Sari: Between Legalization and Organizational Development: Explaining the Evolution of EU Competence in the Field of Foreign Policy

Aurel Sari (Univ. of Exeter - Law) has posted Between Legalization and Organizational Development: Explaining the Evolution of EU Competence in the Field of Foreign Policy (in EU External Relations Law and Policy in the Post-Lisbon Era, Paul James Cardwell ed., forthcoming). Here's the abstract:

The absorption of the European Community by the European Union has laid the foundations for the Union to become a more coherent and effective international actor. At the same time, the merger of the previously separate legal orders of the Community and the Union has put the intergovernmental character of the Common Foreign and Security Policy under considerable strain. The nature and extent of the Union’s competences in foreign policy matters constitutes one of the areas where this tension is particularly acute. The present chapter investigates why the question of Union competence in the field of foreign policy was not the subject of concern before the Treaty of Lisbon and what prompted the Member States to address this question during the treaty reform process. The chapter develops an answer to these questions by relying on two concepts borrowed from international relations scholarship, legalization and organization development, and argues that the institutional design of European foreign policy cooperation is governed by what we may term the Goldilocks Principle.

New Issue: Goettingen Journal of International Law

The latest issue of the Goettingen Journal of International Law (Vol. 3, no. 1, 2011) is out. Contents include:

• Marie-Claire Cordonier Segger, Keynote Speech: Resources of Conflict – Conflicts over Resources
• Cindy Daase, The Redistribution of Resources in Internationalized Intra-State Peace Processes by Comprehensive Peace Agreements and Security Council Resolutions
• Alice Ruzza, The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?
• Saiful Karim, Conflicts over Protection of Marine Living Resources: The 'Volga Case' Revisited
• Christiana Ochoa & Patrick J. Keenan, Regulating Information Flows, Regulating Conflict: An Analysis of United States Conflict Minerals Legislation
• Moshik Lavie & Christophe Muller, Incentives and Survival in Violent Conflicts
• Annyssa Bellal & Stuart Casey-Maslen, Enhancing Compliance with International Law by Armed Non-State Actors
• Alexander Kees, Regulation of Private Military Companies
• Alice Gadler, Armed Forces as Carrying both the Stick and the Carrot? Humanitarian Aid in U.S. Counterinsurgency Operations in Afghanistan and Iraq
• Stormy-Annika Mildner & Gitta Lauster, Settling Trade Disputes over Natural Resources: Limitations of International Trade Law to Tackle Export Restrictions
• Anastasia Telesetsky, Resource Conflicts over Arable Land in Food Insecure States: Creating an United Nations Ombudsman Institution to Review Foreign Agricultural Land Leases
• Bjørn-Oliver Magsig, Overcoming State-Centrism in International Water Law: 'Regional Common Concern' as the Normative Foundation of Water Security
• Dereje Zeleke Mekonnen, Between the Scylla of Water Security and Charybdis of Benefit Sharing: The Nile Basin Cooperative Framework Agreement – Failed or Just Teetering on the Brink?
• Lucian Dervan, Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown
• Eszter Kirs, Limits of the Impact of the International Criminal Tribunal for the Former Yugoslavia on the Domestic Legal System of Bosnia and Herzegovina
• Freya Baetens & Rumiana Yotova, The Abyei Arbitration: A Model Procedure for Intra-State Dispute Settlement in Resource-Rich Conflict Areas?
• Juan Guillermo Sandoval Coustasse & Emily Sweeney-Samuelson, Adjudicating Conflicts Over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case
• Pelin Ekmen, From Riches to Rags – the Paradox of Plenty and its Linkage to Violent Conflict

Tsagourias: The Responsibility of International Organisations for Military Missions

Nicholas Tsagourias (Univ. of Glasgow - Law) has posted The Responsibility of International Organisations for Military Missions (in International Military Missions and International Law, M. Odello & R. Piotrowicz eds., forthcoming). Here's the abstract:

This article examines the conditions under which wrongful conduct during a peacekeeping or a United Nations authorised operation can be attributed to the United Nations or to other International Organisations as well as the conditions under which such conduct can be attributed to multiple entities giving rise to their responsibility. Finally, the article considers the role of consent, self-defence and necessity as circumstances precluding the wrongfulness of such conduct in the context of such operations.

Call for Papers: The Eichmann Trial at 50

The Asia Pacific Centre for Military Law and Melbourne Law School have issued a call for papers for a two-day symposium on "The Eichmann Trial at 50." Here's the call:

THE EICHMANN TRIAL AT 50

A two-day international symposium to discuss one of the most important trials of the 20th Century

Melbourne Law School

14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson

CALL FOR PAPERS

Deadline for Abstracts: 15 June 2011

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial. The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

The symposium will be held over two days. We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided. A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish. Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o James Ellis (j.ellis@student.unimelb.edu.au). Doctoral students are welcome to submit abstracts. Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin at kheller@unimelb.edu.au.

