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Home Archive for category "EJIL Analysis"

ICON·S Conference; EJIL on your iPad!!!

Published on March 28, 2015        Author: 

ICON·S Conference  

The second conference of the International Society of Public Law (ICON·S), around the theme of ‘Public Law in an Uncertain World’, will be held in New York, at the New York University School of Law, on 1 – 3 July, 2015. The Call for Papers and Panels is open until 10 April 2015 and more information is available on the ICON·S website.

EJIL on your iPad!!!

We have ‘gambled’ and invested considerable resources, human and material, in developing a tablet version of EJIL. We believe a tablet version represents a perfect adaptation of one of our most important identity markers to the digital age and current reading habits.

The identity marker has two facets. The first is our huge commitment to a Journal which is not only edited but ‘curated’. For each issue we pay attention not only to the individual articles but to the ensemble. We try to make, in each and every issue, the whole greater than the sum of the parts, with careful, even loving, attention given to the construction of an interesting, rich and satisfying whole. Not just something of interest to different tastes and constituencies, but a more holistic concept of what a good journal issue should be and feel like. I have habitually extolled (and cajoled) our readers to actually pick up the hard copy of EJIL to enjoy the ‘book feel’ of each issue.

The second facet is our long-standing commitment to the aesthetics of publication. It is based on the premise that beauty is an integral part of the world of the mind. A well-written article, for example, has a beauty that stands independently of the content as well as enhancing such. We all spend a huge amount of time and effort on our research and writing, and EJIL believes that the result deserves a presentation that does justice to such effort. A beautiful painting deserves a beautiful frame. If you look at the paper version of EJIL you cannot fail to notice this commitment reflected in seemingly trivial details such as the quality of paper and print. OUP has been our wonderful partner in crime in trying to achieve this.

We are, however, aware that for many the paper version is at best a (beautiful) doorstop. Hence the tablet version of EJIL – capturing both the holistic and ‘wholistic’ sense of each issue as well as its aesthetic qualities.

A tablet version is quite different to ‘going online’. The entire issue downloads onto your tablet. You can then browse and read at leisure away from your desk. If you are like me, it is likely to be on some long flight. You can leaf through the issue or click a title in the ToC and skip to it.

To be clear, the tablet version will not replace the online access that subscribers are entitled to on the OUP platform or the free access to the EJIL archives (except for the current year) on the www.ejil.org site. Rather, it will offer a new and different reading dimension.

We gambled that the tablet version will be a huge success with many of our existing subscribers and will encourage many other readers to become individual subscribers.  Make no mistake: this initiative is not driven in any way by economic considerations. The individual subscription to EJIL is among the lowest in the field, if not the lowest, and has been kept constant for years. It is practically an at-cost price. You will also note that the difference between the individual subscription rate and the cost of membership in the European Society of International Law (ESIL) is negligible. All members of the Society are offered a subscription to EJIL. So my recommendation would be to use this occasion to become a member of ESIL and enjoy all membership benefits as well as a subscription to EJIL, including access to the new tablet version!

The app will launch with this issue of the Journal. In a first phase it will be available only for Apple devices. An Android version will follow shortly.  Access to content through the app will be limited to individual subscribers and ESIL members. Subscribers should visit www.exacteditions.com/print/ejil and enter their OUP customer ID number for authentication, then simply follow the links from that page to install the app to their device. New subscribers will receive full instructions from OUP.

For those attending the ASIL meeting in April, visit the OUP stand. There will be free access to the EJIL app in the vicinity.

 Finally, although we tested a beta version for several months there are bound to be some teething problems (please be patient) and ways to improve the tablet version. Do not hesitate to write to us.

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Filed under: Editorials, EJIL, EJIL Analysis
 

Response

Published on March 27, 2015        Author: 

First off, I’d like to express my sincere gratitude for the care and thoughtfulness with which Professors Tom Dannenbaum, Jan Klabbers, and Paul Stephan have engaged my article. Before turning to their individual commentaries, I want to briefly address one common theme in their remarks: that the link between IO legitimacy and IO reputation for compliance with international law can be quite complicated.

