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Announcements: CfP for ESIL Conference in Oslo; Pluricourts Fellowship in Oslo; International Criminal Law Fellowships; ICC Summer School in Galway; Frankfurt Investment Law Workshop

Published on December 20, 2014        Author: 

1.  ESIL Annual Conference 2015, Oslo – Call for Papers and Agora Proposals, Deadline: 31 January 2015. The 11th Annual Conference of the European Society of International Law (Oslo, September 10-12, 2015) will be hosted by the University of Oslo’s PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order. The annual ESIL conference has become one of the indispensable venues for European and international scholars interested in questions of international law. The conference is entitled “The Judicialization of International Law – A Mixed Blessing ?”. The conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. We will ask critical questions about how international courts and tribunals work, whether we need judicialization in new areas, alternatives to courts and tribunals, and if we should expect further judicialization in the coming years. The conference will feature plenary sessions, fora with invited speakers, and a number of agorae with speakers selected on the basis of a call for agora proposals and papers. The event will also offer poster sessions for early career scholars following a call for posters. Invited speakers include current and former judges of various international courts, as well as legal practitioners and scholars of several disciplines. For information on registration and the programme, please visit the conference website.

2.  PluriCourts Fellowships for 3-12 months in 2015 – 2016. Temporary positions as visiting scholars at postdoctoral level are available at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, a Centre of Excellence at the Faculty of Law, University of Oslo for 2015 and 2016. The duration of the contracts is from 3 – 12 months. The candidates must hold a doctoral degree in law, political science or philosophy. Application instructions may be found here. The visiting scholars shall focus on international courts and tribunals in one of PluriCourts’ thematic research areas, Human Rights, Trade, Criminal Law, Investment, and Environment. Contact: Director, Prof. Andreas Føllesdal or Adm. Manager, Aina NessøeDeadline for application: 18. December 2014. Applications should be sent to pluricourts {at} jus.uio(.)no. Read the rest of this entry…

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Filed under: Announcements and Events
 

Christmas Reading? Christmas Gifts? Some Suggestions from the Editor-in-Chief

Published on December 19, 2014        Author: 

The following is not a ’10 Best Books Published in 2014’. Looking back at the books (excluding novels) I read (and in some cases re-read) this year I have picked those which created that ‘everyone should read this book’ urge that we all experience from time to time. The selection is of course entirely subjective, but rigorous in one sense: knowing how precious reading time is, involving serious opportunity costs, I put on the list only those titles where I felt that I would not run the risk that someone would write to me and say: you wasted my time.

The order of books on the list is arbitrary.

Moshe Halbertal, Maimonides: Life and Thought, Princeton: Princeton University Press, 2013

Of Maimonides it has been said endlessly that from [the great Biblical] Moses to Moses [Maimonides] no one has arisen as Moses. (Trust me, it sounds a lot better in pithy Hebrew – Momoshe ad Moshe Lo Kam KeMoshe). A son of Cordoba (1138) he spent the central part of his life in Cairo where he died in 1204 and was then buried in Tiberius. Renaissance Man (long before the Renaissance) he was and remains one of the greatest Jewish teachers, scholars, legal decisors, philosophers (in the Aristotelian tradition) and physicians. His codification of Jewish Law has remained normative till this day and his Guide to the Perplexed is part of the canon of medieval philosophy and is hugely rewarding to anyone today (all too few, alas) interested in virtue theory. The story of his life, an exile from Caliphate Andalusia and ending as physician to the Crown of Egypt, is not only riveting but offers a window to a world of, inter alia, Islamic glory, which is not often known beyond a small circle of scholars.  Read the rest of this entry…

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Editors’ Choice for New Year Readings and Gifts

Published on December 19, 2014        Author: 

EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  We begin with our Editor-in-Chief’s selection.

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Filed under: EJIL Book Discussion
 

A Response to the Discussants on the Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

I begin by saying that I am extremely grateful to the contributors to this book symposium for kindly having taken the time to read my book The Evolutionary Interpretation of Treaties, and to commit to writing their very stimulating views of it. Given the richness of the comments provided by my colleagues, it would I think be impertinent for me to do more, at this stage, than to try to set out the reflections that their comments have prompted with me.

In writing my book, one of the things I tried to do was to stress the striking interpretative potential with which the Vienna Convention rules are pregnant. It is worth remembering that when counsel for the United Kingdom in what Lord Hoffmann in Matthews [2003] UKHL 4 at [28] referred to as ‘the great case of Golder’ tried to reign in the European Court of Human Rights, they did so by exhorting the Court that it was bound by the rules set out in Articles 31–33 of the Vienna Convention. It is safe to say that the strategy backfired.

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Running in Circles: A Comment on Bjorge’s Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

t was a pleasure to read Eirik Bjorge’s The Evolutionary Interpretation of Treaties. The book is well written and exceptionally well researched. Eirik demonstrates nothing less than an encyclopedic knowledge of the relevant case law and scholarship, and has seemingly read every single bit of text that the International Law Commission and its rapporteurs have produced on the question of interpretation. Eirik’s book is beyond question the most comprehensive examination to date of the issue of evolutionary treaty interpretation, and it fills an important gap in the literature.

