magnify
Home Archive for category "EJIL Trivia"

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

Published on November 11, 2017        Author: 

On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 13. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. Read the rest of this entry…

Print Friendly
 

Trivia: International Organizations Headquartered in Non-Member States

Published on May 5, 2017        Author: 

Michael Waibel’s post of yesterday highlighted one of the significant issues that will need to be sorted out in the Brexit negotiations between the UK and the EU. Another issue, though of less significance, that will need to be resolved is the (re)location of a couple of EU agencies that currently have their headquarters in London: the European Medicines Agency (EMA) and the European Banking Authority (EBA). It has been reported that the EU, understandably, wishes to move these agencies out of London once Britain leaves the EU and apparently a number of cities are competing to have these agencies relocated to them (see here and here). However, it has also been reported that Britain would like to keep these agencies located in the UK even after Brexit.

“David Davis, Brexit secretary, does not accept that the two agencies and roughly 1,000 staff will have to move from London’s Canary Wharf, even though the EU is about to run a competition to relocate them. A UK Brexit department spokesman said: ‘No decisions have been taken about the location of the European Banking Authority or the European Medicines Agency — these will be subject to the exit negotiations.’

The government has left open the possibility of keeping part of some EU agencies, at least in the short term, but the idea of the UK hosting key institutions after Brexit is unacceptable in Brussels.”

While the idea that EU institutions may remain based or even headquartered in the UK after the UK remains in the EU might, at first sight, seem unrealistic, it should be remembered that Geneva was the “European headquarters” for many decades when Switzerland was not a member of the United Nations. Switzerland only joined the UN in 2002, over 50 years after the UN was formed and had based its major European office there.

From time to time I have posed trivia questions on the blog, but usually related to international tribunals. This time I have a question that relates to international organizations.

My question is this: Which international organizations have their headquarters or main offices located in a non-member state?

Read the rest of this entry…

Print Friendly
 
Tags:

Outcome of 2016 Elections to the International Law Commission + Trivia Questions

Published on November 5, 2016        Author: 

On Thursday the United Nations General Assembly (GA) elected the individuals who will serve in the International Law Commission (ILC) for the five year term beginning in 2017. The Commission, which is a subsidiary organ of the GA, has a mandate to assist in the codification and progressive development of international law. It is composed of 34 members who serve in their individual capacities.  The outcome of the elections held on Thursday can be viewed here. A number of excellent academic international lawyers were elected to the Commission for the first time, most notably August Reinisch (Austria), Charles Jalloh (Sierra Leone) and Claudio Grossman (Chile) who all have impressive academic credentials as well significant practical experience of international law.  The Commission will benefit from their addition. However, as is often the case with UN elections, there are some surprises in the result, with some excellent academic international lawyers also failing to be elected to the Commission, particularly Mathias Forteau (France), Chester Brown (Australia) , Tiya Maluwa (Malawi), and Marcelo Kohen (Argentina) – all of whom also have impressive academic credentials and significant practical experience of international law.

There is a very marginal improvement in the position of women on the ILC. There will be three four women on the ILC, with Patrica Galvão Teles (Portugal), Marja Lehto (Finland), and Nilüfer Oral (Turkey)  joining Concepción Escobar Hernández (Spain) who was re-elected. It is very worrying that in the history of the Commission, only 6 7 women have been members and this is the first time that 3 more than 2 women will be serving together. Still, even on the new Commission,  fewer only slightly more than 10% of its members will be women. (Update: corrections in italics because of the comments below)

One other remarkable feature of the elections just concluded was that two of those nominated for the ILC in this round were previously judges on international tribunals. Read the rest of this entry…

Print Friendly
 

Provisional Measures and Joinder of Cases at the International Court of Justice – The Answers

Published on January 18, 2016        Author: 

Earlier this month I asked four trivia questions about the International Court of Justice’s (ICJ) practice on provisional measures and joinder of cases. The questions were prompted by the ICJ’s recent Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). I also stated that the first person to provide the most correct answers would win a year’s free subscription to the European Journal of International Law prize. Within minutes of my piece being posted, Niccolò Ridi (right, who is doctoral candidate at the Dickson Poon School of Law,  King’s College London and Research Assistant at the Graduate Institute of International and Development Studies in Geneva) had provided comprehensive answers to all four questions. His quickness off the mark hardly gave anybody else a chance! He later added to his answers with subsequent comments, and is very deserving of the prize!

