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Economic Nationalism in a New Age for International Economic Law: Recalling Warnings of Ludwig von Mises and the Austrian School

Published on January 30, 2017        Author: 
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International economic law developments barely one month into 2017 have been nothing short of tectonic this side of the Atlantic. From US President Trump’s first executive action to withdraw the United States from the unratified Trans-Pacific Partnership; his subsequent announcement (later called mainly an option) to impose a 20% border tax on Mexican imports into the United States to finance a wall between the two countries; a declared initiative to renegotiate the North American Free Trade Agreement (NAFTA) that was signed under the administration of Republican President George Bush; unprecedented changes to the United States National Security Council removing the nation’s top military, intelligence, and security advisers to only permit regular attendance for White House chief strategist Steve Bannon and more limited attendance of the chairman of the Joint Chiefs of Staff and the Director of National Intelligence; threats of punitive tariffs against China and accusations of illegal currency manipulation; to last Friday’s latest executive order announcing a travel ban against individuals from seven predominantly Muslim states (approximately 218 million persons) and the 4-month suspension of any refugee entry, as a possible first step to a broader ban – it is becoming all too clear that barely ten days into the new presidency, the United States will not be above reversing, abandoning, disregarding, or defecting from any of the established rules and institutions of international economic law, through extraordinary actions and reversals that have scarcely any or no inter-agency vetting and consultation, and significantly, with the new president declining to divest himself from all business interests or to introduce transparency and consultation measures even as these political-security-economic policy reversals continue to be formulated with relative opacity. The Dow Jones industrial averages and NASDAQ composite index both dropped with the sudden rush to sell off US equities, and American private companies have taken to hiring crisis management and communication firms for the new age of undisclosed and sudden economic policy reversals, reviewing operations and mergers against possible charges of being “Anti-American”.

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Remembering Professor Gillian White (1936—2016)

Published on January 30, 2017        Author: 
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The Manchester International Law Centre is saddened to announce the death of Professor Gillian White, former Professor of International Law at the University of Manchester, in Tamworth, New South Wales, on 2 August 2016.

Gillian Mary Fraser, née White, was born on 13 January 13 1936 in Woodford, Essex. She obtained a first class Bachelor of Laws degree from King’s College, London in 1957, attending classes as an evening student while she worked as an Assistant Examiner in the Estate Duty Office. She then proceeded to study for her Doctor of Philosophy, awarded by the University of London in 1960, the year in which she was also admitted to Gray’s Inn. In 1961, she moved to Cambridge, where she acted as research assistant to Sir Elihu Lauterpacht QC, and as Research Fellow in Law and Director of Legal Studies at New Hall, now Murray Edwards College, and subsequently to the then Victoria University of Manchester, where she spent the remainder of her career. Appointed as a lecturer by Manchester in 1967, she was promoted to senior lecturer in 1971, and to reader in 1973, before succeeding Ben Wortley as Professor of International Law in 1975. This was a significant appointment as Professor White was the first woman appointed as a professor in law in mainland Britain, and the first as a professor of international law in the United Kingdom. She subsequently acted as Dean and Head of Department at Manchester for a number of years, before retiring in 1991. Read the rest of this entry…

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New Issue of EJIL (Vol. 27 (2016) No. 4) Published

Published on January 30, 2017        Author: 
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The latest issue of the European Journal of International Law (Vol. 27, No. 4) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Simon Chesterman’s Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 
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Announcements: The View from the EU Bench Event; University of Helsinki Vacancies; CfP Representing Extraterritorial Accountability; New additions to the UN Audiovisual Library of International Law; BIICL Short Courses

