on reparations obligation, 329 Asia, international law publications in, 100 Asian Yearbook of International Law, 62 Asia–Pacific Research Forum, 107 d’Aspremont, J., 47 al-Assad, Bashar, 334 Asser Institute (Netherlands), 56, 241, 243, 250 Attribution of conduct rules interpretation and application of, 310, 317–325, 330 multiple attribution, 325–327 reparations obligations for, 327–330 Auditeurs et Anciens Auditeurs de l’Académie de Droit International de La Haye, 138 Aust, Tony, 52, 349 Australia foreign policy of, 77 international law teaching in, 77 State practice of, 75, 78, 80, 81–82 Australian International Law News, 77 Australian Yearbook of International Law (AYBIL), 75–76 aim/role of, 77, 81–83 editors of, 76, 78 emergence of, 4 history of, 76–78 impact of, 81 publications in, 77–80 on Australian State practice, 75, 78, 80, 81–82 Austrian Review of International and European Law, 51 Austro-Hungarian Empire, 170n5 Authors, scholarly Indonesian, 186–187 of Yearbook publications female, 71 nationalities of, 93, 158–159, 233, 273 number of, 158 participatory role of, 243 Automated decision-making, 306

383 in SyRI algorithm fraud detection, 300–302

B Bak McKenna, Miriam, 11, 14 Balestra, Ricardo R., 107 Ballieri, Giorgio Balladore, 204 Baltic Yearbook of International Law, 51 Barandon, Paul, 154 Bardonnet, Daniel, 143 Barnhoorn, Bert, 246, 249 Bastid, Suzanne, 138, 143 Baty, Thomas, 212 Bear, Laura, 38n5 Becerra-Ramírez, Manuel, 230 Bedjaoui, Mohammed, 31–32, 63, 64–65 Belgium, state responsibility for peacekeeping forces of jurisprudence on, 309, 311, 315–317, 330–331 attribution of conduct rules, 317–327 Belligerents, 352–353n114 Belohlávek, Alexander J., 55n24 Benavides, Luis, 235n14 Bentwich, Norman, 42–43 Bertelsmann Stiftung, 290–291, 306 Bibliographic resources of international law availability of, 63 Yearbook listings of, 51–52, 142, 247, 270, 271 Bierzanek, Remigiusz, 269 Bilingualism, in Yearbooks, 5, 66–67, 91 Birzeit University Institute of Law, 254, 257, 258, 259 Blok, Stef , 338 Blokker, Niels, 249 Bluntschli, Johann Caspar, 170 Bódog, Somló, 170 Book reviews, in Yearbooks, 142, 160–161, 217–218, 219–220, 260, 270 Bosnia and Herzegovina, 170n5 Bothe, M., 353n118, 354, 356 Bourdieu, Pierre, 243n25 Bourne, Charles B., 87–88, 89n21, 90n24, 93n39 Boyle, Alan, 161 Bravo, Luigi Ferrari, 195–196, 198, 201, 202, 205 Brill Academic Publishers (and Nijhoff imprint), 76, 83, 104, 199, 254, 258, 261 online publications, 105

384 British Library, 37, 39 British Yearbook of International Law, 2 archival role of, 39 British character of, 49, 51 editors of, 51 emergence of, 37, 38, 42 impact/ranking of, 47–48 imperial character of, 42–43 publications in, 29, 31, 42–43, 46, 51 role model/influence of, 43, 89–90, 242 Broadcasting law, Yearbook publications on, 156 Broms, Bengt, 132 But-for test of causation, 328 Butler, Judith, 10, 13 Buza, László, 171 C Cambridge Journals online platform (‘Cambridge Core’), 94 Cambridge University Press (CUP), 55, 92, 245 Canada, State practice of, 89, 91, 93–94 Canadian Council on International Law (CCIL), 90n26 Canadian Yearbook of International Law/Annuaire canadien de droit international, 85 aim/role of, 88–90, 92–96 bilingualism of, 5, 91 dissemination of, 91–92 editors of, 90–91 emergence of, 85–88 impact of, 92 publications in, 91 Caportorti, Francesco, 195–196, 202 Cardozo, Judge, 30 Caron, David, 107 Case law see Jurisprudence ˇ Casopis pro mezinárodní právo (Journal for International Law, Czechoslovakia), 112–113 Castrén, E., 356 Cataldi, Giuseppe, 199n26 Catalonia, Spanish Yearbook publications on, 5, 279 Categorization, of weapons, 357 Causation, in international law, 328 Central American Court of Justice, 228 Central Europe, focus of Polish Yearbook on, 5, 275 Centre National de la Recherche Scientifique (CNRS), 143

Index Chang, Yi-ting, 102 Chen, Chun-i, 104, 107n31 Cheng, Bing, 102 China international law thinking and practice of, 100–101 People’s Republic of (PRC) free trade agreement with Taiwan, 106 international law publications in, 103 Republic of (ROC) see Taiwan UN representation of, 4, 99–100, 101 Chinese Journal of International Law, 56, 103 Chinese Society of International Law (CSIL), 102, 106–107 Chinese (Taiwan) Yearbook of International Law (and Affairs), 99–100 dissemination of, 104 editors of, 103–104 emergence of, 4, 101, 102–103 impact of, 104 publications in, 100, 105–108 State practice, 101–102, 106 Chinese Yearbook of International Law, 103 Chinkin, Christine, 161 Chiu, Hungdah, 102, 103–104, 107 Chronos see Lineal time Civilians, failure to protect, 324 Classification, of State practice documents, 245–246, 248 CMP Publishing, 104 Co-belligerency, 352–353n114 Code, international law as, 15–16, 18 Cohen, Jerome A., 105–106 Cohen, Maxwell, 87, 88n17 Coke, Edward, 41 Colonialism, international law’s complicity with, 44 Combacau, Jean, 143 Common law tradition, 40, 41 Communities epistemic, role of Yearbooks in creation of, 6 of international lawyers, 5–6, 25, 154 in Germany, 152 in Hungary, 170–172, 173 in Japan, 218 membership of, 29–30, 31–33 in Netherlands, 244, 249n48 role of Yearbooks in, 24, 46, 244

Index regional, Yearbooks as voices of, 4, 62, 125 see also National communities Complicity in committing an internationally wrongful act, 348 Netherlands NLA for armed groups in Syria as, 360, 368 of international law with colonialism, 44 Comunicazioni e studi (Yearbook, Italy), 203, 204n56 Conditional contraband, 355–356 Conduct, rules on attribution of, 310, 317–327, 330 multiple attribution, 325–327 reparations obligation in, 327–330 Conferences/symposiums on international law in Germany, 150–151 regional, 106–107 Yearbook publications derived from, 145, 153–154, 165, 199n26, 257, 259 Confidentiality, of government information, 95 Conflicts see Armed conflicts; Territorial disputes Conforti, Benedetto, 195–196, 198, 201, 202, 205 Connell, H.B., 78 Constantopoulos, Dimitri, 155, 156 Continents, Yearbooks as voice of, 62 Contraband, 354–356, 359 see also War material Contracts, bindingness of, 27 Convention on Duties and Rights of States in the Event of Civil Strife (1928), 353–354 Convention on the Law of the Sea (UN), 215 Art. 121, 105 Conventional arms, 357 Cooke, William, 41 Copyright on Yearbook articles, 220 Corbett, Percy E., 86 Cosmopolitanism, in international law writings, 46n1, 50, 268 Council of Europe, on classification of State practice documents, 245 Countermeasures, intervention as form of, 345 Craven, Matthew, 11 Crawford, James, 71

