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On Reforming the World and Reforming Character

Published on January 10, 2019        Author: 
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Guy Fiti Sinclair’s To Reform the World was, for me, one of the books of the year when it came out in 2017. It is a model of legal scholarship, and does two things very well that are oh so difficult to bring together. First, Sinclair is an excellent lawyer – he knows the law, he knows what to focus on and what to ignore, and what is more, he is interested in the law, both its doctrinal detail and its political role; sadly, this interest in the law is not always present with people interested in the politics of law. Second, and related, he brings out this political role with verve and cogency. The work is scholarship of the highest order, a credit to its author and to those who trained him. I find, in all honesty, little to comment sensibly on; this is one of those books (few as they are) which I wish I had written myself. One can of course always ask questions: why focus on the World Bank and not, say, UNHCR? Why not include the work of an organization that proclaims to exist outside and beyond the law, like the OSCE? Could the same type analysis be applied to an interest organization like, say, the International Olive Council? Those questions can always be asked – the world of international organizations counts at least 300 varieties, and we tend to look at some of them a lot more than at others. It is almost a disgrace, for instance, that not more is known about a hugely important global governance institution such as the International Organization for Migration, responsible for establishing border management practices across the world and even for running migrant processing centers on behalf of member states, but steadfastly ignored in the legal literature.

But it would be churlish to go down this path. Instead, I want to address an element that usually stays a little under the radar and to which I cannot attach a proper label. It has something to do though with the political role of legal academics. Sinclair, without advertising it and (blissfully) without posturing, adheres broadly to the critical school. He may not be a card-carrying crit, but his work is sensitive to and inspired by critical givens (the indeterminacy thesis, the oscillation of law between apology and utopia, the notion that law typically serves as a vehicle for someone’s political project, that sort of thing). There is a Foucauldian flavor to the work and Sinclair clearly has taken the critical revolution to heart. And the book is all the better for it; indeed, it would have been impossible to write To Reform the World without something of a critical mindset.

The obvious follow-up question then is, however, what next? If the law cannot be trusted to do what we have always been taught to expect from it, if it carries institutional biases and tends to favour some at the expense of others, then what are international lawyers to do? Some have been happy to just continue to point to biases and the role of the ideology of international law – the equivalent of Voltaire’s retreat into his garden. Others have pointed to the emancipatory potential latent in international law; and yet others have put forward the idea that international lawyers or decision-makers more generally have a role to play in ensuring that the negative effects of international law are mitigated, aiming to complement the sterile structures of the law with calls on individuals to operate with a minimum of common decency. Read the rest of this entry…

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To Reform the World: International Organizations and the Making of Modern States – An Introduction

Published on January 9, 2019        Author: 
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How have international organizations been able to expand their governance powers so significantly over the past century? What has been the role of international law in making this extraordinary expansion of powers seem possible and legitimate? And what does this tell us about international law itself?

My book, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017), explores these questions by examining the expansion of legal powers exercised by international organizations through informal processes of discourse, practice, and (re)interpretation (‘IO expansion’ for short), rather than by the formal amendment of an organization’s constituent instrument. The book argues that IO expansion has been imagined, understood, and carried out as necessary to a process of making and remaking modern states, based on a broadly Western model. It also argues that international law plays a central, protean role in that process. It would be overly simplistic, therefore, to contend that IO expansion has resulted only in a loss of sovereignty by states. To the contrary, my argument is that IO expansion is intimately bound up with the creation of states, the construction of state powers, and the very constitution of modern statehood.

The book develops these arguments through detailed accounts of three episodes of IO expansion. The first involves the beginnings of technical assistance in the International Labour Organization (ILO) in the interwar period. The second concerns the emergence of United Nations (UN) peacekeeping in the two decades following World War II. And the third encompasses the World Bank’s ‘turn to governance’, which reached a high point in the 1990s. By examining three very different international organizations, spanning different periods in the 20th century, the book is able to identify broad themes in how international law has evolved and works in the world.

The research that led to the book began from the commonplace observation that international organizations have become some of the most significant actors in global governance. Today, hundreds of these entities, both regional and global in scope, intervene in myriad areas of activity, including international peace and security, social and economic development, trade and finance, and environmental protection. The powers exercised by international organizations now impact directly and indirectly on the lives of millions of people around the world. Some of these activities involve relatively mundane (though far-reaching) matters of international standard-setting and coordination, while others are more spectacular, including military, financial, and other forms of intervention. Read the rest of this entry…

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Announcement: Book Discussion on Guy Fiti Sinclair’s “To Reform the World”

Published on January 9, 2019        Author: 
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The blog is happy to announce that over the next week, we will host a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Guy Fiti Sinclair  is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. 

