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Home Archive for category "EJIL Article Discussion" (Page 3)

Joint Symposium with Opinio Juris: Simon Chesterman’s ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures’

Published on January 16, 2017        Author: 
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This week we will be jointly hosting a symposium with Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law.

Today, both blogs will feature an opening post by Simon Chesterman. We will then host a post by Eyal Benvenisti, which will be followed by a post on Opinio Juris by Tony Anghie. On Tuesday, EJIL:Talk! will feature a contribution by Robert McCorquodale and Opinio Juris will feature B.S. Chimni‘s thoughts. This will be followed on Wednesday with articles by Judge Jin-Hyun Paik (EJIL:Talk!) and Judge Xue Hanqin (Opinio Juris). Finally, on Thursday, Simon Chesterman’s closing remarks will feature on both blogs.

We thank all of those who have contributed to this fascinating symposium.

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EJIL:Talk! Article Discussion: Reply to Tams, Kufuor and de Wet

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Our heartfelt thanks to the editors of EJIL:Talk! for convening an online symposium to discuss our recently-published EJIL article, Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. We are also grateful to Kofi Kufuor, Christian Tams, and Erika de Wet for their thoughtful comments. We hope that our study will convince other scholars to, as Tams suggests, “take [] lesser-known courts seriously,” especially those operating in developing country contexts. In this brief reply, we respond to several points made by the three distinguished commentators and situate our article’s findings in a wider perspective.

Our article ends with a discussion of whether governmental efforts to sanction or reform the three sub-regional courts succeeded or failed. Erika de Wet explains that the SADC story did not actually end with the adoption of the new Tribunal protocol. She provides helpful additional information about why Zimbabwe felt targeted by the Tribunal, and she convincingly argues that the attempt by civil society groups to challenge the new protocol before the African Union’s human rights institutions was a strategic misstep.

De Wet also mentions efforts to pressure SADC member states “to revoke their previous decisions to abolish the individual complaints procedure.” Like de Wet, we are skeptical that any litigation strategy can reverse this political decision. There is still an open question as to whether other advocacy strategies might change the status quo. A more promising avenue for advocates to pursue includes lobbying SADC member states to reconsider or refrain from ratifying the 2014 Protocol — thereby preventing its entry into force. But blocking the creation of a Tribunal whose jurisdiction is limited to interstate disputes will be far easier than convincing national political leaders to revive a sub-regional court that includes individual access. Read the rest of this entry…

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Reactions to the Backlash: Trying to Revive the SADC Tribunal through Litigation

Published on August 5, 2016        Author: 
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Introduction

In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.

At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.

Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)). Read the rest of this entry…

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The Importance of History in Understanding African Integration

Published on August 5, 2016        Author: 
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We live in an era of international courts; since the explosion in international, regional and sub-regional organizations, the world has seen a number of these organizations create judicial organs to clarify treaty law and thus resolve any disputes between the parties to treaties and any disputes between private actors and their governments.

Africa came late to creating regional sub-regional courts – this being explained by the suspicion of domestic judges, and the belief that international relations were the preserve of the executive arm. However it is interesting to note that Africa’s sub-regional courts are the focus of a burgeoning scholarship with a particular stress on how they fit into the matrix of treaties, protocols and domestic politics of the states that have created them. Thus the paper by Alter, Gaathi and Helfer (AGH) – “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” – is a welcome addition to understanding Africa’s transnational judicialism.

However as exposed by AGH not all is plain sailing with attempts by member states of sub-regional organizations to undermine, if not dismember, the judicial organs they have created. The explanation by AGH is thorough; disassembling the intricate moves, legal, organizational and diplomatic, to gut courts in ECOWAS, SADC and the EAC. AGH focus on moves by Gambia, Zimbabwe and Kenya. They seek to explain why Gambia failed, Zimbabwe succeed and Kenya found itself somewhere in between success and failure. AGH provide a very sound analysis and I am of the view that their work carries out important spadework as dissecting the “backlash” against transnational courts is essential for those scholars, activists and policy-makers with an eye on deeper integration in Africa.

However, there is the need for further exploration to enable the understanding of the progress or otherwise, of transnational judicialism. Thus I suggest observers should widen the scope of the analysis set in motion by AGH. Read the rest of this entry…

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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…

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Backlash Against International Courts in West, East and Southern Africa

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Scholars have studied backlash against international courts (ICs) for more than a decade. While Cassandra-like warnings about backlash seldom materialize, Alter (2000) and Helfer (2002) documented examples of government court-curbing campaigns in Europe and the Caribbean. One can question the effectiveness of these backlash efforts, which did not fundamentally change the design or the practices of the targeted ICs and review bodies. In fact, over the last forty years, nearly every revision of the structure and mandate of ICs has expanded jurisdiction, widened access rules or strengthened judicial sanctioning powers (See Alter 2014, 84-86 and Gathii 2013, 260-261 and Gathii 2016, 40).

