Announcements: Paris COP21 Climate Change Conference; CfS Melbourne Journal of International Law; Conference on Non-State Actors; Vacant Positions at Columbia Law School; Concluding Conference of the MultiRights Project; PluriCourts Guest Researchers

Published on November 21, 2015        Author: 

1. Paris, COP21: Conference on Climate Change Related Disputes. The conference “Climate Change Related Disputes: A Role for International Arbitration and ADR” will take place during the COP21 in Paris on 7 December 2015. The event is a one-off jointly organised event by the IBA, the ICC, SCC and the PCA and will bring together multi-disciplinary experts in international arbitration, trade and investment, environment and climate change, as well as representatives from business, government, international institutions and bodies, including members of state negotiating parties, to discuss existing use of international arbitration and ADR mechanisms in resolving climate change related disputes. It will also explore new uses for contractual and investment treaty mechanisms and the role for arbitration and ADR in enforcing the UNFCCC principles and state parties’ underlying pledges. See here for further details.

2. Call for Submissions, Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 17(1). The deadline for submissions is 31 January 2016. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries can be directed to law-mjil {at} For more information please see here.

3. Conference on Non-State Actors. The ILA British Branch Spring Conference 2016 on “Non-State Actors and Changing Relations in International Law” will be held at Lancaster University on 8-9 April 2016. This conference will examine the changing role of non-state actors (NSAs) in international law and their impact on law-making, obligations, responsibility and dispute settlement. We welcome papers on this subject, which could include: (i) the nature and position of NSAs within the international legal system; (ii) their role with respect to the sources of international law, which may include their role in the formation of custom and in the conclusion of treaties; (iii) the source and scope of obligations for particular NSAs, such as businesses or corporations (e.g. sanctions, human rights, modern slavery), sporting bodies and organised armed groups; (iv) the potential responsibility of these actors and its relationship to state responsibility; (v) the position of these actors in dispute resolution and enforcement mechanisms; or (6) the special roles of NSAs in particular areas of international law, such as international environmental law, international economic law (including investment law), the international law of armed conflict, international human rights law and international criminal law. For further details see here. Abstracts of no more than 500 words should be submitted to j.summers {at} by 31 January 2016. Read the rest of this entry…

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EJIL:Talk! Is Now on Facebook

Published on November 20, 2015        Author: 

We are proud to announce the creation of the EJIL:Talk! Facebook page. EJIL:Talk! posts will show automatically on the timeline of those who ‘like’ our page. This new feature provides our readership with yet another platform on which to follow us – if you are on Twitter, you should already be following us there – , facilitates the circulation of our materials, and allows EJIL:Talk! posts to reach a wider audience.

We remain committed, of course, to providing academics and practitioners in all fields of international law with a site for top-notch legal analysis and a setting for high-level exchange with fellow international lawyers, less limited by the formal requirements and time constraints of the European Journal of International Law. We hope that this new feature will add to our community and facilitate the engagement of scholars, students, and professionals with EJIL:Talk!

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The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

Read the rest of this entry…

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Beneficial Ownership and International Claims for Economic Damage: Occidental Petroleum v. Ecuador and Restoring Limits to Investor-State Arbitral Tribunals’ Jurisdiction Ratione Personae

Published on November 16, 2015        Author: 

On 2 November 2015, the ICSID ad hoc Committee composed of Prof. Juan Fernandez-Armesto (Committee President), Justice Florentino Feliciano, and Mr. Rodrigo Oreamuno in Occidental Petroleum Corporation v. The Republic of Ecuador (ICSID Case No. ARB/06/11) partially annulled the massive US $1.769 Billion award of damages issued on 5 October 2012 by the majority of the arbitral tribunal (Mr. Yves Fortier, President, and Mr. David A.R. Williams) over the strong dissent of arbitrator Prof. Brigitte Stern. Agreeing with arbitrator Stern’s position that Occidental Petroleum had split its ownership to give a 40% ownership interest to a Chinese company Andes/AEC (Committee decision, para. 204), the ICSID ad hoc Committee whittled down the damages awarded to only reflect the actual 60% ownership of claimant Occidental Petroleum in the assets that Ecuador expropriated. The Committee’s decision significantly brought down the compensation value for the expropriation to the 60% as owned by Occidental Petroleum to US$1.061 Billion (Committee decision, paras. 586 and 590). The Committee treated the Chinese company Andes/AEC’s beneficial ownership of 40% of the expropriated assets as outside the scope of its jurisdiction over covered investors protected under the US-Ecuador BIT.

