Home 2010 November (Page 2)

Post-Conflict Justice Survey & Interviews

Published on November 9, 2010        Author: 

Have you worked in the field of post-conflict justice? Would you like the chance to share the story of your experiences?

If you have ever worked on issues relating to post-conflict rule of law or accountability for atrocities, you are invited to participate in a survey about your work experience. You can take the survey on-line in English here. Or if you would prefer to take the survey in French, click here. The survey, which is being conducted by yours truly, Professor Elena Baylis at the University of Pittsburgh Law School, should take only about 10-15 minutes to complete.

As thanks for participating in the survey, you will be eligible to win a $100 gift card. One of every 25 people participating in the survey will win. At the end of the survey, you will see a report summarizing the survey responses so far and indicating how your responses compare to those of other survey-takers. You will also be given the chance to request a copy of the final report of this research study.

We would also welcome the opportunity to talk to you about your post-conflict justice work. You will have the chance to volunteer for an interview at the end of the survey. Interviews will be brief (no more than 30 minutes) and can be conducted in person or over the phone.

The purpose of this research study is to learn about the work and career choices of people working on post-conflict justice issues and to examine what effect those choices are having on the development of the field of post-conflict justice. This is the first study to focus on the role of the people involved in post-conflict justice, rather than primarily on its processes or institutions. By participating, you will help us better understand this emerging area of the law — and have the chance to tell your story as well.

The survey is anonymous, and interviews can also be conducted anonymously if you wish. All individual responses are confidential and will be kept secure. The data from the survey will be reported only in the aggregate. There are no foreseeable risks to you from participating in this research study, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw from the study at any time.

If you have any questions about this study, or if you wish to volunteer for an interview or request a copy of the final report without taking the survey, you may contact me directly at ebaylis {at} pitt(.)edu

Filed under: Conference, EJIL Analysis
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Editorial: In this issue [Vol. 21: No. 3]

Published on November 5, 2010        Author: 

The latest issue of the European Journal of International Law has recently been published. A Table of Contents is available here on EJIL’s website

This issue begins with a symposium on treaty interpretation. The principal EJIL 20th Anniversary symposia were extra-systemic: looking at the way international law deals with the use of force or certain aspects of globalization.  For this issue of Volume 21, we chose a different tack. The aim was to hold a workshop with an ‘introspective’ focus, honing in on the processes of international law as a legal discipline. The goal was to re-examine a classical topic. The issue of treaty interpretation or re-interpretation immediately presented as both important and interesting.  Thus, a lively workshop on this topic was held last November in Florence.

Our panel of authors included George Letsas, Leena Grover, Lucas Lixinski, Isabelle Van Damme and Riccardo Pavoni. Luigi Crema also submitted a fine paper on this topic, which we later added. After much dialogue and revision, we are pleased to publish our symposia, The Interpretation of Treaties – A Re-examination.

Next, we publish three articles under our occasional series, Critical Review of International Governance.  In our last issue, we published three articles in this series from authors hailing from Ethiopia, China and Malaysia.  In this issue, all of our ‘Critical Review’ authors call Europe home and focus respectively on European institutions.  As with our last iteration of this series, however, we suspect you will find that in critically confronting the operations of a specific ‘global’ institution, these authors provide important contributions to broader debates on global governance. Here at the EJIL we often find that it is the confrontation with the particular that gives us a better understanding of the whole. The first is an article by Juliet Chevalier-Watts on investigations under Article 2 of the European Convention on Human Rights.  Next is an article by Frank Hoffmeister. The EJIL has long been interested in questions of state responsibility for internationally wrongful acts. Hoffmeister studies this issue through a new lens, examining how the European Union might bear responsibility for internationally wrongful acts, taking particular note of the International Law Commission’s draft articles on the attribution of responsibility to international organizations. Last we have an article by Anne-Sophie Tabau and Sandrine Maljean-Dubois that considers the relationship between the Kyoto Protocol System and the European Union.

