Support Jus Contra Bellum

Oliver Corten has a post on EJIL Talk!: (http://www.ejiltalk.org/a-plea-against-the-abusive-invocation-of-self-defence-as-a-response-to-terrorism/) in which he presents a plea against abusive invocation of self-defense within the context of counterterrorism operations.  I wrote about an emerging Responsibility to Prevent Terrorism doctrine after Colombia’s raid in Ecuador in which it targeted Raul Reyes (second in command of the FARC) in 2008.  Both the OAS and the Rio Group reaffirmed the principles of sovereignty,  abstention from the use of force, respect for the right of territorial integrity, and the duty of non-intervention.  Yet, they also agreed that there is a duty to act in a preventive and responsive manner to terrorism but highlighted that alternatives should be pursued within multilateral or bilateral frameworks.(See “The ‘Unrule of Law’: Unintended Consequences of Applying the Responsibility to Prevent to Counterterrorism, A Case Study of Colombia’s Raid in Ecuador” in C. Bailliet, Security: A Multidisciplinary Normative Approach Brill 2009).

Since then, there has been a steady trend towards supporting recognition of an exception to the prohibition of the use of force as the new rule.  Please read Corten’s plea and consider signing:  (http://cdi.ulb.ac.be/contre-invocation-abusive-de-legitime-defense-faire-face-defi-terrorisme/)

Write On! Call for Papers- Gender on the Bench

 

PluriCourts/IntLawGrrls are proud to announce a conference on Gender on the Bench scheduled in the Hague January/February 2018.   At present, women judges make up an average of 17% of international courts and tribunals.  There is significant disparity regarding the participation of women on the bench of different international legal regimes.  This conference seeks to promote a higher level of understanding of both current challenges and best practices in promoting women onto international courts.  We seek to include papers addressing various topics, including:

Whether gender affects the interpretation of legal principles, facts, precedent, rules of procedure, rules of evidence, etc.?

Whether women judges exhibit a higher or lower level of judicial restraint in participation in oral hearings, written decisions, separate concurring opinions, and dissent opinions? Does the time on the bench since appointment impact lower or higher restraint?

How does being the first female or only female judge change the behavior of those judges? How does it change the behavior of other male judges?  Do other social identities, e.g. nationality, ethnicity, or language impact the influence and behavior of judges?

How does the judge’s particular expertise impact her participation and output? Does her expertise matter more for particular legal regimes (e.g. human rights as opposed to trade law)?

Do women judges tend to have different experience from male judges before their appointment to tribunals? (e.g. background in human rights v. criminal law court background)

How do women judges describe their roles in interviews, speeches, articles, etc. outside the court?

Do some areas of international law call for legalistic and professional-socialization modes of judicial decision-making while others permit application of realistic, personal discretion modes of decisionmaking?

How can we address intersectionality and other kinds of diversity? What regions in the world are women judges coming from and why?

What impact have female judges had on different legal regimes? Are they continuing to influence their fields?

Understanding internal politics- what cases are female judges chosen for? What roles are they awarded at the court?

Why women are underrepresented in the practice of international commercial and investment arbitration, as well as trade law and law of the sea?

Why do parties, law firms, and arbitral institutions, when tasked with selecting a chairperson, do not pick women for that role?

Are there best practices in terms of mentoring, gatekeeping, and sponsoring women on the path towards the international bench?

Are female judges interrupted more than male judges? Do judges ever defer to their areas of expertise?

How does the media portray female judges?

 

Papers on related topics are welcome!

 

Please submit an abstract and CV to: c.m.bailliet@jus.uio.no

Final Date for Submission of Abstract and CV: March 2017

 

Go On! Adjudicating International Trade and Investment Disputes: Between Interaction and Isolation

The PluriCourts Centre of Excellence at the University of Oslo will host a two day conference on international trade and investment disputes.

The conference will take place on Thursday and Friday, August 25-26 at the Faculty of Law, University of Oslo, Norway.

The webpage with the final programme and registration information is available here.

For more information, please contact: Daniel Behn, PluriCourts (d.f.behn@jus.uio.no)

 

 

The conference will focus on the relationship, interactions and comparisons between the international trade and investment regimes in the context of adjudication of disputes.

