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Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Published on January 3, 2017        Author: 

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order Read the rest of this entry…

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Most Read Posts 2016

Published on January 1, 2017        Author: 

Happy New Year to all EJIL:Talk readers! In many ways, 2016 was a remarkable year for international law. It is hard to pick a standout event or development but perhaps 2016 will be remembered as the year when international lawyers began to think seriously, across the board, about the legal processes relating to how states exit from international commitments. It is probably fair to say that international lawyers have spent far more time thinking about the processes by which international law obligations are imposed on states and other actors than on the processes by which those international law commitments might cease to be binding.  The UK’s Brexit referendum of June 2016 means we now have to think about how the UK unwinds from its membership of the EU. The notices of withdrawal from the ICC Statute by South Africa, Burundi, and the Gambia also raise questions about treaty withdrawal. Then the election in the US of Donald Trump raises the prospect of US withdrawal from a range of treaties dealing with climate change, trade and the Iranian nuclear deal. All of this might suggest that research into issues relating to treaty withdrawal would constitute a profitable research agenda for 2017! All of these were covered on this blog in 2016 but clearly there will be more to say.

I would like to thank all of our readers but also all of those who wrote posts on EJIL:Talk! in 2016! Below is a list of the posts that were most read in 2016. Some of these posts were written in earlier years.

20) After Trump: China and Russia move from norm-takers to shapers of the international legal order, Anne Peters (2016)

19) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller (2015)

18) A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism, Olivier Corten (2016)

17) Grand Chamber Judgment in Al-Dulimi v. Switzerland, Marko Milanovic (2016)

16) Russia and China Challenge the Western Hegemony in the Interpretation of International Law, Lauri Mälksoo (2016)

15) Turkey’s Derogation from the ECHR – What to Expect?, Martin Scheinin (2016)

14) On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap, Joseph Weiler (2016)

13) Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, Marko Milanovic (2010)

12) The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?, Dapo Akande (2016)

11) ICTY Convicts Radovan Karadzic, Marko Milanovic (2016)

10) European Court Decides Al-Skeini and Al-Jedda, Marko Milanovic (2011) Read the rest of this entry…

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Readings 2016: On the Fringes of International Law

Published on December 30, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have André Nollkaempe’s selection.

The five titles on my 2016 list of books relate to international law in very different ways. What they have in common is that they are not so much concerned with the substance of international law, but rather with questions relating to its emergence and the practical implications of international law. Sometimes books that hardly use the language of international law can be most illuminating for international lawyers.

Peter Wadhams, A Farewell to Ice. A Report from the Arctic (Allen Lane, 2016)

Peter Wadhams’ A Farewell to Ice masterfully shows how the liberties of international law impact on climate change and result in a thinning and retreating of polar ice with scary speed and consequences. Wadhams, a polar researcher in Cambridge, notes that ‘we have created an ocean where there was once an ice sheet’ and that this is ‘[m]an’s first major achievement in reshaping the face of his planet’. Wadhams pictures a particularly glooming scenario for 2035, when the Arctic seabeds – permafrost from the last ice age – will melt and release massive methane plumes that are over 20 times more effective in raising global temperature than all the CO2 we have focused on. The book sketches powerful images of floods, fires, droughts, storms, and inundation of low-lying areas –with dramatic consequences for human habitation and lives. While international law has facilitated and legitimized the policies leading to these consequences, Wadhams vests some hope in international law; he sees the Paris Agreement as a sign of common will to act. Yet, much more is needed to avert the gloomy consequences of climate change – mainly research and investment in new technologies (wind, wave, solar, tidal and nuclear energy) need to be incentivized. Post-US elections this is not a happy reading, but one that is needed to compel us to action.
Read the rest of this entry…

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Readings 2016: On Politics and Ethics and Love

Published on December 29, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have Jan Klabbers’ selection.

Alice Kaplan, The Collaborator: The Trial and Execution of Robert Brasillach (The University of Chicago Press, 2000)

Aristotle already knew that people are political animals. Yet, he also realized that people are ethical beings, and for him, there was no necessary conflict between the two: the ethically flourishing person was one who was intensely and seriously political. In our days, however, that understanding has all but disappeared, with much political debate collapsing into partisan positions where it is considered more important to keep the ranks closed and emerge victorious over opponents than doing the right thing or somehow finding a decent compromise. Whether on debates within Britain on membership of the EU, whether in US presidential elections, or whether in discussions in the ‘comments’ section on EJIL: Talk!, political debate is rarely genuine these days.

This is one reason why the story of Robert Brasillach is so interesting, and it is told extremely well in Alice Kaplan’s The Collaborator. Brasillach was a young French novelist, strongly drawn to Nazism before and during World War II, and seriously collaborating with the Nazis – so much so, that he would urge them not to forget to send children to the gas chambers as well. Not surprisingly, after the war he was prosecuted and found guilty of collaboration, and sentenced to death. At this point some people started a campaign to commute the death sentence and, again not surprisingly, many on the political left in post-war French refused to sign up. Read the rest of this entry…

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Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?

