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In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Published on December 20, 2018        Author: 

How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.

The focus “in whose name?”

An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.

In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.

Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed. Read the rest of this entry…

 
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Favourite Readings 2018: The Passage of Time

Published on December 19, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we give you Guy Fiti Sinclair’s favourites.

None of my chosen books would be found in the ‘341’ (or even ‘340’) stacks in a Dewey Decimal classified library, or in the KCs in a Moys-organized library such as the one at my law school. This is not because I haven’t read any books in those stacks this year. To the contrary, it turns out, somewhat to my own surprise, that I’ve actually managed this year to work my way through a fair few international law books – and books about international law, to adopt a to adopt a useful distinction I have heard from Joseph Weiler more than once – and read parts of many more. Nor is it that I’m worried that if I start listing books by international lawyers, one or another colleague will feel offended that I didn’t mention theirs (although I must admit this has crossed my mind).

Rather, I have decided to highlight books that I have read this year which spoke most directly to my current interests (one might say obsessions). Like many people, I suspect, I have spent much of the past year oscillating between trying to understand our current perplexing moment and trying not to think about it. These books have helped, one way or the other.

Nitsan Chorev, Remaking U.S. Trade Politics: From Protectionism to Globalization (Cornell University Press, 2007)

Kristen Hopewell, Breaking the WTO: How Emerging Powers Disrupted the Neoliberal Project (Stanford University Press, 2016) Read the rest of this entry…

 
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Favourite Readings 2018: Discovering (new) classics, better late than never

Published on December 18, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we have Sarah Nouwen’s choices.

Sometimes, writing is easier without reading. Skim-reading the most recent work on a topic, one may find sufficient disagreements to pick a fight with. But truly widely reading about a topic, going back several decades, if not centuries, makes one realise how many of one’s arguments have already been made, and much better. Ultimately, of course, it is such wide reading that allows one’s own work to mature. It is also an act of rebellion against the pressures of quantitative assessments of one’s work, and an inspiring source for the scholar’s primary job: to educate, first oneself, and then others.

So, in the spirit of better late than never, this year’s list includes some books that I should have read long ago.

Karen Knop’s Diversity and Self-Determination in International Law (2002)

I opened this book to develop a stronger grasp on the international law of self-determination. I closed it with an even broader understanding of everything that self-determination could mean, depending on who interprets it, and who gets to participate in the process of interpretation. Putting her finger on one of the paradoxes of self-determination, Knop shows that those most affected by self-determination are often excluded from the process of its legal interpretation. While this may be the case for many legal norms, it is paradoxical for self-determination, which is essentially concerned with people deciding for themselves.

But the book’s significance goes far beyond self-determination. I’ll use it for teaching classes on interpretation: thought you knew what this text meant? Read Knop and you’ll be surprised in how many ways the same few lines can be understood, depending on one’s world view and what we consider coherent or incoherent.

Rita Kesselring, Bodies of Truth: Law, Memory, and Emancipation in Post-Apartheid South Africa (2017) Read the rest of this entry…

 

Favourite Readings 2018: The Power of Words

Published on December 17, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we have selections from Jan Klabbers.

Somehow, 2018 has been for me a year of epistemic concerns, of wondering about the social, emotional and above all political power of language and words and concepts. Many of my favourite readings of the year are related to the exercise of power, legal and otherwise, by epistemic means: the exercise of power through the ways in which we use our concepts, our words; through the ways we express our thoughts, and the ways in which these thoughts come to lead a life of their own, relatively independent even from the work we originally wanted those thoughts to do. This runs like a red thread through all the academic studies on this list, and even, in perhaps less obvious ways, through the non-academic works as well, characterized as these are by their distinct use of language.

