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Announcements: UN Audiovisual Library of International Law; Nelson Mandela World Human Rights Moot Court Competition; CfA The Interface between Cyber Security and Military Applications of Human Enhancement; Key Biographies in the Legal History of European Union Conference; IHL Senior Research Fellow/Team Leader Vacancy

Published on December 31, 2017        Author: 
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1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Claudia Martin on “The Role and Jurisdiction of the Inter-American Court of Human Rights” and Professor Diego Rodríguez-Pinzón on “The Inter-American Human Rights System: The Inter-American Commission” and “Sistema Interamericano de Derechos Humanos: La Comisión Interamericana”. 

2. 10th Nelson Mandela World Human Rights Moot Court Competition, Geneva, Switzerland 2018. Students from all universities in the world are invited to participate in the Nelson Mandela World Human Rights Moot Court Competition, to be held in the Palais des Nations, United Nations Headquarters, Geneva, Switzerland, 15 – 20 July 2018. The Competition will be held in English and in French, and, depending on interest, will in future years also be presented in the other UN languages. For the invitation in all UN languages, see here
 
3. Call for Post-Doctorate Applications: The Interface between Cyber Security and Military Applications of Human Enhancement. The Cyber Security Research Center of the Hebrew University is advertising for a funded post-doc position in the field of IHL/IHRL. The research focus is ‘The Interface between Cyber Security and Military Applications of Human Enhancement’. See here for further information. 
 
4. Key Biographies in the Legal History of European Union 1950-1993 Conference. A conference entitled “Key Biographies in the Legal History of European Union 1950-1993” will be held on 21-22 June 2018 at the Max Planck Institute for European Legal History at Frankfurt/Main, Germany. The event will scrutinize the history of European law with a distinct focus on professional biographies, both of key personalities in the history of European integration and of less prominent actors. We welcome proposals of not more than 150 words by 15 January 2018. Please email your proposal and a short CV to bajon {at} rg.mpg(.)de. For further information, see here.
 
5. Customary IHL: Senior Research Fellow/Team Leader – International Humanitarian Law. In the framework of the co-operation between the ICRC and the British Red Cross to update the practice collection of the ICRC’s study on customary international humanitarian law (IHL), the ICRC and the British Red Cross seek to recruit for the Senior Research Fellow/Team Leader position in the customary IHL research team based in Cambridge/UK. To apply, and for details about the position, please visit the British Red Cross website. For further information, see here and here. Final closing date for applications is Sunday 14 January, 2018 (midnight). Interviews will take place in London, the week commencing Monday, 5 February, 2018.
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Our Most Read Posts of 2017

Published on December 30, 2017        Author: 
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As 2017 comes to an end we would like to thank our readers for coming back to us time and again over the course of the year. This year we have had more readers than in any previous year and more page views.

I would like to welcome Gail Lythgoe to our editorial team. Gail joins us as Associate Editor with particular responsibility for managing our social media presence. She is currently a PhD Candidate at the University of Glasgow and Managing Editor of Oxford International Organizations. Hopefully, readers have already noticed a difference in our activity on Twitter and Facebook.

To conclude 2017, I set out below our 20 most read posts of the year.  We strive to cover a very wide range of international law issues on this blog, but of course it is up to readers to decide on which issues resonate more with them at particular moments. As is often the case, many of those most read pieces are those which offer timely (and may I add insightful) commentary on the big issues of the day raising questions of international law. The US missile strikes in Syria in April, Catalonia’s bid for independence and some of the issues relating to Brexit are leading examples  this year. However, the list of most read pieces this year include, one by Douglas Guilfoyle and another by Marko from several years ago. Those two pieces feature as the most read post and the third most read post since the blog was established 9 years ago (with this piece being the second most read post). 

Two other remarkable pieces in our top 20 for 2017 are the speeches by the UK Attorney General and another by the Australian Attorney-General setting out the understanding of those states on the law relating to self-defence and in particular, their views on issues relating to self defence in anticipation of armed attacks. We are grateful to the Attorneys General for choosing EJIL:Talk! as a forum for dissemination of the official position of their governments.

 The top 20 posts are here in reverse order with the top 10 below the fold. Happy New Year to all of you for 2018!

