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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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Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?

Published on December 19, 2017        Author:  and
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One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).

While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges. Read the rest of this entry…

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The International Criminal Court Gets Jurisdiction Over the Crime of Aggression

Published on December 15, 2017        Author: 
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The Assembly of States Parties to the Statute of the International Criminal Court has, overnight (New York time), adopted a resolution which activates the jurisdiction of the Court over the crime of aggression. This was the culmination of intense negotiations at the ICC’s 16th ASP which has been meeting in New York over the past 2 weeks. Indeed, activation of the crime of aggression today brings to a close negotiations which have taken place over decades regarding the jurisdiction of the Court over that crime. States Parties agreed in Rome in 1998 to include the crime of aggression in the ICC Statute but suspended ICC jurisdiction over the crime until they could agree on a definition and conditions for the exercise of jurisdiction. This they did at the Kampala Review Conference in 2010 but again agreed to suspend jurisdiction over the crime until at least 30 States had ratified or accepted the amendments, and until a decision of the ASP to activate jurisdiction with that decision not to take place before 1 January 2017. So, activation of jurisdiction was the final step in a long journey and it was this momentous step taken by the ASP overnight.  The text of the resolution adopted, by consensus, is available here. By paragraph 1, the ASP

“Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018.”

This means the Court will be able to exercise jurisdiction over aggression 20 years, to the day, after the adoption of the ICC Statute in Rome in 1998.

The key issue that divided the parties leading up to the ASP and was whether the Court would be able to exercise jurisdiction with respect to the crime of aggression over the nationals of states parties to the Statute who have not ratified the aggression amendments and who also do not opt out. Many states, led by Liechtenstein, had taken the view that nationals of such states would be subject to the Court’s jurisdiction if they committed the crime of aggression on the territory of a state party that had ratified or accepted the Kampala Amendments (the wide view). However, another group of states, led by the UK, France, Japan, Canada, Norway, Colombia had taken a narrow view. They argued that in the case of state referrals or proprio motu investigations the Court would not have jurisdiction over aggression committed by nationals of non-ratifying states or on their territory. The competing arguments on this question were set out in previous posts by me (arguing for the narrow view) and by Stefan Bariga (arguing for the wide view). Ultimately, after very fraught negotiations on this issue, which extended well into the night and beyond the original time scheduled for completion of the ASP, the ASP adopted a resolution confirming the narrow view. Read the rest of this entry…

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Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Published on December 13, 2017        Author: 
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On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.

The UK Total Exclusion Zone

A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae.  In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack. Read the rest of this entry…

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UNCITRAL and ISDS Reform: Pluralism and the Plurilateral Investment Court

Published on December 12, 2017        Author: 
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As described in a previous post, the UNCITRAL mandate on the possible reform of investor-state dispute settlement (ISDS) requires states to first identify and consider concerns regarding ISDS before going on to consider and develop any relevant reforms. Although states in the November 2017 session did not debate potential reforms, different solutions lurked in the room like elephants, often seeming to inform the positions taken by various delegations on whether particular issues (such as inconsistency) amounted to “problems.”

In particular, a division appeared to be evident between some states that seem inclined (at least presently) toward incremental, bilateral reforms (such as the US and Japan) and others that openly embrace systemic, multilateral reform (such as the EU and Canada). This positioning reflects broader dynamics about debates over ISDS reforms, in which the issue is often framed as a comparison of the relative merits of investor-state arbitration and a multilateral investment court with states staking out positions as loyalists or reformists respectively.

This dichotomy is false and unhelpful, however, because it presents ISDS reforms as requiring a binary choice. To start with, these are not the only choices. In addition to states that favour incremental and systemic reforms of the existing system, there are states that reject the need for international claims by investors at all. These revolutionaries include Brazil, which has embraced an Ombudsman model followed by state-to-state dispute settlement, and South Africa, which has opted primarily for protection via national legislation and courts. Read the rest of this entry…

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UNCITRAL and ISDS Reform: Not Business as Usual

Published on December 11, 2017        Author: 
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In late November 2017, states from around the world convened in Working Group III at UNCITRAL in Vienna to begin debates about the possible reform of investor-state dispute settlement (ISDS). In accordance with the UNCITRAL mandate (see  Annotated Provisional Agenda) that was given in July 2017:

The Working Group would proceed to: (i) first, identify and consider concerns regarding ISDS; (ii) second, consider whether reform was desirable in light of any identified concerns; and (iii) third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission.