Published on December 28, 2016        Author: 

On 8 December 2016, in the case of Zihni v. Turkey, (App. No. 59061/16) the European Court of Human Rights (hereinafter “the Court”) rejected a second application arising out of alleged violations in Turkey in the aftermath of the attempted coup on 15 July 2016.

The Court’s dismissal of the complaint for failure to exhaust available domestic remedies (Article 35 of the European Convention on Human Rights – hereinafter “the Convention”) is consistent with its 17 November 2016 decision in the case of Mercan v. Turkey (App. No. 56511/16), so it came as no surprise. In the Mercan case, the Court similarly dismissed the application, which concerned the unlawfulness, length and conditions of a judge’s pre-trial detention in the absence of any evidence.

In Zihni v. Turkey, the applicant was suspended from his duties as a school’s deputy headmaster on 25 July 2016 and subsequently dismissed from public service, together with 50,874 other civil servants, by the list appended to the Decree no. 672 on 1 September 2016, on account of his alleged “membership of, affiliation, link or connection” to terrorist organizations.

The application before the Court in Zihni cited numerous rights violations: (1) lack of access to a court (Article 6, Article 13 and Article 15); (2) no punishment without law (Article 7); (3) violation of the right to respect for his family life (Article 8); and (4) discrimination on account of his dismissal (Article 14). Read the rest of this entry…

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Readings 2016: The Odds Are There to Beat

Published on December 27, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Today we have Jean d’Aspremont’s selection.

Every year, when we as Editors of EJIL conduct the retrospective (and somewhat introspective) exercise of looking back at the books we have read over the previous 12 months, I always find myself bewildered by the imbalance between the rather modest amount of books I have perused and the huge number of articles I have thoroughly digested. It seems that, in my own practice of consuming legal scholarship, the number of pages of legal literature I read in scholarly books is not commensurate with the substantially higher number of pages of journal articles. Although I am short of empirical data relating to such patterns of behaviour, I surmise that this may be a widespread reading practice among international lawyers. My feeling is that international lawyers read articles – not to mention blog posts and tweets – by the hundreds while seriously reading only a dozen books every year. This disproportion is not alleviated by the fact, already highlighted by Sarah Nouwen last year that we actually read very few books cover to cover.

This imbalance warrants some attention as I do not think that international lawyers’ substantially higher consumption of article-based legal scholarship over book-based literature can be explained solely by size. After all, many books nowadays are rather thin – which, in some respects, is a good thing! – and many articles, especially in the Anglo-American tradition, are rather lengthy – which, in some other respects, is regrettable. I also suspect that the imbalance between books and articles in the reading practice of international lawyers has not always been so great. I would guess that there were times when the legal literature read by international lawyers was more or less evenly spread between books and journal articles, not to mention the pre-periodical era when scholarship was exclusively found in books. Read the rest of this entry…

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Announcements: Emile Noël Fellowship Program; UN Audiovisual Library of International Law; Challenging Human Rights Disenchantment Conference; CfP Business and Human Rights – International Law Challenges, European Responses Conference

Published on December 24, 2016        Author: 

1. Emile Noël Fellowship Program Applications. The Jean Monnet Center at NYU School of Law is currently accepting applications for its Emile Noël Fellowship Program for AY 2017/18. A limited number of fellowships are available. The deadline for applications is 17 January 2017.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Mark Weston Janis on “The Invention of “International Law”: Jeremy Bentham and His 1789 Refashioning of the Classical “Law of Nations”” and Professor Susan Karamanian on “The Intersection of Public International Law and Private International Law”.

3. Challenging Human Rights Disenchantment Conference. The Sussex Centre for Human Rights Research is holding an interdisciplinary conference on 27 January 2017 on the subject of ‘Challenging human rights disenchantment 50 years on from the ICCPR and ICESCR’. Keynote addresses will be given by Sir Nigel Rodley (University of Essex), Mona Rishwami (UN Office of the High Commissioner for Human Rights), Andrew Clapham (Geneva Graduate Institute of International and Development Studies) and Pamela Palmater (Ryerson University, Canada). More information, including details about registration and conference fees, can be found on the conference website.

4. Call for Papers – Business and Human Rights: International Law Challenges, European Responses Conference. Transnational business activities are important drivers of growth for developing and the least-developed countries. However, they can also negatively impact the enjoyment of human rights. The relationship that exists between the development of business activities and the protection of human rights is addressed by international law. Moreover, as the parent companies of many multinational enterprises are incorporated on the territory of European countries, the latter’s domestic legislation and the EU legal framework are worthy of examination. This Conference, to be held on 29 – 30 May 2017 at the Università Degli Studi di Milano, aims at identifying the solutions offered in Europe to Business & Human Rights (B&HR) international law issues and at providing an overall assessment of their effectiveness. For further information, see here. The deadline for submission of abstracts is 31 January 2017.

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Ten Good Reads for Christmas – Editor-in-Chief’s Choices for 2016

Published on December 23, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalised accounts of the reading experiences of our Board members. We begin with our Editor-in-Chief’s selection.

