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Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 

The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges. Read the rest of this entry…

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EJIL: In this Issue (Vol. 28 (2017) No. 3)

Published on November 7, 2017        Author: 

This issue opens with three articles addressing trade and investment in international law from different perspectives. In a valuable and timely contribution to the literature on the interpretation of investment treaties, Andrew Mitchell and James Munro consider whether the use of a third-party agreement in interpretation constitutes an erroneous application of the customary rules of treaty interpretation in the Vienna Convention on the Law of Treaties. Gracia Marín Durán then explores the respective responsibility of the European Union and its member states for the performance of World Trade Organization obligations, proposing a ‘competence/remedy’ model to help untangle this delicate question. And Sergio Puig and Anton Strezhnev investigate the legitimacy of international investment law, based on an experimental survey of 266 international arbitrators, concluding that there is strong evidence that arbitrators may be prone to the ‘David Effect’ – a relative bias to favour the perceived underdog or ‘weaker’ party when that party wins, through reimbursement of their legal costs.

The next set of articles in this issue focuses on human rights, with particular attention to the European Court of Human Rights (ECtHR). Merris Amos examines the continued value of the ECtHR to the United Kingdom, illustrating what might happen if the UK were to withdraw from the Court. Susana Sanz-Caballero investigates the scope of applicability of the nulla poena sine lege principle before the ECtHR, looking especially at the decisions in Kafkaris and del Río Prada to highlight the Court’s increasingly flexible approach to the concepts of penalty, foreseeability and enforcement of penalty. Oddný Arnardóttir argues that the Court has effectively used the margin of appreciation to engender an erga omnes effect for its judgments through the principle of res interpretata. Vera Shikhelman offers a fresh, empirical look at the work of the United Nations Human Rights Committee, exploring whether geographical, political and cultural considerations correlate with the voting of committee members. Lastly, Thomas Kleinlein addresses an important development in the ECtHR jurisprudence, positing that the Court’s legitimation strategy – comprising European consensus and the new procedural approach to the margin of appreciation – enhances the potential for democratic contestation and deliberation.

Roaming Charges in this issue takes us to the Negev Desert in southern Israel, where the photographer, Emma Nyhan, poignantly captures the ‘outsideness’ of a cultural minority, the Bedouins.

This issue features a lively EJIL: Debate!, centring on an article by Jonathan Bonnitcha and Robert McCorquodale, which addresses the concept of ‘due diligence’ in the United Nations Guiding Principles on Business and Human Rights. The authors criticize the uncertainty caused by two different concepts of due diligence invoked by the principles and suggest an interpretation of the Guiding Principles that clarifies the relationship between these concepts. John Ruggie (the author of the Guiding Principles) and John F Sherman, III, respond to the article, questioning the interpretive approach adopted by Bonnitcha and McCorquodale. The authors then offer a rejoinder. Read the rest of this entry…

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On My Way Out – Advice to Young Scholars V: Writing References

Published on July 6, 2017        Author: 

I have most certainly 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 dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the fifth instalment and regards that staple of academic life: writing references.

If you are at the beginning of your career as a teacher it is likely that until now you have mostly been the recipient of references rather than the writer of such. Let us separate the writing of references for entry-level candidates seeking an initial teaching appointment or for colleagues in the process of tenure or promotion from references for students seeking admission to graduate programmes, which is likely to be the bulk of your reference writing. I do write references from time to time – though, as you will see, I am quite circumspect in accepting to do so. But since I have, throughout my career in the United States, been involved almost without interruption in the direction of graduate programmes at three major universities (Michigan, Harvard and NYU) I must have read – no exaggeration here – thousands of reference letters for potential masters’, doctoral and postdoctoral candidates. And though you are likely to think that the following is hyperbole, I will state here too, with no exaggeration, that a very large number of these references were worthless or close to worthless.

