European Journal of International Law

The WTO Secretariat’s ‘Open Secret’: Unpacking the Controversy

Over the past two years, we have had the opportunity to present the findings from our EJIL article, ‘WTO Rulings and the Veil of Anonymity’, to a number of audiences spanning fields from international law to political science and quantitative methods. Though the article makes a number of claims about transparency in judicial settings, the design of trade rules, and the anonymity of dissenting opinions, the one finding that has invariably attracted most attention has been our use of text-as-data methods to show that the permanent staff of the WTO Secretariat have more influence over the final text of WTO rulings than the adjudicators themselves.

This finding has met with two quite different responses. Initially, the reaction was disbelief: how could adjudicators—over whose appointments litigant governments argue vehemently, and most often fail to agree on—have so little influence over the actual text of rulings which feature their signature? These incredulous readers pushed us to ensure that our findings were not due to some artifact of the data, a confounding variable that correlates with dispute type, citation practices, or the manner in which panelists or Secretariat staff are appointed to specific cases.

Once we accounted for these possibilities, by controlling for a battery of dispute characteristics, running a series of placebo tests, and obtaining the same result using two entirely different text analysis approaches, we were met with a very different response. This one came from Geneva insiders, familiar with the inner workings of the WTO system, who conceded that while Secretariat staff do in fact draft WTO rulings just as our findings suggest, there is, after all, nothing remarkable about this. In many tribunals, various court assistants are involved in writing the first draft of rulings. Moreover, given the Secretariat staff’s professionalism and expertise, this is all to the good. There is nothing untoward about Secretariat staff being the ones technically wielding the pen, so long as adjudicators retain final say over the ruling and its reasoning.

In his Reply to our findings, Armin Steinbach manages to embody both of these views, which offers us a welcome opportunity to respond to them in turn. As a legal scholar and former WTO panelist, Steinbach has an inside view of the system, from which he responds to our findings with three points: (i) the first is that our approach does not actually capture “legal authorship:” while our methods pick up who holds the pen, they cannot say who wields control over what he varyingly calls the “intellectual authority,” “intellectual input”, “intellectual substance”, or “substantial content” of rulings. (ii) Steinbach then argues that our findings are actually “not surprising” given the expertise of Secretariat staff. Since they are “apt in legal drafting and master the presentation of legal arguments”, “leaving the final drafting [to the Secretariat] is then a matter of sensible workload sharing.” (iii) Steinbach concludes by arguing that the Secretariat’s influence is thus normatively unproblematic: by enforcing consistency across rulings, it does not take away any power from Member-States over the adjudication process.

In response, we offer two points of our own. First, while “not surprising” to insiders, the Secretariat’s influence remains a closely guarded “open secret”, and one that has become more closely guarded with time. This results in an odd disjoint: the Secretariat’s expansive role is at once unsurprising and something that is best not talked about. This may be because—while tribunal assistants do play important roles in a number of courts—the WTO is actually unique among state-to-state tribunals in the sheer scope of that influence. Imagine if clerks at the US Supreme Court were the ones appointing the justices, controlling their remuneration, and providing them with their starting arguments and questions for the parties before the justices ever met to discuss a case. These are all functions the WTO Secretariat has come to wield.

Secondly, Steinbach and others cling to a specious distinction between “style” and “substance”. They claim there is no issue with staff drafting rulings, so long as adjudicators retain “intellectual control” over the ruling’s “intellectual substance”. Writing, by contrast, is presumably carried off with no recourse to the intellect. In the case of the WTO, we suggest, the distinction between “style vs substance” is especially illusory, and we outline some of the reasons why.

As we insist in our conclusion, however, this does not lead us to take a normative stance either for or against a powerful Secretariat. Yet as we argue in a related article in the AJIL, full recognition of the Secretariat’s current influence over dispute settlement proceedings should lead us to recast the system in a new light, and view WTO rulings as more akin to technocratic outcomes than judicial ones. 

An Open Secret

As its title suggests, our EJIL article is primarily concerned with transparency in judicial settings. In many ways, we are interested precisely in the gap between the two reactions to our findings: the space between disbelief and knowing shrugs. Our main argument, which Steinbach does not mention, is that the WTO Secretariat’s role, such as it is, remains hidden from view, and that this opacity exists by design: it serves to strike a delicate balance between judicial autonomy and political control. A powerful but unseen Secretariat allows Member-States to continue to rely on ad hoc adjudicators picked mostly from the ranks of trade officials, rather than professionalized judges, who might be insufficiently deferential to government interests.

That the full role of the Secretariat remains hidden is an essential part of this compromise, one that offers the appearance of a strictly judicial process, while retaining considerable political deference to state interests, all the while ensuring that egregious mistakes of law, such as occurred before the creation of appointment of Secretariat staff to disputes in the 1980s, would not occur.  The result has been described as an “open secret”: a fact known by a closed group, but not talked about openly. As Tommaso Soave quipped in the excellent collected volume, Legitimacy of Unseen Actors in International Adjudication, edited by Freya Baetens, the WTO Secretariat is akin to Area 51, the military base whose existence the US government does not officially acknowledge.

This is how the Secretariat itself undoubtedly prefers it. While most aspects of the WTO have grown increasingly transparent over the last two decades, the role of its Secretariat has actually become more opaque: the names of Secretariat staff assigned to specific panels used to be made public; this practice ceased sometime after the first decade of the WTO. It will come as no surprise that when we asked the WTO for information about what staff were assigned to the remainder of WTO panels, our request was politely declined. And although the Secretariat of the Appellate Body performs a similar role to that of panel staff (Steinbach is right when writing that “there is no reason to believe that the WTO AB division would be less influential, less competent, or composed of less experienced lawyers than their colleagues from the Legal and Rules division”), the names of Appellate Body staff working on a specific appeal have never been disclosed.

A handful of legal scholars did draw attention to this opaque role and its implications. Weiler referred to “schizophrenia in the self-understanding of the Secretariat” back in 2001. As he elaborated:

“the relationship between Panels and legal secretary is not only skewed in terms of command of the law but is, overall, neither transparent nor healthy for a judicial system. Organically, the legal secretary reports to his or her supervisor. Their de facto primary loyalty is normally not to the ‘judges’ at whose service they are working.”

Thus, while insiders like Weiler have long provided anecdotal reason to suspect the Secretariat’s degree of influence, no one had offered empirical evidence of it. This is what we do in our EJIL article.

There is something incongruous in the claim that “it is not surprising” to find Secretariat staff exerting greater influence over the texts of rulings than the adjudicators themselves, while simultaneously insisting that it would be better if the fact were not too widely known. This, however, is likely to change. As growing attention is paid to the “unseen actors” in international organizations, perhaps no other setting is likely to be as affected as the WTO. The current equilibrium is likely to prove unsustainable, relying as it does on a powerful but hidden Secretariat. In our companion article in the AJIL, we outline some of the possible paths for reform now facing the institution.

Style vs. “Substance”

One recurrent response to the revelation that Secretariat staff write both the initial take on every dispute (the so-called “issues paper” that lays out relevant case law and possible solutions for adjudicators before they ever meet to discuss the case), and the draft of the final ruling, is that writing and deciding are wholly separate functions. And while the Secretariat may hold the pen, it is the adjudicators who have final say. As Steinbach puts it, our analysis can only ascertain “stylistic identity” and thus it “cannot say much about the legal substance that is merely manifested by that style.”

The premise that Steinbach and others cling to is that one can separate the pedestrian act of writing from the strictly cognitive task of adjudication. The true legal author, in this sense, is whoever originates the “substance” of the ruling; how it is expressed, or by whom, is of comparatively little importance.

Legal scholars presumably do not apply these loose standards of authorship to themselves. If it were suddenly revealed that Steinbach, to save time, had given precise instructions to a promising student to write up his response to our findings on the basis of the three claims contained in his abstract, his reputation would likely suffer. If he then insisted that the “intellectual substance” of his argument was entirely contained in his instructions to the student, and that he “maintained control” over the ultimate version of the article, his reputation would suffer some more.

That is because the academic world generally attributes authorship to the person holding the pen. This reflects a belief that words in academic discourse matter. It speaks to a set of expectations around the figure of scholar as sole author of her scholarly output. So while scholars frequently rely on research assistants to help them with assembling data and reviewing the literature, asking a research assistant to draft the resulting article without recognizing them as a co-author would swiftly be condemned as academic fraud.

It is worth pointing out that various tribunals abide by similar principles of authorship. The United Nations Commission on International Trade Law (UNCITRAL), in its Notes on Organizing Arbitral Proceedings, draws clear boundaries in this respect: “it is recognized that secretaries are not involved and do not participate in the decision-making of the arbitral tribunal.” The International Council for Commercial Arbitration (ICCA) similarly holds that “while the arbitral secretary may be present during the deliberations, care should be taken by the tribunal not to allow the arbitral secretary to participate in the deliberations”. Similarly, the recent USMCA trade agreement between Canada, the US, and Mexico explicitly provides that “[o]nly panelists may take part in the deliberations of the panel. Assistants, Secretariat personnel, interpreters, or translators may be present if the panel determines they are necessary” (see Rules of Procedure for Chapter 31, Article 9). The International Chamber of Commerce (ICC) used to explicitly preclude Secretariat staff from engaging in substantive legal work:

“The duties of the administrative secretary must be strictly limited to administrative tasks. … Such person must not influence in any manner whatsoever the decisions of the arbitral tribunal. In particular, the administrative secretary must not assume the functions of an arbitrator, notably by becoming involved in the decision-making process of the tribunal or expressing opinions with respect to the issues in dispute”.

The EU-Ukraine Association Agreement states that “[t]he drafting of any ruling shall remain the exclusive responsibility of the arbitration panel and shall not be delegated” (see its Rules of Procedure for Dispute Settlement, paragraph 13).