385 Criminal responsibility, for aiding and abetting, 349–350 Critchley, Simon, 14 Cross-Strait Economic Cooperation Framework Agreement (ECFA, ROC and PRC), 106 Customary law availability of evidence of, 63 identification of, 12 role of Yearbooks in, 140, 245 Czapli´nski, Władysław, 269, 270, 271 Czech Republic, international law commitments of, 113–114 Czech Society of International Law, 112, 114–115 Czech Yearbook of International Law, 55n24, 115–116 Czech Yearbook of Public and Private International Law, 55n24, 111, 112 development of, 115–116 emergence of, 5, 114–115 future challenges of, 118–119 impact of, 116, 117 publications in, 117, 118 role of, 116–118 Czechoslovakia, censorship and publishing industry in, 113

D Dallaire, General, 316, 319 Data protection EU Regulation on, 298, 300 in Netherlands, 293, 296n37 and use of SyRI algorithms, 292, 298–299 Dates of publication, of Yearbooks, 176, 271 De Jure Belli as Pacis (On the Law of War and Peace, Grotius), 100 De jure government and non-intervention principle, 343–344, 351 of Syria, 362–363 De-recognition, of Taiwan as UN China representative, 4, 99–100, 101 Decolonization, British Yearbook focus on, 43 Defensor Legis (law journal), 48n6 Degan, Vladimir-Djuro, 132 Del Castillo, Mariano C., 107 Del Ponte, Carla, 339, 360 Delbrück, Jost, 49, 156

386 Democracy, international law commitment to, 27–28 Democratization, in Africa, 66 Derrida, Jacques, 38 Desta, Melaku, 122 Dewez, Lieutenant-Colonel, 315, 316 Digital publications see Online publications Digital welfare states, 289, 290 human rights protection in, 290, 296 Diplomatic assurances, significance of, 365–366 Diritto internazionale (Conforti), 201n33 Diritto internazionale (journal, Italy), 204 Discretion, in international law application, 31–32 Dissemination, of Yearbook publications, 72, 91–92, 104, 128 Diversity of editorial boards, 68 in international law, promotion of, 124–125 Djuanda Declaration (1957, Indonesia), 184, 190 Documentation sections in Yearbooks, 160, 244–246, 249, 250 Domestic law, and international law, 229 DPA (Data Protection Authority, Netherlands) criticism of SyRI algorithms by, 292, 293–294 on Data Protection Impact Assessments, 296n37 Driss M., prosecution of, 340 Dual attribution of conduct, 325–327 Dual use goods end-user requirements for, 365 obligations to ensure compliance with, 366–368 listings of, 357–358 Duncker & Humblot Publishers, 156

E Eastern Europe Polish Yearbook focus on, 5, 275 Yearbooks in, 267n5 Edited books, 23 Editoriale Scientifica, 196 Editors of Yearbooks, 6, 51, 76, 78, 90–91 gender of, 68 guest editors, 70 nationalities of, 49–50 Education of international lawyers

Index in Australia, 77 in Canada, 86n2 in Mexico, 236 role of Yearbooks in, 45, 56, 67 Effective control of territory requirement for government status, 363 tests used for, and attribution of conduct, 318, 319–324, 330 Effectiveness, of SyRI algorithm fraud detection, 298 Electronic publishing see Online publications Eleven International Publishing, 174, 178 Empire, British Yearbook entwined with, 42–43 End-user requirements for dual-use goods, 365 obligations to ensure compliance with, 366–368 English language publications in Hungary, 172 in Indonesia, 188 in Yearbooks, 5, 67, 147n29 German Yearbook, 156, 159 Italian Yearbook, 5, 196, 200–201 Japanese Yearbook, 216, 220, 222 Mexican Yearbook, 227, 234–235 Netherlands Yearbook, 246 Polish Yearbook, 268 Epistemic communities, creation through Yearbooks of, 6 Eritrea, peace agreement with Ethiopia, 126 ESCI (Emerging Sources Citation Index), 274 Ethics, theories of, 133 Ethiopia Italian colonial rule of, 123n4 peace agreement with Eritrea, 126 Ethiopian Yearbook of International Law (EtYIL), 121–122, 128–129 aim/role of, 123–125, 127–128 promoting diversity/alternative voices in international law, 124–125 editors of, 122–123, 125, 126 emergence of, 4, 122–124 publications in, 125–127 ETO (Ecole Technique Officielle, Rwanda), evacuation by Belgian troops of, 316, 319 Europe see Central Europe; Eastern Europe European Charter of Fundamental Rights Art. 7, 297

Index Art. 8, 297 privacy rights in, 297 European Convention on Human Rights (ECHR) Art. 1, 325, 346n76 Art. 2, 325, 327 Art. 3, 325, 327 Art. 6, 303 Art. 8, 294, 297–298, 303–304, 305 Art. 8(2), 298, 304, 305 Art. 13, 303 on fair trial rights, 303 on positive obligations of human rights, 325 on privacy rights, 294, 297–298, 303–304, 305 European Convention on Human Rights Law Review, 54–55 European Court of Human Rights on attribution of conduct, 320, 323 on obligation to protect right to life, 328 European integration, Hungarian attitudes towards, 171n12 European International Law (Kiss), 170 European Journal of International Law, 47, 50n11 European Union arms embargo imposed on Syria by, 336–337, 352 exceptions in, 371 Common Military List, 357, 358 Council Common Position on arms export (2008), 346, 347, 349 Dual-Use Regulation, 358, 359 Art. 4, 359 General Data Protection Regulation (GDPR), 298 Art. 5, 298n49 Art. 6, 298n49 Art. 22, 300n64 on automated decisions, 300 law of Hungarian interest in, 173, 175, 180 Yearbook publications on, 144 Exchange theory of international law, 27n20 ‘Expediency in the Decisions of the International Court of Justice’ (article, Bedjaoui), 31–32 ExpressO, 106

387 F Facebook, Mexican Yearbook’s presence on, 236 Fair trial rights, and SyRI algorithm fraud detection, 302–303 Falk, Richard, 260 Feller, Erika, 81n20 Ferraro, T., 353n114 Ferro, L., 356n139 Fiedler, Wilfried, 156 Filtering function of international law publications, 55, 95 Financial resources of African Yearbook, 72 of Canadian Yearbook, 87 of Czech Yearbook, 113, 114 of Finnish Yearbook, 132 of German Yearbook, 155–156 of Hungarian higher education, 172 of Polish Yearbook, 270n18, 271, 275 of Spanish Yearbook, 279 of Taiwan Yearbook, 107 Finland ranking of scholarly publications in, 47–48 State practice of, 52n17, 133 Finnis, John, 133 Finnish language, scholarly law publications in, 48n7 Finnish Yearbook of International Law (FYBIL), 131, 135 editors of, 133, 134–135 emergence of, 132 Finnish character of, 49–50 publications in, 132–134 PhD dissertations section, 5, 134, 161 State practice, 52n17, 133 FitzGerald, Gerald F., 87 Fitzmaurice, Gerald, 46 Fiumel, Henryk de, 269 Fix-Zamudio, Héctor, 229 Force, use of indirect, 352, 353–354 violations of rules on, 344–345, 351, 366 by Netherlands NLA for armed groups in Syria, 358–359, 366 Foucault, Michel, 37–38 Fox, H., 220n44 France, State practice of, 140 Francioni, Francesco, 198, 199n26, 201n34, 205