Perhaps the most gratifying book I read during 2018 is written by Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (2017). I am not the only one who thinks the book is excellent: a jury of the European Society of International Law awarded it the Society’s ‘book of the year’ prize, so I am in good company. Read the rest of this entry…

 

Announcements: CfA Program of Advanced Studies on Human Rights and Humanitarian Law; CfP 2019 Human Rights Essay Award Competition

Published on December 16, 2018        Author: 

Call for Applications – 2019 Program of Advanced Studies on Human Rights and Humanitarian Law: The Academy on Human Rights and Humanitarian Law is happy to announce its call for applications to the 2019 Program of Advanced Studies on Human Rights and Humanitarian Law, taking place from May 28 – June 14. This annual Program offers 18 courses in English and Spanish, lectured by over 40 scholars of relevance in the field of Human Rights and Humanitarian Law, and gathers more than 125 participants from over 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court, the International Court of Justice, Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights, experts from prominent NGO’s and professors from all over the world. The application form for this program is available here. All courses can be taken for ABA credits. For more information please contact hracademy {at} wcl.american(.)edu.

Call for Papers – 2019 Human Rights Essay Award Competition: Submit Your Work to the 2019 Human Rights Essay Award Competition. The Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law at the American University Washington College of Law, seeks to stimulate the production of scholarly work in international human rights law. The topic of the 2019 competition is the Protection of Migrants Under International Human Rights Law. Participants have the flexibility to choose any subject related to this topic, however the scope of the submission must directly relate to this year’s topic. In addition, we would like to note we believe that international human rights law can be understood to include international humanitarian law and international criminal law. We will award two winners — one for a submission in English and one for a submission in Spanish — with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2019 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from 27 May – 14 June 2019. The deadline to enter your submission to the Human Rights Essay Award competition is 1 February 2019. Please note that only participants with a law degree are eligible to enter this competition. We look forward to receiving your submission! If you would like additional information or have any questions, we invite you to contact us via email at hracademy {at} wcl.american(.)edu and via phone at (202) 274-4295.

Filed under: Announcements and Events
 
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Favourite Readings 2018: Nine Good Reads and One Viewing

Published on December 14, 2018        Author: 

Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. We are starting off the small series with selections from our Editor-in-Chief,  Joesph Weiler.

For the first time I have managed to prepare my Good Reads to post on EJIL:Talk! well before Christmas. I publish my pick from some of the books that have come my way during the past year. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyse or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading.

Marcel Reich-Ranicki, The Author of Himself: The Life of Marcel Reich-Ranicki (Princeton University Press, 2001) 

My German readers will be shaking their head in some wonderment: Marcel Reich-Ranicki? Him again? An autobiography from 1999 of a person who died in 2013? Did he not speak enough about he, him and himself during his lifetime so as to last a few lifetimes? My non-German speakers will be shaking their heads with a different wonderment: Marcel Reich who?

But then, consider that when published this book was the no. 1 best-selling book in Germany for 52 weeks. Must be something there, no? Read the rest of this entry…

 

New EJIL: Live! Interview with Frédéric Mégret

Published on December 13, 2018        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Frédéric Mégret, Associate Professor and Dawson Scholar in the Faculty of Law at McGill University in Montreal, whose article “International Criminal Justice as a Peace Project”, appears in our 29:3 issue as part of a Symposium on “The Crime of Aggression before the International Criminal Court”.

Prof. Mégret argues in his article that the Kampala adoption of the crime of aggression needs to be understood as part of the long-term evolution of international criminal justice as a peace project. The conversation takes up the provocative proposition put forward in the article that the shift away from jus contra bellum considerations towards a primary focus on war crimes and crimes against humanity as the central theme of international criminal justice has diminished the urgency of preventing war itself. The interview was recorded at New York University.

