Thursday, May 26, 2016

ILR: Nine Years On

The International Law Reporter began a little more than nine years ago. More than 12,000 posts later, I'm very pleased that the blog has been embraced by so many people and has become an important means for the dissemination of information concerning scholarship, events, and ideas that relate to international law. If you would like to join the more than 4500 persons who now follow ILR daily through various electronic services, you can sign up for the rss feed, become a twitter follower, or subscribe to the daily email updates. Please continue to contact me with announcements of events, calls for papers, job openings, and current and forthcoming publications. For those so inclined, I have created an opportunity to donate to support the blog by clicking on the button to the right.

Wednesday, May 25, 2016

Vandenbogaerde: Towards Shared Accountability in International Human Rights Law

Arne Vandenbogaerde has published Towards Shared Accountability in International Human Rights Law (Intersentia 2016). Here's the abstract:

Non- State actors, principally corporations and international organizations, as well as foreign States, influence decision-making. This reality particularly affects the enjoyment and implementation of economic, social and cultural (ESC) rights. Alongside what has become a fast-moving reality, legal developments in the field of ESC rights are also happening at a fast pace. In the last decade we have not only witnessed the end of the ESC justiciability debate, including a growing recognition of these rights at the domestic level, but also the adoption of an international complaints procedure to deal with violations of ESC rights (OP-ICESCR). Yet, these legal developments fall short of providing accountability in a globalized world. There is a discrepancy between international human rights law – with its focus on the territorial State – and the current globalized context in which non-state actors and foreign States also affect the enjoyment of ESC rights. Scholars have argued for the expansion of the duty-bearer side of human rights law in order ‘to synch’ human rights law with reality. Most of the research in the last decade has focused on the recognition of the obligations of foreign States and NSAs, less so on subsequent rules for the attribution and distribution of obligations, responsibility, and remedies. What are the (legal) building blocks or foundations of a multi-duty-bearer accountability framework?

This book consists of three parts. In part I the book provides the reader with a solid understanding of the concept of accountability and the challenges it implies for the protection of human rights. Part II reviews the various accountability procedures in the international and regional human rights systems. It details the existence of any procedural and substantive provisions found in the procedures that present prospects or hurdles for the scrutiny of extraterritorial or transnational obligations. Part III turns to a normative, prescriptive outlook as it examines the procedural adaptations needed to facilitate the expansion of the duty-bearer side of human rights law.

New Issue: Revue Québécoise de Droit International

The latest issue of the Revue Québécoise de Droit International (Vol 28, no. 1, 2015) is out. Contents include:
  • Études
    • Rémi Bachand, Suraccumulation du capital, surproduction, impérialisme et droit international
    • Kintxo Freiss, Les incertitudes relatives au mandat d’arrêt européen à la lumière de l’affaire Aurore Martin
    • Véronique Guèvremont, L’exemption culturelle canadienne dans le Partenariat Transpacifique ou la destinée d’une peau de chagrin
    • Céline Lévesque, Les rôles et responsabilités des provinces canadiennes dans le cadre de procédures d’arbitrage entre investisseurs et États fondées sur des traités économiques
    • Tove Nyberg, International Commission Against Impunity in Guatemala : A Non-Transitional Justice Effort
    • Malgorzata Ulla, L’obésité d’un travailleur constitutive d’un handicap relevant de la protection de la Directive 2000/78 – L’évolution récente de la notion de handicap en droit de l’Union européenne
  • Notes et commentaires
    • Adolphe Kilomba Sumaili, La CIRGL et le règlement des différends dans la région des Grands lacs : cas de la rébellion du M23

Tourme Jouannet, Burgorgue-Larsen, Muir Watt, & Ruiz Fabri: Féminisme(s) et droit international

Emmanuelle Tourme Jouannet (Sciences Po - Law), Laurence Burgorgue-Larsen (Université Paris 1 Panthéon-Sorbonne - Law), Horatia Muir Watt (Sciences Po - Law), & Hélène Ruiz Fabri (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) have published Féminisme(s) et droit international (Société de législation compare 2016). Contents include:
  • Emmanuelle Tourme Jouannet, Laurence Burgorgue-Larsen, Hélène Ruiz Fabri, & Bérénice K. Schramm, Ouverture
  • Bérénice K. Schramm, (Re)voir Phryné devant l’aréopage de Jean-Léon Gérôme (1861)
  • Oriane-Jill Aoust, Droits des femmes et sphère privée en Afrique : le constat d’une défaillance des instruments régionaux africains
  • Charalambos Apostolidis, Le marxisme et la cause féminine
  • Rémi Bachand, Les apports de la théorie féministe du positionnement dans une théorie (critique) du droit (international)
  • Laurence Burgorgue-Larsen, La lutte contre la « violence de genre » dans le système interaméricain de protection des droits de l’homme. Décodage d’une évolution politique et juridique d’envergure
  • Anne-Marie D’Aoust & Anne Saris, Femmes, genre et sécurité en relations internationales et en droit international : un dialogue en construction
  • Martin Gallié & Maxine Visotzky-Charlebois, Le droit des femmes tel qu’il a été enseigné par les Pères fondateurs du droit international public et leurs héritiers. Notes de lecture sur les ouvrages et les manuels du XVIe au XXIe siècle
  • Dominique Gaurier, Quelle place faite aux femmes dans l’ordre international de l’Antiquité et du début de l’époque moderne
  • Stéphanie Hennette-Vauchez & Diane Roman, Du sexe au genre : le corps des femmes en droit international
  • Dzovinar Kévonian, L’histoire des femmes juristes en France jusqu’aux années 1960 : état des lieux et sources de recherche
  • Anne Lagerwall, La prostitution, le port du voile et l’avortement devant la Cour européenne des droits de l’Homme : une affaire de femmes ?
  • Isabelle Masson, (Re)penser les relations constitutives de la gouvernance néolibérale : quelques pistes de réflexion féministes pour les relations internationales et le droit international
  • Frédéric Mégret, Féminisme et droit international : le « féminisme de gouvernance » à l’épreuve du « féminisme critique »
  • Anne-Sophie Tabau, Féminismes et droit international de l’environnement
  • Emmanuelle Tourme Jouannet, Les différentes étapes pour la reconnaissance des droits des femmes. Droits des femmes et droit international de la reconnaissance
  • Anne-Charlotte Martineau, Odysée d’une toubabou

