Saturday, December 13, 2008
In connection with yesterday's briefing, the Security Council unanimously adopted Resolution 1849, which temporarily expands the number of ad litem judges at the ICTY to a maximum of sixteen at any one time.
Friday, December 12, 2008
A number of incidents have of late brought attention on the problem of the standards to be followed by the prosecutors of international criminal tribunals. Ethical standards of the profession and ways to make prosecutors accountable seem essential to safeguard the legitimacy of international criminal justice. Domestically, prosecutors' work is often quite strictly bound within certain limits, but internationally it has taken longer for appropriate standards to emerge, and arguably even longer for them to be implemented. This working paper looks at how deontological norms apply to international prosecutors and what it means to describe them as "accountable". Accountability can be defined by reference to narrow professional standards, or broad political objectives, the two being potentially it tension. The paper charts the emergence of the issue as a significant one in the evolution of international criminal tribunals. The need for accountability of prosecutors is then justified from a normative point of view. It distinguishes between different "regulatory models" of accountability, and highlights the sources of ethical standards, to whom exactly they apply and how. Attention is drawn to a number of principles that are presented as particularly relevant such as independence and impartiality; fairness, integrity, propriety, and good faith; professionalism and competence; diligence and expeditiousness; and transparency. The challenge is to make prosecutors accountable in a way that is commensurate with the degree of their fault, and not risk unduly encroaching on their independence. This is achieved by making sure that the responsibilities for enforcing accountability are properly allocated, and by developing mechanisms that are adequate to the task. These can include requiring prosecutors to report on their work, or submitting it to a degree of judicial supervision leading, for example, to the award of remedies to those (typically the accused) who have suffered from prosecutorial wrongdoing. In exceptional circumstances, disciplinary proceedings up to removal may be the only option to guarantee the integrity of international criminal justice, possibly leading to reparations to victims of prosecutorial abuses.
- A. Diehl & K. Herzmann, Possibilités de couvre-feux en Allemagne
- A. Foko, Le droit OHADA et les droits nationaux des États parties: une complémentarité vieille de plus d’une décennie
- J. Fometeu, Le clair-obscur de la répartition des compétences entre la Cour commune de justice et d’arbitrage de l’OHADA et les juridictions nationales de cassation
- F.M. Palombino, L’efficacité des arrêts de la Cour européenne des droits de l’homme dans le cadre des procédures nationales
- Martin Schmidt-Kessel & Linus Meyer, Allgemeine Geschäftsbedingungen und UN-Kaufrecht
Thursday, December 11, 2008
Satterthwaite: The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror'
Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States to countries such as Egypt, Syria, and Morocco, where torture is systematic. Slowly, information also emerged concerning the American use of secret "black sites" to hold suspected al-Qaeda leaders and their allies. While never denying that these practices were being used, U.S. government officials repeatedly offered a single justification for departing from both human rights protections and prisoner of war rules when apprehending such individuals: the United States was involved in a new, unprecedented type of war. The case of Khaled El-Masri brings these issues before a U.S court. In an apparent case of mistaken identity, a German man of Lebanese descent was abducted while on vacation in Macedonia, transferred to a secret U.S.-controlled prison in Afghanistan, and subjected to cruel, inhuman and degrading treatment over the course of five months. Released when then-National Security Advisor Condoleezza Rice discovered that he was being held by mistake, a stunned El-Masri made his way back to Germany. In December 2005, the ACLU filed suit on his behalf, alleging violations of due process under the Fifth Amendment of the U.S. Constitution, and human rights claims based on numerous human rights and humanitarian law treaties which are cognizable under the Alien Tort Statute. This Chapter, which appears in Human Rights Advocacy Stories, tells the story of the El Masri case from its inception to dismissal, and from U.S. court to the Inter-American Commission on Human Rights.
- Peter Mankowski, Die Rom I-Verordnung – Änderungen im europäischen IPR für Schuldverträge
- Ben Steinbrück, Die Vollstreckbarkeit ausländischer Schiedssprüchenach ihrer Aufhebung im Ursprungsstaat - Anmerkung zum Beschluss des OLG Dresden v. 31.1.2007 - 11 Sch 18/05
- Johannes Trappe, Überseekaufvertrag und "maritime terms" - rechtsvergleichende Bemerkungen
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, and then shift the full burden of proof to the respondent. Neither of these results would be justified. An important task of future AB decisions should be to clarify the existing ambiguity and to develop a more conceptually sound use of burden of proof terminology. The essay argues that the AB should abandon its current terminology (prima facie case, presumption, and burden shifting) and should simply state that the complaining Member bears the burden of proof on its basic claim and that this burden-meaning essentially the burden of persuasion-does not shift during the course of the proceeding. The reverse would hold for the responding Member's defenses.
Wednesday, December 10, 2008
Taking states as they are (at their best), what shape ought the international order to have? In particular what shape ought it to have if the guiding value is not as austere as non-intervention among states and not as rich as cosmopolitan justice: if it is the value of freedom as non-domination? The paper seeks to outline the requirements that this value would have in the international context.
[The decision to create the blog] is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g. the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.
And yet, there is, we think, an EJIL sensibility - with, say, its panache for the theoretical article, for bringing in aggressively younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to and interest in history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European - we take comfort in that debate . . .) If our new blog EJIL:Talk! is successful, it will enable us to effect a further change in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident' or ‘decision of a Tribunal' with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value - that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note - we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.