388 Frankowska, Maria, 269 Fraud see Social security fraud French language, Yearbook publications in, 5, 50, 67, 91, 137, 142–143, 147, 268n12 French Yearbook of International Law see Annuaire Français de droit international (AFDI) Fried, Alfred, 150n1 Die Friedens-Warte (journal, Germany), 150n1 Friedmann, W., 242n16 From Apology to Utopia (Koskenniemi), 29

G Gantchev, V., 298n49 Gender of Yearbook authors, 71 of Yearbook editors, 68 Genealogical approaches, in historiography, 37, 38, 40 General principles of law, identification of, 12 Geneva Conventions on the Laws of War Additional Protocol I, Protection of Victims of International Conflicts (1977) Art. 70, 353 significance of, 11–12 Common articles Art. 1, 346, 347, 348, 350, 360, 364, 368, 369 Art. 3, 348, 353n114 Convention IV, Protection of Civilian Persons in Times of War (1949), significance of, 11–12 Genocide, obligation to prevent, 328 Genocide Convention, Art. III(e), 348 German language, Yearbook publications in, 48 German Yearbook of International Law, 149–150 aims/role of, 49, 165 editors of, 165 emergence of, 4, 151–152, 156–157 impact of, 164 publications in, 48, 157–161 in English, 157, 159 internationalization of, 5, 157, 165 themes, 162–164 see also Jahrbuch für internationales und ausländisches öffentliches Recht

Index Germany international law journals in, 49, 150–151 post-war rule by allied powers of, 153 Gestri, Marco, 206 Gidel, Gilbert, 138, 141 Gildo, Bherlin, 340n38 Giuffrè Publishers, 197 La Giurisprudenza italiana in materia internazionale, 203n44 Giving an Account of Oneself (Butler), 10, 13 The Global Community: Yearbook of International Law and Jurisprudence (University of Salerno), 196n4 Global Online Access to Legal Information (GOALI), 72 Globalization, challenges of, 216, 227 Government de jure, and non-intervention principle, 343–345, 351 status, 363 Greig, D.W., 78 Grotius, Hugo, 100 Gyeney, Laura, 176n24

H Hague Academy of International Law, 138, 202 Hague Convention XIII concerning Rights and Duties of Neutral Powers in Naval War (1907), Art, 6, 353 Haile Selassie (Emperor of Ethiopia), 123n4 Hailu, Martha Belete, 122n2, 125 Hamburg Research Centre, 154, 155, 156 Hansard recordings of Canadian parliament, 95 Hansischer Gildenverlag, 155 Harrington, Joanna, 88n16, 92n37 Hart Publishing, 134 Haskell, John, 3 Hathaway, James C., 82, 93n42 Heffter, August Wilhelm, 170 Heidelberg Journal of International Law, 49 HeinOnline, 105, 178, 220, 221, 222, 261 Heintschel von Heinegg, W., 356n139 Helsinki University Press, 132 Henry, Hagen, 133 Higgins, R., 30, 31n44

Index Historiography, lineal and non-lineal time in, 37–38 History in international law, 11–12 international law turn to, 9–10, 13, 17–18 lineal time in (chronos), 10 and narration, 10, 13–14 in international law, 14, 15–17 national, Yearbooks as reflection of, 4, 190 Hsieh, Pasha L., 104, 107n31 Human rights bodies/courts, acceptance of diplomatic assurances by, 365–366 limitations, necessity of, 298 obligations of Mexico, 229 in peacekeeping operations, 325 protection of in digital welfare states, 290, 296 and SyRI algorithms use, 294, 296–303 training, for armed groups in Syria, 360 violations by armed groups in Syria, 368 obligations to prevent, 328 use of SyRI algorithm fraud detection as, 303–306 Human rights law and digitalization, 290 journals on, 54–55 and use of algorithms in social security fraud detection, 289 Humanitarian aid, 343, 351, 353n118 Humanitarian interventions, legality of, 345, 369 see also Non-intervention principle Hungarian Academy of Sciences (HAS), 171, 179 Hungarian Yearbook of International Law and European Law, 169 aim/role of, 174 editors of, 173, 176, 179 emergence of, 5, 172–174 impact/success of, 169, 178–180 publications in, 174–175 online availability of, 177–178 topicality of, 176–177 Hungary and European integration, 171n12 higher education in, 172n15

389 international law scholarship in, 170–172, 180 State practice of, 175 Hungdah Chiu International Law Library, 104 I Ianni, R.W., 197n7 ICRC (International Committee of the Red Cross), commentary on Geneva Conventions by, 347, 353n114 Idealism, of Netherlands Yearbook editors, 242, 247 Imperialism British Yearbook entwined with, 42–43 international law’s complicity with, 44 Imseis, Ardi, 257 Individuals, as subject of international law, 154 Indonesia higher education in, 185, 186 international law scholarship in, 183–184 scholarly publishing in, 183, 185–189 State practice of, 184, 190–191 Indonesia Yearbook of International Law, 191–192 Indonesian Journal of International Law, 188 Indonesian Society of International Law Lecturers, 191 Indonesian Yearbook of International Law, 183 absence of, 185 possible emergence of, 3–4, 189–192 Institut de droit international, Wiesbaden resolution on non-intervention in civil wars (1975), 354, 360 Art. 2(2)(d), 360 Art. 3(b), 360 Institute of Law Studies (ILS, Poland), 266, 269 Intent, to assist in commission of an internationally wrongful act, 348 Inter-American Court of Human Rights, Mexican acceptance of jurisdiction of, 229 International armed conflicts belligerents in, 352–353n114 non-participation and impartiality duties in, 352–353 International community, Japan’s role in, 218

390 International and Comparative Law Quarterly, 51 International Court of Justice (ICJ) case law on complicity in committing an internationally wrongful act, 348 on effective control test, 322 on non-intervention principle, 344, 345, 351 on prevention of genocide obligation, 328 Yearbook publications on, 46 compulsory dispute resolution of, Soviet and Eastern European reservations to, 171n10 judges African, 64 Australian, 77 discretion of, 31–32 Statute of Art. 38, 247 Art. 38(1), 11 on sources of international law, 11 International Covenant on Civil and Political Rights (ICCPR) Art. 17, 297–298n49 on privacy rights, 297–298n49 International Covenant on Economic, Social and Cultural Rights (ICESCR) Art. 9, 302 on rights to welfare benefits, 302 International crimes, committed by armed groups in Syria, 339, 346, 368 International Criminal Court (ICC), investigations, into Palestine, 258 International criminal law, on aiding and abetting, 349–350 International human rights law see Human rights law International humanitarian law, respect for by armed groups in Syria, 361 obligation to, 347, 350 International law, 240 application of, discretion of judges in, 31–32 approaches to Communist, 171 critical, 134 diversity/alternative voices in, 124–125 domestic, 201 historical turn, 9–10, 13, 17–18

Index individuals as subjects of, 154 Latin American, 228 normative, 242 and Palestinian struggle, 256 political, 29–33 positivist, 153–154, 200, 201 practice-oriented, 201–202 Third World (TWAIL), 253, 258–259, 262 archives of, 38–39 Yearbooks as, 41, 43, 44 bibliographic resources of availability of, 63 Yearbook listings of, 51–52, 142, 247, 270, 271 causation concept in, 328 as code/non-narrative, 15–17, 18 and colonialism/imperialism, 44 customary availability of evidence of, 63 identification of, 12, 140, 245 and domestic law, 229 fragmentation of, 146 peace-maker role of, 29 progressive/new development of, 2, 6, 10, 11, 27–28 Yearbooks as promotors of, 25, 26, 28, 42, 61, 66, 124, 249 scholarship in Africa, 66, 122, 123–124 in Hungary, 170–172, 180 in Indonesia, 183–184 in Italy, 200–202 in Japan, 213 in Latin America, 227, 232–234 in Mexico, 229–230 in Netherlands, 243–244 in Poland, 268 ranking of, 23, 46, 47–48, 106, 116, 128, 177, 179, 235, 271–272, 282 in Spain, 278 Yearbooks as demonstration of, 5, 270 see also Publishing/publications, scholarly social context of, 139–140 sources of (sources doctrine), 11–12 time in lineal time, 11–12 non-lineal time, 10, 13–14 violations of