We also publish in this issue a Review Essay by Sergio Dellavalle, which fleshes out the central arguments from a number of texts on the topic of global order.  All authors chosen by Dellavalle write within the universalist paradigm of international law.  This essay’s contribution is that it serves as an able guide to a number of recent distinctions within this mode of thought.

We conclude with a poem, Cosmos Assessed by Eric Stein.

Filed under: Editorials, EJIL, Journals
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Editorial: Copyright, Law Journals and a Romantic View of EJIL

Published on November 5, 2010        Author: 

For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either ‘forget’ to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed: ©JHH Weiler.

I remember the moment of change. The publisher in question was Walter De Gruyter, publisher of the multi-volume series Integration through Law, of which I was co-editor and in which I had published a couple of pieces myself. Some years later I wanted to photocopy one of the pieces for my students. University copy-centres in the USA take copyright seriously and requested a release from the publishers. I requested such from De Gruyters, who promptly sent it accompanied by a hefty bill. They owned, it appeared, the copyright on my work and were now re-selling it for a profit. (two years later I would presumably receive a 10% royalty on the fee I had paid….) Res ipsa loquitur.

Consider the raw deal we authors get from most legal publishers, including law journals. Typically you are asked in exchange for publishing your brilliant piece, the result of many months of research, drafting and redrafting, to cede your copyright to the publisher of the journal. Now make no mistake: law journals are a serious source of profit for publishers. The break-even point occurs at a remarkably low subscription rate. Internet publishing has made them even more profitable – as the ratio between paper subscription (with the heavy costs of production, warehousing and delivery) and the cheaper online-only version shifts to the latter. Internet journal publishing has given a considerable boost to another source of publisher income: online access to individual articles. In the past it was rare that a publisher would get a significant second bite at the apple. After all, how many permission requests for republication would come their way after the initial publication of an article in the printed journal? But now, with internet research there is an appreciable market for the one-of-a-kind-download-for-payment, which generates very considerable income for the publisher. You, the author, see none of this. The issue is not the money. It is the restriction of access to our work that rankles.

The prevailing fiction is that you give your copyright in exchange for publication, which does involve costs and which gives you fame and recognition. But that would be like saying that in exchange for exhibiting his or her paintings, an artist must actually give them to the gallery or museum as a gift. By simply allowing the journal to publish your piece, by giving them a licence, you are giving them something of value. People subscribe to the journal because enough authors of quality like yourself allow their work to be published therein. So on what ground should one be asked to give away, for ever, the intellectual property in one’s work? Read the rest of this entry…

Filed under: Editorials, EJIL

Bill Schabas on the African Union’s Proposal to Amend Article 16

Published on November 2, 2010        Author: 

Professor Bill Schabas has written on his blog  (see his post here) about the recent paper co-authored by Charles Jalloh, Max du Plessis and me on the African Union’s (AU) proposal to amend Article 16 of the ICC Statute (see earlier post on this paper here). Prof. Schabas was a member of the expert group convened by the Institute for Security Studies to provide advice and reflection on the paper and it was a pleasure to engage with him on the issue. As readers will see from his post, he is concerned about the tension that has arisen between African States and the ICC. He is also concerned that this tension arises out of what he would consider to be the misguided view that decisions regarding ICC prosecutions should be taken without reference to broader political considerations and in particular without reference to the effect of those prosecutions on stability and peace. He says:

Africa’s declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa’s tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only ‘further politicise’ the Court. But it is already politicised. I don’t see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is ‘independent’ and indifferent to political matters doesn’t make sense and doesn’t correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of ‘gravity’.

There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the ‘international justice community’. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.

In our discussions with the expert group one of the most contentious issues was the proper meaning to be given to Article 53 of the Rome Statute, which speaks of “interests of justice” as a factor to be taken into account in decision-making about ICC prosecutions. Read the rest of this entry…