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Evidence in Environmental/Scientific Exceptions: Some Contrasts between the WTO Panel Report in China-Rare Earths and the ICJ Judgment in Whaling in the Antarctic

Published on April 7, 2014        Author: 

Rare earths imageTwo significant international decisions involving environmental protection claims were issued within the last few days of March 2014.  On 26 March 2014, a World Trade Organization (WTO) Panel issued its Report in China-Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (hereafter, China-Rare Earths), which held, among others, that “China may not seek to justify the export duties it applies to various forms of rare earths, tungsten, and molybdenum [pictured above left, credit] pursuant to Article XX(b) [exception for measures "necessary to protect human, animal or plant life or health"] of the GATT 1994.” (Panel Report, para. 8.11b)  On 31 March 2014, the International Court of Justice issued its Judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (hereafter, the Whaling case) where the Court held, among others, that “the special permits granted by Japan in connection with JARPA II [Japanese Whale Research Programme under Special Permit in the Antarctic Phase II] do not fall within the provisions of Article VIII, paragraph 1 [, of the International Convention for the Regulation of Whaling." [Judgment, para. 247(2)].  In China-Rare Earths, China sought to justify export duties that facially violated Paragraph 11.3 of China’s Accession Protocol to the WTO, by essentially alleging that these duties were justifiable as measures “necessary to protect human, animal, or plant life or health” within the purview of Article XX(b) of GATT 1994.  In the Whaling case, Japan sought to justify JARPA II as a programme “undertaken for purposes of scientific research and is therefore covered by the exemption provided for in Article VIII, paragraph 1, of the [International Convention on the Regulation of Whaling].” (Judgment, para. 49).  While both decisions contain rich analyses of numerous issues of treaty interpretation, one can also look at significant methodological contrasts between the ICJ and the WTO Panel on the treatment of scientific evidence and assignment of evidentiary burdens for the environmental/scientific issues in each case.

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Announcements: The UK and the ECHR Conference at Leicester; EJHR Anniversary;

Published on April 5, 2014        Author: 

1. The UK and European Human Rights: A Strained Relationship? College Court, Leicester, 23-24 May 2014. This two-day conference will focus upon the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights. This will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It seeks to contribute to on-going debates in the UK, and elsewhere in Europe, about the relationship between the European Court of Human Rights and national courts, which at times seems to be (perceived as) particularly antagonistic in the UK.  The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs and the media, and academics in the field. More information here.

2. The European Journal of Human Rights was launched in early 2013 as a response to the new pathways through which human rights evolve. International treaties and new laws continue to matter. But the development of human rights has become, first and foremost, the result of a dialogue between courts, at all levels — international, regional and national –, and other human rights bodies, who contribute to shape the “common law” of human rights in an organic, networked fashion. The Journal therefore aims to encourage doctrinal thinking and dialogue across legal venues, highlighting how concepts and ideas migrate from forum to forum, permanently reshaping human rights law. Under the supervision of Professor Olivier De Schutter, its Editor-in-chief and currently the UN Special Rapporteur on the right to food, the Journal publishes high quality review articles which are systematically submitted to a “double-blind peer-review” mechanism. For more on the Journal, which welcomes submissions either in French or in English, please visit the website — or write to bruno.hardy {at} uclouvain(.)be.

3. The Human Rights Centre at the University of Essex is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014.  Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice.  Strong methodology is also a central requirement in order to secure funding.  Yet, we often focus on the substance of human rights without sufficient attention to the methods used.  This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids.  Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research.  The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights.  It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students.  To find out more, visit: www.essex.ac.uk/hrc/summerschool.

4. The Human Rights Centre at the University of Essex has launched the Essex Human Rights Centre Blog which is dedicated to the inter-disciplinary discussion of the theory and practice of human rights. The blog is intended to provide a forum whereby practitioners and academics from different disciplines can learn about each other’s research, work, and activities. By enabling the discussion of contemporary and enduring human rights challenges from the perspective of different disciplines and fields of expertise, it hopes to facilitate the identification of new and innovative approaches to the challenge of securing human rights: it is hoped that a multi-disciplinary forum will promote inter-disciplinary thinking. For more information, please visit the welcome post.

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The International Society for Public Law – Call for Papers and Panels

Published on April 4, 2014        Author: 

On 26-28 June 2014, in Florence, the European University Institute and NYU-La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON•S).