 

The conference will present research from the disciplines of law and political science relating to three themes:

 

1) the new mega-regionals

2) comparisons and practices

3) cross-fertilization and learning

 

Historically, the global regulation of international trade and investment relations have been closely interrelated; but in the post-war period, international trade law and international investment law developed on largely divergent paths. While international trade regulation has culminated in a multilateral regime with a permanent dispute settlement mechanism, the international regulation of foreign direct investment is primarily governed by 3500 essentially bilateral treaty relationships calling for ad hoc investor – state arbitration potentially to be hosted by a variety of international institutions. Despite these seemingly distinct structures, there is a recent trend that some say signal a move towards regime convergence: most clearly seen in the rise of mega-regional free trade agreements (FTAs) with investment chapters.

 

This potential convergence may be deceiving, however. The investment chapters of FTAs remain separate from the rest of the agreements and provide for distinct rules and procedures on dispute settlement. Moreover, issues of overlap between trade chapters and investment chapters have not been resolved, which means that the same case could possibly be raised simultaneously in two separate disputes under the same FTA. Legal disputes based on investment chapters in FTAs to date (ie under the NAFTA and DR-CAFTA) appear to interpret the investment protection chapters as standalone agreements with little or no reference to other sections of the FTAs.

Despite the limitations to integration that this new generation of trade and investment agreements may represent, there are other areas of interaction between the trade and investment regimes that could provide better evidence of a gradual move towards cohesion. This conference will look at the development of the new mega-regionals, but also the ways (or lack thereof) that the trade and investment regimes share practices and cross-fertilize. Below you will find the conference programme.

 

Conference program:

 

Adjudicating international trade and investment disputes: between interaction and isolation

 

Thursday, August 25

 

9:00 – 9:15

Welcome and introduction to the conference

 

Daniel Behn, Ole Kristian Fauchald, Geir Ulfstein and Michelle Zang, PluriCourts

 

9:15 – 10:30

The new mega-regionals

 

The mega-regionals: innovation versus imitation?

Manfred Elsig, World Trade Institute

 

Envisioning a model role for mega-regionals in international economic law

Tania Voon, University of Melbourne

 

10:45 – 12:30

The new mega-regionals – paper presentations

Chair and discussant: Jose Alvarez, New York University

 

International trade law in China: from paternalism to partnership

Greg Shaffer, University of California – Irvine

 

The scope of investment protection under newly negotiated FTAs: piecemeal reaction or serious reassessment?

Kate Parlett, 20 Essex Street

 

Participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

Joanna Jemielniak and Gunes Ünüvar, University of Copenhagen

 

The creeping multilateralization of investment dispute resolution under EU trade and investment agreements

Hannes Lenk, University of Gothenburg

 

1:15 – 3:00

The new investment court proposal – panel debate and discussion

Moderators: Daniel Behn and Malcolm Langford, PluriCourts

 

Completion of the legal analysis by the WTO appellate body – lessons for an appeal tribunal of an international investment court

Nicholas Lamp, Queens University

 

The Appellate Body of the WTO: obiter dicta, judicial economy, interpretation and the ban on adding obligations or diminishing rights

Lothar Ehring, DG Trade

 

Debate: Debating the pros and cons of the new EU investment court proposal

Julie Maupin, Max Planck Institute

Nikos Lavranos, EFILA

 

3:15 – 4:00

Cross-fertilization and learning

 

Converging divergences: a common law of international economic relations

Sunjoon Cho, Chicago-Kent College of Law

 

4:15 – 6:00

Cross-fertilization and learning – paper presentations

Chair and discussant: Laurence Boisson de Chazournes, University of Geneva

 

Cross-fertilization between the international trade and investment regimes

Markus Wagner, University of Warwick

 

Judicial interaction between trade and investment adjudication: theoretical foundation and empirical constraints

Michelle Zang, PluriCourts

 

Entry rights and investment in services: convergence between regimes?