That’s absolutely right; after all, compliance with international law is only one facet of IOs’ legitimacy. Other facets include the morality of IOs’ actions (or omissions), IOs’ effectiveness in achieving the purposes for which they were created, and—especially in the context of technocratic organizations—their scientific and technical expertise.

In this article, I focused on compliance with international law because I was seeking to explain why the IO Responsibility Articles will have important practical consequences. That required explaining why IOs and their member states would pay attention to claims made in transnational discourse about IOs’ international obligations and possible violations. I argued that IOs would heed such discourse because it could threaten their reputations for complying with international law, and IOs have even more reasons than states do to cultivate those reputations. IOs that flout international law risk being perceived as illegitimate, and IOs that are perceived to be illegitimate will be less effective—and will face more obstacles to securing both financial support and cooperation from their member states.

I completely agree, however, that a fuller account of when and why IOs and their member states will be motivated to comply with international law would have to wrestle with the other facets of IO legitimacy—and especially the way they might be in tension with one another. Read the rest of this entry…

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UN Human Rights Council Adopts Resolution on a Special Rapporteur for Privacy

Published on March 26, 2015        Author: 

The Council today adopted by consensus the resolution on privacy in the digital age, which includes the creation of a new special procedure. Bearing in mind the wide scope of the right to privacy, this SR is sure to be a mega-mandate. The resolution is available here; Privacy International press release here.

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Reputation and Responsibility: Moving the Goalposts

Published on March 26, 2015        Author: 

Kristina Daugirdas renders an excellent exposition of a particular kind of argument about the development (us economics-oriented folk might say production) of international law. She focuses on the ILC’s Draft Articles on the Responsibility of International Organizations, a measure that some have criticized as premature. The degree of discomfort with the project that IOs have shown, however, might suggest (somewhat paradoxically) that its time has come, if only as a focus of debate. She illustrates the salience of the Draft Articles through the lens of the cholera crisis in Haiti, a matter that the United Nations has handled with all the finesse of a Fortune 500 CEO confronted horrific product liabilities.

Within the terms of her argument, Daugirdas succeeds in establishing her conclusion. The Draft Articles provide a defined and ostensibly neutral set of claims about responsibility and compensation. The absence of clarity in the international legal system about the content of the international law that IOs might violate, thus incurring responsibility, is not an impediment to talking about this. Debates about responsibility can contribute to the definition of primary obligations. Acts of reparation can reinforce the legal, rather than political and moral, nature of the obligation. An important means of inducing potentially responsible actors ‒ IOs ‒ to confront these claims is the impact of their actions on their reputation.

I do not want to push back against any part of Daugirdas’s argument. Rather, I want to use this opportunity to reflect a bit on the value ‒ and limits ‒ of two concepts on which her argument rests. Both transnational discourse and reputation present interesting problems that Daugirdas acknowledges, but understandably does not fully explore. My ultimate goal is to move the goalposts for talking about the processes involved in producing international law.

Transnational discourse. Let me posit that law making and law applying is largely a discursive process involving the manipulation of symbols to achieve verbal communication. In other words, talk matters a lot. This brute fact may frustrate the economically oriented, who usually prefer to look at preferences revealed by actions and may regard discussion as potential disinformation. No competent lawyer, however, can fail to attend carefully to the arguments made in the process of moving towards a legal outcome. Read the rest of this entry…

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Kristina Daugirdas, ‘Reputation and the Responsibility of International Organizations’

Published on March 25, 2015        Author: 

It has long been recognized by international lawyers of a more or less critical bent that one of the ways international law can be considered useful – regardless of the question whose idea of usefulness it serves – is that is provides a vocabulary for discussing things. Rules on use of force and self-defense may not solve conflicts, but provide a language (and often enough the most relevant language) for discussing the use of force. Rules on international trade may not solve trade conflicts, but help provide the relevant actors with a language in which to discuss whether tuna caught by means of driftnet fishing should be banned from markets or not. And even the rules on state succession, limited and few as they are, help facilitate discussions on what to do once a succession of states occurs.