Buszewski, Martini, & Rathke: Freihandel vs. Demokratie: Grundsätze transnationaler Legitimation

Sinthiou Buszewski, Stefan Martini, & Hannes Rathke have published Freihandel vs. Demokratie: Grundsätze transnationaler Legitimation: Partizipation, Reversibilität, Transparenz (Nomos 2016). Here's the abstract:

Handels- und investitionsschutzrechtlichen Abkommen, wie z.B. die projektierte Transatlantic Trade and Investment Partnership (TTIP), werfen zunehmend Fragen nach der demokratischen Legitimität des Zustandekommens sowie der Ausgestaltung der bi- und multilateralen wirtschaftlichen Integration auf. Dieser Band, der Vorträge einer Tagung des JuWissBlog vom April 2015 präsentiert, widmet sich sowohl den historischen und theoretischen Grundlagen dieser Fragestellungen als auch konkreten Problemkomplexen der Partizipation und Legitimation im Unions- und Investitionsschutzrecht: Welche Grenzen setzt die Rechtsprechung des Gerichtshofs der Europäischen Union den Investor-Staats-Schiedsgerichten? (Wie) Sind die jeweiligen Eigentumsschutzklauseln der Investitionsschutzbestimmungen gegenüber politischer Selbstbestimmung demokratisch zu rechtfertigen? Wo liegen partizipatorische Potentiale in der regulatorischen Zusammenarbeit und im Recht der Welthandelsorganisation?

Mit Beiträgen von: Corinna Dornacher; Henner Gött, LL.M.; Tobias Heinze; Roland Hoffmann, LL.M., Dr. Michael Ioannidis, LL.M. LL.M.; Andreas Kerkemeyer, Andrej Lang, LL.M.; Michael Riegner, LL.M.; Dr. Thomas Trentinaglia; Dr. Dr. Patricia Wiater; Sebastian Wuschka, LL.M.

Justenhoven & O'Connell: Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science

Heinz-Gerhard Justenhoven (Instituts für Theologie und Frieden) & Mary Ellen O'Connell (Univ. of Notre Dame - Law) have published Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science (Nomos 2016). Here's the abstract:

With the founding of the United Nations, the “People of the United Nations” declared “to save succeeding generations from the scourge of war”. International law and international institutions have made progress towards achieving this goal, however, the world is clearly still a long way from effectively eradicating major organized violence between or within states. In 1963, Pope John XXIII’s renowned peace encyclical Pacem in Terris offered a practical vision beyond the accepted international policies of his time: normative ideas for reforming the UN aimed at a peaceful conflict resolution in a time of globalization. It calls for renewed commitment to the United Nations and international law. Pope John XXIII explained the role of public authorities within nation states in keeping the peace and working together for the common good. He saw the need for similar authority for the international community. Fifty years later, the authors critically debate the ideas for ‘global political authority’ and global law from their respective perspectives: theology, philosophy, international law, economics, and political science. Is the quest for a ‘global political authority’ well- or ill-founded? Can the International Court of Justice or the International Criminal Court be seen as an international authority in the making? Or do we have to strive for alternative concepts for global authority that global governance theories have to offer?

With contributions by Nigel Biggar, Andreas Hasenclever, Heinz-Gerhard Justenhoven, Matthias Lutz-Bachmann, Karsten Nowrot, Mary Ellen O’Connell, Stefan Oeter, Michael Reder, Annette Schramm, Christian J. Tams, Samuel T. Tessema, Johan Verstraeten and Dietmar von der Pfordten.

Hayner & Weisbach: Two Theories of Responsibility for Past Emissions of Carbon Dioxide

Michelle Hayner (Univ. of Chicago - Law) & David A. Weisbach (Univ. of Chicago - Law) have posted Two Theories of Responsibility for Past Emissions of Carbon Dioxide. Here's the abstract:
We consider the claim that individuals or nations who emitted carbon dioxide in the past should be held responsible for those emissions. We examine two theories of responsibility for past emissions that are often conflated: (i) that emissions in the past by individuals in one nation have wrongfully harmed, or will wrongfully harm, individuals in other nations, and (ii) that individuals or nations who emitted in the past used more than their fair share of the limited ability of the atmosphere to absorb carbon dioxide. These two theories have distinct philosophical bases. A theory of responsibility for harm caused to others is based on conventional theories of corrective justice or efficiency, such as the Polluter Pays Principal. The difficulty with these theories is measuring relative harm. There are few estimates of the harms from the 1°C of temperature change experienced so far from past emissions because it is difficult to distinguish the resulting harms from normal variations in the climate. The second theory, a theory of responsibility for excess use, would require a level of compensation several orders of magnitude larger than a theory based on harm. Responsibility for excess use, however, is more difficult to ground in widely-accepted theories of justice. It is, we argue, a theory of equal ownership of all limited resources which few theories of justice would support.

