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Announcing the OPIL World Cup Challenge

Published on June 11, 2014        Author: 

In nearly 20 years of legal publishing nobody has ever sent me a proposal for a book on football and international law. It’s not like there is any lack of international legal issues to be addressed – dispute settlement, IP, workers’ rights, corruption – the list goes on.  Perhaps many of the issues are more matters of private than public law but with the ongoing blurring of that distinction it could equally be the case that the time is ripe for a thorough scholarly investigation.

In an effort to marry up interest in public international law and football, and also to provide a bit of a distraction from all the sports coverage, we have devised the Oxford Public International Law World Cup Challenge. The concept is straightforward; hopefully the questions are less so. The questions are all about international law, and the answer to each question is the name of a country, or two countries, contesting the World Cup in Brazil. There are 27 questions relating to the 32 countries. You can try to work out the answers using your existing knowledge and deductive logic and then when you get stuck do a bit of research to find the rest.

The answers to the questions, along with brief explanations as necessary, will be posted on the site upon the conclusion of the group stages, on Friday 27th June. Please feel free to contact me if you have any queries.

We sincerely hope you find the quiz stimulating and enjoyable. Who knows, I might finally get a book proposal that combines the world’s greatest pastime and…football.

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Trivia Answers: Cases Before Inter-State Tribunals Involving Examination of Witnesses [UPDATED]

Published on October 18, 2013        Author: 

My latest international law trivia question was:

In which other cases has oral testimony been given in proceedings at the International Court of Justice and other standing international tribunals dealing with inter-State cases?  In particular, in which ICJ or other inter-State case or cases has an expert or witness been subjected to cross-examination by the other party?

Semir Sali correctly pointed out four cases in which witnesses were called and examined at the ICJ. In the Corfu Channel Case – the first contentious case at the ICJ – several Naval officers were called as witnesses and were examined in chief and cross-examined.  Also, witnesses were called and examined in the ELSI case (US v. Italy). At the merits phase of  the Bosnia Genocide Convention case, both parties called a number of experts and witnesses. In particular, each side called very senior British military officers - General Dannatt and General Sir Michael Rose - to testify. Examination for Serbia was done by Prof Ian Brownlie QC and for Bosnia by Joanna Korner QC

As Semir Sali and Serena Forlati both point out, in the Nicaragua case (Nicaragua v US), Nicaragua called a number of witnesses to testify. However, as the US did not appear at the mertis stage, these individuals were not cross examined. Indeed it was Judge Schwebel that took on the task of probing these withnesses

Witnesses have also been called and examined at the International Tribunal for the Law of the Sea. as with the ICJ  this happened in the very first case at ITLOS - the MV Saiga Case (St Vincent v. Guinea)

One interesting feature that unites almost all of these cases is that in all but one of the cases mentioned here, examination and cross examination was carried out mainly by English barristers! The one exception is the ELSI case (US v. Italy) where examination and cross-examination was carried out by American lawyers on both sides (Abraham Sofaer for the US and Keith Highet for Italy).

UPDATE: Caroline Foster, who has done tremendous work on expert evidence in international tribunals, has posted a comment to my original post in which she points out other inter-state cases in which experts have been called as witnesses and cross examined. She refers to a number of inter-State arbitral cases as well cases at ITLOS and the WTO.  She also raises interesting questions about how international cases dealing with expertise should be handled.

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Trivia: Cases Before Inter-State Tribunals Involving Examination of Witnesses

Published on October 17, 2013        Author: 

Every now and again I ask trivia questions relating to international law. Previous questions (and answers) are available here. At the end of this post, I have my latest international law trivia question.

In the oral proceedings in the Whaling Case (Australia v. Japan; New Zealand Intervening) heard by the International Court of Justice (ICJ) this past June, there was a relatively rare instance of experts being called to testify at the ICJ by one party, giving oral testimony and also being cross-examined by counsel for the other party. The International Court of Justice is the “principal judicial organ” of the United Nations (Art. 92, UN Charter). Decisions from the Court are final and without appeal (Art. 60, ICJ Statute). These features mean that the Court is usually looked upon, quite rightly, as the leading judicial authority for statements of international law. However, it is important to realise that the ICJ is not only a final court but is also a court of first instance. Thus, the ICJ is both like a Supreme Court and like a trial court. However, though many cases at the ICJ require an element of fact finding, this is usually done on the basis of documentary evidence. It is not often the case that the fact finding is done on the basis of oral evidence given in Court.

