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Paris Agreement Regained or Lost? Initial Thoughts

Published on December 28, 2018        Author: 
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Headlines recently announced the end of a critical climate summit in Katowice, Poland.  Katowice had played host to the 24thConference of the Parties meeting (COP24) under the United Nations Framework Convention on Climate Change (UNFCCC).  The summit was billed as a “make or break” moment for the world community. Three years had passed after world leaders emerged from climate negotiations in France with the Paris Agreement.  After the initial euphoria wore off, reality set in that while climate change was accelerating, mitigation efforts under the Paris Agreement were falling behind schedule.  And the city of Paris itself has become a powerful symbol for the difficulties faced by the Katowice negotiators.  Three short years after being the cradle of a new hope, French measures to implement the Paris Agreement gave rise to the Yellow Vest protests. These protests eventually laid siege to the city of Paris itself.  The picture that emerged: the Arc de Triomphe engulfed in smokeas a signature policy initiative by the French government to implement the Paris Agreement went up in flames. 

So – how successful was COP24? Did it succeed in rescuing the Paris Agreement? Or is Paris in ruins?

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Filed under: EJIL Analysis
 

The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

Published on December 27, 2018        Author: 
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In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers. Read the rest of this entry…

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2018 Favourite Readings: Values, Identity, and Growth in the Global Economy

Published on December 26, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we give you Diane Desierto’s favourites.

Why do we have a global economy, what is it for, what comprises it, and to what ends and purposes do we regulate it?  Somewhat unconsciously, my favourite books for 2018 directly or indirectly related to these questions. Throughout 2018, I relished reading (or rereading, in some of these) Hersch Lauterpacht’s classic International Law and Human Rights (F.A. Praeger Press, 1950), followed by Louis Meuleman’s Metagovernance for Sustainability: A Framework for Implementing the Sustainable Development Goals (Routledge, 2018); David Pilling’s The Growth Delusion: Wealth, Poverty, and the Well-Being of Nations (Bloomsbury Publishing, 2018), Mariana Mazzucato’s The Value of Everything: Making and Taking in the Global Economy (Penguin Random House UK, 2018), and Francis Fukuyama’s Identity: The Demand for Dignity and the Politics of Resentment (Farrar, Straus, and Giroux, 2018).  These books proved illuminating this year in my ongoing thematic and granular search for answers to the above questions.

Hersch Lauterpacht’s International Law and Human Rights is an apt reminder of how modern international law, at its inception, fundamentally serves the ends and aims of human rights in free and just societies. Lauterpacht makes his argument in three parts – showing in The Rights of Man and the Law of Nations that the concept of international peace is inseparable from the vindication of human dignity through human rights; elaborating human rights provisions central to the UN Charter in Human Rights under the Charter of the United Nations; and concluding with a detailed set of recommendations (recall, this was long before the development of the major human rights treaties today) for the International Bill of the Rights of Man.  Read the rest of this entry…

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A Quick Holiday Update on Ukraine/Russia Litigation before the ECtHR

Published on December 24, 2018        Author: 
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Last week the European Court of Human Rights published a press release which is worth flagging for readers, with an update on litigation concerning various aspects of the conflict in Ukraine pending before it. As things stand, there are more than 4000 individual cases before the Court with a nexus to the conflict, whether in Eastern Ukraine or Crimea. There are currently five pending interstate cases between Ukraine and Russia, the latest one filed in November, concerning the Kerch Strait incident (see this prior post by James Kraska) and in which the Court has indicted interim measures. The Court has now decided to adjourn many of the individual cases, pending its decision in the interstate cases on the applicability of the Convention, specifically with regard to the Article 1 ECHR jurisdiction of both Ukraine and Russia; for a discussion of this issue, see my recent ICLQ article with Tatjana Papic on the applicability of the ECHR in contested territories.

The full press release is reproduced below.

