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The Report of the Brazilian Truth Commission: Late Truth without Justice?

Published on January 19, 2015        Author: 

On 10 December 2014, almost 30 years after the Brazilian military dictatorship (1964-1985) had come to an end, the “National Truth Commission” (“Comissão Nacional da Verdade”, CNV), established on 18 November 2011, presented its Final Report following an investigation that lasted two years and seven months (from May 2012 to December 2014). The Report comprises three volumes with a total of 4400 pages. The CNV consisted of seven members (“Conselheiros”)*, who were supported by over 200 research staff. The Report describes the human rights violations committed between 1946 and 1985 in great detail, listing both perpetrators and victims. The third section of the first volume of the report lists as the four most important violations of human rights: (1) unlawful and arbitrary detentions; (2) systematic torture using physical and psychological methods (proven for at least 1843 of an estimated total of over 20,000 victims) as well as rape and sexual assault; (3) summary, arbitrary and extrajudicial executions or other forms of state murder; (4) enforced disappearance and concealment of the victims’ bodies. The report ends with 29 recommendations and four conclusions which are translated into English for the first time with this post (see appendix below). This post provides an brief overview of the report as well as an evaluation of the work of the CNV. On the whole, the report constitutes a laudable, albeit limited effort to cope with Brazil’s dictatorial past and it may hopefully contribute to changing the still dominant authoritarian mentality in the country and strengthen its democratic institutions. 

Overview

The first volume of the Report has 18 chapters and was written jointly by all members. Here the CNV provides a detailed description of those human rights violations considered to be particularly significant due to their cruelty; these were committed mainly between 1964 and 1985 under the rule of the military junta who had carried out the 1964 coup d’état. The CNV describes the dictatorship’s functioning and bureaucratic structure, including its many repressive agencies (and the various police services (“Polícia Civil, Militar e Federal”), which made the systematic commission of human rights violations possible in the first place. Apart from the extremely powerful national secret service (“Serviço Nacional de Informação”, SNI), which reported directly to the president, each ministry had its own secret service. The Commission also details the close cooperation between the militaries of the Cono Sur (Argentina, Brazil, Bolivia, Paraguay and Uruguay) as part of so-called Operation Condor and the training of the Brazilian military by foreign agencies, particularly by the “United States Army School of the Americas”.

The second volume contains Commission members’ individual contributions on human rights violations against particular groups and institutions (including members of the military (!), workers, farmers, the Church, indigenous peoples, universities, homosexuals) and on business people’s collaboration with the dictatorship. Read the rest of this entry…

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Announcements: Martens Summer School in Estonia; Summer Human Rights Courses in Greece; Int’l Law Lecture Series in London; Conference in London on Sexual Violence in Conflict; CfP and Agora Proposals for ESIL Conference in Oslo; Seminar in London on Pluralism

Published on January 17, 2015        Author: 

1. The 4th Martens Summer School on International Law will be organized by the University of Tartu in Pärnu, Estonia, on 26-31 July 2015. The focus of the Martens Summer School is on comparative inetrnational law and human rights, particularly in the context of Russia and the Eurasian region. In 2015, Professors include Kirill Koroteev, lawyer of the Moscow’s NGO Memorial and expert on human rights law in Russia, Alexander Trunk and Marina Fedorova-Trunk, both experts on international economic law and dispute resolution in Eurasia, and Ineta Ziemele from the Latvian Constitutional Court (until recently judge in the European Court of Human Rights). We particularly encourage to apply graduate and postgraduate students in international law and political science who conduct research on Russian and Eurasian matters. The course director is Professor Lauri Mälksoo from the Unievrsity of Tartu, whose monograph “Russian Approaches to International Law” will be published at Oxford University Press in March 2015. For more information see here.