And let it be clear: WTO staff not only draft rulings after the panel’s deliberations. They write an “issues paper” and draft proposed solutions even before the adjudicators have ever met. In addition, they are not only present but actively participate in the panel’s confidential, internal deliberations which usually start with a presentation of the Secretariat’s proposals (as Steinbach points out, “the judges at the European Court of Justice … deliberate among them without presence of the référendaires”). This sequence is important: it is not as if panelists first express their individual views, then debate collectively and finally instruct staff to draft a ruling. Instead, staff takes the first steps and provides proposals to the three panelists as a collective (they do not normally assist or otherwise empower individual panelists) after which it is, so to speak, for panelists to “rebut” staff proposals. Given the asymmetries in expertise and institutional knowledge between staff and panelists and the culture of following precedent and avoiding dissent, this protocol (both the sequencing and the fact that advice is to the collective, rather than individual panelists) is key. It also risks instilling “groupthink”: staff views and proposals become the default option; it takes a confident, well-informed and vocal panelist to move the ruling away from staff views, let alone to write a dissent. As dissents tend to deviate from the conventional, staff view, the adjudicator herself will need to put more effort in explaining her disagreement. Though staff may still be assisting with the writing of dissents, adjudicators are, therefore, more likely to “hold the pen,” writing what are normally brief dissents. In this sense, Steinbach is correct that “the alleged influence of the WTO Secretariat is not one prevailing consistently across all spheres of dispute settlement alike”. This also explains why in our EJIL article, we can detect adjudicator authorship of Appellate Body dissents, all the while finding clear evidence that staff write panel rulings.   

Legal observers have come down on both sides of the question. Similarly to Steinbach in his reply to our article, Hugh Thirlway points to Registry staff assisting ICJ judges (where the role of staff, similarly to the WTO, has arguably grown with time), and draws a distinction “between the decision on the issues in a case, and the expression of that decision in the best words possible.” In his view, “[t]he first task is for the judges alone; but the Registry staff can and do help in the performance of the second”. Yet he immediately follows this up with a warning: “[l]aw is a matter of words; and it may be said that the choice of words to convey a legal point is in itself the decision of, or a decision on, that point”. In a 2002 article on “the fourth arbitrator”, Constantine Partasides also points to the difficulty of separating the two: “[t]he act of writing is the ultimate safeguard of intellectual control. An arbitrator should be reluctant to relinquish it”.

All these positions are vested in a given judicial setting. By contrast, our own stance is informed by a more comparative approach, one that highlights the great variation in the treatment of legal authorship across different tribunals. Given this variation, the most relevant question would seem not so much whether authorship matters, but under what conditions should we expect it to matter? This is the question we take up in our second EJIL Talk! post, which will follow tomorrow.

Belgium’s return of Lumumba’s tooth: A new moment for anti-colonial struggles?

June 2022 was marked by a critical event in South-North relations: Belgium returning a tooth to Congo. As trivial as it may sound, the return of the gold-crowned tooth ends a quarrel of 62 years between the former colonial and colonized peoples regarding the murder of the anti-colonial leader Patrice Lumumba. More than that, the declaration that accompanied the act was the first satisfactory Belgian apology acknowledging unlawful conduct, ending a cycle of over 20 years of insufficient declarations about Lumumba’s death. It characterizes the circumstances of Lumumba’s killing as a human rights violation, signaling a potential new trend for future apologetic declarations.

Apologies and International Law

Apologetic declarations became popular after the end of the Cold War, mainly addressing injustices perpetrated in the course of the Second World War. Their emergence is attributed to the incorporation of human rights language in transnational relations, described by Baxi (2008) as ‘grammar of governance’ and by Barkan (2000) as the ‘moralization’ of international relations. The phenomenon is characterized by the standardization of human rights as the moral guidance for States’ behavior or, in practice, rhetoric. States are constantly monitored by their peers on the matter, creating relations based on performative activism and guilt over violations (Barkan 2000). In legal terms, the numerical growth of declarations led to the establishment of criteria for identifying their remedial value, differentiating legal apologies from moral apologies (see Salvioli 2021; IAtHR, Escher, §243; El Mozote, §357; Guerrilha do Araguaia, §277). According to these sources, satisfactory legal apologies are endowed with (i) publicity, (ii) acknowledgment of the harm, (iii) recognition of legal responsibility for the facts, and (iv) an expression of remorse. The measure promotes symbolic redress, acknowledgment of the harm, and most importantly, the public recognition of victims’ narrative and its penetration into the intersubjectively constructed history (UN Special Rapporteur 2019; see also Halbwachs 1980). Further, they fulfill the collective dimensions of the substantial right to truth (Van Boven 1993).

When not satisfying the criteria, apologetic declarations may assume three other forms – non-apologies, expressions of regret, and moral apologies. Non-apologies merely acknowledge events not addressed in the past, recognizing their occurrence, for example, Queen Elizabeth’s declaration concerning the Amritsar massacre. Expressions of regret convey remorse but exclude the recognition of liability and do not include an acknowledgment of harm, for example, the British declaration in the Mau Mau case. On this occasion, the UK demonstrated remorse for the event and acknowledged the harm, but expressly denied liability, and did not adopt any idioms pleading for forgiveness (e.g. ‘we apologize’, ‘we are sorry for our past actions’). If it had included the latter, the statement could be considered a moral apology. Like legal apologies, moral apologies encompass remorse, liability, publicity, and acknowledgment of harm. However, rather than accepting legal liability, the interlocutor restricts their responsibility to the moral realm, rejecting the existence of binding substantive norms and reparatory duties.

Due to their semantic vagueness, expressions of regret and moral apologies have been widely adopted by States addressing colonialism, allowing States to benefit from the performative guilt while excepting themselves from the consequences of legal apologies. The choice is enabled by the power imbalance existing between the Global North and South, which allows for the limitation of declarations to performative activism. Out of the declarations related to colonialism issued after Britain first approached the matter in 1995, only six complied with all criteria of legal apologies: the maiden British apologies to the Maoris, the Dutch 2011, 2013, and 2022 apologies for the Indonesian War, and the Belgian 2019 and apologies to ‘Métis’ children and 2022 for Lumumba’s death. Both the Dutch and the latest Belgian apologies were motivated by Court decisions resulting from victim activism.

Belgian apologies in context

In total, Belgium has addressed its colonial past in the Congo in five different statements: in 2002, in 2019, in 2020, and twice in 2022. Its first-ever apologetic statement, as with its latest, was directed toward Patrice Lumumba’s family, after 40 years of systematically denying responsibility for his death.  Patrice Lumumba was the first prime minister of independent Congo. His mandate, however, lasted only ten turbulent weeks. In 1961, he was brutally murdered by Belgian law enforcement. In the 2002 declaration, the State’s late admission of the facts, instead of apologizing for the conduct, merely expressed condolences for the victim’s feelings (see Goffman 1971), as an expression of regret and, hence, exempted Belgium from responsibility over the result. Its underwhelming nature was further aggravated by the adoption of a ‘bad apple’ argument when attributing the injustice to some Belgian actors at the time’, rather than the colonial regime or State machinery as a whole.

Responding to the declaration, anti-colonial movements surfaced in Belgium and in its former colonies. In 2004, for example, the ‘Bold Ostenders’ caught the media’s attention by damaging a monument celebrating Leopold II, severing the hand from the statue of an enslaved Congolese man in a symbolic reference to a common practice of the colonial regime. The activists promised to return the hand if Belgium duly apologized for the Congo’s colonization. The promise was fulfilled only in 2019, after Belgium’s second apologetic declaration. Although apparently accepted by the Ostenders, nevertheless, the statement limited its object to the treatment of Métis children in colonial Congo, Rwanda, and Burundi. The overall Belgian posture continued to be the omission or, worse, praise of colonialism. In 2010, Louis Michel, former Belgian foreign minister and at the time member of the European Parliament, publicly commended Leopold II and denied the horrors of Congo’s colonization, portraying the conduct as development assistance to an ‘uncivilized’ people.

From 2020 onwards, the number of protests against Belgium’s silence grew, influenced by the anti-racist wave triggered by the Black Lives Matter movement. Soon after, in the celebration of the 60th anniversary of the Democratic Republic of the Congo’s independence, King Filip addressed the demands in an expression of regret towards Leopold II’s colonization of the Congo between 1885 and 1908. Nevertheless, continuing in some respects the Belgian State’s previous posture, his letter also affirmed that Belgium and the Democratic Republic of the Congo’s common history is ‘made up of common achievements’, reinforcing a positive and hence misleading reading of colonialism. A few months later, Lumumba’s daughter wrote him a letter requesting her father’s remains, endorsed by a national juge d’instruction. After this decision, the State’s declarations changed significantly, including elements capable of strengthening their reconciliatory and reparatory efficiency, e.g. concomitant measures and wider assumptions of liability.

The return of the tooth

In 2022, Belgium issued two declarations on its colonial injustices: the first as an expression of regret for the Congo’s colonization in its entirety, and the second, a legal apology for Belgian colonialism and Lumumba’s death, marking a radical shift in Belgium’s approach towards its past. The latter was accompanied by measures like the return of the tooth – the only remaining body part – to the family. This followed the common practice of enforced disappearance cases, redressing the violent character of the part’s apprehension as a prize. Further, these actions were accompanied by a funeral ceremony in the presence of the victim’s family, and the parliamentary approval of a bilateral treaty on the restitution of cultural propriety.

The latter statement’s text, detrimentally and echoing most past declarations, purposedly pointed out the ‘moral’ character of Belgium’s responsibility. Nonetheless, it paradoxically adopted a significantly more condemnatory language in describing the colonial past, becoming the first-ever apologetic declaration to acknowledge colonial injustices as human rights violations. Resembling qualifications, such as ‘crimes against humanity’, appeared four times in prior statements: in the British 2006 statement on the transatlantic slave trade, the 2004 and 2021 German declarations on the Namo and Herrero case, and the 2011 Dutch declaration regarding the Indonesian war. Nevertheless, ‘human rights’ have been traditionally avoided as a classification as a form of evading the assumption of contemporary legal responsibility and, thus, the emergence of reparatory duties. The resistance is reinforced by the legal uncertainty on the application of the international legal system to the colonial past, commonly supported by the intertemporal principle (see Von Arnauld 2020).

Both in its legal and social aspects, such measures go some way toward reversing traditional policies of ‘colonial amnesia’ (Fletcher 2012, Stahn 2020). The phenomenon is described by Fletcher (2012) as the systemic forgetfulness and omission of the colonial atrocities in narrations of the past, i.e. the oblivion or diminishing of colonial injustices in celebrations of Northern countries’ ‘development’. By recognizing the illegality of colonial injustices, Belgium’s statement rejects the Eurocentric reading of human rights law according to which colonialism is legitimized by the law applicable at the time of the facts and, hence, cannot be condemned nor given redress. Politically, it factually acknowledges the Northern violence towards the South, subverting the colonial amnesia pattern. The precedent raises hope over a reversal of the trend of merely rhetorical apologetic declarations regarding colonial injustice.

The New Wave of Article 63 Interventions at the International Court of Justice

Recent developments in the Ukraine v. Russia case at the International Court of Justice may force the Court to address head-on an important point of procedure relating to intervention pursuant to Article 63 of the Court’s Statute.

The Court’s Statute in Articles 62 and 63 provides two separate devices to States wishing to intervene. In general terms, both are incidental proceedings, governed by largely uniform procedures under Articles 81-86 of the Rules of Court.  Neither requires the consent of the parties to the case, but both require the third-party State to establish a form of legal interest in the case: under Article 62 this is a particular ‘interest of a legal nature which may be affected by the decision in the case’ and in respect of Article 63 it is simply that the intervening State be a party to a convention that must be interpreted by the Court. If a State intervenes as a non-party pursuant to Article 62 the judgment may take its interests into account but will not bind the intervening State. Article 63 intervention, on the other hand, results in a judgment that binds parties and intervenors alike.

On 19 July 2022, Lithuania and Latvia filed their Article 63 declarations of intervention, followed by New Zealand on 25 July 2022 and the United Kingdom on 1 August 2022. However, Ukraine is not scheduled to file its Memorial until 23 September 2022, while Russia’s Counter-Memorial isn’t due until 23 March 2023. Despite Russia’s non-appearance at the provisional measures hearings, the Russian Ambassador has informed the Court that future participation in the proceedings is ‘still under consideration’. This suggests that a Preliminary Objections application by Russia could be on the cards.

If so, the Court will be forced to confront the question of whether or not other States may intervene in a case at the jurisdictional stage, whether to argue that the Court is jurisdictionally competent to proceed or to deny it. The Court has faced this issue once before, in Military and Paramilitary Activities in and against Nicaragua, when it rejected El Salvador’s attempted intervention as premature.

This post will review the Court’s Article 63 practice and reflect on the possibility of a new direction in the Court’s jurisprudence.

Article 63: A Brief Review

Article 63 states that:

Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.
Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

Article 63 grants a right to States to intervene in a contentious case when they are party to a multilateral treaty that will be interpreted in the Court’s judgment. This right is, however, subject to the Court’s power to declare the intervention inadmissible.

While intervention is a common procedure in domestic courts, when delegates of the first Peace Conference met in The Hague in 1899 it was entirely unknown to the history of international dispute resolution, which had an exclusively arbitral character. Dutch jurist TMC Asser proposed to incorporate an intervention procedure during the fourth meeting of the 1899 Comité d’Examen, in terms that underwent only slight changes before being eventually adapted into the PCIJ and ICJ Statutes as Article 63. The most notable change was the removal of a statement that the Court’s judgment is only binding on the parties, a proviso now found separately in Article 59 of the Court’s Statute. 

It is often asserted that the object of Article 63 was to acknowledge the ‘res interpretata effect’ (Miron & Chinkin, 2019) of the Court’s judgments. The intervenor is bound by the interpretation that the Court gives to the relevant convention, vis-à-vis the original parties to the case, and also presumably in respect of other States should it become involved in a different dispute involving the interpretation or application of the same treaty.  It would be rare but not inconceivable that the Court would apply a different interpretation in such a situation (as distinct from a different application to the relevant facts) although this has never been tested. 

The only case of intervention before the PCIJ, the SS Wimbledon, was pursued under Article 63. A claim was brought by Great Britain, France, Italy, and Japan against Germany in relation to its refusal to permit access to the Kiel Canal.  It was alleged that German authorities had prevented the British steamship SS Wimbledon, chartered by the French armament firm Les Affréteurs réunis, from passing through the canal. Although Italy and Japan had suffered no direct harm, the PCIJ observed that:

each of the four Applicant Powers has a clear interest in the execution of the provisions relating to the Kiel Canal, since they all possess fleets and merchant vessels flying their respective flags.

The PCIJ accepted that the applicant States shared ‘a recognized interest in ensuring compliance with the international regime’ established by Article 380 of the 1919 Versailles Peace Treaty.   Poland ‘declared itself in agreement with the submissions of the applicants.’  The approach of the PCIJ in the SS Wimbledon reveals a shared understanding that an intervenor under Article 63 can come in support of one of the original parties. 

The Court has continued to take the view that intervention to support a party’s particular interpretation of the relevant treaty is permissible. In the most recent intervention admitted under Article 63, that of New Zealand in Whaling in the Antarctic, the Court confirmed that Article 63 interventions ‘cannot affect the equality of the parties to the dispute’, because the intervener cannot acquire the status of a party.  Japan’s contention that Australia and New Zealand were, for all intents and purposes, parties in the same interest ‘pursuing what may in effect be a joint case’ received minimal attention.

The Issue of Timing

However, while Lithuania, Latvia, New Zealand, and the UK may come in support of Ukraine’s position on the merits, that is not the only question before the Court in the present case. There is also the issue of timing. That is, whether States can intervene in a case pursuant to Article 63 before the Court has concluded that it has jurisdiction to proceed to the merits.

In Military and Paramilitary Activities in and against Nicaragua, the Court decided to reject El Salvador’s Article 63 declaration on the basis that application was untimely for being made in the jurisdictional phase of the proceedings.  The Court noted that El Salvador’s declaration ‘presuppose[d] that the Court had jurisdiction to entertain the dispute’. However, El Salvador was not granted an opportunity to defend its application at an oral hearing. Nicaragua did not formally object to the intervention, although it drew the Court’s attention to ‘certain deficiencies both in form and substance’ – an objection de facto if not de jure. Nevertheless, the lack of a formal objection meant that El Salvador had no right to a hearing under Article 84(2) of the Rules. Judges Ruda, Ago, Mosler, Jennings, and Lacharriere jointly opined that it would have been ‘more in accordance with judicial propriety’ for an oral hearing to have taken place.  Having been denied the opportunity to participate at all, the Court nevertheless relied on information provided by El Salvador’s declaration of intervention during the merits phase of the case.

Addressing El Salvador

Three of the four intervenors have been careful to address the issue of timing head on. Scholarly opinion has been fairly well unanimous that there is no reason, based on the text of the Statute, not to allow Article 63 intervention for the purposes of challenging or supporting jurisdiction, or arguing for a different construction of a treaty’s compromissory clause altogether. Lithuania has argued that ‘Article 63 is unqualified as far as the type of provisions of the convention – substantive, procedural or jurisdictional – is concerned.’ The UK has argued that ‘[t]here is no limitation in Article 63 … that would prevent the United Kingdom from exercising its right to intervene on the construction of provisions of the Genocide Convention pertaining to issues of jurisdiction in addition to issues pertaining to the merits.’ The UK also considers the different scenarios that would result if the Court decides to separate the question of jurisdiction from the question of the merits, pursuant to the recently amended Rules of Court. Latvia, meanwhile, takes the El Salvador precedent head on and argues that ‘neither the Court nor Judges writing individually in that case suggested that Article 63 could not, in principle, apply to jurisdictional issues.’

Only New Zealand has not mentioned the issue of timing, save that the construction of the Genocide Convention for which they contend is ‘relevant to both the Court’s jurisdiction and to the substantive basis of Ukraine’s claims on the merits.’ As pointed out by Ori Pomson on Twitter, however, New Zealand’s declaration only puts forward ‘(very) abstract’ constructions of the Genocide Convention, as opposed to the significantly more forceful submissions of the other States.

Conclusions

It remains to be seen how the Court will deal with these interventions. Two things are worth noting. First, Russia could attempt to replicate Nicaragua’s litigation strategy and deny the intervenors a hearing, which could impact negatively on the proper administration of justice. Second, the only precedent the Court has is one in which it denied the right of intervention at the jurisdictional stage. It remains unclear whether the decision holds for intervention at the jurisdictional phase generally or can be distinguished on the facts on the basis that it was a conclusion that ‘the particular claim belonged more accurately in the merits phase’ (Chinkin, 1986).

It is worth noting also that this is not the only case where Article 63 interventions will be an issue. In the other genocide case presently before the Court, The Gambia v. Myanmar, The Maldives, Canada and the Netherlands have indicated their intention to act as intervenors in the case, which could only be on the basis of Article 63. However, the particular question of timing discussed in this post will not be an issue, as the Court has already handed down its decision on jurisdiction.

Those interested in questions of procedure should keep a close eye on both cases, as they will contribute to a sudden expansion in the Court’s Article 63 practice and may help to further clarify the Court’s views on the function and purpose of intervention.

Two weeks in review, 1 August – 14 August

New Issue of EJIL (Vol. 33 (2022) No. 1)

The latest issue of the European Journal of International Law  (Vol. 33 (2022) No. 1) is now out. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Read the table of contents
Read the Editorial by EJIL Editor in Chief Sarah Nouwen and Associate Editor Orfeas Chasapis Tassinis 
Read the Editorial by EJIL Review Editor Christian Tams

Joseph Weiler reflects on the philosophy and educational objectives of teaching and how these translate into the format of an exam. His post, ‘On My Way Out – Advice to Young Scholars VII: Taking Exams Seriously (Part 1)’, is the seventh installment in a series of notes on different topics for scholars in the early phases of their careers. 

Other posts

In her post, ‘‘Biased’, ‘Selective’, ‘Antisemitic’: Accusations against the UN Commission of Inquiry on Israel and the Occupied Palestinian Territories’, Rosa Freedman explores the accusations against the UN Commission of Inquiry on Israel and the Occupied Palestinian Territories. These accusations follow the latest remarks by UN independent expert Miloon Kothari. Freedman argues these create an appearance of bias and greatly harm the credibility of the Commission of Inquiry and the legitimacy of its findings.

Read the full post here.

James Patrick Sexton analyses the measures taken against Russian military officers by Ukraine, focusing on those sanctioned due to an asserted responsibility for international crimes. He concludes: 

‘The EU’s sanctioning of Russian military officers is not inherently problematic. In fact, such sanctions may legitimately work to counteract Russia’s ongoing war of aggression against Ukraine. However, if the values of human rights and the rule of law – as enshrined within the EU treaties – are to be preserved, EU sanctions must respect the key principles of international criminal law and the rights of those targeted. For example, simply refraining from asserting international criminal responsibility – as done in the EU’s 21 July listings (here) – remedies the majority of the concerns raised in this post. As the EU considers its response to the clear perpetration of heinous international crimes, caution must be exercised in the framing of sanctions to ensure their legitimacy, legality, and effectiveness.’ 

Read his post here

Donato Greco criticizes the WHO declaration that the outbreak of monkeypox constitutes a public health emergency of international concern. He highlights critical issues related not only to the PHEIC declaration but, more generally, to global health governance, designed by the IHRs and the WHO Constitution.

Read the full post here

Gaiane Nuridzhanian examines the capacity of the Ukrainian courts to prosecute war crimes committed by Russian soldiers in Ukraine. Further, she questions the Ukrainian court’s ability to prosecute in compliance with fair trial guarantees and the appropriateness of doing so while the war is ongoing. She concludes: 

‘The main burden of prosecuting war crimes in Ukraine will inevitably fall on the shoulders of the Ukrainian judicial system. Ukrainian courts are best placed to do this job because of their proximity to the evidence, witnesses and victims, their understanding of the context and their knowledge of the languages involved. While the Ukrainian judicial system is naturally affected by the ongoing war, the vast majority of the courts remain available to administer justice. However, serious efforts should be made by Ukraine, in cooperation with the international community, to further strengthen the Ukrainian judiciary’s expertise in prosecuting war crimes.’

Read the full post here

Felix Herbert explores the controversial question of whether Security Council resolutions are binding under international law if they conflict with peremptory norms. Herbert supports The ILC decision that Security Council resolutions do not create binding effects to the extent that they conflict with jus cogens.  

Read the full post here

Announcements: Ghent Human Rights PhD Vacancies; UN Audiovisual Library of International Law; Salzburg PostDoc Position in PIL; CfP German Yearbook of International Law

1. PhD Vacancies for The Programme for Studies on Human Rights in Context (Ghent University). The Programme for Studies on Human Rights in Context (Ghent University) is hiring 2 PhDs. They are seeking to fill 2 full-time PhD positions as part of the European Research Council (ERC) Project ‘IMPACTUM’ Assessing the Impact of Urgent Measures in Protecting at Risk-Detainees led by Prof. Clara Burbano-Herrera at the Programme for Studies on Human Rights in Context of Ghent University. They are particularly looking for two team members, namely one with a background in criminology (PhD1) and one with a background in law (PhD2) with interest in Latin-American studies, prisons and/or human rights, experience in analytical tasks, trained in qualitative research, and with a passion for communication. Apply before 5 October. More information can be found here

2. New Additions to the UN Audiovisual Library of International Law (AVL). The Codification Division of the UN Office of Legal Affairs recently added the following material to the UN Audiovisual Library of International Law: A mini-series on the Peaceful Settlement of International Disputes in Spanish by Professor Marcelo Kohen; a lecture on The Responsibility of Armed Non-State Actors in Armed Conflicts in English by Dr. Annyssa Bellal; and, a lecture on Privileges and Immunities in Spanish by Professor Ricardo Arredondo. The Audiovisual Library of International Law is also available as a podcast on SoundCloud and can also be accessed through the relevant preinstalled applications on Apple or Google devices, or through the podcast application of  preference by searching “Audiovisual Library of International Law”.

3. PostDoc Position in Public International Law, Paris Lodron Universität Salzburg. The Department of Legal Theory, Public International Law and European Union Law is seeking to fill the position of Postdoctoral researcher as of 1 October 2022 to strengthen the team of Prof. Dr. Kirsten Schmalenbach (International Law). Full time contract (40h per week), fixed term for 5 years, optional one year prolongment. The candidate should be located throughout the period of the contract either in Salzburg or in its surrounding areas. The closing date for applications is 28 August 2022. Required qualifications include a PhD in international law. See here for more information.

4. Call for Papers: German Yearbook of International Law. The Editors of the GYIL invite submissions for volume 65 (2022) on all topics of public international law, with an extended deadline of 1 October 2022. The General Articles section of the GYIL is open to submissions from the entire academic community and is independently peer-reviewed by a board of renowned experts. Papers should be 10,000-12,500 words inclusive of footnotes and must conform with the house style guide of the GYIL (which is available on the yearbook website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent  to the Managing Editor of the GYIL via e-mail: yearbook {at} wsi.uni-kiel(.)de. All submissions will be considered on a rolling basis. More information can be found at the GYIL website or via the website of the Walther Schücking Institute for International Law. 

Disobeying the Security Council or a disobedient Security Council? The effects of jus cogens on Security Council resolutions in recent debates of the ILC and in the views of states

At the most recent plenary session of the International Law Commission, which concluded on 5 August 2022, one issue proved particularly controversial. Indeed, it proved so controversial that Prof. Tladi, Special Rapporteur on peremptory norms of general international law (jus cogens), claimed that he was willing to fall on his sword over the issue, whereas Chinese ILC-member Prof. Huang insinuated that the Special Rapporteur’s position would destroy the current collective security system and risk a third world war (statements at the 3597th meeting, 25.07.2022, Prof. Tladi starting at 02:53, Prof. Huang at 03:00). What issue could incite such aggravated language in a forum as august as the ILC? The question at issue was whether Security Council resolutions are binding under international law if they conflict with peremptory norms.

The ILC is at the brink of concluding its work on jus cogens. Its Drafting Committee adopted draft conclusions on second reading in May 2022, which were discussed at the recently-concluded plenary session. The question pertaining to Security Council resolutions arises from conclusion 16: “a resolution, decision or other act of an international organization that would otherwise have binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm […].“ The conclusion clearly covers Security Council resolutions. This is nothing new, it has been claimed by states, courts and scholars before (see here). Prof. Tladi therefore initially included Security Council resolutions in the conclusion itself (then draft conclusion 17). Several states from different regions welcomed including Security Council resolutions in the text of the conclusion, among them Brazil, Iran, South Africa, and Togo. Overall, a clear majority of states supported the applicability of conclusion 16 to Security Council resolutions. To appease a few dissenting states, Security Council resolutions were moved from the text of the conclusion itself to the commentary. Additionally, the commentary stressed that a conflict between Security Council resolutions and jus cogens was highly unlikely, and that conclusion 16 would not permit states unilaterally to disobey such resolutions. Still, Prof. Huang (and Russian ILC-member Prof. Zagaynov) objected to the mention of the Security Council, even in the commentary.

A risk of disobeying the Security Council?

Some P5-states had previously taken a more radical stance. According to France, the United Kingdom and the United States, Security Council resolutions should be explicitly excluded from conclusion 16. This would have given a Security Council resolution binding effect even if it violated jus cogens. More moderately, China and Russia had proposed simply to remove Security Council resolutions from the commentary. In a recent tweet, Prof. Tladi has characterized this critically as a defence of privilege – the privilege being a permanent seat and veto right in the organ whose abundant powers jus cogens limits. However, a privilege of disobeying jus cogens never existed. More than a defence, this must therefore be characterized as an attempted deterioration. No other state challenged the applicability of conclusion 16 to Security Council resolutions (although Israel and Germany stressed that relevant practice was lacking).

In the plenary debate (see statement starting at 02:25), Prof. Huang advanced three arguments that also reflected the P5-states’ criticism: Firstly, he highlighted the Security Council’s central role in the UN-Charter and its collective security system. As the Council’s authority had a direct bearing on war and peace, the validity of its resolutions should not be undermined. States could abuse conclusion 16 and unilaterally decide not to implement a resolution under the pretext that it conflicted with jus cogens. Secondly, the Council’s importance was recognized by Art. 103 UN-Charter, according to which obligations under the Charter, including those created by Council resolutions, prevail over other treaty obligations. Thirdly, he discarded the possibility of a conflict between a Security Council resolution and jus cogens as entirely a product of imagination. He concluded that therefore, mentioning the Security Council in the commentary would cause bewilderment and confusion. Interestingly, no P5-member (or any other state) raised the argument that the Security Council was not bound by jus cogens. Thus, the question really is whether a Security Council resolution violating jus cogens is automatically invalid, or what other consequence the violation would entail.

It has already been argued in other contexts that the possibility to unilaterally invoke the invalidating effect of peremptory norms could undermine international law. In particular, it was claimed that Art. 53 VCLT, according to which a treaty conflicting with a peremptory norm is void, would threaten the sanctity of treaties by allowing states to evade their contractual obligations. To mitigate the risk inherent to unilateral invocations of jus cogens, Art. 66 VCLT provides for dispute settlement with the ICJ. However, several states made reservations against Art. 66 VCLT. Moreover, while Art. 53 VCLT reflects customary international law (a treaty conflicting with jus cogens is invalid also for states outside the VCLT), Art. 66 VCLT does not. Effectively, therefore, dispute settlement with the ICJ is compulsory for some states only. Still, contrary to pessimistic predictions, Art. 53 VCLT has not seemingly disrupted the stability of treaty relations – it has rarely been invoked to claim the invalidity of treaties. Is it reasonable to assume that unilateral invocations of peremptory norms will undermine the binding authority of Security Council resolutions, when the risk of deterioration has not materialized with regard to treaties?

One difference between the two cases is that it would be clearly be in bad faith if a state negotiated and ratified a treaty and later claimed its invalidity under Art. 53 VCLT. By contrast, Security Council resolutions may impose obligations on UN member states without them having had any say in the drafting process. In this case, states might therefore be more inclined to turn to jus cogens as a way out. However, unilateral invocations do not occur in a vacuum. Other states, and the Security Council, can reject and thereby delegitimize abusive invocations of jus cogens. It seems unlikely that a disobedient state will be successful with its unilateral invocation of jus cogens if the invocation simply has no merit to it. Such a State might still not implement the resolution, but at significant reputational costs. In any case, however high the risk of abuse, mentioning or omitting Security Council resolutions in the commentary to conclusion 16 will most likely not have a significant effect on amplifying or mitigating that risk.

A Security Council disobeying jus cogens?

Likewise, it does seem highly unlikely that the Security Council would adopt a resolution disobeying a norm whose peremptory status is well accepted, such as the prohibition of genocide or slavery. Nevertheless, the possibility that Security Council resolutions might disobey jus cogens is not, as Prof. Huang claimed, entirely a product of imagination. For example, one way to end Russia’s ongoing aggression against Ukraine might be a Security Council resolution accepting Russian control over (some of) the territory it illegally invaded. Arguably, such a resolution would conflict with the peremptory right to self-determination (see Annex of the draft conclusions) of the Ukrainian people and the obligation not to recognize situations as legal that were created by a serious breach of jus cogens (conclusion 19). Another example is the Kadi case, in which the European Court of First Instance determined a potential clash between a Security Council resolution and the applicant’s fundamental rights, claimed by the Court to be jus cogens. These examples are not uncontroversial, but they illustrate that conflicts between Security Council resolutions and jus cogens may arise. Therefore, a conflict between a Security Council resolution and jus cogens cannot be equated with a conflict between jus cogens and the Charter, as implied by Prof. Huang. In addition, while Art. 103 UN-Charter protects the validity of the Charter against conflicting treaties, it does not put the Charter above and beyond jus cogens.

A risk of abusive unilateral invocations of the law is inherent to any decentralized system that lacks compulsory jurisdiction. While expressly mentioning the Security Council in conclusion 16 or the commentary thereto may bear the risk of encouraging unilateral invocations of jus cogens to evade Charter obligations, explicitly excluding Security Council resolutions from conclusion 16 would pose the risk that the Security Council takes jus cogens less seriously. Ultimately, the question seems to be what risk one prefers. While P5-states were critical towards mentioning the Security Council, others welcomed reference to the Council. They may see a greater risk in the Security Council disobeying peremptory norms. Hence, the controversy both reflects diverging views on the authority of the Security Council, as well as on the authority of jus cogens.

During the plenary on 26 July 2022, the ILC eventually, after additional informal consultations, adopted by consensus the commentary to conclusion 16 with express reference to Security Council resolutions (see here at 00:16). Whatever changed the minds of the dissenting ILC members, the adoption is to be welcomed. Now, conclusion 16 clearly covers Security Council resolutions. The ILC thereby rightly recognized that Security Council resolutions do not create binding effects to the extent that they conflict with jus cogens. While the ILC has reached its conclusion on the issue, it remains to be seen what states will do with conclusion 16 in practice. Contrary to Prof. Huang’s fear, bewilderment and confusion are unlikely to unfold.

Prosecuting war crimes: are Ukrainian courts fit to do it?

 Only three months after Russia’s full-scale invasion, Ukrainian courts delivered the first convictions for war crimes committed by Russian soldiers in Ukraine since February 2022. In May, a Russian soldier was sentenced to life imprisonment for killing a civilian in Sumy Region. The conviction of two more soldiers of indiscriminate attacks on civilian areas in Kharkiv Region followed. In June, the preliminary hearings in a case related to charges of murder and rape took place. Most recently, a Russian soldier was sentenced to 12 years’ imprisonment for pillaging. As of 4 August 2022, about 25 000 war crimes are pending investigation.

The first war crime trials in Ukraine, closely scrutinised by the international community, prompted a discussion around the capacity of the Ukrainian courts to prosecute war crimes, their ability to do so in compliance with fair trial guarantees and the appropriateness of doing so while the war is ongoing. For instance, Kai Ambos writes about the concerns relating to the independence of the Ukrainian judiciary, while Sergey Vasiliev acknowledges that the judges’ impartiality and fairness in a trial taking place against enemy soldiers during the war is ‘bound to be questioned’. Céline Bardet questions the appropriateness of holding war crimes trials while the war was ongoing pointing out that ‘justice requires a serene context’ to ensure an impartial and fair trial.

Prosecuting war crimes committed in Ukraine is a demanding task. The scale of criminality, the wide scope of the affected geographical areas and the high number of potential victims would pose a challenge to any judicial system, let alone to one affected by an ongoing war. Even with the involvement of the ICC and any possible trials based on the principle of universal jurisdiction in foreign states, the main burden of prosecuting war crimes committed in Ukraine will fall on the shoulders of the Ukrainian legal system. This contribution addresses the fitness of Ukrainian courts to prosecute war crimes in terms of capacity, ability to ensure fair trial and expertise.

Courts in time of war

Albeit affected by the war, the Ukrainian judicial system continues functioning. According to the President of the Supreme Court of Ukraine, 132 or about 20% of the country’s courts, mostly those located in areas of Ukraine controlled by Russian forces, were not functioning at the end of April 2022. The work of the courts located in and around the frontline is also hindered by security concerns and ongoing hostilities, destruction and targeting of court buildings, lack of personnel owing to evacuation of the population to safer areas or inability to return in view of destruction of people’s homes. But the courts located outside the occupied territories or areas of active hostilities continue their work. Efforts have also been made to renew the operation of the courts in liberated areas such as Chernihiv and Kyiv regions.

So far the war crime trials of Russian soldiers have taken place either in courts located in the regions where the crimes were committed (courts located in the cities of Kyiv and Chernihiv heard cases relating to crimes committed in Kyiv region and Chernihiv respectively) or courts located in the adjacent regions where events in question took place close to the frontline (courts in Kyiv city and Poltava region, which is in central Ukraine, heard cases relating to crimes committed in Sumy and Kharkiv regions respectively).  

This is not the first time the Ukrainian judicial system adapts to a state of war. Following the annexation of Crimea and the start of the war in eastern Ukraine in 2014, the jurisdiction of the courts located in these areas was transferred to the courts located in adjacent regions and other parts of Ukraine. The affected courts were subsequently relocated to cities under governmental control. This ensured that residents of the occupied territories had access to courts in Ukraine despite the Government’s lack of control over these areas, as the European Court of Human Rights (ECHR) noted in Tsezar and others v Ukraine. The same approach of temporarily transferring the jurisdiction to other courts located in the safe areas was followed in the wake of Russia’s full-scale invasion of Ukraine in February 2022. These legislative changes in combination with the predominant majority of the courts still functioning, enables the Ukrainian judicial system to administer justice in relation to the territories under Russia’s control and those affected by active hostilities.

Independence and impartiality

Russia’s war against Ukraine is so manifestly unlawful, destructive, and cruel that it is not surprising that some may question the ability of Ukrainian judges to stay impartial when conducting war crime trials of Russian soldiers. However, there is nothing in international law that prevents a belligerent state from trying the members of the adversary armed forces for war crimes. To the contrary, international humanitarian law obliges states to prosecute war crimes committed on their territory (Rule 158). Furthermore, the notions of judicial independence and impartiality are embodied in concrete internationally recognised standards of fair trial. It is those concrete standards, rather than some abstract ideas and presumptions, that must be used to evaluate the independence and impartiality of judges in each specific trial that takes place before Ukrainian courts.

Pressure from the wider public is another risk in the current circumstances. In a recent interview, a lawyer representing one of the Russian soldiers spoke about hostile reactions on social media and through phone calls that he had received in connection with his work on this case. At the same time, he believes that majority of Ukrainians understand that an accused has a right to defence and that it is the lawyer’s job to represent the accused. There are no indications that the work of defence lawyers, appointed through the general government-funded legal aid scheme, to represent Russian soldiers is in any way hindered by the Ukrainian government. But the Ukrainian government must also ensure that the judges, defence lawyers and other actors involved in war crime trials are able to carry out their tasks free from inappropriate outside interference.

There are also safeguards in place that can ensure that any shortcomings in the proceedings before lower courts are corrected. At the domestic level, the accused can challenge the judgments in the court of appeal and court of cassation, as it has been done in the case of the Russian soldier whose life sentence for violating laws and customs of war by killing a civilian was reduced to 15 years’ imprisonment. The court of appeal found that there were no aggravating circumstances in the form of conspiracy to commit murder or intent to commit a crime against an elderly person justifying a life sentence.

It is also possible for the accused to challenge the domestic proceedings in Ukraine before the ECHR. In fact, the very existence of the possibility of a claim before the Strasbourg court exercises an important supervisory function over the Ukrainian judiciary. Furthermore, the war crimes trials of Russian soldiers, except for one relating to sexual violence, have taken place in public and are intently followed and reported in Ukrainian media. The close international scrutiny and monitoring by civil society can serve as an additional safeguard against encroachment on fair trial rights in the war crime trials.

Another available, at least in theory, supervision mechanism is the appointment of a Protecting Power (Article 2(c), Additional Protocol I; Article 8, Geneva Convention relative to the Treatment of Prisoners of War (GC III)), meaning a state who is not party to the conflict and whose representatives would be entitled to attend and monitor the war crimes trials of prisoners of war (Article 105, GC III). While this may help to alleviate the concerns relating to fair trial rights, the mechanism has rarely been used in practice in modern times as it may be difficult for warring parties to agree on the choice of a third state (2020 Commentary to GC III, paras 1296-1300). In practice, the ICRC has acted as a de facto substitute.

While the war is ongoing

Some question the wisdom of holding war crime trials while the war is ongoing. The pace of the war crime trials in Ukraine must not compromise the quality of the proceedings and the accused’s right to prepare an effective defence. At the same time, delaying the war crime trials until an uncertain point in future when the war has ended can have implications for the accused’s rights. In fact, Article 103 GC III demands that investigations and trials relating to prisoners of war take place ‘as rapidly as the circumstances permit’. An equivalent obligation to conduct a trial within a reasonable time and ensure that the accused is not held in pre-trial detention any longer than necessary to conduct investigations and trial exists in human rights law. Furthermore, delaying the investigations and trial may affect the availability of evidence and witnesses and consequently the quality of the trial, especially in relation to crimes committed in areas where hostilities are ongoing.

Expertise in prosecuting war crimes

That a domestic legal system lacks extensive experience or specialisation in prosecuting and trying war crimes is in fact quite common. After all, war is an exceptional situation. However, lack of prior experience did not prevent such countries as Germany, Sweden and the Netherlands from developing a practice of prosecuting war crimes based on the principles of universal jurisdiction in the past decade and doing so in domestic courts of general jurisdiction.

At the same time, given that the war in Ukraine has been ongoing since 2014, more could have been done to build the relevant expertise of the Ukrainian judiciary. So far, the trials in Ukraine concerned the wilful killing of a civilian, rape, pillaging, indiscriminate attacks on and intentional targeting of civilian objects. In all these cases the accused were charged under one and the same general provision of the Criminal Code of Ukraine, namely Article 438 which criminalises all violations of laws and customs of war. Adoption of the legislation incorporating a catalogue of specific war crimes, akin to that found in Article 8 of the Rome Statute would modernise Ukrainian criminal legislation. It would also equip the judges with a more effective tool, in the form of specific norms of international humanitarian law and international criminal law, to correctly label the different types and categories of war crimes that they now must try.

Other ways of overcoming any possible shortage of expertise are available too. First, establishing a specialised branch of judiciary within the Ukrainian court system would allow the creation of a pool of judges specialised in prosecuting war crimes. An international element injected in the chosen domestic judiciary mechanism in the form international judges or legal advisors could strengthen its expertise, serve as an additional guarantee of independence and impartiality and ‘maximise legitimacy’ of war crime trials. In fact, War Crime Units already exist within the Office of the Prosecutor General of Ukraine, and their work is supported by experts from the Atrocity Crimes Advisory Group established by EU, US and UK in May this year.

Second, in the absence or pending the creation of a specialised war crimes branch, Ukrainian courts of general jurisdiction could make use of external expertise when faced with complex legal issues in war crime trials, for instance calling on a military expert or an international humanitarian law scholar to act as some sort of amicus curiae. This may require introducing changes in domestic criminal procedure law, however this could provide an additional source of expertise independent of the parties to the proceedings. The case of Sakhan is an example of a similar approach followed by the Stockholm District Court when it invited an international law expert to testify on the qualification of the armed conflict in Syria and the legality of the courts established by non-state organised armed groups.

Third, Ukrainian judges’ expertise in international humanitarian law and international criminal law could also be improved through educational initiatives and exchange of experience with fellow judges and practitioners from other national or international jurisdictions. The National School of Judges of Ukraine is one of the domestic institutions that could facilitate this process and has indeed already started doing so. A number of international partners that have been working closely with Ukrainian judiciary and more recent initiatives such as Legal Task Force on Accountability for Crimes Committed in Ukraine could support this effort.

What about military courts?

Some have raised concerns about war crime trials in Ukraine taking place in courts of general jurisdiction rather than in military courts. Military courts were abolished in Ukraine in 2010, however since the start of the war in 2014 the issue of creation of military courts has been actively discussed in Ukraine. 

While Article 84 GC III creates a presumption in favour of military courts, it also permits trying prisoners of war in civilian courts provided the ‘the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war’.  First, this reflects the principle of assimilation, according to which a prisoner of war shall be subject to the same laws and regulations as are in force for the armed forces of the Detaining Power and ensures that prisoners of war are not put in less favourable conditions than members of the armed forces of the Detaining Power. Second, the requirement of an express grant of jurisdiction to try members of armed forces in civilian courts is satisfied as long as the national criminal law does not exclude members of the armed forces from the general application of its criminal law (2020 Commentary to GC III, para 3601). Given that the Ukrainian Criminal Code and the criminal procedure under which the Russian prisoners of war are tried applies equally to members of its own armed forces, the war crime trials in the courts of general jurisdiction are in fact in line with the requirements of international humanitarian law.

Conclusion

The main burden of prosecuting war crimes in Ukraine will inevitably fall on the shoulders of the Ukrainian judicial system. Ukrainian courts are best placed to do this job because of their proximity to the evidence, witnesses and victims, their understanding of the context and their knowledge of the languages involved. While the Ukrainian judicial system is naturally affected by the ongoing war, the vast majority of the courts remain available to administer justice. However, serious efforts should be made by Ukraine, in cooperation with the international community, to further strengthen the Ukrainian judiciary’s expertise in prosecuting war crimes.

What Does the Monkeypox Outbreak Tell Us about Global Health Governance? Critical Remarks on the New WHO Declaration of Public Health Emergency of International Concern

On 23 July 2022, the Director-General of the World Health Organisation (“WHO”) declared that the outbreak of monkeypox constitutes a public health emergency of international concern (“PHEIC”). Under Art. 1 of the 2005 International Health Regulations (“IHRs”), a PHEIC means “an extraordinary event which is determined […] (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response”. This act represents the culmination of the collective surveillance system established by the IHRs, as it means that a global health threat has been identified and, therefore, States Parties must adopt the necessary countermeasures, keeping with temporary recommendations issued by the Director-General under Art. 15 IHRs.

Against this backdrop, the present post is aimed at highlighting some critical issues related not only to the PHEIC declaration but, more generally, to global health governance, as designed by the IHRs and the WHO Constitution (see Gostin, p. 175 ff.; Negri; Greco). If States will not effectively take into consideration these issues, both by amending the IHRs and strengthening the existing normative framework, one may wonder whether the WHO architecture can effectively address current public health challenges. Some authors took a rather sceptical view in this respect (see Benvenisti).

Background

On 11 May 2022, through the Event Information Site for National IHR Focal Points (“EIS”) – the digital platform created for sharing available information and knowledge concerning health events – the WHO Secretariat alerted States Parties to the IHRs to the monkeypox outbreak. At the same time, it urged them to make an immediate effort to cooperate and tackle the virus, providing them technical guidance on laboratory testing, clinical management and infection prevention and control, vaccines and immunisation. This kind of initiative is not new, as the WHO is an international organisation whose action is mandated to be science-based. In this context, technical standards and guidelines are the usual instruments by which it exercises its “epistemic authority” (see Klabbers).

On 23 June 2022, as the number of cases started increasing, the Director-General decided to convene the Emergency Committee under Art. 48 IHRs, to assess whether the outbreak constituted a PHEIC and, if so, to provide views on potential temporary recommendations. Thus, the Committee had to assess the epidemiological situation: it noted that, as of May 2022, 3,040 cases in 47 countries had been reported to the WHO. At the time, however, there were few hospitalisations, one death in an immunocompromised individual and ten cases of infection among healthcare workers. Although, during the proceedings, some members had expressed a different view, the Committee concluded, by consensus, that the monkeypox outbreak did not constitute a PHEIC. Nonetheless, it acknowledged that the event was of an “emergency nature”, such as to require a joint effort of collaboration and mutual assistance within the meaning of Art. 44 (on the scope of this obligation, see Cinà et al.).

Convened again on 21 July 2022, the Emergency Committee found itself internally divided and was unable to reach a consensus regarding its advice. This outcome resembles a sort of scientific non liquet and may lead one to speculate on the possible violation of Article 48 IHRs, which provides that “at the request of the Director-General [the Emergency Committee] shall provide its views” (emphasis added).

Some members took the view that the multi-country outbreak of monkeypox met all the three criteria defining a PHEIC. In addition – they argued –, the trend of several factors should have led to a negative assessment of the future scenario, including the morbidity rate, the number of cases reported globally (partly underestimated), the increasing number of countries affected, the need to protect communities of people most affected by the disease, and the potential future consequences for health services. Other members pointed out that the overall epidemiological situation had not substantially changed since the first meeting of the Emergency Committee, that the greatest burden of the outbreak has been concentrated in 12 countries in Europe and the Americas, with no evidence of an exponential increase in the number of cases, and that the most affected communities of homosexual, bisexual and other men who have sex with men (MSM) could be protected with targeted measures.

Against such a puzzling background, the Director-General autonomously determined that the monkeypox outbreak constitutes a PHEIC and, consequently, issued temporary recommendations.

Critical Remarks

1. Scientific Uncertainty and the WHO Director-General’s Precautionary Approach. Since the entry into force of the revised IHRs, there have been six declarations of PHEIC in relation to the swine flu pandemic (2009), the re-emergence of wild poliovirus in some countries (2014), the Ebola epidemic in West Africa (2014-2016), the Zika virus outbreak (2016), the Ebola Kivu outbreak in Congo (2018-2019) and COVID-19 (2020). In the case at hand, however, the Director-General made his determination based on a precautionary approach due to the “complexities and uncertainties associated with this public health event”. If the lack of full scientific certainty prevented the Emergency Committee from reaching a consensus, it could not provide a reason for postponing the adoption of measures aimed at preventing serious harm.

Indeed, the Director-General’s autonomy is grounded in the IHRs: according to Arts. 12(4)(c) and 48, the Emergency Committee is a technical advisory body that expresses an authoritative yet non-binding opinion. Moreover, under Art. 12 IHRs, the Director-General is the only authority competent to declare a PHEIC, as further clarified in Art. 49, which states that “[t]he views of the Emergency Committee shall be forwarded to the Director-General for consideration. The Director-General shall make the final determination on these matters”. This is an almost unique case in the law of international organisations, where a single official exercises a power with potentially generalised effects.

The Director General’s initiative can also be read – in a post-pandemic world – as a sign of the increased attention to epidemic risks, which leads to declare a state of emergency even in the presence of scientific evidence that is still provisional and necessarily incomplete, also to avert criticism of inaction.

2. Definition of PHEIC and the (Scientific?) Role of the Emergency Committee. A second issue deserving attention concerns the Emergency Committee’s mandate and the criteria that should guide its functioning. According to the members in favour of a PHEIC declaration, this act would have the advantage of heightening the level of general awareness and alert as well as political commitment and financial resources available to tackle the public health event. On the other hand, according to those against it, the declaration would have entailed the risk of stigma, marginalisation and discrimination against the most affected MSM communities, while it would not necessarily have fostered capacity building for surveillance, laboratory research and response. In addition, the technical action undertaken by the WHO could have adequately addressed the new threat.

Despite the author’s best efforts, it is difficult to see how considerations of a blatant political nature can fit within the Emergency Committee’s technical mandate, whose sole task is to assess the existence of a PHEIC based on the three criteria required by the IHRs. This is not the first time that this shortcoming has affected the authority of the Emergency Committee (see Eccleston-Turner).

3. “To Declare or Not to Declare, That is the Question”. The difficulties that emerged within the Emergency Committee and the consequent initiative taken by the Director-General once again confirm the inadequacy of a risk assessment system capable of reading the infinite variety of health events based on a purely binary logic: emergency or non-emergency. This is a critical point repeatedly highlighted in the literature (see Fidler; Patel-George; Pavone), which can only be solved by introducing a more nuanced system of warnings according to differentiated risk scenarios (Burci, p. 212). In this sense militates the draft amendment submitted by the United States to the 75th World Health Assembly (WHA), which will be discussed at the next session in 2023 (see Behrendt-Müller).

4. Globalisation, Interdependence and Collective Health Security. Monkeypox is an infectious disease transmissible from human to human and caused by a zoonotic virus first identified in 1958, whose ability to infect humans has been known since the early years of the new millennium (see Hutin et al.). While it is endemic in certain areas of West and Central Africa, where it finds host species in monkeys and other animals, it is experiencing an unprecedented spread in Europe and other regions, where its circulation had never before been documented.

Given that initial cases had no epidemiological links to areas historically affected by the disease, such a scenario suggests – in the words of the WHO – that “undetected transmission might have been ongoing for some time in those countries” and that “monkeypox virus activity has been neglected and not well controlled for years in countries in the WHO African Region”. In this context, a relationship of strict interdependence among countries clearly emerges insofar as the effective (in)capacity of one State to detect and control a health threat is destined to jeopardise collective security. Therefore, that each State can effectively exercise such control represents a general interest of the international community.

5. Zoonotic Health Threats and Prevention Obligations. Like SARS, MERS, swine flu, Ebola and COVID-19, monkeypox is also the result of a zoonotic spill over. The frequency with which this phenomenon occurs has long highlighted the need for prevention obligations to play a role in global health law, where, to date, there are regulatory gaps on this point. In fact, the IHRs contain no real obligation to prevent a health risk from arising, merely requiring States to prevent the international spread of disease once it occurs and has been identified. The IHRs are based on the outdated assumption that disease outbreaks, epidemics and pandemics represent so-called “acts of God”, which means that they are natural events entirely outside human control. From this perspective, States can do nothing but prepare for and respond when such an event occurs so as to control and mitigate its negative impact. However, modern epidemiology has shown that social, environmental and animal health factors are systematically associated with the occurrence of public health events. In this light, it becomes crucial that States undertake preventive actions (see Viñuales et al.; Villarreal). A certain degree of awareness seems to be emerging during the negotiations to conclude a new WHO convention on pandemic prevention, preparedness and response (p. 11).

Conclusions

What has been pointed out above shows that not a few shortcomings affect the governance of international health emergencies. They undermine the WHO’s legitimacy insofar as they impair its effectiveness in protecting the health of all peoples, as stated by the Preamble of the WHO Constitution. First, while a renewed awareness of its role is a development for WHO to be welcomed, in the post-pandemic world an increased attention for health threats should not translate into anxiety, which risks undermining the alert value of PHEIC declarations.

Second, it is crucial to define more clearly the perimeter of the Emergency Committee’s mandate, whose scientific advice is needed to assess the factual elements underlying the definition of PHEIC. Within the framework designed by the IHRs, there is room for political and strategic considerations, but these fall within the competences of the Director-General and the WHO Secretariat.

Third, the binary nature of the PHEIC declaration is one of the main obstacles to the effective functioning of the collective surveillance mechanism. A graded risk assessment system would shield the WHO from criticisms of excessive caution or alarmism. Forth, health threats make territorial boundaries a purely abstract concept, revealing the interdependence underlying global health security. The architecture designed by the IHR originated from this awareness. However, the monkeypox epidemic confirms that the persistent difficulties some countries have been facing in developing the necessary core capacities undermines the effectiveness of the system.

Lastly, the vast majority of recent health threats is the result of zoonotic spill over. This situation points out the need to address social, environmental and animal health factors commonly associated with the emergence of these events. However, the existing regulatory framework does not provide for positive obligations of deep prevention.

The European Union’s Sanctioning of Russian Military Officers: An Urge for Caution

Introduction

As of 21 July 2022, the European Union (EU) has adopted seven rounds of restrictive measures (commonly referred to as ‘sanctions’) against the Russian Federation following its full-scale invasion of Ukraine in February 2022. The latest two rounds (adopted on 3 June and 21 July 2022, respectively) – in addition to containing measures aimed at harming Russia’s economy – target certain Russian military officers with asset freezes and EU entry bans. Notably, those listed on 3 June were described by the European Commission’s President Ursula von der Leyen as ‘high-ranking military officers and other individuals who committed war crimes in Bucha and who are responsible for the inhuman siege of the city of Mariupol’. Notwithstanding the abundance of evidence indicating the perpetration of international crimes by Russian forces in Bucha, Mariupol (at p. 36) and elsewhere, the sanctions’ assertion of international criminal responsibility prior to any judicial process for many of those listed is problematic from the perspective of international law.

Following an analysis of the measures taken against Russian military officers on 3 June and 21 July 2022, this post focuses on those sanctioned due to an asserted responsibility for international crimes. It is argued that sanctioning military officers on the assumption of international criminal responsibility impacts their due process rights, may undermine wider accountability efforts in Ukraine, and misrepresents the legal notion of command responsibility.

EU Sanctions against Russian Military Officers

Autonomous EU sanctions – those created without a United Nations Security Council mandate – are typically created by the Council of the EU through a binding Decision (TEU, Art. 29) and an Implementing Regulation (TFEU, Art. 215) based on proposals from the High Representative of the Union for Foreign Affairs and Security Policy and/or the European Commission (here). The EU describes its sanctions as ‘non-punitive’ with the general objective of ‘bring[ing] about a change in policy or activity’ of targeted parties ‘in line with the objectives set out in the [respective] CFSP [common foreign and security policy] Council Decision’ (here, Annex I, preamble). The Russian military officers sanctioned on 3 June and 21 July were added to the Annex of Council Regulation (EU) No 269/2014, a sanctions regime established in March 2014 during Russia’s de facto annexation of Crimea ‘in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine’.

Of those sanctioned on 3 June, 45 are officers (the ranks of Major, Lieutenant-Colonel, and Colonel) of the 64th Separate Motorised Rifle Brigade of the 35th Combined Arms Army (here, nos. 1111-1155). The Brigade is described within each listing as having ‘killed, raped and tortured civilians in Bucha, Ukraine’ (ibid.). It is moreover stated that ‘[t]hese atrocities constitute crimes against humanity and war crimes’ and that each respective officer ‘was leading the actions of his military unit’ (ibid.). For one officer, Colonel Omurbekov, it is further specified that ‘[h]e was… nicknamed “the Butcher of Bucha” due to his direct responsibility in killings, rapes and torture in Bucha’ (ibid., no. 1111). Colonel-General Mizintsev, Head of the National Defense Control Center, is also listed, ‘nicknamed the “Butcher of Mariupol”’, and ‘accused of orchestrating the bombardments of the city of Mariupol, killing thousands of civilians…’ (ibid., no. 1157). Notably, he is ‘accused’ rather than assumed ‘responsible’ and there are no references to international crimes in his listing.

Of those sanctioned on 21 July, 12 are described as highly-ranked Russian military officers (e.g., Commanders) of the National Guard (Rosgvardia) or Aerospace Forces (here, nos. 1183-1191, 1209, 1211, and 1212). In the Rosgvardia officers’ listings (ibid., nos. 1185-1191), it is stated that ‘[u]nits of the [Rosgvardia]…. have also taken part in the killing, rape and torture of civilians in Bucha…’. However, the officers are not said to be responsible for the actions of their units and there is no reference to international criminal legal language. Deputy Commander-in-Chief Maksimtsev of the Aerospace Forces is described as ‘responsible for the actions of this unit’ (ibid., no. 1209) yet there are no references to international crimes in his or any of the 21 July listings.

Every officer’s listing from 3 June and 21 July concludes by stating ‘he is responsible for, supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine’. Ostensibly, this ensures that each listing remains within the parameters established by the original Council Regulation.

Notwithstanding the overall legality of EU autonomous sanctions (see Gestri, pp. 75-76), sanctioning Russian military officers is not inherently problematic and may fulfil the sanction regime’s aims of preventing further violations of Ukraine’s ‘territorial integrity, sovereignty and independence’. However, the introduction of international criminal responsibility language into the listings complicates matters. For instance, it is unclear why the 64th Brigade’s officers are deemed responsible for leading their units’ perpetration of international crimes in Bucha (here, nos. 1111-1155) while the Rosgvardia officers’ listings from 21 July, which also cite ‘killings, rape and torture of civilians in Bucha’, do not assert the officers’ responsibility for their units nor term the underlying conduct as constituting international crimes (here, nos. 1185-1191). It is likewise unclear why Colonel-General Mizintsev is simply ‘accused’ of ‘killing thousands of civilians’ in Mariupol rather than deemed responsible (here, no. 1157). As asserting the international criminal responsibility of many of the officers (namely, nos. 1111-1155) raises fundamental questions, these listings form the focus of the remainder of this post.

Implications of Asserting Criminal Responsibility

Firstly, although EU sanctions are an inherently political tool, all EU institutions are required to respect the EU’s principles externally, including ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity… and respect for the principles of… international law’ (TEU, Articles 2, 21, and 205). In addition, both the EU Charter of Fundamental Rights (EUCFR) and the European Convention on Human Rights (ECHR) apply to Member States while implementing sanctions. Although this post is too brief to examine every human right that asset freezes and travel bans can impact (generally, see here and here), the sanctions against officers of the 64th Brigade provoke human rights concerns similar to the sanctioning of (alleged) terrorists, for instance the right to judicial review and to property (Scheinin, paras. 30-42; the Kadi saga). Furthermore, particularly relevant in the present case – where international criminal responsibility is asserted – are due process rights, namely the right to a fair trial and the presumption of innocence (ECHR, Art. 6; EUCFR, Arts. 47 and 48). Although sanctions do not constitute a traditional criminal charge usually required to trigger the full right to a fair trial, it can be triggered when the impact of the sanction on an individual is similar to criminal measures (here, para.  15), especially when the sanction targets conduct ex post facto (Al-Nassar et al, pp. 16-17). In the present case, asserting – rather than alleging – responsibility for (inherently serious) international crimes likely has a negative reputational effect on those targeted and is focused on past conduct, thereby potentially triggering and violating the full right to a fair trial.

Secondly, on a more practical level, although sanctions can be used to complement criminal justice efforts, the assertion of criminal responsibility for many of those listed may undermine the EU’s other efforts to pursue accountability for international crimes in Ukraine, for instance the provision of €7.25 million to the International Criminal Court’s investigation into the Ukraine situation. Indeed, the EU’s assertion of criminal responsibility of the 64th Brigade’s officers (here, nos. 1111-1155) could foreseeably impact the likelihood of achieving successful prosecutions against them if they are ever charged and brought to trial for the crimes alleged. As highlighted by Coleman, ‘language matters’: undermining the presumption of innocence by declaring individuals responsible for international crimes may result in trials being dismissed by significantly undermining their presumption of innocence.

Further Implications: Command Responsibility

The sanctions’ vague use of international legal concepts, particularly relating to military officers’ responsibility for international crimes, is also problematic. To begin with, the listings do not specify whether the officers of the 64th Brigade are assumed responsible for the cited international crimes themselves (e.g., by ordering their soldiers to commit international crimes) or via ‘command responsibility’: when a military commander fails to either i) prevent their subordinates perpetrating international crimes, or ii) discipline those responsible once such conduct comes to their attention (ICC Statute, Art. 28(a)). The listings simply state that the 64th Brigade committed international crimes and that the respective officer was ‘leading the actions of his military unit’ (here, nos. 1111-1155). Even where international crimes are not cited, other officers are deemed ‘responsible for the actions’ of their unit (here, no. 1209). Assuming that at least some of the listings utilise the notion of command responsibility as a basis, importantly, one of command responsibility’s key requirements is that the commander operated effective control over those under their command at the relevant time (Quénivet), understood as the ‘actual possession or non-possession of powers of control over the actions of subordinates’ (Delalić et al, Trial Judgement, para. 370). In practice, a case-by-case analysis of commander-subordinate relationships is therefore required. Undeniably, many of the officers sanctioned will likely fulfil the elements of command responsibility for international crimes committed in Bucha. Indeed, the Russian military has a consistent history of tolerating – and ordering – the commission of serious international humanitarian law violations in similar circumstances (Riepl, pp. 291-292). Nevertheless, embracing a general assumption of command responsibility for all Russian military officers commanding units active in areas where international crimes are allegedly committed dilutes the principles of command responsibility. This is especially concerning as command responsibility is accepted as a key method of ensuring commanders prevent war crimes and other international crimes during armed conflict (Halilović, Trial Judgement, para. 39; Quénivet).

