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Congratulations, Dr. Kersten

by Kevin Jon Heller

Mark Kersten, creator of Justice in Conflict, long one of the most important blogs in international criminal justice, successfully defended his thesis yesterday at the LSE. Heartfelt congratulations, my friend!

And, of course, now that Mark has the word “Dr.” in front of his name, we can finally take him seriously.

A Question for My European Colleagues About PhD Applications

by Kevin Jon Heller

Here is the question: are there any norms governing how many potential supervisors a student looking to apply for a PhD can or should approach? I get a few emails expressing interest in my supervision each month, and they generally fall into three categories: (1) proposals that are clearly directed toward me, because they discuss my work and propose topics I’ve written about; (2) proposals that have nothing to do with my work or interests and seem to be little more than academic spam; and (3) proposals that seem to be directed towards me, because they discuss my work, but propose topics that are at the very outer edge of my intellectual interests. I have little trouble with the first two categories — proposals in the first tend to be strong; proposals in the second tend to be anything but. It’s the third category that I find difficult to deal with. The students are often more than qualified and the proposals are usually quite good. But I cannot escape a sneaking suspicion that even when the proposals are addressed specifically to me, I am one of many potential supervisors to whom the student has written.

To be honest, I never know what to do in that situation. Given the uncertainties of acceptance and financial support — particularly in the UK — I understand that potential PhD students need to apply to multiple universities and thus need to approach multiple potential supervisors. But I also want there to be some kind of intellectual connection between me and my PhD students; I don’t want to work with someone just because he or she knows my name and sees the “Professor” in my title.

So, European colleagues: how do you handle situations like these? How many simultaneous approaches is too many? Is it kosher to write back to a student and ask how many others they’ve written to? Can I ask for names?

Any advice would be most appreciated…

Dapo Akande Promoted to Professor of Public International Law at Oxford

by Kevin Jon Heller

I want to congratulate my friend — and friend of Opinio Juris — Dapo Akande on his promotion to Professor of Public International Law at Oxford University. It’s a massive accomplishment, and one richly deserved. Here is a snippet of Dapo’s impressive bio:

Dapo Akande is also Yamani Fellow at St. Peter’s College and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) & the Oxford Martin Programme on Human Rights for Future Generations. He has held visiting professorships at Yale Law School (where he was also Robinna Foundation International Fellow), the University of Miami School of Law and the Catolica Global Law School, Lisbon. Before taking up his position in Oxford in 2004, he was Lecturer in Law at the University of Nottingham School of Law (1998-2000) and at the University of Durham (2000-2004). From 1994 to 1998, he taught international law (part-time) at the London School of Economics and at Christ’s College and Wolfson College, University of Cambridge.

He has varied research interests within the field of general international law and has published articles on aspects of the law of international organizations, international dispute settlement, international criminal law and the law of armed conflict. His articles have been published in leading international law journals such as the American Journal of International Law, the British Yearbook of International Law and the European Journal of International Law . His article in the Journal of International Criminal Justice on the “Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits” was awarded the 2003 Giorgio La Pira Prize.

Dapo has advised States, international organizations and non-governmental organizations on matters of international law. He has worked with the United Nations on issues relating to international humanitarian law and human rights law; acted as consultant for the African Union on the international criminal court and on the law relating to terrorism; and also as a consultant for the Commonwealth Secretariat on the law of armed conflict and international criminal law. He has also provided training on international law to diplomats, military officers and other government officials. He has advised and assisted counsel, or provided expert opinions, in cases before the International Court of Justice, the International Tribunal for the Law of the Sea, international arbitral tribunals, WTO and NAFTA Dispute Settlement Panels as well as cases in England and the United States of America.

There are four scholars who write in my areas that I am afraid to disagree with — because when we do disagree, odds are that they are right and I am wrong. The first three are Marko Milanovic, Steve Vladeck, and my co-blogger Jens Ohlin. The fourth is Dapo. He is, quite simply, one of the finest scholars writing today.