In this light, Kristina Daugirdas’ main argument is hardly surprising. The point that the ILC’s articles on the responsibility of international organizations will play a role in what she refers to as ‘transnational discourse’ is both well-taken and well-crafted. Indeed, the evidence in support of that proposition is perhaps even stronger than she realizes: both before and after their adoption by the ILC, the articles have been referred to by international and domestic courts, including the European Court of Human Rights. That said, it is perhaps also useful to note that the International Court of Justice managed to avoid making any reference to the ILC articles in two recent decisions where a fleeting reference could have been expected: the 2011 judgment between Fyrom and Greece, and the 2012 advisory opinion on the International Fund for Agricultural Development. Still, on the topic at hand, the ILC’s articles are the main authoritative instrument available, so it stands to reason that participants in transnational discourse make reference to it, and look at the articles for inspiration and guidance, regardless of whether the articles are formally binding or can be said to reflect customary international law.

If her general point is not all that surprising, the more interesting part of Daugirdas’ article resides in the combination she makes of two distinct approaches to the study of international organizations. She draws inspiration both from constructivism (highlighting the relevance of norms) and rational choice theory (assuming actors to be inspired by rationalist motives in the pursuit of their self-interest), and does so to good effect. In itself, this combination too is not entirely novel: Ian Hurd and Ian Johnstone have done something similar in recent years (to name just two examples), and one of the Ur-texts of constructivism, Fritz Kratochwil’s Rules, Norms and Decisions (1989) was to a remarkable (and oft-forgotten) degree also inspired by rationalist insights. That said, in his later work Kratochwil seems to have lost some confidence in that kind of reasoning – or maybe he just lost confidence in some of its practitioners. Read the rest of this entry…

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A UN Special Rapporteur on Privacy – Why Now?

Published on March 24, 2015        Author: 

As the 28th ordinary session draws to a close this week, the UN Human Rights Council is expected to consider a proposal to create a new UN Special Rapporteur on the right to privacy. The draft resolution, spearheaded by Brazil and Germany and supported by a broad group of states, is the latest of a series of initiatives to bring the right to privacy firmly within the UN human rights agenda.

If established, the Special Rapporteur would provide much-needed leadership and guidance on developing an understanding of the scope and content on the right to privacy, as well as strengthening the monitoring of states and companies’ compliance with their responsibility to respect and protect the right to privacy in their laws, policies and practices. In the last two years, the UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy, particularly in light of the challenges of modern communications.

Read the rest of this entry…

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Legality, Legitimacy, and Member State Cooperation in International Organisations

Published on March 24, 2015        Author: 

Is an international organisation’s (IO’s) compliance with international law essential to its legitimacy? And, even when a link between compliance and legitimacy obtains, is member state cooperation with the organisation contingent on its legitimacy? Might the answer to either of these questions vary systematically by organisational type?

In a rich and important contribution to understanding the dynamics of a relatively young area of international law, Professor Kristina Daugirdas offers a transnational legal discourse framework to understand why IOs comply with international law and the vital role that the Draft Articles on the Responsibility of International Organizations (DARIO) can play in that process. She supplements this with a granular, compelling account of the theory in action in the transnational struggle to hold the UN to account for the cholera epidemic in Haiti.

As I understand it, Kristina’s account of the IO accountability process (exemplified by the Haiti case) goes something like this:

  •  The legitimacy of an IO depends on its compliance with its international legal obligations.
  • By bringing clarity and specificity, the DARIO expand the quality and quantity of transnational legal discourse on IO responsibility, catalyze clarity on the primary obligations of IOs, and therefore tighten the link between IO compliance and legitimacy.
  • The legitimacy of an IO is essential to the IO’s success in generating the cooperation and support of its member states.
  • IOs will act so as to ensure that cooperation and support.
  • In light of (1)-(4), the DARIO can sharpen and enhance IOs’ incentives to comply with and uphold both the primary and secondary rules of international law.

