This post looks into the wider questions The South China Sea recent award raises and its possible impact. Looking back at the rare examples in international law in which States chose not to appear to participate in the proceedings, I address questions such as “what good is an award that cannot be enforced” and what role has arbitration in that context. I argue that contrasting with conventional dispute resolution in which the award puts an end to a dispute, the award in the South China Sea case was neither an end in itself, nor necessarily an attempt to get leverage on the part of Philippines, to negotiate with China at bilateral level. After all, counsel for Philippines himself has argued that “bilateralized negotiations had failed”. I argue that much like a chess-movement, the South China Sea case is rather the means for something else in a broader chess-like strategy: (a) as a brick on which other disputes can be built (b) to attempt the multilateralization of the dispute concerning the South China Sea, to involve all those countries with claims in respect of the disputed sovereignty and entitlements over the South China Sea.
On January 26, 2016, during a public meeting organized by the Trans-Atlantic Consumer Dialogue, the European Commissioner for Trade, Cecilia Malmström, said that the precautionary principle (PP), the principle which enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment, is a fundamental rule in the European policies and its compliance is ensured both in the legislative process and trade agreements. Therefore, the principle is central to the negotiations surrounding the Trans-Atlantic Trade and Investment Partnership (TTIP). Despite verbal assurances given by Commissioner Malmström, who has radically excluded a possible lowering of PP standards in Europe, the issue deserves to be addressed more carefully.
Europe is often considered more precautionary than the US. A comparative analysis demonstrates that the difference between the two approaches rests on the perception of risks that characterize social realities, and not by the will to apply the principle more or less intensely. As the most careful doctrine already showed, if a wide variety of situations where there is a need for precautionary measures are analyzed, it may be found that application of the the principle in US law is not all that dissimilar to what we see in the European context. Read the rest of this entry…
Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take  lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.
Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.
De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…
In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.
At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.
Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)). Read the rest of this entry…
We live in an era of international courts; since the explosion in international, regional and sub-regional organizations, the world has seen a number of these organizations create judicial organs to clarify treaty law and thus resolve any disputes between the parties to treaties and any disputes between private actors and their governments.
Africa came late to creating regional sub-regional courts – this being explained by the suspicion of domestic judges, and the belief that international relations were the preserve of the executive arm. However it is interesting to note that Africa’s sub-regional courts are the focus of a burgeoning scholarship with a particular stress on how they fit into the matrix of treaties, protocols and domestic politics of the states that have created them. Thus the paper by Alter, Gaathi and Helfer (AGH) – “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” – is a welcome addition to understanding Africa’s transnational judicialism.
However as exposed by AGH not all is plain sailing with attempts by member states of sub-regional organizations to undermine, if not dismember, the judicial organs they have created. The explanation by AGH is thorough; disassembling the intricate moves, legal, organizational and diplomatic, to gut courts in ECOWAS, SADC and the EAC. AGH focus on moves by Gambia, Zimbabwe and Kenya. They seek to explain why Gambia failed, Zimbabwe succeed and Kenya found itself somewhere in between success and failure. AGH provide a very sound analysis and I am of the view that their work carries out important spadework as dissecting the “backlash” against transnational courts is essential for those scholars, activists and policy-makers with an eye on deeper integration in Africa.
However, there is the need for further exploration to enable the understanding of the progress or otherwise, of transnational judicialism. Thus I suggest observers should widen the scope of the analysis set in motion by AGH. Read the rest of this entry…
Comments on “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” by Karen J. Alter, James T. Gathii and Laurence R. Helfer
The article by Karen Alter, James T. Gathii and Laurence Helfer is instructive and, notwithstanding its considerable length, very readable. I learned a lot – about the three specific ‘court backlashes’, about the institutional setting in which the three courts under review operate, and about the factors determining the success or failure of ‘court-curbing’ – and felt engaged throughout. My comments are in three parts: First, I am making a fairly simple, perhaps banal, point that is implicit in the authors’ detailed research. Second, I mention factors that I felt could be relevant in assessing the success or failures of court backlash (but that are not the focus of the article). And third, I compare the three ‘African’ backlashes studied by the authors to the one that currently dominates debates in Europe, viz the backlash against investor-State dispute settlement (ISDS).
