- Pierre Michel Eisemann, Qu’est-ce qu’un rocher au sens de la Convention de Montego Bay de 1982 ? Observations sur la sentence arbitrale du 12 juillet 2016 relative à la mer de Chine méridionale
- Olivier Corten, François Dubuisson, Vaios Koutroulis, & Anne Lagerwall, L’exécution de Quassem Soleimani et ses suites : aspects de jus contra bellum et de jus in bello
- Denis Alland, Un adieu au droit international public ? A propos d’une déclaration américaine relative aux colonies israéliennes en Cisjordanie et ses suites
Wednesday, April 8, 2020
Tuesday, April 7, 2020
Contemporary feminist advocacy in human rights, international criminal law, and peace and security is gripped by the issue of sexual violence in conflict. But it hasn't always been this way. Analyzing feminist international legal and political work over the past three decades, Karen Engle argues that it was not inevitable that sexual violence in conflict would become such a prominent issue.
Engle reveals that as feminists from around the world began to pay an enormous amount of attention to sexual violence in conflict, they often did so at the cost of attention to other issues, including the anti-militarism of the women's peace movement; critiques of economic maldistribution, imperialism, and cultural essentialism by feminists from the global South; and the sex-positive positions of many feminists involved in debates about sex work and pornography. The Grip of Sexual Violence in Conflict offers a detailed examination of how these feminist commitments were not merely deprioritized, but undermined, by efforts to address the issue of sexual violence in conflict. Engle's analysis reinvigorates vital debates about feminist goals and priorities, and spurs readers to question much of today's common sense about the causes, effects, and proper responses to sexual violence in conflict.
This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.
This collection comprises 20 national reports from jurisdictions in Europe, North America, Latin America and Asia, addressing the private international law aspects of corporate social responsibility. They provide an overview of the legal differences between geographical areas, and offer numerous examples of how states and their courts have resolved disputes involving private international law elements. The book draws two preliminary conclusions: that there is a need for a better understanding of the role that private international law plays in cases involving transnational elements, in order to better design transnational solutions to the issues posed by economic globalisation; and that the treaty negotiations on business and human rights in the United Nations could offer a forum to clarify and unify several of the elements that underpin transnational disputes involving corporate human rights abuses, which could also help to identify and bridge the existing gaps that limit effective access to remedy.
Monday, April 6, 2020
Sunday, April 5, 2020
Differing from a selective adaptation approach towards external norms in its accession to the World Trade Organization, China plays an increasingly proactive role on the international stage, with the Belt and Road Initiative at the center of these activities. How can we understand this new approach by China towards international economic governance? What is responsible for China's shifting approach, and what are the implications of this shift? The paper presents selective reshaping as a new theoretical framework, and argues first that China is shifting towards the selective reshaping of institutions and rules within the global economic order. Second, perception and conception, complementarity and legitimacy are influencing components that affect selective reshaping, and which manifest substantially differently in this context, when compared with selective adaptation. Third, selective reshaping is likely to transform the institutions and rules within the international economic order, which has profound implications.
Cismas & Heffes: Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance
It is undeniable that the effectiveness of international humanitarian law (IHL) faces challenges from different quarters. To address these, humanitarian organizations have, in the main, pursued a direct engagement strategy with the parties to a conflict. Although this has remained the dominant strategy to date, in the last two decades the humanitarian sector has, on an ad hoc basis and without the benefit of a solid evidence base, engaged other societal actors identified as having the potential to influence parties to armed conflict, and among them religious leaders. This chapter addresses the role of these leaders in influencing compliance (or lack thereof) with IHL by States and non-State armed groups. In particular, two issues are explored: 1) what makes religious leaders influential among their constituencies?, and 2) how can they be useful actors to increase respect for IHL in armed conflict?
Herro: Demanding Their Rights? Collective Identity and the Tactics of Older Persons’ Organisations at the UN
Recent scholarship in International Relations focuses on the tactics of international non-government organisations and transnational advocacy networks, with scholars mostly explaining the diverse and dynamic tactics of organisations working on similar issues. Based on multiple qualitative data sources, this article explores why the members of a transnational advocacy network, comprising organisations of, and representing, older persons, that are calling for a UN Convention on the Rights of Older Persons adopt tactics that are static, uniform and surprisingly softly-softly, despite their modest gains since the issue was put on the UN’s agenda nine years ago. The article demonstrates many of the existing explanations for tactical choices, but it extends what we know by importing the concept of collective identity from social movement studies. It argues that the older persons’ network has a weak collective identity that is conservative in nature, which influences the tactics deployed at the UN.
Hsieh: Rethinking Non-Recognition: The EU’s Investment Agreement with Taiwan under the One-China Policy
The article reexamines the theories of recognition and non-recognition in the context of the evolving framework of the European Union (EU)’s trade and investment relations with Taiwan from legal and international relations perspectives. Notwithstanding its one-China policy, the EU has developed a pragmatic approach to engaging Taiwan under bilateral consultations and World Trade Organization negotiations that have built the foundation for the bilateral investment agreement (BIA). The article argues that since the 1980s, the EU has accorded diverse forms of recognition to Taiwan and the BIA will buttress the process. To substantiate the contention, the article systemically explores the political and trade policies of European states and EU institutions in line with their strategies toward cross-strait relations.
