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New EJIL:Live! Joseph Weiler and Robert Howse Discuss The World Trade Organization 20 Years On: Global Governance by Judiciary

Published on May 5, 2016        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Robert Howse of the New York University School of Law, about his EJIL Foreword article, “The World Trade Organization 20 Years On: Global Governance by Judiciary”, which appears in EJIL, Volume 27, Issue 1. The EJIL Foreword, published each year in the first issue of the Journal, is designed to enable a distinguished scholar to undertake a more extensive analysis, conceptualization, or systemic theorization than is usually possible in an EJIL article. Robert Howse’s contribution surveys the first two decades of judicial decision-making and judicialization under the auspices of the World Trade Organization. This conversation goes behind the scenes of the writing of the Foreword, in a manner of speaking, giving readers additional insights into the author’s theorization and approach to understanding the Appellate Body’s first 20 years. As the author remarks, “What I’m trying in part to discern is a set of underlying policies that the Tribunal has developed to manage some of the key legitimacy challenges and dilemmas facing it.” The interview was recorded at the New York University School of Law.

The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!

Filed under: EJIL Analysis, EJIL: Live!
 

A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 
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On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

 

Shipping and climate change: the IMO is making progress – though worryingly slowly

Published on May 3, 2016        Author: 
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The Paris Agreement, which was adopted in the UN Climate Change Conference in December 2016 in Paris, does not include aviation and shipping in its regulatory framework. Acknowledging the global and complex nature of shipping activities, the Kyoto Protocol entrusted the reduction of GHG emission from marine bunker fuels to the International Maritime Organisation (article 2 (2)). One of the purposes of the IMO is to ‘encourage and facilitate the general adoption of the highest practicable standards in matters concerning the … prevention and control of marine pollution from ships’ (article 1 (a) of the IMO Convention), and its Marine Environment Protection Committee (MEPC) has the task of negotiating, adopting and amending international conventions, regulations and measures related to the protection of the marine environment. Since 1997, the MEPC has been actively engaged in discussions concerning the reduction of GHG emissions from ships and the elaboration of a legal framework for energy efficiency in the shipping industry as a means of tackling climate change. The IMO has adopted a number of measures to address these issues, but progress has been slow.

Despite encouragement from the former IMO Secretary General to ‘bring the spirit of the Paris Agreement to IMO’ and by the UN Secretary General to continue the momentum of the Paris Agreement, the response in the MEPC in its 69th Session which took place from 18-22 April 2016 was less enthusiastic, though some progress was made. This post discusses the recent discussions and negotiations in the IMO MEPC with respect to reduction of emissions from ships.   Read the rest of this entry…

 
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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 4)

Published on May 3, 2016        Author: 
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Some six months since the publication of the third post on the Croatia v. Slovenia arbitration, as Bernard Woolley might say, ‘there has been movement’. To recapitulate, following Croatia’s note verbale of 24 July 2015 informing Slovenia and the Tribunal of its intention to terminate the Arbitration Agreement, Slovenia tendered its objection dated 13 August. In the aftermath of the successive resignations of the arbitrator of Slovenian nationality (Dr Jernej Sekolec) on 23 July, the arbitrator of Croatian nationality (Professor Budislav Vukas) on 30 July, and the replacement arbitrator for Sekolec (President Ronny Abraham of the ICJ) on 3 August, the Tribunal invited the parties to appoint replacements for Vukas and Abraham. Croatia declined to name a replacement, whereas Slovenia wrote to the Tribunal that, ‘in order to preserve the integrity, independence and impartiality of the Arbitral Tribunal and the ongoing proceedings, it will refrain from appointing a member of the Tribunal to replace Judge Abraham’. Instead, Slovenia requested ‘the President of the Arbitration Tribunal, Judge Gilbert Guillaume, in exercise of his powers under Article 2, paragraph 2, of the Arbitration Agreement, to appoint a member of the Tribunal’. In a press release dated 25 September, the Tribunal announced:

Since neither Party made an appointment within 15 days after the resignation of Professor Vukas and Judge Abraham, it fell to the President to appoint the remaining two members of the Tribunal. [Professor Nicolas Michel, of Swiss nationality] was appointed to succeed Professor Vukas on the Tribunal, and [H.E. Ambassador Rolf Fife, of Norwegian nationality] was appointed to succeed Judge Abraham. The Tribunal now intends to consider the Parties’ positions carefully, including in respect of the effect of Croatia’s stated intention to terminate the Arbitration Agreement and in respect of the possible implications for the present proceedings of the events reportedly underlying Croatia’s decision. In this regard, the Tribunal may invite further submissions from the Parties on questions of fact and law as may be necessary.

