- Ali Z. Marossi, Shifting the Burden of Proof in the Practice of the Iran–United States Claims Tribunal
- Renata Brazil-David, Harmonization and Delocalization of International Commercial Arbitration
- Paul Friedland & Bing Lan, Negotiating and Drafting Arbitration Agreements with Chinese Parties — Special Considerations of Chinese Law and Practice
- Mauro Rubino-Sammartano, The Three Mediations (Light and Shadow of the Italian Example)
- Chukwuemeka E. Ibe, Party Autonomy and the Constitutionality of Nigerian Arbitration and Conciliation Act 1988, Sections 7(4) and 34 — Commentary on Agip Oil Co. Ltd. v. Kremmer and others, Chief Felix Ogunwale v. Syrian Arab Republic, and Bendex Engineering Ltd. v. Efficient Petroleum (Nigeria) Ltd.
- Sarah Grimmer, The Expanded Role of the Appointing Authority under the UNCITRAL Arbitration Rules 2010
Saturday, November 26, 2011
Friday, November 25, 2011
International Law Association (ILA) British BranchCall for Papers
Annual Spring Conference
20-21 April 2012
“Security and International Law”
The 2012 Spring Conference of the British Branch of the International Law Association will be hosted by the University of Nottingham School of Law, on Friday, 20 and Saturday, 21 April 2012 at the University of Nottingham, University Park, Nottingham.
The Conference theme ‘Security and International Law’ encompasses human, political, military, socio-economic, environmental and energy security. It may also include security issues arising from the operation of international law in territorial and extraterritorial spaces, such as the high seas, aerospace, or the Internet. The Conference theme aims to address the following questions: To what extent can international law address the types of natural and man-made security risks and challenges that threaten our livelihood, or very existence, in the 21st Century? Where does international fall short in meeting the problems that arise in different situations of insecurity and how should such shortcomings be addressed?
Programme Committee: Professor Mary Footer (Chair), Professor Nigel White, Professor Dino Kritsiotis, Mr Sandesh Sivakumaran, Mr Michael Bowman, Dr Marko Milanovic, Dr Edward Goodwin, Ms Sangeeta Shah and Professor Robert McCorquodale.
A pre-Conference workshop for first and second year MPhil/PhD students, will be held during the afternoon of Thursday, 19 April 2012 (please see below for further details).
Call for Papers
A. All colleagues (both ILA and non-ILA Members) wishing to present a paper must submit an abstract (350-600 words), identifying the main thesis and issues to be addressed in their papers. It should be sent to email@example.com by 31 January 2012. Younger colleagues (aged 35 years and under in academic year 2011-2012) and final year PhD students are actively encouraged to submit an abstract.
B. A submitted abstract must fall within one of the following themes. The relevant theme must be identified directly underneath the title of the abstract:
- international peace and security, including national security
- security and protection against international crime and terrorism
- human security, in areas such as (but not limited to) food, health and detention
- environmental security, including issues arising from the depletion of natural resources and climate change
- security in crisis situations, including humanitarian and natural disasters
- security of utilities and infrastructures, including such areas as information technology, transport, energy and the financial system
- border(less) security, including protection of land and maritime borders, aerospace and cyberspace
Colleagues will be notified whether their abstract has been accepted for presentation as a paper by Friday, 17 February 2012. Presentations at the Conference will be strictly limited to 15 minutes in duration.
Colleagues selected will be expected to submit either a full or an outline paper, on which their presentation is based, by Thursday, 5 April 2012 (papers received by this date will be available for participants to access via a secure web-site).
All colleagues who wish to attend the Conference, whether accepted to give a paper or not, must confirm their attendance by Wednesday, 11 April 2012 by registering on-line. On-line registration will open in January 2012 (further details about the venue, registration fees, conference dinner, accommodation, travel and so on, will be made available at that time). Please note that due to the high number of colleagues who we expect to be making presentations, there will unfortunately be no reduced fee for speakers.