2.  The Kalliopi Koufa Foundation on the Promotion of International Law and Human Rights organizes the inaugural session of the Thessaloniki Summer Courses on International Law and Human Rights from 1 to 10 July 2015 in Thessaloniki, Greece, on the topic of “International Aspects and Issues of Energy Law”. The programme is open to advanced law students, researchers and practitioners. The Faculty of this 10-day intensive course on international energy law includes Catherine Redgwell (Oxford), August Reinisch (Vienna), Andreas Ziegler (Lausanne), Andrea Bjorklund (McGill), Anastasia Strati (Brussels), Danae Azaria (UCL). For more information including registration deadlines, applicable fees and the provisional programme, please visit here.

3.  ‘International Law in a Troubled World’ – Lecture series from the University of Greenwich. The University of Greenwich’s School of Law’s six-lecture evening series (delivered by Professor Steven Haines, Chair of Public International Law at the University of Greenwich), continues with ‘Protecting Education in Armed Conflict’ on Wednesday 21 January 2015. (Please see the recent press release concerning Professor Haines’ work in this area). Following ‘Protecting Education in Armed Conflict’, the remaining lectures in the series include ‘Refugees and Asylum Seekers: Rights and Obligations’ (Wednesday 18 February 2015), ‘Bringing Criminals to Justice’ (Wednesday 4 March 2015) and ‘Law and Order at Sea’ (Wednesday 1 April 2015). For further details and tickets, please contact lawevents {at} gre.ac(.)uk. Read the rest of this entry…

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Double Duty at the ICC

Published on January 12, 2015        Author: 

After days of speculation, the clouds have begun to clear over Palestine’s strategy at the ICC. Ever since the Security Council rejected a draft resolution on December 30, 2014 designed to upgrade Palestine’s status to full Member State of the UN and imposing a 12-month deadline on a negotiated solution to the Israeli-Palestinian conflict, the media overwhelmingly reported that Palestine signed the Rome Statute. Yet there was no word on the ICC website and no official information confirming these reports.

The uncertainty grew as the holidays came to an end. Finally, on January 5th, the ICC issued a press release. Contrary to all expectations, however, it appeared that Palestine had submitted a declaration under Article 12(3) of the Statute on December 31st. When using this procedure, states confer jurisdiction to the Court on a one-time, ad hoc, basis. By using this procedure, states do not become party to the Rome Statute, the founding document of the International Criminal Court.

Read the rest of this entry…

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Announcements: Workshop at Brunel; International Society for Public Law Conference in New York; EJIL: Live! Extras; CfP: Palestine Yearbook of International Law; The Hague YB of International Law – CfP; Call for Applicants for Harvard Human Rights Program; CfP for Conference in Berlin on FTAs and Democratic Standards

Published on January 10, 2015        Author: 

1.  The Centre for International and Public Law (CIPL) at Brunel University London is delighted to invite you to a Reflective Workshop on the International Criminal Court (ICC). The workshop, supported by the International Human Rights Law Review – www.brill.com/hrlr and Brunel Law School, will be held in the Moot Court Room at Brunel Law School, London (UK), on 28 January 2015, 2:00 pm – 5:00 pm. The workshop is entitled “International Criminal Court in Action” and will include presentations by researchers on the ICC chaired by Professor Manisuli Ssenyonjo (Professor of International Law and Human Rights). The workshop will take the form of presentations, a round table discussion with questions from the Chair and the floor. It will be followed by refreshments. Attendance is free. Further details and abstracts are available here.

2.  The 2015 ICON·S Annual Conference will take place on July 1-4, 2015, at New York University (NYU) School of Law in New York City. The Call for Panels and Papers will be published by February 28, 2015. More information will be available soon on the ICON·S website. The International Society of Public Law (ICON·S) was officially launched in June 2014 at an Inaugural Conference sponsored by the European University Institute and NYU School of Law in Florence, Italy. The conference featured a keynote address by Jeremy Waldron, plenary papers by Robert Keohane, Ruth Rubio Marin and Joseph H.H. Weiler, and hundreds of participants in concurrent panels on all subjects in public law. Presided by Sabino Cassese, ICON·S emerged from the Editorial Board of I·CON—the International Journal of Constitutional Law. The ICON·S Executive Committee includes Sujit Choudhry, Gráinne De Búrca, Ran Hirschl, Bing Bing Jia, Susanna Mancini, Phoebe Okowa, Michel Rosenfeld, Ruth Rubio Marin, Hélène Ruiz Fabri, Anne van Aaken, and Joseph H.H. Weiler.