Murilo Otavio Lubambo de Melo, University College London

 

The driving forces of the convergence of WTO dispute settlement mechanism and international investment arbitration

Fenghua Li, Renmin University of China

 

7:00

Dinner for speakers

Introduction: Geir Ulfstein, PluriCourts

 

The multiplicity of international courts and tribunals: factors of convergence and divergence

Georges Abi-Saab, Graduate Institute

 

Friday, August 26

 

9:15 – 10:30

Comparisons and practices

 

Comparative judicial practices: comparing dissent practices in the trade and investment regimes

Jeff Dunoff and Mark Pollack, Temple University

 

Comparing the East African and Caribbean Courts of Justice: explaining judicial behavior

Theresa Squatrito, PluriCourts

 

10:45 – 12:30

Comparisons and practices – paper presentations

Chair and discussant: J. Christopher Thomas, National University of Singapore

 

Do different treaty purposes matter for the interpretation of WTO agreements and investment agreements

Graham Cook, World Trade Organization

 

The use of public international law sources in WTO dispute settlement (with a side glance to the approach taken by investment tribunals)

Vitaliy Pogoretskyy, Advisory Centre on WTO law

 

Approaches to external precedent: invocation of international decisions in investment arbitration and WTO dispute settlement

Niccolo Ridi, King’s College London

 

Sharing interpretive functions between states and tribunals

Yuliya Chernykh, University of Oslo

 

1:30 – 2:45 Roundtable discussion – between isolation and interaction?

Moderator: Ole Kristian Fauchald, PluriCourts

 

Georges Abi-Saab, Graduate Institute

Jose Alvarez, New York University

Laurence Boisson de Chazournes, University of Geneva

Giorgio Sacerdoti, Bocconi University

  1. Christopher Thomas, National University of Singapore

 

3:00 – 4:45

Comparisons and practices – paper presentations

Chair and discussant: Giorgio Sacerdoti, Bocconi University

 

Regime shifting of IPR law-making and enforcement to international investment law

James Gathii and Cynthia Ho, Loyola University Chicago

 

On the interchangeability of trade and investment disputes: potential risks and opportunities

Andreas Ziegler, University of Lausanne

 

Adjudicating performance requirements disputes: blurring lines of trade and investment dispute settlement

Julien Chaisse, Chinese University of Hong Kong

 

Can a court’s function adequately explain the exercise of inherent powers: a comparison of the powers of the WTO Appellate Body and ICSID tribunals

Ridhi Kabra, University of Cambridge

 

Conference Organizers:

Daniel Behn, Postdoctoral Researcher, PluriCourts

Ole Kristian Fauchald, Professor of Law, PluriCourts

Geir Ulfstein, Professor of Law and Co-Director, PluriCourts

Michelle Zang, Postdoctoral Researcher, PluriCourts

 

A Call for Transparency in Nominations to International Committees and Tribunals

The UN Committee on the Elimination of Discrimination against Women is a monitoring body composed of 23 experts of high moral standing and competence in the field covered by the Convention on the Elimination of All Forms of Discrimination against Women. This year there was a call for nominations to replace those experts whose terms are expiring in December 2016.  As Norway has always been an important leader within the arena of Women’s Rights, there was an expectation that its nomination would be laudable.  Furthermore, in 2015, Norway signed the GQUAL Declaration which calls for gender parity when appointing members of the international judiciary and committees.

Surprisingly, this month, Norway backtracked its commitments by appointing a man, Gunnar Bergby, Secretary-General of the Supreme Court of Norway, for membership to the CEDAW Committee instead of the female candidate, Anne Hellum, the renowned professor of Women’s Law. This came as a shock to the Norwegian and Swedish Women’s lobby groups, both of which had supported Anne Hellum due to her leadership and scholarship within the Department of Women’s Law, Children’s Law, and Equality and Discrimination Law, teaching and research of the CEDAW in Southern and Eastern Africa, and publications on the CEDAW.  Mr. Bergby worked with the Gender Equality Ombudsman thirty years ago

Given that the past three candidates nominated by Norway to the CEDAW have been men, and that there is a clear imbalance between the competence of the two candidates, there appeared to be a contradiction with Article 8 of the CEDAW which sets forth that the state should : “take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.”   Norway appears to have completely reversed its commitment to gender parity and strikes one as not being very interested in the actual competence of candidates when making appointments.  This suggests a lack of respect for the international human rights system as a whole.  Although Norway may argue that they want to ensure that there are male members within the CEDAW Committee (where the majority  are women) at least they should have nominated a man who has competence within the field.  It is ironic that Norway is considered to be a leader in Women’s Human Rights when its nomination arguably weakens the treaty monitoring system.

The Refugee Crisis and the Battle for Europe’s Soul

The University of Oslo had the honor of hosting Frances Webber as part of its series on Forced Migration.  She provided a stirring account of the present crisis and its impact on the legal and political systems within Europe:

The refugee crisis has polarized the citizens of Europe, between compassion and hostility, solidarity and fear.  But at the level of government, only Angela Merkel bucked the European trend of closing the door- and she had to fight her own party.  In the rush to reinforce Fortress Europe, across the continent standards of justice and of decency are being eroded, and the concept of universal human rights is under unprecedented threat.  Children drown in sea voyages made necessary by rigid visa requirements and punitive carrier sanctions, stand for days in rain, cold and mud at borders and ‘hotspots’, live in shanty towns with no sanitation, dependent on volunteers for food and shelter.  Closed borders and criminalization of unauthorized entry deny rights to access to asylum; procedures are curtailed, with fewer safeguards against wrongful decisions.  Inhuman policies such as confiscation of valuables to pay for detention, are employed or threatened.  Vulnerable people are detained, and deported to danger and death.  The role of lawyers is vital in challenging abuses  and double standards, but so is that of civil society in demanding structures of accountability.

In her lecture, she referred to a decision by the Upper Tribunal on children at Calais, available here .   She also discussed the findings of her report “Unwanted, Unnoticed: an audit of 160 asylum and immigration-related deaths in Europe

The lecture was followed by a debate in which the accountability of both state and IOs was raised, as well as the need for greater transparency, and support for civil society.  The event was conducted in English (even though the title of the video is in Norwegian) and may be viewed here.

Photo by Al Jazeera

Write On! Call for Papers: Adjudicating International Trade and Investment Disputes: Between Interaction and Isolation

PluriCourts conference

Thursday and Friday 25-26 August 2016

Call for papers 1 January 2016

Abstracts due 1 March 2016

Notifications of acceptance 15 March 2016

Draft papers due 15 August 2016

The PluriCourts Centre of Excellence at the University of Oslo is organizing a conference titled ‘Adjudicating international trade and investment disputes: between interaction and isolation.’ The conference will be hosted at the Faculty of Law of the University of Oslo on Thursday and Friday 25-26 August 2016. Submission procedures and timelines are detailed at the end of this call.

This conference aims to focus on the relationship, interactions and comparisons between the international trade and investment regimes in the context of adjudication of disputes. The conference will welcome research across the disciplines of law, political science, and philosophy relating to three themes: the new mega-regionals, comparisons and practices, and cross-fertilization and learning.

Historically, the global regulation of international trade and investment relations have been closely interrelated; but in the post-war period, international trade law and international investment law developed on largely divergent paths. While international trade regulation has culminated in a multilateral regime with a permanent dispute settlement mechanism, the international regulation of foreign direct investment is primarily governed by 3500 essentially bilateral treaty relationships calling for ad hoc investor – state arbitration potentially to be hosted by a variety of international institutions. Despite these seemingly distinct structures, there is a recent trend that some say signal a move towards regime convergence: most clearly seen in the rise of mega-regional free trade agreements (FTAs) with investment chapters.

This potential convergence may be deceiving, however. The investment chapters of FTAs remain separate from the rest of the agreements and provide for distinct rules and procedures on dispute settlement. Moreover, issues of overlap between trade chapters and investment chapters have not been resolved, which means that the same case could possibly be raised simultaneously in two 2

separate disputes under the same FTA. Legal disputes based on investment chapters in FTAs to date (ie under the NAFTA and DR-CAFTA) appear to interpret the investment protection chapters as standalone agreements with little or no reference to other sections of the FTAs.

Despite the limitations to integration that this new generation of trade and investment agreements may represent, there are other areas of interaction between the trade and investment regimes that could provide better evidence of a gradual move towards cohesion. This conference aims to look at the development of the new mega-regionals, but also the ways (or lack thereof) that the trade and investment regimes share practices and cross-fertilize.

Theme 1: The new mega-regionals

The first theme will focus on research relating to the increasing negotiation of mega-regional FTAs with investment chapters and what effects these agreements will or could have on the adjudication of international trade and investment disputes. The conference will seek to discuss state-of-the-art research, from both legal and social science perspectives, relating to the dispute settlement options under FTAs, including existing (inter alia NAFTA, ECT, ASEAN, DR-CAFTA) and emerging (inter alia CETA, TPP, RCEP, TISA, TTIP). Additionally, and given the EU’s recent preference for FTAs, the conference will also seek research on how the EU’s post-Lisbon trade and investment policy may have spill-over effects for the global trade and investment regimes. Papers under this theme could address the following:

• Analysis of the TPP, TTIP drafts and other recently signed FTAs: how will disputes be resolved?

• The relationship between the WTO agreements and FTA provisions: potential conflicts or cohesion in the adjudication of disputes?

• What relevance will the shift towards mega-regionals have for the legitimacy of international adjudication?

• Recent investment arbitration jurisprudence under FTAs with investment chapters: new developments?

• The proposal for a TTIP investment court: a dispute settlement mechanism for investment protection modelled on the WTO?

• The EU strategy for extra-EU BITs after Lisbon: A potential move towards multilateralization?

Theme 2: Comparisons and practices

The second theme of the conference will invite research focusing on comparisons between the WTO dispute settlement mechanism and investment treaty arbitrations tribunals; and research that focuses on the practices of WTO disputes and investment tribunals. The conference will also seek research relating to the distinct practices and structures of international trade and investment disputes may affect both their normative and sociological legitimacy. There are significant structural differences between WTO dispute resolution and investment treaty arbitration. Despite these differences, there are some similarities in the subject matter (global economic governance) that make these systems of international dispute settlement worthy of comparison. Papers under this theme could address the following:

• Are there important? Salient? differences in the appointment and selection of adjudicators in investment arbitration and WTO panels?.

• Comparative approaches in managing legitimacy: how do arbitrators, judges and institutions in trade and investment adjudication legitimize themselves?

• Public opinion and the anti-globalization movement: a valid constraint on the development of trade and investment adjudication?

• What are the roles and influences of institutional secretariats in the adjudication of trade and investment disputes?

• Litigating trade and investment disputes: what is the role of legal counsel in regime shaping and targeting?

• How have the trade and investment regimes comparatively dealt with issues of systemic interpretation and the inclusion of extra-sector concerns such as human rights and the environment?

• The possibilities for multilaterizing investment treaty law: are there lessons to be learned from the WTO?

Theme 3: Cross-fertilization and learning

The third theme will focus on the interaction between the international trade and investment regimes in the context of adjudication. The conference seeks research on how the interaction (or lack thereof) between WTO disputes, FTA trade disputes, investment treaty arbitration and other areas of international law affects the legitimacy and efficacy of international economic governance. The conference will seek both social science and legal research focusing on issues of judicial dialogue between trade and investment tribunals; and how cross-fertilization of ideas and practices between tribunals affects the development of the jurisprudence and the legitimacy of these institutions. Papers under this theme could address the following:

• Issues relating to overlapping jurisdiction: increasing fragmentation or opportunities for coherence?

• Is there judicial dialogue and cross-fertilization between trade and investment tribunals?

• Are there differences or similarities in how trade and investment tribunals deal with issues of legal interpretation and with the precedential value of previous awards?

• Treaty shopping issues in trade and investment disputes: is it actually a problem?

• The relationship between investment chapters and other chapters in FTAs: investment chapters as stand-alone agreements?

• What are the implications of the overlap between the trade in services and investment protection regimes?

Submission procedure

We invite researchers from the disciplines of law, political science and philosophy to submit abstracts of no more than 500 words along with a CV of no more than two pages to Dr. Daniel Behn: d.f.behn@jus.uio.no by 1 March 2016. Please indicate in the subject line of the email as to which Theme your abstract corresponds. Selection of papers will be based on abstracts as assessed through a blind process of a five person committee. Notification of successful applicants will be made by 15 March 2016. We will aim to select approximately 15 papers for presentation. Selected applicants will be required to submit a draft paper of 5000 to 7000 words two weeks prior to the conference. Travel funding may be available to paper presenters. Please indicate in the application your needs for funding.

 

Go On! Conference on Reforms of Individual Complaint Mechanisms

Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?

 

The concluding conference of the MultiRights project will take place at the University of Oslo on February 29 and 1 March 2016. The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues:

  1. Procedure of selection of members and judges
  2. Case load situation
  3. Quality of reasoning
  4. Margin of appreciation and subsidiarity

For more information and to register for the event, please visit the conference website.

Write On! Strengthening the Validity of International Criminal Tribunals Conference

 

 

Conference hosted by Pluricourts, University of Oslo

29 – 30 August 2016

 

CALL FOR PAPERS

 

International criminal law (ICL) re-emerged onto the global stage in the 1990s in a flood of good will and optimism. Two decades later, with its honeymoon stage well behind it, states, practitioners, scholars and others are asking where we go from here. The ad hoc tribunals are in the process of winding down amid mixed reviews. The creation of the International Criminal Court (ICC) has failed to live up to many of the optimistic expectations that were imposed upon it, with some African states such as Namibia and South Africa taking steps to withdraw from the Rome Statute. At the same time, calls are being made for new courts and ad hoc jurisdictions to be created as a solution to atrocities and for new crimes to be added to the list of core international crimes. The processes of international criminal justice are also under scrutiny, with some asking whether international criminal courts are trying to do too much. Some see an answer in complementarity- that national courts should assume the responsibility for trying those responsible for the worst atrocities, but this too may not be the panacea it appears to be. This conference seeks to explore these controversies. It seeks practical solutions to make international criminal justice more effective and relevant as it enters a more mature stage in its development.

 

The conference will bring together a mix of practitioners and scholars from the field of international criminal justice to exchange perspectives and to suggest solutions. We are particularly interested in the experiences of those who work in the field- fact finders, prosecution and defence lawyers, judges, NGO representatives and those involved in the post-trial stage such as members of the prison service. What challenges do they face? What works? What does not work?

 

We seek papers pursuing empirical, normative, comparative or theoretical approaches, and encourage papers applying alternative theories such as feminist theory, critical legal theory and TWAIL perspectives. We welcome contributions from law and the social sciences, including philosophy, sociology, criminology, psychology and history.

 

Papers are requested on the following topics:

 

 

  1. More Courts? More Crimes?

 

Despite the existence of the permanent ICC, there continue to be calls for new jurisdictions to be created as a solution to atrocities- an ad hoc court for Syria, an International Court against Terrorism, an EU sponsored tribunal for the prosecution of war crimes and alleged human trafficking in Kosovo, a special tribunal for South Sudan. Is there a need for new courts? What does this say about the ICC itself, the political realities of ICL institutionalisation, the realities of contemporary violence and our imagination as responders to large-scale human suffering?

 

There are several challenging issues of global importance that ICL does not address at present, is it time for this to change? Are there other crimes which should be included within the remit of international criminal law, such as ecocide, terrorism, narcotics, piracy, human trafficking, money-laundering and corruption, that would make international criminal law more relevant and would increase its effectiveness?

 

  1. Making the processes of international criminal justice more effective

 

What can be done to streamline international criminal procedure without undercutting the legitimate interests of key constituencies, such as states, victims and communities affected by violence, or the need to safeguard fair trial guarantees? Are we being overambitious in our expectations of ICL and its institutions? What role does the judiciary play in increasing the effectiveness of ICL procedure? Does the way that common and civil law traditions intermingle in ICL enhance the system or confuse it?

