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Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

Filed under: EJIL Analysis, EJILTalk Contributing Editors' Debate, Sources of International Law, Study of International Law, Theory of International Law
 

No Dispute About Nuclear Weapons?

Published on October 6, 2016        Author: 
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On 5 October 2016, the ICJ rendered judgment in three cases brought by the Marshall Islands against nuclear weapons States (namely against India, Pakistan and the UK).

Notwithstanding differences in the respondents’ optional clause declarations, the three judgments are largely identical. In all three of them, the Court decided that it did not have jurisdiction and thus could not proceed to the merits of the claims. As a consequence, the Court will not assess the substance of the Marshall Islands ‘nuclear zero’ cases – launched with significant NGO support in 2014 and meant to put pressure on nuclear weapons States to take seriously their duty to negotiate towards disarmament under Article VI of the NPT.

In this first reaction, I do not mean to comment on the outcome, but rather offer a few thoughts on the reasoning of yesterday’s judgments. This reasoning is technical, but – at least for international lawyers working in the field of dispute settlement – quite significant. To be sure, jurisdictional ‘defeats’ are quite common in optional clause proceedings before the ICJ. However, yesterday’s judgments stand out for two reasons: first, they were carried by very narrow majorities; and second, the narrow majorities were based on an unusual ground, a ‘first’ in fact: they held that there was no ‘dispute’ between the Marshall Islands and the respective respondents.  A brief word on each of these two points: Read the rest of this entry…

Filed under: EJIL Analysis, International Court of Justice, Jurisdiction, Nuclear Weapons
 

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

Published on August 4, 2016        Author: 
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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…

Filed under: EJIL, EJIL Article Discussion
 

EJIL Editors’ Choice of Books 2015: Christian J. Tams

Published on February 23, 2016        Author: 
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‘What matters now [in research on international law] is the study of the conditions under which international law is formed and has effects’, Greg Shaffer and Tom Ginsburg noted on the first page of their 2012 article on the ‘empirical turn in legal scholarship’. According to their test, the books I chose could probably be said to ‘matter’, even to ‘matter now’. In Power, Law and the End of Privateering, Jan Lemnitzer offers an exciting account of how a particular aspect of international law was formed, and Yuval Shany (Assessing the Effectiveness of International Courts) provides a framework for studying the effects of international judgments. Their two books are very different, but they both draw on social sciences research methods to elucidate prominent phenomena of international law – a treaty in Lemnitzer’s case, international courts in Shany’s. And they both are – or at least in my case were – eye-openers.

Lemnitzer’s book is that of a historian assessing an international treaty, the 1856 Declaration of Paris Respecting Maritime Law. Largely ignored by today’s mainstream literature, the Declaration marked a milestone in the development of maritime law: it outlawed privateering and, at the same time, strengthened the rights of neutrals, thus ushering in ‘a new era in the history of international maritime law’.  It also marked a milestone in the way international law was made, in that it ‘was the world’s first major example of international “legislation” by means of multilateral treaty’ [Stephen Neff, War and the Law of Nations: A General History (2005), at 188] – a treaty agreed by seven states, which by 1860 had attracted almost 50 ratifications. So perhaps one could say that, in addition to ‘a new era in the history of international maritime law’, the Paris Declaration also ushered in a new era of conscious international law-making through multilateral instruments. Read the rest of this entry…

Filed under: EJIL Book Discussion
 
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Editor’s Book Choices 2014: Christian J. Tams

Published on December 30, 2014        Author: 
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I have 3 picks:

* Douglas M. Johnston, The Historical Foundation of World Order: The Tower and the Arena (2008)

* Mark Mazower, Governing the World: The History of an Idea (2012)

* W. Michael Reisman and Christina Skinner, Fraudulent Evidence Before International Courts and Tribunals: The Dirty Stories of International Law (2014)

An eye-opening ‘anti-tweet’: Douglas M. Johnston, The Historical Foundation of World Order. The Tower and the Arena:

