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A propos Book Reviewing

EJIL:Talk! - 9 hours 53 sec ago

I am sure that many of our readers have their own views on their preferred international legal journal. But it is hard for me to believe that there will be many who do not assign pride of place to EJIL’s Book Review section under the editorship and curatorship of Isabel Feichtner. In the selection of books for review, in the rigour imposed on reviewers, in the exploration of different forms for featuring books she has made EJIL second to none. Isabel Feichtner is stepping down as Book Review Editor, though happily she will remain a member of the Board of Editors. She deserves our deep gratitude. Christian Tams has generously agreed to take over from her. We wish him every success.

10 Good Reads 

EJIL:Talk! - 15 hours 51 sec ago

It is the time of the year once more when I publish my pick from some of the books that came my way since my last ‘Good Reads’ listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyse or critique, but rather to explain why the books appealed to me and why I think you, too, may find them well worth reading. They are listed in no particular order, except for the first one which is definitely my choice for the year.

Robert Caro, The Years of Lyndon Johnson, 4 Volumes (Alfred A. Knopf, 1982-2012)

I have a certain passion for political biography and like to think of myself as something of a connoisseur. Why it has taken me so long to finally sit down and read this much acclaimed treatment of Johnson might be because of its daunting length. A fifth and final volume covering his post-elections years in the Vietnam White House is eagerly awaited and apparently imminent. I am not going to prevaricate with the ‘one of the most’ formula. This is undoubtedly the finest of this genre that I have ever read. For those who might wonder why they should spend precious reading time on Johnson I would like to say that the “years” in the title are not just his years but a political and social history of the USA over half a century. Not many would be willing to set aside time to plough through all four volumes, though they amply repay the effort. But I most strongly recommend, as a second best, to read just Volume 4 (The Passage of Power). It essentially covers the period from Kennedy’s assassination to Johnson’s first year in office. It becomes a microcosm of the Johnson phenomenon. On the one hand, he was undoubtedly, and this is meticulously documented, entirely ruthless and politically (and in some measure financially) corrupt from his early days as a student through his days in Congress until his accidental ascent to the presidency. From those early days one gets the impression of a person interested in power (and winning, winning, winning) for almost its own sake. He understood the power of procedural command from his early elections in college politics until his commanding mastery as Majority Leader in the Senate. And the lessons we as readers learn about congressional politics remain illuminating, even essential, 60 years later, in understanding the tortured relations of, say, Obama and Trump with Congress. I would say an indispensable lesson. You don’t know what you don’t know until you have read such. And, of course, in our minds there is always the Johnson of ‘Hey hey LBJ, how many kids did you kill today’.

Now comes the ‘On the other hand’ which makes both the personality of Johnson so intriguingly complex and our judgment of him so difficult. He grew up in abject poverty – no exaggeration. He pined for the ham sandwich at school but could only afford the cheese one. He and his family literally scratched a living out of the barren soil on which they lived. Like Clinton decades later, he grew up with and alongside a black and Hispanic population in the most natural way. The result was, his greed for power and avarice notwithstanding, a person with a huge and genuine commitment to social justice and, miracle of miracles for a son of Texas, bereft of that visceral racism, not mere disdain for but real disgust towards blacks, which was so present in the South (and not only the South) of that era and indeed has not been fully eradicated today. In his deep feeling for the poor, he made no distinction between black and white.

The result was that in his first months in office as the Accidental President, combining his commitment to social justice and a lifelong honing of his political prowess, he managed to achieve infinitely more than Kennedy, fluent and charming, had managed to achieve in three years as President. Infinite is the right word since Kennedy achieved close to nothing. And he did so whilst risking his chances in the elections to come in November of 1964. The passing of the Civil Rights Act of 1964 – and he deserves the lion’s share of the credit – was epochal. And though he dropped what at the time seemed the centrepiece of civil rights, namely voting rights, true to his word to Martin Luther King, he passed that in his first year as elected President. His overarching Great Society legislation, the war on poverty and all that, though imperfect and still work in progress, changed America forever. In his domestic agenda he stands, in my view, equal to Roosevelt and, a matter of personal taste, more likable. It will be hugely interesting to see what Caro makes of Johnson’s Vietnam years in the pending final volume, though the impression given from his actions in his first year was that he was ‘out of it’, having neither an interest nor the experience to handle foreign affairs, and just ate out of the hands of those bright young mandarins he inherited from Kennedy, not least Robert McNamara. His sense of inferiority and mixture of disdain, fear and admiration for Bobby Kennedy are among the most riveting pages in the biography.

Caro manages what is rare in biography generally and political biography in particular, to demonstrate all along great empathy for his subject without confusing that with sympathy. He is sympathetic and antipathetic, praising and censorious in just the right measure.

I bought the four volumes in hard cover for a pittance on, quelle horreur, Amazon. This is not a good read – it is a compelling read.

Ludovic Hennebel, Hélène Tigroudja, Traité de droit international des Droits de l’homme (Editions Pedone, 2016)

No, I have not read all 1461 pages of this impressive work. It is, in mitigation, not the kind of book you read from cover to cover but one that you consult. And consult it I did, extensively, with great reward. It covers, take a deep breath: universal protection, regional protection, theories, foundations, interpretation, application, responsibility and remedies. It is a combination of both a Law Book and a book about the Law. Impressively researched, exhaustively referenced both to primary and secondary sources, surprisingly fluid to read, it gives in each of its sections the what, the why and the how of its topic. Here, too: not exactly a ‘good read’, but good to read.

Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, 2015)

There are IL books that one reads (or should read) not because they advance our own research agenda – to be processed into learned footnotes – but simply as a means of enhancing our general scholarly literacy, the way I know you all read EJIL or I.CON from cover to cover. Approach Mälksoo with this spirit and you will not be disappointed.

This is purely and simply a good read. It weighs in at just under 200 pages, and you can read it for pleasure in two or three sittings. You will learn an awful lot as well as become wiser – a good test for fine scholarship. The approach of Mälksoo is to explain the current Russian approach by an exploration of the preceding history or histories. I came to the book with a scant knowledge – what I had learnt from Nino Cassese’s illuminating International Law in a Divided World – which, for all its worth, did not purport to be Russia specific in its exposition of the Second World. Where one may have expected a story of ruptures and revolution one discovers some surprising continuities. Particularly insightful are the sections dealing with the relationship of international law to the domestic legal order, and I do not mean just in the technical sense of the issue.

Aldo Schiavone, Ponzio Pilato: Un enigma tra storia e memoria (Einaudi, 2016); Pontius Pilate: Deciphering a Memory (transl. Jeremy Carden, Liveright, 2017)

I have always been dismissive of the huge literature on the Trial of Jesus before Pontius Pilate. We have scant external sources on the Trial so that our main reference are the Gospel accounts according to which Pilate was but the executive arm of the Sanhedrin before whom the principal, perhaps only, trial took place. Why so much writing then on the Trial before Pilate? It is, I reasoned, a classical so-called Streetlight Effect: the proverbial looking under the streetlight rather than where the key actually dropped out of your pocket. Since most scholars were familiar with Roman Law rather than Jewish Law they wrote about that which they knew.

I have never read anything by Schiavone that was not both original and profound. This book does not disappoint. He does not fall into the Streetlight error. The appearance of Jesus before Pilate is central but not forced into a legal straitjacket. What’s more, the book – elegant and brief – explores the personality and the circumstances of his governorship as well as reconstructing the Passion and the events leading to the crucifixion. There is a tension between the Pilate we know from history and his figure in the Gospel narrative. Schiavone navigates that perfectly. If it’s a long time since you addressed your mind to those events which reshaped history and what we call today The West, and not long ago, Christendom, you could do better than read this book. More of an Easter read than a Christmas one, but a good read at any time.

Eduardo García de Enterría, Fervor de Borges (Editorial Trotta, 1999)

García de Enterría was, until his death in 2013 at the age of 90, a figure larger than life in Spanish public law and in law generally. He served as the Spanish judge for several years on the European Court of Human Rights and his list of accolades extends from here till further notice. It is in this capacity that I knew him and even had the privilege to work alongside him on the Committee of Jurists of the European Parliament for several years.

Imagine my surprise when I discovered, just recently, a little book he wrote on Borges the poet. The title of the book is a play on Borges’ own book of poems Fervor de Buenos Aires. Despite having read more than once all of Borges’ short stories translated into English – and it seems that all have been translated – I was simply unaware of Borges as a poet, though his volume of poetry, I have now discovered, exceeds considerably his fictions. There are, obviously, some translations, but as an excuse for my ignorance, far less known. When you finally approach Borges the poet you will discover another reason for the relative anonymity of his poetry outside the Spanish speaking world compared to his short stories. The poetry is difficult – uneven, something it is hard to say about his stories – and not immediately accessible outside the cultural context in which they are situated. In my view this must be true for some of his poems even for those within that culture. And this is the great virtue of García de Enterría’s little book: it helps enormously in learning to understand, appreciate and be moved by the poetry. García de Enterría is categorical in his tastes and judgments – but these are fine and sensitive. He works his way (and yours) through a handful of poems and, like a good curator of a museum or art critic, pours light so that you can see the light.

Guy Fiti Sinclair, To Reform the World – International Organizations and the Making of Modern States (Oxford University Press, 2017)

Full disclosure – I already read an earlier version of this book when presented as a doctoral dissertation, though I was not a member of the examining board, and, as you will all know, Guy Sinclair is the Associate Editor of EJIL. Since these are not book reviews, but my personal recommendations, and since I found this a particular rewarding read, I did not think I should refrain from offering this recommendation.

This is another example of a Law Book that is also a book about the Law, which in recent years has happily become the Gold Standard of doctoral dissertations. You will get chapter and verse on the manner in which International Organizations manage their competences and manage to expand such at times with creative hermeneutics. But the book goes well beyond that. Sinclair advances a veritable thesis: that in some ways IOs have been captured by a Eurocentric liberal (and to some extent capitalist) world view (this is my rendition of the thesis) and nobly (or perhaps otherwise) are not simply in the business of world peace, international cooperation, motherhood and apple pie, but also in the business of exerting influence, even shaping the ethos and telos, structure and function of modern states, the cooperation among which is their more traditionally perceived function, or in more recent times, their ‘governance’ function.

There is a very fine-grained and rich analysis of the way legal structure and political process of IOs combine to produce the effect claimed. And the book is elegant and readable, you can actually enjoy the reading.

Matthew Saul, Andreas Follesdal, Geir Ulfstein, (Eds.) The International Human Rights Judiciary and National Parliaments (Cambridge University Press, 2017)

I am usually rather sceptical about edited books for reasons I explained in a previous Editorial. The topic of this volume intrigued me since there is rather a dearth of research and writing on the role of parliaments in the human rights universe, a discipline dominated by court-gazing and hermeneutics. When there are interactive studies they tend to be about judicial interaction, international and national, or, in recent times the rich (oh, so rich one gets indigestion) on judicial borrowings and the like. I was put off by the Introduction by the three editors, which was the usual fare for an edited book: some slight prefatory words on the project and a roadmap of the various chapters, which, I have often suspected, is there for lazy book reviewers. I am glad I read on since the actual chapters, including, even especially, those by the three editors are excellent, and what I found lacking in the Introduction was to be found in the concluding chapter by Matthew Saul – an analytical framework, a critical vision and a normativity in just the right proportions. The book is still, as it proclaims, court-centric, but focuses on the interaction of courts, notably European but also the Inter-American, with parliaments as institutions rather than parliaments as authors of violative or otherwise legislation which come before them. This is an edited volume which has managed to follow a rather tight scheme covering the various aspects of parliamentary involvement in human rights. Indeed, perhaps the biggest gain for me was that not having ever thought about this systematically, I learnt not only about the interaction but about how to think about the role of parliaments in ways that were new. Appropriately, all chapters fully internalized the need to situate the law in political theory of democracy and human rights. Social scientists might complain about a certain lack of quantitative empirical analysis – but let them, then, pull their sleeves up and fill the gap. An important, useful and, otherwise it would not be here, a good read too.  

Bernard E. Harcourt, Exposed – Desire and Disobedience in the Digital Age (Harvard University Press, 2015)

The topic is not new; indeed, we are inundated by cries of woe about the power of the digital corporate dinosaurs, the invasion of our privacy, and the use made by them of the data mined by our internet-dominated lives. The value of this book, which Benedict Kingsbury and I used in our Seminar on International Law and Google as one of the key texts, is the trenchant, if passionate (not altogether unjustified, though at a certain point perhaps somewhat excessive and even grating) manner in which Harcourt walks us through this labyrinth and explains and demonstrates its profound implications for polity, our sociality and the human condition itself.

What I found most appealing in the book was the way the author eschews an easy narrative of villainous (American) corporations and government agencies which are either asleep or captured with us, you and I, being the victims of such. He puts a mirror before us and shows how we are at times willing accomplices in the culture of exhibitionism and self-exposure which is a hallmark of the age. Yes, at times our options are foreclosed, but this is oftentimes but a fig leaf, a weak alibi for our own exhibitionist and voyeuristic appetites.

I am not sure if Harcourt’s strategies of ‘disobedience’ can amount to more than gestures. But even if trapped, he will not let us off the hook as being ultimately, in the democracies in which we live, responsible also for the very structures in which we are trapped.

A bracing read – but still very good.

María Elvira Roca Barea, Imperiofobia y Leyenda Negra – Roma, Rusia, Estados Unidos y el Imperio español (Siruela, 2016)

I am not sure if a ‘good read’ is appropriate in this case. And I am confident that once translated into English it will provoke a storm. The book cover lists the author as having worked for the Spanish Consejo Superior de Investigaciones Cientifícos and as having taught at Harvard. It is revisionist history of the Spanish Empire framed within a more general theory and phenomenology about the way empires, according to the author, provoke Leyendas Negras which could be rendered as ‘dark, malicious legends’. It has been a runaway best seller in Spain, subject to praise and harsh criticism (see for example in the XX Siglos blog the critique by Estaban Mira Caballos, 13 Sept. 2017). Roca Barea does not hold her punches. The Protestant European ‘North’ is one villain of the piece, Noam Chomsky another in her (in my view often insightful and in some respects original) discussion of Anti-americanism and there is more. With some shades of the Jamestown affair in our sister Journal of the History of International Law, Roca Barea invites us to reconsider downwards (not to whitewash) the scope and scale of Spanish atrocities in their conquest and rule over much of Central and South America and similarly of, say, the Inquisition in Spain – the conventional history characterized by her as Hispanophobia driven by, inter alia, Lutheran nationalism. She is at her best, I believe, not so much in the history and historiography of the Spanish Empire itself – about which one can cavil – as in her parsing of the texts and attitudes over the centuries, attacking such which, as she demonstrates persuasively, are marred, in an almost macabre twist of a twist, by distinct racist elements (the Spaniards as a degenerate race) whose moral fibre was corrupted – in a twist on a twist on a twist – by, surprise, surprise, Jewish influence. To my knowledge she is the first to subject such to critical analysis and in my view these parts of the book cannot be dismissed. It is the kind of book the intrinsic value of which will only be clear once it is subjected to the slow process of serious historical and historiographical analysis. This will not be easy, given the inevitable contemporary political mills for which the book has already become grist. I suppose that for many beauty or ugliness will be in the eye of the beholder rather than in the book itself. It is not exactly a ‘good read’ but, despite a certain polemical style, it is one that cannot tout court be dismissed as diatribe. Caveat Lector!

Claudio Rodríguez, Alianza y Condena (Ediciones de la Revista de Occidente, 1965); Alliance and Condemnation (transl. Philip W. Silver, Swan Isle Press, 2014)

Should Roca Barea leave a mixed taste in your mouth, Rodríguez would be the perfect dessert to wash it away. Although he won the Prince of Asturias Prize for Letters in 1993 (six years before his untimely death from cancer at age 65) Claudio Rodríguez is relatively unknown outside literary circles, even in his home country of Spain. I discovered him just this last year and am still under the spell. His poetry is personal and exquisite – in form, tonality and delicacy of emotion, though extremely powerful, even shocking at times.

Alianza y Condena (Alliance and Condemnation) is a good place to start since it exists, too, in a particularly felicitous bilingual edition translated by Philip W. Silver, Emeritus Professor of Spanish Literature at Columbia. Here are a couple of excerpts to whet your appetite:

Adiós

CUalquier cosa valdría por mi vida

esta tarde. Cualquier cosa pequeña

si alguna hay. Martirio me es el ruido

sereno, sin excrúpulos, sin vuelta,

de tu zapato bajo. ¿Qué victoria

busca el que ama?

….

Goodbye

I’D take anything for my life

This afternoon. Any small token

If there is one. It’s martyrdom,

the calm, determined, unforgiving sound of your steps.