Tuesday, May 24, 2016

Cohen: A Politics-Reinforcing Political Question Doctrine

Harlan Grant Cohen (Univ. of Georgia - Law) has posted A Politics-Reinforcing Political Question Doctrine (Arizona State Law Journal, forthcoming). Here's the abstract:

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones.

A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is needed is a politics-reinforcing political question doctrine that can balance the need for robust review with the desire for robust debate. The uncertain boundaries between the political branches' overlapping powers create space for political debate. Their overlapping powers allow different groups to access the political system and have a voice on policy. Deciding separation of powers questions once-and-for-all can shut off those access points, shutting down political debate. A politics-reinforcing political question doctrine preserves the space in the political system for those debates by turning the pre-Zivotofsky political question doctrine on its head. Whereas the pre-Zivotofsky political question suggested abstention when the branches were in agreement and scrutiny when they were opposed, a politics-reinforcing political question doctrine suggests the opposite, allowing live debates to continue while scrutinizing political settlements. In so doing, it brings pluralism and politics back into the political question analysis, encouraging democracy rather than deference.

Choudhury: Spinning Straw into Gold: Incorporating the Business and Human Rights Agenda into International Investment Agreements

Barnali Choudhury (Univ. College London - Law) has posted Spinning Straw into Gold: Incorporating the Business and Human Rights Agenda into International Investment Agreements (University of Pennsylvania Journal of International Law, forthcoming). Here's the abstract:

The adoption of the U.N. Guiding Principles on Business and Human Rights represents a watershed moment in the business and human rights movement. Nevertheless, despite its achievements, the work to align business and human rights issues remains.

One approach to furthering the work in this area has been to focus on the establishment of a new international binding treaty on business and human rights issues. Treaty proponents view a binding treaty as a mechanism by which existing gaps in human rights protection can be closed. Yet critics are skeptical. They point to the lack of treaty support by states which are headquarters for multinational corporations and worry about the diminishment of aspired treaty rights during the treaty negotiation process as evidence of their concerns.

This article questions whether there is a need for a “new” international business and human rights treaty. Instead it argues that the linkage of business and human rights issues can be made by way of international investment agreements (IIAs). Given the bilateral or regional nature of IIAs, multilateral state support is lessened, facilitating adoption of new principles or rights. Moreover, IIAs offer a robust enforcement mechanism, through international arbitration, which can provide effective remedies. In addition, because multinational corporations are often reliant on IIAs to gain access to new markets, IIAs can be used as a tool to impose human rights obligations onto corporations from the outset before abuses occur. Most importantly, reconfiguring IIAs to adopt the BHR agenda ensures that norm development in business areas does not undermine human rights issues when these two areas intersect and that corporate rights stand in parallel to corporate obligations.

Pelc: Does the International Investment Regime Induce Frivolous Litigation?

Krzysztof Pelc (McGill Univ. - Political Science) has posted Does the International Investment Regime Induce Frivolous Litigation? Here's the abstract:
The treatment of foreign investment has become the most controversial issue in global governance. At the centre of the controversy lies the mechanism of investor-state dispute settlement (ISDS), which allows private firms legal recourse against governments, if government interference has degraded their investment. Using newly released data covering 696 investment disputes, I assess some of the central claims about ISDS. I argue that the regime has indeed undergone a major shift: a majority of claims deal not with direct takings by low rule of law countries, but with regulation in democratic states. The result of this shift towards indirect expropriation affects firms’ incentives: claimants may gain even when they lose a challenge, if litigation can deter governments’ regulatory ambitions. The result, as I show, is an increase in the number of cases, accompanied by a precipitous decrease in their legal merit. Investors bringing indirect expropriation claims also appear far less likely to settle, and more likely to publicize the dispute, consistently with theoretical expectations.

Wilson: Expert Evidence on Trial: Social Researchers in the International Criminal Courtroom

Richard Ashby Wilson (Univ. of Connecticut -Law) has posted Expert Evidence on Trial: Social Researchers in the International Criminal Courtroom (American Ethnologist, forthcoming). Here's the abstract:
Social researchers often feature as expert witnesses in international criminal trials, and there has yet to be a systematic evaluation of their impact on the co-production of courtroom knowledge. Analysis of over four hundred expert appearances shows that international judges do prefer experts using scientific methods. Unexpectedly, when social researchers are called, courts favor qualitative over quantitative approaches. In two international hate speech trials, a language expert was preferred to a quantitative sociologist because the former did not challenge the sovereignty of judges, or the status hierarchy of the courtroom. When excluding quantitative experts, judges cite “common sense” as the basis of facticity and knowledge. The prevailing epistemological framework at international criminal tribunals results from the knowledge strategies of legal actors operating in the structurally fragile context of international institutions.

Shaffer: Transparency and the Governance of Subsidies

Gregory Shaffer (Univ. of California, Irvine - Law) has posted Transparency and the Governance of Subsidies (American Society of International Law, Proceedings, forthcoming). Here's the abstract:
This essay condenses the argument made in my article with Robert Wolfe and Vinhcent Le on transparency obligations in the area of subsidies and how transparency disciplines work or might work in this area. Subsidies are important mechanisms for the provision of public goods, the correcting of market failures, and the furthering of economic development. Yet they also create transnational externalities, whether through providing advantages to certain traders or through adversely affecting global public goods. Disciplining such government support through formally binding rules is thus notoriously difficult. A focus on substantive law alone is insufficient for understanding how subsidies law develops and has effects on social understandings and practices. Discipline on subsidies depends fundamentally on the existence of fora to discuss definitions, generate information about the incidence of subsidies, and then to determine whether a particular measure fits the definition and ought to be subject to censure. In the trading system, the World Trade Organization (WTO) provides a forum regarding subsidies generally, but there are others, such as the Organization for Economic Co-operation and Development, the International Monetary Fund, the G20, and informal networks organized by non-governmental organizations and other stakeholders. The essay first looks at transparency mechanisms within the WTO governing subsidies generally, followed by those developed through other processes.

Sands: East West Street: On the Origins of "Genocide" and "Crimes Against Humanity"

Philippe Sands (Univ. College London - Law) has published East West Street: On the Origins of "Genocide" and "Crimes Against Humanity" (Knopf 2016). Here's the abstract:

A profound and profoundly important book—a moving personal detective story, an uncovering of secret pasts, and a book that explores the creation and development of world-changing legal concepts that came about as a result of the unprecedented atrocities of Hitler’s Third Reich.

East West Street looks at the personal and intellectual evolution of the two men who simultaneously originated the ideas of “genocide” and “crimes against humanity,” both of whom, not knowing the other, studied at the same university with the same professors, in a city little known today that was a major cultural center of Europe, “the little Paris of Ukraine,” a city variously called Lemberg, Lwów, Lvov, or Lviv.

The book opens with the author being invited to give a lecture on genocide and crimes against humanity at Lviv University. Sands accepted the invitation with the intent of learning about the extraordinary city with its rich cultural and intellectual life, home to his maternal grandfather, a Galician Jew who had been born there a century before and who’d moved to Vienna at the outbreak of the First World War, married, had a child (the author’s mother), and who then had moved to Paris after the German annexation of Austria in 1938. It was a life that had been shrouded in secrecy, with many questions not to be asked and fewer answers offered if they were.

As the author uncovered, clue by clue, the deliberately obscured story of his grandfather’s mysterious life, and of his mother’s journey as a child surviving Nazi occupation, Sands searched further into the history of the city of Lemberg and realized that his own field of humanitarian law had been forged by two men—Rafael Lemkin and Hersch Lauterpacht—each of whom had studied law at Lviv University in the city of his grandfather’s birth, each considered to be the father of the modern human rights movement, and each, at parallel times, forging diametrically opposite, revolutionary concepts of humanitarian law that had changed the world.

In this extraordinary and resonant book, Sands looks at who these two very private men were, and at how and why, coming from similar Jewish backgrounds and the same city, studying at the same university, each developed the theory he did, showing how each man dedicated this period of his life to having his legal concept—“genocide” and “crimes against humanity”—as a centerpiece for the prosecution of Nazi war criminals.

And the author writes of a third man, Hans Frank, Hitler’s personal lawyer, a Nazi from the earliest days who had destroyed so many lives, friend of Richard Strauss, collector of paintings by Leonardo da Vinci. Frank oversaw the ghetto in Lemberg in Poland in August 1942, in which the entire large Jewish population of the area had been confined on penalty of death. Frank, who was instrumental in the construction of concentration camps nearby and, weeks after becoming governor general of Nazi-occupied Poland, ordered the transfer of 133,000 men, women, and children to the death camps.

Sands brilliantly writes of how all three men came together, in October 1945 in Nuremberg—Rafael Lemkin; Hersch Lauterpacht; and in the dock at the Palace of Justice, with the twenty other defendants of the Nazi high command, prisoner number 7, Hans Frank, who had overseen the extermination of more than a million Jews of Galicia and Lemberg, among them, the families of the author’s grandfather as well as those of Lemkin and Lauterpacht.

A book that changes the way we look at the world, at our understanding of history and how civilization has tried to cope with mass murder. Powerful; moving; tender; a revelation.

Monday, May 23, 2016

Johns & Pelc: Free-Riding on Enforcement in the WTO

Leslie Johns (Univ. of California, Los Angeles - Political Science) & Krzysztof Pelc (McGill Univ. - Political Science) have posted Free-Riding on Enforcement in the WTO. Here's the abstract:
Countries can challenge potential trade violations using the WTO's dispute settlement system, yet many policies that appear to violate WTO rules remain unchallenged, even when they have a significant economic impact. Why is this? We argue that the likelihood that a country challenges a protectionist policy is linked to how concentrated or diffuse the policy is. When a policy is concentrated --- because it affects only one country --- litigation is a private good, meaning that a country that pays the cost of litigation receives the full benefit of litigation. But when a policy is diffuse --- because it affects many countries --- litigation is a public good and countries face a collective action problem: many countries can benefit from litigation, but each country wants to free-ride by having another country pay the cost. The resulting selection effect has two consequences. First, the free-rider problem reduces the likelihood that a diffuse policy will be challenged in any given period, generating a longer enforcement delay for diffuse trade violations. Second, cases must have higher odds of success in order for countries to overcome the collective action problem, meaning that conditional on being filed, cases that challenge concentrated policies will be less likely to succeed in litigation than cases that challenge diffuse policies. We leverage selection effects to test our argument using data on the timing and outcomes of trade disputes. The evidence, which considers all WTO disputes from 1995 to 2013, bears out these beliefs.

Conference: Sexualité et droit international des droits de l’homme

The Institut international des droits de l'homme will hold its annual conference on May 26-27, 2016, at the Université d’Angers. The theme is: "Sexualité et droit international des droits de l’homme." The program is here. Here's the idea:

Des droits subjectifs fondamentaux de l’individu jusqu’au droit objectif régissant la société, les questions liées à la sexualité font l’objet d’une activité juridique diversifiée. Du micro-juridique au macro-juridique, celle-ci sera déclinée en trois temps.

D’abord, il s’agira d’envisager la question sous l’angle de la liberté de l’individu, acteur de son intimité. Dans une démarche chronologique, les intervenants s’interrogeront tant sur l’accès à la sexualité que sur ses pratiques.

Ensuite, un deuxième atelier prolongera a thématique sous l’angle de la protection de l’individu victime, dans son intimité, de pratiques violentes. Cet atelier sera à son tour subdivisé en deux temps, visant à étudier les types de violences, puis les types de victimes.

Enfin, le troisième atelier se saisira de la question à l’échelle la plus large, envisageant les modalités par lesquelles une société toute entière cherche à protéger ses valeurs. La protection de la société implique alors des limitations à la sexualité, pour des raisons d’ordre public. D’une part, certaines sociétés organisent des ingérences dans la capacité génésique des individus, pour favoriser ou interdire la procréation. D’autre part, toute société s’interroge face au phénomène croissant de marchandisation et d’entreprenariat du sexe.

Moura Vicente: Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective

Dário Moura Vicente (Univ. of Lisbon - Law) has published Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective (Brill | Nijhoff 2016). Contents include:
  • Manuel de Almeida Ribeiro, Foreword
  • The Growing Role of International Courts and Jurisdictions: The Permanent Court of International Justice, the International Court Of Justice, and Beyond
  • Rui de Moura Ramos, Introduction
  • Miguel de Serpa Soares, From Absence to Abundance: Tracing the Development and Impact of International Courts
  • Rita Teixeira & Ricardo Bastos, The Cases where the International Court of Justice lacked Jurisdiction: a Brief Analysis and Commentary
  • Dimitra Papageorgiou & Eva Tzavala, Energy at Sea and the Jurisprudence of the International Court of Justice
  • International Inspection and Control Mechanisms
  • Fernando Loureiro Bastos, An Overview of the International Inspection and Control Mechanisms
  • José Cunha Rodrigues, The UEFA Financial Control Body
  • European and Other Regional Courts of Human Rights
  • Ireneu Cabral Barreto, Introduction
  • Paulo Pinto de Albuquerque, The European Court of Human Rights as the European Constitutional Court
  • José Pina Delgado, The African Court on Human and People's Rights and its Position in the International and African Architectures
  • Laura-Maria Craciunean, Cultural Rights and a Right to Cultural Identity before the European Court of Human Rights: Present Approaches and Future Challenges
  • Adriana Ramos Costa & Eleonora Mesquita Ceia, The Influence of Inter-American Human Rights Law on the Jurisprudence of the Brazilian Supreme Federal Court
  • Francesca Capone, Comparing and Discussing the Different Approaches to Remedies for Child Victims before the European Court of Human Rights and the Inter-American Court of Human Rights
  • Ondřej Svaček, International Criminal Court and Human Rights: Achievements and Challenges
  • Alex Ian Psarski Cabral, Cristiane Helena de Paula Lima Cabral & Mário Lúcio Quintão Soares, The Reception of the Inter-American Human Rights System in Brazil in Light of Penal Action no. 470
  • Dispute Resolution Mechanisms Concerning International Trade and Investment, in particular within WTO and ICSID
  • Dário Moura Vicente, Investor-state Dispute Settlement in the European Perspective: Recent Developments
  • Alejandro Carballo, Dispute Resolution under the Energy Charter Treaty
  • Ozge Varis, Understanding the interaction between the WTO regime and international investment regime: reversing the approach
  • Sadie Blanchard, Legal Certainty During EU Accession: What Can a Foreign Investor in a Future Member State Legitimately Expect?
  • Carmen Alexandra Saugar Koster, Dispute Resolution Mechanisms Concerning International Trade and Investment, in particular within WTO and ICSID. A Dual Coverage in the Services Sector
  • Paolo Davide Farah & Elena Cima, The WTO Dispute Settlement System and Renewable Energy Subsidies: The Case of Feed-In Tariffs
  • Emily Sipiorski, Evidence and the Principle of Good Faith in Investment Arbitration: Finding Meaning in Public International Law
  • Jerzy Menkes & Magdalena Słok-Wódkowska, Challenges of “investor-state dispute settlement mechanism” in TTIP
  • International Commercial Arbitration
  • Luís de Lima Pinheiro, The Confluence of Transnational Rules and National Directives as the Legal Framework of Transnational Arbitration
  • Tatjana Shterjova, The Challenges of Taking Evidence in International Commercial Arbitration – the Problem of Legal Privileges
  • The Court of Justice of the European Union
  • Fausto de Quadros, Introduction
  • Maria José Rangel de Mesquita, The Court of Justice of the European Union
  • Joana Covelo de Abreu, Infringement Procedure and the Court of Justice as an EU law’s Assurer: Member States’ Infringements Concerning Failure to Transpose Directives and the Principle of an Effective Judicial Protection
  • Mateus Kowalski & Sofia Machado, The United Nations Sanctions Regimes and a Judicialized European Union Perspective
  • Domestic Courts as International Jurisdictions?
  • Catherine Kessedjian, Introduction
  • Peter Trooboff, Limits on Jurisdiction of Domestic Courts to Grant Civil Damages for International Law Violations
  • Rui Pereira Dias, Corporate Group Structures and the Limits of Personal Jurisdiction. US/European comparative remarks
  • Humberto Cantú-Rivera, Towards Judicial Accountability in the Business & Human Rights Field?
  • Miguel Poiares Maduro, The Judicial and Constitutional Challenges of Legal Globalisation