My first pick is Douglas M. Johnston’s Historical Foundation of World Order: The Tower and the Arena, a hugely ambitious attempt to trace the role of international law in the gradual emergence of world order. Published posthumously (the author having completed the manuscript just weeks before his death), the book was quickly hailed as a major achievement, and in 2009 won an ASIL Certificate of Merit. But notwithstanding the early praise, I am not sure the book has been widely read or even noticed. If academic search engines are to be trusted, references to it remain scarce: to give just one example, it is quoted exactly once in the 1200 pages of the Oxford Handbook on the History of International Law, published in late 2012. (Once!)

This neglect is a mistake. Johnston’s book is exciting, engaging and eye-opening; it was my favourite read of the year 2014. Its historical sweep is vast, taking the reader on a journey from early Mesopotamian cultures into the new millennium. The focus is not (or not just) on international law as a set of rights and obligations, but on ‘the larger concept of world order’, understood to combine ‘an evolving, rather technical, “system” of laws, institutions and procedures designed for the inter-state community, … [and] a universal heritage of shareable values and sentiments that have gradually built the political and ethical foundation for a more equitable world society’ (pp. xvii-xviii). With a self-set brief like this, no reader can expect a comprehensive account, and Johnston’s treatment is eclectic and personal. This opens his particular account to criticism, but makes it a much more engaging read. It is, as Mary Ellen O’Connell said at the 2009 ASIL meeting, ‘the anti-tweet’ of legal scholarship. Read the rest of this entry…

Filed under: EJIL Book Discussion
 

Let the Games Continue: Immunity for War Crimes before the Italian Constitutional Court

Published on October 24, 2014        Author: 
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The issue is important, no doubt – to what extent do rules of immunity apply in respect of grave violations of international law? Over the past two decades, it has been addressed by lawmakers, the ILC, international and national courts in cases like Al Adsani, Jones, Bouzari and others – and of course in hundreds of articles, notes and books. In fact, few other questions have prompted as much intense debate in the literature. As the number of plausible arguments and approaches is finite (jus cogens, implied waiver, etc.), there was bound to be duplication and repetition. (Was I the only one gradually tiring of the debate?)

In any event, the ICJ’s judgment in Jurisdictional Immunities of early 2012 seemed to settle matters: immunity could be invoked in respect of war crimes, said the Court; jus cogens was not at issue; immunity had to be assessed as a preliminary matter and irrespective of the gravity of the allegations; grave violations could still be acts iure imperii; the territorial tort exception did not apply etc. In terms of international legal process, this seemed to show the Court at its strongest, acting as supreme arbiter in long-standing debates about the proper understanding of the law, and by virtue of its authority clarifying the state of international law.  ‘At last we have certainty’ wrote Andrea Bianchi on EJIL:Talk! . And in 2013, Italy passed legislation implementing the ICJ judgment.

Two and a half years on, it’s clear that the matter remains a live one. The ECHR’s judgment in Jones seemed to accept the authority of the ICJ’s decision, but raised questions about the scope of personal immunities. (See Philippa Webb’s post).  And in the past few weeks, things have accelerated. Two weeks ago, the High Court of England and Wales decided that a Bahraini prince is not immune from prosecution for torture allegations.

But that, it seems, was no more than the prologue: Because on Wednesday, the Italian Constitutional Court seems to have gone much further. It has quashed the Italian legislation implementing the 2012 judgment, which in its view violates constitutional provisions. The ICJ’s decision is duly addressed, but not followed. As my Italian is rudimentary (and as I have yet to find a translation of the decision), I will not even begin to discuss the merits and arguments set forward. All I want to do at this stage is draw readers’ attention to it. And suggest we all prepare for yet another round of debates about how to strike the balance between human rights and immunity. ‘Certainty at last?’ You wish.

UPDATE: Here is an English summary of the judgment, provided by Francesco Messineo, Honorary Research Fellow at Kent Law School.

Filed under: Diplomatic Immunity, EJIL Analysis, International Court of Justice, Jurisdiction, State Immunity
 

International Law MOOCs: A Hazardous Legal Tool?

Published on October 8, 2014        Author: 
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A while ago, Jean d’Aspremont engaged in a detailed defence of the ‘hazardous legal tool of blogging’ on this site. (He has since blogged quite prolifically – ie put theory into practice…). 3 ½ years on, I would like to raise a similar point and ask whether “international law MOOCs” (or “international law MOOC-ing”) could be something worth exploring – and find out whether readers have explored MOOC-ing already and would share their views.

MOOC stands for “massive open online course”; the relevant Wikipedia entry describes it as an “online course aimed at unlimited participation and open access via the web. In addition to traditional course materials such as videos, readings, and problem sets, MOOCs provide interactive user forums that help build a community for students, professors, and teaching assistants. MOOCs are a recent development in distance education which began to emerge in 2012.”

My sense is that – while courses on cross-cutting themes flourish (Michael Sandel’s course on justice perhaps being the most prominent example) – Law MOOCs have had a relatively slow start. In a recent blogpost, Loren Turner notes that “Initially, law schools were hesitant to offer MOOC courses in legal studies”, but that “within the last year [ie 2013/14], law schools have begun to embrace the idea as a way of exporting their brands, programs, and faculty to a global audience.” The initial hesitation may be due to a range of factors: perhaps legal topics are (or are perceived to be) technical; perhaps law schools are afraid that free online courses would ‘eat into’ or undermine proper (paid) course provision; or finally, to embrace the cliché, legal academia may just be a tiny bit more averse to experimenting than other disciplines. (With respect to the latter point, I thought it was interesting that a recent report on the Völkerrechtsblog, summarising a joint ILA-ASIL meeting on ‘The Teaching of International Law’, suggests that the meeting remained focused on core university teaching. I did not attend so do not know what was said; but was struck by the fact that the use of videos in classroom teaching was considered ‘sensationalist’.)

But the times are probably a-changing. Read the rest of this entry…

Filed under: EJIL Analysis, Study of International Law
 

A Follow-Up on International Arbitration under Pressure

Published on March 17, 2014        Author: 
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Given the dramatic events in Ukraine, investment law was unlikely to be high up on the international legal agenda these past few days. However, during the weekend, the debate about investor-State dispute settlement (ISDS) I described in my last post may have taken a new turn. On 14 March, the Financial Times reported that Germany – long the most ardent supporter of ISDS and the country with the largest number of Bilateral Investment Treaties – now pushes for the exclusion of dispute settlement provisions from the EU-US Trade and Investment Partnership. This is the relevant bit:

Germany has introduced a stumbling block to landmark EU-US trade negotiations by insisting that any pact must exclude a contentious dispute settlement provision. …. [I]n the biggest blow yet to those seeking its inclusion in the deal, Berlin has decided that it will push for the exclusion of the ISDS provisions …. A spokesman for the economy ministry in Berlin said on Friday that the government had relayed its position to officials in Brussels, where negotiators have ended a week of talks over the proposed Transatlantic Trade and Investment Partnership (TTIP). Earlier in the week, Brigitte Zypries, a junior economy minister, told the German parliament that Berlin was determined to exclude arbitration rights from the TTIP deal. “From the perspective of the [German] federal government, US investors in the EU have sufficient legal protection in the national courts,” she told parliament. The German position pits Berlin against the commission, the US and business groups. All of them argue that the transatlantic deal is an opportunity to update arbitration rights that already feature in existing bilateral investment treaties and are often open to abuse.