Congratulations, Dapo!

Does Greece Really Have a Legal Case for the Return of the Elgin Marbles? I Doubt It

by Julian Ku

Amal Alamuddin-Clooney, Kevin’s Doughty Street Chambers colleague, made news this week by visiting Greece as part of a legal team working for the return of the Elgin Marbles to Greece from Britain.  This is not ordinarily global tabloid fodder, but Alamuddin-Clooney’s recent marriage means she will draw media attention wherever she goes.

I don’t doubt her legal credentials (as well as that of her colleagues), but I do doubt the strength of their legal case for the return of the Marbles.  At the time the Marbles were removed from Greece, the Ottoman Empire had sovereignty over Greece and there is pretty decent historical evidence that Lord Elgin had their authorization to remove the Marbles, or if he did not have authorization, his removal was ratified by official acts of the Ottoman government.  (John Merryman seems to have made the most complete case here).

To be sure, there are strong moral arguments for the return of the Marbles to Greece. But Alamuddin-Clooney and her colleagues are hired for their legal expertise. On this front, I think they have a very tough case (which may be why they appear to have ruled out litigation already).  But I am open to counter-arguments (based on law, not on cultural nationalism) for the Greek case. .

Matrix Chambers Is Hiring!

by Kevin Jon Heller

My friends at Matrix Chambers have asked me to post the following job announcement, for established practitioners in international law:

Founded in 2000 to meet the complex challenges of law in the 21st century, Matrix Chambers has 70 members and 7 associate members supported by a dynamic and modern staff team. We have offices in London and Geneva.

Individual members of Matrix Chambers have experience and expertise in a wide range of international law areas including maritime, humanitarian, environmental, boundary disputes, oil and gas disputes, investment treaty disputes, and disputes between States. Members of Chambers attract an increasing amount of private international law work in addition to the public international law cases for which they are renowned for, along with a commitment to developing non-litigation work, including advisory work on Corporate Social Responsibility, investigatory work, and international mediation.

Members act for a full range of clients including individuals, companies, NGO’s, and States. They appear before the major international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO dispute settlement bodies, and international criminal courts and tribunals, as well as before domestic courts where issues of international law arise. Members also act in ICSID, PCA and other arbitrations. Members are ranked highly in international law in all the major legal directories.

In accordance with its policy of controlled growth, and given the heavy workload of the team, Matrix wishes to recruit additional members to complement the core International Law team. Matrix invites applications from experienced barristers, lawyers, and academics who have an established and exceptional international law practice, either here in England and Wales, or in other jurisdictions.

The successful candidates will need to demonstrate that they are outstanding International Law practitioners with a strong reputation in the international arena, who support the Core Values of Matrix. You can request an application pack by e-mailing recruitment [at] matrixlaw [dot] co [dot] uk or call +44 (0)20 7404 3447.  The deadline for receipt of applications is Friday 12th September 2014.

Any potential applicants who wish to discuss their application may contact Practice Manager Paul Venables (paulvenables [at] matrixlaw [dot] co [dot] uk) or the International Law group coordinator Professor Zachary Douglas (zacharydouglas [at] matrixlaw [dot] co [dot] uk). All applications will be treated in the strictest confidence.

This is an amazing opportunity for the right candidate. Matrix is obviously one of the UK’s best barrister sets, with a particularly strong international-law group — Prof. James Crawford, Philippe Sands QC, Raza Husain QC, Cherie Booth QC, Ben Emmerson QC, Michelle Butler, and many others.

Note that the deadline for applying is coming up soon — a week from today, September 12. You can download the application pack here.