Having scientific experts providing their opinion as testimony at the ICJ is in contrast to some previous cases (Gabčíkovo-Nagymaros Project (Hungary/Slovakia)) where parties have included scientific experts as part of their team of counsel rather than as witnesses. In the Pulp  Mills case (Argentina. v. Uruguay) (2010), the Court stated:

“Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court. [para. 167]

In the Whaling Case, Australia heeded this admonition and called Professor Mangel as an expert on June 27. He was examined in chief by Prof Philippe Sands QC, cross examined by Professor Vaughan Lowe QC and asked other questions by a number of judges of the Court. Now for my question:

Read the rest of this entry…

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International Law Trivia: The Winners

Published on October 28, 2012        Author: 

Readers will recall that last month I had a series of posts asking trivia questions relating to international law (see here). Many of those questions related to the practices of international tribunals and the International Court of Justice in particular. The questions had a special focus on voting practices at international tribunals. Before I started the series, I promised a prize for one person who was successful in answering the trivia questions. The prize is a years free subscription to the European Journal of International Law. I apologize for not getting round to announcing the winner till now. In fact we have two prize winners!

Our first winner is Tamás Hoffmann (left) who is Lecturer in law at the Corvinus University of Budapest, Hungary. Tamás has a PhD from ELTE Budapest and an LLM in Public International Law from King’s College London. He responded to most of my questions and got his answers correct. His depth of knowledge of ICJ and PCIJ cases is very impressive indeed.

Our second winner is Daniel Wisehart (right), licence en droit, First State Exam completed in 2012, who studied at the University of Potsdam and the Universié Paris Ouest La Défense. He is currently a PhD Candidate at the University of Potsdam and working as an associate with  Professor Robin Geiß on legal problems surrounding international drug control. Daniel also responded to most questions but we were particularly impressed with his response to my question on cases at the ICJ where no judge has issued an individual opinion (separate or dissenting). Not only was he able to give the answer with regard to the ICJ he also pointed out the position at the PCIJ, noting that in the 1920s most PCIJ decision were issued without individual opinions but that this changed in the 1930s. He then offered a reason why the practice might have changed. Tamas then followed up with a further explanation.

Congratulations to both of them!

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More Than Trivial: Dissent as Design Element

Published on September 27, 2012        Author: 

Jeffrey L. Dunoff (left) is Professor of Law and Laura H. Carnell Chair at Temple University.

Mark A. Pollack (right) is Professor and Jean Monnet Chair  in the Department of Political Science at Temple University.

Kudos to Dapo for triggering an entertaining and informative set of posts (also here, here and here)about the use of dissents in international courts.   The exchanges on this topic unearthed many little-known practices and long-forgotten cases. More importantly, we believe, these posts raise a deeper set of questions about the causes and consequences of dissent that international lawyers have paid insufficient attention to.

One puzzle is why international courts show such great variation in the use of dissents; ECJ opinions never have dissents, ICJ opinions are regularly accompanied by dissents, and WTO dispute reports rarely have dissents – although this norm has been evolving in recent years.  The puzzle only deepens when we consider the rationales offered to explain these varied practices. Dissent at the ICJ is frequently justified on the grounds that it helps to preserve judicial independence.  In Judge Huber’s words, dissents serve as “a guarantee against any subconscious intrusion of political considerations, and the judgments were more likely to be given in accordance with the real force of the arguments submitted.”  Ironically, however, in the ECJ context, it is the absence of dissent that is thought to preserve judicial independence, as a single collegiate opinion is said to shield judges from national political pressures. How can it be that the presence and the absence of dissent both enhance judicial independence?

More fundamentally, what factors drive the decision by states to allow or prohibit dissents in the statutes of international courts, as well as the subsequent decisions by judges to issue dissents or refrain from doing so?  And, what consequences flow from international judicial dissents, for judicial independence, collegiality, and the development of law? Read the rest of this entry…

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Trivia: Cases Where Judge Votes Against National State or Appointing Party

Published on September 20, 2012        Author: 

In international tribunals it is often the case that a judge will vote in favour of a State that appoints that particular judge or that a judge will vote in favour of their State of nationality where that State is involved in a case before the tribunal. Sometimes, the suggestion is made that these facts show that judges have some sort of bias in favour of their national State or in favour of the State or party that appointed them. This suggestion of bias might well be an overstatement given that, at least in the case of the ICJ, many times the national judge or ad hoc judge, though voting in favour of their own State or the State that apointed them, is also voting with the majority.