All enquires arising from this Call for Papers should be directed in first instance to:
Professor Mary Footer, University of Nottingham School of Law: firstname.lastname@example.org or tel: +44(0)115 951 5727.
* * *
Pre-Conference MPhil/PhD Workshop
The School of Law will be hosting a half-day workshop during the afternoon of Thursday, 19 April 2012, immediately prior to the ILA Spring Conference. The focus of the Workshop will be on research methods in the fields of public and private international law. The Workshop, to be held at the University of Nottingham School of Law on the Main Campus, will be for a maximum of 25 MPhil/PhD students in their first or second year of study. The Workshop is open to all students undertaking MPhil/PhD research on any aspect of public and/or private international law, who are prepared to discuss their methodologies in the context of their own research with fellow participants and established academics in the field of international law.
The Workshop will consist of a plenary session, followed by shorter, round table sessions, which will provide students with the opportunity to make short presentations of their work-to-date and to discuss their research methodologies, with active participation from discussants.
There is no fee for the Workshop. Individual students will be required to fund their own travel and accommodation. Refreshments will be provided by the School of Law during the course of the afternoon. Students attending the Workshop will also be able to take advantage of a reduced fee for the ILA Conference itself.
Please indicate your interest in attending the Workshop by sending an e-mail to Ms Helen Wade at Helen.Wade@nottingham.ac.uk, including both a brief outline of your MPhil/PhD proposal and a short c.v. The closing date for expressions of interest is Wednesday, 1 February 2012. Successful applications will be notified by Wednesday, 22 February 2012. Selection of Workshop participants will take place based on the following considerations: appropriate coverage of topics in the field of public and/or private international law, theoretical approaches and years of research.
Further details concerning suitable accommodation, if required, and other details concerning the Workshop, will be sent to successful applicants.
Geoengineering is a broad concept that encompasses a variety of large-scale, intentional, and "unnatural" technologies to control climate change, including both techniques to limit how much sunlight reaches the earth (usually referred to as "solar radiation management") as well techniques to remove carbon dioxide from the atmosphere ("carbon dioxide removal"). The potential of geoengineering to reverse global warming rapidly and cheaply makes it alluring to groups across the political spectrum, in particular, as a means of addressing rapid, catastrophic climate change. But geoengineering also poses significant risks, and raises the spectre of technology gone awry. This discussion paper for the Harvard Project on Climate Agreements reviews the various geoengineering approaches, analyzes their permissibility under existing international law, and explores the governance issues raised by four scenarios of particular concern: premature rejection, inadequate funding, unilateral action by an individual, and unilateral action by a single state or small group of states.
Michael Walzer is right that dwelling the United Nations Charter’s use-of-force rules constitutes “utopian quibbling.” But he is wrong in arguing that “practical morality” of the sort defended in Just and Unjust Wars (2006) presents a useful analytic framework in addressing issues such as the advisability of using force to counter threats of nuclear proliferation. The problem is that Walzer’s moral evaluations do not meet the standard of consistency that he himself demands, and the foundational inconsistency of his moral appraisals produces precisely the context-oriented relativism that he rejects. Policy analysis offers a preferable approach because it makes fewer assumptions. Its vocabulary interposes no problematic metaphysical infrastructure between ends and means, and it generates no debate that is not directly pertinent to the decision at hand. Neither international law nor practical morality ― nor a consequentialist calculus of national interest ― can eliminate the need for judicious choice and subjective judgment.
Thursday, November 24, 2011
These comments address some theoretical, empirical, and normative claims made by Beth Simmons in her book, Mobilizing for Human Rights. The empirical heart of the book is rigorous, but because of the shallowness of the data and the limits of the empirical methodology, the implications for human rights law are narrow and to a large extent ambiguous.