20) Jure Vidmar, Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument  (Oct. 2017)

19) Dapo Akande, The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction? (June 2017)

18) Marko Milanovic, Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum (Feb. 2010)

17) Marko Milanovic, European Court Decides Al-Skeini and Al-Jedda (July 2011)

16) Monica Hakimi, US Strikes against Syria and the Implications for the Jus ad Bellum (April 2017)

15) Monica Hakimi, North Korea and the Law on Anticipatory Self-Defense (Mar. 2017)

14) Dan Joyner, Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular (Jan. 2017)

13) Senator George Brandis QC (Attorney-General of Australia),  The Right of Self-Defence Against Imminent Armed Attack In International Law, (May 2017)

12) Dapo Akande, ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question (Nov. 2017)

11) Jeremy Wright QC MP (Attorney General of the UK), The Modern Law of Self-Defence (Jan. 2017) Read the rest of this entry…

 
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Concluding Response from Professor Chimni: International Law and World Order

Published on December 29, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

It is a great honor to have a set of responses to the second edition of my book International Law and World Order: A Critique of Contemporary Approaches (ILWO). What is more these represent empathetic and generous readings of my work. Yet the responders have not shied away from asking some hard questions. It has given me an opportunity to clarify my views on many issues. Three of the responses are devoted to the chapter on the Integrated Marxist Approach to International Law (IMAIL) read in conjunction with the introductory chapter which outlines the theoretical framework of the book. One contribution comments on the chapter on feminist approaches to international law (FtAIL). The responses also touch on other matters that include the reason for my detailed consideration of the New Haven approach. Instead of responding separately to each individual response I make observations on some themes and questions that the responders helpfully flag. Since this is not the occasion to offer a detailed response I will satisfy myself with some bare observations. These are made under the following heads:

Structure of the Book

Theoretical Issues

International Rule of Law

Alternative Futures

Structure of the book

For those who have not had the occasion to peruse the book it may help to note that it has chosen to articulate IMAIL through a critique of the principal contemporary approaches to international law. Only some fundamental themes, ideas and issues pertaining to IMAIL are dealt with in the chapter devoted to it. I mention this because the structure of the book has determined the way IMAIL has been elaborated. It has left certain gaps in the book that can be addressed only by a direct and systematic account of IMAIL.

The reason for writing the book in the form of a critique of contemporary approaches is that it was important to position IMAIL vis-à-vis others to showcase its relevance and strengths. The same response goes to the question as to why a chapter has been devoted to the New Haven approach to international law. The policy oriented approach is among the few that offer a systematic and comprehensive account of international law. The New Haven approach has also been presented as a counter narrative to the Marxist approach. It is no accident that Michael Reisman compares the friendship of Myres McDougal and Harold Lasswell to that of Karl Marx and Frederick Engels. A critical engagement with it helps to contrast and pinpoint the relative superiority of IMAIL. Read the rest of this entry…

 

Imperialism, Commodification and Emancipation in International Law and World Order

Published on December 29, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

Marxism and Third Worldism

B.S. Chimni’s work sits at an important intersection of international legal theory. It is most readily identifiable as falling within the Third World Approaches to International Law (TWAIL) movement: adopting the perspective of the Global South, and foregrounding the role of imperialism. Simultaneously, with its focus on class, production and global capitalism, his work is explicitly Marxist. This combination harkens back to an older Marxist Third Worldism—exemplified by Frantz Fanon, Amílcar Cabral and Walter Rodney.

For Chimni, his position is not exceptional. He goes so far to say that his “integrated Marxist approach” to international law, is TWAIL (pp. 14-18). Whilst this is true to a degree—TWAIL is a broad church—it underplays the degree to which Chimni’s Marxism is distinctive within TWAIL.

It is for this reason that a new edition of International Law and World Order is so welcome. Having been out of print for a number of years, readers eager for Chimni’s distinctive perspective were reduced to sharing samizdat-style photocopies. Importantly, this is not simply a re-print. Chimni has revisited his earlier formulations and engaged with a wider range of thinkers. Particularly important is Chimni response to China Miéville’s Between Equal Rights: A Marxist Theory of International Law (BER).

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A Marxism for International Law

Published on December 28, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

There are some books on my shelves I can remember opening for the first time. I remember holding them, flipping through pages, scribbling a note on the inside cover, using them as improvised paperweights, or lending them to a colleague or a student. I remember a lot of things about them. But I do not remember their contents.

Not all books are created equal. Some you only put on your shelves, but never, to use Conan Doyle’s famous metaphor, in your “brain’s attic”. You get them, you read them, and then, like the latest Nicolas Cage film, you essentially forget all about them. Beyond some general concept of what field or question they were supposed to cover, you can scarcely remember anything about their actual argument, the specific points they tried to make, the reasoning they constructed, the particular examples and illustrations they presented.

