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Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Published on July 10, 2017        Author:  and

In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case. Read the rest of this entry…

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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.

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Announcements: New additions to the UN Audiovisual Library of International Law; BIICL Public International Law in Practice Course; CfP International Investment Treaties and National Governance Asia Focus

Published on July 9, 2017        Author: 

New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Antony Anghie on “History and International Law” and “Third World Approaches to International Law” as well as by Professor Fabio Morosini on “The Promotion of Health and Environmental Policies in the Jurisprudence of the WTO”.

BIICL Public International Law in Practice Course. Public International Law in Practice is a dynamic course of applied public international law run by the British Institute of International and Comparative Law from 18-19 September 2017, at Charles Clore House, 17 Russell Square, London WC1B 5JP. The two-day programme is focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Led by many of the Institute’s leading researchers and practitioners, the course is designed to give a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international law in armed conflict, from human rights to international investment law. Find out more and book online here.

Call for Papers: International Investment Treaties and National Governance Asia Focus. The Centre for International Law at the National University of Singapore is pleased to announce a call for papers for a workshop, entitled “International Investment Treaties and National Governance”, which shall take place on 16 -17 November 2017 in Singapore at the Centre for International Law at the National University of Singapore. This workshop is concerned with examining the effects of international investment treaties on national governance. The workshop focuses on Asian countries, including (but not necessarily limited to) Indonesia, Malaysia, Myanmar, Philippines, Singapore, South Korea, Sri Lanka and Vietnam. Please submit a 1-page abstract (no more than 500 words) of the paper you plan to present to cilayel {at} nus.edu(.)sg by no later than 31 July 2017. Travel and accommodation will be provided for selected presenters traveling to Singapore. For colleagues wishing to attend the workshop without presenting a paper, registration is open too. The call for papers is available hereFor further inquiries, please contact Dr. Ayelet Berman (cilayel {at} nus.edu(.)sg).

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The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

Published on July 7, 2017        Author: 

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative. Read the rest of this entry…

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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…

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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…

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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…

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Port State Jurisdiction Beyond Oceans Governance: The Closure of Ports to Qatar in the 2017 ‘Gulf Crisis’

Published on July 3, 2017        Author: 

5 June 2017 witnessed numerous states severing diplomatic ties with Qatar, including Bahrain, Egypt, Saudi Arabia (see also part 2, part 3) and the United Arab Emirates (UAE). These were later joined by the Comoros, Libya (Provisional Government), the Maldives, Mauritania and Yemen. Others have downgraded relations with Qatar to a lesser degree (e.g. recalling ambassadors), including Chad, Djibouti, Eritrea, Jordan, Niger and Senegal. However, as a sign of rising tensions, the measures adopted go further than the previous 2014 breakdown of relations. A number of territorial restrictions in the Persian Gulf region were adopted against persons, vessels or aircraft with a link to Qatar. The most interesting measures for discussion here are those adopted in a port state capacity. The key question concerns the jurisdictional basis on which these port states have taken measures against foreign vessels – especially given the imposition of denial of entry on the basis of purely extraterritorial conduct (visited Qatar), or future conduct (destined for Qatar)?

Since adoption of the United Nations Convention on the Law of the Sea (UNCLOS), the formal role of port states in ocean governance has been increasing. Port states had played a role prior to UNCLOS, focused upon issues of marine pollution, but this has been expanded upon by subsequent treaties further addressing pollution, labour standards and the fight against illegal, unreported and unregulated (IUU) fishing (on which see the recent post by Diane Desierto). In this post I cover a further direction in the use of regional port state measures that has been highlighted by recent events within the Persian Gulf: the shaping of another state’s foreign and domestic policies.

A port state may be defined as the state with territorial sovereignty over a port to which a foreign vessel is requesting entry, or currently resides within. The United Arab Emirates (UAE), as a port state, closed all seaports to Qatari vessels and banned all Qatari means of transportation (sea and air) from entering or leaving its territory. To implement this decision, Fujairah, Abu Dhabi (and also see here), Ras Al Khaimah, and Sharjah ports have prohibited entry to Qatari flagged or owned vessels, all vessels destined to, or coming from, Qatari ports, and all vessels carrying cargo destined for or coming from Qatar (subsequently, slightly eased). Bahrain (and also see here) similarly closed all its ports to vessels coming from or going to Qatar. Saudi Arabia (and also see here) closed all sea ports to Qatari flagged or owned vessels, and denied port unloading/loading services to all vessels carrying cargo to/from Qatar. While UAE stated it would prevent “means of transportation” leaving its territory, reports only indicate containers being stuck in port. In contrast, the Saudi Port Authority confirmed vessels “destined for Qatar” will not be given clearance to leave port. According to Intertanko, there are “conflicting reports regarding the use of ports in Egypt”. In contrast, other port states, including Iran and Oman, who object to the economic pressures imposed, have offered access and use of their ports necessary for vessels destined to Qatar. Read the rest of this entry…

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Announcements: International Law of the Sea Moot Court Competition

Published on July 2, 2017        Author: 

International Law of the Sea (ILOS) Moot Court Competition. The Netherlands Institute for the Law of the Sea (NILOS) proudly presents the first edition of the International Law of the Sea (ILOS) Moot Court Competition, which is scheduled to take place in Utrecht in May 2019. For further information, please see here.

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Sanctioning Qatar: Coercive interference in the State’s domaine réservé?

Published on June 30, 2017        Author:  and

On 23 May, the Qatar News Agency published content attributing statements to Qatar’s Emir which laid bare simmering regional sensitivities and quickly escalated into a full-blown diplomatic row between Qatar and other regional Powers.

Indeed, on Monday 5 June, Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt adopted what has been dubbed a ‘diplomatic and economic blockade’ (to the annoyance of some). Not only did these States close their land, naval and aerial borders for travel and transport to and from Qatar, the three Gulf States also appeared to expel Qatari diplomats and order (some) Qatari citizens to leave their territory within 14 days. In addition, websites from the Al Jazeera Media Network, as well as other Qatari newspapers, were blocked and offices were shut down in several countries. At the end of a feverish week, on Friday 9 June, targeted sanctions were furthermore adopted against Qatari organizations and nationals believed to have links to Islamist militancy.

In justification of the measures, the sanctioning States invoked the Gulf Cooperation Council’s 2013 Riyadh Agreement and its implementation mechanisms as well as the Comprehensive Agreement of 2014. Although the contents of these agreements are not public, it is believed that the Gulf States expected Qatar to curtail its support to groups that purportedly pose a threat to the region’s stability, such as Hamas and the Muslim Brotherhood. Read the rest of this entry…

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