Investment regulation in the ASEAN region has taken on different legal and policy contours since the passage of the ASEAN Charter in 2008. The ASEAN Charter transformed ASEAN into an official international legal organization, with a distinct legal personality, and capable of binding all ten Southeast Asian states under new regional treaty obligations. The predecessor regulatory framework for regional investment in ASEAN- the Framework Agreement on the ASEAN Investment Area (ASEAN AIA) and the ASEAN Investment Guarantee Agreement ASEAN (IGA) -is being successively replaced by new regional treaty regimes that reflect legal and policy adjustments now being undertaken by ASEAN in preparation for full economic integration by 2015. Three of these key agreements (the 2009 ASEAN Comprehensive Investment Agreement; the 2010 ASEAN-China Investment Agreement; and the Investment Chapter of the 2009 ASEAN-Australia-New Zealand Free Trade Agreement) contain innovations in treaty language that vest host States with more public policy control to protect the region's development priorities during the process of economic integration, particularly for balance of payments crises and economic crises. These innovations in the design of the new ASEAN investment agreements demonstrate ASEAN's cautious approach, reflective of the region's experiences with the 1998 Asian financial crises.
In this paper, we examine the essential and increasingly recognized relationship between theories of justice and international economic law. As international economic law institutions have increased in number and power, and the stark figures of global poverty prove stubbornly persistent, justice is becoming a central element in globalization and global justice debates. International economic law and its institutions are powerful engines of resource allocation between states, and within states among various groups, firms and individuals. We identify three questions that will help clarify the scope and nature of this relationship. First, theories of justice can help us determine the proper objective of international economic law and policy. Second, theories of justice can help us evaluate whether or not international economic law as a whole, and specific treaties, rules and institutions, are “fair” or “unfair” according to our various competing understandings of such principles. Finally, theories of justice can help us evaluate whether international economic law institutions are legitimate.
Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects the general welfare.
This Article fills this gap in the literature by examining three rationales for why states codify customary international law: 1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); 2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and 3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive the enterprise in terms of the Clarification and Compliance Theses, I argue that states more frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging -- the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach agreement on a multilateral investment treaty.
Wednesday, November 23, 2011
- John Coyle, "The Decline of the Treaty of Friendship, Commerce, and Navigation"; Commentator: David Sloss
- Vivian Curran, "The Alien Tort Statute and the Corporate Defendant: A Missing Link in the Analysis"; Commentator: Jodie Kirshner
- Kristina Daugirdas, "A Multilateral Substitute for Foreign Aid Legislation?"; Commentator: Peggy McGuinness
- Andrew Kent, "The Court's Fateful Error in Ex parte Quirin, the Nazi Saboteur Case"; Commentator: Steve Vladeck
- Wayne Sandholz, "Treaties, Constitutions, Courts, and Human Rights"; Commentator: Chris Whytock
- Olivier Nay & Franck Petiteville, Éléments pour une sociologie du changement dans les organisations internationales
- Guillaume Devin & Delphine Placidi-Frot, Les évolutions de l'ONU : concurrences et intégration
- Jean-Pierre Cling, Mireille Razafindrakoto & François Roubaud, La Banque mondiale, entre transformations et résilience
- Bastien Irondelle et Niels Lachmann, L'OTAN est-elle encore l'OTAN ?
- Charlotte Bué, La politique de développement de l'Union européenne : réformes et européanisation
Talmon: A Universal System of Collective Security Based on the Charter of the United Nations: A Commentary on Article 2(6) UN Charter
It is not only the acts of States, whether members of the UN or not, which may give rise to threats to international peace and security. The actions of non-State actors such as regional governmental organizations, national liberation movements, rebel groups and terrorist organizations may equally affect or endanger international peace and security. A system of collective security, as envisaged by the UN Charter, thus cannot operate successfully without embracing all sources of threats to the peace, irrespective of whether they originate from within the UN membership or from outside. The paper demonstrates that Art 2(6) of the UN Charter with its limited scope of application does not allow the UN to adequately address threats to international peace and security from outside the Organization. It has therefore been superseded by a customary international law based universal system of collective security which is based upon the relevant Charter provisions but does not derive its legal force from the Charter as a treaty. This universal, that is, generally applicable system of collective security goes beyond a general obligation incumbent upon all international actors not to conduct themselves in a way that constitutes a threat to the peace, breach of the peace or act of aggression. It rather subjects all relevant international actors to the authority of the UN, and in particular the SC, with regard to measures necessary for the maintenance of international peace and security.
