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There is Chutzpah and Then There is David Cameron

Published on October 6, 2016        Author: 

It is hard to translate the Yiddish word Chutzpah. Cheek doesn’t quite capture it. ‘What a cheek’ is not the same as ‘What Chutzpah’. Chutzpah involves a certain brazenness. ‘What Chutzpah’ is usually associated with a rubbing of the eyes or a shake of the head in disbelief. Even a kind of perverse admiration. The classical example of Chutzpah is the son who kills his mother and father and then turns to the judge and pleads: Mercy, I’m an orphan.

Cameron has taken Chutzpah to new heights.

A good place to start would be in the final weeks of the campaign when Cameron’s refrain was ‘Brits don’t Quit!’ Rub your eyes – this from the Brit who just months earlier had presented his ‘either we get this and this and that or, well yes, we quit’. Takes some nerve, does it not? Of course to have any credibility in his pre-referendum Brussels negotiations he would have to sell himself and his country as ready to quit.

You would think that in playing against the grain of ‘Brits don’t quit’ there would have to be something huge at stake. You may just remember the weeks that became months when the world and its sister were waiting for him to present his list of demands. You will certainly not have forgotten the disdainful disbelief from all and sundry when he finally presented his Potage of Lentils – that thin gruel of demands for which he was willing to gamble the future of the UK membership of the European Union and much more.

It was also an insult to one’s political intelligence. As a ploy to address internal party politics – the real reason behind the whole unfortunate manoeuvre – did he really believe that even if his demands were met in full (and they mostly were) this would keep the wolves at bay? Even more damning in my view, it was clear that Cameron never grasped the serious problems of the European construct which, if one were to use the ‘nuclear option’ of threatening to quit, could and perhaps should have been raised. Read the rest of this entry…

Filed under: Editorials, EJIL, European Union
 
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UK to Derogate from the ECHR in Armed Conflict

Published on October 5, 2016        Author: 

At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.

Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.

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On My Way Out – Advice to Young Scholars III: Edited Book

Published on October 5, 2016        Author: 

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the third instalment and it is one in which, even more than my earlier instalments, I look back ruefully and in St Augustine fashion offer a ‘don’t do what I did…’ set of suggestions.

A more appropriate title would have been Unedited Books and the crux of my advice is – proceed with caution, avoid if at all possible.

The routine is well-known and well-practised. You receive an invitation to present a paper at some conference. You accept (see below). You may adapt something you have already written or something that you are working on which is in some way connected. It is often not exactly what the conveners had asked for or had in mind, but perhaps close enough so as not to have to reject the invitation. The conveners are often accomplices in this little approximation. They are committed to the conference; it is often part of some grant they have received. Almost always you are pressed for time – after all it is not as if these invitations arrive when you are sitting back, twiddling your thumbs and looking for things to do. In general they are disruptive of your flow of work. So the result is not as good as it might have been. Sounds familiar?

You attend the conference. It shows. The papers presented are of very variable quality and relevance. There is the usual conference overload so that the habitual 10-15 minute ‘commentator’ input may be interesting but of limited value to your paper. The general (‘unfortunately we only have xx minutes for questions’) discussion is even less so – how many actually read the papers (which not infrequently arrive two days before the conference)? Still sounds familiar? Read the rest of this entry…

Filed under: Editorials, EJIL
 

From the Editor’s Mailbag

Published on October 4, 2016        Author: 

The following are two letters received from Claus Dieter Ehlermann and Robert Howse respectively.

“I am writing to you as Editor of the European Journal of International Law about the recent article by Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ in the EJIL, Volume 27, No. 1 (2016). At page 41, Professor Howse devotes a paragraph to the resignation of Debra Steger, the first Director of the Appellate Body Secretariat, in late March 2001.

As Chair of the Appellate Body at that time, I would like to offer some facts to avoid misunderstandings.

First, as WTO Director of the Information and Media Relations Division, Keith Rockwell, said at the time, Professor Steger resigned for personal reasons. Second, the Appellate Body Members have always held her in the highest respect, she has always been very loyal and respectful to us, and we remain very close friends to this day. Third, there was absolutely no linkage whatsoever to the EC-Asbestos amicus brief issue. All seven Appellate Body Members and Professor Steger were in complete agreement on this issue and case all the way through.”