The case of Velkhiyev v. Russia, a decision of the European Court of Human Rights (from July 2011), is a very interesting one with regard to the question of how judges vote in cases involving their national State. In that case, the Court found by six votes to one that Russia had NOT violated Art. 3 of the European Convention on Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) with regard to 6 of the applicants in the case. The sole dissent on that question was Judge Anatoly Kovler the Russian judge! He would have found that Russia had violated that provision. So in this case, the judge voted against his State of nationality when the majority would have found in favour of that State. I suspect that this is very rare indeed. So my question today is:

Are there any cases when a judge in an international tribunal has voted against his or her national State or against the party that appointed him or her but where the majority of the tribunal would have found in favour of that State?

Read the rest of this entry…

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Trivia: Ad Hoc Judges in Agreement

Published on September 16, 2012        Author: 

Many international tribunals allow for States to appoint ad hoc judges in cases involving that State and where no national of the State is a judge on the Court. It is often said that these judges (and judges of the nationlity of parties)  vote in line with the State that has appointed them (or whose nationality they hold). This seems to be true in the majority of cases. However, it is worth nothing that (i) it is not true in all cases and (ii) in most cases the ad hoc judge votes together with the majority so it is perhaps not remarkable that they vote in favour of the appointing State.

However, this popular wisdom suggests that where there are two ad hoc judges appointed by opposing States in the case, the ad hoc judges will vote in opposite ways. This is probably true in the majority of cases, but it is not always true. This leads to my question:

In which cases before an international tribunal have ad hoc judges appointed by opposing States voted for the same result?

Obviously, I am including the International Court of Justice in the question but I would also include the International Tribunal for the Law of the Sea or any other tribunal in which opposing States can appoint ad hoc judges. I would also be prepared to accept as within the scope of my question cases in which an ad hoc judge appointed by one party voted for the same result as a judge of the nationality of the other party. Or even cases where judges that have the nationalities of opposing parties vote for the same result.

I realise that “voted for the same result” is a bit ambiguous. What I mean is that both ad hoc (or national) judges wanted the same outcome from the judgment. However, I don’t mean that both of them simply voted against the judgment because neither particularly liked it, though for different reasons. Also,  in cases where the tribunal’s dispositif may include several points, it is possible for ad hoc judges to agree on some of the minor points. What I really want to know is whether on core issues, the ad hoc judges have agreed.

I also have a follow up or bonus question:

Have ad hoc judges appointed by opposing States ever written a joint opinion with each other?

Read the rest of this entry…

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Cases in Which the ICJ/PCIJ Were Evenly Split

Published on September 10, 2012        Author: 

When I supplied an answer to my earlier trivia question on the ICJ case in which every judge appended an individual opinion, I asked a further question

In which other judgment (or opinion) has the ICJ or PCIJ been evenly split?

Remy was really quick off the mark in supplying the correct answers and identified that there had been two ICJ cases and one PCIJ case where the Court had been evenly split and the case was decided by the President’s casting vote.  In the ICJ era,  the  Nuclear Weapons Advisory Opinion (which was the answer to my first question) was the second case. The first was the very controversial decision of the ICJ in the South West Africa Cases (Ethiopia & Liberia v. South Africa), which was decided by the casting vote of Sir Percy Spender. In those cases, the ICJ held that Ethiopia and Liberia “cannot be considered to have established any legal right or  interest appertaining to them in the subject-matter of the present claims” – which concerned the observance by South Africa of its obligations under the Mandate for South West Africa (now Namibia).

This ripple effects of this decision were felt was for many years and in many ways – both institutionally and even in term of normative development of the law. African States turned away from the Court, in the 1970s and 80s,  largely as a result of this decision. Perhaps the International Tribunal for the Law of the Sea might not have been created had developing countries not been so dissatisfied with the ICJ. Sir Percy Spender was not re-elected to the Court and no Australian has been elected since (expect that to change soon!). Perhaps more importantly, the Court, in the Barcelona Traction case included the famous obiter dictum on the notion of erga omnes obligations. That dictum that was somewhat out of place in that decision. Perhaps, the Court included it as a way of overruling the decision in the South West Africa cases, implicitly. Just this year we have seen the first actual application of the erga omnes doctrine by the court in the Habre case (on which this earlier post by Joanna Harrington). A decision which shows how far we have come from the South West Africa cases

As Remy, Tamas and Thomas point out, the PCIJ was also evenly split in the Lotus Case [UPDATE: I forgot to mention that Daniel Wisehart also got it right. Apologies to him]. In that case, we had the “dissenting” judgment of 6 judges in which they rejected the passive personality principle (or “principle of protection” as they called it). The Corfu Channel Case (the ICJ’s first contentious case) was also mentioned but I don’t think the Court was evenly split at any stage of that case.