It is noteworthy that, for the first time in the history of the arbitration, the panel is now ‘wholly neutral’ in that all of the arbitrators are nationals of neither party. Although this appears to have eventuated faute de mieux, it is attractive on a systemic level, as covered in our last post.  

On 2 December, the Tribunal fixed deadlines for further submissions on the aforementioned issues. On 14 March, the Tribunal announced that it had fixed 17 March as the date for hearings on the matter, to be held (understandably) in camera pursuant to Article 6(5) of the Arbitration Agreement with a summary of the Parties’ positions to be published via press release. On the ground, tensions have been escalated by the decision of Slovenia to run a barbed wire fence along part of the disputed territory (see here). Reactions in Croatia, likening these actions to the Nazi occupation of the area during the Second World War, have not helped to ease tensions Read the rest of this entry…

 

‘Legacy Talk’ at the International Criminal Tribunal for Rwanda

Published on May 2, 2016        Author: 
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As mentioned in Marko Milanovic’s recent post, the American Journal of International Law will soon publish a Symposium at the occasion of the closure of the ad hoc tribunals. Marko’s article considers the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY). We were asked to reflect upon the legacy and impact of the International Criminal Tribunal for Rwanda (ICTR). An advance (original and longer) version is available here.

Before turning to the ICTR’s potential legacies, our article explores the ways in which the concept of “legacy” can be understood in the context of an international criminal tribunal. Although rarely defined and even less frequently theorised, the term has recently been much in vogue in international criminal law, so much so that Viviane Dittrich has observed a “legacy turn” within the field.  Even before it closed down, the ICTR dedicated human resources, a website and a video to publicise its legacy.

As the ICTR’s legacy website and video demonstrate, the Tribunal has made claims about its legacy in no uncertain terms. For instance, the video lists the Tribunal’s monumental contributions to international criminal law, but it also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” The narrator claims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” Yet the film’s final words are not about Rwanda, but affirm “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

This rhetoric about one’s own legacy exemplifies what we call ‘legacy talk’. Unlike legacy planning, which concerns ensuring that there will be something to leave behind, legacy talk attempts to consolidate a set of interpretations about what is left. Read the rest of this entry…

 
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Announcements: James Muiruri International Law Lecture; The Creation of a World Court for Human Rights Event; Interpretation of the ECtHR Conference; Maastricht University Essay Competition; UN Audiovisual Library of International Law

Published on May 1, 2016        Author: 
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1. Annual James Muiruri International Law Lecture. University of Sheffield School of Law Annual James Muiruri International Law Lecture will be held on Wednesday 11 May at 6pm. Prof Guy S. Goodwin-Gill, University of Oxford, will speak on Refugees in our Time: The Challenges of Protection and Security. The lecture will take place in The Diamond lecture theatre. For more details and to register see here.

2. The Creation of a World Court for Human Rights. The Oxford Martin School Programme on Human Rights for Future Generations will host a public event on the creation of a World Court for Human Rights. Two world-leading experts will be invited to engage in a dialogue on the following Resolution: A World Court for Human Rights should be established to contribute to the evolution of, and compliance with, human rights law. The discussants will be Professor Martin Scheinin, Professor of International Law and Human Rights, European University Institute (For the Resolution) and Professor Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School (Against the Resolution). The debate will be moderated by Professor Harold Koh, Sterling Professor of International Law at Yale Law School. The event will take place on 9 May from 3pm- 5pm at the Oxford Martin School and will be followed by a drinks reception. All are welcome and registration is required. Information about the event and a link for registration can be found here. Read the rest of this entry…

Filed under: Announcements and Events
 
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