C-D.E.

“We should all be grateful to Claus-Dieter Ehlermann, former Member of the WTO Appellate Body, and one of its original Members, for clearing the air concerning the Appellate Body’s relationship with its Secretariat, and particularly the head Debra Steger, during the turbulent formative years that were marked by, inter alia, the controversy over amicus curiae briefs.  I have always had excellent amicable professional relations with both Dr. Ehlermann and his former Appellate Body colleagues, as well as with Ms. Steger; given my high esteem for all involved it is comforting to be assured that the controversy in question did not in any way test or strain a vital working relationship that was very likely crucial to the Appellate Body’s early success as a true trade court.”

R.H.

 
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Conflicts of Interest in the Editorial Process

Published on October 4, 2016        Author: 

EJIL encourages the submission of articles that challenge received knowledge and subject institutions of the international legal order to critical scrutiny. Inevitably, this may result in conflicts of interest in the editorial process. Members of the Board of Editors are not remote from the life of international law. They write articles and books, act in cases, serve on courts and tribunals. From time to time we receive a submission which may implicate such: be critical of a book or article written by a Member of the Board, relate favourably or otherwise to a case decided by a Member of the board or in the process of being decided, etc. Our standard practice when such a conflict of interest comes to our attention is immediately to recuse the Member in question from any editorial decision pertaining to the item concerned.

Likewise, if someone writes on a case in our Critical Review of Jurisprudence section we would normally not accept such from one of the counsel in the case. Where dealing with such a case is part of a larger piece, we expect full disclosure to the reader.

Book reviewers are asked to recuse themselves if there is a conflict of interest such as a relationship of close friendship or enmity. Read the rest of this entry…

Filed under: Editorials, EJIL
 

EJIL: In this Issue

Published on October 3, 2016        Author: 

This issue opens with a pair of articles addressing aspects of human rights protection in the European Union. In a compelling critique of the CJEU’s adverse Opinion on the EU’s accession to the European Convention on Human Rights, Turkuler Isiksel argues that the roots of the Court’s Opinion lie in an attitude of ‘European exceptionalism’, that institutional accountability results in the better protection for human rights, and that this applies with equal force to the EU legal order itself. Nora Markard then examines the EU’s practice of outsourcing its border controls, presenting a forceful argument that the involvement of third countries in this regard does not exempt the EU from international responsibility in relation to the law of the sea and the right to leave.

The next three articles in this issue investigate the intersection of international law and politics in several areas. Michal Saliternik argues that the introduction of procedural justice norms to peace negotiations will remedy representation deficits and enhance the success of such processes. Armin Steinbach explores the different analytical logics underpinning rational choice and behavioural economics, by comparing these approaches in their application to non-consensual forms of cooperation in international law. And Daniel Augenstein considers the relationship between the localization of the politics of human rights to sovereignty structures in global resource exploitation.   Read the rest of this entry…

 
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New Issue of EJIL (Vol. 27 (2016) No. 3) – Out Next Week

Published on October 3, 2016        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Articles

Turkuler Isiksel, European Exceptionalism and the EU’s Accession to the ECHR

Nora Markard, The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries

Michal Saliternik, Perpetuating Democratic Peace: Procedural Justice in Peace Negotiations

Armin Steinbach, The Trend toward Non-consensualism in Public International Law: A (Behavioral) Law and Economics Perspective

Daniel Augenstein, Paradise Lost: Sovereign State Interest, Global Resource Exploitation and the Politics of Human Rights

New Voices: A Selection from the Fourth Annual Junior Faculty Forum for International Law Read the rest of this entry…

 
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Announcement: CfP Netherlands Yearbook of International Law

Published on October 2, 2016        Author: 

Netherlands Yearbook of International Law Call for Papers. The Netherlands Yearbook of International Law (NYIL) has issued its call for papers for its volume 48 (2017). The volume will address the topic of ‘Shifting Forms and Levels of Cooperation in International Economic Law: Structural Developments in Trade, Investment and Financial Regulation‘. The deadline for the submission of abstracts is 31 October 2016. See here for the for the full Call for Papers.

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