 

How are the various functions and responsibilities of a fully-fledged criminal justice system distributed within and across international criminal courts and tribunals? Does the particular way in which they are formulated leave any of these functions and responsibilities inadequately covered? Should that affect how we critique the courts and tribunals? For example, does the fact that each international criminal court or tribunal has its own office of the prosecutor, rather than, say, an independent international prosecutor’s office with standing to appear in multiple jurisdictions, colour the way in which we debate issues such as prosecutorial independence, accountability and selectivity? Should there be an international criminal defence bar? An international public defender’s office? Might the accountability of child soldiers be better addressed if more international courts were like the Special Court for Sierra Leone, with jurisdiction and special provisions over juvenile offenders? What would make the presidents of international criminal courts and tribunals more suitable as authorities responsible for overseeing the enforcement of sentences and other penitentiary matters for international convicts? How can reparations for victims of international crimes be awarded equitably across institutions and regions? How can we make our critiques pertinent, on point and meaningful in general?

 

In what way do different actors, such as states, various organs of international criminal courts and tribunals, states, NGOs and others interact with each other? Does this relationship function in a way which makes international criminal justice more effective? Do their expectations and actions really converge around international criminal justice institutions in a way that strengthens the system? How can this be improved?

 

  1. Learning from and relying upon other courts

 

Some see complementarity as providing at least one answer to making international criminal justice more effective and relevant. However, what is the reality? What are the dilemmas of complementarity? How well is complementarity working in different countries, such as the Balkans, Bangladesh and Sri Lanka? Does Libya give us reason to pause over what consequences we are prepared to accept under the banner of positive complementarity? What regional approaches are being taken? Should regional criminal courts (e.g. the new jurisdiction envisaged in Africa) be encouraged as an intermediate layer in the ICC’s complementarity regime and, if so, what adjustments and safeguards would be needed? What problems are there? How can these problems be solved?

 

International criminal courts and tribunals are not the first kind of international institutions to have experienced similar challenges- the European Court of Human Rights and the WTO for example. How have these institutions responded? Are there lessons that international criminal institutions can learn?

 

Paper proposals should be emailed to c.m.bailliet@jus.uio.no by 29 February 2016 with an abstract no longer than 500 words. Please include your CV. All proposals will be answered by 15 April 2016. Draft papers should be submitted by 30 June 2016. Conference papers will be selected for publication either in a special edition of a journal or in an anthology.

 

Launch of the Nordic Women Mediators’ Network

On November 27th 2015, representatives of the Ministries of Foreign Affairs of Norway, Sweden, Finland and Iceland gathered at the Nobel Peace Centre in Oslo, Norway to launch the Nordic Women Mediators Network.  State Secretary, Tore Hattrem, of MFA Norway explained that this initiative was inspired by a South African network of women mediators.   He expressed the belief that the implemenation of sustainable peace could only be achieved by including meaningful participation of women in peace negotiations.  The persistent lack of women peace negotiators in spite of UN Security Council Resolution 1325 was recognized, between 1992 and 2011, only 9% of peace negotiators and 2% of lead mediators were women.  Hattrem noted that it was important for the Nordics to lead by example, hence they should ensure that their own delegations and negotiation teams are gender balances and address gender issues, as well as support the appointment of women as UN Special Envoys, Special Representatives, Ambassadors, and other Offices.  He concluded by stating “It is not about counting women, it is about making women count.”  Ambassador Ann Bernes (MFA Sweden) underscored how this network fit in within Sweden’s Action Plan for a Feminist Foreign Policy.  Stefan Haukur Johannesson (MFA Iceland) suggested that it was essential to engage men in supporting gender awareness, encouraging them to become agents of change to support gender empowerment.

There was discussion about the common heritage of the Nordic countries in implementing gender equality through public education, health care, child care, social safety nets, etc. In addition “Nordic” was considered to be a good brand name in international affairs that could help push the aspiration of promoting gender empowerment throughout the world.

The launch included a high-level panel of women mediators and negotiators who provided vivid reflections on their experiences in the field.  Hilde Frafjord Johnson, former Special Representative of the Secretary General (SRSG) and Head of the UN Mission in South Sudan (2011- 2014), observed that since women are more seldom belligerents they are more often excluded from cease fire negotiations.  She indicated that peace negotiations should ideally be divided into different stages, separating the cease fire stage from the state building/peace building stage which would address political and social issues relating to marginalization and exclusion that should include women.