Tuesday, November 22, 2011
Symposium: Une autre approche de la globalisation: socio-histoire des organisations internationales (1900-1940)
- Sandrine Kott, Les organisations internationales, terrains d'étude de la globalisation. Jalons pour une approche socio-historique
- Joëlle Droux, L'internationalisation de la protection de l'enfance : acteurs, concurrences et projets transnationaux (1900-1925)
- Yann Decorzant, La Société des Nations et l'apparition d'un nouveau réseau d'expertise économique et financière (1914-1923)
- Daniel Laqua, Internationalisme ou affirmation de la nation ? La coopération intellectuelle transnationale dans l'entre-deux-guerres
- Sandrine Kott, Dynamiques de l'internationalisation : l'Allemagne et l'Organisation internationale du travail (1919-1940)
Workshop: Post-Crisis International Financial Regulation: Fragmentation, Harmonization and Coordination
Exceptional States: International Economic Law in Times of Crisis and Change
The global economy is undergoing tremendous upheaval and change. From the ongoing global financial crisis to concerns over food and energy security to conflicts over natural resources and a burgeoning environmental and climate change crisis, instability is permeating international economic relations and threatening to undermine the institutions of global economic governance.
There is uncertainty over the capacity of the postwar international economic legal order – itself built upon foundations established in the aftermath of military conflict and economic crisis – to contain the social, economic, political and legal manifestations of global crises. The impact of this turn of events is particularly challenging for developing countries and especially acute for countries on the periphery of the global economy, such as post-conflict and fragile states. However, despite such challenges, times of crisis also offer opportunities for change, critical reflection on the current framework of international economic law and prospects for the reorientation of law and policy in the global economy.
The convenors of this theme welcome proposals addressing this question of crisis and change in international economic lawmaking and hope to stimulate further discussion and collaboration on these areas among participants.
New Zealand Yearbook of International Law
Call for Papers for 2011 Yearbook
The New Zealand Yearbook of International Law, launched in June 2004, is an annual, internationally refereed publication intended to stand as a reference point for legal materials and critical commentary on issues of public international law. The Yearbook serves as a valuable tool in the determination of trends, state practice and policies in the development of international law in New Zealand, the Pacific region, the Southern Ocean and Antarctica and to generate scholarship in those fields. In this regard the Yearbook contains an annual ‘Year-in-Review’ of developments in international law of particular interest to New Zealand as well as dedicated sections to the South Pacific and to Antarctica.
The current Editor of the Yearbook is Karen N. Scott (University of Canterbury, NZ) and Natalie Baird (University of Canterbury, NZ) is the Associate Editor. The Editors are advised by members of the Advisory Board who are leading New Zealand - based and international academics and practitioners within the field of international law.
The Editorial Board calls for both short notes and commentaries, and longer in-depth articles, for publication in the 2011 edition of the Yearbook. Notes and commentaries should be between 3,000 – 7,000 words. Articles may be from 8,000 to 20,000 words.
The Editorial Board seeks contributions on any issue of public international law. The Board is particularly interested in receiving submissions that are relevant to New Zealand, Australasia, the Pacific, the Southern Ocean and Antarctica.
The closing date for submissions is 1 May 2012.
Submissions should be provided in English, using MSWord-compatible word processing software, and delivered by email to the General Editor at email@example.com.
Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with the New Zealand Law Style Guide. The Guide is available online here.
Further details on the Yearbook and the table of contents for volumes 1 – 7 are available online here.