We invite all our readers to submit proposals for either individual papers, or even more ambitiously, proposals for panels which, if selected, will be presented at the Inaugural Conference. Full details, modules for submitting proposals and for registering for the conference may be found at the society’s website. Registration for the Inaugural Conference includes the first annual membership fee in ICON•S and a free one-year online subscription to ICON, the International Journal of Constitutional Law.

  • Why create a new international learned society – are there not enough already?
  • Why public law – if we typically teach Constitutional Law, Administrative Law, or International Law (and now the much à la mode Global Law)?
  • And why does the word “comparative” not feature in the title of the new Society? Surely if we bring together constitutionalists from, say, Japan and Canada or administrative lawyers from Italy and Turkey – their common language will be Comparative Law?

The initiative to create an International Society of Public Law emerged from the Editorial Board of I•CON – the International Journal of Constitutional Law. For several years now I•CON has been, both by choice and pursuant to the cartographic reality of the field, much more than a journal of comparative constitutional Law. I•CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered, to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also – and increasingly so – scholarship that reflects both legal reality and academic perception; scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. That kind of remapping of the field is apparent also in EJIL. Its focus remains of course international law, but the meaning of international law today will often include many elements of the above. Read the rest of this entry…

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Van Gend en Loos – 50th Anniversary

Published on April 3, 2014        Author: 

Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to ‘celebrate’ Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of papers which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.

This symposium illustrates, if an illustration were needed, the rationale that underlies the creation of the new International Society for Public Law. It also marks a publishing innovation for us: there is a single Table of Contents of the Symposium in EJIL and I•CON. But the articles are split between the two journals. It was not always easy to decide which should be published in either journal but this joint venture enabled us to bring to print a larger than usual symposium.

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Yanukovych Confirms He Invited Russian Intervention

Published on April 2, 2014        Author: 

In an interview with AP today, the ousted Ukrainian president Viktor Yanukovych confirmed that he invited Russian military intervention in Ukraine. Readers will remember the Russian ambassador waiving of a letter to that effect in the Security Council, without actually making the copies of the letter available. I may be wrong, but I think this is the first time Yanukovych actually admitted that he made the invitation (which does not mean, of course, that it was legally valid, or that the invitation, such as it was, extended to the annexation of Ukrainian territory):

Putin said last month that Yanukovych had asked Russia to send its troops to Ukraine to protect its people — a request seen as treason by many Ukrainians. Asked about the move, Yanukovych said he had made a mistake.

“I was wrong,” he said. “I acted on my emotions.”

A mistake, was it? I’m sure there must be some equivalent for ‘no backsies’ in Russian.

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Filed under: EJIL Analysis, Use of Force
 
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Vital Statistics

Published on April 2, 2014        Author: 

It is my custom to publish in the first issue of the year some of our vital statistics for the year ending. One particular vital statistic concerns the number of downloads of EJIL articles in any given year. To be clear, we measure the number of downloads of all EJIL articles, not just those published in the year in question. The latest stats we have are from 2012, which saw 512,000 downloads. It is up from 400,000 or so in the previous year. It is an astonishing figure provided by OUP and I asked that it be audited. They stand by their figure. The large number is explained by two factors: a sizeable number of EJIL articles are used in classrooms and in course packs and reading lists – resulting in thousands of downloads around the world by students. And of course our ‘near’ open-access policy, whereby all articles more than a year old become part of our free archive, is another critical factor. Be that as it may, if you publish in EJIL you are likely to be read and often used in the classroom; if you read EJIL, you are in good, if crowded, company (unless you have the habit of downloading and not reading – certainly cheaper than photocopying and not reading).

I have already expressed my scepticism of the various ‘bibliometrics’ of journals in an earlier Editorial (23 EJIL (2012) no. 3) I find the much touted ‘impact factor’ most laughable, skewed as it is by the number of articles you publish per annum – the fewer, the better you are likely to do. We get penalized by our large number of shorter pieces – debates, reactions, critical jurisprudence and critical governance rubrics and the like. Much more significant would be the number of citations. This is not laughable but still earns my chagrin since the databases are so skewed in this instance towards the American domestic legal journal market and ignore for the most part citations in non-English language journals. No sour grapes here: we do very well regardless.