My first question was “1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?” Niccolò is absolutely right to note that the use of the singular – ‘case’ – in my formulation is incorrect. The Court has made such a finding in the dispositif of a judgment in a few cases. The first case in which the Court did so was the La Grand case (Germany v the US) 2001. That was the first case in which the Court held that provisional measures orders were legally binding, and it is only since that judgment that the Court has included declarations of non-compliance with provisional measures in the dispositifs of judgments. Massimo Lando and Niccolò are also right that the Request for Interpretation of the Avena Judgment (Mexico v US); the Armed Activities case (DRC v Uganda); and the Bosnia Genocide (Bosnia and Herzegovina v Serbia and Montenegro) case are other cases where the Court has found non-compliance with provisional measures. Indeed, it seems to be the case that, since LaGrand, in the majority of judgments dealing with cases where the Court has ordered provisional measures, it has subsequently made findings of violations of its interim orders. Two cases where the ICJ has not, in that time period since LaGrand, made such findings are the Land and Maritime Boundary (Cameroon v Nigeria) case (2002) and the Request for Interpretation of the Judgment in the Temple of Preah Vihear (Cambodia v. Thailand) case (2013). By my count that makes it 5 cases of findings of non-compliance with 2 cases of no such finding. These are not encouraging statistics regarding compliance with provisional measures!

Which Cases have been Joined?

Question 2 asked “In which proceedings have cases before the International Court been joined?” Niccolò was correct in referring to the South West Africa cases (Liberia & Ethiopia v South Africa) and the North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands). Those were indeed the two cases where the ICJ has formally joined proceedings (I later realized that I had made a gaffe in my earlier post in referring to this press release as the answer to the question was made plain there).  Read the rest of this entry…

Print Friendly
 

Trivia Competition: Provisional Measures and Joinder of Cases at the International Court of Justice

Published on January 8, 2016        Author: 

A few years ago I began the practice of asking on this blog – every now and again – trivia question relating to international law, with the questions focusing mainly on the practice of the International Court of Justice (ICJ) and other international tribunals. Unfortunately, I have not done this in quite a while. You can find previous questions (and answers) here or by viewing the EJIL:Trivia category in the list of categories on the right hand column of the blog. Last month, the International Court of Justice delivered its Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). This judgment and the cases provide me with an opportunity to ask a set of trivia questions relating to the ICJ.

On this occasion, we will offer a prize to one respondent. The person who provides the most correct answers will win a free subscription to the European Journal of International Law for 2016. In the case of a tie, the first person to provide their answers will be the winner.

In the Costa Rica v. Nicaragua case, the Court found that “Nicaragua has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 8 March 2011”. This is a relatively rare finding by the Court that a party has breached a provisional measures Order indicated by the Court earlier in that case. This finding was not merely made in passing but was recorded in the dispositif of the judgment. My first question is a perhaps an easy one:

1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?

The rest of my questions relate to joinder of cases at the ICJ. The Costa Rica v Nicaragua and Nicaragua v Costa Rica cases began as separate proceedings which were joined together by the Court in 2013 (see this press release). Under Article 47 of the Rules of the ICJ,

The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common;  or the Court may, without effecting any formal joinder, direct common action in any of these respects.”

There are not too many cases that have been joined by the Court and my second question is this:

2) In which proceedings have cases before the International Court been joined?

Read the rest of this entry…

Print Friendly
 

Announcing the OPIL World Cup Challenge

Published on June 11, 2014        Author: 

In nearly 20 years of legal publishing nobody has ever sent me a proposal for a book on football and international law. It’s not like there is any lack of international legal issues to be addressed – dispute settlement, IP, workers’ rights, corruption – the list goes on.  Perhaps many of the issues are more matters of private than public law but with the ongoing blurring of that distinction it could equally be the case that the time is ripe for a thorough scholarly investigation.