What victory do lovers seek?

….

 Mala Puesta

LA luz entusiasmada de conquista

Pierde confianza ahora,

Trémula de impotencia y no se sabe

Si es de tierra o de cielo. Se Despoja

De su íntima ternura

Y se retira lenta.

….

Faded Sunset

THE light, excited by conquest,

Loses confidence now,

Trembling with impotence. And we wonder

If it belongs to the earth or sky. It shrugs

Off its intimate tenderness

And slowly withdraws.

….

Enjoy and be edified!

 

EJIL Roll of Honour

EJIL:Talk! - Fri, 02/16/2018 - 12:00

EJIL relies on the good will of colleagues in the international law community who generously devote their time and energy to act as peer reviewers for the large number of submissions we receive. Without their efforts our Journal would not be able to maintain the excellent standards to which we strive. A lion’s share of the burden is borne by members of our Boards, but we also turn to many colleagues in the broader community. We thank the following colleagues for their contribution to EJIL’s peer review process in 2017:

Ademola Abass, Maartje Abbenhuis, Tawhida Ahmed, Amanda Alexander, Karen Alter, Milagros Alvarez-Verdugo, Dia Anagnostou, Antony Anghie, Kenneth Armstrong, Helmut Aust, Ilias Bantekas, Michael Barnett, Arnulf Becker Lorca, Richard Bellamy, Eyal Benvenisti, Stephen Bouwhuis, Eric Brabandere, Damian Chalmers, David Chandler, Simon Chesterman, Sungjoon Cho, Ben Coates, Matthew Craven, Michael Crawford, Luigi Crema, Kristina Daugirdas, Gráinne de Búrca, Phillip Dehne, Rosalind Dixon, Christian Djeffal, Alison Duxbury, Franco Ferrari, Francesco Francioni, Micaela Frulli, Paola Gaeta, Mónica García-Salmones Rovira, Leena Grover, Jonathan Gumz, Monica Hakimi, Gerd Hankel, Gina Heathcote, Laurence Helfer, Kevin Heller, Caroline Henckels, Gleider Hernández, Loveday Hodson, Bernard Hoekman, Douglas Howland, Isabel Hull, Stephen Humphreys, Ian Hurd, Fleur Johns, Leslie Johns, Ian Johnstone, Heather Jones, Daniel Joyce, Daniel Joyner, Helen Keller, Alexandra Kemmerer, William Keylor, Thomas Kleinlein, Martti Koskenniemi, Sari Kouvo, James Kraska, Samuel Kruizinga, Shashank Kumar, Malcolm Langford, Randall Lesaffer, Mark Lewis, David Luban, Mikael Madsen, Debora Malito, Lauri Mälksoo, Nora Markard, Tanja Masson-Zwaan, Petros Mavroidis, Lorna McGregor, David McGrogan, Campbell McLachlan, Frédéric Mégret, Liam Murphy, Stephen Neff, Vasuki Nesiah, Luigi Nuzzo, Therese O’Donnell, Henrik Olsen, Alexander Orakhelashvili, Sundhya Pahuja, Martins Paparinskis, Andreas Paulus, Joost Pauwelyn, Clint Peinhardt, Victor Peskin, Niels Petersen, Yannick Radi, Surabhi Ranganathan, Morten Rasmussen, Cecily Rose, Cedric Ryngaert, William Schabas, Sibylle Scheipers, Stephen Schill, Thomas Schultz, Christine Schwöbel, Joanne Scott, Gerry Simpson, Sandesh Sivakumaran, Peter Stirk, Oisin Suttle, Katie Sykes, Anastasia Telesetsky, Christopher Vajda, Isabel Van Damme, Antoine Vauchez, Milos Vec, Ingo Venzke, Ana Filipa Vrdoljak, Robert Wai, Andrew Webster, Ramses Wessel, Jason Yackee, Margaret Young, Aldo Zammit Borda.

EJIL: In This Issue

EJIL:Talk! - Fri, 02/16/2018 - 08:30

This issue presents a cornucopia of insights and perspectives on international law. It opens with a pair of articles that reflect EJIL’s long commitment to explore diverse theoretical and methodological approaches. First, Catherine O’Rourke combines theoretical engagement with an empirical, sociological methodology to offer a unique perspective on the engagement of feminist activists with international law. We invite readers to take a look at our EJIL: Live! interview with the author. Second, Anthony Reeves proposes an alternative approach to substantiating the right to punish, focusing on the capacity to respond to the reasons for punishment and analysing universal jurisdiction to show the improvements the alternative model makes.

The next set of articles focus on questions of responsibility. Luke Glanville examines the duty to protect human rights beyond sovereign borders, exploring the thinking of a series of Western natural law theorists both to expose the source of this duty in international law and to retrieve forgotten ideas that might be reconsidered. Sandesh Sivakumaran traces the ‘piecemeal’ emergence of an international law of disaster relief and analyses the general techniques by which this body of law is developing. Lastly, Jan Klabbers investigates whether international organizations can be held responsible under international law for a failure to act, introducing a conception of ‘role responsibility’ to address this thorny issue. We think it is a particularly valuable contribution on a trendy topic the literature on which is often characterized by a lot of hot air.

A selection of articles from the Fifth Annual Junior Faculty Forum for International Law exposes the innovative thinking of a new generation of scholars. Neha Jain considers the role of ‘radical’ dissents in shaping the discourse of international criminal law in the context of mass atrocities. Lawrence Hill-Cawthorne explores the nature of state and individual rights under international humanitarian law, and their relationship to a more general identity crisis in that body of law. Cheah W.L. examines the rule of law dynamics in war crimes trials pertaining to the desertion of British Indian Army soldiers conducted by British colonial authorities in postwar Singapore.

This issue’s Roaming Charges takes us to Bogotà where the solemnity of Ash Wednesday provides a moment of dignity.

We are pleased to present in this issue an Afterword to the Foreword written by Laurence Boisson de Chazournes, which featured in the first issue of this volume. Yuval Shany mostly agrees with Boisson de Chazourne’s account of an evolving ‘managerial approach’; however, he is less convinced that international courts are truly committed to such an approach or that such an approach is likely to succeed in future without more far-reaching reforms. Thomas Streinz suggests that greater attention could be given to who wins and who loses as a result of coordination among international courts and tribunals, as a way into exploring what motivates those efforts and how various actors contribute to them. Veronika Bilkova focuses on the normative dimension of the phenomenon Boisson de Chazourne describes, giving greater emphasis to the threats that managerialism can pose. Sergio Puig likewise strikes a note of caution that the evolution of procedures adopted by international courts and tribunals might result in suboptimal outcomes. Laurence Boisson de Chazournes offers a rejoinder to her critics.

Following the Afterword, we feature another Debate centring on an article by Yahli Shereshevsky and Tom Noah, who adopt an innovative experimental approach to assess the possible effects that exposure to preparatory work has on the interpretation of treaties. This is only the second time we publish an article in EJIL utilizing the methodology of ‘experimental law’ and appropriately it comes from the hands of two young emerging scholars. We encourage you to take a peek at the EJIL: Live! interview with one of its authors, Yahli Shereschevsky. Given the interest that is bound to be generated by this article, we have decided to present a long Reply by Jeffrey L. Dunoff and Mark A. Pollack, who reflect at length on the ‘experimental turn’ in the study of international law more broadly.

The issue closes with a Critical Review of International Governance by Rebecca Schmidt, who examines regulatory cooperation between public and private actors at the global level, grounding her analysis in the cooperation between the Olympic Movement and the United Nations Environmental Programme.

For the Last Page, the dust, heat, and sweat are almost palpable in Gregory Shaffer’s extraordinarily vivid poem of life and politics in Kathmandu.

New Issue of EJIL (Vol. 28 (2017) No. 4) – Out Today

EJIL:Talk! - Fri, 02/16/2018 - 07:00

The latest issue of the European Journal of International Law will be published today. 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. The free access article in this issue is Yahli Shereshevsky and Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts. 

Here is the Table of Contents for this new issue:

Editorial

Je Suis Achbita!; The Trump Jerusalem Declaration and the Rule of Unintended Consequences; 10 Good Reads; A propos Book Reviewing; EJIL Roll of Honour; In This Issue

Articles

Catherine O’Rourke, Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions

Anthony Reeves, Liability to International Prosecution: The Nature of Universal Jurisdiction

Focus: Responsibility

Luke Glanville, The Responsibility to Protect beyond Borders in the Law of Nature and Nations

Sandesh Sivakumaran, Extrapolation, Analogy, and Form: the Emergence of an International Law of Disaster Relief

Jan Klabbers, Reflections on Role Responsibility: The Responsibility of International Organisations for Failing to Act

New Voices: A Selection from the Fifth Annual
Junior Faculty Forum for International Law

Neha Jain, Radical Dissents in International Criminal Trials

Lawrence Hill-Cawthorne, Rights under International Humanitarian Law

Cheah W.L., The Curious Case of Singapore’s BIA Desertion Trials: War Crimes, Projects of Empire, and the Rule of Law

Afterword: Laurence Boisson de Chazournes and Her Critics

Yuval Shany,  Plurality as a Form of (Mis)management of International Dispute Settlement: Afterword to Laurence Boisson de Chazournes’ Foreword

Thomas Streinz, Winners and Losers of the Plurality of International Courts and Tribunals: Afterword to Laurence Boisson de Chazournes’ Foreword

Veronika Bilkova, The Threads (or Threats?) of a Managerial Approach: Afterword to Laurence Boisson de Chazournes’ Foreword

Sergio Puig, Experimentalism, Destabilization, and Control in International Law: Afterword to Laurence Boisson de Chazournes’ Foreword

Laurence Boisson de Chazournes, Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach – Fears and Anxieties: A Rejoinder

Roaming Charges: Moments of Dignity

Ash Wednesday, Bogotà Colombia

 

Experimental International Law

EJIL: Debate!

Yahli Shereshevsky and Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts

Jeffrey L. Dunoff and Mark A. Pollack, Experimenting with International Law: A Reader’s Guide

Critical Review of International Governance

Rebecca Schmidt, Protecting the Environment through Sports? Public-Private Cooperation for Regulatory Resources and International Law

Impressions

ONUMA Yasuaki, Reading the Book that Makes One a Scholar

 

Review Essay

Julia Dehm, Authorizing Appropriation?: Law in Contested Forested Spaces

Literature Review

 Christina Binder and Jane A. Hofbauer, Teaching International Human Rights Law: A Textbook Review

Book Reviews

Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (Jacob Katz Cogan)

Christian Henderson (ed.), Commissions of Inquiry: Problems and Prospects (Michael A. Becker)

Valentin Jeutner, Irresolvable Norm Conflicts in International Law: The Concept of a Legal Dilemma (Hannah Birkenkötter)

The Last Page

Gregory Shaffer, Kathmandu

Excessive Multilingualism in EU Trade Agreements

EJIL:Talk! - Thu, 02/15/2018 - 09:00

The legal protection of multilingualism is an important principle and an indispensable guarantee for the functioning of the institutions of the European Union (EU) as well as for their relationships with EU citizens. This is not only evidenced by Article 22 of the Charter of Fundamental Rights, which obligates the Union to respect linguistic diversity. Beyond that, legally protecting multilingualism is, as the European Parliament stated, “not a matter of communication only, but also a question of democratic legitimacy towards citizens and respect for the cultural diversity of the Member States. It affects the way in which EU legislation is drafted and interpreted”.

Multilingualism is also well established in the EU Treaties themselves, concluded between the Member States in 24 equally authentic languages (Article 55 TEU), which can be interpreted authoritatively by the Court of Justice of the European Union (CJEU) whenever necessary.

The practice of the European Union is quite similar with regard to treaties concluded with non-Member States. In particular, several free trade agreements (FTAs) concluded or negotiated with such states have been drawn up in no less than 23 or 24 equally authentic languages.

The Canada-European Union (EU) Comprehensive Economic and Trade Agreement (CETA), for instance, has been drawn up “in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each version being equally authentic” (see Article 30.11. Irish is not included here in accordance with Council Regulation 2015/2264). In addition to that, the FTA with Vietnam also includes Vietnamese as an equally authentic language.

However, even though such practice promises public accessibility of legal documents and thus more transparency, it is – especially from the perspective of international law – highly questionable and should be carefully reconsidered. Article 33 of the 1969 Vienna Convention of the Law of the Treaties (VCLT) – a treaty which is regularly referred to in FTAs concluded by the EU, e.g. in Articles 8.31.1 and 29.17.1 of CETA – first posits that where authenticated in two or more languages a treaty has the same legal value, and is presumed to bear the same meaning, in each such language. With 23 or 24 equally authentic languages, one can only hope that everything goes smoothly. Serious problems arise if the comparison of the authentic texts discloses a difference of meaning, an event that is not so unlikely considering the complexity of trade and investment provisions. Unlike the CJEU, investment tribunals or arbitral panels exercising their jurisdiction under FTAs are likely to be ill equipped to interpret treaties concluded in such large numbers of equally authentic languages. Yet, even when the CJEU itself had to deal with multilingualism and diverging interpretations in Case C-36/98 Spain v Council [2001] ECR I-779, para 49. It cursorily swept away any concerns and declared that “[i]n the case of divergence between the language versions of a [Union] measure, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part […].”

Article 33(4) VCLT then directs the interpreter to apply Articles 31 and 32 of the VCLT. The first of these provisions contains a general rule of interpretation. The element of this rule directing attention to the ‘ordinary meaning’ to be given to the terms of a treaty (in their context and in the light of its object and purpose) immediately presents obvious potential for diverging starting points for interpretation, if extensive multilingualism is used. The second of these provisions governs the use of supplementary means and in particular the legislative history of the treaty. Applying these provisions is rarely a simple exercise and it may be expected to become rather arduous with 23 or 24 authentic versions of a text. Working with such treaties would provide the perfect ground to unleash lawyers with a taste for linguistic nuances and for particular niceties flowing from the legal systems most associated with each of the various languages. Lastly, if application of the general rule and supplementary means fails to yield the meaning, the interpreter returns to Article 33 VCLT which requires a (probably desperate) attempt to determine the meaning that best reconciles the 23 or 24 texts, having regard to the object and purpose of the treaty. Even assuming that it is possible to resolve the issues of interpretation by this means, the process is likely to be complex, time consuming and fraught with difficulties.

It is evident that Articles 31 to 33 VCLT are unlikely to function well (if at all) with such large numbers of equally authentic languages. Indeed, our argument is that the conclusion of treaties in 23 or 24 authentic languages

  • is a call for discrepant and inaccurate outcomes;
  • makes the treaty vulnerable to a multitude of potential interpretations which would be extremely difficult to manage under Articles 31 to 33 VCLT;
  • may be expected to complicate intolerably the settlement of disputes and inflate the related costs; and
  • ultimately undermines legal certainty (not to mention the risks of significantly slowing down the negotiations and increasing the costs generated by the treaty throughout its existence).

The number of authentic languages of FTAs concluded between the EU and other treaty partners should therefore be greatly reduced. One option could be to limit the authentic languages to the relevant UN official languages (English, Spanish and French) plus the language(s) of the counter-part, if appropriate. Incidentally, English, Spanish and French are the official languages of the World Trade Organization (WTO), whose jurisprudence the arbitration panels have to take into account in interpreting FTAs (i.e. Article 29.17 CETA). Furthermore, the UN Treaty Section recommends State to conclude treaties only in the UN official languages in order to facilitate their registration under Article 102 of the UN Charter.

Alternatively, the FTAs could be concluded in three or four authentic languages different from those used in the WTO and presumably including German and Italian. This option would have the advantage of better reflecting the main languages spoken in the EU, but the selection may require endless negotiations and be rather unpalatable to some Member States. As the lingua franca of international trade, English cannot be excluded, regardless of Brexit.  

Another option is to agree that in case of divergence a particular text prevails. This option may be even more problematic than the previous two, or even impracticable when the counter-part’s language is not an official language of the EU (as in the case of the FTA with Vietnam).

Thus, from the standpoint of the law of the treaties, but also of common sense, concluding a treaty in 23 or 24 equally authentic languages seems most unwise. While legal multilateralism is of great importance, and must be defended within the EU (with regard to both EU treaties and legislation), it is not indispensable in the EU’s external relations and is likely to prove counter-productive from the standpoint of the FTAs concluded by the EU with third States. 

The EU should seriously reconsider its practice and strictly limit the number of authentic languages. As happens with treaties in other fields, for practical purposes, ‘official versions’ (that is translations that have not been agreed as authentic, but prepared by competent international or national authorities) may reduce day-to-day difficulties in the application of treaties, it being understood that in case of controversy over interpretation authentic texts must be used. This may be unappealing to certain Member States, but in this case, practicality should prevail over national pride and parochialism.

Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean

EJIL:Talk! - Wed, 02/14/2018 - 01:00

On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa RicaThe ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals.  In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute.  The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages.  Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage.  These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

The ICJ’s Own Methodology on Environmental Damages

The ICJ first noted that the size of the area affected by Nicaragua’s unlawful activities is 6.19 hectares. (Judgment, para. 54).  Using its “ecosystem approach” projecting loss, where it would take a 50 year period for the affected area to recover, Costa Rica claimed around USD$ 6.711 Million in damages, with pre-judgment interest of around USD$ 0.5 Million.  On the basis of its “replacement cost” theory and invoking the amount of USD$309 per hectare (the amount paid by Costa Rica to landowners and communities as incentives to protect habitats under domestic environmental conservation programs) per year for a recovery period of 20 to 30 years, Nicaragua estimated that Costa Rica was not entitled to anything more than US$188,504.00.  (ICJ Judgment, para. 20).  The Court then clarified its position on its judicial discretion over damage and causation, given scientific uncertainty pervading environmental damages allegations:

“34. In cases of alleged environmental damage, particular issues may arise with respect to the existence of damage and causation.  The damage may be due to several concurrent causes, or the state of science regarding the causal link between the wrongful act and the damage may be uncertain.  These are difficulties that must be addressed as and when they arise in light of the facts of the case at hand and the evidence presented to the Court.  Ultimately, it is for the Court to decide whether there is a sufficient causal nexus between the wrongful act and the injury suffered.”(Italics added.)

The Court did not elaborate on its own criteria for the sufficiency of the causal nexus, particularly when environmental damage arises from a State’s illegally wrongful acts.

With respect to valuation of damages, the Court recalled its ruling in Diallo where “equitable considerations” were used to take into account the relative situations of parties to the case (see Dapo Akande’s comments on this case here), as well as the Trail Smelter arbitration’s reference to a 1931 United States Supreme Court decision in Story Parchment Company v. Paterson Parchment Paper Company that held that, in cases of torts that “preclude the ascertainment of the amount of damages with certainty…it will be enough if the evidence show the extent of damages as a matter of just and reasonable inference, although the result be only approximate.” (ICJ Judgment, para. 35).  The Court declared that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law.” ICJ Judgment, para. 42).

The Court drastically whittled down the amount of compensation owed to Costa Rica, to the amount of USD$120,000 for impairment or loss of environmental goods and services, USD$2,708.39 for restoration costs over the internationally protected wetland, costs and expenses at US$236,032.16, annual interest at 4% for the period from the 2015 Judgment and the 2015 Judgment on Compensation to US$20,150.04, and interest at 6% on these amounts when they fall due on 2 April 2018.  (ICJ Judgment, para. 157.)  The total amount adjudicated to Costa Rica of US$378,890.59 is just about 5% of Costa Rica’s claim.

Considering that this was a case where the Court examined experts back in 2015 to determine environmental damage, it was somewhat surprising that the Court did not also conduct an examination of experts to assess and estimate environmental damages (or at least the 2 February 2018 Judgment on Compensation is silent on this).  Neither is there any reference in the 2 February 2018 Judgment on Compensation to consultations with independent experts (institutions, organizations, or individual scientists) by the Court pursuant to its powers in Article 50 of the Statute of the ICJ, given the kind of scientific uncertainty that was to be expected when estimating damages over a recovery period for the 6.19 hectare affected area (whether it was 50 years as asserted by Costa Rica or 20-30 years as asserted by Nicaragua).  It is not entirely clear from the text of the 2 February 2018 Judgment on Compensation if the Court requested the Ramsar Secretariat (or any other international environmental organization, such as the United Nations Environmental Programme) to assist in this compensation phase of proceedings.  Instead, the ICJ’s 2 February 2018 Judgment on Compensation reads somewhat like an itemized list of what the Court deemed to be reasonably appropriate – given the relative situations of the parties and Costa Rica’s own obligations to mitigate natural hazards, without clearly establishing the scientific or factual basis for each item of damage as attributable to the unlawful activities of Nicaragua.  

The Court then pronounced that “it is appropriate to approach the valuation of environmental damage from the perspective of the ecosystem as a whole, by adopting an overall assessment of the impairment or loss of environmental goods and services prior to recovery, rather than attributing values to specific categories of environmental goods and services and estimating recovery periods for each of them” (ICJ Judgment on Compensation, para. 78) – curiously, without clearly elaborating what that “overall assessment” entails, and whether this assessment is itself predicated on reliable science regarding the assessment of short and long-term damages to internationally protected wetlands under the Ramsar Convention.  Instead, the Court simply declared that the approach is “dictated by the specific characteristics of the area affected by the activities of Nicaragua, which is situated in the Northeast Caribbean Wetland, a wetland protected under the Ramsar Convention, where there are various environmental goods and services that are closely interlinked….such an overall valuation will allow the Court to take into account the capacity of the damaged area for natural regeneration.” (ICJ Judgment on Compensation, paras. 80-81).

In finding that Costa Rica was only entitled to US$120,000 for the impairment or loss of environmental goods and services of the impacted area in the period prior to recovery, and USD$2,708.39 for restoration measures, it was puzzling that – contrary to settled environmental compensation practices – the Court’s 2 February 2018 Judgment on Compensation does not indicate a baseline environmental assessment of the affected area ex ante before environmental damage from Nicaragua’s activities, a recovery period estimate (and the extent this is achievable naturally or through deliberate measures of Costa Rica at Nicaragua’s expense), as well as a cost of mitigation or remediation measures estimate for the said recovery period. Neither does it refer to Nicaragua’s duties of mitigation under the precautionary principle. Instead, the Court sparsely observed, among others:

  1. “Costa Rica has not demonstrated that the affected area, due to a change in its ecological character, has lost its ability to mitigate natural hazards or that such services have been impaired…evidence before the Court suggests that both caños have subsequently refilled with soil and there has been substantial revegetation.” (ICJ Judgment on Compensation, para. 74.)
  2. Because “there is no clear evidence before the Court of the baseline condition of the totality of the environmental goods and services that existed in the area concerned prior to Nicaragua’s activities”, the Court rejected the 50-year recovery period and also deemed it “incorrect to assign a single recovery time to the various categories of goods and services identified by Costa Rica.” (ICJ Judgment on Compensation, para. 76).
  3. “…the most significant damage to the area, from which other harms to the environment arise, is the removal of trees by Nicaragua during the excavation of the caños. An overall valuation can account for the correlation between the removal of the trees and the harm caused to other environmental goods and services (such as other raw materials, gas regulation and air quality services, and biodiversity in terms of habitat and nursery).” (ICJ Judgment on Compensation, para. 79).
  4. Nicaragua’s ‘corrected analysis’ estimating US$84,296 as damage to four categories of environmental goods and services (trees, other raw materials, gas regulation and air quality services, and biodiversity) is insufficient.  Rather, “…the absence of certainty as to the extent of damage does not necessarily preclude it from awarding an amount that it considers approximately to reflect the value of impairment or loss of environmental goods and services…the Court, while retaining some of the elements of the ‘corrected analysis’, considers it reasonable that, for the purposes of its overall evaluation, an adjustment be made to the total amount in the [Nicaraguan] ‘corrected analysis’ to account for the shortcomings identified…the Court therefore awards to Costa Rica the sum of US$120,000 for the impairment or loss of environmental goods and services of the impacted area in the period prior to recovery.” (ICJ Judgment on Compensation, para. 86.  Emphasis added.).  Clearly, the Court used Nicaragua’s ‘corrected analysis’ as its reference point and then made adjustments from there – a choice of methodology that remains opaque and undiscussed throughout the Judgment on Compensation.  Considering that the four categories of environmental goods and services implicate very different scientific considerations for their damages assessment (especially for biodiversity consequences which often depend on wholistic impacts assessment, or even factoring in climate change impacts on the affected area), it is surprising that the Court did not elaborate further on any evidence of scientific methodologies (whether submitted by the parties or drawn by the Court from independent experts) for damages assessment with respect to each of these categories.

The rest of the ICJ Judgment on Compensation (paras. 107-147)  then proceeds to an itemized discussion of Costa Rica’s costs and expenses incurred in relation to Nicaragua’s unlawful activities and the monitoring costs over the affected area, such as costs of flights, cargo and transport, satellite surveys, among others.  This itemized list – although too extensive to discuss in this post – is quite an interesting study of what the Court deems as “sufficient” documentary evidence in its judicial discretion to prove such costs and expenses (and provides a significant contrast to the high volumes of costs and expenses in investor-State arbitrations).  The itemized discussion slashes Costa Rica’s claim of around USD$3.5 Million in costs and expenses, to less than 10% in the amount of USD$236,032.16.  Notably, the Court does not allocate costs for legal representation fees (again, in stark contrast to investor-State arbitrations where this has become almost standard practice every time State responsibility is adjudicated).

The IACtHR Advisory Opinion on Marine Protection in the Greater Caribbean

The IACtHR Advisory Opinion (original in Spanish) establishes the fundamental nature of environmental rights to human rights, laying out a clear framework for States with respect to their shared responsibilities on marine protection over the Greater Caribbean region.  Significantly, the Opinion refers to the long-term impacts of climate change on populations.  The Advisory Opinion – as reported by an international non-governmental organization in English – establishes the following marine protection duties of the States in the Great Caribbean region”

  • Avoid causing “significant” environmental damage in and outside their territory, for which they must regulate, supervise and monitor activities that could cause harm.
  • Assure, among other things, the realization of effective and independent environmental impact studies, as well as mitigation and contingency plans for potential damages.
  • Cooperate with other States and provide them with information regarding risks to their natural environment.
  • Apply the precautionary principle to protect the rights to life and personal integrity due to serious and irrevocable environmental degradation, even when scientific uncertainty exists.
  • Guarantee the rights to public participation, access to information related to potential environmental harms, and access to justice in decision-making that could affect the environment.

One can observe, based on the above declaration, that environmental damages assessment with respect to the Greater Caribbean marine environment will be of a much broader, integrated, or wholistic nature, in contrast to the ambiguous “overall assessment” proclaimed by the ICJ in its 2 February 2018 Judgment on Compensation that ultimately ended up being fairly incrementalist and opaque on scientific reasoning.

Conclusion

While there is much to praise about the International Court of Justice’s landmark first Judgment on Compensation for environmental damage, some caution is warranted as to the Court’s methodology for damages assessment in environmental cases.  The Court has been a leading tribunal in the declaration of environmental rights and duties, especially from its judgments on the Pulp Mills, Whaling in the Antarctic, and Gabcikovo-Nagymaros cases.  However, the same objections on scientific evidence and methodology that Judges Simma and Al-Khasawneh raised in their landmark separate opinion in Pulp Mills have to be stressed again today.  The Court’s reasoning in its Judgment on Compensation nowhere surveys the considerably evolved scientific landscape on short-term and long-term environmental damages assessment for complex environmental phenomena such as biodiversity, energy, air quality, and raw materials – as well as the climate change impacts that will also be felt in the affected area.  This would have been a far more visionary Judgment – emulating the scientific bases for interlocking State responsibilities for prevention, remediation, and mitigation that were recognized in the IACtHR’s Advisory Opinion – had the Court at least transparently discussed the evidence before it and any use it made, if any, of the highly developed scientific resources of the international community today.

A Lot of Activity in the Inter-American Court

EJIL:Talk! - Tue, 02/13/2018 - 13:56

The Inter-American Court of Human Rights has been very active recently: from hearing a major case on domestic violence; to issuing an advisory opinion on LGBT rights in which it ruled, inter alia (and contrary to the European Court) that the American Convention provides for a right to same-sex marriage, a decision which has polarized public opinion in Costa Rica, in the midst of the presidential election; to another major advisory opinion on environmental protection under the ACHR, including an extensive discussion on the Convention’s extraterritorial application. We will have more detailed coverage of these cases over the next few weeks.

The Role of the ICC in Protecting the Rights of Children Born of Rape in War

EJIL:Talk! - Mon, 02/12/2018 - 09:00

The trial at the International Criminal Court (ICC) of Dominic Ongwen, commander of the Lord’s Resistance Army (LRA), has attracted widespread legal and political debate.  Much of the commentary has focused on the former child soldier’s status as a victim-perpetrator. Missing from mainstream legal discourse is consideration of another status Ongwen holds as a result of his alleged crimes: fatherhood.  Relatedly, and more importantly, also overlooked is a group of victims of his crimes: children born as a result of rape.  Within the LRA “forced marriage” system, thousands of children were born from the rape of girls held in captivity.

Drawing primarily upon the Ongwen case and the crime of forced pregnancy, this post considers the ICC’s role in recognising the rights of children born of rape and repairing harms against them, consistent with their right to reparation under international law.  Stigmatisation within “post-conflict” communities is a key harm suffered by children born of rape, often driven by their perceived association with perpetrator fathers.  The ICC’s capacity to redress or, inadvertently, exacerbate stigma against this group of victims requires attention.

International Criminalization and Stigmatisation

The complex relationship between stigmatisation and the international criminal justice project has come under scrutiny by scholars whose work has opened up avenues for further critical reflection.  My research (see here, under “stigma and children born of war”) builds on this scholarship and, in particular, on Megret’s conception of stigmatisation as a principal, albeit hidden, function of international criminal justice.  Drawing on practice theory, Megret exposes the ways in which stigma is often deliberately assigned to actors (primarily, the defendant) and conduct (the offences) through the institutional practices of the ICC.  In contrast, my interest lies with excavating the unintended consequences of ICC practices which risk stigmatising a hitherto voiceless class of victims, namely, children born of rape. 

In furtherance of the UK’s Principles for Global Action to tackle stigma associated with conflict-related sexual violence, I ask what steps the ICC should take to ensure, first, that its stigmatisation practices ‘do no harm’ but, second, how the Court might contribute towards reducing the stigma suffered by many children born of rape.      

Prosecution of Forced Pregnancy in the Ongwen trial

Ongwen is the first defendant in international criminal law to be prosecuted for forced pregnancy.  Within his 70 charges for war crimes and crimes against humanity, a number relate to the direct and indirect perpetration of sexual and gender-based (SGB) crimes.

Ongwen is charged with personally committing crimes of forced pregnancy against “his” forced “wives” and, for indirectly perpetrating other forced LRA “marriages” (see here).  Alongside Kony and other co-perpetrators, he stands of accused of implementing the notorious LRA forced “marriage” system, in which young girls were abducted from their homes and distributed to LRA members as “wives”.  Within this structure of gender-based discrimination and violence, an unknown but significant  number of children were born of rape.

Caught Between Statutory Invisibility and Stigmatising Framing

Of the SGB crimes which have a “nexus” to children born of rape, forced pregnancy is the most direct.  Codified for the first time in the Rome Statute, it is defined in Article 7(2)(f) as:

the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law. (See also note 5 to Article 7(2)(f): “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.)

The crime’s actus reus requires a woman to be (i) forcibly made pregnant and (ii) unlawfully confined (i.e. forced to remain pregnant).  There are alternate mens rea requirements and a footnote to the crime.  The latter reflects certain states’ attempts to prevent the broader entrenchment in international law of a right to reproductive self-determination and shield inconsistent national laws (see here).  

On the face of this crime, the rights or existence of any children born of rape are not clearly visible. To the contrary, Carpenter suggests that the offence not only marginalises children as rights-holders, but frames and stigmatises them in law as “children of the enemy”.  I expand on these points below.

Contextualising “forced pregnancy”

The crime of forced pregnancy was not formulated with the rights of children born of rape specifically in mind, but as part of a broader push to internationally criminalise gender-based war harms against women.  Many constituencies negotiating the Rome Statute had the horrors of conflict in the Former Yugoslavia uppermost in their minds.  In reports and ICTY jurisprudence, some evidence emerged that Bosnian Muslim women were raped by Serbian forces in detention camps, with the purported goal of producing children of a “different” ethnicity to their mothers (see here and here).  Article 7(2)(f) was crafted largely to capture this situation, as reflected in its (first) “ethnically-motivated” intent requirement.  However, this gain for group rights alighted scholarly concern that as an unintended consequence, the offence positioned and “othered” children born of rape as harm to their mother and her ethnic group.  In effect, the crime implicitly adopts the patriarchal claim that a woman’s genes/identity are erased through her rape by a man of a different ethnicity, and that any children born belong to their “enemy” father.  This “normative stigma” could be seen as reinforcing the lived, sometimes long-term rejection of children as non-members of their mother’s ethnic group.  Across both ethnic and non-ethnic conflicts, within communities children’s identities have been linked to perpetrator fathers and stigmatised with collective names such as “Chetnik babies” (Bosnia), “children of hate” (Rwanda), “Kony’s children” (Uganda) and “los paraquitos” (Colombia).  These names serve as thin labels for broader human rights risks and harms.