Index by Netherlands NLA for Syrian rebel forces, 341–342, 351–360, 366, 369–373 of non-intervention principle, 343–345 obligation not to assist or aid in, 347–349 premature recognition of a new de jure government, 363 Yearbooks see Yearbooks of international law see also Human rights law; International criminal law; International humanitarian law; Neutrality law; Occupation law; Sea, law of; Space law, international International Law Association (ILA), branches of African, 64 Canadian, 86–87, 90n26 Chinese, 102, 106–107 Czech, 112 Japanese, 211, 212–213, 218, 220 Polish, 266, 269 International Law in Australia (O’Connell), 77 International Law Commission on aiding or assisting in committing an internationally wrongful act, 349 on identification of customary international law, 140, 245 on responsibility of international organizations for peacekeeping operations, 317–318, 322 Statute of, Art. 24, 245 International lawyers Canadian, 86n2, 87, 88 Chinese, 101 communities of, 5–6, 25, 154 in Germany, 152 in Hungary, 170–172, 173 in Japan, 218 membership of, 29–30, 31–33 in Netherlands, 244, 249n48 Yearbooks as voice of, 24, 46, 244 education of in Australia, 77 in Canada, 86n2 in Mexico, 236 role of Yearbooks in, 45, 56, 67 International Legal Materials (American Society of International Law), 160 International organizations

391 responsibility for peacekeeping operations of, 317–318, 322, 331 Yearbook publications on, 145, 159 International relations, Yearbooks, 139n8 Internationalization, of Yearbooks, 5, 157, 165 Internationally wrongful acts, prohibition to aid or assist in commission of, 347–349 Interventions see Humanitarian interventions; Non-intervention principle Investment law, African Yearbook thematic issue on, 70 Iovane, Massimo, 198, 201, 205 Ipsen, Hans Peter, 153 Israel, Palestine Yearbook coverage of High Court decisions of, 260–261 Israeli-Palestinian conflict, 255–256 Palestine Yearbook publications on, 258, 259–261, 262 Italian Yearbook of International Law (IYIL), 195 aim/role of, 196, 206, 207 crisis of, 197–198 editors of, 198–199, 205–206 emergence of, 195–196, 205 English language use, 5, 196, 200–201 precursors of, 203–205 publications in, 197, 199, 207 Italy colonial rule of Ethiopia by, 123n4 international law publications in, 202–203, 206–207 international law scholarship in, 200–202 Italy and International Law (online publication), 206–207 ‘Italy’s Diplomatic and Parliamentary Practice on International Law’ (website), 206 Ius Gentium association, 131 IUS Gentium-Kansainoikeus (KOIG, Finish international law journal), 131–132

J Jabhat al-Shamiya (armed group, Syria), 340 Jahrbuch für internationales und ausländisches öffentliches Recht/Jahrbuch für internationales Recht, 151

392 aim of, 165 editors of, 154–155, 156 emergence of, 151–152 financial difficulties of, 155–156 publications in, 153–154, 156, 162 see also German Yearbook of International Law Jahrreiβ, Hermann, 154 Japan ILA branch of, 211, 212–213, 218, 220 security concerns of, 215 State practice of, 215–216, 217 UN membership of, 214 Japanese Annual of International Law (JYIL), 212 emergence of, 213–214 publications in, 214–218 online availability of, 220, 221 Japanese Association of World Law, 218 Japanese Society of International Law, 218 Japanese Yearbook of International Law, 211–212 aims/role of, 218, 222 emergence of, 4, 218–219 impact/success of, 220–222 publications in, 219–220, 222 online availability of, 220, 221, 222 Jennings, Robert, 30, 31n44, 47 Jeutner, Valentin, 16–17 Jouannet, Emmanuelle, 140 Journal du droit international (Clunet), 138 Journals, 23 on international law, 2, 54, 54–55 Australian, 77 continental, 62 Czechoslovakian, 112–113 Finnish, 131–132 French, 138 German, 49, 150–152 human rights law, 54–55 Hungarian, 172n14 Indonesian, 183, 185, 188–189 Italian, 203 Latin American, 232, 234 Mexican, 229 State and judicial practice published in, 51–52 versus Yearbooks, 2–3, 47–48, 50–51, 94, 177 Yearbook listings of articles published in, 142 legal in Hungary, 172

Index in Indonesia, 187–189 ranking of, 179, 186 Judges, discretion in international law application of, 31–32 Judicial practice in journals, 51–52 in Yearbooks, 51, 140, 144, 270 JuFo (Julkaisufoorumi, Publication Forum, Finland), 47n4 Jurisprudence on aiding and abetting to commit a violation of international law, 350 on algorithm use for fraud detection, 289, 290, 296–297, 303–306 on assisting rebel forces to overthrow a de jure government, 343–344, 351 as source of law, 12 on state responsibility for peacekeeping forces attribution of conduct rules, 317–327, 330–331 in Belgium, 309, 311, 315–317 in Netherlands, 309, 310, 312–315 reparations, 327–330 Yearbook publications on, 79, 80, 139, 144, 158, 159, 174, 175, 179, 202–203, 215, 260–261, 270 Jus Gentium: annuario italiano di diritto internazionale (Yearbook, Italy), 203 Justice, pluralistic views of, 133

K Kairos see Non-lineal time Karmi-Ayyoub, Salma, 260 Kassim, Anis, 254, 255, 257 Kattan, Victor, 260 Katy´n massacre, 273n24 Kelsen, Hans, 153 Kendall, Sara, 2 Kennedy, David, 33 Kewenig, Wilhelm, 156, 157 Kiel Institute for International Law see Walther Schücking Institute for International Law (Kiel) Kirby Lecture (Australian National University), 78 Kiss, István, 170 Klabbers, Jan, 2 Kluwer Law International, 133, 199, 257–258 Kopal, Vladimir, 134

Index Kortteinen, Juhani, 131 Koskenniemi, Martti, 13, 133, 240n2 criticism on, 29–30 Kosonen, Arto, 132 Kotera, Akira, 218 Kovács, Péter, 172n17, 173 Krajevskij, Markus, 15, 18 Krüger, Herbert, 156 Kunz, J.L., 150n1, n2 Kuokkanen, Tuomas, 134 Kuriyama, Shigeru, 213

L Lachs, Manfred, 269n14 Lakimies (journal on international law, Finland), 47–48 Lamm, Vanda, 172–173n17 Lammers, Johan, 242 Lampung Journal of International Law (Indonesia), 188 Láncos, Petra Lea, 173, 176n24 Latin America international law scholarship in, 227, 232–234 territorial disputes in, 228 Latin American Network of International Law Journals (RELAREDI), 234, 236, 237 Laun, Rudolf , 150, 151, 152, 153–154, 155, 156 Lauterpacht, Eli, 81 Lauterpacht, Hersch, 55n23 Lauterpacht Lecture (Australian Department of Foreign Affairs and Trade), 78 Law code as, 15–16 general principles of, 12 and non-law, 52 role of, 29 rule of, 28, 66, 273 soft, 171 ‘Law and Politics: Options and Strategies of International Law for the Palestinian People’ (conference, 2013), 257, 259 Law of War Manual (United States), on contraband and war material, 355 League of Nations, Haile Selassie’s appeal to, 123n4 Lectures on international law, 78, 161, 165 Legal profession