- Tyler B. Robinson, The Extraterritorial Reach of 28 U.S.C. § 1782 in Aid of Foreign and International Litigation and Arbitration
- Christopher R. Drahozal, Why Arbitrate? Substantive Versus Procedural Theories of Private Judging
- Jérôme de Montmollin & Dmitry A. Pentsov, Do Athletes Really Have the Right to a Fair Trial in "Non-Analytical Positive" Doping Cases?
- Renata Brazil-David, International Commercial Arbitration Involving a State Party and the Defense of State Immunity
AUSTRALIAN AND NEW ZEALAND SOCIETY OF INTERNATIONAL LAW
20th ANNUAL CONFERENCE
WELLINGTON, 5-7 July 2012
INTERNATIONAL LAW IN THE NEXT TWO DECADES: FORM OR SUBSTANCE?
The 20th Annual Conference of the Australian and New Zealand Society of International Law ('ANZSIL') will take place from Thursday, 5 July 2012 to Saturday, 7 July 2012 hosted by the New Zealand Centre for Public Law, Faculty of Law, Victoria University of Wellington. The Conference Organising Committee now invites proposals for papers to be presented at the Conference.
Call for Papers - Deadline 14 February 2012
This Conference is the Society's twentieth annual conference, and provides an opportunity to reflect on the last twenty years in the development of international law, but equally important to look ahead to the emerging issues and to speculate on what the next twenty years will bring for international law and its practice and teaching. The relentless progression of climate change, the political revolutions and uprisings in the Middle East, the relationship between the growing economic and political power of countries outside Europe and North America and their approach to international law and diplomacy, the sharpening of debates over food security, the inability of the United Nations to reform its institutional arrangements relating to international peace and security, the fragility of the international financial system and popular movements challenging its morality and legitimacy, the resurgence of fundamentalisms, and the continuing disgrace of widespread poverty, are just some of the issues with which papers might engage.
The Committee would welcome papers exploring significant conceptual or practical shifts in the development, substantive content, implementation, teaching or practice of international law. Among the themes the Committee is keen to see addressed are:
- the harmonisation of operational and normative activities of international institutions, and the extent to which have efforts to produce system wide coherence been successful
- conceptions of risk, the regulation of uncertainty and the clash of precautions in international law
- the "new" wave of democratisation and the role of international law and institutions two decades after the end of the Cold War
- new international legal geographies
- the changing relationship of the key pillars and institutions of international economic law: trade, investment and finance
- the expanding role of non-State actors including political movements, transnational corporations and other actors
- challenges posed by the "civilianisation" of armed conflict and the regulation of means and methods of warfare in an era of increasing technological developments.
The Committee particularly invites papers that address these themes from the perspective of private international law, as well as from public international law perspectives. The Committee also welcomes proposals for papers on other aspects of international law.
Those proposing papers for presentation at the Conference should submit a one-page abstract and brief one-page curriculum vitae by email to the Conference Organising Committee [firstname.lastname@example.org] no later than Tuesday, 14 February 2012. Please include the heading on your email message 'ANZSIL Conference 2011 Paper Proposal: [Your Name]'. The Conference Organising Committee will inform applicants of the outcome of their proposals by mid-March 2012. Further information about the Conference, including program and registration details, will be available on the ANZSIL website.
Postgraduate students undertaking higher research degrees in international law who wish to present their projects and the results of their research are encouraged to submit their proposals (marked 'PG Workshop') for presentation at the Postgraduate Workshop (to be held on Wednesday, 4 July 2012. For further details and call for papers, see the ANZSIL website. The closing date for applications to the Postgraduate Workshop is 24 February 2012, and will also be the subject of a separate call for papers. Successful applicants for the postgraduate workshop will be offered free registration at the Conference.
Cross: Investment Arbitration Panel Upholds Jurisdiction to Hear Mass Bondholder Claims against Argentina
Monday, November 21, 2011
The collapse of the bipolar international system near the end of the twentieth century changed political liberalism from a regional system with aspirations of universality to global ideological dominance as the basic vision of how international life should be organized. Yet in the last two decades liberal democracies have not been able to create an effective and legitimate liberal world order. In A Liberal World Order in Crisis, Georg Sorensen suggests that this is connected to major tensions between two strains of liberalism: a "liberalism of imposition" affirms the universal validity of liberal values and is ready to use any means to secure the worldwide expansion of liberal principles. A "liberalism of restraint" emphasizes nonintervention, moderation, and respect for others.