In issuing its landmark decision, the Committee stressed proscribed limits under the law of investor-State claims; the distinct confined mandate and authority of arbitral tribunals as derived from the creation and consent of States; and the ensuing narrow availability of the investor-State treaty arbitral system only to treaty-covered investors: Read the rest of this entry…

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Announcements: ‘Frontex – Legal Questions and Current Controversies’ Conference; Oxford International Organizations – Call for Rapporteurs; Extraterritoriality in Port State Jurisdiction

Published on November 14, 2015        Author: 

1.’Frontex: Legal Questions and Current Controversies’ Conference.  On Friday 27 November 2015, the Research Unit in Law at the University of Luxembourg will be holding a conference on ‘Frontex: legal questions and current controversies’. The conference will examine various legal issues concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and its activities.  The conference will bring together academics and practitioners from EU and international law backgrounds. Given the current refugee crisis and with Luxembourg currently holding the EU Presidency, the event could hardly be better-timed or placed. Speakers include: Prof. Guy S. Goodwin-Gill (Oxford), Dr Roberta Mungianu (Copenhagen), Florin Coman-Kund (Erasmus University Rotterdam), Zhena Zhekova (Luxembourg), Inmaculada Arnaez Fernandez (Frontex), Melanie Fink (Leiden), Pascal Schumacher (Luxembourg MFA), Prof. Richard Barnes (Hull), Dr Seline Trevisanut (Utrecht) and Dr Matilde Ventrella (Wolverhampton). Details about the conference and how to register can be found here.

2. Oxford International Organizations: Call for Rapporteurs. Oxford University Press and the Manchester International Law Centre (MILC) have been developing the structure of a database of annotated documents pertaining to the law of international organizations. This will include documents such as resolutions of international organizations, reports of legal advisers, judicial decisions, international agreements, or any other act of legal relevance. Applications are welcomed from those who would be interested in acting as rapporteurs for this project. Rapporteurs will have the task of identifying relevant materials and providing a short legal commentary on these documents. For further details, including required qualifications and skills as well as the process for application, see here. We hope to recruit not only scholars but also lawyers and legal advisers working in international organizations and those working for firms involved in related litigation. Read the rest of this entry…

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China’s View of International Litigation: Is the WTO Special?

Published on November 13, 2015        Author: 

Yesterday, Geraldo Vidigal put up a really interesting post looking at recent patterns of use of the World Trade Organization’s dispute settlement system. One thing that was particularly striking to me was the extent to which China has participated in the WTO dispute settlement system given its previous position on resolution of disputes by international tribunals. Geraldo’s chart of the latest 100 disputes at the WTO shows that only the United States, the EU and Japan have initiated more cases at the WTO in recent years than China (with Japan initiating just one more case than China in this period). Given that the WTO system is the most widely used inter-state dispute settlement system, it might not even be an exaggeration to say that: in terms of numbers of cases brought before international tribunals by states, China is one of the most enthusiastic state users of international tribunals! Of course, that enthusiasm is only before one particular system.

In October 2010 I posted here on EJIL:Talk a piece titled “Is China Changing its View of International Tribunals?“in which I noted that China’s view on international tribunals more broadly seemed to be changing. At the time, I noted China’s participation in the Kosovo Advisory Opinion at the ICJ, which was the first time that the People’s Republic appeared in oral hearings before the ICJ. I also pointed out China’s participation, around the same time, in the written and oral phases of International Tribunal for the Law of the Sea’s (ITLOS) first advisory proceedings –  the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber). In 2014, China submitted a substantial written statement in the Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) though it did not take part in the oral hearings.

Of course, we have non-participation by China with respect to the United Nations Convention on the Law of the Sea Annex VII arbitration initiated by the Philippines (in respect of which the tribunal issued an award on jurisdiction a couple of weeks ago). Read the rest of this entry…

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WTO: The First 500 Disputes and the Last 100 Disputes

Published on November 11, 2015        Author: 

Yesterday, the WTO dispute settlement system received its 500th formal request for consultations. Because members may only request a WTO panel after unsuccessful consultations, filing such a request is the first step in the initiation of WTO disputes. For this reason, the request for consultations, without being per se a contentious act, signals the willingness of the member requesting consultations to take a dispute to adjudication. Between 1995 and 2015, therefore, the WTO received almost 24 disputes a year – an impressive amount for a purely inter-state dispute settlement system. Confirming the tendency of increased participation of developing countries, the 500th request was filed by Pakistan and targeted a measure imposed by South Africa.

I took this opportunity to undertake a small and very simple (some might say crude) quantitative exercise: who are currently the main WTO litigators? If we go back to 1995, the US and the EU will clearly dominate (the WTO helpfully provides a map of disputes). However, China only joined the WTO in 2001, and Russia in 2012. Thus, a more helpful exercise is to look at the last few disputes. Read the rest of this entry…

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UN Climate Change Negotiations: Last Tango in Paris?