While the virtues of the book are many, I cannot help but feel that, had Eirik chosen a different methodological path, the book could have been significantly more illuminating with regard to the nature of the phenomenon of evolutionary interpretation. This is not because I take issue with the main thrust of Eirik’s argument, namely that evolutionary interpretation is perfectly compatible with the rules of interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. Yes, it is – at least partly because the Vienna ‘rules’ are so broad and flexible that one can do (almost) whatever one wants with them.

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Is Evolutionary Interpretation Only A Matter of Finding the Parties’ Intentions?

Published on December 17, 2014        Author: 

The main thesis in Eirik Bjorge’s The Evolutionary Interpretation of Treaties is that evolutionary interpretation depends on the intention of the parties to a treaty and results from applying Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’).

Few would probably dispute that treaty interpretation always involves the intention of the parties. However, the debate – to which this monograph unquestionably is a valuable contribution – continues on where that intention is to be found. Is the controlling element the text of a treaty, its object and purpose (in whatever manner that might be established), its origins or some other feature? It would appear that there continue to be many perspectives on what the concept of the intention of the parties means and where it can (or should) be found.

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A Note on Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 16, 2014        Author: 

A treaty. An international court or tribunal. Two states. The search for meaning. Submissions are made by the parties as to the ‘correct’ or ‘best’ interpretation of the treaty. Recourse is had to the canons of interpretation in the Vienna Convention on the Law of Treaties. Terms like ‘good faith’, ‘ordinary meaning’, ‘object and purpose’ are repeated like incantations. So too, almost as often, terms like ‘subsequent agreement’, ‘subsequent practice’ and ‘evolutionary interpretation’ reverberate. One sometimes wonders what has happened to the actual text of the treaty to be interpreted, blanketed as it now is in interpretative theory.

In this careful and lawyerly study, Eirik Bjorge cuts through all this, drawing our attention back to basics. First and above all one has to look at the text of the treaty. The text, in its authentic language(s), is the primary expression of the common intention of the parties. This common intention is to be determined objectively by applying the canons of interpretation established in the Articles 31-33 of the Vienna Convention. Bjorge points out that the evolutionary interpretation of treaties is nothing more than that: an expression of the traditional canons of treaty construction. It is a method suited for all treaties, not just one class. It is a method for all international tribunals, not just one. But how much interpretation can the text stand? It is this question that encapsulates the quest for meaning.

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Discussing the Evolutionary Interpretation of Treaties

Published on December 16, 2014        Author: 

Treaty interpretation: the role of party intention and good faith

I very much appreciated reading Eirik’s book. It is certainly a valuable contribution to the literature on treaty interpretation. Using the limited space available in a blog post, I will pick up on an idea introduced by Eirik in Chapter 3 – that there might be something of an interplay between evolutionary interpretation, party intention, and good faith. To use Eirik’s own words, “[e]volutionary interpretation may … be required by good faith”. Myself, I would describe the interplay as follows:

Articles 31-33 confer upon interpreters a discretion. For example, they leave to interpreters to decide whether in the interpretation of a treaty, the ordinary meaning of its terms should be defined based on language conventions that existed at the time of the conclusion of the treaty or conventions that exist at whatever time the treaty is interpreted. This discretion is not absolute, while treaties are always to be interpreted in good faith. To interpret a treaty in good faith is tantamount to interpreting it for a purpose, the purpose being to establish the common intention of its parties. Thus, the principle of good faith sets a limit to any discretion exercised by an interpreter under Articles 31-33. For example, although the choice between the historical and current-day ordinary meaning cannot be justified by direct reference to any rule of international law, in making this choice, the interpreter shall continue his/her search for the intention of the treaty parties.

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Introducing The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

image windows Den Haag 0061 (NL)(1)Although the issue may have become obscured at some point after the drafting of the Vienna Convention on the Law of Treaties, it is increasingly acknowledged in international law that the goal of treaty interpretation is, as the International Law Commission’s first Special Rapporteur on the law of treaties JL Brierly put it, ‘to give effect to the intention of the parties as fully and fairly as possible’ (The Law of Nations (OUP, 1928) 168; A Clapham, Brierly’s Law of Nations (7th edn, OUP, 2013) 349).

The question of the intention of the parties in treaty interpretation might be thought to take on a particular interest in connection with the evolutionary interpretation of treaties. Though there is no standard definition of the term ‘evolutionary interpretation’, the upshot is that the meaning of treaty terms may be liable to change over time, without the specific intervention of the parties to amend or modify the treaty terms.

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Discussion of Eirik Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

The Evolutionary Interpretation of TreatiesThis week we’ll be hosting a discussion of Eirik Bjorge’s recent book with OUP, The Evolutionary Interpretation of Treaties.

Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, University of Oxford. Eirik has, among other things, been pensionnaire étranger at École normale supérieure, visiting researcher at Sciences Po and the Max Planck Institute for Comparative Public Law and International Law, and stagiaire at the Conseil d’État and the European Court of Human Rights. He has taught at Oxford and at Sciences Po. He is the author of The Evolutionary Interpretation of Treaties (OUP, 2014) and Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015).

Eirik’s book will be discussed by Ulf Linderfalk, James Crawford, Isabelle Van Damme, and Marko Milanovic. Eirik will start off the discussion with an introduction, and wrap it up with a response to the four discussants. We are grateful to all of them for their participation.

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