This is not, of course, in any way the fault of the author. No one ever sets out to write a forgettable book. Nor is it, though, really, the fault of the reader. No one can really be blamed for trying to keep their “brain attic” tidy. Managing one’s memory archives, let us face it, is a highly important component of good scholarly practice.  We have all been there: sooner or later you just reach that tipping point—call it overexposure or discursive saturation—after which everything you read starts to look familiar. That book or article you are now struggling to recall may be a product of many years of hard, honest work. But is it really your fault that what it had to say, in the end, was so unoriginal? Everyone knows how these things work: you open a book, read through the first pages, and a quiet sense of déjà vu slowly creeps in. Hasnt all this already been said before? Didnt somebody else argue the same point years ago? Sooner or later it all just turns into a blur.

But then again, not all books are created equal. There are some that you get to experience in a completely different manner—as distinct intellectual events, as game-changers that define the course of your intellectual biography. There may only be one or two such books in your library or more than twenty; it does not matter. You always remember a lot more about these books than any others. You remember them, above and beyond everything else, for the fact that they become for you a point of continuing reference. They are there, with you, at all times, wherever your thought goes, whatever you research or write about. They are there, with you, because they have taken pride of place in your “brain attic”. Because however much you may disagree with any one individual aspect of their argument or narrative design, for you they always remain a source of knowledge, a model for emulation, a never-ending lesson to learn from.

Over the last thirteen years, International Law and World Order (ILWO) has become one of such lessons and models for me. It brings me great satisfaction to see it come out in a new edition, to know that once more it is available in print and can be accessed by a new generation of international law students.

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Reading Chimni’s International Law and World Order: The Question of Feminism

Published on December 28, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

In 1993, Professor B.S. Chimni published what Richard Falk described as the “persuasive rehabilitation of Marxist thought as the foundation for a progressive theory of international law”. Almost twenty-five years later, the second edition of International Law and World Order: A Critique of Contemporary Approaches offers us valuable insights not only into the evolution of Chimni’s thought, but also into the evolution of the discipline. Indeed, the structure and the sheer size of the second edition is telling of the flourishing state of heterodox approaches to international law. It is no coincidence that Chimni felt the need to add two new, lengthy chapters on the New Approaches to International Law (NAIL, which he sees as exemplified in the writings of David Kennedy and Martti Koskenniemi, and on Feminist Approaches to International Law (FtAIL), where he focuses primarily on the work of Christine Chinkin and Hilary Charlesworth, and particularly their co-authored, ground-breaking book, The Boundaries of International Law: A Feminist Analysis. Perhaps more fundamentally, when articulating his own Integrated Marxist Approach to International Law (IMAIL), the author gestures toward the need to integrate class, gender and race for a critical project in international law. In this respect, the book at hand does not simply offer an overview of the field, but it also registers and responds to relevant discussions (see here and here) about race, gender and class that are taking place in leftist movements and parties around the world. This is a refreshing development in its own right, since for the best part of the last twenty years references to civil society in international law revolved around Western(ised) and professionalised NGOs (see here and here).

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B. S. Chimni’s “Relatively Autonomous” International Law

Published on December 27, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

The first edition of B. S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches appeared in 1993, only a couple of years after the Soviet Union’s collapse and at a time when critical and feminist approaches to international law had only just begun to make their presence felt. This was a period when only a small handful of prominent international legal theorists self-identified as Marxists—and when few jurists from the “Third World” aside from Georges Abi-Saab and Mohammed Bedjaoui were read consistently in the West. Published in New Delhi and armed with a preface from Richard Falk, International Law and World Order was no ordinary contribution to international legal scholarship. Chimni’s aim was nothing less than the reconstruction of international legal theory, a project he undertook by way of sustained examination of a number of competing perspectives, from that of Hans Morgenthau to that of Grigory Tunkin.

The second edition offers the most detailed and systematic analysis of international law from a Marxist standpoint that is currently available. Enormously ambitious in scale and reach, it updates, revises, and enlarges the first edition, sweeping across a range of substantive topics and discussing a variety of different approaches to international law and international legal theory. While the first edition had its roots in Chimni’s early engagement with the “New Haven School” (hence the title of the book, which alludes to both Falk’s work and the “world public order” models espoused by Myres McDougal, Harold Lasswell, and Michael Reisman), the second edition deals at length with feminist international legal scholarship and the work of David Kennedy and Martti Koskenniemi as part of a broader effort to outline a new Marxist theory of international law, one that integrates insights from socialist feminism and postcolonial studies while absorbing the lessons of the indeterminacy debates of the 1970s, 1980s, and 1990s.

