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New EJIL:Live! Joseph Weiler and Robert Howse Discuss The World Trade Organization 20 Years On: Global Governance by Judiciary

Published on May 5, 2016        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Robert Howse of the New York University School of Law, about his EJIL Foreword article, “The World Trade Organization 20 Years On: Global Governance by Judiciary”, which appears in EJIL, Volume 27, Issue 1. The EJIL Foreword, published each year in the first issue of the Journal, is designed to enable a distinguished scholar to undertake a more extensive analysis, conceptualization, or systemic theorization than is usually possible in an EJIL article. Robert Howse’s contribution surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. This conversation goes behind the scenes of the writing of the Foreword, in a manner of speaking, giving readers additional insights into the author’s theorization and approach to understanding the Appellate Body’s first 20 years. As the author remarks, “What I’m trying in part to discern is a set of underlying policies that the Tribunal has developed to manage some of the key legitimacy challenges and dilemmas facing it.” The interview was recorded at the New York University School of Law.

The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!

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Filed under: EJIL Analysis, EJIL: Live!
 

A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

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Shipping and climate change: the IMO is making progress – though worryingly slowly

Published on May 3, 2016        Author: 

The Paris Agreement, which was adopted in the UN Climate Change Conference in December 2016 in Paris, does not include aviation and shipping in its regulatory framework. Acknowledging the global and complex nature of shipping activities, the Kyoto Protocol entrusted the reduction of GHG emission from marine bunker fuels to the International Maritime Organisation (article 2 (2)). One of the purposes of the IMO is to ‘encourage and facilitate the general adoption of the highest practicable standards in matters concerning the … prevention and control of marine pollution from ships’ (article 1 (a) of the IMO Convention), and its Marine Environment Protection Committee (MEPC) has the task of negotiating, adopting and amending international conventions, regulations and measures related to the protection of the marine environment. Since 1997, the MEPC has been actively engaged in discussions concerning the reduction of GHG emissions from ships and the elaboration of a legal framework for energy efficiency in the shipping industry as a means of tackling climate change. The IMO has adopted a number of measures to address these issues, but progress has been slow.

Despite encouragement from the former IMO Secretary General to ‘bring the spirit of the Paris Agreement to IMO’ and by the UN Secretary General to continue the momentum of the Paris Agreement, the response in the MEPC in its 69th Session which took place from 18-22 April 2016 was less enthusiastic, though some progress was made. This post discusses the recent discussions and negotiations in the IMO MEPC with respect to reduction of emissions from ships.   Read the rest of this entry…

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 4)

Published on May 3, 2016        Author: 

Some six months since the publication of the third post on the Croatia v. Slovenia arbitration, as Bernard Woolley might say, ‘there has been movement’. To recapitulate, following Croatia’s note verbale of 24 July 2015 informing Slovenia and the Tribunal of its intention to terminate the Arbitration Agreement, Slovenia tendered its objection dated 13 August. In the aftermath of the successive resignations of the arbitrator of Slovenian nationality (Dr Jernej Sekolec) on 23 July, the arbitrator of Croatian nationality (Professor Budislav Vukas) on 30 July, and the replacement arbitrator for Sekolec (President Ronny Abraham of the ICJ) on 3 August, the Tribunal invited the parties to appoint replacements for Vukas and Abraham. Croatia declined to name a replacement, whereas Slovenia wrote to the Tribunal that, ‘in order to preserve the integrity, independence and impartiality of the Arbitral Tribunal and the ongoing proceedings, it will refrain from appointing a member of the Tribunal to replace Judge Abraham’. Instead, Slovenia requested ‘the President of the Arbitration Tribunal, Judge Gilbert Guillaume, in exercise of his powers under Article 2, paragraph 2, of the Arbitration Agreement, to appoint a member of the Tribunal’. In a press release dated 25 September, the Tribunal announced:

Since neither Party made an appointment within 15 days after the resignation of Professor Vukas and Judge Abraham, it fell to the President to appoint the remaining two members of the Tribunal. [Professor Nicolas Michel, of Swiss nationality] was appointed to succeed Professor Vukas on the Tribunal, and [H.E. Ambassador Rolf Fife, of Norwegian nationality] was appointed to succeed Judge Abraham. The Tribunal now intends to consider the Parties’ positions carefully, including in respect of the effect of Croatia’s stated intention to terminate the Arbitration Agreement and in respect of the possible implications for the present proceedings of the events reportedly underlying Croatia’s decision. In this regard, the Tribunal may invite further submissions from the Parties on questions of fact and law as may be necessary.

It is noteworthy that, for the first time in the history of the arbitration, the panel is now ‘wholly neutral’ in that all of the arbitrators are nationals of neither party. Although this appears to have eventuated faute de mieux, it is attractive on a systemic level, as covered in our last post.  