AJIL Unbound Symposium: The International Legal Obligation to Criminalize Marital Rape (Part II)

AJIL Unbound has posted a symposium on "The International Legal Obligation to Criminalize Marital Rape (Part II)." The symposium includes an introduction by Catherine Powell and Carlos M. Vazquez, contributions by Fareda Banda, Michele Goodwin, Barbara Stark, and Aya Gruber, and a response essay by Melanie Randall and Vasanthi Venkatesh.

Sunday, May 22, 2016

Karimova: Human Rights and Development in International Law

Tahmina Karimova has published Human Rights and Development in International Law (Routledge 2016). Here's the abstract:

This book addresses the legal issues raised by the interaction between human rights and development in contemporary international law. In particular, it charts the parameters of international law that states have to take into account in order to protect human rights in the process of development. In doing so, it departs from traditional analyses, where human rights are mainly considered as a political dimension of development. Rather, the book suggests focusing on human rights as a system of international norms establishing minimum standards of protection of individuals and minimum standards applicable in all circumstances on what is essential for a dignified existence.

The various dimensions covered in the book include: the discourse on human rights and development interrelationship, particularly opinio juris and the practice of states on the question; the notion of international assistance and cooperation in human rights law, under legal regimes such as international humanitarian law, and emerging rules in the area of protection of persons in the event of disasters; the extraterritorial scope of economic, social and cultural rights treaties; and legal principles on the respect for human rights in externally designed and planned development activities. Analysis of these topics sheds light on the question of whether international law as it stands today addresses most of the issues concerning the protection of human rights in the development process.

Saturday, May 21, 2016

Keohane & Victor: Cooperation and Discord in Global Climate Policy

Robert O. Keohane (Princeton Univ. - Woodrow Wilson School) & David G. Victor (Univ. of California, San Diego - School of Global Policy and Strategy) have posted Cooperation and Discord in Global Climate Policy (Nature Climate Change, forthcoming). Here's the abstract:
Effective mitigation of climate change will require deep international cooperation, which is much more difficult to organize than the shallow coordination observed so far. Assessing the prospects for effective joint action on climate change requires an understanding of both the structure of the climate change problem and national preferences for policy action. Preferences have become clearer in light of the United Nations Framework Convention on Climate Change Conference of the Parties in December 2015. Although deep cooperation remains elusive, many partial efforts could build confidence and lead to larger cuts in emissions. This strategy of decentralized policy coordination will not solve the climate problem, but it could lead incrementally to deeper cooperation.

Friday, May 20, 2016

Pantaleo, Douma, & Takács: Tiptoeing to TTIP: What Kind of Agreement for What Kind of Partnership?

Luca Pantaleo (T.M.C. Asser Institute), Wybe Douma (T.M.C. Asser Institute), & Tamara Takács (T.M.C. Asser Institute) have published Tiptoeing to TTIP: What Kind of Agreement for What Kind of Partnership? (Centre for the Law of EU External Relations 2016). Contents include:
  • Davor Jančić, Democratic Legitimacy of Enhanced Regulatory Cooperation in TTIP
  • Joana Mendes, Regulatory Cooperation Under TTIP: Rulemaking and the Ambiguity of Participation
  • Wybe Douma, TTIP, Protection of the Environment and Consumers
  • Ingo Venzke, On the Functions, Authority and Legitimacy of Investor-State Arbitration: The Case of the Transatlantic Trade and Investment Partnership (TTIP)
  • Luca Pantaleo, Lights and Shadows of the TTIP Investment Court System
  • Pieter Jan Kuijper, Some Final Questions and Conclusions

Alschner: The Impact of Investment Arbitration on Investment Treaty Design: Myth Versus Reality

Wolfgang Alschner (Graduate Institute of International and Development Studies) has posted The Impact of Investment Arbitration on Investment Treaty Design: Myth Versus Reality (Yale Journal of International Law, forthcoming). Here's the abstract:
Investor-state arbitration (ISA) has shaped the practice, scholarship and teaching of international investment law, but to what extent has it shaped its substance? According to anecdotal evidence, states change their investment treaties in response to developments in investment arbitration. To separate myth from reality this article empirically investigates the effect of investment arbitration on treaty making through three impact channels: (1) investment clauses, (2) investment claims and (3) investment case law coding close to 1700 international investment agreements (IIA) across 55 clauses. Our analysis sheds new light on several normative debates within the field. First, we find that the omission or inclusion of investment clauses has no material effect on other treaty design elements. This suggests that ISA clauses are procedural add-ons, which bestow investors with enforcement rights, but do not alter the inter-state nature of the treaties’ substantive obligations. Second, contrary to prior anecdotal and empirical evidence, investment claims do not lead to systematic treaty design changes. Most innovation attributed to investment claims actually pre-dates them. Moreover, only in few countries did investment claims trigger treaty design changes. Hence, rather than worrying about overzealous responses by states to “rebalance” IIAs in the face of investment claims, we should be concerned about the field’s path-dependency and its entrenchment in a pre-arbitration architecture. Third, investment case law exerts the strongest impact on treaty making as controversial interpretive outcomes in investment arbitration trigger traceable changes in treaty design. Hence, states are more active in fine-tuning existing commitments than in designing new ones further entrenching IIAs’ path dependency and lack of innovation.