This book is the first comprehensive discussion of how tensions in liberalism create problems for the establishment of a liberal world order. The book is also the first skeptical liberal statement to appear since the era of liberal optimism—based in anticipation of the end of history—in the 1990s. Sorensen identifies major competing analyses of world order and explains why their focus on balance-of-power competition, civilizational conflict, international terrorism, and fragile states is insufficient.
The International Community Law Review addresses all aspects of international law and the international community. The Journal aims to explore the implications of various traditions of international law and how the international community uses and adapts international law to deal with new and emerging challenges. The Journal can be accessed here.
In 2012 the fourth issue of the International Community Law Review will be a Special Issue. This Special Issue will be edited by Dr. Russell Buchan (University of Sheffield) and Professor Nicholas Tsagourias (University of Glasgow). The focus of the Special Issue will be the application of pubic international law to the recent crisis in Libya. With specific reference to Libya, contributions are welcome in the areas of, although certainly not limited to,
- Recognition and De-Recognition of Government Entities
- Intervention and the Use of Force
- International Humanitarian Law
- International Criminal Law
- The Role of International Regional Organisations
Authors wishing to contribute an article to the Special Issue should submit an abstract of no more than 400 words to Dr.Russell Buchan (email@example.com) by 12 February 2012. Authors will be informed by 29 February 2012 as to whether their abstract has been accepted. Subsequently, contributors will be required to submit their articles (approximately 10, 000 words in length) to the editors no later than 31 July 2012.
- McAdam, Jane (ed.), "Climate Change and Displacement. Multidisciplinary Perspectives" - Reviewer: Grote Stoutenburg, Jenny
- Besson, Samantha and Tasioulas, John (eds.), "The Philosophy of International Law" - Reviewer: Ley, Isabelle
- Wolfrum, Rüdiger; Stoll, Peter-Tobias and Hestermeyer, Holger P. (eds.), "WTO - Trade in Goods" - Reviewer: Cho, Sungjoon
- Corten, Olivier, "The Law Against War. The Prohibition on the Use of Force in Contemporary International Law" - Reviewer: Couzigou, Irene
- Cassese, Antonio, "Five Masters of International Law Conversations with R-J Dupuy, E Jiménez de Aréchaga, R Jennings, L Henkin and O Schachter" - Reviewer: Klabbers, Jan
- Sand, Peter H.; Garcia, Atoll Diego , "Naturschutz zwischen Menschenrecht und Machtpolitik" - Reviewer: Afsah, Ebrahim
- Martinico, Giuseppe and Pollicino, Oreste (eds), "The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective" - Reviewer: Chechi, Alessandro
- Arp, Björn, "International Norms and Standards for the Protection of National Minorities" - Reviewer: Ruiz-Vieytez, Eduardo J.