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Happy Holidays

Published on December 24, 2017        Author: 
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All of us at EJIL: Talk! wish a happy festive season to our readers and their families. And may 2018 be just a tad less execrable than its unfortunate predecessor… Posting will be light for the next week or so. In the meantime, here is some holiday cheer in the spirit of the times – “Why do the nations so furiously rage together, and why do the people imagine a vain thing?”

 

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The Philippines Human Rights Commission and the ‘Carbon Majors’ Petition

Published on December 22, 2017        Author: , and
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The adoption of the Paris Agreement in 2015 has been followed by a burgeoning strand of climate change litigation, with test cases being heard all over the world (see Columbia Law School database). Amongst others, litigants have argued that emissions are the proximate cause of adverse climate change impacts, thereby giving rise to specific liability. One of the boldest efforts to test the boundaries of the law in this area is a petition currently being heard by the Commission on Human Rights of the Philippines (CHR or Commission). The petition originated in 2016, when after a surge of typhoons wreaking havoc in the Philippines, Greenpeace Southeast Asia, Pilipino human rights groups and citizens requested the Commission to investigate the responsibility of 47 oil, gas, coal, and cement companies for human rights violations or threats thereof resulting from the impacts of climate change (so-called Carbon Majors petition). The petition has attracted much attention in the media and numerous academics and civil society organisations have submitted amicus briefs in support of the petitioners. Last week, the Commission groundbreakingly asserted its jurisdiction to investigate the petition (CHR press release). The Commission also announced multiple fact-finding missions and public hearings in 2018, to be held both within and without the Philippines. This post reflects on the international law implications of the petition for arguments concerning the liability of corporations for alleged human rights violations associated with the impacts of climate change in a transnational context.

The Scope of the Commission’s Jurisdiction

Similar to other national human rights institutions, the CHR has a mandate to investigate:

all forms of human rights violations involving civil and political rights and to investigate and monitor all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable (Rule 2, Omnibus Rules of Procedure). 


Some respondents challenged the Commission’s jurisdiction to hear the petition. Citing the Lotus case, they argued that a State’s jurisdiction is limited ‘only to the confines of its physical boundaries’ (e.g. Cemex, at 11). As we explained in our amicus brief, States frequently exercise adjudicatory and legislative jurisdiction over persons or events outside their territory, as long as there is a clear connecting nexus between that State and the person or conduct that it seeks to regulate. Therefore, and contrary to what was suggested by the respondents, the exercise of the Commission’s jurisdiction over foreign corporations is neither an ‘act of interference’ or ‘usurpation’ of other States’ sovereignty (Cemex, at 16), nor ‘tantamount to an undue encroachment on the territorial jurisdiction and sovereignty of such other States where Respondents are domiciled and operate’ (Shell, at 1). As long as the Commission’s investigation falls within one of the established principles of jurisdiction, it is in accordance with international law. The most relevant principles for the purposes of the petition are the territorial and the protective principles. Read the rest of this entry…

 
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The Possibility of Disclosing Findings After a Detainee Dies in International Criminal Proceedings

Published on December 21, 2017        Author: 
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International criminal courts and tribunals have no jurisdiction over the dead. Such courts make factual findings that have reputational implications for those who have died, but the dead are not parties to a case. They cannot be bound by the power of a court. A trial chamber or appeals chamber that attempts to exercise jurisdiction over the dead is acting ultra vires.

The possibility of death before the issuing of the final appeal judgment is a particular problem in leadership trials. The accused are more likely to be older. Such trials are expected to take longer. They are inevitably stressful. These are structural problems that can be managed, but not eliminated.

In a trial where all the evidence has been submitted, a great deal of effort and expense has already gone into the trial even before the trial judgment is issued. In a single-accused trial, should the accused die before the trial judgment is issued, there is a sense in which this effort is wasted. No trial judgment can be issued. Bench memoranda and internal drafts are left unpublished. The machinery simply stops. Given the low level of proof required, any confirmation of charges or (at the ICTY) Article 98 bis decision does little to settle the disputes of fact and law that may have been at least partially resolved by a trial judgment. A similar situation might apply in a appeals process halted by the death of a detainee. The issues certified for appeal cannot be resolved by the appeals chamber if the appeals chamber lacks jurisdiction to do so. Similarly, proceedings may be stopped at a any stage if the accused is no longer competent to stand trial (e.g. Ieng Thirith).

What should be done? Trials should be quicker, which could be facilitated by limiting sprawling indictments and allowing more evidence to be submitted on paper rather than via viva voce testimony. The health and security of the detainees should be guarded and protected to the greatest degree possible, a point to which I will return. The general concerns for a speedy trial and the well-being of detainees are obvious, uncontroversial, and even banal, but should be addressed with more urgency than in the past. Read the rest of this entry…