The following is a generalization, meaning that there are plenty of exceptions, but academic (and public life) culture are hugely impactful in determining the quality of a reference. In many Continental European countries and in many Asian countries – some more, some less, there are also North–South variations – it appears that who writes the reference seems to be more important than the content of such. Applicants will go to great lengths to receive a reference not from the Assistant, or Privatdozent or Maître de Conference etc. with whom there may have actually been a much closer intellectual and academic relationship but from a ‘famous’ professor or judge on the Supreme or Constitutional Court and not infrequently even ministers and the like. It must be a spillover from a more general culture of the labour market. Since the who is more important than the what, the content of these references is predictably short and vacuously laudatory. The ‘big name’ might have scant knowledge of the candidate and in a more or less subtle manner the burden of the reference is ‘You should admit X because I (the big name) think you should.’ Often you can tell that the candidate himself or herself had a hand in drafting the reference. One tell-tale sign is similar phraseology in the reference and the personal statement of the candidate. This scandalizes me less than you might imagine, since it is so often the case that the structure of legal education in many of these countries, with large classes and frontal teaching, means that the professor has, at best, a superficial knowledge of the applicant. What can he or she write? This is typically true of Central and South America too. Read the rest of this entry…

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EJIL: In this Issue (Vol. 28 (2017) No. 2)

Published on July 5, 2017        Author: 

This issue opens with a set of articles that address a range of centrally important theoretical and doctrinal issues. The first, by Niels Petersen, addresses an evergreen topic in general international law, which has been the subject of several studies in this Journal over the past few years: the identification of customary international law by international courts and tribunals. Petersen seeks to explain why the International Court of Justice rarely conducts a detailed analysis of state practice in identifying customary norms, by reference to the specific institutional constraints that the Court faces. In our second article, Bernard Hoekman and Petros Mavroidis analyse the ambiguities in scheduling additional commitments for policies affecting trade in goods in the GATT compared to the process under the GATS. Next, Janis Grzybowski offers a novel perspective on the old debate about the identification of states, deconstructing the accepted criteria and provoking deeper reflection on the role of ‘silent ontological commitments’ in legal assessments of statehood. Noëlle Quénivet questions whether international law should prohibit the prosecution of children for war crimes, taking this problem as an opportunity to test some of the basic assumptions underpinning the current law and examining the relationship between restorative, retributive, and juvenile rehabilitative justice mechanisms. The final article in this section, by Yota Negishi, proposes that the pro homine principle should serve as a point of focus – and thereby, also, of harmonization – for both conventionality and constitutionality control exercises undertaken by domestic courts.

The second set of articles forms the Focus of this issue: international legal histories – looking back to the twentieth century. In the first article, Giovanni Mantilla revisits the signing of the 1949 Geneva Conventions by the United States and the United Kingdom. He uses the reasoning of these states for signing as the basis for a reflection on contemporary discussions of treaty commitments and the pressure of social conformity. Next, Narrelle Morris and Aden Knaap present a carefully researched examination of the United Nations War Crimes Commission and its problematic relationship with member nations. Finally, Felix Lange offers a rich account of the discipline of international law in Germany between the 1920s and the end of the Cold War.

In our Roaming Charges contribution, by Viorica Vita, a solitary figure seeks to carve out a living selling love locks on a bridge in Rome. Read the rest of this entry…

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In Memoriam: Vera Gowlland-Debbas

Published on March 30, 2017        Author: 

22 September 1943 – 29 September 2015

Vera Gowlland-Debbas was a dedicated and active member of EJIL’s Scientific Advisory Board from 2007 to 2012. Her loss has been deeply felt. In this Editorial, Marcelo Kohen, Professor of International Law at the Graduate Institute in Geneva and her long-time colleague, pays homage to Vera’s lasting contribution to the field of international law.

On 29 September 2015, Vera Gowlland ultimately lost her battle with a cruel disease that she had fought with courage and dignity. This is a great loss not only for the Graduate Institute of International and Development Studies, where she completed her licence and her doctorate, served in the publications department and taught from 1994 until her retirement in 2009, when she became an honorary professor. It is also a great loss for international law and for the values she defended.

Despite her illness, Vera continued to work in a variety of ways in our discipline, giving counsel on issues related to the International Criminal Court and continuing her contribution to academia. Her last physical presence at an academic event was as the Chair of a panel at a symposium on ‘International Law and Time’, held in Geneva on 12-13 June 2015, at which, without knowing it, she was to say farewell to her colleagues and students. While her voice was wavering, her spirited enthusiasm remained clear to see, and her joy at sharing this academic event at the institution where she had so often taught and organized academic activities herself was apparent.