- Lauterpacht, Hersch, "The Function of Law in the International Community" - Reviewer: Feichtner, Isabel
- Zifcak, Spencer, "United Nations Reform; Heading North or South"; Danchin, Peter G. and Fischer, Horst, "United Nations Reform and the New Collective Security" - Reviewer: Graf-Brugère, Anne-Laurence
- Scharf, Michael P and Williams, Paul R., "Shaping Foreign Policy in Times of Crises; The Role of International Law and the State Department Legal Adviser" - Reviewer: Stemmet, Andre
- Shaffer, Gregory C. and Meléndez-Ortiz, Ricardo (eds.), "Dispute Settlement at the WTO. The Developing Country Experience" - Reviewer: Footer, Mary E
- Hankel, Gerd , "Das Tötungsverbot im Krieg" - Reviewer: Mehring, Sigrid
- Radelet, Steven, "Emerging Africa. How 17 Countries are Leading the Way" - Reviewer: Afsah, Ebrahim
- Fastenrath, Ulrich; Geiger, Rudolf; Khan, Daniel-Erasmus; Paulus, Andreas; Schorlemer, Sabine von; Vedder, Christoph (eds.), "From Bilateralism to Community Interest. Essays in Honour of Bruno Simma" - Reviewer: Kemmerer, Alexandra
- Scientific Articles
- Quirine Eijkman & Bibi van Ginkel, Compatible or incompatible?: Intelligence and human rights in terrorist trials
- Martin Kuijer, The accession of the European Union to the ECHR
- Dimitry Kochenov, EU minority protection: A modest case for a synergetic approach
- Alba Izado Leon Hernandez, When cooperation and intervention meet: sovereignty in the Mexico-United States relationship
- David Bruce Bulloch, Tracking terrorist finances: The SWIFT program and the American Anti-Terrorist Finance Regime
- Opinion Articles
- Mark Norman Katz, Russia and anti-Western regimes in the Middle East
- Literary Reviews
- Sofie Dreef, Cosmopolitanism: Ideals and Realities
Sunday, November 20, 2011
The Arab Spring . . . provides an important opportunity for Tunisians, Egyptians, Libyans, and others in the region to create new governing institutions and, more fundamentally, to redefine the nature of the relationship between the citizen and the state in the Arab Middle East.
One important step in the establishment of new political orders in Tunisia, Egypt, Libya, and perhaps elsewhere will be the adoption of new constitutions. The constitution-making process in at least some of these countries is likely to prove contentious, particularly as groups and factions that have never played a meaningful role in national political life all strive to advance their preferred visions of society. In some cases, the end of authoritarian regimes has unearthed deep divisions over such issues as confessional/sectarian identity, tribal identity, regional identity, or the liberal versus religious character of the state. The protagonists on different sides of these divisions can be expected to attempt to codify—indeed, to constitutionalize—the vision of society or special role for their group they favor. Participants, however, should approach the constitution-making processes cautiously. In societies in transition, efforts to resolve deep divisions or fundamental disagreements about the nature of society through constitutional drafting may sharpen political differences and heighten the political salience of controversial issues or social cleavages. Above all, seeking a constitutional resolution of the most contested issues may discourage the development of an approach to political relations in which all parties commit to a vision of the future in which there is an acceptable, or at least bearable role, for all other parties. It may accordingly be better to defer resolution of the most contentious issues than to attempt to settle them as constitutional matters. . . .
In the West in general, and in the United States in particular, we have developed tremendous faith in the role of constitutions as instruments for creating not only an institutional framework for governance, but also a political consensus around a vision of the shape a given society will take. We may underestimate, however, the extent to which successful constitutions are the products of a set of political relations in which the parties are committed to a vision of a mutually bearable shared future, rather than generative of such relations. The leaders of Egypt, Tunisia, Libya, and other countries seeking to remake their societies in light of the events of the Arab Spring would be well-served to commit to doing the hard work of gradually building political relations based on a vision of a mutually bearable shared future, rather than seeking to resolve their most contentious ethnic, sectarian, regional, tribal, and political divisions immediately through constitutional fiat.
Harpaz & Shany: The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion Under Belligerent Occupation Law
On December 29, 2009, the Israeli Supreme Court, sitting as the High Court of Justice, delivered its judgment in Abu Saﬁyav. The Minister of Defense, annulling an order issued by an Israeli Military Commander, which completely barred Palestinians from travelling on Route 443, a major road in the West Bank. This note criticizes the Abu Saﬁya judgment as indicative, notwithstanding its speciﬁc outcome, of the Supreme Court’s ongoing willingness to expand the ratione materiae and ratione personae of occupation law and to allow the military authorities to protect the interests of Israelis in the West Bank, even at the expense of the stronger rights conferred upon the local Palestinian population by the lex specialis — the laws of belligerent occupation.