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Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System

Published on July 25, 2018        Author: 
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The international trading system is not just about trade in which the only calculus of its worth and importance can be measured in the growth (or otherwise) of aggregate welfare, economically speaking. Since trade, in goods and services, is the principal modality of transnational intercourse, the international trading system and the legal system which undergirds it, reflects and constitutes the concomitant principal modus operandi of peacetime international relations. It is based on a respect for multilateralism and the rule of (international) law. That modus operandi radiates into other spheres of international cooperation, contributing ultimately to stability and peace. For some, on both right and left, it greases, too, the wheels of ‘globalism’, ‘the reign of capital’ (‘capitalism’ as an expression is somewhat out of fashion) and I have even seen the spectre of ‘international financiers’ being resurrected. But be as it may your view of these assorted alleged vices or virtues, I think there is a broad consensus that one should be careful not to throw the baby – multilateralism and the rule of law – out with whatever dirty bathwater within the system is not to your liking.

However, it is just this that is unfolding in front of our eyes. In trying to redress what he believes are ‘horrible’ terms of trade to which his country, the USA, had given its consent and enshrined in binding international legal instruments, Mr. T. and his crew seem almost more interested in throwing the baby out than cleansing what he considers is the dirty bath water.

Thus, for example, the WTO dispute settlement is slowly being asphyxiated by an American strategy of blocking appointments to the Appellate Body – the de facto World Trade Court. The by now infamous imposition of tariffs on certain steel products and the threats of doing likewise on trade in automobiles (there will be no Mercedes Benzes on 5th Avenue! – not such a bad outcome if it means their replacement by the ever fresh Fiat 500) is illustrative. In both cases the formal justification offered is ‘national security’. This is a black lie if ever there was one. Yes, legal terms, like beauty, are often as elastic as the beholder wishes them to be. And with that reasoning just about any weakening of the trading position of a state may be reducible to a threat to national security. I will not waste my and your time in explaining that this is not what the national security clause is about, though I feel some compassion for the young lawyers in the American government service who were required to write learned disquisitions and briefs trying to justify this legal construct. We all know what it is really about. Read the rest of this entry…

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Authors of EJIL – Customer Care

Published on July 24, 2018        Author: 
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Try as hard as we may, it often takes months to get a publishing decision from EJIL. The bottleneck is, in most cases, the peer review process of which you have read my laments on more than one occasion. Let me say straight away that peer reviewing is a fundamental and immensely valuable part of journal publishing. It not only helps us in our publication decisions but our authors receive constructive comments, which enable them to improve their articles and for which they are, without exception, grateful. We, in turn, are incredibly grateful to our colleagues in the international law community who regularly or irregularly take on the somewhat thankless task of peer reviewing (though perhaps seeing a significantly improved piece in print does provide a measure of thanks).

As important and valuable as peer reviewing is, the process is often as unpredictable as the weather in spring. It might take weeks before we manage to assemble the peer reviewers (we get many refusals; and potential peer reviewers do not always reply instantly to our request) and then, as you know from your own experience, good intentions come up against the realities of academic life one constant of which is always to be late in submitting something promised. Have you not sometimes thought that the flows of our professional life resemble managing a perennial overdraft in the bank?

We have revised our procedure in one small but critical sense which, we hope, will be welcomed by our authors. As I have explained on more than one occasion, the first step in considering a manuscript is a careful read by the ‘in-house’ editorial team, who decide whether or not the submission should be sent to peer review. As I have also explained more than once, there can be many reasons apart from quality that may underlie a decision not to send out to peer review. EJIL is a general interest IL journal and we build our issues with the aim of appealing to a wide readership. Each article we publish means the rejection of another article which could be of similar intrinsic quality. For example, we may not wish to publish in one year five articles on, say, customary law, or proportionality, or investment arbitration, even if each of the five would be of publishable quality. Read the rest of this entry…

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EJIL Vol. 29 (2018) No. 2: In This Issue

Published on July 23, 2018        Author: 
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This issue of EJIL opens with a selection of articles that share a focus on human rights. Itamar Mann analyses the infamous trope of ‘legal black holes’ and deploys it to examine the ignominious failure to end mass drownings of migrants and refugees. In his view, the apparent rightlessness of maritime migrants is fundamentally different from other forms of rightlessness since it is not brought about by a violation of international law but is rather created by and deeply entrenched in it.

Following, Leora Bilsky and Rachel Klagsbrun focus on another form of egregious rightlessness: genocide. While the original conception of this crime was essentially cultural, the Genocide Convention does not reflect this. The authors examine the factors that led to the exclusion of cultural genocide from the Convention and outline its countermeasure – cultural restitution.

David Kosař and Jan Petrov shift the perspective from open wounds and scars of international law to issues of compliance. Using the Czech Republic as an object of analysis, they present valuable insights on factors determining compliance and non-compliance with international human rights rulings as well as variable levels of their implementation.    

Devika Hovell concludes this section by focusing on the fundamental question of universal jurisdiction. She strips away the often obfuscating technical aspects of jurisdiction to reach the very essence of this concept by examining both its sources as well as its legal-political dimensions. Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 2) Out This Week

Published on July 23, 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

Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System; Authors of EJIL – Customer Care; In this Issue

 Articles

Devika Hovell, The Authority of Universal Jurisdiction

Itamar Mann, Maritime Legal Black Holes: Migration and Rightlessness

Leora Bilsky and Rachel Klagsbrun, The Return of Cultural Genocide?

David Kosař and Jan Petrov, Determinants of Compliance Difficulties among ‘Good Compliers’: Implementation of International Human Rights Rulings in the Czech Republic

Symposium: International Law and the First World War

Belligerency and Neutrality

Stephen Neff, Disrupting a Delicate Balance: The Allied Blockade Policy and the Law of Maritime Neutrality during the Great War

Andrew Norris, Uninvited and Unwelcome: The S.S. Appam and the U.S. Law of Neutrality Read the rest of this entry…

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Announcements: International Nuremberg Principles Academy Vacancy; AIIB Yearbook of International Law; Summer Programme on Countering Terrorism within a Rule of Law Framework; AUWCL LLM

Published on July 22, 2018        Author: 
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1. Vacancy at the International Nuremberg Principles Academy. The International Nuremberg Principles Academy is a foundation dedicated to the advancement of the Nuremberg Principles and International Criminal Law (ICL). It is located in Nuremberg, Germany the birthplace of modern ICL, and is conceived as a forum and capacity building institution for contemporary issues in the ICL field. The Academy is now seeking to recruit a Senior Officer for Training and Capacity Building. For more information please see our website

2. AIIB Yearbook of International Law. The first edition of the AIIB Yearbook of International Law (AYIL) was launched at the AIIB Annual Meeting in Mumbai, India, and as with last year’s inaugural AIIB Legal Conference, was titled Good Governance and Modern International Financial Institutions. AYIL is hosted here and can be downloaded at this link (also, see table of contents). The 2018 AIIB Legal Conference, 5-6 September 2018, at AIIB Headquarters, Beijing, China, International Organizations and the Promotion of Effective Dispute Resolution, is open to academic participants. Academics interested in attending should contact the Chair of the 2018 AIIB Legal Conference, peter.quayle {at} aiib(.)org, no later than 20 August 2018. (Places are limited.)

3. Registration Open: Advanced Summer Programme on Countering Terrorism within a Rule of Law Framework. The Asser Institute in collaboration with the International Centre for Counter-Terrorism (ICCT) is happy to announce that registrations are now open for the Advanced Summer Programme on Countering Terrorism within a Rule of Law Framework. This Programme, which takes place from 27 – 31 August 2018, seeks to provide a comprehensive understanding of the legal aspects of counter-terrorism and to offer an in-depth look at the challenges that come with adopting and implementing counter-terrorism measures while ensuring respect for human rights, fundamental freedoms and the rule of law. More information about the course can be found at hereRead the rest of this entry…

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The Quandaries of Data Analysis and Methodologies in Rule of Law, Development, and Human Rights Assessments: New Challenges for UN Special Rapporteurs

Published on July 20, 2018        Author: 
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If Professor Hans Rosling’s famous last opus, Factfulness (April 2018)is to be believed (as well as Bill Gates’ effusive review here), we all tend to have grimmer views of the state of economic development in the world than actually borne out by reality – especially on issues of global health and poverty.  Referring to the “developed world” and the “developing world” is a meaningless and unhelpful binary that glosses over significant welfare, health, life expectancy, education, and human capabilities differences between and among the hugely diverse “middle income countries” (e.g. the World Bank divides them into “lower middle-income economies – those with a GNI per capita between $1,006 and $3,955;  and upper middle-income economies –  those with a GNI per capita between $3,956 and $12,235 (2018)). Even the World Bank stopped using the distinction between “developing” and “developed” countries starting with its 2016 World Development Indicators, ultimately concurring with the view that the “developing country” and “developed country” distinction was not useful and too broad for targeting international development programs for partner countries, especially when assessing progress in all 17 of the Sustainable Development Goals (SDGs). The United Nations does not have a formal definition of “developed countries” versus “developing countries”, instead insisting that its classifications in UN methodology are “for statistical convenience and does not express a judgement about the stage reached by a particular country or area in the development process”.  However, these categories are widely used in the UN system anyway, including in the UN’s 2017 Sustainable Development Goals Report as well as in the datasets used for the 2018 SDG16 Data Initiative Global Report (on the goal of achieving peaceful, just, and inclusive societies). If the distinction between “developing country” and “developed country” is operationally meaningless for formulating and evaluating development programming, shouldn’t international lawyers and scholars also take note of the imprecision of this category when putting forward their observations and assessments of the state of rule of law, economic development, poverty, and human rights in the world?  (Note:  I do plead guilty to having, in previous works, alluded to the same classifications.)

Professor Rosling’s opus came to mind recently after the debate spurred from recent sharp criticisms issued by US Ambassador Nikki Haley and by experts from the Heritage Foundation, against UN Special Rapporteur for Extreme Poverty and Human Rights and NYU Law Professor Philip Alston, who had issued several statements (see here, here, and here) and his full 4 May 2018 report on the state of poverty within the United States (finding, among others, that 40 million people across the United States live in poverty, while 18.5 million live in extreme poverty, and an additional 5 million in conditions of absolute poverty; or alternatively put, “1 in 8 Americans now live in poverty, with half of this population living in extreme poverty, according to U.S. government estimates.”).  While Ambassador Haley alleged that the report “categorically misstated the progress the United States has made in addressing poverty and purposely used misleading facts and figures in its biased reporting”, the Heritage Foundation challenged the income-based poverty measures used by Professor Alston and charged that “these “official” income figures exclude substantial off-the-books earnings among low-income households and omit roughly 95 percent of the $1.1 trillion U.S. taxpayers provide in means-tested cash, food, housing, and medical benefits for low-income persons each year.”  Professor Alston has criticized the United States’ withdrawal from the UN Human Rights Council, and charged that the Trump Administration was exacerbating poverty for millions of Americans.  The Special Rapporteur has not yet responded to the challenges against the data sources used, and the quantitative and qualitative methodologies used for this fact-finding mission and its conclusions.

When I examined the index of currently publicly available Reports of the Special Rapporteur for Extreme Poverty and Human Rights, it was somewhat surprising that there was no separate initial report on the quantitative or qualitative methodologies adopted for the country assessments on the state of extreme poverty and human rights (although each country assessment thus far discusses observations from anecdotal evidence, official statistics from government sources, and other sources).  Considering the very difficult remit of Professor Alston – who as Rapporteur is an unpaid expert and admittedly not an official of the United Nations – I wondered why it did not appear from the reports that the UN’s considerable resources on SDG monitoring and assessment (especially SDG1 on eradicating poverty), as well as on economic vulnerability and risk monitoring, had been deployed and allocated to assist in the Special Rapporteur’s challenging fact-finding mandate.  Note that Professor Alston has himself championed interdisciplinarity and cross-verification in human rights fact-finding and yet, the UN remains unable to reasonably coordinate its resources, data, and interdisciplinary expertise before it dispatches its unpaid experts for overwhelmingly difficult fact-finding missions as “Special Rapporteurs”. Read the rest of this entry…

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

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UK Extraterritorial Financial Sanctions: Too Much, Too Little, Too Late?

Published on July 17, 2018        Author: 
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The US practice of the extraterritorial application of sanctions was criticised for years as, at best, the illegitimate abuse of its particular position in the world’s economy. Despite its fully comparable position in international finance, the United Kingdom was shielded from such criticism predominantly thanks to the transfer of respective decision-making to Brussels. The nature and scope of sanctions were delineated by EU laws. As the UK prepares its (financial) sanctions regime for Brexit, could it draw criticism similar to the US for both giving too broad discretionary powers to the government and preventing it from meeting UK international obligations at the same time? I suggest the new regime for the extraterritorial application of sanctions possibly opens the UK to international liability for, both, the lack of a legal basis for a legal restriction upon states as well as inevitable omissions to prevent gross violations of international law.

Since analysis of legal sanctions under international law is a very complex, multi-stage exercise, I focused on relatively easier cases of discretionary goals of foreign policy and extraterritorial sanctions, where the legal threshold for an internationally wrongful act is lower. Accordingly, I highlight the normative basis for adopting financial sanctions against third-state persons not covered by exceptions, British BITs, or the most relevant multilateral treaties. As for possible breaches of international law by omission, I focus on tolerating the provision of financial services contributing towards gross violations of international law. Because of length limitations, I do not discuss anti-money laundering per se, which is subject to yet another chapter of the law in question.

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Lessons from the WTO Plain Packaging reports: The use of the evidence-based WHO Framework Convention on Tobacco Control as evidence in international litigation

Published on July 16, 2018        Author: 
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Introduction

The WTO Plain Packaging reports have finally been published. The four reports (merged in a single document) contain the findings of the WTO panel in the disputes launched in 2012-2013 by Honduras, Dominican Republic, Cuba, and Indonesia. The disputes were directed against some tobacco control measures adopted by Australia – so-called ‘the plain packaging’ (TPP) laws. In a nutshell, TPP mandates that all tobacco products be sold in unattractive standardised packaging, thereby curtailing the use of colours, design and trademarks by tobacco manufacturers. As it was already leaked one year ago, the panel has ruled in favour of Australia.

The 884 pages of the final reports contain a lot of food for thought, and will keep many of us busy for long. This post focuses on a relatively narrow issues, namely the role of the Framework Convention on Tobacco Control (FCTC) in the case.  Despite being often overlooked in mainstream international scholarship, the FCTC is a remarkable treaty. It is the first (and so far, only) treaty ever negotiated under the auspices of the World Health Organization (WHO). Adopted by the World Health Assembly in May 2003, it has now reached the massive number of 181 ratifications. The FCTC is also a living treaty: it established a set of institutions, including a Conference of the Parties (COP) that meets biannually and has adopted 9 sets of guidelines.The FCTC was conceived in the ‘90s as an ‘international regulatory strategy’ to ‘promote national action on tobacco control’ (in the words of one of its main promoters, Allyn Taylor), in the face of the growing tobacco epidemic. To this end, the treaty (and later its guidelines) have been developed as ‘evidence-based’ instruments, i.e. as texts that require the adoption of tobacco control measures whose effectiveness has been established by evidence (see Taylor and Bettcher 2000). The set of measures is a comprehensive one, encompassing measures for the reduction of supply and measures for the reduction of demand of tobacco products. TPP measures are also part of this comprehensive set; specifically, they are recommended by the Guidelines to Article 11 and in the Guidelines to Article 13 of the FCTC.

In addition to their role in domestic implementation, the FCTC and its guidelines have proved to be useful instruments in the international disputes launched against the tobacco control measures adopted by its parties (see my earlier report as well as the more recent article by Zhou, Liberman and Ricafort). In some cases, the FCTC and its guidelines have been relied upon for their evidential value, while in others they have been considered ‘evidence’ by reason of their ‘evidence-based’ nature. The TPP reports prepared by the WTO panel are the latest cases in this series. The following sections review the approach taken by the panel on the role of the FCTC, and briefly compare it to the previous international disputes.

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Announcements: Launch of the Democratic Decay Resource; UN Audiovisual Library of International Law; CfP Art-Law Centre; CfS International Summer School on Human Rights Protection; CfP Rethinking Peace Mediation

Published on July 14, 2018        Author: 
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1. Launch of the Democratic Decay Resource (DEM-DEC). A major new online resource for research on democratic decay has just been launched at www.democratic-decay.org. Created by Dr Tom Gerald Daly (Melbourne Law School) and supported by a range of leading public law and policy organisations, the Democratic Decay Resource (Dem-Dec) focuses on the global challenge of the incremental deterioration of democratic rule and is primarily pitched at public lawyers, i.e. those working on constitutional, international and transnational law.  The resource is aimed at providing key information in one place, to frame the research area, to address conceptual confusion, and to bring scholars together in a collaborative project to drive the field forward, in a context where a lot of scholars are talking in silos, or past one another, where the literature is rapidly expanding, and research events and projects are proliferating across the world. The Resource contains a Concept Index, Concept Map, list of Scholars, Bibliography, list of Events, and Links.
 
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Professor Lucius Caflisch on “The Contemporary Law of International Watercourses: Some Aspects and Problems” and Mr. Peter Van den Bossche on “The WTO Dispute Settlement System”. 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 Papers: Art-Law Centre. The Art-Law Centre has issued a call for papers for the Third All Art and Cultural Heritage Law Conference, which will take place at the University of Geneva on 10 November 2018. The theme is ‘Works of art qualified as “national treasures”: limits to private property and export controls’. For full details of the call, see here

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