Our EJIL article, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, considers three more recent efforts to thwart or cow international judges. These efforts are noteworthy in that governments advanced concrete and credible proposals to limit the power of ICs in response to politically embarrassing rulings. The three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.

Our account of these backlashes – which includes information about the court-curbing campaigns that is not widely known – explains why it is difficult for governments to seriously sanction ICs in response to adverse rulings. This introduction to the EJIL:Talk! symposium relating to our article summarizes why the ECOWAS backlash failed, the EACJ backlash was redirected, and the SADC Tribunal backlash succeeded. Read the rest of this entry…

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Discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer’s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 
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This week we will be hosting a discussion of Karen J. Alter, James T. Gathii and Laurence R. Helfer‘s article Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. The article is the free access article in the new issue of the European Journal of International Law (Vol. 27, No. 2), which is now out. It offers an insightful and timely discussion of the causes and consequences of state backlash against sub-regional courts across the African continent.

Karen J. Alter is Professor of Political Science and Law at Northwestern University, and a permanent visiting professor at the iCourts Center for Excellence, University of Copenhagen Faculty of Law. Alter is author of the award-winning book The New Terrain of International Law: Courts, Politics, Rightsand numerous books and articles. Her research focuses on the judicialization of international relations, and global capitalism and law.

Professor James Thuo Gathii is the Wing-Tat Lee Chair of International Law at Loyola University Chicago School of Law. His research and teaching interests include African national and international judiciaries, African regional integration as well as international trade and public international law. He has published two books with Cambridge and Oxford University Presses and over 80 law review articles and book chapters. His forthcoming book is The Contested Empowerment of Kenya’s Judiciary 2010-2015: A Historical Institutional Analysis, Sheria Publishing House, (2016).

Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a Permanent Visiting Professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen. Helfer has authored more than 70 publications and has lectured widely on his diverse research interests, which include the interdisciplinary analysis of international institutions, international courts, and international human rights law.

The article and the issues it raises will be subjected to scrutiny and further comment this week by Christian J. Tams, Kofi Oteng Kufuor and Erika de Wet. We are grateful to all of the participants for agreeing to have this discussion here.

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New EJIL:Live! Interview with Karen Alter on Backlash against International Courts in West, East and Southern Africa: Causes and Consequences

Published on August 3, 2016        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Karen Alter, Professor of Political Science and Law at Northwestern University, about the article she co-authored with James T. Gathii and Laurence R. Helfer, “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences”, which appears in EJIL, Volume 27, Issue 2. The video begins with a short discussion of Professor Alter’s experience as a political scientist entering the world of law, especially the initial reception to her work and the difficulties translating between the respective languages of these two fields. After an outline of the article, the conversation turns to the scientific dimension of the research. Professor Alter discusses how she and her co-authors set out to understand the dynamics of the politics of backlash, and why the sanction against the Court ultimately succeeded in the case of the SADC. The interview concludes with a discussion of the uncertain boundaries of the politics of backlash and plans for further research into other regional organisations as well as the International Criminal Court. The interview was recorded at the European University Institute.

We will be running a discussion on the article on the EJIL: Talk! blog this week.

We welcome comments and reactions to EJIL: Live!, as well as to our article discussion.

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Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 
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Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

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Induction, Assertion and the Limits of the Existing Methodologies to Identify Customary International Law

Published on December 2, 2015        Author: 
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Professor Talmon’s article on the methodologies employed by the International Court of Justice to ascertain custom is as important as it is timely now that the International Law Commission is advancing with its study on the identification of customary international law. To contribute to the debate, I propose to elaborate on a crucial question that the piece raises. Why is it that the Court so often resorts to ‘asserting’ customary international law instead of providing more robust reasoning to back up the rules that it identifies? Though the precise reasons why the Court takes the approach it does are a matter for speculation, I suspect that this has to do with limitations that are inherent to the standard methodology to establish custom (the ‘inductive method’, to use Professor Talmon’s terminology), in the shaping of which the Court itself has played a large part.

As Professor Talmon suggests, systemic reasoning – argument by principle and argument by analogy – has been a major catalyst for development in international law, filling gaps that would be left behind if the inductive method were applied. Yet, the inductive method is the best accepted methodology to identify custom insofar as it encapsulates the prevailing view as to what is required by the ‘rule of recognition’ of international law.

The problem with that ‘rule of recognition’ is that it does not allow us to reach any firm conclusions as to the existence of particular rules of custom. That becomes clear when one dissects the inductive method as defined and applied by the International Court. Read the rest of this entry…

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