In an effort to marry up interest in public international law and football, and also to provide a bit of a distraction from all the sports coverage, we have devised the Oxford Public International Law World Cup Challenge. The concept is straightforward; hopefully the questions are less so. The questions are all about international law, and the answer to each question is the name of a country, or two countries, contesting the World Cup in Brazil. There are 27 questions relating to the 32 countries. You can try to work out the answers using your existing knowledge and deductive logic and then when you get stuck do a bit of research to find the rest.

The answers to the questions, along with brief explanations as necessary, will be posted on the site upon the conclusion of the group stages, on Friday 27th June. Please feel free to contact me if you have any queries.

We sincerely hope you find the quiz stimulating and enjoyable. Who knows, I might finally get a book proposal that combines the world’s greatest pastime and…football.

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Announcing the OPIL World Cup Challenge

Trivia Answers: Cases Before Inter-State Tribunals Involving Examination of Witnesses [UPDATED]

Published on October 18, 2013        Author: 

My latest international law trivia question was:

In which other cases has oral testimony been given in proceedings at the International Court of Justice and other standing international tribunals dealing with inter-State cases?  In particular, in which ICJ or other inter-State case or cases has an expert or witness been subjected to cross-examination by the other party?

Semir Sali correctly pointed out four cases in which witnesses were called and examined at the ICJ. In the Corfu Channel Case – the first contentious case at the ICJ – several Naval officers were called as witnesses and were examined in chief and cross-examined.  Also, witnesses were called and examined in the ELSI case (US v. Italy). At the merits phase of  the Bosnia Genocide Convention case, both parties called a number of experts and witnesses. In particular, each side called very senior British military officers – General Dannatt and General Sir Michael Rose – to testify. Examination for Serbia was done by Prof Ian Brownlie QC and for Bosnia by Joanna Korner QC

As Semir Sali and Serena Forlati both point out, in the Nicaragua case (Nicaragua v US), Nicaragua called a number of witnesses to testify. However, as the US did not appear at the mertis stage, these individuals were not cross examined. Indeed it was Judge Schwebel that took on the task of probing these withnesses

Witnesses have also been called and examined at the International Tribunal for the Law of the Sea. as with the ICJ  this happened in the very first case at ITLOS – the MV Saiga Case (St Vincent v. Guinea)

One interesting feature that unites almost all of these cases is that in all but one of the cases mentioned here, examination and cross examination was carried out mainly by English barristers! The one exception is the ELSI case (US v. Italy) where examination and cross-examination was carried out by American lawyers on both sides (Abraham Sofaer for the US and Keith Highet for Italy).

UPDATE: Caroline Foster, who has done tremendous work on expert evidence in international tribunals, has posted a comment to my original post in which she points out other inter-state cases in which experts have been called as witnesses and cross examined. She refers to a number of inter-State arbitral cases as well cases at ITLOS and the WTO.  She also raises interesting questions about how international cases dealing with expertise should be handled.

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Trivia Answers: Cases Before Inter-State Tribunals Involving Examination of Witnesses [UPDATED]

Trivia: Cases Before Inter-State Tribunals Involving Examination of Witnesses

Published on October 17, 2013        Author: 

Every now and again I ask trivia questions relating to international law. Previous questions (and answers) are available here. At the end of this post, I have my latest international law trivia question.

In the oral proceedings in the Whaling Case (Australia v. Japan; New Zealand Intervening) heard by the International Court of Justice (ICJ) this past June, there was a relatively rare instance of experts being called to testify at the ICJ by one party, giving oral testimony and also being cross-examined by counsel for the other party. The International Court of Justice is the “principal judicial organ” of the United Nations (Art. 92, UN Charter). Decisions from the Court are final and without appeal (Art. 60, ICJ Statute). These features mean that the Court is usually looked upon, quite rightly, as the leading judicial authority for statements of international law. However, it is important to realise that the ICJ is not only a final court but is also a court of first instance. Thus, the ICJ is both like a Supreme Court and like a trial court. However, though many cases at the ICJ require an element of fact finding, this is usually done on the basis of documentary evidence. It is not often the case that the fact finding is done on the basis of oral evidence given in Court.

