magnify
Home Archive for category "EJIL"

EJIL Debate. The Whaling case and the Duty to Cooperate: Responding to Professors Thirlway and d’Aspremont

Published on January 17, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

I am puzzled by the very terms of the debate between Professors Thirlway and d’Aspremont for several reasons. First, there is a considerable ambiguity in both Japan’s argument and the Court’s position as to the legal effects yielded by the IWC resolutions. Hence, it is inevitable to have a variation of interpretations. Second, I believe that the determination of the implications of the judgment should not be made dependent on an “objectivised” subjective intention of the Parties or the Court — a task which is no work for legal scholars anyway.

Yet, my main source of puzzlement lies elsewhere. While the focus of Thirlway and d’Aspremont’s debate is on the Court’s position on Article 31 of the VCLT with regards to Japan’s non-assertion to the resolution, I submit that the most ground-breaking part of the judgment is that the Court brought back the legal effect of the resolutions from the backdoor, that is via the concept of ‘the duty to cooperate’. In this post, I would like to draw the attention of the readers to the unique characteristic of the duty to cooperate referred to in the Whaling case, and the possible necessity for a new conceptual framework. In particular, I argue, neither the logic of sources nor the logic of interpretation can sufficiently explain what the Court did with the duty of to cooperate. Read the rest of this entry…

Print Friendly, PDF & Email
 

EJIL Debate. A Reply to Thirlway: I am not Thinking From the Bench

Published on January 16, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

Being the object of a public rebuttal in an highly visible on-line blog platform by a prominent author like Professor Thirlway probably constitutes the most generous reward one can receive for “burning the midnight oil“. This also provides a fate for one’s work that is much better than the oblivion and indifference to which most of scholarly outputs are condemned in today’s academic pathologically prolific scene. This is why I could not be more grateful to Professor Thirlway for his comments on my article. Our repeated public debates these last years (for another example, see here) remind me that we share many areas of interest (sources, international dispute settlement, responsibility, etc) but also confirm that our views are simply — and thankfully — irreconcilable. In this short reaction, I want to respectfully show that our views diverge on the structure of legal argumentation related to sources and interpretation (1) as well as on the purpose of international legal scholarship (2).

Saving the Court through opposability

The reading of the judgment of the International Court of Justice (hereafter ICJ or the Court) in the Whaling in the Antarctic case which I have articulated in the European Journal of International Law and with which Professor Thirlway takes issue can be summarized as follows: the Court blurred the lines between the doctrine of sources and the doctrine of interpretation (and the modes of legal argumentation associated with each of them) by calibrating the interpretive value of IWC resolutions for the sake of interpreting the notion of ‘scientific approach’ in Article VIII of the Whaling Convention on the basis of Japan’s assent to those resolutions. Read the rest of this entry…

Print Friendly, PDF & Email
 

EJIL Debate: Jean d’Aspremont’s Article on the Blurring of Interpretation and Sources in the ICJ Case on Whaling in the Antarctic

Published on January 15, 2018        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

The blog is happy to announce that over the next few days, we will host a discussion of Jean d’Aspremont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘. The debate will open this afternoon with Professor Hugh Thirlway’s reaction to  d’Aspremont’s article. We will continue the discussion tomorrow with Jean d’Aspremont’s response. On Wednesday, Maiko Meguro will bring the debate to a close with her reaction to the argumentative framework of ‘logic of interpretation’ and ‘logic of sources’ put forward by Professor d’Aspremont in his EJIL article and discussed by Hugh Thirlway in his rebuttal.

d’Aspremont’s article, which was published in the European Journal of International Law in November 2017, argues that the idea that the doctrine of sources enjoys a monopoly on the tracing of bindingness and does not directly constrain the interpretation of those standards and norms that it validates has been seriously eroded by the International Court of Justice in its 31 March 2014 judgment concerning Whaling in the Antarctic. d’Aspremont contends that the Court comes very close to calibrating the interpretive effects of the resolutions of the International Whaling Commission through the doctrine of sources. He explains, how this blurring between sources and interpretation is most unsettling given the efforts that the Court had invested, over the years, in consolidating two distinct doctrines – the doctrine of sources and the doctrine of interpretation.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

Print Friendly, PDF & Email
 

Our Most Read Posts of 2017

Published on December 30, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

As 2017 comes to an end we would like to thank our readers for coming back to us time and again over the course of the year. This year we have had more readers than in any previous year and more page views.

I would like to welcome Gail Lythgoe to our editorial team. Gail joins us as Associate Editor with particular responsibility for managing our social media presence. She is currently a PhD Candidate at the University of Glasgow and Managing Editor of Oxford International Organizations. Hopefully, readers have already noticed a difference in our activity on Twitter and Facebook.

To conclude 2017, I set out below our 20 most read posts of the year.  We strive to cover a very wide range of international law issues on this blog, but of course it is up to readers to decide on which issues resonate more with them at particular moments. As is often the case, many of those most read pieces are those which offer timely (and may I add insightful) commentary on the big issues of the day raising questions of international law. The US missile strikes in Syria in April, Catalonia’s bid for independence and some of the issues relating to Brexit are leading examples  this year. However, the list of most read pieces this year include, one by Douglas Guilfoyle and another by Marko from several years ago. Those two pieces feature as the most read post and the third most read post since the blog was established 9 years ago (with this piece being the second most read post). 

Two other remarkable pieces in our top 20 for 2017 are the speeches by the UK Attorney General and another by the Australian Attorney-General setting out the understanding of those states on the law relating to self-defence and in particular, their views on issues relating to self defence in anticipation of armed attacks. We are grateful to the Attorneys General for choosing EJIL:Talk! as a forum for dissemination of the official position of their governments.

 The top 20 posts are here in reverse order with the top 10 below the fold. Happy New Year to all of you for 2018!

20) Jure Vidmar, Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument  (Oct. 2017)

19) Dapo Akande, The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction? (June 2017)

18) Marko Milanovic, Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum (Feb. 2010)

17) Marko Milanovic, European Court Decides Al-Skeini and Al-Jedda (July 2011)

16) Monica Hakimi, US Strikes against Syria and the Implications for the Jus ad Bellum (April 2017)

15) Monica Hakimi, North Korea and the Law on Anticipatory Self-Defense (Mar. 2017)

14) Dan Joyner, Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular (Jan. 2017)

13) Senator George Brandis QC (Attorney-General of Australia),  The Right of Self-Defence Against Imminent Armed Attack In International Law, (May 2017)

12) Dapo Akande, 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 (Nov. 2017)

11) Jeremy Wright QC MP (Attorney General of the UK), The Modern Law of Self-Defence (Jan. 2017) Read the rest of this entry…

Print Friendly, PDF & Email
 

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

Published on November 13, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
 
Comments Off on New Issue of EJIL (Vol. 28 (2017) No. 3) Published

Those Who Live in Glass Houses….

Published on November 8, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
 

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

Published on November 7, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
 
Comments Off on EJIL: In this Issue (Vol. 28 (2017) No. 3)

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

Published on November 6, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
 
Comments Off on New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

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

Published on July 10, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
 
Tags:
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: 
Facebook
GOOGLE
https://www.ejiltalk.org/category/ejil
LINKEDIN

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, PDF & Email
Filed under: Editorials, EJIL
 
Tags: