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Home Archive for category "Study of International Law"

Academic Freedom Under Pressure

Published on December 2, 2019        Author: 

 

Contemporary threats to academic freedom are global, diverse and mounting. The ICNL-commissioned report Closing Academic Space published in March found “repressive and potentially repressive government practices against higher education institutions, including academics and students, in more than 60 countries”, including Hungary, Russia, Venezuela, Turkey, Egypt and China.

Challenges to academic freedom and autonomy in Europe, particularly the EU, now seem alarming, despite significant resistance. A couple of causes célèbres illustrate the point. On Wednesday 27 November, the distinguished constitutional law scholar Professor Wojciech Sadurski faced the first hearing in one of three SLAPP lawsuits brought against him under civil and criminal defamation laws by Poland’s governing Law and Justice party and the public broadcaster, TVP. Various actors have stood in solidarity with Professor Sadurski. In the run-up to the hearing, constitutional law scholars launched the #WithWoj hashtag, following an open letter on the Verfassungsblog in May; ARTICLE 19 submitted an amicus curiae brief, live-monitored the hearing and, together with other NGOs, issued a statement.

On Friday 15 November, my institution, the Central European University (“CEU”) officially inaugurated its Vienna campus, having been forced to move its US accredited degree programmes from Budapest as a result of amendments to Hungary’s higher education law adopted in April 2017 (“Lex CEU”). The subsequent fight to defend CEU spurred street demonstrations, the #IstandwithCEU hashtag and thousands of statements of support – including from academic institutions and associations, Nobel Laureates, German Chancellor Angela Merkel, Irish Taoiseach Leo Varadkar, the late former UN Secretary-General Kofi Annan and a network of freedom of expression NGOs. It also motivated the adoption of the Utrecht Declaration on Academic Freedom by human rights academics.

These cases raise a number of individual human rights issues and deep concerns about the implications of restrictions on scholars and universities for democracy and the rule of law across societies. They further prompt questions about the definition, scope and place of the notion of “academic freedom” in international law. Read the rest of this entry…

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International Civil Servants and Their Unexplored Role in International Law

Published on October 3, 2019        Author: 

2019 marks the centenary of the foundation of the League of Nations. While the early intergovernmental organizations (IOs) founded before WWI were often staffed by seconded officials, Eric Drummond, the British diplomat and the first Secretary-General of the League, set the ground for creation of an ‘international’ secretariat, composed of professional public servants of various backgrounds, who were ready to commit to the goals of the League and carry out their functions under the sole direction of a non-national leader. The concepts and approaches introduced by Drummond were later inherited by the United Nations and other IOs. Later on, the second UN Secretary General Dag Hammarskjöld played a major role in concertizing the concepts and principles of international civil service, introducing ‘independence’ and ‘international responsibility’, as the pillars of the work of the secretariat.

Today, the backbone of international bureaucracies are individuals with expertise and diplomatic tact, who altogether constitute a unique body of human resources known as ‘international civil servants’. International civil servants perform their duties in complex legal and political environments; in refugee camps, humanitarian missions, post-conflict administrations, and sometimes in calmer environment of headquarters. The status, rights and obligations of employees of IOs are rooted in the constituent instruments of their respective organizations, concluded under international law. However, this is not a one-way road. Indeed, international civil servants actively contribute to formation of international norms, monitor and report on their implementation at macro and micro levels. In a broader perspective, they collectively shape the vision of ‘good life’ for the world population, using an expert language, which enhances the persuasive force of their narratives. Nevertheless, the role of individuals behind the wheels of IOs in development of international law is, to a great extent, absent from the international legal discourse. A better understanding of the changes in international law necessitates an in-depth inquiry into the role of international civil servants in constructing the narratives that influence the spheres of global and national governance. Read the rest of this entry…

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An Unseen Actor Speaks

Published on September 10, 2019        Author: 

 

An Unseen Actor Speaks

 

Smile at us, pass us or greet us; then, if you like, forget,

For we are the unseen actors, that have not spoken yet.

The interns, law clerks, jurists, of less than judicial rank,

Whom judges and arbitrators have nonetheless reason to thank.

We are the unobtrusive – we could almost be said to ‘lurk’;

But make no mistake about it, we’re doing important work.

We stand well back in the shadows (except for the Registrar), Read the rest of this entry…

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The Interests of Justice- where does that come from? Part II

Published on August 14, 2019        Author: 

Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome. Read the rest of this entry…

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Best Practice – Writing a Peer-Review Report

Published on July 22, 2019        Author: 

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…

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The Future of International Law in an Authoritarian World

Published on June 3, 2019        Author: 

In this short review essay, I would like to offer some thoughts on the future of international law in an increasingly authoritarian world. Even for a discipline which loves a crisis, these are perhaps challenging times. The liberal cosmopolitan project of global governance through international law and multilateral institutions has, at the very least, hit a bump in the road. There is a widespread sense that a change in direction is likely. It is a reasonable time to reflect on questions such as: is international law in trouble? How concerned should we be at attempts to revise the international system? And what might a more authoritarian version of international law look like?

In reflecting on the questions I’d like to offer my readings of three scholars I’ve recently found thought-provoking. These are personal reflections and interpretations, not an effort to capture every nuance of their work. Nonetheless, each has had an impact on my thinking.

  1. Shirley Scott, “The Decline of International Law as a Normative Ideal

In this piece, Scott contrasts her view of international law with what she considers the dangers in the turn to speaking about a “rules-based order”. Scott sees the project of international law as historically containing a commitment to several major principles.

First, the principle that law is politically neutral: a conception that law stands aside from politics, and creates a level playing field for state actors, to engage and to argue with each other. This principle includes the idea of formal sovereign equality.

Second, a commitment to peace through law: the idea that law contains within it the potential for objective dispute settlement, and that this is a contribution to world peace. Read the rest of this entry…

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Founding “Fathers” of International Law: Recognizing Christine de Pizan

Published on January 15, 2019        Author: 

Editor’s Note:  This post was first published by the author in French in the Galerie des internationalistes francophones (Gallery of French-Speaking Internationalists) on the website of the French Society for International Law (SFDI).  We are particularly grateful that Professor Latty’s translated version will reach the EJIL:Talk! readership around the world.

At the start of 2019 and the year long campaign designed around International Women’s Day on 8 March 2019, it may be particularly apt for the readers of EJIL: Talk! to consider Christine de Pizan (around 1365 – around 1430), a medieval woman of letters, as one of the founders of international law – even if somewhat surprising for several reasons.  One is the anachronism attached to this qualification, the invention of the word “international” attributed to Bentham in 1780 being much later than Pizan’s passage on earth. At that time, only a few States, in the contemporary sense of the term, had taken shape, while the idea of a legal system organizing their relations was still in limbo. Moreover, Pizan is not a woman of law but an intellectual “all-rounder”. Above all, she has been completely ignored by internationalist scholars – with the notable exception of the Belgian Ernest Nys who devoted several studies to her work, or rare authors such as Anzilotti who mentioned her contribution in his Corso di diritto internazionale (vol. I, transl. G. Gidel, Sirey, 1929). She has since disappeared again from the teachings of the most highly qualified publicists, whereas since the end of the 20thcentury, the rediscovery of her work has been the subject of extensive study in other fields of human and social sciences.

(Photo source here.)