Along with discussions of global governance, global administrative law, and fragmentation, international legal scholars and other social scientists have increasingly engaged in debates over the causes and effects of global constitutionalization. These debates often suffer from imprecise and disparate definitions of the phenomena addressed, substitution of normative advocacy for scholarship, and analysis that is bounded within a particular type of international law or international legal structure. Ruling the World: Constitutionalism, International Law and Global Governance (Cambridge University Press 2009) reflects a three-year project that brought 12 leading scholars together to erect a comprehensive and integrated framework for understanding global constitutionalization. In this paper, we set the stage for this project, establishing a coherent framework for analysis of global constitutionalization. We argue that global constitutionalization has three functions: (i) enabling the production of international law, (ii) constraining the production of international law, and (iii) supplementing domestic constitutionalization in order to respond to globalization. We explain how each of these functions is carried out in constitutional mechanisms, such as allocation of legislative authority, supremacy, stability, fundamental rights, judicial review, and accountability. As we do so, we contextualize and taxonomize some of the most important developments that have led to the current fascination with global constitutionalization. This functional approach to global constitutionalization provides a set of conceptual and analytical tools that can be used to identify and evaluate constitutional developments in various international domains. After outlining this approach, we provide a "constitutional matrix" that identifies which constitutional functions and mechanisms are found in various international legal regimes, including the UN, the EU, the WTO, and the human rights regime. This constitutional matrix provides a tool for comparison and analysis of different constitutional settlements. We conclude with some brief observations regarding constitutional pluralism, constitutional coordination, and constitutional synthesis.
Tuesday, December 9, 2008
The Department of Law, a world-leading centre for research and teaching in legal studies and interdisciplinary approaches to law, seeks to appoint a new Professor of International Law, to fill the vacancy left by Professor Christopher Greenwood’s appointment to the International Court of Justice.
Applicants should have an outstanding international research reputation in public international law. The postholder will participate in teaching at undergraduate and postgraduate level and, in particular, contribute to the development of innovative postgraduate courses. In addition to research leadership, the successful applicant will be expected to take on administrative responsibilities in the Department and the School. This appointment will be from 1 September 2009, or as soon as possible thereafter.
Please see the instructions of how to apply, the notes for applicants, the further particulars and the personal details form. If you cannot download the application pack, email HR.Recruit.Prof@lse.ac.uk or call 020 7955 6183, quoting reference 07/08/SA.
Closing Date for applications: 16 January 2009.
The section Public International Law is responsible for teaching in the Bachelors Programme of Law, the LL.M. Programme in Public International Law and the advanced LL.M. Programme in Public International Law with specializations in International Criminal Law and Peace Justice and Development. Apart from the Bachelors Programme, all lectures and seminars are in English and partly take place in the Grotius Centre for International Legal Studies at Campus The Hague.
Research within the Section Public International Law is part of the Research Programme ‘Securing the Rule of Law in a world of Multilevel Jurisdiction: coherence, institutional principles and fundamental rights’. The section’s focus is on International Criminal Law, International Humanitarian Law and International Dispute Settlement, United Nations Law, International Organizations, Peace and Security and Sustainable Development. Within the section Public International Law there is a vacancy for:
Lecturer in Public International Law (vacancy number 8-228)
- PhD-degree in Public International Law and solid research record through publications in (international) law journals;
- Generalist in the field of Public International Law.
- Wide experience in and affinity with lecturing and the co-ordination of the teaching
- Excellent teaching skills, as shown by teaching evaluations
- Excellent knowledge of the English and Dutch language. Non-Dutch speaking candidates should be prepared to acquire a good passive knowledge of the Dutch language.
- (Co-ordination of) Teaching within the Section of Public International Law;
- To conduct individual research in the field of Public International Law and to publish the result of this research;
- Participation in managerial and organisational tasks within the Section and the Faculty.
Candidates will be appointed as Lecturer in Public International Law initially for one year with the possibility of a permanent contract; salary will be dependent on the experience of the candidate and in accordance with scale 11 or 12 of the Collective Agreement of Dutch Universities.
Information with respect to conditions of employment of the University can be found on www.leidenuniv.nl/ecm/po.
For other information and enquiries, please contact Prof. N.J. Schrijver (phone secretariat: +31 71 527 7578, e-mail: email@example.com) or Dr. L.J. van den Herik (phone secretariat: +31 71 527 7578, e-mail: firstname.lastname@example.org).
Applications with CV and list of publications, with reference to the vacancy number as indicated above, should be sent within two weeks after the publication of this vacancy to:
Leiden University, Public International Law, Attn. Dr. L.J. van den Herik, PO Box 9520, NL 2300 RA Leiden, The Netherlands.
The deadline for applications is January 1, 2009.
Monday, December 8, 2008
- Michael Wood, The Law on the Use of Force: Current Challenges
- Steve Charnovitz, A New WTO Paradigm for Trade and the Environment
- Henry Gao, China's Participation in the WTO: A Lawyer's Perspective
- Hannes Herbert Hofmeister, When Is It Right to Attack So-Called 'Host States'? An Analysis of the Necessary Nexus Between Terrorists and Their Host States
- Zou Keyuan, South China Sea Studies in China: Achievements, Constraints and Prospects
- Bimal N. Patel, Recommendations on the Enhancement of the Role and Effectiveness of the International Court of Justice and State Practice: The Gap Between Recommendation and Practice (1971-2006)
Sunday, December 7, 2008
- Don Peters, Can We Talk? Overcoming Barriers to Mediating Private Transborder Commercial Disputes in the Americas
- Sabrina Safrin, The Un-Exceptionalism of U.S. Exceptionalism
- Mohamed Y. Mattar, Comparative Models of Reporting Mechanisms on the Status of Trafficking in Human Beings
- Arne F. Soldwedel, Testing Japan's Convictions: The Lay Judge System and the Rights of Criminal Defendants