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Announcements: CfA Constitutional Court Review; UN Audiovisual Library of International Law; CfR – Global Study on the Impact of the UN Human Rights Treaty System

Published on December 23, 2018        Author: 
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1. Call for Abstracts: Constitutional Court Review. The editors of the Constitutional Court Review are issuing an open call for abstracts and articles for the Constitutional Court Review X (2019). The Constitutional Court Review is the only internationally accredited journal on the work of South Africa’s Highest Court. The Constitutional Court Review Conference/Workshop allows authors and editors to read one another’s work and engage initial drafts in an intimate environment. For those persons unfamiliar with the journal, please see here to view all eight published volumes and find out a little more on who we are and what we do. CCR I through CCR VIII are online, open access and freely downloadable. (CCR IX will be housed online in 2019.) The journal is also freely available on SAFLII (the Southern African Legal Information Institute database), and can be accessed through Heinonline and Sabinet. 

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms. Patrícia Galvão Teles on “Obligations and Rights Erga Omnes in the case-law of the International Court of Justice” and Mr. Ki-Gab Park on “Lex Ferenda in International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Researchers: Global Study on the Impact of the UN Human Rights Treaty System on the Domestic Level. The UN human right treaty system is widely believed to be at the core of the international human rights project. But exactly what evidence is available to demonstrate its impact on the lives of people worldwide? Moreover, what are the factors that enhance or inhibit its effect where it matters – on the ground? Two decades ago, a group of researchers  based in twenty countries engaged in the most comprehensive attempt thus far to to answer these questions. The study leaders were Christof Heyns and Frans Viljoen from the the Centre for Human Rights, University of Pretoria, working with the UN Office of the High Commissioner for Human Rights. They have now again assembled a group of researchers based in the same twenty countries. Using the earlier study as a base-line, they are  asking where are we today, and how should we approach the future. Yet in spite of its geographical and temporal scope, this study will reveal only part of the picture, and it will date soon. What is needed is global, ongoing academic engagement with the treaty system. Researchers worldwide are encouraged to undertake independent research on the same topic in their home countries and to publish it in academic journals of their choice, making sure the treaty system enjoys the benefit of rigorous – and most importantly, locally based – academic engagement. See here

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Filed under: Announcements and Events
 

Call for Papers: European Journal of International Law – International Law and Democracy Revisited, The EJIL 30th Anniversary Symposium

Published on December 23, 2018        Author: 
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EJIL was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology, with predictions of liberal democracy to become regnant in the world and a New International Legal Order to replace the old First World-Second World-Third World distinctions.

Thirty years later the state of democracy, whether liberal or social or any other variant, seems to be far from sanguine.

Here is but a partial list of the challenges to democracy in the contemporary world:

  • The advent of so-called ‘illiberal democracies’
  • The crisis and breakdown of trust within established democracies
  • The reality or otherwise of states with ‘formal democracy’ often reduced to little more than elections, more or less free
  • The accountability and rule of law concerns, famously termed GAL concerns, which transnational governance regimes raise as indispensable features of democracy
  • The persistent ‘democracy deficit’ or ‘political deficit’ of the European Union and similar Organizations
  • The emergence of the global ‘data economy’ with mega platforms calling into question basic assumptions about territory and jurisdiction and calling into question the ability of democratic regimes to reign in such platforms increasingly questioned
  • The impact of both financial markets and international monetary bodies on the internal margin of manoeuvre and democratic choices of economic management
  • Democracy and global inequality: The relationship between counter-democratic ideologies, legal reforms and political processes at the domestic and global levels and social and economic processes such as the shrinking middle class and the lasting ramifications of the 2008 economic crisis.