Guy will open the discussion this morning with an introduction to the text. This will be followed by posts from Jan Klabbers,  Megan Donaldson, Devika Hovell and Edouard Fromageau. Guy will close the symposium with a reply to the discussants.

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.

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Announcements: Goettingen Journal of International Law; CfP Conference on Actors in International Investment Law; Conference of the Young Researchers of International and EU Law

Published on January 6, 2019        Author: 
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1. Goettingen Journal of International Law. The Goettingen Journal of International Law publishes its Vol. 9, No. 1 (2018) as a special issue on ‘The Law Behind Rule of Law Transfers’. The full issue can be accessed here

2. Call for Papers: ESIL Sponsored Conference on Actors in International Investment Law – Beyond Claimants, Respondents and Arbitrators. The University Paris II Panthéon-Assas is hosting, in the context of the Investment Law Initiative, a Colloquium on ‘Actors in International Investment Law: Beyond Claimants, Respondents and Arbitrators’, which will take place on 26 and 27 September 2019, in Paris, France. This year’s Colloquium focuses on actors in international investment law beyond claimants, respondents, and arbitrators. Potential topics are presented here. Abstracts must not exceed 800 words and must be submitted by email to agourg {at} law.uoa(.)grcathy_titi {at} hotmail(.)com; and katiafachgomez {at} gmail(.)com. The full call for papers can be found here

3. 15th Conference of the Young Researchers of International and EU Law. On 1 April, 2019, the Università degli Studi of Milan, Italy, will host the 15th Conference of the Young Researchers of International and EU law. The Conference will focus on withdrawal from multilateral treaties. In particular, it will look at analysing its causes, procedures and effects, as well as at evaluating if and to what extent we are now facing a disengagement from multilateralism or, on the contrary, the emergence of new methods of cooperation at the international and EU levels. Even though the lingua franca of the Conference will be Italian, presentations in English and French are welcome. Deadline is 11 February 2019.  Full details can be found here or contact the organizers at 15convegnogiovanimilano@gmail.com.

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Trivia: International Lawyers in Senior State Positions

Published on January 4, 2019        Author: 
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Many thanks to those who suggested answers to my trivia question of earlier this week. I have put my responses as a comment to that post. I now have another question which relates to international lawyers who have held the highest offices of state.

There are quite a number of international lawyers who have gone on to hold cabinet level ministerial positions in national government. In the UK, we recently had the example of Dominic Raab who was Minister for Exiting the European Union in the second half of last year. He spent the early part of his career as a lawyer in the UK Foreign and Commonwealth office, including spending some time as Legal Adviser at the UK Embassy in The Hague. I do not know of another UK cabinet member who had authored articles in international law journals (the Leiden Journal of International Law and Journal of International Criminal Justice) en route to being in the Cabinet.

Elsewhere, there have been a number of Foreign Ministers who had previously been academic or practising international lawyers. A prominent example is Hans Blix, who went on to be Director of the International Atomic Agency, had a PhD in international law from Cambridge University, was an academic international lawyer at the University of Stockholm, before he became Foreign Minister of Sweden from 1978-79. Boutros Boutros-Ghali, who later became UN Secretary-General, had been Professor of International Law at Cairo University (and Visiting Professor in Paris) before becoming Acting Foreign Minister of Egypt also in the late 1970s. A couple of judges of the International Court of Justice have gone on to be Foreign Ministers of their countries. Nabil Elaraby, who had been a Judge at the ICJ (and before that member of the International Law Commission & Legal Adviser to the Egyptian Foreign Ministry) subsequently became Foreign Minister of Egypt for a brief period in 2011, before becoming Secretary-General of the Arab League that same year. Mohammed Bedjaoui, was President of the ICJ before becoming Foreign Minister of Algeria in 2005. Susana Ruiz Cerutti who was recently a candidate for election to the ICJ was briefly Foreign Minister of Argentina after (and before) spells as Legal Adviser to the Foreign Ministry.

These are all cabinet level government officials who previously had a career in international law. My question is whether there has been a head of state or head of government who before becoming such had been an academic or practising international lawyer. One has to define international lawyer though. My definition is that the person must either have published a book or article(s) on public international law; taught international law in a university; or practised public international law by holding a position that involves regularly advising on this branch of law.

To clarify, my question asks for people who were international lawyers before becoming head of state or government. I exclude those who turned to international law after holding these high offices. Sir Geoffrey Palmer QC who was Prime Minister of New Zealand from 1989 to 1990 later sat as an ad hoc Judge on the ICJ in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (1995). After his political career, he wrote extensively on international law (see his SSRN page) on his return to academia, in addition to undertaking other international appointments that involved the application of international law. Though he had an academic career before going into the New Zealand Parliament, I do not think he had written on international law before his political career. One of the answers to my last set of trivia questions was Judge Mohamed Shahabuddeen who had a distinguished career in government in Guyana before embarking on his international judicial career. In addition to being Attorney General and Minister for Legal Affairs, he served as acting Foreign Minister from time to time and was also First Deputy Prime Minister and Vice-President of his country. However, as far as I can tell Judge Shahabuddeen only turned to international law after holding those senior positions in national government. So neither he nor Sir Geoffrey would be suitable answers to my question.

To repeat, the question is this:

Has there been a head of state or head of government who has been an academic or practising international lawyer before holding these high offices?

Read the rest of this entry…

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The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 
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It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

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Trivia: Judges on Multiple International Tribunals

Published on January 2, 2019        Author: 
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In previous posts (here and here) of some years ago, I noted the increasing number of judges elected to the International Court of Justice who had prior experience on another international tribunal. With the proliferation of international tribunals over the past couple of decades, this phenomenon of judges being elected to one international tribunal after having served in some judicial capacity on another appears to be on the increase. About 10 days ago, the United Nations General Assembly held elections for two judicial vacancies on the International Residual Mechanism for International Criminal Tribunals. The Assembly elected Yusuf Aksar of Turkey as a judge, but after  six rounds of balloting was unable to elect the second judge, with a further round of balloting to be held at date to be announced. Professor Aksar currently serves as an ad hoc judge of the European Court of Human Rights. This is the latest example of an international judge with prior international judicial experience. 

All of this leads me to wonder which international judge (by which I mean, judge of a standing international tribunal) has served on the most number of (standing) international tribunals. I can think of one judge who has sat on three international tribunals and two judges who have served on/been elected to  four.

My opening trivia questions for the new year are these:

  1. Which judge has served on the International Court of Justice; the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court?

  2. Which judge has been elected to the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the International Criminal Court?

  3. Which judge has served on the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the Appellate Body of the World Trade Organisation?

  4. Can anyone think of an international judge who has served on 5 or more standing international tribunals?

Read the rest of this entry…

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Happy New Year and Most Read Posts of 2018!

Published on December 31, 2018        Author: 
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I would like to wish our readers a very Happy 2019! Before we close out 2018, I would like to set out our most read posts of the year. These give a snapshot of the some of the key developments in international law over the course of the year, and/or of key incidents in international affairs with consequences for international law.

The top 10 posts are presented here with the numbers 11 to 20 below the fold.

Many thanks to all of our contributors in 2018, and, to you, our readers 

1) Diane Desierto, Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the Philippines’ Drug War(Aug. 2018)

2) Marko Milanovic, The Syria Strikes: Still Clearly Illegal, (April 2018)

3) Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression(Dec. 2017)

4) Marko Milanovic, Palestine Sues the United States in the ICJ re Jerusalem Embassy, (Sept. 2018)

5) Leila N. Sadat, Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, (June, 2018)

6) Marc Weller, An International Use of Force in Salisbury?, (Mar. 2018)

7) Dapo Akande, Ecuador Seeks to Confer Diplomatic Status on Julian Assange: Does this Oblige the UK to Allow Him to Leave the Embassy & Is the Matter Headed to the ICJ?(Jan. 2018)

8) Monica Hakimi, The Attack on Syria and the Contemporary Jus ad Bellum, (April 2018)

9) Joseph Weiler, Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities, (Nov. 2018)

10) Koldo Casla, Supreme Court of Spain: UN Treaty Body individual decisions are legally binding(Aug. 2018) Read the rest of this entry…

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Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part II)

Published on December 29, 2018        Author: 
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The potential role of the planetary boundary for biosphere integrity

The planetary boundary framework was originally developed to identify the key global processes that are essential for regulating the functioning of the Earth System and create what are effectively safe ‘buffer zones’ that might prevent humanity from crossing dangerous biophysical thresholds or tipping points. In its current version, the framework describes nine such boundaries, ranging from climate change to atmospheric aerosol loading and including freshwater use, land-use change, stratospheric ozone depletion, introduction of novel entities to the environment, ocean acidification, biogeochemical flows and, crucially, biosphere integrity. The fact that the boundaries represent the limits of what the authors call the ‘safe operating space’ for human development on a changing planet has attracted immediate interest from political scientists working on Earth System governance, and some legal scholars have progressively started to consider the concept as potentially useful for international environmental law as well.

Ever since the first elaboration of the nine planetary boundaries, the very possibility of identifying a global boundary for biosphere integrity resulting from changes in regional and local biodiversity has appeared as one of the most contentious aspects of the framework. As a result of intensive discussions to which various research communities contributed, the description contained in the original planetary boundaries paper was in fact updated in 2015,in order to capture the two key roles of the biosphere in the Earth System, and namely: (a) the importance of genetic diversity in maintaining and building its resilience (i.e. through the use of global extinction rates); and (b) the contribution of organisms’ functional traits to Earth System functioning (i.e. through the so-called Biodiversity Intactness Index). In doing so, the planetary boundary framework was also expanded to recognize the importance of sub-global boundaries that must align with the global boundary definition for biosphere integrity, owing to the fact that the ideal unit of analysis for changes in elements of biodiversity is usually situated at the level of biomes and ecosystems.

From this perspective, and subject to further scientific advancements and new data becoming available, a planetary boundary for biosphere integrity could potentially represent a very useful tool for international biodiversity law. On the one hand, because the national allocation of the planetary ‘safe operating space’ would recognize and make explicit the above-mentioned link between a global boundary and the regional, national and sub-national operating scales at which biodiversity loss occurs. On the other, and as a consequence, because the incorporation in international biodiversity law of a global boundary that might be quantifiable through critical values for one or more control variables could in theory enable changes to biosphere integrity to be used as an indicator of State responsibility, providing a powerful empirical benchmark against which to assess the respect of legal obligations relating to biodiversity (or, at the very least, a set of more precise, science-based objectives and targets that it would be more difficult for States to ignore).

The nine planetary boundaries and the status of their control variables. Source: Steffen et al. (2015)

For the purpose of the present analysis, it is less important what the control variables should be, and it should indeed be noted that identifying suitable ones for biosphere integrity remains a daunting and still hotly debated task. What is crucial is that the concept of a measurable planetary boundary for biosphere integrity clearly suggests that the related biophysical limits, once incorporated in international law, could play an important role in mitigating the procedural and/or non-enforceable nature of most international obligations relating to biodiversity within national jurisdiction (for example, the requirement to develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity set in Article 6(a) of the CBD, or the obligations for in-situ conservation listed in Article 8).

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Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part I)

Published on December 29, 2018        Author: 
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Introduction

The recent publication of the UN Secretary-General’s Report on ‘Gaps in International Environmental Law’ comes at a particularly critical juncture for the protection of the world’s biodiversity. The Report was released just days after the conclusion of the 14thConference of the Parties to the Convention on Biological Diversity (CBD), which has expressed deep concern about countries’ lack of progress in the achievement of the Convention’s Aichi Biodiversity Targets by 2020. Furthermore, it closely follows a number of other urgent calls for action, including those contained in WWF’s Living Planet Report and in the four bleak regional assessments conducted by the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES).

The widely anticipated failure of the CBD’s Strategic Plan for Biodiversity 2011-2020 has been used as a starting point by some to advocate for a renewed ‘global deal for nature’. The Gaps Report itself, beyond its endorsement of a future Global Pact for the Environment, is especially scathing in its ‘indictment’ of biodiversity-related instruments in international law. The Report builds on years of scholarly debates in this field and focuses on, inter alia, the absence of a coherent structure of international biodiversity law, the lack of binding commitments and poor national implementation of voluntary ones, inadequate integration of biodiversity into other law- and policy-making arenas, insufficient use of ecosystem-based approaches to conservation, and lack of attention paid to interconnectedness of ecosystems within and outside protected areas.

Recognizing the need for innovative legal instruments that can capture the complexity of ecological relationships and mitigate the pervasiveness of anthropogenic interference on the Earth’s biodiversity, the international community has indeed embarked on the preparation of a post-2020 global biodiversity framework, as well as on the negotiation of a new treaty applying to biodiversity beyond national jurisdiction. What is arguably missing in both the Gaps Report and these wider intergovernmental efforts, however, is a thorough analysis of the underlying reasons that have prevented existing international biodiversity law from being effective in curbing global extinction rates and unsustainable patterns of ecosystem destruction and degradation, despite decades of legal developments and a robust apparatus of subsidiary bodies tasked with providing scientific and technical advice. Without a similar analysis, the risk of future biodiversity regimes falling back on business-as-usual approaches will probably remain very high.

In this post, I first describe one particularly problematic aspect of international biodiversity law, namely the difficulty of identifying substantive obligations (i.e. obligations of result) applying to biodiversity located within national jurisdiction despite increasing awareness about the interconnectedness of ecological processes occurring at different spatial scales. Secondly, I suggest the potential of the planetary boundaries framework first developed in 2009 by Rockström and others to provide quantifiable measures of ‘biosphere integrity’ that can help define these international obligations. Finally, I propose four ways in which international biodiversity law (including its institutional arrangements) could be used to incorporate a planetary boundary for biosphere integrity.

Read the rest of this entry…

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