393 development of, 40–41 see also international lawyers Legal systems, Ottoman, British commentaries on, 43n17 Leibholz, Gerhard, 154 Leiden Journal of International Law, 47 Lemaire, Lieutenant, 315 Lessig, Lawrence, 15n31 Lezioni di diritto internazionale (Bravo), 201 Liang, Yuen-li, 102 Libya, UN arms embargo imposed on, 352 Life, obligation to protect right to, 328 Lineal time in historiography, 37 in international law, 10, 11–12 and non-lineal time, 14, 15 Yearbooks, 10–11 in narration, 13 List of Dual-Use Goods and Technologies and Munitions List (Wassenaar Arrangement), 358 London Declaration concerning the Laws of Naval War (1909) Art. 22-23, 355 Art. 22(6), 359 Art. 25, 355 Art. 27, 355 Art. 33, 355 on contraband, 355–356, 359 Lowe, V., 30 Lynn, Gordon, 107

M Ma, Ying-jeou, 103–104, 107 Macdonald, R. St. J., 87n11, 90n24 MacKenzie, N.A.M., 86, 87 Mádl, Ferenc, 175 Male dominance in Yearbooks authors, 71 editorial boards, 68 obituaries, 30 Mance, Jonathan, 107 Mangoldt, Hermann von, 151, 152, 153, 154, 155–156 Mann, F.A., 153 Mansour, Camille, 254, 257 Manual on the Law of Armed Conflict (United Kingdom), on non-lethal weapons, 351–352 Marchal, Colonel, 315, 316 Marchal, F.J., 359n156, n157

394 Max Planck Institute for Comparative Public Law and International Law (Heidelberg), 151–152 Mbembe, Achille, 38 Media coverage, of Netherlands NLA to armed groups in Syria, 334, 370 Melbourne Journal of International Law, 77 Mensah, Thomas A., 107 Menzel, Eberhard, 153, 154–155, 156, 160, 165 Merso, Fikremarkos, 122, 126 Mexican Yearbook of International Law (MYIL), 227, 237 aims/role of, 232–233 editors of, 230–231 emergence of, 3, 230 impact/success of, 235–236 Latin Americanization of, 233 publications in, 230, 231–232, 234–235 in English, 234–235 online availability of, 232, 236–237 Mexico Constitution of, 232n11 globalization challenges of, 227 human rights law obligations of, 229 international law scholarship in, 229–230 State practice of, 229 Michigan Law Review, 40 Middle Ages, English legal Yearbooks in, 40–41, 43 Military equipment non-lethal, 355 exceptions in arms embargoes for, 352, 371 see also War material Military manuals on contraband, 355, 356 on non-lethal weapons, 351, 352 Military uniforms, 359 Model Plan for The Classification of Documents Concerning State Practice in The Field of Public International Law (Council of Europe), 245 Mölich, Robert, 155 Molnár, Tamás, 173n20 Monitoring, of Netherlands NLA for armed groups in Syria, 365, 367–368 Monographs, 23 Morawiecki, Wojciech, 269 Mosler, Hermann, 153

Index Moynihan, H., 349 Multilateralism, in Africa, 126 Multiple attribution of conduct, 325–327, 330–331 reparations obligations for, 327–330 Mustafi´c, Rizo, 312 N Nanjing, Treaty of (1842), 100–101 Narration code/programming as, 15–16 and history, 10, 13–14 in international law, 14, 15–17 National Autonomous University of Mexico (UNAM), Institute of Legal Research of, 229–230, 233 National communities Yearbooks as voice of, 2, 4–5, 49–50, 55–56 in Africa, 63 Australian Yearbook, 80, 82 Canadian Yearbook, 88–89, 93 Ethiopian Yearbook, 123 Finish Yearbook, 133 French Yearbook, 140–141 German Yearbook, 165 Hungarian Yearbook, 175 Palestinian Yearbook, 257 Nationalism, Yearbooks as expression of, 2, 4 Navarra University (Spain), 278–279 NCCU (National Chengchi University, Taiwan), 104 Necessity, of limitations of privacy rights, 298, 305 Neoliberalism, 27n20 Nesi, Giuseppe, 205 Netherlands availability of international law publications in, 54 colonial rule of Taiwan by, 100 data protection in, 293, 296n37, 298–299 legislation SUWI (Structure of the Implementation of the Labour and Income Act, 2001), 292, 304 Art. 64, 304, 305 Art. 64(1), 293, 299n55 Art. 65, 304 national archives of, 39n5 NLA to armed groups in Syria by, 334–335, 337–340

Index legality of, 335–336, 341–342, 348–349n89, 351–360, 369–373 and objectives of the program, 364–369 and selection of armed groups, 361–364 State practice of, 244–245, 246, 248, 249, 250 state responsibility for peacekeeping forces jurisprudence on, 309, 310, 312–315, 330–331 attribution of conduct rules, 317–327 reparations, 327–330 SyRI algorithms used in social security fraud detection, 290, 291–293, 295–296 automated decisions by, 300–302 Council of State advice on, 294–295, 301 criticism of, 293–295 and human rights protection, 296–303 litigation on, 289, 290, 296–297, 303–306 Netherlands International Law Review (Nederlands Tijdschrift voor Internationaal Recht), 2, 241 Netherlands Yearbook of International Law (NYIL), 239, 240, 251 50th Anniversary of, 3, 62 aims/role of, 244, 246–247 editors of, 241–242, 249, 250, 251 emergence of, 1–2, 3, 241–244 publications/publishing in, 33, 48, 51–52, 242–243, 248–249, 250 State practice/documentation section, 244–248, 249, 250 Neutrality, law of, and supply of war material/contraband, 352–356 New Zealand Yearbook of International Law, 189 Nexus element, in aiding or assisting to commit an internationally wrongful act, 349–350 ‘Nietzsche, Genealogy, History’ (essay, Foucault), 37 Nieuwsuur (current affairs television program, Netherlands), 334 Nigerian Yearbook of International Law, 122n1 Niyungeko, Gerard, 68, 72

395 Noll, Gregor, 15 Nollkaemper, André, 207n63, 249, 341–342 Non-international armed conflicts parties to, 353n114 third-state intervention in, 372 Non-intervention principle, 343–344, 351 erosion through state practice of, 371, 372 violations of, 366 by aiding rebel forces to overthrow a de jure government, 343–345, 351 by Netherlands NLA to armed groups in Syria, 341, 351–360, 359–360, 366 by Russian NLA to armed groups in eastern Ukraine, 371–372n218 Non-legally binding instruments, 52 Non-lethal assistance (NLA), 351 of Netherlands to armed groups in Syria, 334–335, 337–340 legality of, 335–336, 341–342, 348–349n89, 351–360, 369–373 and objectives of the program, 364–369 and selection of armed groups, 361–364 of Russia to armed groups in eastern Ukraine, 371–372n218 Non-lethal military equipment, 352, 355, 371 Non-lethal weapons, 351–352 Non-lineal time in historiography, 37–38 in international law, 10, 13–14, 15 Non-state actors armed see Armed groups attribution of conduct to, 322 liability of, 329–330 Nordic Journal of International Law, state and judicial practice published in, 51–52 Normativity, in international law, 32 Nuhanovi´c, Ibro and Muhamed, 312 Nuremberg trials, 153