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Favourite Readings 2018: Revisiting the Postwar Moment

Published on December 21, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we bring you 2018 favourite reads from Doreen Lustig

In 2018, the international legal world as we know it has faced deep and significant challenges, including the attack on democracies and the rise of authoritarianism, the preference of both the American and Chinese governments for bilateralism over multilateralism or the destabilizing of global economic institutions. How and what does one read at a time like this? Most of the books I survey here revisit the history of the postwar moment and its hopes for a future that is now our present. It may not be surprising that in this moment of bewilderment we return to history and early beginnings, searching for answers. We look for parallels in the past. We look more closely at the key architects of international law and how their ideas shaped (or not) the legal reality over time. We examine whose ideas took prominence and why. We search for the roads not taken. This is by no means a comprehensive list for such an inquiry, but I hope that reading these books may offer some important clues in working with these questions.

Let me open with a book on the transition from the interwar era of minority rights to the postwar era. James Loeffler’s Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale University Press, 2018) examines the tension between Jewish lawyers’ great hopes for a postwar human rights order, one that would take seriously the plight and persecution of minority groups, and their limited influence on its content and design. Read the rest of this entry…

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In the name of the European Club of Liberal Democracies: How to Evaluate the Strasbourg Jurisprudence

Published on December 20, 2018        Author: 
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How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.

The focus “in whose name?”

An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.

In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.

Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed. Read the rest of this entry…

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Favourite Readings 2018: The Passage of Time

Published on December 19, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we give you Guy Fiti Sinclair’s favourites.

None of my chosen books would be found in the ‘341’ (or even ‘340’) stacks in a Dewey Decimal classified library, or in the KCs in a Moys-organized library such as the one at my law school. This is not because I haven’t read any books in those stacks this year. To the contrary, it turns out, somewhat to my own surprise, that I’ve actually managed this year to work my way through a fair few international law books – and books about international law, to adopt a to adopt a useful distinction I have heard from Joseph Weiler more than once – and read parts of many more. Nor is it that I’m worried that if I start listing books by international lawyers, one or another colleague will feel offended that I didn’t mention theirs (although I must admit this has crossed my mind).

Rather, I have decided to highlight books that I have read this year which spoke most directly to my current interests (one might say obsessions). Like many people, I suspect, I have spent much of the past year oscillating between trying to understand our current perplexing moment and trying not to think about it. These books have helped, one way or the other.

Nitsan Chorev, Remaking U.S. Trade Politics: From Protectionism to Globalization (Cornell University Press, 2007)

Kristen Hopewell, Breaking the WTO: How Emerging Powers Disrupted the Neoliberal Project (Stanford University Press, 2016) Read the rest of this entry…

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Favourite Readings 2018: Discovering (new) classics, better late than never

Published on December 18, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we have Sarah Nouwen’s choices.

Sometimes, writing is easier without reading. Skim-reading the most recent work on a topic, one may find sufficient disagreements to pick a fight with. But truly widely reading about a topic, going back several decades, if not centuries, makes one realise how many of one’s arguments have already been made, and much better. Ultimately, of course, it is such wide reading that allows one’s own work to mature. It is also an act of rebellion against the pressures of quantitative assessments of one’s work, and an inspiring source for the scholar’s primary job: to educate, first oneself, and then others.

So, in the spirit of better late than never, this year’s list includes some books that I should have read long ago.

Karen Knop’s Diversity and Self-Determination in International Law (2002)

I opened this book to develop a stronger grasp on the international law of self-determination. I closed it with an even broader understanding of everything that self-determination could mean, depending on who interprets it, and who gets to participate in the process of interpretation. Putting her finger on one of the paradoxes of self-determination, Knop shows that those most affected by self-determination are often excluded from the process of its legal interpretation. While this may be the case for many legal norms, it is paradoxical for self-determination, which is essentially concerned with people deciding for themselves.

But the book’s significance goes far beyond self-determination. I’ll use it for teaching classes on interpretation: thought you knew what this text meant? Read Knop and you’ll be surprised in how many ways the same few lines can be understood, depending on one’s world view and what we consider coherent or incoherent.

Rita Kesselring, Bodies of Truth: Law, Memory, and Emancipation in Post-Apartheid South Africa (2017) Read the rest of this entry…

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