As is now our custom, I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – seven in all – are actually all relatively recent. Though typically I list the books in no particular order, I make an exception this time for the first in the list, Philippe Sand’s East West Street.

Philippe Sands, East West Street (Knopf, 2016)

East West Street is simply a must read; forgive the cliché for a book which is the opposite of cliché. It is both a Law Book and Book about the Law, as the subtitle indicates: On the Origins of Genocide and Crimes Against Humanity. But it is so much more. It has novel-like qualities (and a very fine novel at that) in weaving together the lives of its various protagonists as well as being an altogether not kitschy personal roots exploration of the author, Philippe Sands himself. He is not only author but decidedly one of the protagonists. It is not exactly a page-turner – that would actually diminish the quality and achievement of Sands, but despite its considerable length, it is hard to put down. You will learn a lot, become wiser and be moved in more ways than one. Last year I sang the praise of Sebald. Sand’s book has Sebald qualities and there is no higher praise in my evaluative vocabulary.

Mario Vargas Llosa, Travesuras de la niña mala (Alfaguara, 2006)

Travesuras de la niña mala by Nobel Prize winner Mario Vargas Llosa was an easy choice, even if I typically prefer his essayistic writing to his novels. It is a very traditional novel in style – which is one of its attractions. You will not be struggling with post-modernist experimentation, which is wonderful when it works (not often) and awful when it does not (frequently). The story begins with the first love of a 14 year-old (the dates, at least, correspond to Vargas Llosa’s own time line). It is no less than marvellous the ability of a 70 year-old to describe with such delicate and empathetic precision the mental world of the young protagonist – el niño bueno – whose enduring love affair with the complex and compelling niña mala the novel tracks. Not a ‘masterpiece’ but a piece of wonderful writing by a master that will stick in your mind. Read the rest of this entry…

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Author’s Response: The Politics of Gender Justice at the ICC: Legacies and Legitimacy

Published on December 22, 2016        Author: 

I am immensely grateful to the EJIL:Talk! Editors for sponsoring this discussion and to Mark Drumbl, Patricia Viseur Sellers and Valerie Oosterveld for their thoughtful and detailed responses to my book The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. It is a true honour for me to have had these three esteemed international law experts carefully read and comment on my work. Their eloquent responses captured aspects of my argument better than I ever could, and I thank them for helping me to think more clearly about how the different facets of the book speak to various audiences, and the work that still needs to be done in understanding gender and other intersecting injustices under ICL.

I was heartened that both Patricia and Valerie responded favourably to my positioning as a ‘critical friend’ of the ICC, and the ICL feminist legal project more broadly. Immersing myself in the critical feminist law literature in recent years, I quickly realised many of its core critiques are similar to those of some feminist political scientists and sociologists who regard feminist engagement with ‘the state’ as a dangerous project, likely only to lead to co-option and shoring up a patriarchal institution (see my analysis of these debates here). While not dismissing the limitations, compromises, challenges, and indeed losses that can come with engagement with any aspect of the law – including ICL – I have also felt some unease with arguments that recommend rejecting the feminist legal project in its entirety. This comes from my deep pragmatic impulse. If gender justice advocates withdraw from engagement with powerful institutions – be they courts, state bureaucracies, or legislatures – these institutions won’t stop regulating our lives. Read the rest of this entry…

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Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes. Book Discussion

Published on December 21, 2016        Author: 

Louise Chappell unpacks how gender justice advocacy at the International Criminal Court contests the gendered legacies of international criminal law. Deploying a feminist institutionalist framework, Chappell provides an anatomy of these advocacy efforts in the establishment of the Rome Statute regime as well as in the ICC’s actual operations. Chappell offers a detailed road-map of gender at the ICC, and does so through a powerful (and seamless) synthesis of qualitative, quantitative, and expository methodologies. In short: her superb book is a must-read.

Chappell unfurls how gender advocacy nested within the ICC. The ICC, assuredly, is not an island. Concerns about gender justice animate the work of other international courts and tribunals. Both concurrently and previously to the ICC, these other tribunals advanced goals of equal representation in international institutions and criminalized acts of gender- and sexual-based violence. The ICTY, for example, confirmed in Furundžija that rape and other forms of sexual violence in armed conflict are war crimes. It also ruled that rape and sexual violence could constitute the actus reus of torture. The ICTR held in Akayesu that rape can constitute genocide as an act integral to the destruction of a group.  Furthermore, as Darryl Robinson and Gillian MacNeill note, in addition to defining rape the two ad hoc tribunals also ‘recognized many other forms of sexual and gender based violence, including sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature.’ The ad hoc tribunals also developed procedural rules of evidence that promoted gender justice by protecting witnesses who came forward to testify. Finally, the Special Court for Sierra Leone merits mention. Its ground-breaking work on sexual slavery and forced marriage as an ‘other inhumane act’ has informed the proceedings currently underway at the ICC against the LRA’s Dominic Ongwen.

Gender justice at the ICC cannot be disentangled from gender justice in the enforcement of international criminal law generally. Read the rest of this entry…

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