Sato: The Execution of Illegal Orders and International Criminal Responsibility

Hiromi Sato has published The Execution of Illegal Orders and International Criminal Responsibility (Springer 2011). Here's the abstract:

The legal consequence of the superior orders defense has long been debated as one of the major problems in international criminal law. Several controversial issues such as the immunity of the state, the absolute character of military discipline, and immunity on the grounds of mistake of law and/or coercion have been complexly interwoven in the debates. The Execution of Illegal Orders and International Criminal Responsibility provides a comprehensive portrait of the relevant debates at the international level up to the present, analyzes the conflicting views, and shows the significance of the development of international rules for the superior orders defense as well as the implication of the fact that issues concerning some detailed or related rules have been left unresolved. This study presents to present a new standpoint not only on dealing with the problem of the superior orders defense but also on reconsidering the international stipulation of rulemaking with regard to criminal matters.

Fidler: International Law and the E. coli Outbreaks in Europe

David P. Fidler (Indiana Univ., Bloomington - Law) has posted an ASIL Insight on International Law and the E. coli Outbreaks in Europe.

Duxbury: The Participation of States in International Organisations: The Role of Human Rights and Democracy

Alison Duxbury (Univ. of Melbourne - Law) has published The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge Univ. Press 2011). Here's the abstract:

The admission of a state to membership is an important decision for an international organisation. In making this determination, organisations are increasingly promoting the observance of human rights and democratic governance as relevant principles. They have also applied the same criteria in resolving the question of whether existing members should be excluded from an organisation's processes. Through a systematic examination of the records, proceedings and practice of international organisations, Alison Duxbury examines the role and legitimacy of human rights and democracy as membership criteria. A diverse range of examples is discussed, including the membership policies and practice of the League of Nations and the United Nations; the admission of the Central and Eastern European states to the European Union; developments in regional organisations in Africa, Asia and the Americas; and the exclusion of members from the UN specialised agencies.

New Volume: Anuario Colombiano de Derecho Internacional

The latest volume of the Anuario Colombiano de Derecho Internacional (Vol. 3, Número Especial, 2010) is out. Contents include:

• Derecho Internacional de los Derechos Humanos y Derecho Internacional Humanitario
• Ricardo Abello Galvis, Editorial
• Elisabeth Lambert Abdelgawad, L’exécution des décisions des juridictions internationales des droits de l’homme : vers une harmonisation des systèmes régionaux
• Syméon Karagiannis, Expulsion d’étrangers et convention européenne des droits de l’homme. Le risque de mauvais traitements dans l’état de destination
• Laurence Burgorgue-Larsen & Amaya Úbeda de Torres, La “guerra” en la jurisprudencia de la Corte Interamericana de Derechos Humanos
• Noëlle Quénivet, The “War on Terror” and the Principle of Distinction in International Humanitarian Law
• Claudia Morini, First Victims then Perpetrators: Child Soldiers and International Law
• Manuel Andrés Galvis Martínez, El uso de recompensas en el conflicto armado colombiano
• Jernej Letnar Černič, Corporate Human Rights Obligations and International Investment Law

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 50, no. 1, January-March 2010) is out. Contents include:

• Upendra Baxi, Towards Understanding the Diplomacy of Human Rights: A Review Essay
• Abdul Haseeb Ansari, Poverty Link to the Environment: International and National Perspectives
• R. Rajesh Babu, Interpretation of the WTO Agreements, Democratic Legitimacy and Developing Nations
• Anuradha Saibata Rajesh, The Fundamental Right to Primary Education in India: A Critical Evaluation

New Volume: Canadian Yearbook of International Law

The latest volume of the Canadian Yearbook of International Law (Vol. 47, 2009) is out. Contents include:

• Articles
• Graham Mayeda, Pushing the Boundaries: Rethinking International Law in Light of Cosmopolitan Obligations to Developing Countries
• Louis-Philippe Jannard, Le traitement jurisprudentiel du traffic de migrants en droit comparé: Un désaveu des dispositions legislatives canadiennes
• Michael Elliot, Where Precision Is the Aim: Locating the Targeted Killing Policies of the United States and Israel within International Humanitarian Law
• Gregg Erauw, Trading Away Women’s Rights: A Feminist Critique of the Canada-Colombia Free Trade Agreement
• Justin Carter, The Protracted Bargain: Negotiating the Canada-China Foreign Investment Promotion and Protection Agreement
• Notes and Comments
• Fannie Lafontaine, Poursuivre le génocide, les crimes contre l’humanité et les crimes de guerre au Canada: une analyse des éléments des crimes à la lumière de l’affaire Munyaneza
• Benjamin Perrin, Searching for Accountability: The Draft UN International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies
• Juan-Francisco Escudero Espinosa, The Definition of Damage Resulting from Transboundary Movements of Living Modified Organisms in Light of the Cartagena Protocol on Biosecurity

New Volume: Anuario Hispano-Luso-Americano de Derecho Internacional

The latest volume of the Anuario Hispano-Luso-Americano de Derecho Internacional (Vol. 19, 2009) is out. Contents include:

• Ponencias del XXV Congreso
• Núria Bouza Vidal, Perspectiva universal y regional en la consolidación del arbitraje comercial internacional
• Zlata Drnas de Clément, Arbitraje y procesos de integración económica regional: La experiencia en el MERCOSUR
• José Juste Ruiz, Los contenciosos de límites en América Latina en la jurisprudencia reciente de la Corte Internacional de Justicia
• Hugo Llanos Mansilla, El arbitraje en la solución de controversias: Arbitraje comercial internacional y arbitraje de inversiones
• Iñigo Salvador Crespo, Tendencias en los litigios entre Estados de Iberoamérica ante la Corte Internacional de Justicia
• Comunicaciones
• Miguel Ángel Ciuro Caldani, Aportes jusfilosóficos para la comprensión de las perspectivas regional y universal del arbitraje comercial internacional
• Pedro Alberto de Miguel Asensio, Mecanismos internacionales de solución de controversias sobre dominios de Internet: Interacción con las jurisdicciones estatales
• Adriana Dreyzin de Klor, La primera Opinión Consultiva en MERCOSUR: ¿Germen de cuestión prejudicial?
• Hortensia D.T. Gutiérrez Posse, Apuntes sobre un tema acordado de solución de controversias
• Orlando Mejía Herrera, Involución del sistema jurisdiccional del SICA: Los tribunales arbitrales ad hoc en el proceso de integración económica centroamericana
• Alfredo Héctor Rizzo Romano, Demarcación de la región andina comprendida entre los montes Fitz Roy y Murallón, conforme el Tratado de 1998 entre la República Argentina y la República de Chile, y sus precedentes. Eliminación de minas antipersonales en la frontera común
• Luis Ignacio Savid Bas & Arturo Santiago Pagliari, Las fuentes de la normativa aplicable por la Corte Penal Internacional
• Amalia Uriondo de Martinoli, Etapas del proceso arbitral en la jurisprudencia argentina
• Ana Elizabeth Villalta Vizcarra, El aporte de América al Derecho Internacional

Foster: Science and the Precautionary Principle in International Courts and Tribunals

Caroline E. Foster (Univ. of Auckland - Law) has published Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge Univ. Press 2011). Here's the abstract:

By canvassing a range of international scientific disputes, including the EC-Biotech and EC-Hormones disputes in the WTO, the Case concerning Pulp Mills and the Gabcíkovo–Nagymaros case in the International Court of Justice, and the Mox Plant and Land Reclamation cases dealt with under the United Nations Convention on the Law of the Sea, Caroline Foster examines how the precautionary principle can be accommodated within the rules about proof and evidence and advises on the boundary emerging between the roles of experts and tribunals. A new form of reassessment proceedings for use in exceptional cases is proposed. Breaking new ground, this book seeks to advance international adjudicatory practice by contextualising developments in the taking of expert evidence and analysing the justification of and potential techniques for a precautionary reversal of the burden of proof, as well as methods for dealing with important scientific discoveries subsequent to judgments and awards.

Luban: War as Punishment

David J. Luban (Georgetown Univ. - Law) has posted War as Punishment. Here's the abstract:

For more than a thousand years, just war theorists accepted that wars could be launched to punish or avenge wrongdoing, the war itself being an instrument of retribution. Today, this punishment theory of just cause has completely disappeared from international law, which recognizes only individual and collective self-defense as legitimate cause for war. But retributive emotions are as strong today as ever, and the punishment theory is still alive and well in the moral imaginations of modern societies, even if the diplomats and lawyers scrub it from their official pronouncements about the wars their nations fight. Furthermore, intuitions about enemy collective guilt underlie current debates over who counts as a direct participant in hostilities, how voluntary human shields should be treated, and how much risk soldiers must take to minimize casualties among enemy civilians.

This paper addresses two principal questions: how we got from there to here - that is, from just war theories that embraced the punishment theory to its current erasure - and whether the punishment theory may nevertheless be right.

In answer to the first question, the paper traces the punishment theory from its initial formulation in writings of St. Augustine (whose views it examines in detail) through its medieval and early modern defenses, to its rejection by Kant and Vattel. Defenders of the theory, notably Cajetan, viewed punitive war through the lens of criminal justice by which states punish miscreants; they argued that natural reason cannot accept notorious unpunished wrongdoing. Those who rejected the theory did so because it requires one state to judge the conduct of another. This objection raises two distinct issues: violation of sovereign equality, and biased judgment. The paper rejects the sovereignty objection, but elaborates the biased judgment objection by examining the distinction between retribution and revenge.

These arguments lead to five objections to the punishment theory: (1) It places punishment in the hands of a biased judge, namely the aggrieved party, which (2) makes it more likely to be vengeance than retributive justice. (3) Vengeance does not follow the fundamental condition of just retribution, namely proportionality between punishment and offense. (4) Furthermore, punishment through warmaking is collective punishment that punishes the wrong people, and (5) it employs the wrong methods. Ultimately, Cajetan's concerns about unpunished wrongdoing argue for international criminal law, not punitive warfare.

