Thursday, June 30, 2011

The EU as a democratic polity in international law

On June 28, 2011 a conference was held about The European Union (hereafter EU) as a Polity in International Law at the Academy Hall of the Peace Palace, The Hague, The Netherlands. The conference was held at the initiative of Mr. Jaap Hoeksma, Director of Euroknow. This initiative was supported by an advisory board consisting of Dr P. H. Kooijmans, Prof Dr L-J Brinkhorst, Dr W.F. van Eekelen, Dr W.van Gerven and Dr Th. van Boven. The theme of the conference was the legal status of the European Union and its relationship with international law.

From its inception, the main goal of the European Union and its integration in the legal as well as political systems of the Member states has been faced with conceptual problems regarding the final goal of the establishment of the European Union. The purpose of the conference was to discuss whether the Lisbon Treaty has overcome the problems by constructing the EU as a democratic polity without turning the Union into a state. If so, what are the consequences for the place of the EU as a polity in international law and for its role in international relations? [1].

The audience consisted of a cross-section of Members of the European Parliament and national parliaments, judges of the ECJ and national constitutional courts, civil servants of the EU-institutions and the national administrations, representatives of the governments of the Member states, members of the corps diplomatique as well as members of the academic community and representatives of the media, staff members of the International Court of the former Yugoslavia ( ICTY) and staff members of the Carnegie Foundation.

Chairman Professor Steven Blockmans (T.M.C. Asser Instituut The Hague, University of Leuven) welcomed all attendees and gave a short introduction regarding the main themes of the conference.

Professor Laurens-Jan Brinkhorst (Leiden University, former Minister for European Affairs) opened the conference with a short lecture about the legal status of the EU. Brinkhorst stated that these are difficult times for the EU. The main concern is whether the EU as a polity in international law has achieved enough identity to withstand the “attack on EU governance”. Are we confined to European citizenship or a union of independent states? Will the EU go back to a Westphalian phase of the concept of sovereignty or will we become a ‘United States of Europe’, an EU super state or a union of independent states? What will be the nature of the EU? Brinkhorst stated that the EU needs to create a new framework, one voice. The European Union needs to represent the Member states as a transnational democracy at a global level.

HE Judge Bruno Simma (International Court of Justice, The Hague) held a lecture about the place of the EU in international law. Simma expressed that his passion is in public international law but that he has 30 years of experience in teaching European Union law. Furthermore, Simma mentioned that the concept of the EU is difficult to comprehend. He stated that the EU is a “thing for which lawyers have no name”. According to Simma, the European Court of Justice is mainly responsible for the development of community law. Whereas in the early stages, according to EU jurisprudence, EU law was regarded as a new legal order of international law. Over time, the EU legal system evolved in an autonomous legal system or a lex specialis, separate from international law. The argument of autonomy has served as a basis of hierarchy/superiority of the EU law over national law. This has led to a constitutional basis in national law of the Member states. Judge Simma concluded his lecture stating that there is no need for EU Law to emancipate from International law. To Judge Simma, such an attempt can be considered overkill: “Neither is it possible to totally detach EU Law from international law, they remain connected in many respects, both in positive and negative ways”.

The academic research of Professor Michael Burgess (University of Kent, UK), is focused on comparative federalism, the European Union, Canadian federalism and constitutional politics and British Constitutional Politics. His lecture was titled “The emergence of the EU from a federal perspective”. In his lecture Professor Burgess emphasized the importance of the Schuman Declaration and the difficult circumstances in which the European Union came into existence. He stated that we know where we’ve been even though we might not where we’re going. Monnet, the founding father of the European Union, was convinced that Europe was to become a federalist union with economic development as its main priority. Professor Burgess also spoke about the legacy of Monnet. He stated that Monnet believed that the institutions that make up the European Union should be built on political trust. According to professor Burgess, the shadow of Monnet is still alive today. With regard to the question of federalism, he concluded that the European Union is a new federal model.

The third and last lecture was given by Professor Christiaan Timmermans (Erasmus University Rotterdam). Professor Timmermans, who served as judge at the Court of Justice of the European Union from 2000 – 2010, talked about the role of the Court of Justice in the evolution of the EU into a democratic polity of states and citizens. In his lecture, he mainly focused on the evolution of the EU treaties and the relation between Member states and the EU and the concept sovereignty. The purpose of all the EU treaties is to bring the Union closer to European Integration. He argued that special attention should be given to bringing the Union closer to the citizens of the Member states. This can be considered as a role of the Court of Justice of the European Union.

At the end of the conference all the attendees received a board game, called ‘Eurocracy’, about the EU and a Constitution for the EU. The board game was created by Jaap Hoeksma. The game has been used in the spring of 2005 in preparation for a referendum concerning the constitution for Europe.

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[1] Source: The EU as a democratic polity in international law, Asser Institute.