O Oakeshott, Michael, 56 Obituaries, in Yearbooks, 30–31 Obligations to to ensure compliance with end-user requirements, 366–368 of human rights

396 of Mexico, 229 to protect right to life, 328 not to aid or assist in the commission of an internationally wrongful act, 347–349 positive, breaches of, 323–325 to prevent genocide, 328 of reparations, in shared responsibility cases, 327–330 to respect international humanitarian law, 347, 350 Occupation law, Yearbook publications on, 153, 259 O’Connell, D.P., 77 Oda, Shigeru, 215, 218 Okinawa Island (Japan), 214 Olsthoorn, P., 295n36 Omissions, attribution of, 324–325, 330 Online publications on international law, 55, 206–207 Yearbook articles, 72, 92, 94, 105, 116, 145, 164, 177–178, 220, 222, 232, 236–237, 261, 262, 271, 280–281, 282, 283–284 Open Journal System (OJS), 280–281 Opinio Juris (journal, Indonesia), 189 Oppenheim, L., 22n2, 356n133, n137, n139 Opus Dei movement, 279 Ordering, private, 27 Orford, Anne, 14, 15 Organization of African Unity (OAU, 64 Ottoman Empire, 170n5 legal system of, British commentaries on, 43n17 Ouguergouz, Fatsah, 65 ‘Oxford Reports on International Law in Domestic Courts’ (ILDC), 207 Oxford University Press, 55, 249

P Pacheco, Allegra, 260 Padjadjaran Journal of International Law (Indonesia), 188 Palestine British mandate rule of, 42–43 struggle for liberation of, 255–256 Yearbook publications related to, 258, 259–261, 262 universities in, 257 Palestine Yearbook of International Law (PYBIL), 253, 254, 262–263 aims/role of, 259

Index development of, 257–259 editors of, 254, 257 emergence of, 4, 255 publications in, 256–257 online availability of, 261, 262 Palestinian struggle related, 258, 259–261, 262 TWAIL focus, 258–259, 262 Palestinian National Charter (1964), 255 Pan-American Neutrality Convention (1928), 353 Parfitt, Rose, 17 Paris II University, 143–144 Parkkari, Juhani K., 131 Passive conduct, attribution of, 324–325 Pázmány Péter Catholic University (Hungary), 173, 176n24 Peace agreements, between Ethiopia and Eritrea, 126 Peace-maker role of international law, 29 Peacekeeping operations of UN state responsibility for, 309–310 and attribution of conduct rules, 317–327 Belgian jurisprudence on, 311, 315–317, 330–331 Netherlands jurisprudence on, 310, 312–315, 330–331 UN responsibility for, 317–318, 326, 331 Pécs Journal of International Law and European Law (Hungary), 172n14 Peer review, of Yearbook publications, 48, 164, 191, 232, 243, 281 Personal datas protection of, in Netherlands, 293, 296n37 use in algorithms of, 292, 293 Pertile, Marco, 206n61 PhD/doctoral dissertation sections in Yearbooks, 5, 134, 161 PLO (Palestine Liberation Organization), 255–256 Poland austerity policies in, 271 Communist regime in, 267, 272 rule of law crisis in, 273 social unrest in, 267–268 Polish Academy of Sciences, Committee on Legal Sciences, 270, 275 Polish Institute of International Affairs (PISM),, 266, 269 Polish United Workers’ Party (PUWP), 267

Index Polish Yearbook of International Law (PYIL), 265–266 aims/role of, 268, 272–273, 274–276 editors of, 266, 268, 269, 270, 271 emergence of, 3, 266–267, 268 impact of, 274 publications in, 269, 270–271, 273–274 Central and Eastern Europe focus, 5, 275 ranking of, 271–272 submission rates, 272 Politics of form, of Yearbook genre, 21–22, 26 and international law, 29–33 in Palestine Yearbook, 259–260, 261–262 Positive European International Law (Apáthy), 170 Positive obligations, breaches of, 323–325 Positivist approaches to international law, 153–154, 200, 201 Post, Harry, 243 Potoˇcari compound deportation of refugees from, 328–329 cooperation of Dutch forces with, 310, 316–317, 324, 327, 329 as safe area, 312 Power to prevent test/standard, 324–325 Prandler, Árpád, 172n17 La Prassi italiana di diritto internazionale (Bravo), 202 Prevention of genocide obligation, 328 power to, test/standard for, 324–325 Privacy rights protection, 306–307 and SyRI algorithms use for fraud detection, 294, 297–298, 304–306 Private property, sanctity of, 27 Progress in international law, 2, 6, 10, 11, 27–28 Yearbooks as promotors of, 25, 26, 28, 42, 61, 66, 124, 249 Propaganda, Yearbook publications used as, 268n13 Prosecution of terrorism, 340 of war crimes, 153 Publications/publishing, scholarly, 23, 25–26 in Hungary, 172 in Indonesia, 185–187 in international law, 46n1, 54–55 in Asia, 100

397 in China (PRC), 103 in Czechoslovakia, 112–113 in Finland, 131–132 in France, 138 human rights law, 54–55 in Indonesia, 183 in Italy, 203–205, 206–207 online publications, 55, 206–207 on Palestine, 253 Yearbook listings of, 51–52, 142, 247, 270, 271 see also Journals; Yearbooks of international law ranking of, 23, 46, 47–48, 106, 116, 128, 177, 179, 235, 271–272, 282 Q QIL-Questions of International Law (e-journal–Italy), 196n4 QS World University Rankings, 186 Quadri, Rolando, 204–205 Quigley, John, 256 R Radio and broadcasting law, Yearbook publications on, 156 Ranking of scholarly publications, 178 in Indonesia, 188 Yearbooks, 23, 46, 47–48, 106, 116, 128, 177, 179, 235, 271–272, 282 of universities, in Indonesia, 186 Raoul Wallenberg Institute (Lund), 51 Rebels/rebel forces see Armed groups Rechts-und Staatswissenschaftlicher Verlag, 155 Recognition of de jure governments, 362–363 see also De-recognition Regions, Yearbooks as voice of, 4, 62, 125 Reinisch, August, 207n63 Rentto, Juha-Pekka, 132, 133 Reparations obligations, in multiple attribution of conduct cases, 327–330 Research Excellence Framework (REF) guidelines, 23 Reshmawi, Mervat, 257 Responsibility of international organizations, for peacekeeping operations, 317–318, 326, 331

398 of non-state actors, 329–330 shared, 325–327, 330–331 reparations obligation in, 327–330 of states for assistance to armed groups, 346–350, 360 for UN peacekeeping operations, 309–310 and attribution of conduct rules, 317–327 Belgian jurisprudence on, 309, 311, 315–317, 330–331 Netherlands jurisprudence on, 310, 312–315, 330–331 reparations, 327–330 Revue Générale de Droit International Public (journal, France), 50, 138 Risk notifications (flagging), of SyRI algorithms, 295, 301, 304, 305 Rivista di diritto internazionale (journal, Italy), 203 Röling, B.V.A., 242n13 Roman law, influence on English law of, 40–41 Ronzitti, Natalino, 198 Root, Elihu, 28 Rozehnalova, Nadezda, 55n24 Rubenstein, Kim, 81n20 Rule of law, 28, 66, 273 Ruprecht, Günther, 155n39 Russia, NLA to armed groups in eastern Ukraine by, 371–372n218 Ruys, Tom, 319 Rwandan genocide, jurisprudence on Belgian state responsibility for failure to take action in, 311, 315–317