In Ongwen, forced pregnancy is not being prosecuted under the ethnic intent limb. Therefore, the possible transmission of “normative stigma” on this basis is not in issue.  Nonetheless, the Prosecution Pre-trial brief in Ongwen refers to children he fathered as “his” children and an Experts’ report in Bemba (see below) starkly lists children born of rape as a “serious harm”.  This language potentially engages similar discriminatory framing and narrative concerns.  Importantly, it also evidences a potential conflict between the prosecutorial/sentencing and victim-centred goals of articulating and evidencing “harm” to one group of victims (“forced mothers”) while respecting the rights of another (children born of rape).  In order to minimise the risk of doing harm to either group, the Court must be fully consciousness of the rights of all victims engaged by an offence and seek to balance any conflicts.  Not to do so risks violating its obligations under the Rome Statute and International Human Rights Law.

The Obligation Not to Stigmatise children born of rape

The ICC has a clear legal obligation not to stigmatise children born of rape.  Under Article 21(3) of its Statute, the Court must interpret and apply applicable law (including ICC offences) consistently with internationally recognised human rights, and without any adverse distinction founded, inter alia, on ethnic origin, birth or other status.  The overarching non-discrimination obligation extends to all aspects of the Court’s functioning.   It entails respecting victims’ rights by avoiding incompatible, ICC-generated harms at all stages.  Acting consistently with internationally recognised human rights also requires the Court to respect and protect relevant rights through its mandates.  The UN Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women are of particular relevance in the prosecution of “cross-cutting” crimes  which impact on different victim groups, such as forced pregnancy.  For children born of rape, the holistic application of the right to non-discrimination (i.e. the obligation not to stigmatise) and the principle of “best interests of the child” are key.  For children and their mothers, the contribution of gender discriminatory norms towards the commission of SGB crimes and the “double-stigmatisation” both victim groups face in their aftermath must be recognised and redressed. In order to ensure that all ICC institutional actors understand and meet the Court’s obligations when prosecuting SGB crimes and those affecting children, clear, contextually and culturally-relevant guidelines must be in place.  Currently, children born of rape are missing as a victim group in key public ICC policy documents; perhaps suggesting a degree of institutional blindness which needs correcting.

Recognition of the Legal Victimhood of children born of rape

Despite the noted risks of ICC stigma allocation to children born of rape, a significant milestone has been reached in the Ongwen case.  The Prosecution has specifically recognised children born of rape in LRA captivity as a category of victims (see here), consistent with their right to reparation under international law, reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and its Guidance Note (see here, here).

The Court’s reparations mandate holds potential to contribute towards the reduction of “real-life” stigmatisation of children born of rape, as well as redressing broader harms.  Clearly, before this stage is reached, the extent of Ongwen’s liability (if found guilty) and the class of victims who may benefit would fall to be determined.  Nonetheless, I highlight below some key research findings which underline the nature, scope and longevity of harms suffered by many children born of rape in LRA captivity (see here, here, here and here).

Broadly, the harms causally linked to SGB crimes victimising children born in captivity comprise: (1) harms arising in captivity and; (2) harms arising outside captivity, in communities.  These include physical, psychological, emotional, cultural, material and stigma-related harms.  Unredressed harms multiply and amplify over time.  In captivity, children endured starvation, disease, lack of access to medical care and daily exposure to violence.  In communities, many struggle to access family and community belonging, encountering identity challenges, rejection, discrimination, violence and, relatedly, diminished access to food, education and healthcare.  Stigmatisation of children and their mothers informs and exacerbates their social and economic marginalisation, posing long term challenges to their health, economic and psychosocial well-being.   In addition, some children born in LRA captivity across the Great Lakes region to parents of different nationalities face statelessness; imperilling their present and future.

Transformative Reparations for children born in captivity

In determining what transformative reparations may mean for children born in LRA captivity, the fact that their mothers are often their primary carers is relevant.  Children experience distinct harms and are in urgent need of psychosocial support, access to education, health, land and future livelihoods.  However, equipping their mothers to better manage physically, economically and emotionally the demands of “forced motherhood” and the ongoing effects of SGB crimes, is likely to enhance the life chances of their children and ease complexities in the mother/child relationship.  Livelihood projects in which children born of rape are co-partnered with other vulnerable children and “give back” to communities may also improve their economic security, while countering harmful stereotypes against them. 

Despite their potential in redressing stigma and broader harms, reparations also risk creating perceived victim hierarchies which may add to the stigmatisation of children born of rape.   To mitigate this risk, the ICC should work with trusted local leaders to sensitise communities before implementation.  While recognizing practical and financial limits to the ICC’s, reparatory function, the ICC Trust Fund for Victims should be used in parallel, to benefit the broader community, all of whom suffered from the war.

Broader Marginalisation in Transitional Justice Processes

Following a recommendation in an Experts’ report to include children born of rape in the reparations process, the case of Bemba may leapfrog Ongwen in being the first to award reparations to children born of rape.  While it is unclear why they were not initially included, this omission is symptomatic of the broader marginalisation of children born of rape in transitional justice mechanisms. For example, no children born of rape during the Colombian conflict have yet received reparations under the Victims and Land Restitution Law 1448.  My research indicates that various factors are inhibiting children’s practical realisation of their legal rights.  In this context, they include: practical, ethical and cultural barriers to being seen and identified as victims; fear of perpetrator retaliation; stigma and  mothers’ “protective silences” around their birth origins.

Globally, there is a pressing need to ensure that as a matter of law and practice, the right to reparation of children born of rape can be safely and ethically realised.  The Ongwen and Bemba cases (including any lessons learned) may be catalysts for “positive complementarity” with national courts/mechanisms and greater global consciousness of this victim group.

Conclusion

 Despite the ICC’s potential to protect and enforce the rights of children born of rape, a clear tension can be observed in its “double-edged” practices of stigmatization.  The Court must also seek to manage the risk of being instrumentalised as a legitimator and/or distraction from states’ failure to redress violations for which they bear primary responsibility. In Uganda, survivors and their children still await state reparations under a national transitional justice policy which remains politically blocked.  This includes children born of rape as a result of violations by Ugandan state and other non-state groups.  Finally, inattention and incidental discrimination of children born of rape is not unique to international law.  It is part of a broader, global blindness to their existence and plight.  Beyond the limited jurisdiction and mandate of the ICC, urgent, broader political and research efforts must continue to address the unique vulnerabilities and needs of this population.

This blog is informed by research she conducted at LSE, including fieldwork. It has been written in a purely personal capacity and does not reflect the views of HMG.

Announcements: 2018 Program of Advanced Studies on Human Rights and Humanitarian Law; Multinational Indicted for Crimes in Syria; 7th Annual Cambridge International Law Conference; CfP International Law and National Security; CfP Economic...

EJIL:Talk! - Sun, 02/11/2018 - 10:00
1. 2018 Program of Advanced Studies on Human Rights and Humanitarian Law. This annual Program, from May 29 – June 15 2018 offers 20 courses in English and Spanish lectured by over 40 scholars of relevance in the field of Human Rights and Humanitarian Law. The Program gathers more than 150 participants from more than 25 different countries with different levels of professional experience all in Washington D.C. for an intensive 3 weeks of full immersion into the world of human rights. The Academy on Human Rights and Humanitarian Law provides through this Program the opportunity to learn and interact with judges of the ICC, the ICJ, Special Rapporteurs and Committee members of United Nations, members of the Inter-American Commission on Human Rights, experts from prominent NGO’s and professors from all over the world. The Program is offered in three categories that include the Certificate of Attendance for law students, HR professionals and lawyers of any country, ABA Credits for U.S. law students and finally, the Diploma Course that is offered to a select group of 35 law professionals. Deadline for applications is 1 May 2018.  Please contact  hracademy {at} wcl.american(.)edu var mailNode = document.getElementById('emob-uenpnqrzl@jpy.nzrevpna.rqh-85'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%68%72%61%63%61%64%65%6D%79%40%77%63%6C%2E%61%6D%65%72%69%63%61%6E%2E%65%64%75"); tNode = document.createTextNode("hracademy {at} wcl.american(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-uenpnqrzl@jpy.nzrevpna.rqh-85"); mailNode.parentNode.replaceChild(linkNode, mailNode);  for more information. See here to apply, and here for the brochure.   2. Multinational Indicted for Crimes in Syria: The French Case against Company Lafarge. At this event, on 22 February from 18:30pm-20:00pm in Berlin (conducted in English), speakers will discuss how multinational companies, driven by economic interests, can fuel conflicts and engage in serious human rights violations. They will explore the importance of legal accountability of all actors involved in war crimes in Syria as a prerequisite for peace and stability in the region. In the Lafarge case, a complaint was filed on behalf of 11 former Syrian Lafarge employees who argue that by doing business with the terrorist group ISIS – which Lafarge has by now acknowledged – the company may be complicit in war crimes and crimes against humanity, and endangered the plaintiffs’ lives. Since the heavily-evidenced case was filed, plaintiffs have been heard, Lafarge’s headquarters raided, and its directors indicted. This case can be a game changer in a field desperate for precedents establishing corporate responsibility for international crimes. Register at event {at} ecchr(.)eu var mailNode = document.getElementById('emob-rirag@rppue.rh-80'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%65%76%65%6E%74%40%65%63%63%68%72%2E%65%75"); tNode = document.createTextNode("event {at} ecchr(.)eu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-rirag@rppue.rh-80"); mailNode.parentNode.replaceChild(linkNode, mailNode);  until 19 February 2018 (please note that no confirmation will be sent). For more details contact Anabel Bermejo at bermejo {at} ECCHR(.)eu var mailNode = document.getElementById('emob-orezrwb@RPPUE.rh-19'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%62%65%72%6D%65%6A%6F%40%45%43%43%48%52%2E%65%75"); tNode = document.createTextNode("bermejo {at} ECCHR(.)eu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-orezrwb@RPPUE.rh-19"); mailNode.parentNode.replaceChild(linkNode, mailNode); .   3. 7th Annual Cambridge International Law Conference. The Cambridge International Law Journal is pleased to open the registration for the 7th Annual Cambridge International Law Conference. The Conference will be held at the Faculty of Law, University of Cambridge, on the 3 – 4 April 2018. This year’s theme is ‘Non-State Actors and International Law’ and will feature a broad range of panels that discuss pressing topics under this theme. We are delighted to announce that Professor Olivier De Schutter of the Université catholique de Louvain, member of the UN Committee on Economic, Social and Cultural Rights and former UN Special Rapporteur, and Professor Jorge E. Viñuales of the University of Cambridge will deliver the keynote addresses for the Conference. Registration and other relevant details about the Conference may be found here.    4. Call for Papers: International Law and National Security. The ICRC Delegation in Washington, and faculty from Cardozo Law School, Stanford Law School, and Loyola Law School in Los Angeles, welcome submissions for a papers workshop focusing on international law and national security. Papers must be in progress, and will be critiqued by IHL experts at a one-day event held at Cardozo Law School in New York City on 18 June 2018. See the call for papers here.   

5. Call for Papers Deadline Approaching: Economic Constitutionalism: Mapping its Contours in European and Global Governance. The European University Institute (EUI) and the School of Law at the University of Portsmouth are organising a 2-day international conference to explore the function and nature of economic constitutionalism within broader constitutional processes in the European and global legal orders. The conference will be hosted by the EUI in Florence on 14 and 15 June 2018. The deadline for submission of abstracts is 28 February 2018. For more information please visit the conference webpage.   6. AHRI 2018: Renewing Rights in Times of Transition – 70 Years of the Universal Declaration of Human Rights. On 7 and 8 September 2018, the Edinburgh Global Justice Academy  is hosting the annual AHRI conference at the University of Edinburgh Law School. The Association of Human Rights Institutes (AHRI), is a network of 62 member institutions from across 33 different countries that carries out research and educational activities in the field of human rights.  Each year, the AHRI conference aims to bring together human rights researchers from across the disciplines, to facilitate the exchange of ideas and collaboration, and to promote research, education and discussion in the field of human rights. This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). At the time of its adoption, none of the drafters nor the UN General Assembly could have calculated the movement, norms, and practice relating to human rights for people across the globe that would grow from the document. The 70th anniversary of the UDHR presents a perfect opportunity to take stock of how far we have come and how far we have to go. See the call for papers here

Is International Law International? Continuing the Conversation

EJIL:Talk! - Fri, 02/09/2018 - 13:00

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks.

Risks and Discomfort

Ruiz Fabri was very perceptive in noting that writing a book like this was a “risky enterprise” and that it “might be a good way to displease many people.” This book indeed deals with touchy subjects. On the personal level, it suggests that we international lawyers are often not as cosmopolitan as we like to think. On the political level, it raises awkward questions about the implications that might flow from different understandings of and approaches to international law in light of changing geopolitical power.

Although the book deals with controversial issues, I think it needed to be written. I am drawn to academic issues that intrigue me or make me feel intellectually uncomfortable. This book did both. Just as many readers have felt unsettled reading it, so I felt unsettled writing it. I coped with that discomfort by seeking to render as balanced a picture as I could, typically presenting both sides of issues rather than taking a normative stand about which one I thought was preferable. I showed that strengths often contain weakness and vice versa. I subjected myself to the same critique as I asked my readers to undertake.

Given the potentially provocative nature of this book, I want to thank my OUP editors John Louth and Blake Ratcliff for supporting it. The book was unlike anything I had done previously. It did not conform to standard approaches to legal scholarship. It was clear from the outset that the work would involve shaking echo chambers and had real potential to offend. Despite these risks, they immediately and intuitively understood what I was trying to do, from our first coffee chat. I am genuinely grateful that they were unwavering in their support and insightful in their critiques.

To my surprise, instead of encountering a wall of hostility, my book has opened rather than closed dialogues. I have received emails from all around the world and often my interlocutors shared personal stories about their experiences of the divisible college of international lawyers in both academia and practice. For instance, much to my regret, I was unable to include an analysis of a Latin American state in the book. Instead of spurning it, numerous Latin American scholars have reached out to tell me their side of this story (e.g., Francisco-José Quintana about the problems with teaching the Falklands/Malvinas dispute in Argentina using UK textbooks).

The book is an invitation for self-critique and dialogue. I hope that it prompts many conversations, even if some of them are uncomfortable. Academia is meant to challenge the status quo and shake up things up. Taking risks is part of the point.

Methods and Layering

In reading the book, Ruiz Fabri found herself wondering about its nature. Was it “A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this?” This is an insightful question and one that I have pondered more since writing the book. It is also one that Paul Stephan astutely, if partially, answers.

I have come to see this book as embracing what sociologist of globalization Saskia Sassen describes as a “Before Methods” approach. Complex global phenomena and emerging or underanalyzed issues are helpfully dealt with by first stepping back and seeking to destabilize our existing understandings of the world and the conceptual frameworks we use to describe it. Often particular concepts, framings and metrics obscure as much as they reveal. This approach requires one to sketch and project, and to connect microobservations to macroforces in an iterative observational and analytical process.

As Stephan notes, such work must be done analytically prior to many other projects: my book “strips away preconceptions and mystification” with a view to setting the scene for social justice projects and instrumental and empirical analyses. For instance, although the book engages in some empirical analysis, it doesn’t pretend to be exhaustive or a champion of sophisticated methods. Similarly, the book describes and explains international law and lawyers’ fragmented reality but does not take the next step of providing a normative framework for assessing which approaches are better or worse.

Good scholarship is often completed in layers. As Stephan concludes, this book “expose[s] the forces that bring about systematically different cultures of international law in different parts of the world” but leaves others to explore “the link between disaggregated cultures and the international law that results.” It is the horse before the cart. It seeks to open our eyes to many issues, analyze their origins and effects, and provide a framework and vocabulary for talking about them. The book doesn’t answer every question but makes many new questions possible.

The same sentiment underlies Rusinova’s conclusion that the effect of this book will ultimately depend on what other international lawyers do with it. According to Rusinova, the book should be understood as a challenge to international lawyers to ask themselves, “Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?” Thus, she concludes that “it is in our own hands to make [the book] change the ‘world of international law.’” Yet, as Ruiz Fabri notes, much will turn on how those in the privileged inner circle (the “International Bubble,” as she calls it) respond to the critique.