Call for Papers: Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices

The American Society of International Law's International Economic Law Interest Group has issued a call for papers for its next biennial conference, which will take place September 30-October 1, 2016, at the Georgetown University Law Center. The theme is: "Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices." Here's the call:

AMERICAN SOCIETY OF INTERNATIONAL LAW

INTERNATIONAL ECONOMIC LAW INTEREST GROUP BIENNIAL CONFERENCE

September 30, 2016-October 1, 2016

Georgetown University Law Center

Co-sponsored by the Institute of International Economic Law (IIEL)

CALL FOR PAPERS

The conference will comprise:

  • Academic paper presentations drawn from an open call for papers

  • Invited papers and keynote speakers

  • Roundtable conversations with practitioners, governments officials, NGO representatives, think tank members

I. Overall Concept and Themes

Overall theme: Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices

We welcome paper proposals relating to the conference theme, or aspects thereof. One objective of this conference is to transcend the traditional trade, investment, finance and private ordering silos. We accordingly seek proposals that focus on cross-cutting issues.

From a research agenda perspective, we hope to foster a reflection on what international economic law as a discipline might look like when research focuses on the reality of blurred boundaries between the traditional fields of trade, investment, finance and monetary law.

From a policy perspective, we hope to explore the implications of legal imports from one field into another, how legal and policy options might be expanded in the face of converging trade, investment and financial law, as well as through emerging private and public-private sorts of ordering. Because the blurring boundaries have created challenges as well as opportunities, we also look forward to proposals identifying chasms and tensions that need to be addressed.

We encourage submissions on all aspects of international economic law, including those that do not focus on cross-cutting issues. The themes listed below are illustrative only and non-exhaustive. If your paper fits within one or more of these themes, please make a note of it in your proposal.

Illustrative Themes:

  • Cross-fertilization opportunities between trade, tax, monetary and finance law: How does monetary law impact trade and finance, and vice-versa?

  • Soft law in international economic law: Are there lessons to be drawn from financial regulation for trade and investment?

  • How does regionalism shape and challenge international economic law?

  • Dispute resolution in the face of trade and investment treaty convergence: What are the opportunities and challenges raised by recent innovations? Is a unified system possible or desirable?

  • International economic law and systemic risk

  • Public-private partnerships in international economic law

II. Paper and Panel Proposal Submission Papers:

The deadline for paper proposal submissions is June 24, 2016.

Please submit an abstract of no more than 500 words and please indicate when you anticipate completion of the paper and whether the paper has been accepted for publication or has been published. If applicable, please indicate place of (anticipated) publication and date.

Please also provide a CV or resume, your current affiliation and whether you are a member of the IEcLIG.

Abstracts will be peer-reviewed and decisions will be issued on August 1, 2016.

Panels:

We also invite panel proposals, particularly relating to the illustrative themes above. Please indicate, in no more than 500 words, the approach, anticipated content and format of the panel, proposed speakers with their affiliation and their field of expertise. The deadline for panel proposal submissions is June 24, 2016.

Please note that panel proposals may be combined or amended by the conference organizers to take into account the range of submissions. Invitations will be issued on August 1, 2016.

Papers will be due on September 4, 2016 for dissemination to other panelists, moderators and conference participants in advance of the event.

Materials should be sent to ieclig2016@gmail.com

III. Publication Opportunities

We are very pleased to announce that the Georgetown Journal of International Law is partnering with the International Economic Law Interest Group to publish an issue collecting papers from the conference, subject to selection by the Journal’s Editorial Board. Further information about the publication process will be conveyed to selected proposal authors in due course. Unless indicated otherwise in your proposal, we may share abstracts with Journal Editors.

Georgetown University is the home of the Journal of International Economic Law and members of the Editorial board will be in attendance at the conference. Selected presenters may be invited to submit their paper for consideration by the Journal.

IV. Conference Details

The conference will take place at Georgetown University Law Center located in Washington, DC (USA) on September 30-October 1, 2016. Washington, DC is easily accessible with domestic and international airlines.

For ASIL members, the registration fee is expected to be approximately $95 (which will cover some meals). For non-ASIL members, the fee will be $125. Students will enjoy discounted rates. We will be applying for CLE accreditation for a number of sessions.

Please understand that budget constraints prevent us from providing any travel or other financial assistance to conference participants.

This conference is co-sponsored by the Institute of International Economic Law at Georgetown University Law Center.

V. About the Interest Group

The International Economic Law Interest Group promotes academic interest, discussion, research and publication on subjects broadly related to the transnational movement and regulation of goods, services, persons and capital. International law topics include trade law, investment law, economic integration law, private law, business regulation, financial law, tax law, intellectual property law and the role of law in development. The group provides a forum for interdisciplinary exploration of public and private international and municipal law, and is particularly interested in promoting the work and interests of new practitioners and scholars in the field. Its activities also include sponsoring panels at the ASIL Meeting and co-sponsoring conferences with allied organizations.