Published on January 29, 2017        Author: 
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1. City, Univesity of London: The View from the EU Bench – A Conversation with Judge Lars Bay Larsen (European Court of Justice). The City Law School, under the aegis of the Jean Monnet Chair in EU Law, is delighted to invite you to the following event: The View from the EU Bench: Judge Lars Bay Larsen (European Court of Justice) in conversation with Professor Panos Koutrakos. Judge Bay Larsen will hold a conversation about his role as a Judge of the European Court of Justice, a position which he has held since 2006, with Professor Panos Koutrakos, Professor of European Union Law and Jean Monnet Chair in EU Law at City Law School.  Professor Sir Alan Dashwood, City, University of London will Chair. The event takes place on Tuesday 21 February 2017 at 18:00 at City University London, College Building, St John Street, EC1V 4PB – Room A130. The event will be followed by a wine reception. Attendance is free. You may sign up here. The event will be accredited for 1 hour CPD. For information, you may contact Mr Ben Cope (Ben.Cope {at} city.ac(.)uk).

2. University of Helsinki Professor Vacancies. The Faculty of Law of the University of Helsinki is looking for two professors (or associate professors) in fields relevant to international law. One appointment is in Law and Globalisation, the other in Transnational European Law. Both positions can be filled either as regular professorships or as tenure track positions, depending on qualifications and experience.

3. Representing Extraterritorial Accountability – Call for Proposals. This conference will be held on 28-29 May 2017 at Haifa University, Israel and is a collaboration between the University of Haifa Master of Fine Arts program and the Faculty of Law. The conference aims to problematize representations of exterritorial accountability in law, media, and visual culture. It will offer a forum for discussion among lawyers, artists, and scholars whose work concerns events that occur beyond territorial jurisdiction and raises urgent moral, political, and legal questions. We propose to consider state action beyond its borders, whether such action produces violence or generates opportunities for rescue. Focusing on contemporary extraterritorial policies sheds light on multiple problems of global impact – refugee and climate crises, contemporary warfare and cross-border policing, surveillance, and cybercrime. We will dedicate our discussion to six themes, with one panel dedicated to each: (1) Interdiction, Detention, Interrogation; (2) Targeting and Assassination; (3) Pollution and Resource Extraction; (4) Humanitarian Intervention and Rescue; (5) Tax Havens and Offshore Finance; and (6) Surveillance and Espionage. We invite proposals from any discipline focusing on any of these general themes. Proposals must consist of an image you wish to respond to or present as a springboard for conversation, a short (400 word) abstract providing an outline of your talk, and a short resumé or biographical note. The proposal deadline is 28 February 2017. Submissions should be sent to Dr. Maayan Amir / Dr. Itamar Mann: exterritorialityconference@gmail.com. Read the rest of this entry…

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Turkish Military Intervention in Mosul: A Legal and Political Perspective

Published on January 27, 2017        Author: 
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In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…

 
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Ukraine Takes Russia to the International Court of Justice: Will It Work?

Published on January 26, 2017        Author: 
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In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Read the rest of this entry…

 

On My Way Out IV – Teaching

Published on January 25, 2017        Author: 
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I have almost reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some Do’s and Don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears ask yourself why so many experienced and seasoned academics still fall into the trap. In previous Editorials I addressed the art of delivering a conference paper, the management of one’s scholarly agenda and the pitfalls of editing or contributing to edited books. I turn here to the issue of teaching.

To put it mildly, there is considerable ambiguity, even ambivalence, in the messages, explicit and implicit, that a young university teacher receives upon starting his or her academic career as regards teaching. To be sure, much lip service is paid to the importance of teaching as part of the academic duties of the young teacher. Practice varies but in several systems, especially in the early stages of one’s career, the title itself provides an indication: Instructor, Lecturer (even Senior Lecturer) and in several languages the title Professor itself indicates primarily the teaching function. Applicants are oftentimes required to provide a Statement on Teaching and in some systems there is a requirement and in others it is desirable to provide, in addition to a scholarly portfolio, demonstration of some ‘teaching practice’.