Tuesday, June 28, 2011

Conference about ICJ's judgment in the case between Nicaragua and the USA

In 1986, the International Court of Justice issued its judgment on the merits in a dispute between Nicaragua and the United States of America. It was one of the most notorious and influential judgments the Court has ever issued. Twenty-five years later, on a very sunny and hot day in The Hague, members of the legal teams of both Nicaragua and the United States faced each other once again in the Peace Palace, to celebrate the 25th anniversary of this landmark decision, and to assess its lasting impact on international law.

The conference was co-sponsored by the Grotius Centre of the Leiden Law School, the Centre on International Courts and Tribunals at University College London, the Netherlands Society of International Law, and the Law Firm of Foley Hoag LLP.

Professor Nico Schrijver, Chair of Public International Law at Leiden University, welcomed all participants. He then introduced the first panel, whose task was to discuss the impact of the Nicaragua Case on general international law. The focus of this panel was on jurisdictional issues, as well as questions of state responsibility, especially attribution and circumstances precluding wrongfulness. Professor James Crawford (University of Cambridge) criticized the Court’s decision of 1984 in which it declared it had jurisdiction to hear the case. Judge Bruno Simma of the International Court of Justice then spoke about the way the Court applied the concept of attribution in its judgment on the merits, and how its interpretation of the concept had had a lasting impact, especially on the work of the International Law Commission. He compared the ICJ’s ‘effective control’ approach with the ‘overall control’ approach of the ICTY in the Tadic case, criticizing the latter. At the end of his talk, Simma hinted that there might be a need to reconsider the ICJ’s approach in certain special circumstances, such as the situation in Darfur, Sudan. Prof. Pierre-Marie Dupuy (Graduate Institute of International Development Studies, Geneva) devoted his reflections to self-defense as a circumstance precluding wrongfulness. And finally, Prof. Phillipe Sands (University College London) spoke about formalism and anti-formalism in the ICJ’s approach, and about the impact of the Court’s decision on life outside the community of international lawyers.

The second panel addressed issues relating to the use of force, intervention and matters of evidence. Judge Abdulqawi Ahmed Yusef of the International Court of Justice compared the definition of ‘armed attack’ as used in the Nicaragua-case with the use of that term by the Eritrea-Ethiopia Boundary Commission. Professor John Norton Moore (University of Virginia School of Law) strongly criticized the Court’s judgment, and then Mr. Paul Reichler (Partner, Foley Hoag LLP) defended it. What was fascinating about these talks was that both had been involved as counsel in the case – Moore for the USA, Reichler for Nicaragua - and their talks sounded much like their pleadings might have sounded twenty-five years ago. The reflections of Marcelo Kohen (Graduate Institute of International Development Studies, Geneva) were read by Dr. Larissa van den Herik (Leiden University), because Kohen was unable to come to The Hague. The session was moderated by Prof. Brigitte Stern (University of Paris I, Panthéon-Sorbonne)

After an impressive luncheon, which was enjoyed in the foyer of the Academy Building but also in the beautiful gardens of the Peace Palace, the third panel discussed the impact of the Nicaragua Case on the Court and its role in the international legal order. This issue was discussed by Prof. Alain Pellet (University Paris Ouest, Nanterre-La Défense), Professor Alan Boyle (University of Edinburgh), Professor Lori Damrosch (Columbia Law School), and Professor Joe Verhoeven (Université Paris II). The session was moderated by Prof. Payam Akhavan (McGill University).

The final session had a different character. The traditional set-up – a table where the speakers awaited their turn to go to the rostrum and deliver their speech – was replaced by two comfortable leather couches, giving the impression that we were witnessing an Oprah Winfrey episode. On the couch sat Ambassador Carlos Argüello Gómez, currently Ambassador from the Republic of Nicaragua to the Netherlands but Agent of Nicaragua before the ICJ in the 1980’s; Professor Alain Pellet and Mr. Paul Reichler, both counsel for Nicaragua; Professor John Norton Moore, who was counsel for the U.S.; and Prof. Michael Glennon (Fletcher School, Tufts University) who was then called by Nicaragua to serve as witness on human rights issues. All these gentlemen were interviewed by Professor Philippe Sands. He asked them to reflect on their personal experiences as participants in the case. Many anecdotes were shared with the audience. For example, when asked how he became involved as witness, Glennon described how he was washing his dog one morning when he received a phone call. Reichler asked him if he wanted to be witness before the World Court, and Glennon said: ‘yes, sure.’ The main theme of the debate was the discovery of the facts, the ICJ’s efforts to figure out what really happened. Moore criticized the Court for not engaging in serious fact-finding, and suggested that the Court was perhaps fooled by one of the parties. To stress the importance of facts and its correct interpretation, he told the following anecdote: a woman with a rabbit lived next-door to a man with a big dog. One day, the dog came home with a dead rabbit between its jaws. The man suspected that his dog killed the rabbit, but he did not want to confess it to his neighbor. So he cleaned the rabbit, and put it back in the neighbor’s yard. When the neighbor came home, the man heard a loud scream. He went to her and asked what the matter was. The woman said: ‘my rabbit had died a few days ago and I buried it, but now it is back in my yard!’ In response, the many representatives of Nicaragua on the couch pointed out that the US had refused to come to the Court to present its side of the story, and that this made it difficult for the Court to uncover the truth. Interestingly, the debate soon started to sound, once again, like oral pleadings, with the US side underrepresented in the discussion, since Moore was the sole defender of the US approach on the leather couches. The audience went home believing the case was never decided and that the two parties had continued to discuss the true nature of the US involvement in the affairs of its South-American neighbors, and would never stop doing so….