Promise and Perils

Jia’s contribution constitutes a very good example of analyzing the promise and perils of comparison. As Jia notes, and as I found through my study, although textbooks and casebooks from some states contain good information about the practices of those states, that does not hold true for all states. In particular, Chinese international law textbooks often draw heavily on the approach of Oppenheim and Brownlie and feature little Chinese practice or views. If these books weren’t written in Chinese (a bit of a giveaway), I could easily have mistaken them for not being Chinese, except for their treatment of a handful of issues like Taiwan and the South China Sea.

Any metric that one uses to compare international law or international lawyers across states will be limited because metrics that make sense in one context often don’t make sense in another. This problem is one of the perils of comparison and it explains why one needs to adopt many approaches and metrics to build up a more complete picture. But it is also part of comparison’s promise. Thus, rather than accept the status quo, Jia suggests that the time has come for China to adopt a new generation of international law textbooks that, among other things, give the reader more information about China’s approach. I concur.

How such a development plays out remains to be seen. The future for Chinese international textbooks seems caught between two forces. On one side, some academics are developing casebooks that are much closer to US-style casebooks, particularly in international economic law. On the other side, the Chinese government has stepped up its censorship of academics and has now sponsored the creation of a quasi-mandatory textbook on international law that is meant to feature Chinese socialist characteristics (though these attributes are apparently pretty sparse in the first edition). This struggle between nationalized, denationalized and westernized approaches is happening before our eyes and may evolve differently with respect to form and substance.

Censorship and Judgment

The last point on censorship links to an important factor that Milanovic and Julian Ku highlight. Not all states have robust traditions of academic freedom or free speech more generally. If we are going to diversify our networks and sources, how should we assess scholarly opinions coming from authoritarian states like China and Russia where there is evidence of significant external and internal censorship? This issue arises in my book in the discussion of textbooks and in my account of the virtual uniformity of Chinese and Russian academic views – as well as their conformity with the positions of their states – with respect to the South China Sea arbitration and Crimea, respectively.

I agree with Milanovic that this issue arises in my book but deserves more explicit attention in comparative international law work going forward. In fact, I am currently working on a piece with a colleague addressing this very issue. But I disagree with Ku’s conclusion that adopting a comparative international law approach necessitates descending into pure relativism. As I say in the book, recognizing “differences in the way international law is understood, interpreted, applied, and approached can be examined without adopting a relativist stance that all positions are equal” and “[w]hether a given position reflects international law depends on many factors, such as the number of states that support it [and] how widespread and representative they are as a group.”

Although I deliberately refrained from making legal judgments in the book as my purpose was to identify, explain and analyze the divisible college, I am not averse to people reaching such conclusions. Much of this is a question of sequencing. My suggested approach is: (1) seek to engage, listen and understand, (2) seek to test your assumptions and argue your position, (3) identify and justify your framework for assessing different positions, and (4) engage in judgment. I emphasize steps one and two in my book because too often I see international lawyers go straight to step four, missing steps one and two and simply assuming step three. Steps one and two are crucial for building knowledge, self-awareness and networks. For international law to move forward, however, one of the central challenges will be deciding when to recognize divergent interpretations as valid and when to conclude that some venture beyond the pale (step three). And this may end up being contested.

In developing such frameworks, we all need to be attentive to our blind spots and biases, but we should also pay attention to those of other national communities. I agree with Milanovic’s conclusion that the international reputation of a group of national scholars will depend significantly on their ability to take positions that are independent from those adopted by their state. Discerning the dividing line is most difficult in academies, like the Chinese and Russian ones, that have what Milanovic describes as “some non-negligible level of academic freedom.” Levels of freedom are also likely to vary across fields and issues. Scholars might have more freedom with respect to international economic law and less concerning core national interests, for instance. Although this will always be difficult to judge, it is much harder to do so if you don’t have networks in and knowledge of these academies.

In terms of the South China Sea case, I agree with Ku that the uniformity of the Chinese scholars’ views on the South China Sea worked in the end to damage their credibility and that their “going out” approach worked hand-in-hand with the government’s media campaign. However, at least based on my networks and knowledge – which are necessarily partial and subjective – I think that Western international lawyers often dismiss the objection of Chinese scholars to the SCS tribunal’s jurisdiction as being purely politically motivated when my sense was that it was usually genuinely held. By contrast, I believe that politics were at play behind the lack of criticism by some mainland Chinese scholars of China’s refusal to participate in the arbitration and abide by the award.

In addition to considering academic freedom, we also need to be aware of other socializing and incentivizing factors that might influence academics to align with their states, such as the media they watch, unusually close connections between academia and government (as in the United States) and the strategic use of research funding (as in China). Indeed, Milanovic notes that the United States has a strong tradition of freedom of speech, but non-US international lawyers often find strong synergies between the positions of US international lawyers and the US government and frequently credit that, in part, to the socializing and incentivizing factors that come with the US government/academic revolving door.

We also need to be mindful about how a failure to engage can be interpreted as an unwillingness to listen and how the Western dominance of so many international institutions creates concerns about exclusion and bias. In my book, I document systematic patterns of non-engagement across communities and lack of diversity in international institutions that have nothing to do with concerns about censorship. US academics do not generally ignore French scholars because of concerns about academic freedom. The frequent invisibility of Latin American scholarship and cases within Western international law circles has nothing to do with a concern about propaganda. There is a lot more we could do to diversify our knowledge and networks. And if we are more inclusive on steps one and two, and more reflective and explicit in how we ground our evaluative frameworks in step three, then our ultimate judgments in step four will deserve greater weight.

Conclusion

The obvious question to ask at the end of this back-and-forth is, What’s next? Many of the contributors identify where one could take a scholarly agenda from here, for example, from developing and testing instrumental theories about the link between cultural differences and approaches to international law (Stephan) to encouraging greater internationalization of self-contained academies (Rusinova). One can imagine greater in-depth studies of specific national approaches and larger empirical cross-national comparisons.

My book also works as a springboard to larger normative questions, such as what the existing diversity means for finding and justifying “international law,” especially in an age of shifting geopolitical power (Ku). These questions are currently being addressed by projects such as International Rule of Law: Rise or Decline? As I say in the book’s conclusion, I began the project by seeking to change the question from whether international law is law to whether it is international, but perhaps the challenge of our generation is in recognizing that these questions are inextricably linked.

A Word on the Comparative Approach of International Law and a Proposed Direction for Chinese Textbooks of International Law

EJIL:Talk! - Fri, 02/09/2018 - 09:00

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

Professor Roberts’s thought-provoking book prompts many questions. My preliminary thoughts consist of two strands: one concerning the comparative approach endorsed in the book with regard to identifying similarities and differences in national and regional approaches and seeking to understand why and when these occur (Roberts, p. 33); and the other, concerning Chinese textbooks on the subject of international law. It is presumed that the word “approach” (ibid, p. 36) in this context chiefly refers to that of states, rather than that of academics and textbooks written in those states, unless the approach taken in the latter coincides with that in the former. Such coincidence, it is submitted, requires the adoption by textbook writers of a practice-centred methodology which, however, may not be prevalent at all law schools and at all times. Where the coincidence does not exist, the textbooks could be unhelpful in explaining the reasons underpinning the approach of the country, due to the proverbial gulf between practice and academia that exists in many countries. Such textbooks may never become more than attempts at second guessing of the approach of the country.

The Comparative Approach

The wise call for international lawyers to become “more humble, open and reflexive in their engagement with international law” by adopting the comparative international law approach (ibid., p. 325), is sounded after an in-depth survey of the works of a select group of lawyers, academic or practising, of the five permanent member states of the UNSC (“Big Five countries”), sometimes based on direct contact with some of those lawyers.

I wish to make four general points, with the caveat that, although these points may have been touched upon in the book, further reflection is warranted from the reader’s perspective due to their importance.

First, resort to the comparative approach to law-making in this field might not be different in effect from, for instance, the exercise of the International Court of Justice (ICJ) in finding and applying international custom or “general principles of law recognised by civilized nations”, under Article 38 of the Statute of the International Court of Justice (ICJ Statute). On the one hand, in the formation of customary law, a comparison of national approaches—in the form of state practice—is integral to the evaluation of whether and how the rule is formed, by or among which states, and what it is meant to regulate. That exercise would involve consideration of different national or localised proclivities (eg, Xue HQ, “Chinese Contemporary Perspectives on International Law”, Recueil des cours, vol. 355 (2011) 40, p. 53). On the other hand, as the general principles of law under Article 38 are regarded as rules of international law to be applied in a given case, the comparative approach, whereby they are distilled from different national laws, seems to have been around for a long time (H. Lauterpacht, Private Sources and Analogies of International Law, Longmans, Green and Co., 1927, pp. 69-70; F. A. Mann, “Reflection on a Commercial Law of Nations”, 33 British Yearbook of International Law (1957) 20, 34-39, esp. 36). The Erdemović case before the ICTY (Case No. IT-96-22-A, Appeals Chamber, Judgment of 7 Oct. 1997) was a relatively recent example of this approach. Controversial as the majority decision might be on the issue of duress in international criminal proceedings, the underlying research into the legal systems of various countries in relation to the issue was not–especially considering that, in that case, all of the appellate judges used the research to form their (diverse) opinions. On a general level, recourse to the comparative approach is presumably aimed at finding “correct” solutions to legal issues (Roberts, p. 22). However, the comparative international law approach may, for now, bring forth a result which could equally be reached by operation of the existing doctrine of sources of international law, embodied in the provision of Article 38 of the ICJ Statute.

There is, secondly, a point with regard to the focus on the academics and textbooks of the Big Five countries. Can a comparison of them really lead to a better understanding of what is considered to be international law for each of those countries, not to mention other members of the international community (this being said in view of the generality of certain unanswered questions raised: ibid., pp. 321-322)? Traditional ways of law-making by treaty and custom in this field at least involve the great majority of States in the world, and the word “international” is apt to describe the legal order thus created by them. If the perception of that legal order’s rules is built on the works of a select group of international lawyers from the five countries, could the rules so stated or asserted by the lawyers be generally accepted as authoritative (and international)? Moreover, the focus mentioned above might not account for the role played by lawyers of other countries. Furthermore, while recognising the fact that the influence of western-trained lawyers in general and of those of the UK, the US and France in particular, has been considerable in this field, there may be a lingering doubt as to whether such a training itself could sway judgement of non-western lawyers involved in diplomatic negotiations, judicial proceedings, or teaching and research in non-western countries’ academies. It should also be noted that there is a divide between academia and practice even in the Big Five countries, with perhaps the exception of the US (ibid., pp. 110-124). This divide raises a question as to whether the select group of lawyers can accurately represent the practice of their own countries in textbooks, considering that their views are not only personal, but are also likely to be rather detached from the real-time action of government lawyers in upholding national interest by means of international law. If so, the textbooks, updated only at intervals of every several years, may not capture the cause or rationale of national approaches that constantly evolve; on the contrary, they could be misleading, if not updated, for a foreign lawyer who seeks to find out about the true legal reasons in support of a national approach in a particular event–say, the Russian approach to the issue of Crimea.

Thirdly, the comparative approach would require language skills, as has been noted copiously (ibid., pp. 92-104;260-272). It seems that to master even the four languages of Chinese, English, French, and Russian for just the purpose of writing a legal opinion would be no mean feat, and the chances of having a sizable pool of lawyers of this calibre are slim, based on this reader’s personal experience. Even if that level of language skills could be managed, the lawyers of that category might still have to contend with the understanding of textbooks in German, Arabic, Italian, Spanish, etc. How many languages would need to be mastered for a truly comparative approach? The reality, as observed in the book, is that most of the international lawyers of the Big Five countries publish in their native language as a matter of course, and with that, the comparative approach, even in truncated form of relying on two or three languages to teach and research, would have little luck to be adopted in their law schools.

Fourthly, as a personal view, there is no necessary link between a particular language and a type of understanding of international law concepts or a national approach. It is the substance of the national approach that is controlling. Language is a medium whereby the approach is described. For instance, the English and French languages, even mastered to a level equal to that of those who speak it as a mother tongue, may easily be used to expound values or perspectives that are neither Anglo-Saxon nor French.

Chinese Textbooks on International Law

The book has highlighted some general features of the Chinese academia in this field (for instance, ibid., pp. 33, 156). Without wishing to comment on all of its findings in this regard, three points are raised to stimulate further discussion.

First, there are different understandings of a “treatise-like” textbook (ibid., p. 33), as opposed to “books of cases and materials”, since it may not be easy to agree on a common standard for a treatise. There are several foreign textbooks that are, in my view, treatises, widely referenced in Chinese law schools (ibid., p. 174). But there are also numerous Chinese textbooks which, on a cursory account I did a decade ago, stood at over two dozens and have since surpassed 30, and which do not treat the subject of international law in the same way that Oppenheim’s International Law or Shaw’s International Law does, in terms of substance and style. Which genre will in future dominate in Chinese law schools would be worth looking at.

Secondly, reliance on case law is not necessarily symptomatic of a “westernized” style. Public international law has its vast repertory of cases delivered by international courts and tribunals, as well as those by domestic courts and tribunals applying international law, with the decisions of the ICJ, with its diverse and representative Bench, being as authoritative as it gets for the determination of rules of international law. This fact has not been lost on Chinese international lawyers, even though the textbook writers among them often tend to be sparing in referencing case law.

Thirdly, for all the splendour of works such as Oppenheim’s International Law, which has inspired two leading textbooks–both chiefly edited by the late Judge Wang Tieya–for Chinese law schools (ibid., pp. 140, 160), it may be time for Chinese textbooks to move on with times. This moderate call for adjustment in substance and style should come as no surprise, in that even teachings of the most highly qualified publicists, to use the expression of Article 38 of the ICJ Statute, may become rusty in the fullness of time, which point is proved by the need for new editions or revisions that often span decades. To cling to a classical version of international law reveals a great deal of deference to tradition but also quickly results in stagnation. Influential ideas in the history of international law need to be re-examined and re-invented in the light of contemporary conditions to remain relevant to the fast changing geopolitical landscape of today’s world. For Chinese lawyers, a fair share of treatment of contemporary Chinese practice should also be more readily found in their future textbooks. Indeed, from hindsight, it seems that what secures the vaunted position in the Chinese academia of Oppenheim’s treatise and Brownlie’s Principles may be their practice-centred methodology that acknowledges the importance of comprehensive proof, legal reasoning, and of course, original thinking. Textbooks only introducing others’ views or summarising points for exam purposes can neither generate nor sustain interests of the targeted readership–whose enthusiasm determines the longevity and popularity of the discipline in national law schools; nor can they bridge the gulf with practice, thus being unable to claim a role in the clarification of a state’s approach to international law.

Can International Law Be More International?

EJIL:Talk! - Thu, 02/08/2018 - 13:00

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

In her monograph Anthea Roberts has drawn a comprehensive portrait of International Law – she has intentionally limited her study to the current, mid 2010s period of time, refraining from diving too deep into history and from speculations on future developments. Now as a real artist the author steps back from its masterpiece and lets the audience draw their own conclusions, check the accuracy of results and data in accordance with their knowledge, and compare a presented image with their own perception of the scene.

In my contribution I try to juxtapose images and impressions collected from a reading of Anthea Roberts’ monograph with my own, and reflect on possible forces which might be able to make International Law ‘more international’.

Visible and invisible curtains and walls

For me the main features of the portrait of contemporary International Law drawn by Anthea Roberts seem to be best defined by notions, such as ‘curtains’ and ‘walls’. ‘Iron curtain’ as an expression is linked to the system of fire protection used in the theatres and later on, thank to Sir Winston Churchill, it became a famous political idiom describing the system of self-isolation used by the USSR to preserve and separate the socialist world from the outside influence. In August 1961 an already existing ‘iron curtain’ between the communist East and capitalist West materialized in the construction of the Berlin Wall. In 1963 when President John Kennedy of the United States visited West Berlin, even the Brandenburg Gate had been draped with a curtain that did not enable inhabitants of East Berlin to see him.

This ‘iron curtain’ was a comprehensive political and legal regime of restrictions and totalitarian control over the all spheres of social life. It is not surprising that Professor Grigory Tunkin, one of the most well-known Soviet international lawyers (who headed the Legal Department of the Ministry for Foreign Affairs, was a member of the ILC, the Institut de Droit international and the Head of the Chair for International Law at the Moscow State University) described in his diary how he took any opportunity to work in libraries in the Hague, Geneva and New York in order to introduce ‘western’ approaches to the Soviet audience, being fully aware of his important and unique transmitting mission.

Of course, all these stories have for many years belonged to history. The Berlin Wall fell in October 1989, the Soviet Union dissolved in 1991. We are now living in a different reality of globalization, accessibility of intellectual resources, open or at least relatively open borders, not speaking about the ubiquitous Internet. But despite all these changes the current picture of International Law is dramatically full of borders. However, those borders are not enshrined as inevitable constraints, which as a result of implementation and application of universal norms in almost two hundred different national legal systems push us to justify the existence of Comparative International Law. No, these are ‘curtains’ and ‘walls’ in the professional community, which make a ‘college of international lawyers’ ‘divisible’ (Anthea Roberts 51 et sq.).