I attended the Working Group III meetings as an independent legal expert on the Australian delegation, though anything I write is attributable to me personally not Australia. Given the potential importance of these reform efforts, and the public interest in them, this post marks the first in a series that seeks to explain and contextualise the UNCITRAL ISDS reform process. These posts are consistent with the mandate’s call for the process to be “fully transparent” (see  Annotated Provisional Agenda). Recordings of the session are also available online.

The UNCITRAL debates on ISDS reforms are highly political. On an international level, states have split on whether to embrace ISDS and, if so, whether international claims by investors would be better heard by ad hoc arbitral bodies or a permanent investment court. On a domestic level, ISDS has proved highly controversial in a number of states, resulting in strong pushback. Dealing with such a highly charged issue is certainly not “business as usual” for UNCITRAL. This was evident in the November meetings in two key ways. Read the rest of this entry…

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New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Published on December 7, 2017        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

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Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Published on December 5, 2017        Author: 
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On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. Read the rest of this entry…

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An Eventful Day in The Hague: Channeling Socrates and Goering

Published on November 30, 2017        Author: 
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Yesterday the ICTY delivered its very final appeals judgment, in the case of Prlic et al, finding all of the defendants – political and military leaders of Bosnian Croats – guilty of crimes against Bosnian Muslims, and affirming the sentences passed on them by the trial chamber (summary; judgment). Yesterday, also, one of the defendants in the case, Slobodan Praljak, a general during the Bosnian conflict but by formal training a rather eclectic individual with degrees in philosophy, sociology, and theatre from the University of Zagreb, committed suicide in the courtroom. He did so by standing up in the dock, loudly declaiming to the judges that: “Slobodan Praljak is not a war criminal and I reject your judgment with contempt” [yes he did that very nice thing of referring to himself in the third person], and then drinking a vial of poison in full view of the (visibly shocked) judges, and the cameras. The video of this dramatic one-upmanship of Socrates and Hermann Goering, the first (and hopefully last) for an international courtroom, is here.

Like in the Mladic case, the reaction to the judgment was predictably nationalist and predictably depressing. The prime minister of Croatia – a member state of the EU – completely rejected the judgment, saying that it constituted a grave moral injustice against the defendants and the Croatian people as a whole. So did the Croat member (and current chairman) of the Presidency of Bosnia and Herzegovina, who stated that Praljak was prepared to sacrifice his very life to show to the world and to a political court that he was in fact innocent. This martyrdom narrative is now bound to feed Croat nationalism for a long, long time. The principal reason for all this ire is not so much the conviction as such, but the Appeals Chamber’s confirmation of the finding at trial that the defendants participated in a joint criminal enterprise together with leaders from Croatia, including President Tudjman, whose purpose was to consolidate a Croat entity in Bosnia through the ethnic cleansing of Bosnian Muslims. This is also coupled with the findings about Croatia’s control over Bosnian Croat forces and the characterization of the armed conflict as international, i.e. inter-state, in nature.

What of the judgment more generally? It is very long (more than 1400 pages), longer than most ICTY appeals judgments. This is largely the product of numerous problems, errors in law and reasoning in the trial judgment – itself caused to no small degree by the peculiarities of the presiding trial judge (remember the Seselj acquittal? Yes, that guy.). Yet despite the many problems, and reversals on numerous points, the Appeals Chamber essentially endorsed the basic factual and culpability account of the trial judgment, saying that the totality of the crimes for which the defendants have been convicted suffices for the sentences they have been given. Throughout its judgment the Appeals Chamber is in a constructive, repair mode in relation to the trial judgment, especially when compared to the hypercritical deconstructivism in the Gotovina judgment.

There are many legally interesting issues in the case of broader import. First, the Chamber’s approach to the classification of the armed conflict in Bosnia and the scope of application of the Geneva Conventions. Second, similarly, the Chamber’s application of the law of occupation, and its finding that Croatia was occupying parts of Bosnia through its proxies. Third, and most controversially, its reversal of the majority trial chamber finding that the destruction of the Old Bridge (Stari Most) in Mostar constituted a war crime of wanton destruction of property not justified by military necessity. Judge Pocar dissented on this point very energetically. Essentially the Chamber found that (1) the bridge was a military objective, as it was being used by Bosnian Muslim forces; (2) therefore the destruction of the bridge could not be ‘wanton’, even if it was disproportionate in its impact on the civilian population under IHL; (3) the Trial Chamber found no other property destroyed in this event; (4) therefore an element of the crime was missing or unproved. The judgment thus does not directly engage with the ‘pure’ IHL proportionality question, as the majority and dissent did at trial. Finally, the analysis of JCE is very dense and fact-specific; one particularly interesting set of issues dealt with the inconsistent terminology used in the French original of the trial judgment and its impact on the relevant mens rea standard.

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