 
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Are “Transparency” Procedures and Local Community “Consultations” Enough? A Human Rights “Feedback Loop” to International Economic Law Reforms of 2018

Published on December 12, 2018        Author: 

It is nearly the end of 2018, and so many “reform” efforts are underway throughout all realms of international economic law that one is inclined to think all our good intentions must lead somewhere, eventually.  There is an UNCITRAL Working Group for Reforming Investor-State Dispute Settlement (ISDS) that involves Member States, and to a different degree, academic inputs through the Academic Forum (see the blog’s series of posts on these authored by Anthea Roberts, found here, here, here, here, and here).  New trade agreements have been announced, such as the NAFTA renamed 2.0 version United States-Mexico-Canada Agreement (USMCA, recently discussed here by the Max Planck Institute’s Pedro Villareal and Franz Ebert), a renegotiated Korea-US trade agreement (details here), or the forthcoming entry into force of the US-less 11-nation bloc of the Comprehensive and Progressive Trans Pacific Partnership (CPTPP) on 30 December 2018 (see details here).  With the United States having changed its defense and leadership of the WTO and the multilateral trading system towards a policy of not shirking from initiating open bilateral trade wars to force renegotiations – such as the temporary trade truce with China (contents here) and tariffs slapped on the EU, Canada, and other allies (see Joseph Weiler’s ever prescient portents about the precarious US position here, and further discussions here, here, and here), it is not at all surprising that other States this year have been strategically realigning their economic partnerships, whether it be through deepening EU-Africa trade partnerships; Japan recently concluding a new trade pact with the EU; or more countries moving out of the Western orbit of economic influence towards China’s own expansive march with debt-financed investment projects in the Belt and Road Initiative; or China and/or India leading the state of negotiations at the pending 16-member mega-regional agreement, the Regional Comprehensive Economic Partnership (RCEP), allegedly set to be finalized by early 2019.  All these, apart from the uncertainties of securing any prospective UK-EU treaty, which, as of this writing is still up in the air after British PM Theresa May pulled back from forcing a catastrophic vote at the House of Commons (noting, of course, that the European Court of Justice issued a landmark ruling on 10 December 2018 declaring that the UK can voluntarily revoke Brexit).

Political expediencies and treaty negotiation pragmatisms aside, we have to wonder whether the “efficiency” of these developments will indeed result in “efficacy” or “effectiveness”, and for which constituencies of the international economic system.  Despite the multitude of public policy-driven reform efforts (such as expanding amicus participation, transparency guarantees, as well as public consultations in ISDS, setting out more detailed environmental and labor chapters in trade agreements, or announcing more infrastructure financing avenues for developing countries in new institutions and initiatives), what I have not seen in a year of attempted reforms is any deliberate shift towards broadening global economic governance beyond the usual voices at the negotiating table.  The same political, economic, intellectual, or social elites are crafting the new rules and institutions in the international economic system, with the contours of any local community consultations actually left to be operationalized according to the political auspices and national mechanisms of individual States.  To a great extent, this is understandable, since a relentless cacophony of voices might be anathema to achieving any final treaty text or clear institutional decision (e.g. the Aristotelian version of the tyranny of an extreme democracy).  But to a large extent, this “business as usual” approach remains just as discomfiting as the many paeans regularly being made these days (see here, here, here, for example), towards building in some kind of consultations process for local communities that are somehow intended to depict a “more inclusive” international economic system.  Is it enough that local communities are “being heard” by their respective States, or should the new rules and reforming institutions of the international economic system also start making sure that States are indeed listening?  

Once communities have been “consulted”, one way or another, where is the (hopefully objective and largely depoliticized) “feedback loop” that enables local communities to actually see what the State’s ultimate decision-making process has been with respect to reforming international economic treaties, decisions, and institutions?  That process remains shrouded in mystery – owing to the usual fictions of States claiming to need opacity during hard treaty bargaining.  I make the (rather obvious, but surprisingly still ignored) argument, in this post, that States’ human rights obligations to their populations make it imperative to build in a genuine “feedback loop” for any consultations or transparency procedure that may be contemplated in the continuing reform of international economic law.  A feedback loop is a necessary control mechanism in the communication process that enables communicants to verify whether their respective inputs or views have been used, recycled, revised, or discarded by the decision-maker.  To the best of my knowledge, this still doesn’t exist in the architecture of international economic law and its limited spaces for public participation.  There is “consultation” but no meaningful opportunities for communities’ real-time verification of what their States have promised, traded, conceded, or otherwise bargained at the negotiating table.