 And, as the FT went on, the German position is really something quite new:

Nicole Bricq, France’s trade minister, has raised concerns before over the ISDS provision. Germany has until now backed its inclusion in the new pact. But Berlin has also been confronted with growing public scepticism in recent months over the transatlantic deal as a whole, and the ISDS provision in particular. At a press conference to mark the close of the fourth round of negotiations on Friday, Dan Mullaney, the leading US negotiator, declined to comment on the German decision. Ignacio Garcia Bercero, the EU’s chief negotiator, also refused to comment on it. But he pointed out that the EU’s original mandate to negotiate specifically included an ISDS provision and had been approved by member states, including Germany. “We are working on the basis of the mandate that has been given to us,” said Mr Garcia Bercero.

So, Alessandra Asteriti may be right (in the comments to my previous post) in saying the ‘ground is shifting’.

Filed under: Bilateral Investment Treaties, EJIL Analysis, Inter-State Arbitration, International Economic Law
 

International Arbitration: Heating Up or Under Pressure?

Published on March 11, 2014        Author: 
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Dapo recently posted on this blog about the rise of inter-State cases before the PCA and predicted that “the current rise of inter-state arbitration will endure for some time“. Many readers will presumably be quite happy about the trend described: binding dispute resolution, if it happens, tends to make us international lawyers happy after all – so the more (cases) the merrier?

Interestingly, there is one branch of international law in which the debate currently seems take a different turn; in which the belief in binding dispute resolution is under attack – and in which many commentators, incl. many with an internationalist mindset and a keen desire for a rights-based global order, strongly feel that we have too much international arbitration. This is the field of investment law, in which the concept of investment arbitration has come under fire. Of course, this is an important debate for those interested in investment arbitration — academics, practitioners, companies, civil society, etc.  But, as importantly (if not more), it is also a debate that general international lawyers interested in dispute settlement should follow, and which I feel would benefit considerably if they did not leave it to the (pro- and anti-) investment communities. So this post is an attempt to introduce it to a wider audience and to encourage a wider debate. Within investment law, the debate has been going on for a while. However, over the past few months, it has suddenly heated up – and it has heated up in Europe, where the EU is formulating its investment policy. And this fresh start has opened up interesting spaces for debate. So what is it all about? Read the rest of this entry…

Filed under: Bilateral Investment Treaties, EJIL Analysis, Inter-State Arbitration, International Economic Law, International Tribunals, Investor-State Arbitration Tribunals, Mixed Arbitration, Permanent Court of Arbitration
 
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An EU-China Investment Agreement?

Published on October 15, 2013        Author: 
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Notes from Glasgow #1

EU China BITMany thanks to Dapo, Marko and Iain for inviting me to contribute to EJIL: Talk! on a regular basis. It’s a great blog, and it complements my favourite international law journal, so I accept with pleasure. The first of my ‘Notes from Glasgow’ focuses on international investment law – an area of law that EJIL: Talk! has, I think it is fair to say, so far approached with a measure of caution. Investment law is exciting, though: not so much because of the number of awards produced, week by week, by arbitral tribunals. (In fact, just tracing awards quickly becomes boring.) But rather because it is such an interesting field-study in how international law evolves, how ‘exotic’ branches are rapidly mainstreamed, and how they change in the process.

The latter aspect – change in international investment law – is the theme of the following thoughts. I take my cue from a resolution passed in the European Parliament (EP) on 8 Oct 2013. (See here for the BBC’s coverage of the debate.) As was reported in the media, the EP in principle approved the start of negotiations towards a China-EU Investment Agreement, but added a number of caveats: notably, according to a useful summary by the EP Library (which condenses the resolution’s 49 recitals and thus can be quoted meaningfully), the EP wants the future agreement to “ensur[e] equality of investment environments” in China and the EU, to include binding provisions on “social responsibility, social and environmental standards”, to protect European public services, and to be negotiated with maximum transparency. All this is interesting for a number of reasons. I’ll flag four of them, hoping to return to some of them in subsequent posts. (photo above left, accompanying China’s announcement that it will seek an investment treaty with the EU) Read the rest of this entry…

Filed under: Bilateral Investment Treaties, EJIL Analysis, Investor-State Arbitration Tribunals
 
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