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Home Archive for category "EJIL"

EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…

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Reactions to the Backlash: Trying to Revive the SADC Tribunal through Litigation

Published on August 5, 2016        Author: 

Introduction

In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.

At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.

Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)). Read the rest of this entry…

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The Importance of History in Understanding African Integration

Published on August 5, 2016        Author: 

We live in an era of international courts; since the explosion in international, regional and sub-regional organizations, the world has seen a number of these organizations create judicial organs to clarify treaty law and thus resolve any disputes between the parties to treaties and any disputes between private actors and their governments.

Africa came late to creating regional sub-regional courts – this being explained by the suspicion of domestic judges, and the belief that international relations were the preserve of the executive arm. However it is interesting to note that Africa’s sub-regional courts are the focus of a burgeoning scholarship with a particular stress on how they fit into the matrix of treaties, protocols and domestic politics of the states that have created them. Thus the paper by Alter, Gaathi and Helfer (AGH) – “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” – is a welcome addition to understanding Africa’s transnational judicialism.

However as exposed by AGH not all is plain sailing with attempts by member states of sub-regional organizations to undermine, if not dismember, the judicial organs they have created. The explanation by AGH is thorough; disassembling the intricate moves, legal, organizational and diplomatic, to gut courts in ECOWAS, SADC and the EAC. AGH focus on moves by Gambia, Zimbabwe and Kenya. They seek to explain why Gambia failed, Zimbabwe succeed and Kenya found itself somewhere in between success and failure. AGH provide a very sound analysis and I am of the view that their work carries out important spadework as dissecting the “backlash” against transnational courts is essential for those scholars, activists and policy-makers with an eye on deeper integration in Africa.

However, there is the need for further exploration to enable the understanding of the progress or otherwise, of transnational judicialism. Thus I suggest observers should widen the scope of the analysis set in motion by AGH. Read the rest of this entry…

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Comments on “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” by Karen J. Alter, James T. Gathii and Laurence R. Helfer

Published on August 4, 2016        Author: 

The article by Karen Alter, James T. Gathii and Laurence Helfer is instructive and, notwithstanding its considerable length, very readable. I learned a lot – about the three specific ‘court backlashes’, about the institutional setting in which the three courts under review operate, and about the factors determining the success or failure of ‘court-curbing’ – and felt engaged throughout. My comments are in three parts: First, I am making a fairly simple, perhaps banal, point that is implicit in the authors’ detailed research. Second, I mention factors that I felt could be relevant in assessing the success or failures of court backlash (but that are not the focus of the article). And third, I compare the three ‘African’ backlashes studied by the authors to the one that currently dominates debates in Europe, viz the backlash against investor-State dispute settlement (ISDS).

Proliferation and the new complexity of the international judiciary

 While Alter, Gathii and Helfer engage with the particularities of court design in three regional settings, their article brings home a fairly straightforward point: it shows how diverse and how complex the landscape of international courts and tribunals, in the present ‘post-proliferation’ era, has become. Of course, everyone today accepts that ICJ, ITLOS, ECtHR, etc. have been joined by ‘new courts on the block’. But I am less sure that a sufficient number of mainstream international lawyers working in the field of dispute settlement are really following through on this insight: So much of the disciplinary scholarship (and I certainly will not exclude myself here) remains focused on the ‘usual suspects’; and, with the exception of human rights, there still is precious little on the regional courts outside Europe. (Try ‘EACJ’ in the ppl.nl database – only two entries come up. And how many of EJIL: Talk!’s readers could have named the seat of the SADC Tribunal or of the ECOWAS Court in an international law pub quiz, or if Dapo Akande had taken the matter up in one of his trivia competitions?) Against that background, Alter’s, Gathii’s and Helfer’s scholarship – including but not limited to their current EJIL Article – is eye-opening because it takes the lesser-known courts seriously. And perhaps not only that: the present article, as well as Alter’s and Helfer’s earlier work on the Andean Tribunal, may suggest that in order to study the more important developments relating to international courts today we should be looking, not to Strasbourg, Geneva or The Hague, but to Abuja, Arusha and Quito. Read the rest of this entry…

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Backlash Against International Courts in West, East and Southern Africa

Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).

Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.

Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded. Read the rest of this entry…

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Discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer’s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 

This week we will be hosting a discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer‘s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. The article is the free access article in the new issue of the European Journal of International Law (Vol. 27, No. 2), which is now out. It offers an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent.

Karen J. Alter is Professor of Political Science and Law at Northwestern University, and a permanent visiting professor at the iCourts Center for Excellence, University of Copenhagen Faculty of Law. Alter is author of the award-winning book The New Terrain of International Law: Courts, Politics, Rightsand numerous books and articles. Her research focuses on the judicialization of international relations, and global capitalism and law.

Professor James Thuo Gathii is the Wing-Tat Lee Chair of International Law at Loyola University Chicago School of Law. His research and teaching interests include African national and international judiciaries, African regional integration as well as international trade and public international law. He has published two books with Cambridge and Oxford University Presses and over 80 law review articles and book chapters. His forthcoming book is The Contested Empowerment of Kenya’s Judiciary 2010-2015: A Historical Institutional Analysis, Sheria Publishing House, (2016).

Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a Permanent Visiting Professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen. Helfer has authored more than 70 publications and has lectured widely on his diverse research interests, which include the interdisciplinary analysis of international institutions, international courts, and international human rights law.

The article and the issues it raises will be subjected to scrutiny and further comment this week by Christian J. Tams, Kofi Oteng Kufuor and Erika de Wet. We are grateful to all of the participants for agreeing to have this discussion here.

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New EJIL:Live! Interview with Karen Alter on Backlash against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Karen Alter, Professor of Political Science and Law at Northwestern University, about the article she co-authored with James T. Gathii and Laurence R. Helfer, “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences”, which appears in EJIL, Volume 27, Issue 2. The video begins with a short discussion of Professor Alter’s experience as a political scientist entering the world of law, especially the initial reception to her work and the difficulties translating between the respective languages of these two fields. After an outline of the article, the conversation turns to the scientific dimension of the research. Professor Alter discusses how she and her co-authors set out to understand the dynamics of the politics of backlash, and why the sanction against the Court ultimately succeeded in the case of the SADC. The interview concludes with a discussion of the uncertain boundaries of the politics of backlash and plans for further research into other regional organisations as well as the International Criminal Court. The interview was recorded at the European University Institute.

We will be running a discussion on the article on the EJIL: Talk! blog this week.

We welcome comments and reactions to EJIL: Live!, as well as to our article discussion.

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New Issue of EJIL (Vol. 27 (2016) No. 2) Published

Published on July 27, 2016        Author: 

The latest issue of the European Journal of International Law (Vol. 27, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Karen Alter, James Gathii and Laurence Helfer’s Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We will be hosting a discussion of their article next week. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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EJIL: In this Issue (Vol. 27 (2016) No. 2)

Published on July 26, 2016        Author: 

This issue opens with a pair of articles that address questions of normative coherence and contestation in two central areas of international law. In the first article, Monica Hakimi and Jacob Katz Cogan address the presence of a puzzling incoherence in the legal regime relating to the use of force. Their article theorizes that this incoherence derives from the combination within the regime of two distinct ‘codes’, thus offering a useful framework for thinking through interpretive debates in the field. In our second article, Karen Alter, James Gathii and Laurence Helfer offer an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent. Their article usefully highlights the work of courts that may remain unfamiliar to many of our readers, while casting new light on a range of theoretical debates relating to international courts. Our EJIL: Live! interview with Karen Alter deepens the discussion.

The next three articles likewise address important questions of normative authority in international law. Nicole Roughan argues that international law’s claims to authority should be understood as claims to relative authority, dependent upon the relationships and interactions with other institutions. Elisa Morgera offers some conceptual clarity in the little-investigated notion of fair and equitable benefit-sharing, identifying shared normative elements from different regimes to help develop a common core to this concept. Finally, David McGrogan provides an incisive analytical framework for understanding both the growth of the culture of human rights indicators and its unintended consequences, showcasing the competing priorities of certainty and uniformity on the one hand, and experiential and conversational approaches on the other.

Our occasional series on The European Tradition in International Law returns in this issue, featuring a remarkably rich and varied collection dedicated to the controversial 19th-century Scottish jurist, James Lorimer. The collection opens with a short overview by Stephen Tierney and Neil Walker, highlighting the tension between Lorimer’s remarkable foresight in relation to a number of developments in international law, cast against his deeply embedded racial prejudice. This darker side of Lorimer’s legal science is examined further by Martti Koskenniemi, whose article considers the importance of racial hierarchies that underpinned Lorimer’s conception of statehood. Gerry Simpson traces the legacies of these attitudes in international law, including the extension of Lorimer’s hierarchies in legally codified power. Karen Knop likewise explores the continuing resonances of Lorimer’s thought in the present day, focusing in particular on his notion of ‘private citizens of the world’. Stephen Neff discusses Lorimer’s views on war and neutrality, highlighting the remarkable modernity of his approach in seeking a systematic global regulatory framework.

Roaming Charges in this issue features a photograph of pupils at the Jean Paul II High School, Kibera, Nairobi.

In the last article in this issue, appearing in our regular series Critical Review of International Jurisprudence, Katie Sykes explores the use of science in the emerging field of ‘global animal law’, through an analysis of two recent and important international legal decisions, the first by the Appellate Body of the World Trade Organization in the EC–Seal Products dispute, and the second by the International Court of Justice in Whaling in the Antarctic.

The Last Page in this issue, entitled ‘Reasons’, is by Liam McHugh-Russell.

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EJIL on Your Tablet or Smartphone

Published on July 26, 2016        Author: 

ESIL members will know that, following the decision taken at the 2015 General Assembly meeting, membership of the Society now includes an online subscription to EJIL and access to the EJIL app. The app, available for both Apple and Android systems, allows you to download and read the Journal on your mobile device – anywhere and at any time.

ESIL members can access the EJIL app in just a few, simple steps:

  1. Shortly after joining ESIL, you will receive an OUP customer ID number
  2. Go to exacteditions.com/print/ejil and enter that number plus your email address and choice of password
  3. The site will authenticate you as a user
  4. Go to the appropriate App Store (Apple or Android) and download the EJIL app
  5. When you reach the login page enter your registered email address and password

For ESIL members who wish to receive the print edition, a special reduced price subscription is available.

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