Various outfits run these stats. I believe the most serious and intelligent is that put out by Washington and Lee University in the United States, as a service to authors trying to choose publication venues which will give most exposure to their articles. It explains the vagaries of Impact Factor and offers a ‘combined’ score of citations (66%) and ‘impact factor’ (33%). In its class (specialized, refereed) EJIL is number one among non-USA legal journals. In overall ranking (US and Non-USA) it ranks 4th in terms of citation and 10th in its combined score. (Ohio State Journal of Criminal Law – a very worthy journal, used I imagine by a zillion American criminal lawyers, ranks as number 9 – you get the point). Read the rest of this entry…

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Roll of Honour

Published on April 1, 2014        Author: 

We wish to thank the following colleagues who generously gave their time and energy to EJIL as external reviewers in 2013. Naturally, this does list does not include the dedicated members of our Editorial Boards and our Associate Editor.

Philip Alston, Antony Anghie, Helmut Aust, Asli Bali, Lorand Bartels, Tim Buthe, Graeme Dinwoodie, Abby Deshman, George Downs, Angelina Fisher, Mónica García-Salmones Rovira, Richard Gardiner, Bryant Garth, Matthias Goldmann, Peter Goodrich, Andrew Guzman, Laurence Helfer, Robert Howse, Ian Johnstone,  Jan Klabbers, Jan Komarek, Martti Koskenniemi, David Kretzmer, Dino Kritsiotis, Nico Krisch, Jürgen Kurtz, Brian Lepard, George Letsas, David Luban, Christopher MacLeod, Lauri Mälksoo, David Malone, Carrie Menkel-Meadow, Frédéric Mégret, Tzvika Nissel, Angelika Nussberger, Sergio Puig, Donald Regan, Stephen Schill, Gregory Shaffer, Thomas Skouteris, Anna Sodersten, Alan Sykes, Michael Waibel, Steven Wheatley

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Quantitative Empirical International Legal Scholarship

Published on April 1, 2014        Author: 

Wearing my hat of Editor-in-Chief offers occasionally a better vantage point to spot trends compared to the reader of individual issues. One has the pipeline in view as well as the huge number of articles which are submitted and which we are unable to publish. One distinct trend is the increased number of articles submitted making use of quantitative data and analysis. In this issue we publish Dia Anagnostou and Alina Mungiu-Pippidi, ‘Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter’, with a Reply by Erik Voeten. In the pipeline are articles by Sergio Puig, ‘Social Capital in the Arbitration Market’ (watch out for this one – it will resonate, I am sure); Cecily Rose and Shashank Kumar, ‘A Study of Lawyers Appearing before the International Court of Justice, 1999-2012’; and Thomas Schultz and Cédric Dupont, ‘Investment Arbitration: Promoting the Rule of Law or Over-Empowering Investors? A Quantitative Empirical Study’. And these are just a few of many more that have been submitted. Time will tell whether this becomes a regular ‘thick’ part of international legal scholarship.

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Subsequent Practice in the Whaling Case, and What the ICJ Implies about Treaty Interpretation in International Organizations

Published on March 31, 2014        Author: 

Today the ICJ delivered its long-anticipated judgment in the Whaling Case (Australia v. Japan: New Zealand Intervening), finding Japan’s whaling program in breach of the Whaling Convention on several counts. It is a rich judgment, which will be more fully digested over the next few days.

In this post I want to draw attention to one specific point on the ICJ’s approach to the interpreting the Whaling Convention – specifically the Court’s approach to subsequent agreement and practice in relation to its prior advisory jurisprudence on the interpretation of the U.N. Charter. The relevant aspect of the Whaling Judgment concerns the Court’s assessment of the weight of resolutions issued by the International Whaling Commission (IWC).

The IWC is a supervisory body established by the Whaling Convention. It has the capacity to amend certain provisions of the Convention by three-fourths majority vote (though amendments will not bind any State Party that objects). It can also render non-binding recommendations. The Court indicates at the outset that while such resolutions are non-binding, when “they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention.” (¶46). The Court notes that the Commission has amended the Convention several times, and that “the functions conferred on the Commission have made the Convention an evolving instrument” (¶45). Read the rest of this entry…

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ICJ Decides the Whaling in the Antarctic Case: Australia Wins

Published on March 31, 2014        Author: 

This morning the ICJ delivered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court did not want to define with particular precision, it was still not conducted for the purposes of scientific research, and thus violated Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The Court took a number of factors into account in making this determination, including: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects. The determination in the Court’s view required an objective standard of review, rather than a deferential one which would take the state’s professed objectives at face value. It thus found that bearing in mind the design of Japan’s programme, its minor scientific output etc,  it was not set up for the purposes of scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling permits and refrain from authorizing new ones under the current whaling programme.

The judgment summary is available here, the judgment itself and a number of separate opinions here. We will have more coverage of the case in the week to come.

 

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