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Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities

Published on November 8, 2018        Author: 
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Item: EJIL and I.CON, like most of their peers, used to classify article submissions into three categories: Accept, Revise and Resubmit, and Reject. In recent times, a good few years now, we have added what we call ‘Category 4’. It happens increasingly that on the first screening of an article we come to seemingly contradictory conclusions. On the one hand, the piece may be striking in any number of ways: the choice of topic, the originality of the principal argument, the novel empirical data therein. On the other hand, our accumulated experience tells us that it will never pass peer review, not even the Revise and Resubmit threshold. It is simply too rushed and hence too raw. That’s why the Category 4 was invented. An encouraging letter is sent to the author indicating that we believe there is much promise in the piece but it requires a general overhaul before the specific road map, which is the hallmark of a good Revise and Resubmit peer report, can take place: more research, more depth in developing arguments, more attention to counter arguments, more care in expressing them, etc.

Item: In preparing a tenure review report, or assisting in an entry-level appointment process I read the file – a dozen articles or so. One is strikingly good. A handful, truly mediocre. One or two, real garbage. From the same hand, from the same mind. How so uneven? We cannot be at our best in everything we put out, but I am talking discrepancies that go beyond that standard distribution.

Item: I’m a commentator in our post-doc workshop. I later meet with the young scholar to give detailed comments and suggestions for the work. You’ll need, I say, a good few months, maybe half a year’s more work to produce what could become a splendid piece. The post-doc looks at me forgivingly: ‘It won’t happen. My dean expects us to publish seven pieces (!) in two years. I have to move on.’ This ‘quota’ may be at the higher end but is not atypical. I later see the piece, in its original form, on SSRN and eventually in some journal. Read the rest of this entry…

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UNCITRAL and ISDS Reforms: Moving to Reform Options … the Process

Published on November 7, 2018        Author: 
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Last week has been described as a watershed moment for ISDS reform. During a meeting in Vienna, states decided by consensus on the desirability of developing reforms in UNCITRAL with respect to investor-state arbitration. States now have an opportunity to make proposals for a work plan about what reforms to consider and how to go about considering them. To the extent that the tide has turned on traditional investor-state arbitration, it is now up to states to tell us where they want to sail.

As you might imagine, reaching a decision like this involved quite a process, along with a lot of politics. In this blog, I set out the process in terms of what was decided in Vienna, what was not decided, and what the next steps will be for moving forward in 2019. In the next blog, I will provide some context to this development, giving some insights into the politics of the process as well as some projections about how this process might develop.

This reform process will be long and its ultimate outcome remains unknowable. But the momentum for and direction of reforms are becoming increasingly clear. The calls for systemic reform are rising, though different states may mean different things by “systemic.”

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EJIL Vol. 29 (2018) No. 3: In This Issue

Published on November 7, 2018        Author: 
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This issue of the European Journal of International Law features prominently the theme of ‘Perpetrators and Victims of War’.

We open the issue with a series of articles focusing on International Criminal Law. Sofia Stolk starts off by shedding light on the construction of an ‘ideal perpetrator’ – a ‘sophisticated beast’ in international criminal law trials – to allow both accountability and condemnation. A complementary perspective is put forward by Christine Schwöbel-Patel, who analyses the social, political and legal construction of the ‘ideal victim’. Following, Line Gissel scrutinizes Africa’s support for the International Criminal Court (ICC) between 1993-2003. Alexandra Adams concludes this section with an examination of the legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and their contributions to the intricate definition of rape.

In the next section, we feature the penultimate instalment of our Symposium on International Law and the First World War, focusing in this issue on the end of the War. Randall Lesaffer retraces the development of aggression as a concept of international law, showing that a long history of thought on use of force law preceded the Versailles Peace Treaty. Markus M. Payk analyses the Paris Peace Settlement after the Great War, examining the impact that notions of law, justice and legality had on the negotiations leading to the Settlement in the Allies’ quest to establish the ‘reign of law’.

Roaming Charges features a photograph of the stunning relief found in Wroclaw by the local sculptor Eugeniusz Get Stankiewicz: ‘The Crucifixion – Do It Yourself’. We are all perpetrators is one lesson one may take from this work of art. Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 3) Out This Week

Published on November 7, 2018        Author: 
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The latest issue of the European Journal of International Law will be published this 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 new issue. 

Here is the Table of Contents for this new issue:

Editorial

Editorial: Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities; In this Issue

Perpetrators and Victims of War

Articles

Sofia Stolk, A sophisticated beast? On the construction of an ‘ideal’ perpetrator in the opening statements of international criminal trials

Christine Schwöbel-Patel, The ‘Ideal Victim of International Criminal Law

Line Gissel, A Different Kind of Court: Africa’s Support for the International Criminal Court, 1993-2003

Alexandra Adams, The Legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and its Contribution to the Definition of Rape

Symposium: International Law and the First World War

International Law and the End of War

Randall Lesaffer, Aggression before Versailles

Markus M. Payk, ‘What We Seek is the Reign of Law’: The Legalism of the Paris Peace Settlement after the Great War

 Roaming Charges

The Crucifixion – Do It Yourself

 Symposium: The Crime of Aggression before the International Criminal Court

Dapo Akande and Antonios Tzanakopoulos, The Crime of Aggression before the International Criminal Court: Introduction to the Symposium

Frédéric Mégret, International Criminal Justice as a Peace Project

Tom Dannenbaum, The Criminalization of Aggression and Soldiers’ Rights

 

Tom Ruys, Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC

Marieke de Hoon, The Crime of Aggression’s Show Trial Catch-22

Dapo Akande and Antonios Tzanakopoulos, Treaty Law and ICC Jurisdiction Over the Crime of Aggression

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Failing the Hague Stress Test

Published on November 6, 2018        Author: 
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On 25 October 2018, the President of the International Court of Justice, Judge Abdulqawi A. Yusuf, made an apparently ordinary announcement in his speech to the United Nations General Assembly. In light of the increasing workload of the Court, Judge Yusuf reported towards the end of his speech, “[m]embers of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration.” This decision appeared on its face simply to add clarity to the mandate set out in the Statute of the Court that judges may not “engage in any other occupation of a professional nature.” But Judge Yusuf went on with his remarks to specify that “[i]n particular, [members of the Court] will not participate in investor-State arbitration or in commercial arbitration.” Neatly separated from this withdrawal, Judge Yusuf confirmed that the Court will “if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases.”

Here was the signal international legal observers had been waiting for. The reaction on social media belied the apparently ordinary nature of the statement. The Court had taken a stance on one of the partisan issues of international legal politics – the hot potato of investor-State arbitration.

The events surrounding Judge Sir Christopher Greenwood’s re-election bid to the Court brought that hot potato to the Court’s doorstep. Days after Judge Greenwood conceded defeat in his re-election bid to the Court, a think tank associated with opposition to investor-state arbitration, published a study that called out “moonlighting” by ICJ judges in investor-state arbitrations. One of the judges the think tank focused upon was Judge Greenwood. Its reporting more than implied that Judge Greenwood’s work as arbitrator was a further reason speaking against his re-election. One can only imagine that with the political opposition to investor-State arbitration in Europe and elsewhere, this implication landed with rather a loud thud at the Court. The context thus may have been one of judicial acquiescence to the political headwinds rather than one that was purely a question of workload. After all, while resigning politicians do certainly like to spend more time with their families, this desire is hardly if ever the whole story behind their departure. So, too, the Court’s reasoning appears a little too casual when viewed in context. In fact, this topic was one of the most hotly debated issues at the recent Oxford Investment Claims Summer Academy convened by the Oxford University Press at Kellogg College this July. Read the rest of this entry…

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Can’t Fight the Moonlight? Actually, You Can: ICJ Judges to Stop Acting as Arbitrators in Investor-State Disputes

Published on November 5, 2018        Author: 
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The earthquake started in earnest in November 2017. At its epicentre was a report, published in November 2017 by two researchers at the International Institute for Sustainable Development (“IISD“).

In the report, titled “Is ‘Moonlighting’ a Problem? The role of ICJ Judges in ISDS”, researchers Nathalie Bernasconi-Osterwalder and Martin Dietrich Brauch analysed the contents of several public databases of ISDS cases, and found that at least seven judges at the International Court of Justice (“ICJ” or the “Court“) at the time of publishing (and 13 former judges) had worked (or were working at the time of the report) as arbitrators in treaty-based investor state dispute settlement cases during their terms at the ICJ.

Crunching the numbers further, the two IISD researchers looked at the amount of treaty-based cases in which ICJ judges had served as arbitrators. They compared the number against the 817 treaty-based ISDS cases known as of July 2017. The results were surprising: ICJ judges had sat as arbitrators in roughly 10% of all known investment treaty cases during their tenure.

This raises three types of concerns.

First, it seems to contravene the prohibition for ICJ judges to “engage in any other occupation of a professional nature” contained in the Statute of the International Court of Justice (the “ICJ Statute“).

Second, arbitrators are usually paid according to the time (calculated in days or hours) spent working on a case. This means that any ICJ judge who is also appointed as an arbitrator would have an economic incentive to spend more time on the investment treaty case, to the potential detriment of the judge’s Court-related work.

Third, cumulating the roles of ICJ judge and arbitrator (or, as the report called it, “moonlighting”) could potentially impact, or be perceived to impact, the judge’s independence and impartiality. Read the rest of this entry…

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New Restrictions on Arbitral Appointments for Sitting ICJ Judges

Published on November 5, 2018        Author: 
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Editor’s Note: This week, in a trio of posts by Callum Musto, Marie Davoise, and Frederic Sourgens, we facilitate discussion on the nature of the International Court of Justice’s judicial function, and the occasional international arbitration appointments accepted by individual judges of the World Court. In view of H.E. President Yusuf’s October 2018 report to the U.N. General Assembly, what can be expected of the Court with respect to managing future arbitral appointments that could be issued by appointing authorities or party nominations for the Court’s individual jurists – whether in inter-State or mixed arbitral disputes?

On 25 October, in the annual address of the President of the International Court of Justice to the General Assembly, President Yusuf announced that the Court had decided to adopt new restrictions on its sitting Members acting as arbitrators in inter-State and mixed arbitration. He said:

The Court is cognizant of the fact that, while the judicial settlement of disputes offered by the Court is enshrined in the Charter, States may, for several reasons, be interested in settling their disputes by arbitration. In such instances, Members of the Court have sometimes been called upon by States to sit on the arbitral tribunals in question dealing in some cases with inter-State disputes while in others with investor-State disputes – a testament, of course, to the high esteem in which the Court’s Judges are held by the international community. Over the years, the Court has taken the view that, in certain circumstances, its Members may participate in arbitration proceedings. However, in light of its ever-increasing workload, the Court decided a few months ago to review this practice and to set out clearly defined rules regulating such activities. As a result, Members of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration. In particular, they will not participate in investor-State arbitration or in commercial arbitration. [pp. 11-12, my emphasis]

President Yusuf elaborated that while sitting judges would no longer be allowed to arbitrate in mixed proceedings, they would be permitted to do so in ‘exceptional’ circumstances in inter-State disputes, provided that their judicial activities are given ‘absolute precedence’:

… in the event that they are called upon, exceptionally, by one or more States that would prefer to resort to arbitration, instead of judicial settlement, the Court has decided that, in order to render service to those States, it will, if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases. Even in such exceptional cases, a Member of the Court will only participate, if authorized, in one arbitration procedure at a time. Prior authorization must have been granted, for that purpose, in accordance with the mechanism put in place by the Court. Members of the Court, will, however, decline to be appointed as arbitrators by a State that is a party in a case pending before the Court, even if there is no substantial interference between that case and the case submitted to arbitration. [pp. 11-12, my emphasis]

It does not appear that the Court has elected to make formal amendments to its Rules or to include a Practice Direction reflecting the new appointment policy, but rather for individual judges and the President to manage appointment requests on an individual basis. The difference in approaches taken between inter-State and mixed arbitration presumably reflects the significant jurisdictional and substantive overlaps between the Court’s activities and many inter-State arbitrations — especially under Annex VII UNCLOS — and the comparatively smaller pool of eligible arbitrators to fill these roles.