S Sacerdoti, Giorgio, 198 Salerno University, 196n4 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), on contraband, 356 Sands, Philippe, 71 Schätzel, Walter, 151 Schlochauer, Hans-Jürgen, 151, 152 Scholarship of international law in Africa, 66, 122, 123–124 in Hungary, 170–172, 180 in Indonesia, 183–184 in Italy, 200–202

Index in Japan, 213 in Latin America, 227, 232–234 in Mexico, 229–230 in Netherlands, 243–244 in Poland, 268 ranking of, 23, 46, 47–48, 106, 116, 128, 177, 179, 235, 271–272, 282 in Spain, 278 Yearbooks as demonstration of, 5, 270 see also Publications/Publishing, scholarly Schrijver, Nicolas J., 107 Schücking, Walther, 151 Schwarzenberger, Georg, 154 The Science of Law. Writings on Philosophy of Science and History of Science with Practical Advice (Varju), 180 Scientification, of Yearbook publications, 157 Scobbie, I., 29–30 Scopus ranking database, 186 Yearbooks included in, 106, 116, 128, 272 Scott, J.B., 27n20 Sea, law of Indonesian interest in, 184, 190 Japanese interests in, 215 Yearbook publications on, 100, 105, 144, 162 Secrecy, on algorithm use for fraud detection, 303 Security, Japanese concerns over, 215 Seidl-Hohenverldern, I., 354, 356 Seipp, David, 40 Selection criteria, for Netherlands NLA to armed groups in Syria, 361 Self-defence rights, 370n213 Seminar of the Mexican Yearbook of International Law (SAMDI), 232, 233, 237 Shake Hands with the Devil: The Failure of Humanity in Rwanda (Dallaire), 316 Sharon, Ariel, possible prosecution of, 258 Al-Shaybani Society of International Law, 254, 255, 257–258 Sheldon, Marie M., 107 Sik, Ko Swan, 245, 246, 249 Simma, Bruno, 48, 201n34 Sinjela, Mpazi, 65 Skubiszewski, Krzysztof , 269n14 Social media, Mexican Yearbook’s presence on, 236

Index Social security fraud, algorithms used in detection of, 291–293, 295–296 criticism of, 293–295, 296–303 litigation on, 289, 290, 296–297, 303–306 Soft law, 171 Sohn, Louis B., 107 Soons, Fred, 242–243 Sources of international law (sources doctrine), 11–12 South African Yearbook of International Law, 122 South China Sea, territorial disputes in, 100, 105 Soviet Union control of Poland by, 267 reservations to compulsory dispute settlement of ICJ by, 171n10 Soviet Yearbook of International Law, 268n13 Space law, international, 134 Spain international law scholarship in, 278 universities in, 278–279 Spanish language, Yearbook publications in, 234–235 Spanish Yearbook of International Law see Anuario Español de Derecho Internacional (AEDI) Special and selected Law-Cases concerning the persons and estates of all men whatsoever. Collected out of the Reports and Year-Books of the Common-Law of England (Cooke), 41 Spender, Percy, 77 Springer (publishing partner), 249n49 Srebrenica evacuation of Dutch troops from, 312, 320–321 genocide, 312, 328 jurisprudence on Netherlands state responsibility for failure to prevent, 310, 312–315, 318–319 Starke, J.G., 76, 77–78, 82 State practice, 52, 189 of Indonesia, 184, 190–191 journals as sources of, 51–52 of Mexico, 229 non-intervention principle erosion by, 371, 372 Yearbooks as sources of, 46, 49, 51, 56, 75, 95–96, 184, 189, 190, 206

399 Australian, 75, 78, 80, 81–82 Canadian, 89, 91, 93–94 documentation sections for, 160, 244–246, 249 French, 140, 141–142 German, 165 Hungarian, 175 Italian, 199 Japanese, 215–216, 217 Netherlands, 244–245, 246, 248, 249, 250 Polish, 270 Taiwanese, 101–102, 106 State responsibility for assistance to armed groups, 346–350, 360 for UN peacekeeping operations, 309–310 and attribution of conduct rules, 317–327 Belgian jurisprudence on, 309, 311, 315–317, 330–331 Netherlands jurisprudence on, 310, 312–315, 330–331 reparations, 327–330 States African, 66 archipelagic, 184 Latin American, 228 neutral, prohibition on supply of war material to parties to a conflict by, 354–355 Stern, B., 325n86 Stoler, Ann, 38–39n5 Stone, Julius, 77 Studie z mezinárodního práva (Studies in International Law, Czechoslovakia), 113 Sturma, Pavel, 55n24 Sultany, Nimer, 257 Supply conditions for Netherlands NLA to armed groups in Syria, 364–365, 366 breaches of, 368 Swiss Yearbook of International Law, publications in, 47 Symonides, Janusz, 268n9, 269 SyRI algorithms (System Risk Indication, Netherlands), 291–293 automated decisions by, 300–302 concerns about, 293–294 of Netherlands Council of State, 294–295, 301

400 use in social security fraud detection of, 290, 295–296 and human rights protection, 296–303 litigation on, 289, 290, 296–297, 303–306 Syrian armed conflict, 336–337 armed groups in international crimes committed by, 339, 346, 368 Netherlands NLA for, 334–335, 337–340 legality of, 335–336, 341–342, 369–373 and objectives of the program, 364–369 and selection of armed groups, 361–364 Assad regime as the de jure government, 362–363 and EU arms embargo, 336–337, 352 Syrian National Council (SNC), recognition by Netherlands of, 362–363 Szafarz, Renata, 269 Szalay-Sándor, Erzsébet, 173n17 Szemesi, Sándor, 176

T Tachi, Sakutaro, 212 Taiping Island, territorial dispute over, 105 Taiwan de-recognition as representative of China at UN of, 4, 99–100, 101 diplomatic relations with United States of, 102–103 Dutch colonial rule of, 100 free trade agreement with PRC, 106 State practice of, 101–102 Taiwan Yearbook of International Law see Chinese (Taiwan) Yearbook of International Law Takamaa, Kari T., 131, 133 Territorial disputes in China Sea, 100, 105 in Latin America, 228 Territory, effective control of, as requirement for government status, 363 Terrorism, prosecution of, 340 Terrorist groups, prohibition of assistance to, 361–362 Textbooks, 23, 46n1, 170, 201

Index Thematic issues of Yearbooks, 69–70, 79, 117, 126, 142, 146, 158, 162–164, 174, 175, 214, 250, 258, 279 Third World Approaches to International Law (TWAIL), 253 Palestine Yearbook focus on, 258–259, 262 Third-states, intervention in non-international armed conflicts by, 372 Thirlway, Hugh, 46 Tien-fong Cheng, 102 Tilley, Virginia, 260 Time in international law scholarship, 10, 146 lineal in international law, 10, 11–12 in narration, 13 in Yearbooks, 10–11 non-lineal, in international law, 10, 13–14 Times Higher Education (THE) World University Rankings, 186 Timmermans, Frans, 337 T.M.C. Asser Institute see Asser Institute Tomuschat, Christian, 141, 147n29 Trade agreements African Continental Free Trade Area, 126 Taiwan - PRC, 106 Transitional periods, attribution of conduct in, 318–320 Transparency of Netherlands NLA to armed groups in Syria, 370 of SyRI algorithm fraud detection, 293, 299–300, 301–302, 304, 306 Travel restrictions, in Hungary, 171n13 Treaties, China’s signing of, 100–101 Trianon, Peace Treaty of (1920), 175 Trigeaud, Laurent, 143 Trouw (newspaper, Netherlands), 334 Trump, Donald, foreign policy of, 232 Tsai, Pei-Lun, 104 Tuerk, Helmut, 107 Tupamäki, Matti, 131 Twitter accounts, of Mexican Yearbook, 236