3. In case you missed it, 3 episodes of EJIL:Live Extra! are available for viewing. EJIL: Live Extras! are shorter, in-a-nutshell, episodes of EJIL:Live addressing a variety of topical and interesting issues.  The available episodes are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL), on the first 10 years of ESIL. Read the rest of this entry…

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The History of International Law – or International Law in History? A Reply to Alexandra Kemmerer and Jochen von Bernstorff

Published on January 8, 2015        Author: 

Can international law scholars be historians, and should they be? This question, arguably at the centre of Alexandra Kemmerer’s post, might initially seem surprising. At first glance, most research on the history of international law does not reveal any major differences between the disciplines. Lawyers of a historical bent are just as familiar with, and adept at, the methodical standards of the historiographical approach, encompassing proximity to and critique of sources, transparency in terms of the approach and the assumptions made, insight into the historian’s own subjectivity and into the construed nature of all narratives.

If, nonetheless, there does exist a communication gap between the respective examinations of the history of international law, then this is attributable less to these kinds of methodical requisites and more to the fact that it isn’t always very clear why we are interested in international law and why we undertake research on it. Evidently, the discourses within the legal and historical disciplines on the state of the art in the field do not run parallel to one another; indeed they may in fact be incommensurable. What might help is an interdisciplinary dialogue, particularly when it is understood that interdisciplinarity is not about adopting the objectives of another discipline but instead debating the potential scope – and the limits – of one’s own work.

This might help us to understand why international law’s much-discussed ‘historiographical turn’ has gone largely unnoticed by professional historians. This is starting to change, but a programmatic mapping of contemporary research, as undertaken in the formidable Oxford Handbook of the History of International Law, clearly shows how much the research is still indebted to legal discourse. Or take the German Studies on the History of International Law, a series set out to contribute to the discussion of the historical foundations of the current international legal order. It seems that despite the recent interest in fashioning a global history and in the postcolonial turn, as discussed on this blog by Jochen von Bernstorff, little has really changed. In other words: lawyers, even when working on historical topics, are predominantly interested in understanding the law itself. This, of course, is a legitimate source of scholarly interest for jurists — but historians might find something lacking. Read the rest of this entry…

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German International Law Scholarship and the Postcolonial Turn

Published on January 7, 2015        Author: 

International law scholarship from the German-speaking world has an impressive and much-invoked theoretical tradition. Nineteenth century German positivism centring on the will of the state as the formal basis of law (Jellinek and Triepel) made a lasting impression on modern Western international law scholarship and also induced two highly influential in depth critiques of Staatswillenspositivismus just after the First World War, those of Kelsen and Schmitt. These were contributions to the theoretical construction and critique of an international law moulded in European capital cities and expounded in European universities, an international law whose influence could be felt in almost every corner of the world by the end of the 19th century.

European colonization and land appropriation and in particular through economic intervention, in which the German Empire played a significant role in the last two decades of the 19th century, led not only to the establishment of global capitalist structures and the spread of European lifestyles, but also to the so-called ‘universalization’ of European international law (on the latter see the entries in the Oxford Handbook of the History of International Law and the critiques of these). From the very beginning, colonized societies made a variety of efforts to resist the invading economic exploitation, racist violence and socio-cultural hegemony. This resistance was also directed against the European international law and in particular against institutions and norms that served to reinforce the political and economic dominance of the West.