However, her Livre des faits d’armes et de chevalerie (The Book of Deeds of Arms and of Chivalry) is one of the first known texts on the law of war. This is why a legal historian specializing in the status of women once presented Pizan not without emphasis as the “mother of international law” (M. T. Guerra Medici, « The Mother of International Law: Christine de Pisan », Parliaments, Estates and Representation, vol. 19, 1999, n° 1,pp. 15-22), thus supplanting a Grotius whose paternity was already highly doubtful (Ch. Leben, « Grotius : père du droit international », in Dictionnaire des idées reçues en droit international, Paris, Pedone, 2017, pp. 279-285). In any case, in the pantheon of the founding “fathers” of international law, haunted by men, Pizan should occupy a special place: she is not only the first woman to have written about “international” law; she is one of its very first known authors, even before Vitoria, Gentili or Suarez.

Read the rest of this entry…

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70 Years of the International Law Commission: Drawing a Balance for the Future

Published on May 3, 2018        Author:  and

This post, and its sister post on OpinioJuris, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. From its first session, in 1949, the Commission has played an indispensable role in the promotion of the “progressive development of international law and its codification”. Yet the desire to “codify” international law – to formulate and systematize rules of international law in order to avoid conflicting norms and enhance legal certainty – predates the Commission by many decades, if not centuries. An exhibit exploring the history and the achievements of the Commission is currently on display in the Visitors Lobby of the General Assembly Building at the United Nations Headquarters in New York. Here are five things you may not know about the International Law Commission and the codification movement from which it emerged. Read the rest of this entry…

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Reply to Dunoff and Pollack: ‘Experimenting with International Law’

Published on April 4, 2018        Author:  and

In the last issue of the European Journal of International Law we published an experimental study on the ability of international law students and experts to ignore information in the context of treaty interpretation. The same issue included a follow-up article by Jeffrey Dunoff and Mark Pollack. We find Dunoff and Pollack’s practical exercise of critically reading experimental studies important and helpful in moving the broader methodological and theoretical concerns into a concrete discussion of actual studies. In the following sections, we will try to contribute to this effort by reflecting on their assessment of our study.

The Study

Before delving into Dunoff and Pollack’s discussion of our paper, we would like to briefly summarize our study, which one of us also summarized in this EJIL:Live! interview. Our study was designed to empirically test a notion that has been mentioned in the treaty interpretation literature, which suggests that it is practically impossible to ignore the content of preparatory work after exposure, even when a rule prohibits the use of such material. This notion is supported by studies on the difficulty of ignoring information in other legal contexts, such as exposure to inadmissible evidence. To test this notion’s validity, we conducted three experiments that examined the ability of international law students and experts to ignore information about preparatory work while interpreting treaties. Our findings indicate that experts are better able than students to ignore preparatory work when they believe that the Vienna Convention on the Law of Treaties (VCLT) rules on treaty interpretation do not allow the use of such information. This suggests that there is something unique about international law expertise (or legal expertise in general) that enables the experts to resist the effect of exposure to such information. Read the rest of this entry…

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Do We Need Another Database of International Law Documents?

Published on March 12, 2018        Author: , and

Online databases and repositories appear to be the new golden calf of law publishers which have invested a lot of money in these new academic products. Some publishers secured an early lead position in this market while others are now catching up. From the perspective of the academics that contribute to the developments of such tools, the market still appears to be in development and below saturation. Yet, it cannot be excluded that the continued development of databases ends up cannibalizing publishers’ other, more traditional, products, such as reference books and law reports. This is however a debate for another day. For now, it suffices to note that users — whether students, researchers, practitioners — seem to value international law databases; at least as long as their institution can afford to provide them with access thereto.

It is against this backdrop that the recent launch of Oxford International Organizations (OXIO) – which was celebrated on the occasion of a well attended event hosted by the Graduate Institute in Geneva – raises the question of what epistemic and practical gaps which this new database of documents and annotations specifically dedicated to international organizations can potentially fill. This is why, in the following paragraphs, we inquire into some of the disciplinary assumptions upon which the development of such a product rests, especially in relation to the law of international organizations (1), as well as the concrete benefits which users can draw from OXIO (2).

Consolidating the Law of International Organizations? Read the rest of this entry…

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