Greta Gunnarsdottir (Ambassador of Iceland) commented that women always face the challenge of having to prove that they are competent and that they have something to bring to the table, whereas in the case of men this is never questioned, rather it is taken for granted.  She pointed out a climate of indifference or irritation regarding gender issues among many actors.  The lack of a woman UN Secretary General and the presence of only token women representatives within the UN General Assembly were noted as giving evidence of the poor status of women around the world.

Karin Landgren ,former Special Representative of the UN Secretary-General who led the UN Missions in Liberia, Nepal, and Burundi, called for increased support of conflict prevention and mediation efforts, in spite of the fact that these approaches are not easily marketed to donors who may not be oriented towards long term perspectives.

The objectives of this network are:

  • To increase the number of Nordic women that are actively involved in international peace mediation efforts.
  • To connect with and promote networks of women mediators in the South, both at country level and in regional organizations.
  • To serve as a pilot for similar initiatives in other regions or at the international level, through close coordination with the UN.

 

One member of the audience recounted  the Nordic Women’s Peace Marches against nuclear weapons in Europe (1981), in the USSR (1982), and USA, suggesting that Nordic women have a long history of cooperation for peace and that this initiative had good prospects for success.

This event was co-hosted by PRIO and NOREF.

Gender Imbalance in International Courts

The 11th ESIL Annual Conference on the Judicialization of International Law- A Mixed Blessing? included a panel addressing the significant gender imbalance in international courts, affecting both adjudicators and the legal teams appearing before them.  Nienke Grossman of the University of Baltimore presented her paper “Shattering the Glass Ceiling in International Adjudication” (forthcoming Virginia Journal of International Law) which reveals the opaque nature of selection procedures and the lack of quotas or targets to achieve gender balance on the courts. She combines both quantitative and qualitative data on 12 different international courts.   She contrasts international courts which lack gender representativeness requirements as having only 15% women judges with international courts which have targets or representative language as having 33% women judges.  Most poignantly, she reflects upon the element of democratic legitimacy: “Both women and men are the beneficiaries of the work of international courts and should be involved in judicial decision making for these institutions to possess justified authority.” Stephanie Hennette Vauchez of Universite Paris Ouest Nanterre pursued the issue through her paper- “More Women -But Which Women? The Rule and the Politics of Gender Balance at the European Court of Human Rights” available in the European Journal of International Law.  She sets forth the Council of Europe’s parliamentary assembly rule of gender balance on the list of candidates presented by states for the post of judge.  She discusses strong opposition and counter-mobilization to implementation of the rule- thus flagging the importance of follow up engagement.  She warns that although there are currently 18 women on the bench, there is a need to be wary given the prevalence of all male lists.  The final paper was presented by Cecily Rose of the Grotius Centre for International Legal Studies at Leiden Law School, titled “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012” (co-written with Shashank P. Kumar and published in the European Journal of International Law as well).   Rose examined the composition of legal teams appearing before the ICJ and demonstrating grave gender imbalance, in addition to imbalance regarding nationality, development status, and geographic region of country of citizenship, as well as professional status (lawyers v. professors).  She concludes that only 4 members of the ICJ Bar were women and accounted for 2.91 per cent of total speaking time.  85 per cent of the Bar were nationals of developed states and the majority were international law professors.

All three papers call for greater transparency and left the audience with a profound sense that there is a need to heed this recommendation both at national and international levels; as the issue of appointments to international courts is indeed transnational in nature.

It appears that the next step will be to support the GQUAL campaign which launches this upcoming week at the United Nations in New York.  It seeks to raise awareness about the lack of women’s representation in international institutions, the lack of fair and transparent procedures at national and international levels to nominate candidates.  It calls for the establishment of guidelines, measures, and mechanisms on national and international levels to attain gender parity and calls upon States to guarantee parity when presenting and voting for candidates.  Of particular interest, it will seek to study the underrepresentation of women in international courts from the perspective of non-discrimination.  GQUAL will issue a Declaration which will serve as a public petition for all to sign!  It is hoped that all IntLawGrrls will disseminate this campaign!