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Announcements: CfP Cambridge International Law Conference 2019; UN Audiovisual Library of International Law; Stirling Law School Lecturer in International Commercial Law Vacancy; Human Rights and Climate Change Event; CfP JIEL – Trade Wars

Published on November 4, 2018        Author: 
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1. Call for Papers: 8th Annual Cambridge International Law Conference 2019. The Editors of the Cambridge International Law Journal (CILJ) and the Conference Convenors welcome submissions for the Cambridge International Law Conference 2019, which will be held at the Faculty of Law, University of Cambridge on the 20 – 21 March 2019. This year, the Conference invites the submission of papers under the theme ‘New Technologies: New Challenges for Democracy and International Law’. The deadline for abstracts for both panel and roundtable presentations is 3 December 2018. Submissions should be made here. Abstracts of no more than 500 words should be submitted together with your CV. Authors that will present at the Conference will also be invited to submit their papers to be considered for publication in Volume 8(2), the conference issue of the Journal, to be published in December 2019. Further information will be posted on the CILJ website in due course. In the interim, please contact conference {at} cilj.co(.)uk with any question or concerns.
 
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs has updated its Moot Courts section under the Research Library of the UN Audiovisual Library of International Law (AVL), which provides a selection of lectures and legal instruments useful for preparing for moot courts competitions. A new page has been launched for the 2019 Philip C. Jessup International Law Moot Court Competition. The page for the Concours Charles-Rousseau has also been updated for the current edition. Both pages are available on the AVL’s Moot Courts section. 
 
3. Stirling Law School Lecturer in International Commercial Law Vacancy. Stirling Law School is seeking to appoint a Lecturer in International Commercial Law. International Commercial law is broadly defined but we would be particularly interested to hear from applicants with specialisms in areas such as dispute resolution, international trade and/or corporate finance (including energy finance). The successful candidate would be able to teach across a range of undergraduate and postgraduate programmes, including the Scots law LLB, BA degrees and the proposed common law LLB and would be part of a team developing short course for international partners. The successful candidate would be expected to contribute effectively to our strong research culture and expected to produce high quality outputs, make grant applications and work towards creating impact. It is essential that the candidate has a Scots law LLB or an LLB from another UK jurisdiction or from a Common Law jurisdiction to be able to teach on accredited modules. For further information, including essential criteria and details on how to apply, please see hereRead the rest of this entry…
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Reforming Land Restitution – A Concerted Effort to Derail Colombia’s Transitional Justice System?

Published on November 2, 2018        Author: 
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Recently, Kai Ambos alerted readers of two attempts to weaken Colombia’s transitional justice system (see here and here). A third development fortifies suspicions that the country’s newly elected government intends to derail it. This time, a legislative proposal threatens Colombia’s land restitution process. Changes in the treatment of secondary occupants of reclaimed land could especially frustrate this integral part of the elaborate reparation efforts.  

Land Restitution in Colombia

The struggle over land has long been at the core of the Colombian conflict. With 7.7 million people, Colombia hosts the world’s largest population of internally displaced persons. IDPs constitute the vast majority of the 8.7 million registered survivors of the armed conflict. Studies estimate that displacement has affected 11.4 million hectares of land. Accordingly, former President Santos included land restitution as a central element in the 2011 Law on Victims and Land Restitution – the largest reparation program in the world. To manage the massive caseload, a newly created entity, the Land Restitution Unit (Unidad de Restitución de Tierras, URT) administers a special three-phase restitution process. In the first administrative phase, the URT decides on a survivor’s request to have his or her land entered into the Register of Evacuated or Forcibly Abandoned Land (Registro de Tierras Despojadas y Abandonadas Forzosamente). The URT collects evidence and evaluates whether the survivor convincingly demonstrates his or her displacement and a legal relationship to the land they seek to reclaim. Once registered, the survivor proceeds to the judicial phase, in which a specialized judge decides the claim with finality. A positive sentence constitutes a legal title to the land. The judge can further order any measures necessary to guarantee an effective return to the restituted land in conditions respectful to the survivor’s human rights. Among these measures are debt relief, and technical and financial assistance for economic projects. In the post-sentence phase, the judge remains seized and can issue further orders if the survivor encounters problems in the return process.

Secondary Occupants

Of course, the process is not perfect. Read the rest of this entry…

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Understanding the State Party Referral of the Situation in Venezuela

Published on November 1, 2018        Author: 
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Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. Read the rest of this entry…

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