New Issue: European Journal of International Relations

The latest issue of the European Journal of International Relations (Vol. 17, no. 1, March 2011) is out. Contents include:

• Nukhet A. Sandal & Patrick James, Religion and International Relations theory: Towards a mutual understanding
• Srdjan Vucetic, Bound to follow? The Anglosphere and US-led coalitions of the willing, 1950–2001
• Lene Hansen Theorizing the image for Security Studies: Visual securitization and the Muhammad Cartoon Crisis
• Kléber Ghimire, The United Nations world summits and civil society activism: Grasping the centrality of national dynamics
• Isak Svensson & Mathilda Lindgren, Community and consent: Unarmed insurrections in non-democracies
• Brian Grodsky, Exploring the Schelling conjecture in reverse: ‘International constraints’ and cooperation with the International Criminal Tribunal for the former Yugoslavia

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 55, no. 2, April 2011) is out. Contents include:

• Amanda Murdie & Tavishi Bhasin, Aiding and Abetting: Human Rights INGOs and Domestic Protest
• Ross A. Miller & Özlem Elgün, Diversion and Political Survival in Latin America
• Arzu Kibris, Funerals and Elections: The Effects of Terrorism on Voting Behavior in Turkey
• Timothy M. Peterson & Leah Graham, Shared Human Rights Norms and Military Conflict
• Eran Halperin, Alexandra G. Russell, Carol S. Dweck, & James J. Gross, Anger, Hatred, and the Quest for Peace: Anger Can Be Constructive in the Absence of Hatred
• Bear F. Braumoeller & Austin Carson, Political Irrelevance, Democracy, and the Limits of Militarized Conflict

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 11, no. 1, March 2011) is out. Contents include:

• Fons Coomans, The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights
• Frédéric Mégret, The Human Rights of Older Persons: A Growing Challenge
• Steven Greer, Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case
• Nicolas A. J. Croquet, The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?
• Nigel D. White, The Privatisation of Military and Security Functions and Human Rights: Comments on the UN Working Group’s Draft Convention
• Sévrine Knuchel, Samantar v Yousuf: Narrowing the Prospects for Human Rights Litigation against Foreign Officials?
• Loveday Hodson, A Marriage by Any Other Name? Schalk and Kopf v Austria

Johnstone: The Power of Deliberation: International Law, Politics and Organizations

Ian Johnstone (Tufts Univ. - Fletcher School of Law and Diplomacy) has published The Power of Deliberation: International Law, Politics and Organizations (Oxford Univ. Press 2011). Here's the abstract:

Arguing about matters of public policy is ubiquitous in democracies. The ability to resolve conflicts through peaceful contestation is a measure of any well-ordered society. Arguing is almost as ubiquitous in international affairs, yet it is not viewed as an important element of world order. In The Power of Deliberation: International Law, Politics and Organizations, Ian Johnstone challenges the assumption that arguing is mere lip service with no real impact on the behavior of states or the structure of the international system. Johnstone focuses on legal argumentation and asks why, if the rhetoric of law is inconsequential, governments and other international actors bother engaging in it.

Johnstone joins the efforts of international relations scholars and democracy theorists who consider why argumentation occurs beyond nation states. He focuses on deliberation in and around international organizations, drawing on various strands of legal, political and international relations theory to identify common features of legal argumentation and deliberative politics. Johnstone's central claim is that international organizations are places where "interpretive communities" coalesce, and the quality of the deliberations these communities provoke is a measure of the legitimacy of the organization.

Heller: A Sentence-Based Theory of Complementarity

Kevin Jon Heller (Univ. of Melbourne - Law) has posted A Sentence-Based Theory of Complementarity. Here's the abstract:

Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the, “hard mirror thesis,” and the, “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.

Barnett: Empire of Humanity: A History of Humanitarianism

Michael Barnett (George Washington Univ. - International Affairs and Political Science) has published Empire of Humanity: A History of Humanitarianism (Cornell Univ. Press 2011). Here's the abstract:

Empire of Humanity explores humanitarianism’s remarkable growth from its humble origins in the early nineteenth century to its current prominence in global life. In contrast to most contemporary accounts of humanitarianism that concentrate on the last two decades, Michael Barnett ties the past to the present, connecting the antislavery and missionary movements of the nineteenth century to today’s peacebuilding missions, the Cold War interventions in places like Biafra and Cambodia to post–Cold War humanitarian operations in regions such as the Great Lakes of Africa and the Balkans; and the creation of the International Committee of the Red Cross in 1863 to the emergence of the major international humanitarian organizations of the twentieth century. Based on extensive archival work, close encounters with many of today’s leading international agencies, and interviews with dozens of aid workers in the field and at headquarters, Empire of Humanity provides a history that is both global and intimate.

Avoiding both romanticism and cynicism, Empire of Humanity explores humanitarianism’s enduring themes, trends, and, most strikingly, ethical ambiguities. Humanitarianism hopes to change the world, but the world has left its mark on humanitarianism. Humanitarianism has undergone three distinct global ages—imperial, postcolonial, and liberal—each of which has shaped what humanitarianism can do and what it is. The world has produced not one humanitarianism, but instead varieties of humanitarianism. Furthermore, Barnett observes that the world of humanitarianism is divided between an emergency camp that wants to save lives and nothing else and an alchemist camp that wants to remove the causes of suffering. These camps offer different visions of what are the purpose and principles of humanitarianism, and, accordingly respond differently to the same global challenges and humanitarianism emergencies. Humanitarianism has developed a metropolis of global institutions of care, amounting to a global governance of humanity. This humanitarian governance, Barnett observes, is an empire of humanity: it exercises power over the very individuals it hopes to emancipate.