By deciphering the new momentum that has galvanized the European Commission’s strategy towards the EU-Taiwan BIA, the research sheds light on the implications of European Parliament resolutions and the EU’s investment talks with China. The structure and impact of the BIA are also analyzed in light of EU investment protection agreements with Singapore and Vietnam. Hence, the findings contribute to the interdisciplinary study of international law and international relations and enhance the understanding of the EU’s Asia-Pacific trade and investment agreements.
- Giulio Bartolini, What is a History of International Law in Italy for? International Law through the Prism of National Perspectives
- Claudia Storti, Early “Italian” Scholars of Ius Gentium
- Walter Rech, International Law as a Political Language, 1600– 1859
- Edoardo Greppi, The Risorgimento and the “Birth” of International Law in Italy
- Eloisa Mura, The Construction of the International Law Discipline in Italy between the Mancinian and Positive Schools
- Giulio Bartolini, Italian Legal Scholarship of International Law in the Early Decades of the Twentieth Century
- Antonello Tancredi, The (Immediate) Post- World War II Period
- Ivan Ingravallo, The Formation of International Law Journals in Italy: Their Role in the Discipline
- Mirko Sossai, Catholicism and the Evolution of International Law Studies in Italy
- Lorenzo Gradoni, Burn Out and Fade Away: Marxism in Italian International Legal Scholarship
- Pietro Franzina, The Integrated Approach to Private and Public International Law— A Distinctive Feature of Italian Legal Thinking
- Sergio Marchisio, The Unification of Italy and International Law
- Tommaso Di Ruzza, The “Roman Question”: The Dissolution of the Papal State, the Creation of the Vatican City State, and the Debate on the International Legal Personality of the Holy See
- Tullio Scovazzi, The Italian Approach to Colonialism: The First Experiences in Eritrea and Somalia
- Giulio Bartolini, Italy between the Two World Wars: International Law Issues
- Roberto Virzo, The Influence of Italian International Law Scholars on the Crafting of the 1948 Constitution
- Enrico Milano, The Main International Law Issues Arising in the Aftermath of World War II
- Giovanni Distefano & Robert Kolb, Some Contributions from and Influence of the Italian Doctrine of International Law
- Paolo Palchetti, The Italian Doctrine over Recent Decades
Lahmann: Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution
Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.
Saturday, April 4, 2020
Conversations about the involvement of States in the workings of the International Criminal Court often focus on the role of State cooperation in enabling the ICC to carry out criminal trials. However, there is a dimension to this cooperation that is underexplored. Whenever the ICC relies on the assistance of States, or States otherwise become involved in its functioning, the human rights of accused and witnesses involved in proceedings may be adversely affected. The simultaneous involvement of the ICC, ICC States Parties, and the ICC host State - whilst essential and unavoidable - can insert ambiguity and uncertainty into the protection of individuals, leaving the door open for human rights violations. This book explores this phenomenon of multi-actor human rights protection at the ICC. By setting out the relevant obligations of the different actors, the book highlights potential problems in human rights protection and proposes ways to mitigate them.
Thursday, April 2, 2020
The most important of Tommy Koh’s writings on the Law of the Sea are brought together in Building a New Legal Order for the Oceans. As President of the Third United Nations Conference on the Law of the Sea, Koh shares his perspective on the history of the United Nations Convention on the Law of the Sea (UNCLOS), the concepts, tensions and intentions that underlie many of the new legal concepts, and the unique negotiating process of the UNCLOS.
The UNCLOS has been called a constitution for the oceans and is critically important today in a world rocked by climate change and biodiversity loss, and where deep seabed resources are potentially of vital strategic importance. It is absolutely crucial to find new ways to manage the common heritage of mankind, while navigating the priorities and expectations of those who depend on the oceans. Equally, peace at sea is made possible by the UNCLOS. Koh discusses current threats to maritime security. He explains the intricacies of the disputes in the South China Sea and the success of maritime boundary conciliation between Australia and Timor-Leste.
What can be learned from the success of UNCLOS? How can we build on that success, and manage the new tensions that arise in the Law of the Sea?
Sparks: The Place of the Environment in State of Nature Discourses: Reassessing Nature, Property and Sovereignty in the Anthropocene
International environmental law, and in particular climate change law, are topics of keen interest in modern international law. Yet even in their modern forms, they depend upon and are governed by principles which derive from much earlier periods of international law and political thought. This chapter identifies sovereignty, as it has been interpreted and applied, as a key obstacle to achieving substantive environmental protection through the means of law, and traces that concept back to the roots of sovereignty in State of Nature theory. It analyses three prominent State of Nature theories, those of Thomas Hobbes, John Locke, and David Hume, in order to show that although their understandings of nature differ, each treats the natural world primarily as a resource. It then turns to modern international environmental law, taking as its case study the whaling regime, and argues that through the continued use of concepts drawn from the State of Nature tradition, an understanding of the environment as a resource to be maximally exploited is continuously re-entrenched. These conceptual foundations continue to restrain progress and development in modern environmental law.
