magnify
Home Archive for category "EJIL"

New Issue of EJIL (Vol. 28 (2017) No. 3) Published

Published on November 13, 2017        Author: 

The latest issue of the European Journal of International Law (Vol. 28, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Merris Amos, The Value of the European Court of Human Rights to the United Kingdom. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Print Friendly
 

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…

Print Friendly
 

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…

Print Friendly
 

New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

Published on November 6, 2017        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

Those Who Live in Glass Houses …; In this Issue

Articles

Andrew D. Mitchell and James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Gracia Marín Durán, Untangling the International Responsibility of the European Union and its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model

Sergio Puig and Anton Strezhnev, The David Effect and ISDS

Focus: Human Rights and the ECHR

Merris Amos, The Value of the European Court of Human Rights to the United Kingdom

Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights

Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights

Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee

Thomas Kleinlein, Consensus and Contestability: The European Court of Human Rights and the Combined Potential of European Consensus and Procedural Rationality Control

Roaming Charges

Emma Nyhan, A Window Apart

EJIL: Debate!

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

John Gerard Ruggie and John F. Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale Read the rest of this entry…

Print Friendly
 

New Issue of EJIL (Vol. 28 (2017) No. 2) – Published

Published on July 10, 2017        Author: 

The latest issue of the European Journal of International Law (Vol. 28 (2017) No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Niels Petersen’s The International Court of Justice and the Judicial Politics of Identifying Customary International Law. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Print Friendly
 
Tags:
 Share on Facebook Share on Twitter
Comments Off on New Issue of EJIL (Vol. 28 (2017) No. 2) – Published

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…

Print Friendly
Filed under: Editorials, EJIL
 
Tags:

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…

Print Friendly
Filed under: Editorials, EJIL
 
Tags:
 Share on Facebook Share on Twitter
Comments Off on EJIL: In this Issue (Vol. 28 (2017) No. 2)

New Issue of EJIL (Vol. 28 (2017) No. 2) – Out Next Week

Published on July 5, 2017        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

On My Way Out – Advice to Young Scholars V: Writing References; In this Issue

Articles

Niels Petersen, The International Court of Justice and the Judicial Politics of Identifying Customary International Law

Bernard Hoekman and Petros C. Mavroidis, MFN Clubs and Scheduling Additional Commitments in the GATT: Learning from the GATS

Janis Grzybowski, To Be or Not to Be: The Ontological Predicament of State Creation in International Law

Noëlle Quénivet, Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control Read the rest of this entry…

Print Friendly
 
Tags:
 Share on Facebook Share on Twitter
Comments Off on New Issue of EJIL (Vol. 28 (2017) No. 2) – Out Next Week

New EJIL:Live! Interview with Liam Murphy on his Article “Law beyond the State: Some Philosophical Questions”

Published on April 29, 2017        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Liam Murphy of New York University, whose article, “Law beyond the State: Some Philosophical Questions”, appears as the central piece in an EJIL: Debate! in Volume 28, Issue 1.

A legal philosopher, Professor Murphy takes up the challenge of exploring the realm of international law, an area largely ignored by Anglo-American legal philosophers since H.L.A Hart. Professor Murphy seeks to offer new perspectives on the famous chapter 10 of Hart’s The Concept of Law, and to critique the understanding of the international legal system set out therein. This then serves as the framework for his discussion of two core issues: the relevant grounds of law in international law – what factors are relevant in determining the content of law in force – and what makes international law a legal order. Professor Murphy also reflects on the Replies to his article, published in the same issue of the Journal, and how these prompted him to give further thought to the issues addressed in his article.

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on New EJIL:Live! Interview with Liam Murphy on his Article “Law beyond the State: Some Philosophical Questions”

New Issue of EJIL (Vol. 28 (2017) No. 1) Published

Published on March 31, 2017        Author: 

The latest issue of the European Journal of International Law (Vol. 28 (2017) No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Simon Chesterman’s Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on New Issue of EJIL (Vol. 28 (2017) No. 1) Published