Although many use humanitarianism as a symbol of moral progress, Barnett provocatively argues that humanitarianism has undergone its most impressive gains after moments of radical inhumanity, when the "international community” believes that it must atone for its sins and reduce the breach between what we do and who we think we are. Humanitarianism is not only about the needs of its beneficiaries; it also is about the needs of the compassionate.

New Volume: Austrian Review of International and European Law

The latest volume of the Austrian Review of International and European Law (Vol. 12, 2007) is out. Contents include:

• Ilias Bantekas, The Permissibility of Defiance and Self-Defence Against Chapter VII Authorisations: When and Why
• Christopher Barbara, International Legal Personality: Panacea or Pandemonium? Theorizing About the Individual and the State in the Era of Globalization
• Julia Mair, Equal Treatment of Parties in the Nomination Process of Arbitrators in Multi-Party Arbitration and Consolidated Proceedings
• Christina Knahr, Indirect Expropriation in Recent Investment Arbitration
• Silvia Petkov, The State as a Criminal Again? The 2007 ICJ Judgment on the Application of the Genocide Convention Viewed From a Criminal Law Perspective

New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht

The latest issue of the Schweizerische Zeitschrift für internationales und europäisches Recht (Vol. 20, no. 2, 2010) is out. Contents include:

• Aktuell
• Christine Kaddous, Stamm et Hauser, Grimme, Fokus Invest AG, Hengartner et Gasser ou la différence entre accords bilatéraux et marché intérieur
• Artikel
• Frédéric Berthoud, La libre prestation de services en application de la directive 2005/36/CE
• Thomas Burri & Benedikt Pirker, Stromschnellen im Freizügigkeitsfluss: Von der Bedeutung von Urteilen des Europäischen Gerichtshofes im Rahmen des Personenfreizügigkeitsabkommens

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 71, no. 1, 2011) is out. Contents include:

• Abhandlungen
• Christina Binder: Auf dem Weg zum lateinamerikanischen Verfassungsgericht? - Die Rechtsprechung des Interamerikanischen Menschenrechtsgerichtshofs im Bereich der Amnestien
• Jan Wiegandt, Internationale Rechtsordnung oder Machtordnung? - Eine Anmerkung zum Verhältnis von Macht und Recht im Völkerrecht
• Katja Göcke, Inuit Self-Government in the Canadian North: The Next Step in the Nunavut Project
• Johannes Fuchs, Kooperative Erdgassicherheit – Energietransit im Völkerrecht unter besonderer Berücksichtigung des Nabucco-Abkommens vom 13.7.2009
• Stellungnahmen und Berichte
• Gerhard Ullrich: Die Immunität internationaler Organisationen von der einzelstaatlichen Gerichtsbarkeit

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 49, no. 1, March 2011) is out. Contents include:

• Abhandlungen
• Marten Breuer, Die Völkerrechtspersönlichkeit Internationaler Organisationen
• Jochen von Bernstorff, Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility
• Beiträge und Berichte
• Frithjof Ehm, Demokratie und die Anerkennung von Staaten und Regierungen

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 13, nos. 1-2, 2011) is out. Contents include:

• Adam Daniel Rotfeld, Where is the World Heading? Shaping a New International System
• Roman Kwiecień, Sir Hersch Lauterpacht's Idea of State Sovereignty - Is It Still Alive?
• Adam Łazowski, A Visionary Behind the Iron Curtain: Cezary Berezowski on European Integration
• Anna Wyrozumska, Count Rostworowski as an International Lawyer and Judge
• Eugeniusz Piontek, Professor Manfred Lachs: Wise Man of International Law
• Krzysztof Skubiszewski, Sir Hersch Lauterpacht and Poland's Judges at the International Court: Judge Bohdan Winiarski
• Joanna Gomula, The State as a Respondent in Central and Eastern European Investment Arbitrations
• Marcin Kałduński, The Element of Risk in International Investment Arbitration
• Aureliusz Wlaź, Preclusion of Wrongfulness of the Use of Force
• Roger O'Keefe, Legal Title versus Effectivités: Prescription and the Promise and Problems of Private Law Analogies

New Issue: Climate Law

The latest issue of Climate Law (Vol. 2, no. 1, 2011) is out. Contents include:

• Peter Drahos, Bargaining Over the Climate: Lessons From Intellectual Property Negotiations
• Marjan Peeters, The EU ETS and the Role of the Courts: Emerging Contours in the Case of Arcelor
• Marijn Holwerda, Deploying Carbon Capture and Storage “Safely”: The Scope for Member States of the EU to Adopt More Stringent CO2 Stream-Purity Criteria Under EU Law
• Navraj Ghaleigh & David Rossati, The Spectre of Carbon Border-Adjustment Measures
• Elisa Morgera, Far Away, So Close: A Legal Analysis of the Increasing Interactions Between the Convention on Biological Diversity and Climate Change Law
• Elizabeth Cripps, Where We Are Now: Climate Ethics and Future Challenges

New Volume: Anuario Colombiano de Derecho Internacional

The latest volume of the Anuario Colombiano de Derecho Internacional (Vol. 3, 2010) is out. Contents include:

• Laura Victoria García Matamoro, Editorial
• André Lipp Pinto & Basto Lupi, Contra los métodos en el Derecho Internacional: una crítica a partir de su contribución para la realización de la función social de la dogmática jurídica
• Jirí Malenovský, Les opinions séparées et leurs répercussions sur l’indépendance du juge international
• Rafael Tamayo Franco, El desarrollo del Derecho Internacional a través de la función consultiva de la Corte Internacional de Justicia
• Javier J. Rúa-Jovet, Modern self-determination law and the fourth option: International and United States Law
• Ilias Bantekas, The communication by States of International Law to their direct stakeholders
• Natalia Rodríguez Uribe, Dispute resolution and “environmental” provisions in the WTO: promising developments for environmental matters

Kinsella: The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian

Helen M. Kinsella (Univ. of Wisconsin, Madison - Political Science) has published The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Cornell Univ. Press 2011). Here's the abstract:

Since at least the Middle Ages, the laws of war have distinguished between combatants and civilians under an injunction now formally known as the principle of distinction. The principle of distinction is invoked in contemporary conflicts as if there were an unmistakable and sure distinction to be made between combatant and civilian. As is so brutally evident in armed conflicts, it is precisely the distinction between civilian and combatant, upon which the protection of civilians is founded, cannot be taken as self-evident or stable. Helen M. Kinsella documents that the history of international humanitarian law itself admits the difficulty of such a distinction.

In The Image before the Weapon, Kinsella explores the evolution of the concept of the civilian and how it has been applied in warfare. A series of discourses—including gender, innocence, and civilization—have shaped the legal, military, and historical understandings of the civilian and she documents how these discourses converge at particular junctures to demarcate the difference between civilian and combatant. Engaging with works on the law of war from the earliest thinkers in the Western tradition, including St. Thomas Aquinas and Christine de Pisan, to contemporary figures such as James Turner Johnson and Michael Walzer, Kinsella identifies the foundational ambiguities and inconsistencies in the principle of distinction, as well as the significant role played by Christian concepts of mercy and charity. She then turns to the definition and treatment of civilians in specific armed conflicts: the American Civil War and the U.S.-Indian wars of the nineteenth century, and the civil wars of Guatemala and El Salvador in the 1980s. Finally, she analyzes the two modern treaties most influential for the principle of distinction: the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War and the 1977 Protocols Additional to the 1949 Conventions, which for the first time formally defined the civilian within international law. She shows how the experiences of the two world wars, but particularly World War II, and the Algerian war of independence affected these subsequent codifications of the laws of war.

As recognition grows that compliance with the principle of distinction to limit violence against civilians depends on a firmer grasp of its legal, political, and historical evolution, The Image before the Weapon is a timely intervention in debates about how best to protect civilian populations.

New Issue: American Journal of International Law

The latest issue of the American Journal of International Law (Vol. 105, no. 2, April 2011) is out. Contents include:

• John B. Bellinger III & Vijay M. Padmanabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law
• Theresa Reinold, State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11
• In Memoriam
• Lori Fisler Damrosch, Louis Henkin (1917–2010)

Young: Trading Fish, Saving Fish: The Interaction between Regimes in International Law

Margaret A. Young (Univ. of Melbourne - Law) has published Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge Univ. Press 2011). Here's the abstract:

Numerous international legal regimes now seek to address the global depletion of fish stocks, and increasingly their activities overlap. The relevant laws were developed at different times by different groups of states. They are motivated by divergent economic approaches, influenced by disparate non-state actors, and implemented by separate institutions such as the World Trade Organisation and the United Nations Food and Agriculture Organisation. Margaret Young shows how these and other factors affect the interaction between regimes. Her empirical and doctrinal analysis moves beyond the discussion of conflicting norms that has dominated the fragmentation debate. Case-studies include the negotiation of new rules on fisheries subsidies, the restriction of trade in endangered marine species and the adjudication of fisheries import bans. She explores how regimes should interact, in fisheries governance and beyond, to offer insights into the practice and legitimacy of regime interaction in international law.

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 60, no. 2, April 2011) is out. Contents include:

• Jan Paulsson, Arbitration in Three Dimensions
• Roman Petrov & Paul Kalinichenko, The Europeanization of Third Country Judiciaries Through the Application of The Euacquis: The Cases of Russia and Ukraine
• Chris Willett, The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches
• Andrew Serdy, Postmodern International Fisheries Law, Or We Are All Coastal States Now
• Scott P Sheeran, International Law, Peace Agreements and Self-Determination: The Case Of The Sudan
• Siobhán Mullally, Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law: A Progress Narrative?
• Richard Garnett, National Court Intervention in Arbitration as an Investment Treaty Claim
• Lavanya Rajamani, The Cancun Climate Agreements: Reading the Text, Subtext and Tea Leaves

New Issue: Revue Québécoise de Droit International

The latest issue of the Revue Québécoise de Droit International (Vol. 22, no. 2, 2009) is out. Contents include:

• Paul von Mühlendahl, L'arrêt de la Cour internationale de justice dans l’affaire de la Délimitation maritime en mer Noire (Roumanie c. Ukraine) : l'aboutissement d’un processus vieux de quarante ans?
• Loïc Vatna, L'affaire des Usines de pâte à papier sur le fleuve Uruguay (Argentine c. Uruguay) : un nouveau différend environnemental devant la Cour internationale de justice
• Jean d'Aspremont, Émergence et déclin de la gouvernance démocratique en droit international
• Omorou Zackaria Touré, Les relations commerciales États-Unis / Afrique subsaharienne sous l'African Growth and Opportunity Act
• Sylvestre-José-Tidiane Manga, L'Organisation mondiale de l’environnement : comment renaître des cendres de la Conférence de Copenhague sur les changements climatiques de décembre 2009?