Having scientific experts providing their opinion as testimony at the ICJ is in contrast to some previous cases (Gabčíkovo-Nagymaros Project (Hungary/Slovakia)) where parties have included scientific experts as part of their team of counsel rather than as witnesses. In the Pulp  Mills case (Argentina. v. Uruguay) (2010), the Court stated:

“Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court. [para. 167]

In the Whaling Case, Australia heeded this admonition and called Professor Mangel as an expert on June 27. He was examined in chief by Prof Philippe Sands QC, cross examined by Professor Vaughan Lowe QC and asked other questions by a number of judges of the Court. Now for my question:

Read the rest of this entry…

Print Friendly
 

International Law Trivia: The Winners

Published on October 28, 2012        Author: 

Readers will recall that last month I had a series of posts asking trivia questions relating to international law (see here). Many of those questions related to the practices of international tribunals and the International Court of Justice in particular. The questions had a special focus on voting practices at international tribunals. Before I started the series, I promised a prize for one person who was successful in answering the trivia questions. The prize is a years free subscription to the European Journal of International Law. I apologize for not getting round to announcing the winner till now. In fact we have two prize winners!

Our first winner is Tamás Hoffmann (left) who is Lecturer in law at the Corvinus University of Budapest, Hungary. Tamás has a PhD from ELTE Budapest and an LLM in Public International Law from King’s College London. He responded to most of my questions and got his answers correct. His depth of knowledge of ICJ and PCIJ cases is very impressive indeed.

Our second winner is Daniel Wisehart (right), licence en droit, First State Exam completed in 2012, who studied at the University of Potsdam and the Universié Paris Ouest La Défense. He is currently a PhD Candidate at the University of Potsdam and working as an associate with  Professor Robin Geiß on legal problems surrounding international drug control. Daniel also responded to most questions but we were particularly impressed with his response to my question on cases at the ICJ where no judge has issued an individual opinion (separate or dissenting). Not only was he able to give the answer with regard to the ICJ he also pointed out the position at the PCIJ, noting that in the 1920s most PCIJ decision were issued without individual opinions but that this changed in the 1930s. He then offered a reason why the practice might have changed. Tamas then followed up with a further explanation.

Congratulations to both of them!

Print Friendly
 

More Than Trivial: Dissent as Design Element

Published on September 27, 2012        Author: 

Jeffrey L. Dunoff (left) is Professor of Law and Laura H. Carnell Chair at Temple University.

Mark A. Pollack (right) is Professor and Jean Monnet Chair  in the Department of Political Science at Temple University.

Kudos to Dapo for triggering an entertaining and informative set of posts (also here, here and here)about the use of dissents in international courts.   The exchanges on this topic unearthed many little-known practices and long-forgotten cases. More importantly, we believe, these posts raise a deeper set of questions about the causes and consequences of dissent that international lawyers have paid insufficient attention to.

One puzzle is why international courts show such great variation in the use of dissents; ECJ opinions never have dissents, ICJ opinions are regularly accompanied by dissents, and WTO dispute reports rarely have dissents – although this norm has been evolving in recent years.  The puzzle only deepens when we consider the rationales offered to explain these varied practices. Dissent at the ICJ is frequently justified on the grounds that it helps to preserve judicial independence.  In Judge Huber’s words, dissents serve as “a guarantee against any subconscious intrusion of political considerations, and the judgments were more likely to be given in accordance with the real force of the arguments submitted.”  Ironically, however, in the ECJ context, it is the absence of dissent that is thought to preserve judicial independence, as a single collegiate opinion is said to shield judges from national political pressures. How can it be that the presence and the absence of dissent both enhance judicial independence?

More fundamentally, what factors drive the decision by states to allow or prohibit dissents in the statutes of international courts, as well as the subsequent decisions by judges to issue dissents or refrain from doing so?  And, what consequences flow from international judicial dissents, for judicial independence, collegiality, and the development of law? Read the rest of this entry…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on More Than Trivial: Dissent as Design Element