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Sir Elihu Lauterpacht: A Celebration of His Life and Work

Published on October 25, 2017        Author: 

A memorial symposium celebrating the life and work of Sir Eli Lauterpacht was held at the Faculty of Law in Cambridge on Friday, October 13, 2017, followed the next day by a memorial service in the chapel of Trinity College, Cambridge.  Both were extremely well attended, with about 200 people at the symposium and more at the memorial service.  Trinity College chapel was packed, with the congregation over-spilling into the antechapel.  It was touching to see how many people had come from all over the globe to pay their respects.  A record of both the symposium and service will be created in due course on the Squire Law Library’s Eminent Scholars Archive.

Judge Christopher Greenwood and President Steven Schwebel delivered eulogies at the memorial service. Chris told me that it was the first time in years that he had written out a speech rather than just rely on notes. Eli’s youngest child, Conan ended his eulogy with one of Eli’s favourite jokes about the priest, the vicar, and the rabbi trying to convert a bear to their religion.  This was characteristic of both the symposium and service, which were affectionate and humorous, reflecting Eli’s personality and love of jokes.          

The organisers of the academic symposium which examined Eli’s professional life were clear: no–one who had been asked to talk had refused, and acceptances had been immediate. Read the rest of this entry…

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Twenty Years of the ECHR in Ukraine

Published on September 18, 2017        Author:  and

Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss Read the rest of this entry…

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Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

Published on April 28, 2017        Author: 

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this criticism is misguided because it confuses the role of states as disputing parties and as treaty parties. States have dual roles in the investment treaty system: they are treaty parties with a legitimate interest in the interpretation and application of their treaties and they are disputing parties with a desire to avoid liability in particular cases. When it comes to questions of institutional design, I think that we need to adopt a treaty party framework of analysis, not a disputing party one.

In a particular dispute, an investor can appoint one arbitrator and a state can appoint another. Once a case is filed, it is hardly surprising that both disputing parties would seek to appoint arbitrators who are broadly sympathetic to their positions. This tends to generate polarization within the field with arbitrators often being thought of (whether accurately or not) as having either a “pro-investor” or a “pro-state” bias. This division helps to explain why, when judged from the perspective of the dispute resolution framework, investors and members of the arbitral community have raised concerns that having tribunals selected by states only would lead to biased results. This is so even though neither the claimant investor nor the respondent state would appoint the particular tribunal members tasked with hearing the case.

When it comes to institutional design, however, we need to shift our focus from the disputing party framework to the treaty party framework. Read the rest of this entry…

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The USA and Re-Appointment at the WTO: A ‘Legitimacy Crisis’?

Published on May 27, 2016        Author: 

In recent weeks, it has been reported (for example, here, here, here and here) that the WTO faces a ‘legitimacy crisis’ in the wake of US opposition to the re-appointment to a second, four-year term of Mr Seung Wha Chang (South Korea) to the Appellate Body. In a joint statement of 12 May, US Permanent Representative to the WTO, Ambassador Michael Punke, and USTR General Counsel Tim Reif declared:

The United States is strongly opposed to appellate body members deviating from their appropriate role by restricting the rights or expanding trade agreement obligations […] The United States will not support any individual with a record of restricting trade agreement rights or expanding trade agreement obligations.

In their view, the Appellate Body member exceeded his powers during his mandate, and breached Art. 3(2) of the Dispute Settlement Understanding, which states that ‘[the] Appellate Body cannot add to or diminish the rights and obligations provided in the [agreements of the WTO].’ In other words, Mr Chang is accused of undue judicial activism.

In response, South Korea has reportedly declared its opposition to the re-appointment of any Appellate Body members. As a result, their number would fall from seven to five by June, since another member, Ms Yuejiao Zhang (China), finishes her second term on 31 May, and the Selection Committee has been unable to propose a candidate that would enjoy the membership’s consensus. All six sitting members of the Appellate Body have publicly supported Professor Chang (see here) praising his ‘independence and integrity’ and voicing their disquiet about the implications of the US position. The USA has chastised this move as another instance of undue judicial interference.