Whither the (U.S.) International Law Academic?

by Duncan Hollis

The state of the international law academy in the United States is undoubtedly strong.  International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century.  U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective).  Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law.  Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first).  Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences.  By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years.  It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now.  As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty.  Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools.  The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year.  I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many.  As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.).  I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions.  For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs.  My answer, I’m afraid, was not terribly encouraging.  A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers.  And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves.  Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship.  Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law).  And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States?  Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years?  Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession?  I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world.  As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome.  Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law. 

What do readers think?  Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15?  Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law?  And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE:  With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year’s lucky hires expressed an interest in international law.  By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade.  Three other candidates identified international as a third or fourth area of interest.]

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants — Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

A Seriously Not Cool Phishing Email

by Kevin Jon Heller

I normally find scam emails amusing — especially the one where Ban Ki-moon wants to give me “scam compensation” in the amount of $500,000 on behalf of the “World Bank/United Nations Assisted [sic] Programme.” But the one I received today is just sick:

Dear Friend,

I know this email will surprise you. Please accept my offer for charity plans. My name is Mrs. Halima Izar. I am a rich Syrian woman of 66 years. I was married to the director of (IZAR SEAFOOD LTD) located in China and Cambodia. I am seriously suffering from the chemical gas attack that affected us in August in Damascus. My entire families died by that attack. My condition is hopeless to survive. Nobody to call for help. I am using my doctor’s android phone to send you this email. I want you to take over my funds in Cambodia for charity plans and humanitarian aid for Syrian refugees, and motherless, less privileged, widows in your country. I pray Allah to help us. I have $10,800.000.00 in my Bank. I will offer you 12% for your commitment. My lawyer in Cambodia will direct and arrange the release of the funds to you. I have informed him of my intension to appoint you receive this funds. His contact is below:

Barrister. Toek Sreymao
E-mail: toeksreymao [at] gmail [dot] com
TEL- +855-883994742

May God Bless You.

Mrs Halima

Using chemical-weapons attacks in Syria to try to cheat naive people out of their money is revolting. I hope God does something to “Mrs Halima” other than bless her.

Welcome to the Blogosphere AJIL Unbound

by Duncan Hollis

I’m pleased to flag the fact that the American Journal of International Law has recently launched its own blog — AJIL Unbound.  Interested readers can find out more about the project and the Journal‘s interest in reader feedback here.  In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. in concert with the Journal‘s print-based Agora on that same case in its October 2013 issue.  I look forward to reading these posts and also to seeing how AJIL Unbound develops and evolves in the weeks and months ahead.

Omit Needless Words

by Roger Alford

Watching my youngest son draft and redraft his high school essays under the watchful eye of his English teacher, who is smitten by the inerrant wisdom of Strunk and White’s Elements of Style, I was curious how the best legal scholarship in the country fares by classic rules of writing.

To simplify my task, I have chosen one rule that is easily quantifiable. In discussing elementary principles of composition, Strunk and White admonish writers to omit needless words:

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts…. Many expressions in common use violate this principle…. In especial the expression “the fact that” should be revised out of every sentence in which it occurs.

So how do the top law journals perform under the microscope of William Strunk and E.B. White? In the countless hours of drafting and editing, do the top scholars and top student editors adhere to this elementary principle of composition?

The results are not encouraging. (Alas, I too plead guilty in my own scholarship). A ten-year search of the number of occurrences “the fact that” appeared in the flagship journals of the top law schools reveals the following:

Harvard Law Review: 869
Michigan Law Review: 496
Yale Law Journal: 459
Columbia Law Review: 436
Chicago Law Review: 431
NYU Law Review: 428
Penn Law Review: 408
California Law Review: 406
Stanford Law Review: 388
Virginia Law Review: 364

So on average the top journals misuse this phrase almost fifty times a year, and the Harvard Law Review misuses it over eighty times a year.

In our obsession with rankings, we can take solace in “the fact that” the Harvard Law Review is the best among the best at using this needless expression.

Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

by Drew Cohen

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

In the event that Member States are unable to resolve their disputes through internal executive and legislative institutions…