The postcolonial challenge

It’s no coincidence that this postcolonial struggle for a new international law reached its initial global peak during the era of decolonization (1955-1975) and was shaped by renowned international law authors from the Third World, many of whom had themselves taken part in anti-colonial liberation struggles (of particular note here are EliasAnandAbi-SaabBedjaoui). A second global wave of postcolonial criticism of international law has emerged since the mid-2000’s and is often identified with Antony Anghie’s pioneering book Imperialism, Sovereignty, and the Making of International Law. From the perspective of the Third World, the thread that unites this line of criticism is the continuity of asymmetrical North-South relations after decolonization: the South as an ongoing object of intervention by the North and a global economic order that remains fundamentally unjust. Read the rest of this entry…

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Völkerrechtsgeschichten – Histories of International Law

Published on January 6, 2015        Author: 

This is the first of a series of posts on the history of international law that first appeared in German language on the new international law blog voelkerrechtsblog.com, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here. Further posts in the series will be published here shortly.

The history of international law comes in plural forms, and with multiple perspectives. International law does not have a history; it has histories. Martti Koskenniemi writes about ‘histories of international law’. His book ‘The Gentle Civilizer of Nations’ played a significant role in international law’s ‘historiographical turn’ around the turn of the millennium. Before this point, all had been rather quiet on the international legal history front. Back in 1952, the history of the discipline had been described as the ‘Cinderella of the doctrine of international law’ by Georg Schwarzenberger. The Cold War marked an ice age for the history and theory of international law. Pragmatists were dominant not only in practice, but also in scholarship. And ‘The Epochs of International Law’ by Wilhelm Grewes, published in German in 1984 and in English translation in 2000, were still firmly rooted in the pre-San Francisco era.

The study of international law has always involved historical and geographical background knowledge. Yet, the real move toward historical reflection only came with the growing awareness of the inadequacies of the ‘New World Order’ that had evolved after 1989. The emergence of new international institutions, the rapid proliferation of international and supranational courts, new human rights regimes and the blossoming of international criminal law were all soon overshadowed by Srebrenica, 9/11, transnational terrorism and the global financial crisis. The ‘fragmentation’ of the international legal order, the collision and competition of various normative orders, prompts questions about concepts and genealogies. Read the rest of this entry…

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Towards a Constitutional Law Framework for Investment Law Reform

Published on January 5, 2015        Author: 

Reforming international investment law and investor-state arbitration is a widespread concern. This is nowhere more manifest than in the heated debates (in Germany and elsewhere) about the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). Should there be investor-state arbitration between economies with well-functioning legal systems? Do we need an appellate mechanism to control arbitral tribunals? Who should serve as arbitrator and what ethical standards govern? And how should the substantive standards of investment protection be formulated in order to safeguard policy space for host states? These are some of the questions debated. At the same time, reforming international investment law is not only on the agendas of contracting parties, it also plays an important role for international organizations, such as the United Nations Conference on Trade and Development (UNCTAD), the Organisation for Economic Co-operation and Development (OECD), or the Southern African Development Community (SADC).

The Need for a Normative Framework for Investment Law Reform

The reform proposals that result from these various initiatives reflect the political pressure international investment law is facing; they also put pressure on states to remedy the discontents with the current system (see my earlier post on EJIL: Talk!). At the same time, the large number of reform proposals currently floated risk fragmenting investment law even further. This can be counterproductive if the aim is to arrive at an investment law regime that is both balanced and predictable. Furthermore, reform proposals themselves reflect underlying political and ideological preferences that may not be globally shared. What is needed therefore is a debate about these preferences and their impact on investment law reform. In other words: we need a broader debate about the normative framework for investment law reform.