But consider the following, almost universal, paradox. To receive a position as a kindergarten teacher, an elementary school teacher or a high school teacher, in most jurisdictions the applicant would have to have undergone specialized training – in addition to any subject-matter university degree he or she may have earned – to occupy a position of such individual and collective responsibility. The exception? University teachers. There are very, very few universities around the world that require any measure of formal training in the art and science of university teaching. A doctorate has become an almost universal requirement for teaching in our field – the USA being the glaring exception (as regards law). It is a requirement in practically all other disciplines in the USA. And yet typically a doctorate programme is training for research, not for teaching. Read the rest of this entry…

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EJIL: In this Issue; Emma Thomas – May the Force Be With You!; EJIL Roll of Honour

Published on January 24, 2017        Author: 
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This issue opens with an EJIL: Keynote article, in which Philippe Sands contemplates the ends (and end) of judicialization. Based on his lecture at the 2015 ESIL annual conference in Oslo, it forms a fitting introduction to an issue that addresses overarching questions of legitimacy in international law, from the reception of international law in Asia to strong reactions to the idea of global governance by the WTO judiciary. An EJIL: Live! interview with Philippe Sands (posted earlier this week) complements the article.

This issue’s first regular article is Vincent Chetail’s critique of the dominant narrative of migration control, drawing on early doctrines of the law of nations regarding the free movement of persons across borders, and thus offering an innovative path for rethinking this critical contemporary issue. In another example of looking back in order to confront difficult issues of today, Jan Lemnitzer draws on original archival research to propose the adoption of an adversarial model of a commission of inquiry for investigating the downing of flight MH17.

We are pleased to present in this issue a Symposium comprising three articles giving attention to international law in Asia. Simon Chesterman explores the reasons for Asia’s under-participation and under-representation in international law and institutions, and predicts greater convergence and presence of Asia in global governance. Melissa Loja looks to archival records in order to shed new light on one of the most pressing questions of international law in Asia: the Senkaku/Diaoyu Islands dispute. And Zhiguanq Yin’s article focuses on the translation of international law in the 19th century into China, thereby questioning the universality of Euro-centric jurisprudence. Read the rest of this entry…

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New Issue of EJIL (Vol. 27 (2016) No. 4) – Out Next Week

Published on January 24, 2017        Author: 
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The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

On My Way Out IV – Teaching; Emma Thomas – May the Force Be with You!; EJIL Roll of Honour; In this Issue

EJIL: Keynote

Philippe Sands, Reflections on International Judicialization

Articles

Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel

Jan Martin Lemnitzer, International Commissions of Inquiry and the North Sea Incident: A Model for an MH17 Tribunal? Read the rest of this entry…

 
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France Legislates on State Immunity from Execution: How to kill two birds with one stone?

Published on January 23, 2017        Author: 
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France has never legislated on State immunity to the same extent as the US, UK and other countries. Instead, sovereign immunity under customary international law has been mainly governed by case law, save for two little known provisions: Article 111-1 of the civil enforcement procedures code providing for the principle of immunity of domestic and foreign public entities, and Article 153-1 of the monetary and financial code providing for the immunity of foreign central banks and monetary authorities. Even though France ratified the United Nations Convention on Jurisdictional Immunities of State and their Property of 2004 (UNCSI) with Law No. 2011-734 of June 28, 2011, contrary to Japan, Spain and Sweden, France did not incorporate the Convention into domestic law. The recent decision to incorporate only Articles 18, 19 and 21 of UNCSI on immunity from execution was rather motivated by the fact that, first, the jurisprudence of the Cour de cassation had become unpredictable and, second, the French government was embroiled in diplomatic complications with foreign States. With two Articles of Law No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and modernising economic activity of December 9, 2016, France has, on the one hand, purported to codify customary law on State immunity from execution, as reflected in UNCSI, (Article 59), a provision portrayed by its opponents as the “Putin amendment” made specifically to respond to the Russian law of 2015 which threatens to deprive foreign states of their immunity if they ignore Russia’s immunity, in particular with regard to seizures made following the aftermath of the Yukos award. On the other hand, it has enacted specific rules on execution proceedings against foreign States undertaken by so-called “vulture funds” as had been the case with the famous NML capital Ltd. v. Argentina litigation (Article 60).

This post will focus on the first of these two provisions, Article 59. Read the rest of this entry…

 
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