My comments focus on step (1) – the tie between legality and legitimacy, and step (3) – the claim that from IO legitimacy, member state cooperation follows. Both are crucial to Kristina’s theory and to her assertion that IOs are likely “even more sensitive” to transnational discourse than are states. However, I suspect that IOs may vary considerably in the degree to which they conform to either step. Understanding that variance and what explains these relationships when they do obtain is essential to grasping the scope of the theory and its implications for the role of the DARIO. Read the rest of this entry…

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IO Reputation and the Draft Articles on IO Responsibility

Published on March 24, 2015        Author: 

In 2011, the International Law Commission adopted a set of draft articles on the responsibility of international organizations. Like the ILC’s draft articles on state responsibility, the IO Responsibility Articles seek to clarify both the circumstances that establish a breach of an international obligation and the consequences of responsibility, including the obligation to make full reparation for injuries caused by such violations.

The IO Responsibility Articles have come in for a lot of criticism from legal scholars. José Alvarez, for one, has described the ILC’s effort as ‘at best premature and at worst misguided’. In his view, the IO Responsibility Articles are premature, partly because there is not nearly enough practice to warrant their codification, and partly because the primary norms of international law that bind IOs remain unsettled. In particular, there’s considerable disagreement on how and when IOs are bound by customary international law and by treaties to which they are not parties.

Scholars—including Jan Klabbers, who is participating in this online symposium—have also questioned whether the IO Responsibility Articles would have any practical effect. They rightly note that the IO Responsibility Articles have elicited no substantial support from states and IOs. Although the ILC’s draft articles have often formed the basis for treaty negotiations, there’s no chance that the IO Responsibility Articles will be transformed into a treaty anytime soon. Furthermore, except in rare cases, neither international nor national courts can assess whether IOs have violated international law. Under these circumstances, one might be forgiven for thinking that the IO Responsibility Articles can safely be ignored.

I am more optimistic about the IO responsibility articles; I argue that they are neither premature nor feckless. In fact, the IO Responsibility Articles can help to clarify the primary international law norms that bind IOs. The IO Responsibility Articles may also spur IOs and their member states to prevent violations and to address violations promptly if they occur. And that’s so even if the IO Responsibility Articles never become a treaty and even if no new dispute-settlement mechanisms are developed. Read the rest of this entry…

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The Power of Citizenship Bias

Published on March 23, 2015        Author: 

Cross-posted on Lawfare.

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.

general attitudes to surveillance

 

In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers

We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

ingroup bias

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

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Human Rights Implementation: Our Shared Responsibility

Published on March 22, 2015        Author: 

After excursions to Interlaken, Izmir and Brighton, Council of Europe states meet again this week, in Brussels, to discuss further reform of the Europe-wide human rights system. Taking their turn to chair the Committee of Ministers of the Council of Europe, the Belgian government has decided to focus attention on the implementation of judgments of the European Court of Human Rights.

Such an emphasis is very much to be welcomed, as it remains the obvious Achilles heel in the human rights system. In its report last year on the ‘Brighton Declaration and Beyond’, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) lauded the Court for its ‘extraordinary contribution’ to the protection of human rights in Europe. It went on, however, to deplore the way states respond to the Court’s judgments, noting that ‘the prevailing challenges facing the Court, most notably the high number of repetitive applications as well as persisting human rights violations of a particularly serious nature, reveal a failure by certain High Contracting Parties to discharge their obligations under the Convention’.

The statistics show the weight of the burden that this is creating. At the end of 2013, there were more than 11,000 unresolved cases pending before the Committee of Ministers (CM) (which has the role, under the Convention of supervising the implementation of the Court’s judgments). The latest CM annual report on the execution of judgments also acknowledges the increasing proportion of unresolved cases which concern systemic or structural issues – just under 1,500 such ‘leading’ cases were still outstanding in December 2013. These cases relate to endemic problems, such as poor prison conditions, violations arising from the restitution of property, the non-execution of domestic court judgments and the excessive length of proceedings, the excessive use of force by state security forces and systemic failings as regards the functioning of the judiciary.

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