We can dispute, how far from the truth Oscar Schachter was when in 1977 he wrote about ‘invisible college of international lawyers’, but what makes the division in international legal academia, so thoroughly traced by Anthea Roberts, so strong now? The reasons thereof comprise, but are not exhausted by historical (i.e. empire, heritage or ideological infighting) or geopolitical precursors, because roots can be also seen in an enormous expansion of the substantive field of International Law and proliferation of its institutions, which led to a challenging shift of education of International lawyers from being rather elitist to a mass one.

What shapes our ‘divided’ communities is where we study, which languages we speak, which publications we read and use in our research and teaching, in which journals and in which languages we publish (Anthea Roberts 51-128). Borders evolved between these communities should be better qualified as borders not of International Law itself, but of its discipline, which in many ways influences and shapes the law. So it is much more about “how we think about law” than “how the law is done” (see Andrea Bianchi 6-8).

It is a tragedy for the discipline when the presence of these borders is not even realized or perceived. It may be because of an inert or ‘traditional’ thinking or frames of the language, which just does not allow us to look ‘outside’. Another situation is when the presence of the borders are perceived, but due to either imperial incentives, or due to a feeling of being a strong (or the sole strongest) party in the game, it is enough to formally pretend to play on an equal footing. And, finally, a third case: these borders can be used as a saving remedy. Just imagine, how many theses have been successfully defended in different countries because it is enough to ground that an author was the first to approach this topic in “National legal thought”. How many professors have maintained their chairs almost life-long, despite the fact that they knew no foreign language? How many articles have been accepted since it was not necessary to cite foreign sources? And this is not a speculative ‘what-if’, but a striking reality in some countries.

If the failure to perceive boundaries leads to a ‘naïve provincialism’, a protective usage of them should be described as a ‘comfortable provincialism’. Anyway, in all these scenarios of not listening and not being heard degradation of research and teaching of International Law is unavoidable. However, as a positive forecast, these processes would also lead to a renaissance of legal thought in a state or even in a region. A sole particular question relevant for a particular individual living in the here and now is how long would it take until these changes come? A more complicated case is an intentional not listening scenario based on abuse of a powerful position of a state or states. How could this imperial position be shifted?

Searching for Driving Forces for Internationalization of the Discipline

So, which driving forces are able to stir the pot and dissolve the boundaries? Would reading of Anthea Roberts’ book and awareness of existing ‘curtains’ and ‘walls’ alone change the professional field so intensively that as Martti Koskenniemi put it in his blurb to this monograph ‘nothing …will be quite the same’?

Taking into account that driving forces for these changes can be different by their nature (epistemic, economical, political), by subjects embodying them (global, regional and national, governmental and non-governmental etc.), I will confine myself to the following three.

Firstly, in our discussions and search for an appropriate scientific method or methods of International Law (AJIL Symposium on Method in International Law, ESIL Research Forum and a recently published book ‘International Law as a Profession’) we should be, at least, united in depicting criteria for these methods or ‘scientific values’ (Anne Orford 372), which alongside with rationality, consistency and provability comprise objectivity. Realization of objectivity (being different from universality) as an element of a scientific method would require from every researcher to realize and overcome any individual, institutional and national limits he or she might be bound by when analysing the substantive field.

Secondly, it should be admitted, that the piercing of the walls with different speeds in different countries is already going on, as almost all states are more or less involved in proliferating dispute resolution systems which, from one side require qualified lawyers, and from the other produces judgments which are to be implemented or, at least, understood at the national level. Thus, such substantive fields as human rights, international trade and investments are in avant-garde of this process. This is rather a pragmatic and utilitarian articulation of forces, which might shift a governmental position, although their role is limited, especially taking into account that a human rights sphere might have a ‘dangerous’ potential in eyes of a non-democratic government being by definition double-edged.

Thirdly, competiveness among institutions of higher education (which in varying proportions can comprise both commercial and reputational aims) would push universities to hire foreign specialists, introduce courses or even educational programs in English and support publications in international peer-reviewed journals. These processes, though they may be fairly criticized for excessive reliance on administrative tools, are relevant for ‘internationalization’ of International law, especially in states pushing their best universities to strengthen their positions in the well-recognized worldwide rankings. Although, this ‘race’ can result in a distortion of the educational space, when a limited ‘exported’ part will have almost no connections with a not-changed domestic one.

Awareness about capacities and limits of all possible forces able to push International Law to be ‘more international’ makes it obvious that it is, in the first line, our professional conscience and realization of International Law as a scientific discipline that regardless of economic and political constellations in a particular state or region would even require from us to care about ‘internationality’ as a sine qua non element of methodology. It is pertinent not to wait until the changes will come from above, but start with feasible steps: with our own research, with our students and with our plans of future scientific events and collective monographs, always asking ourselves: ‘Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?’

Thus, it is in our own hands to make the monograph written by Anthea Roberts to change the ‘world of International law’.

From Babel to Esperanto and Back Again: The Fate of International Law (or of International Lawyers?)

EJIL:Talk! - Thu, 02/08/2018 - 09:00

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

While I’ve been reading, I have wondered about the exact nature of Anthea Roberts’ book. A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this? In any case, it is a polite call for lucidity. It seems the author has tried to confirm some hunches she picked up along the way.

In one sense, writing such a book was a risky enterprise. Contrary to what the title might suggest, Anthea Roberts writes less about international law than about international lawyers, who are in constant danger of thinking of international law in a parochial way while claiming its universality. Indeed this book might be a good way to displease many people, although everyone has the choice between identifying with the tendencies she uncovers or considering themselves an exception. But past that, Anthea Roberts comes out with some statements which can be felt as more or less dreadful, depending on one’s situation. She does not propose a miracle cure but at least a realization. To this extent, her approach is not a pessimistic one.

Admittedly, it is possible to criticize this or that angle of the study, such as the choice – even motivated – to focus on the P5 or the presentation of the specifics of a domestic system which does not seem perfectly understood, or else the delimitation of what is “western”. But what I found most interesting is the way in which Anthea Roberts was able to present an analysis which turns out to be very political, as a project as well as in its outcome.

From the outset, I understood the book as another step in Anthea Roberts’ study of what she calls “comparative international law”. I have to confess that I was rather reluctant when starting my reading. First, I was not sympathetic to this wording because I felt it as rather old-fashioned. In my view it recalled the old understanding of comparative law – indeed the most usual one – consisting in comparing domestic law and more or less exotic foreign law(s) or, less often, foreign laws alone. Thus the focus on various – and national – approaches to international law belongs to this trend. Second, I do not like the locution ‘comparative law’ as I have the constant feeling that it rests upon a misunderstanding. It does not refer to law as a set of norms but to a methodology applied to law, and which can be applied to any kind of law, be it domestic or international, private or public, etc. Thus comparing how various international courts and tribunals deal with a specific issue can qualify as comparative international law, which can therefore be de-nationalized.

Obviously, the book had to tame me, and it did.

Going further in my reading and the reflection it triggered rang a bell. It reminded me of the Congrès international de droit comparé held on the initiative of the Société de législation comparée in Paris from July 31 to August 4 1900, on the fringes of the Exposition universelle. In his report on behalf of the Organizing Committee, Saleilles promoted the idea of a ‘common law of civilized humanity’ (“droit commun de l’humanité civilisée”) which he presented as the tool for what he called the most reliable and fecund progress (“l’instrument du progrès le plus sûr et le plus fécond” – R. Saleilles, Conception et objet de la science du droit comparé, Congrès international de droit comparé, Société de législation comparée, 1900, t. 1, p. 167s.). There was this dream that a better knowledge and understanding of the various laws of the world would allow lawyers to bring them closer and to draw common principles from them. There was undoubtedly a shared belief that it would be for the common good. Throughout the 20th century and because of, or despite, its turbulence, one might have thought that these common principles, this common law, would take hold in international law. Isn’t this an almost foregone conclusion, even a redundance, as the vocation of international law is to be a common law? By the way, comparative works undertaken in Paris at the instigation of Mireille Delmas-Marty on the occasion of the centenary of the Congress of 1900, entitled “Variations autour d’un droit commun” (Editions SLC, 2 books, 2001 and 2002), put a lot of emphasis on the internationalisation of law as a vehicle of common principles and pieces of a common law, although the contention was worded very cautiously. Thus it called for the metaphor of a jigsaw puzzle to characterise this evolution.

Interestingly, Anthea Roberts uses the very same image when she recalls that “it is important to understand the various elements examined as different pieces of a puzzle in which the aspects are individually open to criticism but collectively paint a more compelling portrait” (p. 48). However, her book brings to light a kind of regression if not regarding reality, at least regarding our beliefs. Even international law might not be common. Therefore, irony might be at play if at the same point in time that comparatists believe in the universalizing ability of international law, international lawyers have to acknowledge that international law is not a unit but a puzzling puzzle of national, if not even more fragmented, visions.

Maybe the answer is that international lawyers should become comparatists. This is Anthea Roberts’ claim as I understand it. I accept it provided that we reflect further on the object and purposes of comparison in this context and that we look at how comparatists have reflected on the functions that comparative law can perform. In a nutshell, two main functions can be identified, knowledge and influence. Of course, comparison fulfils first and foremost a cognitive function. Thanks to a resulting increased awareness of diversity, it allows us to understand law as a contextualised cultural phenomenon. Admittedly contextualisation is not a foreign language for international lawyers but more efforts might be needed in this direction. Comparison also allows us to learn that the fact others do or think differently does not mean that they are wrong. This cognitive function can even amount to a “subversive function”, as Horatia Muir Watt puts it (La fonction subversive du droit comparé, Revue internationale de droit comparé, Year 2000, Vol. 52, No 3, pp. 503-527), speaking of comparative law as a means of critical understanding of the law. According to her, “comparison is thus capable of freeing legal thought from inhibiting conceptual constraints by paving the way to new ways of reading the law”. Understanding what others do or think helps us to question critically what we think or do. This is typically what Anthea Roberts promotes in her book, highlighting both sides of the coin. First in positive terms, by stating that “consciously assuming a comparative international law approach may help international lawyers to look at their field through different eyes and from different perspectives, enabling them to understand others more fully and to critique themselves and their own state more perceptively” (p. 321). Then in negative terms, by recalling that “if international lawyers operate in silos, either domestically or transnationally, they risk failing to connect with, and understand the perspectives of, those coming from diverse backgrounds and holding different perspectives” (p. 323). Of course anyone might not share this view. Some comparatists have a pessimistic vision in the sense that they think that, due to our differences, we can never be sure of understanding each other. Others have a more optimistic view according to which, despite our differences, we can never be sure of not understanding each other. In any event, being able to deal with and discuss any different view or interpretation is – or should be – part of the DNA of any lawyer.

But there is more, in relation to the second main function that comparison might help to perform, i.e. influence. The temptation which occurs almost inevitably with comparison is classification, even hierarchisation. History is paved with examples of countries trying and sometimes succeeding in exporting their legal models, civil codes, criminal codes, etc. History also tells us that such transfers sometimes called mimetism do not take place without distortion (I like the French word for this which is “gauchissement”) and there, we are back to context and the cultural – or social – dimension. This alone tells us that there cannot be common law without hybridisation and Anthea Roberts demonstrates that reducing the issue in international law to a competition between civil law and common law systems lies on a biased understanding which ignores the various ways of influence. Comparison is never neutral, this is a given, but it comes with the fact that any strategy can engender a counter-strategy, all the more that there are huge asymmetries. There, we face the hidden paths of influence. Comparison, in the sense of knowing better the other, can feed resistance to unification, playing against the globalist delusion at least as we thought we could understand it so far. By focusing on states which figure prominently in the global flow of students, Anthea Roberts might have identified ways of influence – through education which can also play as an acculturation – but also possible Trojan horses. She rightly shows that the ones who learn the ways of reasoning of others without reciprocity, might in the long run be able to beat those from whom they have learnt at their own game. There we are. The time has come to open our eyes but are we ready? Is the international elite that Anthea Roberts rightly identifies and that I used to call ‘the International Bubble’ ready to open up and renounce its “entre-soi”?

Two last remarks in this regard. First, my experience with comparison – or comparative law if one prefers – is that it is very demanding and that, at least speaking about academy, it remains a rather marginalized discipline instead of being a methodology pervading each and every field of expertise. And yet, this is an incredibly useful tool not only to escape domestic silos but also silos of specialisation or even hyper-specialisation. Second, and it goes hand in hands with comparison, language is key. Monolingualism is a killer. Not because the current lingua franca is English (or Globish?) but because trying to master professionally – and not only as a tourist – at least two languages teaches the many difficulties in moving from one to the other without changing ways of reasoning, losing subtleties, facing dilemmas, while monolinguals do not even care about being understood.

The conversation to which Anthea Roberts has terrifically contributed with her book is far from being over, surtout si nous sommes nombreux à accepter de déplacer notre regard.

The Parochialism of Western Cosmopolitanism in a Competitive World Order

EJIL:Talk! - Wed, 02/07/2018 - 13:00

This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order.

From National to Western Parochialism

In an earlier blogpost titled “With Blinders On?” on Just Security, I argued that US international law often gives the impression of being US foreign relations law under a different name. By way of example, I pointed to how unusually nationalized US international law casebooks were in terms of how heavily they relied upon US cases, executive practice, legislation, academics and publications. This national focus both reflects and reinforces what Samuel Moyn has insightfully described as the “Parochialism of American Cosmopolitanism.” US insularity has many causes and consequences, from American power and exceptionalism to the locations where US international law academics typically study, work and publish.

It is common for other Western international lawyers to see such reports and feel a slight sense of glee or superiority. “Those crazy Americans,” many would say, with a knowing smile and a roll of the eyes, safe in the knowledge that they could not be accused of similar parochialism. Yet one thing that really struck home for me in this study was that though I and many of my Western colleagues were not guilty of national parochialism, we were exceedingly guilty of Western parochialism. This issue seemed to be a fitting one to raise on the European Journal of International Law’s blog and the US blog Opinio Juris.

Let me give you an example that follows from my case citation analysis on Just Security. In that piece, I pointed to how US international law casebooks were the only ones that contained a higher—and, indeed, significantly higher—percentage of cases from their own domestic courts (64%) than from international courts and tribunals (31%). To international lawyers from many other Western states, these results seem ridiculous. But what if one instead asks what percentage of all of the domestic cases cited—whether from a state’s own courts or from foreign courts—come from Western states, by which I mean states in the Western Europe and Others Group? Suddenly, the US books are no longer outliers.

Western and non-Western national cases cited in International Law Textbooks

Between 96% and 99.6% of the domestic cases cited in the most commonly used international law textbooks in these three Western states (France, the United Kingdom and the United States) come from—you guessed it—Western states. Like most international lawyers, I was aware of a level of Western bias in my field. Nevertheless, I was surprised by how stark it was when I started looking at the numbers. This pattern didn’t seem to deserve the moniker “international.”

Of course, one could leap to argue that perhaps this pattern just reflects the facts on the ground. The vast majority of domestic decisions on international law may actually have been issued in Western states, so this depiction simply reflects reality. I suspect that this is not the whole story. But even if it were, this circumstance should make us consider in more detail the biases built into the very metrics that we use when seeking to understand international law. To what extent do our metrics reflect the approaches to law we are used to dealing with domestically? And to what extent do they give us a skewed understanding of the world by focusing on some states over others?

As an English-speaking, common-law-trained lawyer, I never thought it odd when I first studied international law that an important way to understand the field was through case law, both domestic and international. This study made me much more conscious of the fact that when one applies this metric, it results in outsized emphasis on the practice of Western, democratic states in general, and English-speaking, common-law ones in particular. At the same time, this metric renders almost invisible the practice of non-Western, non-democratic, civil law states. China and Russia have made important contributions to international law practice, but you won’t usually find it in their domestic courts.

Analyzing this issue among others helped me to realize that some of the approaches to international law that seem so natural to certain international lawyers can produce an effect equivalent to looking at the field through blinders. As with the US example above, this parochialism has causes and consequences, from Western power and exceptionalism to the locations where Western international law academics study, work and publish. That many Western international lawyers are trapped in a Western bubble will not surprise anyone from outside the West or those who have read or adopted Third World Approaches to International Law. But it is an uncomfortable reality that few in the West sufficiently acknowledge, let alone contemplate its possible consequences.

From Dominance to Disruption

The ideal of international law suggests that it is constructed by drawing equally on people, materials and ideas from all national and regional traditions. In reality, some national and regional actors, materials and approaches have come to dominate much of the transnational field and international lawyers’ understandings of the “international.” This point holds true for Western actors, materials and approaches in general, and Anglo-American ones in particular. The case law cited above represents a stark example of this pattern, but many others characterize the field as well, ranging from who appears before international courts and tribunals to which sources and practice these courts typically invoke.

Recognizing this situation made me wonder about how some of these patterns might be disrupted by forces such as changing geopolitical power. After the relative hegemony of Western international law approaches in the post–Cold War period, the world is entering into what I refer to as a “competitive world order” in which power is diffusing from West to East and from North to South. In the coming decades, the international order is unlikely to be dominated by Western, liberal democratic states to the same extent as before. A significant standoff is also emerging between Western, liberal democratic states and non-Western authoritarian ones, most notably China and Russia, across multiple domains.

Three things have become clearer since I completed this book in late 2016. First, the United States and the United Kingdom have seriously stepped back from their position as global leaders following Donald Trump’s election and the Brexit vote. Anglo-American approaches that have featured so prominently in defining international fields in the last few decades seem to be quickly receding in importance. On many issues, from trade to climate change, the West is divided and weakened. American global leadership is in question and its prestige is tarnished.

Second, several non-Western states are more actively seeking to assert themselves on the international stage. China is a prime candidate, exemplified by President Xi’s endorsement of economic globalization and expansive Belt and Road project. But these aspirations underlie many other developments, such as the battle in the recent ICJ elections between India and its former colonial master, the United Kingdom, which led for the first time to a British judge not sitting on the Court. This vote represented a sea change, breaking the traditions of granting the P5 informal permanent seats on the Court and casting votes according to informal regional group quotas.

Third, states are more openly acknowledging the emergence of a new era of great-power politics and ideological competition. Specifically, the December 2017 US National Security Strategy describes a newly emerged “Competitive World” in which great-power competition has returned and it characterizes China and Russia as “revisionist powers” seeking to “challenge American power, influence, and interests” and to “shape a world antithetical to U.S. values and interests.”

In this new competitive global order, international lawyers of all stripes will need to develop a greater awareness of the diverse frameworks and narratives through which international law events are understood and arguments are made around the world. The first step in building this understanding is for international lawyers to diversify their sources and networks in an effort to see the world from different perspectives and through other eyes. The motivation for taking this step can be founded in cosmopolitan idealism (thinking international law should be more inclusive) or hard-bitten realism (along the lines of “know thy enemy”). Either way, knowledge is key, whether one ultimately accepts the alternative approaches as valid or not.

Developing such an understanding can be hard for Western international lawyers because often where we study, work and publish adds little to diversifying our perspectives. Just as those sitting in the United States often find it hard to look beyond their national standpoint, so many Western international lawyers find it hard to look beyond their geopolitical perspective. Our networks and sources are typically not national, but neither are they fully international. Yet, as power becomes more disaggregated among a larger number of more diverse states, international lawyers will experience a heightened need to adopt a “comparative international law” approach to come to grips with these differences.

In seeking to develop such an understanding, international lawyers must also be aware that some transnational flows are likely to be asymmetrical, leading to different patterns of diffusion and knowledge. For instance, elite Chinese international lawyers are far more likely to study in Western states than vice versa. Thus, Western materials and approaches are more likely to be found in China than the reverse (the power of diffusion), but Chinese international law academics are more likely to exhibit broad comprehension of Western perspectives on international law than the reverse (the power of knowledge). As China becomes an increasingly significant international player, it will want to disseminate its own approaches to international law more widely, whereas international lawyers in the West will need to deepen their knowledge of China’s interests, interpretations and approaches.

Conclusion

International law aspires to be universal; but it is also, and inevitably, a deeply human product. No international lawyer can understand all aspects of the field from all viewpoints, myself included. We are all prisoners of our own networks, languages, education, histories and trajectories. For this reason, this book should be understood as a conversation starter rather than the final word on the subject. It seeks to render into words, and provide a framework for understanding and analyzing, experiences that many international lawyers have had and yet are often not spoken about or are confined to conversations over cocktails rather than deemed worthy of scholarly treatment.

It is this sort of dialogue that I am grateful to be starting with this thought-provoking collection of international lawyers. This book raises many questions and offers only some answers. I am not yet sure what it all means or where we go from here. As the very definition of a parochial English-speaking, Western international lawyer, I have much to learn and I look forward to seeing my book—and the transnational field of international law—through the eyes of my interlocutors.

Joint Symposium with Opinio Juris on Anthea Roberts’ Is International Law International?

EJIL:Talk! - Wed, 02/07/2018 - 06:00

We are delighted to announce that over the next few days we will be co-hosting with Opinio Juris a discussion of our contributing editor, Anthea Roberts’ new and prize-winning book Is International Law International? (OUP, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship” and we extend our congratulations to Anthea! As the ASIL Book Awards Committee states:

 

“In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.”

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rosinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). The symposium will open with a post later today by Anthea introducing her book. We are grateful to all of them for taking part in this discussion. Readers are invited to join the discussion with comments on the posts.

Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v. Azerbaijan: A Victory for the International Rule of Law?

EJIL:Talk! - Mon, 02/05/2018 - 09:00

On 5 December 2017 it finally happened: the Committee of Ministers of the Council of Europe (‘the Committee’) launched for the first time ever in the history of the European Convention of Human Rights (‘ECHR’) infringement proceedings for non-implementation of a judgment of the European Court of Human Rights (‘ECtHR’), namely against Azerbaijan concerning the Mammadov case. While this development has already, and rightly so, been described as “nuclear” and “historic” elsewhere in the blogosphere, it still warrants some further analysis.

Supervision of the execution of judgments of the ECtHR: Infringement proceedings

Under Article 46 § 2 ECHR, it is the Committee that supervises the execution of the judgments of the ECtHR. According to article 46 § 4 ECHR, it may refer to the Court the question whether a given member State has fulfilled its obligation to abide by a judgment in a case to which it is a party. These so-called infringement proceedings were introduced in 2010 under Protocol No° 14 to provide the Committee with a wider range of means of pressure so as to better secure the execution of the Court’s judgments. So far, however, launching such proceedings had remained a mere theoretical possibility. Despite calls from both civil society and scholars, the Committee, a political body made up by diplomats from each member State, had either been unwilling to use this mechanism, or had never attained the necessary two-thirds-majority required for such a court referral.

There certainly is no lack of execution problems in the Strasbourg system, and it seems that in the last years such problems have rather increased than decreased. It suffices to refer to the non-implementation of the 2009 Sejdic and Finci judgment by Bosnia and Herzegovina, the 12-year-long saga around the UK’s prisoner voting case Hirst (which, however, by now seems to have been resolved, albeit maybe not fully), the Russian opposition to judgments from the ECtHR, and Italy’s almost perpetual struggles to reform its judiciary after thousands of ECtHR’s judgments identifying structural problems that go back to the 1990s as only some of the most prominent examples, as well as the non-implementation by Ukraine of the Ivanov pilot judgment leading to the recent dismissal of more than 12.000 applications in the Burmych case. Yet it is only the Mammodov case which has now brought the Committee to take action under article 46 § 2 ECHR.

The Mammadov case

Ilgar Mammadov is an activist and opposition politician from Azerbaijan who was planning to run for president in 2013. He was arrested in early 2013 when he travelled to the Azerbaijani town of Ismayilli to witness ongoing protests, and then blogged about the events. He was charged with causing mass disorder, organisation or active participation in actions causing a breach of public order, as well as with resistance to or violence against public officials, and was sentenced to seven years’ imprisonment. Mr. Mammadov subsequently lodged an application with the ECtHR. The Court decided in May 2014 that the arrest and pre-trial detention of Ilgar Mammadov violated articles 5 § 1 c), 5 § 4, 6 § 2, as well as also article 18 ECHR. More specifically, the Court found that Mr. Mammadov had been arrested and detained without any evidence to reasonably suspect him of having committed a criminal offence, concluding that the actual purpose of his detention had rather been to silence or punish him for criticising the Government. When the Supreme Court of Azerbaijan notwithstanding upheld the prison sentence in November 2016, Mr. Mammadov lodged a second complaint with the ECtHR, claiming several violations in the criminal proceedings against him. Once again, the ECtHR then found that Azerbaijan had violated the Convention and identified shortcomings in the use of evidence against the applicant by the domestic courts (article 6 § 1 ECHR). Despite these two judgments rendered by the ECtHR, Mr. Mammadov still up to this very day remains in prison.

By way of reaction, the Committee has on various occasions called upon the Azerbaijani authorities in four interim resolutions to release him. The latest resolution of October 2017 then served as a ‘last warning’ that the Committee intended to launch infringement proceedings (cf. Interim Resolution CM/ResDH(2017)379, 25 October 2017). Azerbaijan responded with a statement saying that it did pay the just satisfaction the Court had ordered and did not consider the release of Mr. Mammadov to be necessary to abide by the judgment. In December 2017, the Committee then followed through with the threat and decided to refer the case to the Court (Interim Resolution CM/ResDH(2017)429, 5 December 2017), which decision forms the subject-matter of this short comment.

Why now? Why did the Committee decide to take this case to the Court? Compared to Hirst or the 1990’s Italian cases, the three years old judgment Mammadov is still fairly recent. In addition, the judgment only concerns one person in contrast to cases of systemic human rights violations in Russia, Turkey or the many people affected by the discriminatory voting regulations in Bosnia and Herzegovina mentioned above.

Possible explanations

1. Ilgar Mammadov is a popular political figure.

Mr. Mammadov is a well-known opposition leader with a lot of support by both international organizations and by non-governmental human rights organizations. The international community has criticized his arrest as (being solely) politically motivated ever since the very beginning of his incarnation and issued numerous statements of concern. Besides statements by EU officials and the Secretary General of the Council of Europe, it was the European parliament that has passed a resolution condemning Mr. Mammadov’s detention. Organizations such as Amnesty International, Human Rights Watch and PEN, among others, issued press releases demanding Mr. Mammadov’s immediate release. Amnesty International and Human Rights Watch even went so far to specifically ask the Council of Europe to consider infringement proceedings – a step the organizations had never taken before. This wide range of support by significant reputable organizations made it a high profile, singular case. Hence, the members of the Committee had a specific person in mind when discussing the case, and were thus more willing to stand up for Mr. Mammadov than, for example, prisoners in the UK more generally serving regular criminal sentences.

What is more it might have been also the severity of the underlying violations of the Convention, amounting by now to a multiple-year prison sentence, but also involving a violation of article 18 ECHR, that made the Committee more willing to enforce the Court’s judgments.

2. Azerbaijan is an easier State to target than other non-complying member States

What is more is that Western European countries do probably enjoy a higher level of trust regarding their implementation rates, and, besides, have far more lobbying support among the other members of the Committee when it comes to unpleasant resolutions as compared to Azerbaijan. Besides, state representative in the Committee might be hesitant to push critical (and equally non-complying) States like the UK or the Russian Federation further away from accepting the Court’s jurisprudence by launching infringement proceedings against them. Azerbaijan, however, in contrast does not seem to have a comparable importance from the Committee’s perspective, and may neither possess the same degree of leverage vis-à-vis the Committee. Finally, Azerbaijan had already attracted a lot of negative attention within the Council due to a corruption scandal and the Parliamentary Assembly’s continued criticism of Azerbaijan’s lack of an independent judiciary. This weakened position made Azerbaijan generally, and the Mammadov case specifically, an almost obvious choice to launch infringement proceedings. Besides, such infringement proceedings are a ‘softer step’ as compared to applying sanctions such as the suspension of voting rights in the Council of Europe’s Parliamentary Assembly or, as ultima ratio, an expulsion from the Council. At the same time, such proceedings, especially when triggered for the first time ever, still send a very clear und unequivocal political message.

3. Determining Azerbaijan’s non-compliance is not complicated

According to article 46 § 1 ECHR States have to abide by the final judgment of the Court in any case to which they are parties. The ECtHR has clarified in its well-established case law that implementation requires to make reparation for the consequences of the breach in such a way as to restore, as far as possible, the situation existing before the breach, (restitutio in integrum, cf. e.g. Papamichalopoulos v. Greece, § 34). This entails – depending on the case – individual measures, general measures and/or payment of just satisfaction. In Mammadov, the Court had already concluded that the charges against the applicant were unfounded, and that the criminal proceedings brought against him had been unfair. The only way to remedy Mr. Mammadov’s individual situation is thus to release him from prison. Since he has not been released yet, the Court’s judgment is obviously not (yet) fully implemented. By comparison, a legal evaluation how to fully remedy a case concerning systemic human rights violations would, by far, be more complicated for both the Committee making a request under article 46 § 2 ECHR, and then eventually the Court.

What happens next?

This being the first attempt of infringement proceedings, human rights scholars will be excited to see how the ECtHR will handle the situation, how long a decision will take, what procedure the Court will follow, and what the ultimate decision will look like. The relevant articles of the ECHR do not include procedural rules.

Still, it is important to remember that these proceedings – as embarrassing as they are from a diplomatic standpoint – do not entail any kind of legal sanction. Provided the Court finds that Azerbaijan has not abided by the judgment, it “shall refer the case [back] to the Committee for consideration of the measures to be taken” (article 46 § 5). Then, the Committee could only put the case back on its own agenda. When negotiating and drafting Protocol° 14, member States had considered that “the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned”. We will see if this perception proves to be right – and one cannot but hope that it does.

Still, the Committee has now opened the door for infringement proceedings. It will be interesting to see if, and in what kind of situations, the Committee will make use of infringement proceedings again, and how this development might change the supervision process in the future – and how the Committee of Ministers en tant que tel, as well as individual contracting parties of the ECHR will react should the Court find a lack of implementation, and should Azerbaijan then still not free Mr. Mammadov.

Announcements: Associate Professor Oxford; CfP Ensuring and Balancing the Rights of Defendants and Victims; UN Audiovisual Library of International Law; Third World Approaches to International Law; CfP Postgraduate ADR Conference 2018; CfP Human Rights...

EJIL:Talk! - Sun, 02/04/2018 - 10:00

1. The Faculty of Law, University of Oxford and St Peter’s College, Oxford seeks to appoint an Associate Professor of Public International Law with effect from the start of the academic year 2018-19. Associate Professor is the main academic career grade at Oxford with a focus on research and teaching, spanning the full range of professor grades in the USA. Associate Professors are appointed jointly by a University department/faculty and an Oxford college, and you will have a contract with both. In exceptional cases, the title of full Professor may be awarded on appointment. The post holder will contribute to public international law teaching and research in the Faculty and, as a Tutorial Fellow of St Peter’s College, will teach tutorials in at least one of the following undergraduate subjects: Criminal Law, Constitutional Law, Administrative Law, Jurisprudence. Applicants should have a doctorate or its equivalent in Law; and should demonstrate scholarship of the highest quality; the ability to teach and assess students in Public International Law and in at least one of the subjects required by St Peter’s College; a willingness to undertake pastoral responsibilities for both undergraduate and graduate students; and excellent interpersonal skills. The full announcement and further particulars are available here.

2. Call for Papers: Ensuring and Balancing the Rights of Defendants and Victims at International and Hybrid Criminal Courts. Pluricourts, University of Oslo has issued a call for papers for this conference to be held in Oslo on 30 and 31 August. The call is available here. The deadline for abstracts is 19 March.

3. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Mr. Ross Leckow on “The Legal Structure, Purposes and Functions of the International Monetary Fund” and Professor Mia Swart on “The Relationship between the African Union and the International Criminal Court”.

4. Third World Approaches to International Law. The Faculty of Law at the National University of Singapore will be hosting a conference on Third World Approaches to International Law (TWAIL Singapore) from July 19 – 21 2018. Further details about this event and how to participate may be found here.

5. Call for Papers: Leicester Law School – Postgraduate ADR Conference 2018: ‘Looking to the Future and Beyond: New Approaches to ADR’. It is our pleasure to announce the first Leicester Law School–Postgraduate ADR Conference, which will take place in Leicester on 10 May 2018, in collaboration with the Transnational Dispute Management network. We invite doctoral and early career researches from all legal and interdisciplinary fields. The deadline for abstracts is 28 February 2018. Keynote Speech: Dr John Sorabji (UCL). For further information please see the fuller call.