Finally, we hope that even if you do not submit a paper or panel proposal, or even if your proposal is not selected, you will consider attending the Biennial conference. Past IEcLIG events have proven to offer remarkable opportunities to meet new and old friends and colleagues and to engage in highlevel intellectual exchange concerning important IEL topics. The 2016 Biennial will be no different.

We hope to see you in Washington in September!

Sonia E. Rolland (s.rolland@neu.edu) and David Zaring (zaring@wharton.upenn.edu)

Co-Chairs, International Economic Law Interest Group

Julie Maupin and Jarrod Wong

Co-Vice Chairs, International Economic Law Interest Group

Blocher, Gulati, & Helfer: Can Greece Be Expelled from the Eurozone? Toward a Default Rule on Expulsion from International Organizations

Joseph Blocher (Duke Univ. - Law), G. Mitu Gulati (Duke Univ. - Law), & Laurence R. Helfer (Duke Univ. - Law) have posted Can Greece Be Expelled from the Eurozone? Toward a Default Rule on Expulsion from International Organizations. Here's the abstract:
The ongoing European crisis has raised uncomfortable questions about the conditions under which treaty-based unions of nations like the EU or the EMU can legally expel a member—Greece being the most obvious candidate. The EU, for example, has rules governing the voluntary withdrawal of members, but says nothing about whether a member can be expelled. As a matter of international law, what does the silence mean? Put differently: What is the default rule regarding expulsions when a treaty says nothing about forced withdrawals? Is there an absolute bar on expulsion, as some have suggested? Conversely, is there an implicit right to expel? Or can material breaches of a treaty justify expulsion? And if fault is not required, must the expelled member state be compensated in some way?

Barelli: Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples

Mauro Barelli (City Univ. London - Law) has published Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples (Routledge 2016). Here's the abstract:
Today human rights represent a primary concern of the international legal system. The international community’s commitment to the protection and promotion of human rights, however, does not always produce the results hoped for by the advocates of a more justice-oriented system of international law. Indeed international law is often criticised for, inter alia, its enduring imperial character, incapacity to minimize inequalities and failure to take human suffering seriously. Against this background, the central question that this book aims to answer is whether the adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples points to the existence of an international law that promises to provide valid responses to the demands for justice of disempowered and vulnerable groups. At one level, the book assesses whether international law has responded fairly and adequately to the human rights claims of indigenous peoples. At another level, it explores the relationship between this response and some distinctive features of the indigenous peoples’ struggle for justice, reflecting on the extent to which the latter have influenced and shaped the former.

Call for Papers: Rebalancing International Investment Agreements in Favour of Host States: The Case for an International Investment Court

A call for papers has been issued for a conference on "Rebalancing International Investment Agreements in Favour of Host States: The Case for an International Investment Court," to be held June 29, 2016, at the University of Bedfordshire. Here's the call:

CALL FOR PAPERS

REBALANCING INTERNATIONAL INVESTMENT AGREEMENTS IN FAVOUR OF HOST STATES: THE CASE FOR AN INTERNATIONAL INVESTMENT COURT

University of Bedfordshire, School of Law and Finance
29 June 2016

Deadline for abstract submission: 1 June 2016

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Change is an unavoidable feature of international law and one which has recently surfaced in the area of international investment law. This area has been in constant dynamic change since the inception of Investor-State Dispute Settlement (ISDS), which is commonly associated with arbitration under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID). Balancing the interests of both investors and host States, in a constantly changing materiae of international legal practice, is one of the discipline’s most fundamental challenges. Reform to our current system of ISDS surfaced during negotiations for a Transatlantic Trade and Investment Agreement (TTIP) between the European Union (EU) and United States (US).

Following an EU-wide public consultation in 2014, the proposal for the inclusion of ISDS in TTIP was overwhelmingly rejected with a majority of respondents raising concern over the disparity between national policy and commercial interests. In response, the EU Commission released proposals for an international investment court in November 2015. This proposal has stimulated intense academic debate especially on whether the new ISDS would achieve the desired balance.

This conference is intended to create an opportunity to reflect and debate together the role of ISDS and the proposal for an international investment court. The themes sought to be explored include, inter alia, the tension between national sovereignty and private commercial interests, the international investment court system in the shadow of State contracts with arbitral clauses, judges verses arbitrators and the investment court verses other dispute resolution mechanisms.

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The conference is open to both junior and senior international investment law scholars and practitioners. The convenors especially encourage doctoral and post-doctoral researchers to apply. Papers will be selected based on quality, originality, innovation and capacity to provoke debate about policy and practice. The convenors will seek to publish the proceedings from the conference in (awaiting confirmation). A limited number of grants are available to support the travel costs of accepted speakers.

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Submissions: Abstracts of 500 words should be submitted to schooloflaw@beds.ac.uk

Selected applicants will be informed of their acceptance by 8 June 2016. The abstracts will be distributed to the other conference participants in advance to facilitate an in-depth discussion. For any enquiries please contact the conference convenors:

Dr Chrispas Nyombi (Chrispas.Nyombi@beds.ac.uk)
Dr Andreas Yiannaros (Andreas.Yiannaros@beds.ac.uk)