Conclusion

The EU’s sanctioning of Russian military officers is not inherently problematic. In fact, such sanctions may legitimately work to counteract Russia’s ongoing war of aggression against Ukraine. However, if the values of human rights and the rule of law – as enshrined within the EU treaties – are to be preserved, EU sanctions must respect the key principles of international criminal law and the rights of those targeted. For example, simply refraining from asserting international criminal responsibility – as done in the EU’s 21 July listings (here) – remedies the majority of the concerns raised in this post. As the EU considers its response to the clear perpetration of heinous international crimes, caution must be exercised in the framing of sanctions to ensure their legitimacy, legality, and effectiveness.

In This Issue – Reviews

Our Review section features one essay and five regular reviews. Heike Krieger’s essay discusses Don Herzog’s Sovereignty RIP, a forceful call to ‘bury’ a so-called ‘zombie concept’. Krieger finds the work engaging, but suggests that Herzog, largely drawing on Anglo-American practice, fails to recognize the ambiguities and ambivalences of sovereignty. In her view, sovereignty is best characterized as a Grundbegriff (in the sense of Reinhart Koselleck), whose ‘past meanings and future expectation are neither fixed in their interpretation nor linear in their historical development’. To illustrate its openness, Krieger presents two ‘alternative stories’ of sovereignty, one reflecting its emancipatory potential, the other revisiting attempts to ‘legalize’ and thereby curtail it. At the end, Harry Potter makes a surprise appearance.

The first of our regular reviews continues with the sovereignty theme: Jason Beckett finds much to agree with in Constitution-Making Under UN Auspices, Vijayashri Sripati’s critical account of ‘fostering dependency in sovereign lands’, which has ‘impos[ed] the Western Liberal Constitution … on under-developed states’. We move on to investment law, another set of rules that is considered by many to ‘foster dependency in sovereign lands’: Taylor St. John follows Nicolás Perrone on a journey into the 1950s when a group of norm entrepreneurs ‘imagined’ the future law of investment protection with lasting effects – but suggests that today’s investment law has evolved rather more than Perrone admits. 

The remainder of our review section offer diverse perspectives on international adjudication. Miriam Bak McKenna enjoyed reading Burri and Trinidad’s The International Court of Justice and Decolonisation, a detailed and instructive engagement with the recent Chagos advisory opinion. However, she wonders whether perusing the mostly traditional contributions allows one to really see ‘the legal forest for the doctrinal trees’. Jörg Kammerhofer reviews Sondre Torp Helmersen’s The Application of Teachings by the International Court of Justice, a detailed study of the ICJ’s reliance on scholarly work, and uses his review to raise fundamental questions about the limits of empirical research based on citation practices. Finally, empirical research also shapes Judging at the Interface: Deference to State Decision-Making Authority in International Adjudication by Esmé Shirlow, based on the coding of over 1700 decisions and opinions. Callum Musto notes the complexity of Shirlow’s ‘taxonomy of deferential reasoning’, but finds her attempt to ‘to inductively build an account of deference’s manifestations in practice’ to be ‘largely successful’. Enjoy reading!  

In This Issue

Not long before EJIL’s 30th birthday, EJIL’s Scientific Advisory and Editorial Boards met to discuss which topics merited the attention of a 30th birthday symposium. Two topics received a lot of support: Democracy & International Law and Inequalities & International Law. Since there is often more truth in the concept ‘both’ rather than that of ‘either/or’, we decided to work on a Symposium on Democracy and International Law, as well as one on Inequality and International Law. The Democracy Symposium was published in volume 32:1; this volume, volume 33, opens with the International Law and Inequalities Symposium. Almost all of the articles that you will find in this Symposium were submitted in response to a call for papers – a few came in through our ordinary pipeline and were added because they fitted the topic.

The first article is a contribution by Petra Weingerl and Matjaž Tratnik, who ask whether migrant workers admitted from third countries to the EU should be treated similarly to EU national workers for the purposes of free movement of workers. The authors argue why migrant workers with long-term residence and EU national workers should be treated equally.

The section continues with an article by Luca Pasquet and Lorenzo Gradoni, who closely examine the Declaration on the Rights of Peasants and Other People Working in Rural Areas and the circumstances of its adoption by the United Nations General Assembly. The authors throw light on the grass roots of the declaration, La Vía Campesina, an immense transnational coalition of peasants. They then look critically at the law-making process that led to the adoption of the declaration and reflect on its limits as well as its potential.

In the next article, David Schneiderman seeks to restore the historic memory of the 1980s debt crisis of the decolonized world and draws salient connections to the present circumstance of international investment law. He argues that now, as in the past, states’ agendas for promoting greater economic equality tend to give way to neoliberal prescriptions for attracting foreign investments.

Johan Horst follows with an investigation into the distributional choices that are inherent in the governance of transnational financial markets. His article delves into how the International Swaps and Derivatives Association exerts its influence over the Over-The-Counter Derivatives market. Horst makes an elaborate argument on how to politicize the inherent distributional consequences of the current legal infrastructure.

In the EJIL:Debate! section, Donatella Alessandrini and Bernard Hoekman disagree on how to read Global Value Chain Development reports produced by international economic institutions. In her article, Alessandrini argues that such reports regularly claim that undertaking ‘deeper trade commitments’ is necessary for countries that wish to develop and eventually promote further social and environmental protection. But, so Alessandrini suggests, the link between such deeper commitments and the promotion of greater socio-economic equality within societies is far from certain. In fact, adopting a social reproduction lens, Alessandrini suggests that deeper commitments may end up doing more harm than good by taking away regulatory power from the state, while also ‘invisibilizing’ certain kinds of labour, such as women’s reproductive labour, informal labour and migrant labour.

Whilst agreeing on the need to review global value chains through a social reproduction lens, Hoekman, in his Reply, takes issue with how Alessandrini develops her argument for the reform of international trade law. He suggests that Global Value Chain Development reports produced by international economic institutions are less influential in shaping state behaviour than Alessandrini suggests. He further argues that many developing states have actually steered clear of ‘deeper trade agreements’, maintaining a broader regulatory sphere than normally assumed. Ultimately, while Hoekman agrees that there is indeed a problem of not assigning proper value to particular forms of labour, he argues that calls for reforming the current trade regulatory framework are premature without more empirical work.

For his part, Dimitri Van Den Meerssche zeroes in on how machine learning and data analytics reshape border control in fundamentally unequal ways. The article suggests that the technological tools of data extraction and algorithmic risk assessment not only end up reproducing existing hierarchies, but also do so in a manner that is difficult to register, let alone challenge, with our existing legal vocabulary.

In her article, Shin-yi Peng goes on to discuss the role that international economic law has played in the emergence and evolution of digital inequality. Peng argues that international economic law can be employed to oppose, and perhaps even redress, digital inequality.

In the final article, Amrita Bahri and Daria Boklan pose an important question: if provisions of international trade agreements can accommodate trade restrictive measures in order to protect non-economic interests, such as famously the preservation of endangered species, can such measures also be adopted to protect women’s economic interests? The authors argue that the existing public morality in the General Agreement on Tariffs and Trade should be interpreted in a gender-sensitive way so as to encompass measures taken in the interest of women’s economic empowerment. They also suggest that states can, and should, negotiate the inclusion of specific gender exceptions in their future trade agreements.

Our Roaming Charges, by Lorenzo Gradoni, combines architectural perfection and striking perspective to suggest ‘Blue Sky Thinking’, reminding us of the importance of new and original ideas in scholarship. 

For our Last Page, we return to the overall theme of inequalities with a poem by Charlotte Anna Perkins Gilman, one of America’s earliest feminists. She wrote ‘The Anti-Suffragists’ in 1898, portraying in sometimes caustic tones the conservative women who opposed or cared little for women’s suffrage, describing them as ‘women uniting against womanhood’.

Vital Statistics

We publish our customary EJIL statistics below. The numbers largely speak for themselves. We make every effort to publish diverse scholarship (methodologically, conceptually, normatively and subject matter wise) and to diversify our authorship (gender, regions, seniority, and so on). We are, of course, ‘prisoners’ of our mailbox – the pool of articles submitted to EJIL.

We are often asked about our policy and practice of ‘commissioning’ papers. This was a common practice in the early years of EJIL, but in recent times we do this quite sparingly. We commission the annual Foreword. This year’s Foreword will be written by Tony Anghie – A Retrospective and Prospective of TWAIL (we have seen the first draft and won’t disclose more for the moment …). We commission, too, the Afterword (the brief reactions to the Foreword), but some articles of the Afterword also reach us spontaneously.

A distinct feature of EJIL is the proliferation of Debates (at least one in almost every issue). We commission some of the ‘Replies’, but not infrequently these, too, are unsolicited (and welcome!). Our motto is ‘when scholars vie, wisdom mounts’. We believe that in our Debates the whole is greater than the sum of the parts, to the benefit of our readers and the scholarly mission of EJIL. Overwhelmingly, the Symposia we publish, and the selection of authors therein, are initiatives of our readers, including members of our editorial boards. All symposium papers are subject to the same blind peer review as other papers. For the two large Symposia that EJIL board members recently convened – one on Democracy, the other on Inequality – the contributions were the result of Calls for Papers.

As to linguistic diversity, the numbers in our statistics refer to the language of the country of the authors’ academic institution. Given that universities in many English-speaking countries have faculty members whose native language is not English, the numbers in the statistics are likely not as positive as the real picture.

Finally, there is one element that the numbers do not reveal: the age demographics. We are proud of our track record in publishing young scholars – a commitment and tradition from our very first issue more than 30 years ago: issue no. 1 opened with an article by a young, relatively unknown scholar.

1 Regional Origin (in percentages of total) 

 

All Submissions
% of total

Accepted articles
% of total

Published articles

% of total

Europe

41

45

49

United Kingdom

18

22

20

Oceania

5

0

3

Africa

2

0

0

Asia

18

8

11

South America

3

1

0

North America

13

24

17

 

2 Linguistic Origin (in percentages of total)

 

All Submissions
% of total

Accepted articles
% of total

Published articles

% of total

English-speaking countries

36

45

40

Non-English-speaking countries

64

55

60

 

3 Gender (in percentages of total) 

 

All Submissions
% of total

Accepted articles
% of total

Published articles

% of total

Male

63

69

68

Female

37

31

32