On 2 December, the Tribunal fixed deadlines for further submissions on the aforementioned issues. On 14 March, the Tribunal announced that it had fixed 17 March as the date for hearings on the matter, to be held (understandably) in camera pursuant to Article 6(5) of the Arbitration Agreement with a summary of the Parties’ positions to be published via press release. On the ground, tensions have been escalated by the decision of Slovenia to run a barbed wire fence along part of the disputed territory (see here). Reactions in Croatia, likening these actions to the Nazi occupation of the area during the Second World War, have not helped to ease tensions Read the rest of this entry…

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‘Legacy Talk’ at the International Criminal Tribunal for Rwanda

Published on May 2, 2016        Author: 

As mentioned in Marko Milanovic’s recent post, the American Journal of International Law will soon publish a Symposium at the occasion of the closure of the ad hoc tribunals. Marko’s article considers the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY). We were asked to reflect upon the legacy and impact of the International Criminal Tribunal for Rwanda (ICTR). An advance (original and longer) version is available here.

Before turning to the ICTR’s potential legacies, our article explores the ways in which the concept of “legacy” can be understood in the context of an international criminal tribunal. Although rarely defined and even less frequently theorised, the term has recently been much in vogue in international criminal law, so much so that Viviane Dittrich has observed a “legacy turn” within the field.  Even before it closed down, the ICTR dedicated human resources, a website and a video to publicise its legacy.

As the ICTR’s legacy website and video demonstrate, the Tribunal has made claims about its legacy in no uncertain terms. For instance, the video lists the Tribunal’s monumental contributions to international criminal law, but it also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” The narrator claims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” Yet the film’s final words are not about Rwanda, but affirm “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

This rhetoric about one’s own legacy exemplifies what we call ‘legacy talk’. Unlike legacy planning, which concerns ensuring that there will be something to leave behind, legacy talk attempts to consolidate a set of interpretations about what is left. Read the rest of this entry…

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Announcements: James Muiruri International Law Lecture; The Creation of a World Court for Human Rights Event; Interpretation of the ECtHR Conference; Maastricht University Essay Competition; UN Audiovisual Library of International Law

Published on May 1, 2016        Author: 

1. Annual James Muiruri International Law Lecture. University of Sheffield School of Law Annual James Muiruri International Law Lecture will be held on Wednesday 11 May at 6pm. Prof Guy S. Goodwin-Gill, University of Oxford, will speak on Refugees in our Time: The Challenges of Protection and Security. The lecture will take place in The Diamond lecture theatre. For more details and to register see here.

2. The Creation of a World Court for Human Rights. The Oxford Martin School Programme on Human Rights for Future Generations will host a public event on the creation of a World Court for Human Rights. Two world-leading experts will be invited to engage in a dialogue on the following Resolution: A World Court for Human Rights should be established to contribute to the evolution of, and compliance with, human rights law. The discussants will be Professor Martin Scheinin, Professor of International Law and Human Rights, European University Institute (For the Resolution) and Professor Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School (Against the Resolution). The debate will be moderated by Professor Harold Koh, Sterling Professor of International Law at Yale Law School. The event will take place on 9 May from 3pm- 5pm at the Oxford Martin School and will be followed by a drinks reception. All are welcome and registration is required. Information about the event and a link for registration can be found here. Read the rest of this entry…

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Filed under: Announcements and Events
 

The ‘Internationalization’ of Maritime Disputes in the South China Sea: Environmental Destruction in the High Seas and Threats to the Global Commons

Published on April 28, 2016        Author: 

What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying  nations outside the region such as the United States have “no role in regional disputes”.  The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale  ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5).   Read the rest of this entry…

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Thou shalt not Insult the (Foreign) Head of State?

Published on April 28, 2016        Author: 

Earlier this month, a German prosecutor’s office confirmed that it was investigating TV comedian, Jan Böhmermann, for having read on his TV show, Neo Magazin Royal, a poem targeting the Turkish President Erdogan (see here or here). The poem, entitled “Schmähkritik” (“Defamatory”), accused Mr Erdogan of deliberately suppressing minorities such as Kurds and Christians. As the comedian himself admitted, the language used was deliberately offensive- it contained sexually explicit insults against the Turkish president (and was read in front of the Turkish flag and a portrait of Mr. Erdogan).

The Böhmermann Case

The TV show stirred fierce criticism from the Turkish capital of Ankara. The Turkish Embassy in Berlin lodged a formal request with the German Ministry of Foreign Affairs for the prosecution of Mr Böhmermann. The prosecution could take place under Article 103 of the German Criminal Code entitled “Defamation of organs and representatives of foreign states”. This provision reads as follows:

 (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Pursuant to Article 104a of the German Criminal Code, prosecution of this offence would require the following conditions to be met: the Federal Republic of Germany maintains diplomatic relations with the other state; reciprocity is guaranteed and was guaranteed at the time of the offence; a request to prosecute by the foreign government exists; and the Federal Government authorises the prosecution.