This standoff raises questions of general interest on procedures for the appointment of ‘judges’ Read the rest of this entry…

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Curriculum Vitae: A Prequel | The Video

Published on January 10, 2016        Author: 

Earlier this week, we reproduced in two posts on EJIL:Talk! Roger O’Keefe’s insighful and hilarious Inaugural Lecture, delivered at UCL at the end of 2015. It is now available as an online video.

In his inaugural lecture, Professor O’Keefe teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.

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International Law’s Impartiality – Myth and Reality

Published on October 26, 2015        Author: 

Editor’s note: This post is a reaction to Frédéric Mégret’s article issued last week by the European Society of International Law – ESIL Reflection: In Search of International Impartiality.

Frederic Mégret offers us many questions about reconciling the project of international law with notions of impartiality. As he recognizes, impartiality is a multi-faceted concept, and our expectations for impartiality of various participants in the international legal process cannot be uniform. Mégret forces international lawyers to think hard about our biases as we “do” our lawyering. But impartiality needs to be broken down a bit more, and its institutional aspects made clearer. When this is done, some of the dilemmas and contradictions he identifies seem like less cause for existential worry among international lawyers.

Of the many ways to look at impartiality, two seem most relevant to the international lawyer.

First, there is the very general notion of impartiality as acting in a way in which we treat like cases alike: in this sense, impartiality is equivalent to the most minimal form of justice as recognized by both H.L.A. Hart (The Concept of Law, 3rd ed. (2012), p. 159) and R.M. Hare (Moral Thinking: Its Levels, Methods, and Point (1981), p. 157). This is in a certain sense the ideal of all law, domestic and international, and those who administer it.

Second, impartiality can equate with a general even-handedness and respect for the positions of two or more sides or claimants, up to the point where fidelity to other obligations – like the law – may require acting in favor of one side’s position. This sort of impartiality is expected of decision makers charged with applying the law, judicially or otherwise.

Beyond these two conceptions is the idea of impartiality at the centre of contemporary debates in moral philosophy. The impartial standpoint is one in which one’s connections to particular groups or people per se are not per se relevant to one’s judgments or actions, although such ties can be relevant if they can be justified from an impersonal standpoint. All three conceptions see impartiality as basically about not playing favorites. But of course what counts as impartial conduct depends upon a thicker theory of morality or rules of law. Read the rest of this entry…

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2015 ESIL Annual Conference Final Lecture: Developments in Geopolitics – The End(s) of Judicialization?

Published on October 12, 2015        Author: 

Editors Note: The European Society of International Law held the 2015 ESIL Annual Conference from 10–12 September 2015 on “The Judicialization of International Law – A Mixed Blessing?” The event, hosted by the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, took place at the University of Oslo. For the Final Lecture, Professor Philippe Sands QC (University College London) discussed “Developments in Geopolitics – The End(s) of Judicialization?”. This post is a précis (summary) of the lecture as prepared by the Editors of EJIL: Talk! and reviewed by Professor Sands; the lecture may be viewed in full here. The full lecture, with all references and citations added, and a short Afterword, will be published in the European Journal of International Law. Full details of the conference are available on the conference website, including recordings of selected sessions.

In the summer of 2014 I spent three weeks in The Hague, in the company of a man who was 100 years old. Professor Vladimir Ibler, who was born in 1913 in Zagreb, was one of my co-counsel during the hearings in the arbitration proceedings between Croatia and Slovenia, heard in the Peace Palace. Each morning he and I walked slowly up the central staircase of the Peace Palace, and then down it later in the afternoon: past the statue of lady justice, to and from the Japanese room, where the hearing took place. Professor Ibler, who was diminutive in height but certainly not in presence or character, would muse about the state of the world, of international law, and of international courts. “When I was born there were none”, he said to me, “and now there are so many that I cannot keep up with them all. What are they all for? What do they all mean?” The questions were never answered of course, but from his cheery disposition I always felt he retained a sense of hope. A centenarian who lived a life that was touched by Emperor Franz Josef, Hitler, Stalin and Tito was easily able to seize on the possibility of courts as an alternative to war, which is of course the principal end of judicialization. He was hopeful too that Croatia and Slovenia would finally be able to resolve their dispute, by arbitration proceedings under the auspices of the Permanent Court of Arbitration (PCA).