As I argue in my Editorial of the latest Special Issue of the Journal of World Investment and Trade (entitled ‘Towards Better BITs? – Making International Investment Law Responsive to Sustainable Development Objectives’), this framework should not be seen only as a matter of (potentially short-lived and changing) economic policies that differ from one country to another. Instead, we should develop a framework for investment law reform on the basis of more fundamental principles, in particular if we are looking for ‘systemic reform’ that makes international investment law acceptable to all states. This requires – as Karl Sauvant and Federico Ortino rightly point out in a recent study – consensus-building processes about underlying assumptions and objectives for investment law reform. Read the rest of this entry…

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Announcements: Conference at Univ. of Hull on Customary International Law; Roundtable in London on Benefits and EU Law

Published on January 2, 2015        Author: 

1.  The McCoubrey Centre for International Law at the University of Hull will host a two day conference on 2 and 3 July 2015 on the topic of customary international law entitled “Making International Custom More Tangible”. The conference will be held at the University of Hull (UK) and will include panels chaired by leading academics and a key note speech by Sir Michael Wood, ILC Special Rapporteur on the Identification of Customary International Law. The conference is particularly aimed at research students and early career academics. Interested participants should provide an abstract of 500 words by 15 February 2015. Further information including the call for papers and facility for the online submission of abstracts are available here.

2.  Benefits and EU Law – Round table discussion. The City Law School is delighted to invite you to a debate organized under the aegis of the Jean Monnet Chair in European Law. The topic is Benefits and EU law – the law behind the story. The round table will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law). Speakers will be  Professor Damian Chalmers (LSE), Professor Niamh Nic Shuibhne (University of Edinburgh), Mrs Jacqueline Minor (Head of EU Commission Representation in UK), Professor Philippa Watson (City Law School and Essex Court Chambers). The event will be held at City  University London, College Building, St John Street, Room A130 on Monday, 26 January 2015 at 18:00. The event will take the form of a round table discussion with questions from the Chair and the floor. It will be followed by a wine reception. Attendance is free. You may sign up here.

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Our Most Read Posts in 2014

Published on December 31, 2014        Author: 

This has been another successful year for EJIL:Talk as readership of the blog continues to grow. We are grateful to you, our readers, for coming back to us again and again. A new addition to the European Journal of International Law this year has been the introduction of EJIL:Live! which is a series of video and audio podcasts released at the same time as the publication of each quarterly issue of the Journal. The video and audio episodes feature an in-depth discussion between the authors of one article that appears in the issue and EJIL’s Editor in Chief, Joseph Weiler. I have to say, on a personal note, that I have thoroughly enjoyed those discussions. To my mind, the spoken word, and the back and forth of dialogue, adds much value to the written text in the journal. They greatly enrich critical understanding of the author’s argument and also of the area in which it is situated. The authors not only explain the argument in their article, but also discuss the inspiration and motivations for writing the piece. In the discussion, the arguments are not only explored and challenged, but the authors are also pushed to explain the significance of the argument – why does it matter? how does it matter? There is much to be gained from listening or watching. In addition to discussion with authors, the audio podcasts also include a variety of news and reviews (including discussions from or about the blog).

EJIL: Live Extras! are shorter, in-a-nutshell, episodes which address a variety of topical and interesting issues. Earlier this month 3 episodes of EJIL:Live Extra! became available for viewing. They are interviews with Aharon Barak, former President of the Israeli Supreme Court on the Israeli Supreme Court’s approach to standing and justiciability; Brian Leiter, University of Chicago on whether freedom of religion deserves special protection; and André Nollkaemper, President of the European Society of International Law (ESIL) on the first 10 years of ESIL.

Below are our 20 most read posts of 2014. As is apparent from simply glancing at the list, Russia’s intervention in and subsequent annexation of Crimea was the issue that generated most interest among our readers this year.  We wish you a very Happy New Year and a happy 2015!

1. Daniel Wisehart, The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

2. Nico Krisch, Crimea and the Limits of International Law

3. Christian Marxsen, Crimea’s Declaration of Independence

4. Dapo Akande, The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

5. Jure Vidmar, Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

6. Douglas Guilfoyle, So, you want to do a PhD in international law?

7. Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy

8. Philip Leach, Ukraine, Russia and Crimea in the European Court of Human Rights

9. Lauri Mälksoo Crimea and (the Lack of) Continuity in Russian Approaches to International Law

10. Dapo Akande, Appeal from the Ukrainian Association of International Law Read the rest of this entry…

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