6. Call for Papers: Human Rights Inside and Outside – Civil Participation, Contested Constitutionalism, and Corporate Responsibility. The INFAR research program at Erasmus School of Law and the International Institute of Social Studies invites paper submissions for an international conference to be held in The Hague, The Netherlands, 31 May – 1 June 2018. This conference builds on the core idea of the INFAR (Integrating Normative and Functional Approaches to the Rule of Law and Human Rights) project, and applies this to human rights discourse and practices. Human rights are a core normative idea for law, but need to be used in practice by various actors in order to function. What happens when that is done? More particularly, what side effects does the use of human rights by various actors have for human rights as a normative proposition within law and politics? Paper abstracts are due by 31 March 2018, and should be sent to dr. Nathanael Ali, Email: ali(at)law.eur.nl For further details please see the call for papers.

United in Mixity? The Future of the EU Common Commercial Policy in light of the CJEU’s recent case law

EJIL:Talk! - Fri, 02/02/2018 - 09:00

The post-Lisbon Common Commercial Policy in the field of foreign investment policy

The Lisbon Treaty for the first time expressly attributed exclusive competence to the EU in the area of foreign investment by adding foreign direct investment (FDI) to the scope of the Common Commercial Policy (CCP). The European Commission took not long to put these newly-won competences into use by designing its new European international investment policy. This new investment policy revealed the Commission’s broad interpretation of the competences conferred by the Lisbon Treaty. According to the Commission, the EU’s new common international investment policy should address both direct investment – i.e. investment made “with a view to establishing or maintaining lasting economic links” – and indirect investment, namely all those transactions involving debt or equity securities that do not establish a lasting economic link. Moreover, the common investment policy, as envisaged by the Commission, should cover both the pre-establishment and post-establishment phase.

The EU-Singapore FTA (EUSFTA) was the first trade agreement to rely on the EU’s competence in the field of common commercial policy as expanded post-Lisbon. This agreement embraces a wide range of fields, including trade in goods and services, government procurement, intellectual property rights, and investment liberalization and protection. All too predictably, the composite content of the agreement and, particularly, the inclusion of a chapter specifically dealing with investment protection and investment dispute settlement soon prompted the question of whether the EU’s new exclusive competence could be interpreted as encompassing both direct and indirect investment as well as investor-State dispute settlement mechanism (ISDS). Needless to say, the answer to this question has important practical implications. If the above policy fields and all other matters contained in the FTA were to fall within the scope of exclusive competence of the EU, then such agreements can be concluded as “EU-only” agreements. If these competences are shared, the agreement can be concluded either by the EU alone or as a mixed agreement, namely a treaty to which both the Member States and the Union are parties. Commentators usually distinguish this type of mixity (facultative mixity) from compulsory mixity, which applies when the agreement in question covers both matters falling within the exclusive competence of the European Union and matters falling within the exclusive competence of the Member States.

Opinion 2/15 – The end of facultative mixity?

To clarify the above questions, the Commission submitted a request for an opinion to the CJEU under Article 218 TFEU. In the subsequent Opinion 2/15, issued on 16 May 2017, the Court found that the Union has exclusive competence only with respect to direct investment. According to the Court, Article 207 TFEU could not be construed as conferring on the Union exclusive external competence in the field of indirect investment. Nor can it be drawn from Article 3(2) TFEU whereby the Union acquires exclusive competence when “is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope”. In the Court’s view, none of the latter conditions had been fulfilled in the instant case. Notably, it rejected the Commission’s contention that ‘common rules’, as stated in Art. 3(2) TFEU, refers to secondary as well as primary law and, in particular, encompasses Article 63 of the TFEU.

However, the Court held that the exercise of the Union’s external competence is warranted, pursuant to Article 216 TFEU, by the need to achieve one of the objectives set out in the treaties. Despite the palpable similarities with Article 3(2) TFEU, this provision should be understood as constituting the legal basis for implied EU powers that are not necessarily exclusive. The Court read that this provision in conjunction with the rules governing a shared competence matter, namely the free movement of persons, services and capital. Notably, Article 63 TFEU prohibits all barriers to the free circulation of capital and payments between Member States and between Member States and third countries. This provision undoubtedly covers both direct and indirect investment and is the only EU fundamental freedom aiming to produce its effects also outside the EU Single Market. But since TFEU provisions cannot bind non-EU Members, the external liberalization of capital movements requires the conclusion of international agreements with third countries, such as the EUSFTA.

Turning to the investor-State dispute settlement mechanism, the Court observed that the EUSFTA confers on investors from Singapore the power to bring a claim not only against the EU but also against the Member States. As a result, the agreement removes disputes from the jurisdiction of the Member States. Therefore, the Union and the Member States must enjoy shared competence with respect to the establishment of the investor-State dispute settlement mechanism.

In light of the shared nature of the competence over such matters, the Court concluded that the EUSFTA cannot be concluded by the Union alone. This finding is particularly striking for it seems to overlook the abovementioned dichotomy between ‘compulsory’ and ‘facultative’ mixity. The consequence of this approach is twofold. At one level, it increases the number of cases in which the Union and the Member States have to go through the lengthy and complex mixed agreements procedure. At another, and more theoretical, level, this approach flies in the face of the very essence of the notion of shared competence, which is rightly understood as an ‘either or’ competence rather than a ‘joint’ competence.

Having said that, one should not overrate the implications of Opinion 2/15. In the recent decision Germany v. Council (OTIF) (C-600/14), issued on 5 December 2017, the Court was requested to assess whether a decision of the Council determining the position of the Union vis-à-vis a number of proposed amendments of the Convention concerning international carriage by rail (COTIF) exceeded the Union’s competences. In deciding this case, the Court arguably seized the chance to nuance some of the most salient findings of the above-mentioned opinion. In particular, it implicitly revived the notion of ‘facultative mixity’, which had been seemingly buried by Opinion 2/15. The Court clarified that the position taken in that particular case was justified by the fact that the Council made clear during the proceedings leading up to Opinion 2/15 that a ‘EU-only’ agreement would not have obtained sufficient support from Member States. This finding sheds some important light on the rather cursory reasoning of the Court in Opinion 2/15. The revival of ‘facultative mixity’ shows even more clearly that the EUSFTA and the EU trade agreements more generally constitute an exception in the context of the EU external action. These agreements have sparked so much disagreement and criticism that the Union has de facto no choice. Although they could be ratified by way of both the ‘EU only’ agreements procedure and the ‘mixed agreements’ procedure, the latter, as was shown by the ratification of CETA, is the only politically viable option at the moment.

Which way forward? – The implications of the CJEU’s case law on the future architecture of EU FTAs

In conclusion, the CJEU in both Opinion 2/15 and Germany v. Council (OTIF) (C-600/14) conveyed a clear message: ‘Facultative mixity’ is alive and well. Yet, it is unlikely to be of any use in the domain of trade and investment policy. It follows that, in retrospect, the innovations brought by the Treaty of Lisbon are far less important than expected (and hoped for) by the Commission and some commentators. Like it or not, the complete transferal on the Union of competences in the field of international investment policy is neither warranted by the text of the EU Treaties, nor is it politically sustainable at the moment. The flipside of this approach is that the development of a comprehensive external trade policy becomes more difficult. The CETA shows that the road to ratification of comprehensive agreement is generally long and bumpy. As of today, only six Member States have ratified CETA. Moreover, Wallonia’s opposition to this treaty is unlikely to remain an isolated episode. One cannot rule out that future EU trade agreements would get stuck in the quagmire of national ratification processes.

Against this backdrop, the Commission reportedly proposed a model for the fast track ratification of trade deals that should be applied for the first time to the new trade agreements with Australia and New Zealand. A leaked document that Trade Commissioner Malmström allegedly circulated among EU ambassadors revealed how such a fast track ratification could be realized: The idea is to split future agreements into an ‘EU FTA’ and ‘EU BIT’. The FTA will regulate all trade matters as well as the liberalization of FDI (including pre- and post-establishment national treatment, post-establishment most-favored-nation treatment, performance requirements). A separate BIT will contain provisions on the protection of direct and indirect investment (including standards of investment protection, such as fair and equitable treatment, expropriation, post-establishment national treatment and most-favored-nation treatment, performance requirements) and the ICS/ISDS. According to the leaked document, the BIT could also contain provisions on the Multilateral Investment Court, once it is established. This approach seems to be implicit in or at least compatible with the latest trade and investment package of the Commission ‘A balanced and progressive trade policy to harness globalisation’, where it is recommended that negotiations for trade agreements with Australia and New Zealand should only encompass subjects over which the EU has exclusive competence. According to the Commission, this will allow the EU to “mov[e] forward quickly”, which will “strengthen[…] the EU’s trading position in the world”. In this respect, the Commission adds that the decision to exclude investment protection and ISDS from the talks is justified by the fact that debate with the European Parliament and Council on the best future architecture for EU trade agreements and investment protection agreements is still ongoing.

Similarly, the EU-Japan FTA does not include measures on investment protection and ISDS. In fact, the investment provisions in the EU-Japan FTA, contained in Section B of Chapter 8, are limited to investment liberalisation issues, such as the protection against non-discrimination. According to the Commission, the parties are in the process of also negotiating investment protection standards and investment protection dispute resolution. The result of these ongoing negotiations will probably feature in a separate international investment agreement.

By adopting this ‘double-track’ solution, the Union trades speed for solidity. The implementation of its International Investment Policy will probably take longer than expected and it will be more exposed to national political turbulences. That being said, it would be wrong to assume that the ‘double-track’ solution would clear the way once and for all. The challenge of compatibility with the EU legal order – which the Court has eluded in Opinion 2/15 – and the national legal systems lurk around the corner. The positive decision of the French Conseil Constitutionnel should, by no means, tempt us to think that other courts will rule likewise. A crucial word on EU International Investment Policy will be said in the decision of Opinion 1/17, where the Court will be requested to decide a legal question stemming from a purely political conflict between, on the one hand, the Belgian province of Wallonia, and, on the other hand, the Belgian Federal Government and the Commission. Whatever the outcome will be, it is already possible to draw an important conclusion. The trajectory of the Union’s competence over foreign investment illustrates that closer integration comes at a (political) price. Contrary to what happened in other fields (notably economic and monetary policy), the Court seems more reluctant to endorse the ‘unionification’ of competences. This result is not close to Commission’s initial plans, but it is the only one compatible with the complexity of the European construction.

The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

EJIL:Talk! - Tue, 01/30/2018 - 09:00

Operation Olive Branch

On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.

Non-state armed attacks?

First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). In Congo v. Uganda the ICJ explicitly refrained from deciding it but implied that − if at all – self-defence was available only against “large scale attacks” of a non-state armed group (ICJ Congo v. Uganda 2005, para. 147).

Interestingly, Turkey in its letter does not even use the term “armed attack” which is required by Article 51, but relies on the “threat of terrorism” and the lack of control by Syria in the Afrin region. This is reminiscent of the German explanation of its military contribution to the collective self-defence of Iraq and France in its 2015 letter to the Security Council: “ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control.” (UN Doc. S/2015/946). It may also be recalled that Turkey, in 2015, was one of only four states which relied on the unable or unwilling-doctrine to justify strikes against IS in Syria: “It is apparent that the regime in Syria is neither capable of nor willing to prevent these threats emanating from its territory, which clearly imperil the security of Turkey and the safety of its nationals.” (UN Doc. S/2015/563). To conclude, Turkey seems to imply that either non-state armed attacks by YPG would be sufficient to trigger self-defence directly, or that the lack of Syrian control, its inability to prevent rocket strikes and fire by YPG across the Turkish border, are sufficient to justify Turkey’s use of force which inevitably also affects Syrian territorial integrity and sovereignty.

Threshold of gravity

Second, another condition of lawful self-defence seems not to be fulfilled. In order to qualify as an armed attack in terms of Art. 51 UN Charter, the asserted attacks would have needed to surpass a threshold of gravity in scale and effect.

In the 1986 Nicaragua judgment, the ICJ distinguished between ‘the most grave forms of the use of force’ and ‘other less grave forms’ of the use of force (ICJ, Nicaragua 1986, para. 191).

According to the Court, only the most grave forms constitute an armed attack apt to trigger self-defence. The famous Nicaragua gap has the legal consequence that “less grave forms” of military force − although violative of Art. 2(4) UN Charter − will not be answerable by lawful self-defence. Whether one believes that the Nicaragua gap is helpful to serve the policy objective of preventing escalation of military violence or not, the gap still seems to be good law.

The point where the threshold of an armed attack is reached cannot be measured with mathematical precision. More than 3.000 deaths as in the 9/11 attacks surely count as equivalent to an inter-state military armed attack. And maybe also more than one hundred victims as in the Paris attacks by IS in November 2015 are big enough in scale and effect. In any case, the burden of substantiation and of proof for the alleged armed attack falls on the state which claims self-defence (ICJ, Armed Activities in the Territory of the Congo (2005), para. 146).

According to international news reports, Turkey has not substantiated its allegation. Indeed, there was rocket fire causing some casualties from Afrin across the border, but the strikes seem to have occurred after the Turkish invasion. It therefore seems that (whichever position we espouse in the controversy about non-state authors), an armed attack which would be apt to trigger self-defence, has not been shown. The further requirements of necessity and proportionality also do not seem to be met, especially not in the event of an extension of the operation to further regions, as the Turkish President already announced.

Finally, no other justification of the use of force is in sight, notably no invitation by the Syrian government. To the contrary, Syria protested against the strikes (Hazem Sabbagh, Syria strongly condemns Turkish aggression on Afrin, Syrian Arab News Agency, 20 January 2018). This official statement would have to be taken at face value. Any possible secret arrangement and tacit approval by Syria could not count as valid consent under international law. To conclude − on the basis of the facts known to me − we here face a rather obvious violation of international law.

Silence

All the more troublesome is the general silence with which this unlawful act is greeted. The Kurds had, according to newspaper reports, already before the 20th January, when the Turkish offensive became imminent, asked the international community for help (Neue Zürcher Zeitung of 19 January 2018). But not even verbal support came forward. Most states reacted in a non-committal. The United States said they were “very concerned” (USA, Press statement, The Situation in Northwest Syria, Heather Nauert, Department Spokesperson, 21 January 2018).

The German foreign ministry saw the events unfold “with concern” (Press release of 21 January 2018). France, calls on the Turkish authorities to act with restraint” (Press statement, Telephone conversation between Jean-Yves Le Drianand his Turkish counterpart, Mr Mevlüt Çavuşoğlu, 21 January 2018). One state which found clear words is Egypt which considered the Turkish strikes “as a new violation of Syria’s sovereignty”. Neither the UN Security Council (special session of 22 January 2018), nor NATO, nor the OSCE issued an official statement.

The reasons for silence might be manifold: Geostrategic concern for shielding Turkey as the Eastern flank of NATO; reliance on Turkey in the fight against IS; the fear of losing voters with Turkish ethnic background in Western European states; economic interests in arms exportation to Turkey; or the desire to do or to continue doing basically the same as Turkey is doing right now.

Repercussions for the international legal order

But this silence will have repercussions on the international legal order. As mentioned above, neither the UN Security Council nor any other international organisation nor powerful states have clearly denounced the Operation Olive Branch as what it is: As a blatant violation of a fundamental principle of international law. In terms of fairness, this is all the more deplorable as the victims are Kurdish populations which have in the course of the last decades often been left standing in the rain during the armed conflicts of the region.

As a matter of legal policy, we need to concede that the law of self-defence should respond to novel threats and accommodate legitimate security interests of states and their populations. In technical terms, an expansive interpretation of the Article 51 UN Charter, whose wording is open, would be possible. Arguably, what matters from the perspective of the victim is the gravity of the attack and not the attacker. It therefore seems legally possible and also appropriate to modify the traditional attribution criteria (which have been developed for purposes of state responsibility) for identifying an armed attack. This is also the course which state practice seems to take. However, doing away with any link to the state from which the attack originates (in our case Syria) might go too far. First, such a legal construct can hardly well explain the inroads into the territorial sovereignty of an “innocent state”. (I am not saying here that Syria is an innocent state).

Second, and most importantly, opening the door of Art. 51 UN Charter to “the threat of terrorism”, as the Turkish letter has it, carries a huge potential for escalation of violence and for abusive invocations of self-defence. This has been highlighted as recently as 2016 (in cognisance of the Anti IS operations in Iraq and Syria) by the nonaligned states which “reject[ed] actions and measures, the use or threat of use of force in particular by armed forces, which violate the UN Charter and international law (…) under the pretext of combating terrorism” (Final Document of the 17th Summit of Heads of State and Government of the Non-Aligned Movement, 17-18 September 2016, para. 258.34).

The Turkish offensive against Afrin is an example for an aberrant invocation of the inherent right to self-defence. Not protesting against this false legal assertion might in the future fall back on the feet of those states which now fail to denounce the violation of international law and prefer to shut up. It is a silence which will facilitate them falling victim to unlawful trans-border violence at some point, too.

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