Yet he also sounded a note of caution. I interviewed him in June 2014 more formally for a profile I was asked to write for the Financial Times magazine. “I learnt in my life not to come to fast conclusions”, he told me.

“I was very happy in a lawyers office in Zagreb from 1937 to 1939, working with Mr Korsky, and then the Nazis just shot him. I think that being in a lawyer’s office you can make certain conclusions about people and about human relationships, and you can learn certain things. And what I learnt is not to be very quick to make conclusions, but reflect all the time.”

Wise advice from a man who had reached the age of 100.

Was it a good idea to refer the dispute between Croatia and Slovenia to an international arbitral tribunal, I asked. “Yes”, he replied, but added: “What I am sceptical of is some of the judges that were appointed to the court, I am not entirely convinced that the tribunal has been totally independent.” He paused. “It seems there are some invisible forces. There are justices and there are injustices.” Recent events have caused me to go back to that conversation. Read the rest of this entry…

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Launch of GQUAL! – A Global Campaign for Gender Parity in International Tribunals and Monitoring Bodies

Published on October 8, 2015        Author: 

On September 17, 2015 GQUAL! was launched at the UN in New York. GQUAL aims to promote transparency and adoption of rules in the selection, nomination, evaluation, and election of candidates to international tribunals and monitoring bodies to promote gender parity, as well as to pursue research and monitor processes in order to identify best practices and standards. The GQUAL Declaration sets forth the road map to be followed and is open for signatures by academics, practitioners, researchers, policy makers, judges and political representatives (both male and female.)

This campaign arose from Viviana Krsticevic’s engagement as the Executive Director of the Center for Justice and International Law (CEJIL) and her concern that the majority of international tribunals and monitoring bodies are lacking gender parity among judges. Indeed, since its establishment, the ICJ has only had 3.8% women judges, the European Court of Human Rights 8.4% and the International Tribunal for the Law of the Sea 2.5%. The aim of this global campaign is to promote conditions, procedures, and mechanisms to ensure that out of 84 international bodies, which have 574 positions, 287 qualified women from different parts of the world and with diverse backgrounds are elected. Read the rest of this entry…

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Managing Change in International Law and the Dream of the Managerialist International Lawyer

Published on September 25, 2015        Author: 

This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled Between Pragmatism and Predictability: Temporariness in International Law. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)

1. Thinking of international law in managerialist terms

The 19th century idealist-intellectual international lawyer was murdered by his doctrinal-formalist counterpart who rose to prominence at the beginning of the 20th century. It did not come as a surprise that the doctrinal-formalist would also soon succumb, not only to his own weight and self-confidence, but also to the blows of the next hegemon, i.e. the managerialist international lawyer who thinks that international lawyers managing the world can no longer afford overly formal and sophisticated structures of argumentation. Interestingly, the murder of the doctrinal-formalist international lawyer by the managerialist international lawyer was condoned by his peers who had grown averse to the false necessities of doctrinal constructions and formal modes of legal reasoning. This is why the managerialist international lawyer was quickly welcomed and celebrated as the messianic saviour of a profession that had ceased to hope in its ability to make demands on the world.

The murder of the doctrinal-formalist international lawyer by the managerialist international lawyer is however not the end of the story of 20th century international legal thought. Indeed, the night after the opulent celebration of his conquest, the managerialist international lawyer had a dream. He dreamed that he would not only manage the world through international law but also the time of that world. In his dream, managing time also meant managing change. And managing change required self-reactive legal institutions and modes of reasoning to allow his managerial project to be carried out whatever happens outside his palace. Read the rest of this entry…

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On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

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 do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…

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