U UBC Press (University of British Columbia), 87, 91

Index Ukraine, Russian NLA to armed groups in, 371–372n218 United Kingdom mandate rule of Palestine by, 42–43 medieval legal Yearbooks in, 40–41, 43 ranking of scholarly publications in, 23 United Nations Charter, Art. 2(4), 343, 352, 358–359 Decade for International Law (1990–1999), 65 General Assembly on identification of customary international law, 63, 140 Resolutions No. 181 (1947) Israel/Palestine, 256 No. 2758 (1971) China, 100, 101 No. 3314 (1974) Definition of Aggression, 361, 366 No. 73/203 (2019) Identification of Customary International Law, 63, 140 Human Rights Council, on Syrian armed conflict, 346 membership of China representation, 4, 99–100, 101 Japan, 214 PLO observer status, 256 peacekeeping operations state responsibility for, 309–310 and attribution of conduct rules, 317–327 Belgian jurisprudence on, 311, 315–317, 330–331 Netherlands jurisprudence on, 310, 312–315, 330–331 UN responsibility for, 317–318, 326, 331 reform of, 279 Register of Conventional Arms, 357 Art. 2(1)(b), 357 Art. 5(3), 357 Security Council Resolutions No. 242 (1967) Israel, 256 No. 338 (1973) Israel, 256 No. 836 (1993) former Yugoslavia, 312 No. 1373 (2001) Terrorism, 362n167 No. 1624 (2005) Terrorism, 362n167 No. 1970 (2011) Libya, 352

401 No. 2083 (2012) Terrorism, 362n167 No. 2249 (2015) Syria, 337–338 Special Rapporteur on extreme poverty and human rights, on use of SyRI algorithms for fraud detection, 296, 301, 302–303, 306 survey on availability of international law resources, 63 Yearbooks associated with, 49 United States diplomatic relations with Taiwan, 102–103 foreign policy of, 232 Universal Declaration of Human Rights (UDHR) Art. 22, 302n81 Art. 25, 302n81 Universities in Indonesia, 186, 188 in Palestine, 257 in Spain, 278–279 V Vandenhoeck & Ruprecht Publishers, 155, 156 Varga, Réka, 173, 176n24 Varju, Márton, 180 Vehicles combat, 357 military use of, 366 in Netherlands NLA for Syrian rebels, 358 supply conditions for, 364–365, 368 non-combat, 352 Verhoeven, Joe, 138, 143 Verlinden, N., 356n139 Vignes, Daniel, 143 Vissman, Cornelia, 15, 18, 41 Völkerbund und Völkerrecht (journal), 150n1 Voskuil, Bert, 243 W W&L Law Journal Rankings, 128 Walther Schücking Institute for International Law (Kiel), 49, 151, 155, 156, 160, 165 Walther Schücking Lecture, 161, 165 War crimes, prosecution of, 153 War material arms control law on, 357–359

402 supply of in Netherlands NLA for armed groups in Syria, 358–359 rules of neutrality law on, 352–356 War-sustaining activities, 353n114 Ward, Christopher, 107 Warfare, algorithmic, 18 Wars see armed conflicts Warsaw Pact, 267 Warsaw Treaty (1970), 270n19 Wasilkowski, Andrzej, 269 Wassenaar Arrangement, 357–358 Weapons categorizations of, 357 non-lethal, 351–352 Web of Science Core Collection, 274 Websites, of Yearbooks, 177 Wehberg, Hans, 150n1, 151 Weiler, Joseph, 50n11 Welfare states, digital, 289, 290 human rights protection in, 290, 296 West, Polish academic orientation towards, 268 Westlaw, 105 ‘What is International Law and How do we Tell it when We See It?’ (article, Jennings), 47 White Helmets, Netherlands assistance to, 364 Withdrawal of troops, attribution of conduct in situations of, 318–320 Women, authors of Yearbook publications, 71 World War I, peace treaty with Hungary after, 175 World War II, prosecution of war crimes committed in, 153 Wuchale, Treaty of (1889), 123n4

Y Yamada, Saburo, 212 Yamakawa, Tadao, 212 Yamamoto, Soji, 217 Yearbook genre, 40 emergence of, 38, 41 in medieval England, 40–41, 43 political of form of, 21, 22, 26 Yearbooks of international law, 1, 2, 3–4 aims/role of, 24, 24–25, 45, 55, 93n42, 146 archiving, 39, 43, 44 community voice, 2, 49

Index of international lawyers, 24, 46, 244 national communities, 4–5, 49–50, 55–56 education, 45, 56 progressive development of international law, 25, 26, 28, 42, 61, 66, 124, 249 source of international law, 12, 63 bilingualism in, 5, 66–67, 91 customary format of, 43 dates of publication of, 176, 271 editors of, 6, 51, 76, 78, 90–91 gender of, 68 guest editors, 70 nationalities of, 49–50 internationalization of, 5, 157, 165 lineal time in, 10–11 no-year book possibility, 14–15, 17, 18 publications/publishing in, 2–3, 5, 22–23, 24, 31–32, 33, 46–47, 48, 191 agora collections, 75, 79, 250 bibliographies, 51–52, 142, 247, 270, 271 book reviews, 142, 160–161, 217–218, 219–220, 260, 270 conference articles, 145, 153–154, 165, 257, 259 copyrights of, 220 dissemination of, 72, 91–92, 104, 128 documentation sections, 160, 244–246, 249, 250 jurisprudence/judicial practice, 51, 79, 80, 139, 140, 144, 158, 159, 174, 175, 179, 202–203, 215, 260–261, 270 obituaries, 30–31 online availability of, 72, 92, 94, 105, 116, 145, 164, 177–178, 220, 222, 232, 236–237, 261, 262, 271, 280–281, 282, 283–284 outstanding articles, 47, 48 peer reviews of, 48, 164, 191, 232, 243, 281 PhD/doctoral dissertation sections, 5, 134, 161 politically sensitive, 259–260, 261–262 ranking of, 23, 46, 47–48, 106, 116, 128, 177, 179, 235, 271–272, 282 State practice, 46, 49, 51, 56, 95–96, 189, 190, 206 Australian, 75, 78, 80, 81–82

Index Canadian, 89, 91, 93–94 Finnish, 52n17, 133 French, 140, 141–142 German, 165 Hungarian, 175 Italian, 199 Japanese, 215–216, 217 Netherlands, 244–245, 246, 248, 249, 250 Polish, 270 Taiwanese, 101–102, 106 thematic issues, 69–70, 79, 117, 126, 142, 146, 158, 162–164, 174, 175, 214, 250, 258, 279 topicality of, 176–177 readership of, 25, 50 versus journals, 2–3, 47–48, 50–51, 94, 177

403 Yihdego, Zeray, 122 Yokota, Kisaburo, 215 Yusuf, Abdulqawi, 64, 65, 66

Z Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (journal, Germany), 49, 150n1, 151–152, 155n38 publications in, 51 Zeitschrift für Internationales Recht und Diplomatie (journal, Germany), 151n6 Zheng Chenggong (Koxinga), 100 Zuleeg, Manfred, 48