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Trivia: NO Individual Opinions by Judges at the International Court of Justice – UPDATED

Published on September 9, 2012        Author: 

Following my previous question on the ICJ case in which every judge has written an individual opinion, I have a question dealing with the opposite phenomenon:

In which International Court of Justice case or advisory proceedings have none of the judges involved in the case, appended an individual (or joint) opinion to a judgment or opinion of the Court?

In other words, in the case(s) or proceedings in question, there was only a single judgment - the Judgment of the Court. No judge wrote a separate opinion, a dissenting opinion or a declaration? Just to be clear, I am asking only about individual or joint opinions appended to judgments by the Court. By judgment, I mean a judgment either on the merits or on a preliminary objection regarding jurisdition or admissibility. I also include advisory opinions.  I exclude from the question orders on provisional measures or other procedural orders.It is quite common for there to be no individual opinions appended to orders on procedural matters. However, it is rare for the judges to be so restrained when it comes to judgments. Usually, one or more of them wishes to point out something that the Court’s judgment has not said or that they disagree with.

UPDATE: The answer I was looking for was indeed the Maritime Delimitation in the Black Sea (Romania v Ukraine) case (2009), which as far I know is the only “judgment” (in the sense used above) of the International Court of Justice which was not only reached unanimously but where no judge appended a separate opinion, dissenting opinion or declaration. Congratulations to Tamás Hoffmann.

But congratulations also to Daniel Wisehart who points out that there are several PCIJ cases that also fit this description. I have to confess I hadn’t looked into the PCIJ practice on this point. There was one case by the 3 judge Chamber of Special Procedure (which has not been used in the ICJ era) (see his comment below) relating to interpretation of a judgment – which does count as it is a case on the merits of that particular question. Daniel then goes on to make the make the point that between 1922 and 1930 there were several advisory opinions of the PCIJ (all reported in the PCIJ Series B) where no judge appended an individual opinion. In fact, the dominant practice in this period was to have the opinion of the Court without any individual opinions. However, this changed after 1930. From that point on, we see no more cases/opinions (reported in PCIJ Series A/B) without individual opinions or declarations. Daniel then says:

“What could be the reason for this. I would spontaneously guess that there could be two possible explanations. First, maybe the advisory opinions in the twenties were less politicized then today. This means they were really asked in order to get a legal answer – as it is done in France where the Conseil d’État advises the government on legal issues. Second, maybe the ”continental” background of judges in the Court made them more reluctant to append any declaration, since this practice derives from the common law system they were just not so familiar with it and did not want to weaken the authority of the Court. But this still would not explain why there was a shift in the thirties What do you think?”

A very interesting question indeed! Any answers by readers? Tamas had made some suggestions. Any other ideas? Read the rest of this entry…

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International Law Trivia Questions: Prize Offered! Individual Opinions by All Judges in an International Court of Justice Case – UPDATE WITH ANSWER AND FURTHER UPDATE

Published on September 4, 2012        Author: 

UPDATE: See below for updates with answer to the question posed below and to the further question asked below.

At the end of 2011, I had a series of posts asking some trivia questions regarding the International Court of Justice and international judges in general (see here, here, here, here and here). There seemed to be some interest from readers so over the next few days I will pose a few more trivia questions about international tribunals that might be of interest to readers.

This time around we will be offering a prize. At least one reader who is able to provide the correct answers to all the trivia questions I will be asking over the next week or two will receive a free year long subscription to the European Journal of International Law.

Today, my question is:

In which ICJ case or cases has every judge on the court appended an individual opinion to the Court’s judgment?

By individual opinion, I mean either a separate opinion, a dissenting opinion or a declaration. The questions asks about cases where every judge has appended an opinion so I am including ad hoc judges as well.

Read the rest of this entry…

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