Every international war crimes court has attracted controversy, but none more than the Extraordinary Chambers in the Courts of Cambodia (ECCC). Now in its twilight years, the ECCC has sparked robust debate since the late 1990s, before it was even launched. During negotiations aimed at creating a tribunal to address crimes of the Khmer Rouge, United Nations (UN) officials and others debated whether a court acceptable to Cambodia would be worthy of UN support. Today, the fulcrum of debate is whether the ECCC was ‘worth the effort’ it has required.
While myriad aspects of the ECCC’s performance are crucial to its legacy, this Article explores one question of overarching importance: whether the court’s performance has justified a central risk the UN assumed when it agreed to support the court — that case selection would be improperly influenced by the Cambodian government. More particularly, it assesses performance against two criteria: How well have safeguards against such interference worked? Are survivors of Khmer Rouge atrocities and other Cambodian citizens satisfied with ECCC justice?
This chapter seeks to incentivize greater attention to reproductive violence in international criminal law. The author recognizes that reproductive autonomy is a controversial issue, and has seldom been high on the international community’s agenda. As a result, there is no prospect of an international instrument that expressly criminalizes further reproductive crimes in the foreseeable future. The more practical route is to make creative use of existing legal frameworks, which as this chapter shows, have untapped potential when it comes to reproductive crimes. To illustrate this argument, the chapter examines the crimes of genocide, forced pregnancy, enslavement, sexual violence, persecution, outrages on personal dignity, torture, and inhumane acts.
What can be done if the United Nations Security Council fails to protect people from mass atrocities? At a time of inaction and political paralysis at the United Nations, this book explains the legality of alternative action beyond the Security Council.
This book takes a fresh look at the responsibility to protect and offers new and compelling insights into the powers and limits of the UN Security Council. It argues that the Security Council's responsibility to maintain international peace and security, and its responsibility to protect, do not die with its own failures. Other actors can and must take up responsibility to save those in need. In a persuasive and detailed examination of the legal framework, this research identifies options for coercive measures to be taken beyond the Council that could be used to break the deadlock, including through the General Assembly and regional organisations.
Wednesday, April 1, 2020
Tuesday, March 31, 2020
- Testing the legitimacy, consistency and credibility of the International Criminal Court
- Introduced by Béatrice Bonafé & Micaela Frulli
- Andrea Carcano, On the exercise of the judicial function at the International Criminal Court: Issues of credibility and structural design
- Gabrielle McIntyre, The impact of a lack of consistency and coherence: How key decisions of the International Criminal Court have undermined the Court’s legitimacy
Contracts with private military and security companies are a reality of modern conflicts. This discerning book provides nuanced insights into the international legal implications of these contracts, and establishes an in-depth understanding of the impacts for contracting states, home states and territorial states under the current state responsibility regime.
Focussing on the Articles on State Responsibility (ASR) the author considers under which conditions states are, or should be, responsible for the acts of private contractors given new trends towards remote warfare involving drones and increasingly autonomous weapon systems. Rigorous academic research and case studies, combined with insights from numerous interviews with practitioners, serve to highlight the challenges to applying the ASR. These challenges range from the relativity of key concepts of attribution to the issue of when reliance on private contractors becomes a violation of the principle of distinction under International Humanitarian Law and also illustrate where the current state responsibility regime needs to be modified to adequately address evolutions in warfare.
Monday, March 30, 2020
The dominant understanding of the role of human rights in the context of austerity induced by sovereign debt crises has shifted markedly over time. It reflects, and may have influenced, the genealogies of human rights law in the postwar era. Four different paradigms emerge. During the 1970s, the decade preceding the debt crisis of the 1980s, the idea of austerity as a response to debt crises was contested by the basic (human) needs approach and by the proposal of a New International Economic Order. Both strands of thought showed some affinity with human rights law, although not without ambiguity, understanding self-determination as a structural requirement for ESC rights enjoyment. Counterintuitively, though, the debt crisis beginning in the 1980s silenced, rather than provoked, any form of human rights-based critique. The IMF managed to shift the focus of the debate from human needs to human capital, in line with the emerging Washington Consensus. When the Iron Curtain fell, sovereign debt restructuring became more generous, but debtor states had to pay with ever more intrusive forms of austerity, including structural conditions such as respect for civil and political rights. This “governance paradigm” of human rights was countered by a transformative paradigm of human rights in which civil society articulated its critique of austerity. The IFIs avoided the issue of human rights, but reacted by adding “social” components to austerity that aligned with their focus on efficiency and growth and further entrenched sufficiency. The impact of austerity on the European periphery led to lots of human rights litigation, but a number of structural obstacles prevented its success. Instead, the crisis aftermath saw enormous progress in the political recognition of human rights as a relevant standard for austerity. This has given rise to a new political paradigm of human rights. While this genealogy shows the contingency of human rights discourse in relation to austerity, it reveals their potential for challenging economic expertise and empowering progressive views. The limits of human rights discourse are the limits of our imagination.