Proliferation and the new complexity of the international judiciary
While Alter, Gathii and Helfer engage with the particularities of court design in three regional settings, their article brings home a fairly straightforward point: it shows how diverse and how complex the landscape of international courts and tribunals, in the present ‘post-proliferation’ era, has become. Of course, everyone today accepts that ICJ, ITLOS, ECtHR, etc. have been joined by ‘new courts on the block’. But I am less sure that a sufficient number of mainstream international lawyers working in the field of dispute settlement are really following through on this insight: So much of the disciplinary scholarship (and I certainly will not exclude myself here) remains focused on the ‘usual suspects’; and, with the exception of human rights, there still is precious little on the regional courts outside Europe. (Try ‘EACJ’ in the ppl.nl database – only two entries come up. And how many of EJIL: Talk!’s readers could have named the seat of the SADC Tribunal or of the ECOWAS Court in an international law pub quiz, or if Dapo Akande had taken the matter up in one of his trivia competitions?) Against that background, Alter’s, Gathii’s and Helfer’s scholarship – including but not limited to their current EJIL Article – is eye-opening because it takes the lesser-known courts seriously. And perhaps not only that: the present article, as well as Alter’s and Helfer’s earlier work on the Andean Tribunal, may suggest that in order to study the more important developments relating to international courts today we should be looking, not to Strasbourg, Geneva or The Hague, but to Abuja, Arusha and Quito. Read the rest of this entry…
Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).
Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.
Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded. Read the rest of this entry…
Discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer’s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences
This week we will be hosting a discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer‘s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. The article is the free access article in the new issue of the European Journal of International Law (Vol. 27, No. 2), which is now out. It offers an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent.
Karen J. Alter is Professor of Political Science and Law at Northwestern University, and a permanent visiting professor at the iCourts Center for Excellence, University of Copenhagen Faculty of Law. Alter is author of the award-winning book The New Terrain of International Law: Courts, Politics, Rights, and numerous books and articles. Her research focuses on the judicialization of international relations, and global capitalism and law.
Professor James Thuo Gathii is the Wing-Tat Lee Chair of International Law at Loyola University Chicago School of Law. His research and teaching interests include African national and international judiciaries, African regional integration as well as international trade and public international law. He has published two books with Cambridge and Oxford University Presses and over 80 law review articles and book chapters. His forthcoming book is The Contested Empowerment of Kenya’s Judiciary 2010-2015: A Historical Institutional Analysis, Sheria Publishing House, (2016).
Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a Permanent Visiting Professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen. Helfer has authored more than 70 publications and has lectured widely on his diverse research interests, which include the interdisciplinary analysis of international institutions, international courts, and international human rights law.
The article and the issues it raises will be subjected to scrutiny and further comment this week by Christian J. Tams, Kofi Oteng Kufuor and Erika de Wet. We are grateful to all of the participants for agreeing to have this discussion here.
New EJIL:Live! Interview with Karen Alter on Backlash against International Courts in West, East and Southern Africa: Causes and Consequences
In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Karen Alter, Professor of Political Science and Law at Northwestern University, about the article she co-authored with James T. Gathii and Laurence R. Helfer, “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences”, which appears in EJIL, Volume 27, Issue 2. The video begins with a short discussion of Professor Alter’s experience as a political scientist entering the world of law, especially the initial reception to her work and the difficulties translating between the respective languages of these two fields. After an outline of the article, the conversation turns to the scientific dimension of the research. Professor Alter discusses how she and her co-authors set out to understand the dynamics of the politics of backlash, and why the sanction against the Court ultimately succeeded in the case of the SADC. The interview concludes with a discussion of the uncertain boundaries of the politics of backlash and plans for further research into other regional organisations as well as the International Criminal Court. The interview was recorded at the European University Institute.
We will be running a discussion on the article on the EJIL: Talk! blog this week.
We welcome comments and reactions to EJIL: Live!, as well as to our article discussion.
Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation
In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.
Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.
However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…