New Issue: Revue Hellénique de Droit International

The latest issue of the Revue Hellénique de Droit International (Vol. 63, no. 2, 2010) is out. Contents include:

• Articles
• Symeon C. Symeonides, American federalism and private international law
• Miklós Király, Book trade and the internal market
• Constantine Antonopoulos, The relationship between international humanitarian law and human rights
• Brusil Miranda Metou, Le préambule des actes constitutifs des organisations internationales
• Ioannis Stribis, Le champ opératoire des normes internationales : la médiation de la théorie
• Études
• Tarek Majzoub & Fabienne Quilleré-Majzoub, ‘Polar icebergs harvesting’: reflections on the rules go-verning future exploitation of freshwater locked up in Polar regions
• Ilia-Maria Siatitsa, The evolution of the monitoring mechanism of the Framework Convention for the protection of national minorities: cooperation of independent and political bodies in the interest of effectiveness
• Anthi Pelleni, Die neue Ärztliche Berufsordnung im griechischen Recht
• Kalliopi Chainoglou, Recent developments in the protection of the rights of persons with disabilities within the European framework: the European Community and the Council of Europe

Conference: BIICL Annual Conference 2011

The 2011 Annual Conference of the British Institute of International and Comparative Law will take place on June 10th. This year's theme is "Financial Regulation in a Global Market: Moving Beyond the State." The program is here.

Beaudouin: Uti possidetis et sécession

Anouche Beaudouin has published Uti possidetis et sécession (Dalloz 2011). Here's the abstract:

Si l'existence de l'État est un fair, ce fait doit être apprécié en lui-même et l'assise territoriale de l'État doit correspondre à son effectivité sans qu'il v ait lieu de s'attacher aux limites administratives pré-existantes dans l'État prédécesseur. C'est cette thèse qu'Anouche Beaudouin s'emploie à démontrer qu'elle n'a que l'apparence de la logique. Bien que le mot n'apparaisse pas dans l'intitulé de la thèse, c'est donc l'effectivité qui va se trouver au centre de la réflexion : que l'on y voie le reflet de la neutralité du droit international à l'égard de la sécession (l'existence de l'État est une question de pur fait) ou une norme "définitionnelle" (l'État ne peut exister que s'il répond effectivement à la définition qu'en donne le droit international), la question à laquelle l'auteure entend répondre appelle la même réponse : "la la référence aux entités administratives [de l'État prédécesseur, c'est-à-dire l'uti possidetis] est une manière d'apprécier l'étendue de l'effectivité", "une interprétation de l'effectivité à l'oeuvre lors des sécessions dans sa dimension spatiale."

Luban: Risk Taking and Force Protection

David J. Luban (Georgetown Univ. - Law) has posted Risk Taking and Force Protection (in Reading Walzer, Itzhak Benbaji & Naomi Sussman eds., forthcoming). Here's the abstract:

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while soldiers must rank the protection of their own civilians above their own protection, they must rank their own protection above that of enemy civilians. Avishai Margalit and Michael Walzer responded that the only morally relevant distinction is between combatants and non-combatants, not the identity of the non-combatants. The present paper concludes that Margalit and Walzer are correct. Although soldiers may take extra risks on behalf of their own civilians, the minimally acceptable risk for enemy civilians is the same as the minimally acceptable risk for their own.

In response to the first question, the paper emphasizes two chief points. First is the equal worth of military and civilian lives, which implies a weak form of “risk egalitarianism”: even if morality often permits people to transfer risk from themselves to others, transferring large risks to others in order to spare oneself from smaller risks is morally wrong, because indirectly it treats oneself as more valuable than the other. Second, I explore the possibility that soldiers belong to a profession in which honor may require them to take risks for civilians. This is particularly true when the risks to civilians come from the soldiers’ own violence.

The second question is whether soldiers’ special obligation to protect their own people (not other people) creates a higher minimum standard of care for their own people (and not other people). I answer no, because the special obligation is to protect their people from enemy violence, while the dilemma is whether to protect civilians from the soldiers’ own violence. The responsibility to protect the innocent from violence of one’s own making is a universal, not a special, obligation. Thus, in both questions 1 and 2, the fact that soldiers themselves create the violence that endangers civilians plays a crucial role in the answers.

The concluding sections address two crucial loose ends. First is the question of whether soldiers might in fact be more valuable than civilians (including their own civilians) because they are not only human beings, but also “military assets.” The paper answers no, because this way of thinking involves illegitimate double counting of the soldier’s value, coupled with a refusal to double count the value of anyone else. Second is the related question of whether minimizing military casualties might turn out to be a military necessity because the civilian population is deeply casualty-averse, and the war effort requires their political support. Again the answer is no: otherwise, the less will to fight a country has, the less moral and legal obligation it has to fight well.

Waibel: Sovereign Defaults before International Courts and Tribunals

Michael Waibel (Univ. of Cambridge - Law) has published Sovereign Defaults before International Courts and Tribunals (Cambridge Univ. Press 2011). Here's the abstract:

International law on sovereign defaults is underdeveloped because States have largely refrained from adjudicating disputes arising out of public debt. The looming new wave of sovereign defaults is likely to shift dispute resolution away from national courts to international tribunals and transform the current regime for restructuring sovereign debt. Michael Waibel assesses how international tribunals balance creditor claims and sovereign capacity to pay across time. The history of adjudicating sovereign defaults internationally over the last 150 years offers a rich repository of experience for future cases: US state defaults, quasi-receiverships in the Dominican Republic and Ottoman Empire, the Venezuela Preferential Case, the Soviet repudiation in 1917, the League of Nations, the World War Foreign Debt Commission, Germany's 30-year restructuring after 1918 and ICSID arbitration on Argentina's default in 2001. The remarkable continuity in international practice and jurisprudence suggests avenues for building durable institutions capable of resolving future sovereign defaults.

Swart, Zahar, & Sluiter: The Legacy of the International Criminal Tribunal for the Former Yugoslavia

Bert Swart (Univ. of Amsterdam - Law), Alexander Zahar (Macquarie Law School), & Göran Sluiter (Univ. of Amsterdam - Law) have published The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford Univ. Press 2011). The table of contents is here. Here's the abstract:

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 and is due to complete its trials by 2011. Easily the most credible and prodigious of the international tribunals established in this period, the ICTY is by far the most important source of case law on international criminal law. This is reflected in the citations it receives by other courts and by learned commentators. Long after its dissolution, the ICTY will most likely serve as an important frame of reference for the International Criminal Court and other courts dealing with international crimes, including national courts.

The publication of this book coincides with the year of cessation of trial activity at the ICTY. Its purpose is to mark this significant milestone in international law with a series of in-depth, critical reflections on the institution's legacy by eminent scholars and practitioners. In the course of seventeen chapters, the contributing authors analyse the main features of the ICTY's work in an unprecedented examination of the institution's legitimacy, core principles, methodologies, unstated assumptions, political circumstances, and impact-and indeed, its legacy.

Cryer et al.: Research Methodologies in EU and International Law

Robert Cryer (Univ. of Birmingham - Law), Tamara Hervey (Univ. of Sheffield - Law), & Bal Sokhi-Bulley (Queen's Univ. Belfast - Law) have published Research Methodologies in EU and International Law (Hart Publishing 2011). Here's the abstract:

Law research students often begin their PhDs without having an awareness of methodology, or the opportunity to think about the practice of research and its theoretical implications. Law Schools are, however, increasingly alive to the need to provide training in research methods to their students. They are also alive to the need to develop the research capacities of their early career scholars, not least for the Research Excellence Framework exercise. This book offers a structured approach to doing so, focusing on issues of methodology - ie, the theoretical elements of research - within the context of EU and international law.

The book can be used alone, or could form the basis of a seminar-based course, or a departmental, or even regional, discussion group. At the core of the book are the materials produced for a series of workshops, funded by the Arts & Humanities Research Council's Collaborative Doctoral Training Fund, on Legal Research Methodologies in EU and international law. These materials consist of a document with readings on main and less mainstream methodological approaches (what we call modern and critical approaches, and the 'law and' approaches) to research in EU and international law, and a series of questions and exercises which encourage reflection on those readings, both in their own terms, and in terms of different research agendas. There are also supporting materials, giving guidance on practical matters, such as how to give a paper or be a discussant at an academic conference.

The basic aim of the book is to help scholars in EU and international law reflect on their research: where does it fit within the discipline, what kinds of research questions they think interesting, how do they pursue them, what theoretical perspective best supports their way of thinking their project, and so on. The book is aimed both at PhD students and early career scholars in EU and international law, and also at more established scholars who are interested in reflecting on the development of their discipline, as well as supervising research projects.

Chesterman: 'Leading from Behind': The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention After Libya

Simon Chesterman (National Univ. of Singapore - Law; New York Univ. - Singapore Programme) has posted 'Leading from Behind': The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention After Libya (Ethics & International Affairs, forthcoming). Here's the abstract:

Humanitarian intervention has always been more popular in theory than in practice. In the face of unspeakable acts, the desire to do something, anything, is understandable. States have tended to be reluctant to act on such desires, however, leading to the present situation in which there are scores of books and countless articles articulating the contours of a right - or even an obligation - of humanitarian intervention, while the number of cases that might be cited as models of what is being advocated can be counted on one hand.

So is Libya such a case? It depends on why one thinks that precedent is important. From an international legal perspective, debates have tended to focus on whether one or more states have the right to intervene in another for human protection purposes. From the standpoint of international relations and domestic politics, the question is whether states have the will to intervene. From a military angle, a key dilemma is whether states have the ability to intervene effectively. This essay considers these three issues in turn. The legal significance of Libya is minimal, though the response does show how the politics of humanitarian intervention has shifted to the point where it is harder to do nothing in the face of atrocities. At the same time, however, military action to the end of May 2011 suggested a continuing disjunction between ends and means.