It is not enough that local communities just be “heard”, but we should all be properly informed of how community views translate (or not) into the State’s international economic decision, so as to ensure that communities can strategically and effectively participate as fellow constituents of the international economic system.  This is all the more urgent as States persist in these reforms through to the new year, when communities are, in the first place, at the frontlines of the international economic system’s felt impacts on environment, health, economic, social, cultural, civil, and political rights.  If there is any constituency that deserves the information on how States have been making all of these reform decisions, it is our communities who have to live through the consequences of these decisions, years after all the politicians and negotiators have come and gone.  With better information as to States’ actual international economic decisions coming from an actual “feedback loop”, communities are better empowered to choose (or reject) leaders who make these lasting decisions.  The “feedback loop” is thus central to a genuine right to self-determination, in its economic and political dimensions.

Read the rest of this entry…

 
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Response: Strengthening Justice for Victims Through Complementarity

Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

Many thanks to the editors and the contributors for making this online symposium possible. Our primary goal with Pressure Point was to identify whether and how the Office of the Prosecutor at the ICC could become more effective in pursuing its policy goal of encouraging national prosecutions through engagement at the preliminary examination stage.

But we also hoped that Pressure Point could play a role in bringing broader awareness about this dimension of the prosecutor’s work, and to stimulate others to consider how they might be able to contribute to efforts to spur national prosecutions as part of expanding the reach of justice. In this response, we address some key areas of agreement among the contributors while also addressing some differences in perspective or conclusions.

As we make clear in the report and as Emeric also emphasizes, pursuing national prosecutions is only a secondary goal of preliminary examinations, which primarily are focused on determining whether the ICC should exercise jurisdiction. When it comes to how the prosecutor should approach those determinations, it is clear there are a number of important considerations that go far beyond our report’s focus on positive complementarity. Carsten Stahn’s contribution here impressively covers that vast terrain, and brings in additional voices from the recently published Quality Control in Preliminary Examinations to set out a number of areas where further consideration is helpful. Read the rest of this entry…

 
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The Ethos of “Positive Complementarity”

Published on December 11, 2018        Author: 

Editor’s Note:This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

I am grateful to Dapo Akande and Mark Kersten for their invitation to contribute to this “symposium” on HRW’s valuable report on the impact of the preliminary examinations (“PE”) of the ICC Office of the Prosecutor (“OTP” or the “Office”) on national justice. I happen to respond to this invitation in-between “complementarity missions” to two countries selected as case studies by HRW, namely Colombia and Guinea. I therefore hope that my modest input will be seen as being informed by first-hand field experience in the practice of the Office’s “positive approach to complementarity.”

In past years, preliminary examinations have been recognized as a core OTP activity. They have thus become the subject of increased attention by multiple stakeholders and a topic of academic research. To an extent, this new scrutiny is a recognition of the relevance and importance of “PE activities” and has been partly triggered by the OTP’s own transparency as demonstrated by its annual reporting and open-door policy. Inevitably, however, increased scrutiny comes with increased criticism, which are always welcome when constructive and well-informed, less so when they are speculative or based on lack of knowledge and understanding of the OTP’s work in practice. In this regard, I am grateful to the HRW team for engaging substantively with the Office over the course of their project and for taking the time to better understand our modus operandi, as well as the challenges, dilemmas and limitations faced by the OTP in its endeavours.

While the HRW report offers a generally balanced and reasonable assessment, I do not share some of their findings. It is nonetheless comforting to read an acknowledgment of positive changes introduced in the OTP practice in the past years, particularly those under Prosecutor Bensouda’s tenure. It appears that the Office’s efforts to explain its policy and activities have borne fruit over time, as also recognized by the contributions of Sanchez and Stahn to this symposium. Read the rest of this entry…

 
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