Click here for literature about the case, the Court, and the country.

Friday, June 24, 2011

Dutch MP acquitted : freedom of expression prevails

The Amsterdam Court has cleared Dutch Member of Parliament Geert Wilders of hate charges.

According to the Dutch court his anti-islamic statements always fell within the bounds of legitimate political debate even if they were offensive to many Muslims. The Amsterdam Court found his rhetoric was "on the edge of what is legally permissible." The statements were directed "against a religion as such and not against individual persons or a group of people."

Geert Wilders claims the victory for freedom of expression and religion.

Freedom of expression is important for everyone.
Freedom of expression is even more important for members of parliament in their representative functioning, defending the interests of the electorate.


Geert Wilders

The Highs and Lows of the Freedom of Expression and Religion (Part II)

The Highs and Lows of the Freedom of Expression and Religion (Part I)

Dutch Court acquits Dutch Anti-Islam politician (NY Times, June 23rd 2011)

Geert Wilders cleared of Hate Charges by Netherlands Court (Guardian UK, June 23rd 2011)

Geert Wilders entend utiliser sa relaxe pour légitimer ses propos (Le Monde, 23 Juin 2011)

Wilders' Gegner ziehen zur UN (Die Zeit, 23 Juni 2011)

Peace Palace Library International Law News

Peace Palace Library articles on freedom of expression

Friday, June 17, 2011

When Röling Waves Advanced Towards the Shores of International Law

Invitation to lecture about the influence of Röling’s work on international law practice and scholarship by Prof. Nico Schrijver, organized by the Peace Palace Library. The lecture takes place on Wednesday 22 June, 2011, at 17.30-19.30 (lecture starts at 18.00). The location is the Historic Reading Room of the Peace Palace Library. Entrance is free.

About Prof. Nico Schrijver

Prof. Schrijver completed his LLM in Dutch and International Law at the University of Groningen under the supervision of Professor Röling and served for a number of years as his assistant. Professor Nico Schrijver is currently Chair of Public International Law at Leiden University, and Academic Director at the Grotius Centre for International Legal Studies, Leiden University/Campus The Hague. He is also President of the Netherlands Society of International Law, and Member of the United Nations Committee on Economic, Social and Cultural Rights. He appeared before the International Court of Justice and the International Tribunal for the Law of the Sea, and as legal counsel in law of the sea cases before special ad hoc tribunals, and as expert in proceedings before the International Centre for Settlement of Investment Disputes (ICSID), and before the Inter-American Court for Human Rights. He has working experience in the UN system, including as legal officer for the Office of the Legal Counsel, United Nations. He is Chairperson of the Committee on the International Law of Sustainable Development of the International Law Association (previously General Rapporteur) and Co-Chair (with Dr. Kamal Hossain) of the ILA Study Group on UN Reform.

About Prof. Bert Röling and his influence on international law

B.V.A. Röling (1906-1985) was one of the most prominent international lawyers in The Netherlands after 1945. Initially specializing in Dutch criminal law and working as a judge in a Dutch district court, his appointment as a judge to the Tokyo War Crimes Tribunal marked a shift in his thinking and his career, prompting him to take up issues of international criminal law and general international law. He subsequently became one of the founding fathers of the new international discipline of peace research. He often took points of view which today would be regarded as firmly rooted in contemporary international law and conventional wisdom, but were certainly not so at the time. Examples include his early plea to dismantle colonialism and to transform traditional international law from a European law of nations into a world law of nations as well as his strict interpretation of the ban on the use of force.


If you wish to attend the lecture, we kindly ask you to register in advance. To enter the premises of the Peace Palace, you are required to bring a valid ID (passport, driving license), and show this to the security at the gate of the Palace. They will show you the way to the Library. For registration and for more information, please contact Mr. Otto Spijkers of the Peace Palace Library at

About the Peace Palace Library Lecture Series

The Peace Palace Library Lecture Series is a lecture series on issues of general international law. Each year, approximately four lectures will be organized. All lectures are held in the Peace Palace Library. The evening starts with a small reception in the library’s new reading room. The lecture itself takes place in the historical reading room. There will be plenty of time for questions afterwards. The Peace Palace Library Lecture Series are open to everyone. They are especially interesting for researchers and students, as well as diplomats, international civil servants, journalists and other professionals working in the field of public international law.