Vera’s intellectual contribution is a distinguished legacy. She always had a tremendous appetite for problem-solving. Her doctoral thesis, written during the Cold War period and entitled: ‘Collective Responses to Illegal Acts in International Law’, focused on the reaction of the international community to the alleged creation of the racist state of Southern Rhodesia at a time when the active use of Chapter VII of the United Nations Charter had not been seriously considered. This appetite was also reflected in her monumental work on the national implementation of sanctions adopted by the Security Council, which provides important guidance and remains the most comprehensive and significant work in this field. Her course at the Hague Academy of International Law on the Security Council and questions of international responsibility complements her long record of publications and confirms her reputation as an uncontested specialist of the United Nations. Read the rest of this entry…

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Vital Statistics

Published on March 29, 2017        Author: 

Each year we publish statistics on the state of our submissions: who submitted, who was accepted, and who was published in EJIL during the previous 12 months. We do this in order to observe and understand any changes that may be taking place in submission and publication patterns in our Journal. We do this, too, because we publish the very best manuscripts submitted to EJIL, selected through our double-blind review process. We offer no affirmative action in selection. Rather we look for excellence, articles that will be read, recalled, referred to and cited in years to come.

Of course, the EJIL Editors do commission some articles. We would risk becoming merely a refereeing service if we relied only on unsolicited manuscripts. Again, statistics are important in order to check that we are getting the balance right. For the past three years the percentage of unsolicited manuscripts has remained stable at around 65 per cent or two-thirds of the total, which we consider to be a sound balance.

The percentage of manuscripts submitted by women authors this past year dropped slightly to 32 per cent, although 33 per cent of accepted submissions were by women and the figure for published articles was 35 per cent. These figures do not differ markedly from previous years. Nevertheless, it is encouraging to see that the percentages of accepted and published articles submitted by women reflect or even surpass the percentage of overall submissions by women. Read the rest of this entry…

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EJIL: In this Issue (Vol. 28 (2017) No. 1)

Published on March 29, 2017        Author: 

This issue opens with the third entry under our annual rubric, The EJIL Foreword. In keeping with the rubric’s mission statement, Laurence Boisson de Chazournes takes a broad and sweeping view of the proliferation and consequent pluralism of international courts and tribunals. In doing so, she argues that an ‘overarching managerial approach’ may be observed in various practices of both judicial and state actors, and notes still other methods that could strengthen this approach.

The next three articles in this issue address the processes of international law-making from a variety of perspectives. In the first regular article, Florian Grisel assesses the top-down processes informing transnational governance. Grisel utilizes the example of the drafting of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the involvement of the International Chamber of Commerce experts to illustrate how transnational expert networks can contribute effectively to the process of treaty-making. Taking on the involvement of non-state actors from another perspective, Nahuel Maisley argues that Article 25(a) of the International Covenant on Civil and Political Rights should be interpreted as giving civil society groups a right to participate in international law-making. In their article, Armin von Bogdandy, Matthias Goldmann and Ingo Venzke then address the implications of the proliferation of international institutions, advancing a theory of ‘public international law’ which regards such institutions as exercising ‘international public authority’ and seeks to take account of world public opinion in enhancing their legitimacy and effectiveness.

In a shift of topic, Natalie Davidson revisits the seminal Alien Tort Statute cases of Filártiga and Marcos. In exploring the historical narratives produced in these two cases, Davidson’s article seeks to challenge some of the sanguine assumptions of international human rights lawyers and lay bare the ‘deep foundations of violence’ in the international system and US foreign policy. Relatedly, Alejandro Chehtman examines the moral and legal permissibility of the use of remotely piloted aircraft systems, challenging the intuitive view that the use of drones will contribute to making the use of force proportionate in a wider set of circumstances. Read the rest of this entry…

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Updated Rules for Contribution to the Blog

Published on March 2, 2017        Author: 

We have recently updated our rules for contribution to the blog, which interested readers may find here. This includes guidelines for submitting posts for publication and for commenting on the blog, as well as our moderation policy. Anyone interested in contributing to the blog should consult these guidelines carefully.

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On My Way Out IV – Teaching

Published on January 25, 2017        Author: 

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: 

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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