The first three conditions are clearly present in the Böhmermann case – Germany maintains diplomatic relations with Turkey; the combination of Article 125 (Insult) and Article 340 (Offences against the Head of a Foreign State) of the Penal Code of Turkey would allow for the criminal prosecution of persons who insult the German head of state in Turkey; and Turkey has requested the prosecution.

Originally, securing authorisation for the prosecution from the German Federal Government was less than certain. In some previous cases involving the alleged insult of Mr. Erdogan (the NDR Case), authorisation had been denied. In the current case however, the Government, after some initial hesitation, decided to grant it. Thus, the case will go forward alongside a civil lawsuit for defamation filed by Mr. Erdogan himself.

While interesting in itself, the case gives rise to a more general question relating to the level of protection provided to heads of state under current international law. Should heads of state, as is the situation with other public officials, be expected to withstand even harsh political criticism, thus being effectively subject to a lower level of protection than common citizens? Or on the contrary, should heads of state be granted a higher level of protection in so far as they represent the state and could therefore be considered one of its symbols? Read the rest of this entry…

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“Are you smarter than Professor Hawking?” Higher Forces and Gut-Feelings in the Debate on Lethal Autonomous Weapons Systems

Published on April 27, 2016        Author: 

“Professor Hawking says that artificial intelligence without control may cause the extinction of the human race”, noted a Chinese delegate following a session on ‘mapping autonomy’ at the Convention on Conventional Weapons (CCW) meeting of experts which took place from 11-15 April 2016 at the United Nations in Geneva. The CCW convened its third meeting of experts to continue discussions on questions related to emerging technologies in the area of lethal autonomous weapons systems (LAWS) and I had the privilege of participating.

LAWS are most often described as weapons that are capable of selecting and attacking targets without human intervention; one of the key questions addressed at the meeting was what exactly this means. According to most of the commentators present at the meeting, LAWS do not yet exist however, the possibility of using autonomous weapons in targeting decisions raises multidisciplinary questions that touch upon moral and ethical, legal, policy, security and technical issues. The meeting addressed all of these, starting with the technical session aimed at mapping autonomy.

Without expressing their position on a ban, the six technical experts on the panel presented a nuanced view of the state of current autonomous weapons technology and the road that lies ahead. The Chinese were one of the first delegations to respond to the panel and the delegate seemed startled; some of what was said seemed to contradict the conclusions reached by Professor Hawking et al. China read the Open Letter issued by the Future of Life Institute (FLI) and signed by thousands of artificial intelligence (AI) and robotics researchers, as well as by a number of other endorsers including the well-known Professor Stephen Hawking. The Open Letter calls for a ban on offensive autonomous weapons beyond meaningful human control, claiming that these weapons would be feasible within years, not decades. The Open Letter attracted a good deal of attention, largely because it is signed by a number of well-regarded figures including, Tesla CEO Elon Musk, Apple co-founder Steve Wozniak and as previously mentioned, Professor Stephen Hawking.

The expert panelists offered some divergent views on the claims and predictions made in the Open Letter. In response to these, China asked the panelists “do you think you are smarter than Professor Hawking?” A number of delegates, academics, NGO members and panelists seemed quite amused by the provocative question posed by China. Who dares to disagree with Hawking? Fortunately, some of the experts did. “Isn’t Hawking a physicist, and not an AI expert?”, asked one panelist. Another expert confidently said, “Yes, I am smarter than Stephen Hawking.” Why? “Because, like Plato, I know that I do not know.” The debate is amusing, but also a little bit troublesome. What is the effect of well-regarded figures on the discourse about autonomous weapon systems? Read the rest of this entry…

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Filed under: Arms Control, EJIL Analysis
 

The Russian Constitutional Court and its Actual Control over the ECtHR Judgement in Anchugov and Gladkov

Published on April 26, 2016        Author: 

The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare “impossible to implement” judgements of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgement is inconsistent with the Constitution of the Russian Federation. As observed by Philip Leach and Alice Donald, even if the main objective of the law was to target judgements of the European Court of Human Rights (ECtHR), its scope is wider and covers decisions from any human rights body, including the UN Human Rights Committee. No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state.

Russia’s Constitutional Court has recently ruled that it was “impossible to implement” the final judgement of the ECtHR delivered on 4 July 2013 in the case of Anchugov and Gladkov v. Russia. In this case, the ECtHR held that Russia’s blanket ban on convicted prisoners’ voting rights was incompatible with the European Convention on Human Rights (ECHR). The applicants brought the case because, according to Article 32(3) of the Russian Constitution, they were ineligible to vote in parliamentary and presidential elections given their status as convicted prisoners.

This post discusses and criticises the ‘freshly exercised’ competence of the Russian Constitutional Court, in particular, from the standpoint of public international law. Read the rest of this entry…

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