Published on November 10, 2015        Author: 

The Paris Climate Change Conference starting on 30 November 2015 is tasked to set the world on a path to address the greatest challenge to ever face humankind, by adopting a new climate agreement. It was hoped that agreement in Paris would bring an end to the impasse that has long affected international climate governance. However, the outlook for the conference is rather bleak. We are just a few weeks away from the conference, but Parties remain far from reaching any agreement. Negotiations under the body entrusted to draft the text of the Paris agreement, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), have abundantly shown that Parties’ views on how to tackle climate change still significantly diverge. At the end of the last ADP session before Paris, progress on the preparation of the text of the agreement remained limited. In fact, Parties even backtracked on the little compromise they had managed to achieve at earlier ADP sessions. This post reflects on the difficulties experienced in the work of the ADP and on their implications for the Paris conference.

Ever since 1992, Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have attempted to agree on measures to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent ‘dangerous anthropogenic interference with the climate system.’ The international scientific body entrusted to assess climate change, the Intergovernmental Panel on Climate Change (IPCC), has indicated that such a level requires keeping the increase in global annual average temperature below 2° C as compared with pre-industrial times. Over twenty years after its adoption, however, the UNFCCC has struggled to keep the world within the limits indicated by the IPCC. In fact, global emissions of greenhouse gases have anything but diminished.

The reason international climate governance has proven to be such an intractable affair relates both to the enormity of the challenge at hand, as well as to the gaping disparity in States’ capacity to tackle climate change. The main instrument adopted to stabilize greenhouse gas concentrations in the atmosphere under the UNFCCC, the 1997 Kyoto Protocol, fundamentally acknowledged this gap. Building upon a static differentiation between ‘developed’ and ‘developing’ countries, the Protocol imposed binding emission reduction targets only on the first. With ever growing emissions in emerging economies, like China and India, however, the IPCC has repeatedly flagged that both developed and developing countries need to reduce their emissions.

To make matters worse, political will behind the Kyoto Protocol has significantly faltered. Read the rest of this entry…

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New ESIL Lectures: Sicilianos, Pocar, Sacerdoti

Published on November 9, 2015        Author: 

Three recent ESIL Lectures are now available on the European Society of International Law’s Youtube channel, which may be of interest to our readers:

Linos-Alexandre Sicilianos, ‘The European Court of Human Rights Facing Europe in Crisis’, European Court of Human Rights, Strasbourg, 16 October 2015.

Fausto Pocar, ‘Freedom of Movement and the Migration Issue in the European Context’,  Belgrade Centre for Human Rights, 5 October 2015.

Giorgio Sacerdoti, ‘Le rôle de l’Organe d’appel dans la construction du droit international économique’, Centre de droit international et transnational (CDIT) de la Faculté de droit de l’Université Laval (Canada), 17 September 2015.

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Announcements: Pluralist Approaches to International Criminal Justice Conference; CEILA Inaugural Lecture; 3. Call for Papers: The Rapoport Center Human Rights Working Paper Series

Published on November 7, 2015        Author: 

1. “Pluralist Approaches to International Criminal Justice” Conference. On 7-8 January 2016, the Center for International Criminal Justice (CICJ) and the Faculty of Law, Vrije Universiteit Amsterdam will host a conference on pluralism and international criminal law. The event is held with the financial support of the Royal Netherlands Academy of Arts and Sciences and concludes the research project “Dealing with Divergence? National Adjudication of International Crimes” funded by the Netherlands Organisation for Scientific Research (NWO). The conference provides a platform for an interdisciplinary and critical debate on the methodological, institutional and cultural diversity in international criminal justice (see further information). Speakers include Elies van Sliedregt, Kai Ambos, Robert Cryer, Megan Fairlie, Kevin Jon Heller, Charles Jalloh, Frédéric Mégret, Sarah Nouwen, Nicola Palmer, Darryl Robinson, Carsten Stahn, Sergey Vasiliev, Alex Whiting, Harmen van der Wilt and others (programme). The conference will take place in the Tinbergenzaal, Het Trippenhuis, Kloveniersburgwal 29, Amsterdam. Attendance is free but places are limited. Please register before 28 December.

2. CEILA Inaugural Lecture: ‘EU Law and International Law in the 21st Century: Is the Court of Justice afraid of other International Jurisdictions?’ This lecture – the inaugural lecture of the newly established Centre for European and International Legal Affairs (CEILA) at Queen Mary School of Law –  will be given by Professor Maciej Szpunar, Advocate General at the Court of Justice of the European Union on Friday 13 November 2015. See here for further details and to register. The lecture will be held at Arts2 Lecture Theatre, Arts2 Building, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS. The lecture is being held to mark the start of the CEILA’s activity on the study and research of the relationship between International Law and EU Law. Professor Szpunar will be exploring the legal background surrounding the interaction between the Court of Justice and other regimes, addressing their frictions, synergies, and mutual impact, to offer a comprehensive account of their co-existence and point the way forward.

3. Call for Papers: The Rapoport Center Human Rights Working Paper Series. The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 – 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper. This process is designed to prepare papers for publication in academic journals or other venues. This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. Please see the submission guidelines here and  contact rcwps {at} law.utexas(.)edu with any inquiries.

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