Saturday, April 28, 2012

Anderson & Waxman: Law and Ethics for Robot Soldiers

Kenneth Anderson (American Univ. - Law) & Matthew C. Waxman (Columbia Univ. - Law) have posted Law and Ethics for Robot Soldiers (Policy Review, forthcoming). Here's the abstract:

Lethal autonomous machines will inevitably enter the future battlefield – but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect one’s own personnel and civilian persons and property will demand continuing research, development, and deployment. The process will be incremental because non-lethal robotic systems (already proliferating on the battlefield) can be fitted in their successive generations with both self-defensive and offensive technologies. As lethal systems are initially deployed, they may include humans in the decision-making loop, at least as a fail-safe – but as both the decision-making power of machines and the tempo of operations potentially increase, that human role will likely but slowly diminish.

Recognizing the inevitable but incremental evolution of these technologies is key to addressing the legal and ethical dilemmas associated with them; U.S. policy toward resolving those dilemmas should be built upon these assumptions. The certain yet gradual development and deployment of these systems, as well as the humanitarian advantages created by the precision of some systems, make some proposed responses — such as prohibitory treaties — unworkable as well as ethically questionable. Those features also make it imperative, though, that the United States resist its own impulses toward secrecy and reticence with respect to military technologies, recognizing that the interests those tendencies serve are counterbalanced here by interests in shaping the normative terrain — the contours of international law as well as international expectations about appropriate conduct — on which it and others will operate militarily as technology evolves. Just as development of autonomous weapon systems will be incremental, so too will development of norms about acceptable systems and uses be incremental. The United States must act, however, before international expectations about these technologies harden around the views of those who would impose unrealistic, ineffective or dangerous prohibitions or those who would prefer few or no constraints at all.

Friday, April 27, 2012

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 27, no. 4, April 2012) is out.

Call for Papers: International Law in Africa

The African Foundation of International Law, the Centre for Human Rights at the University of Pretoria, the Institute for International and Comparative Law in Africa at the University of Pretoria, and the Faculdade de Direito at the Universidade Eduardo Mondlane have issued a call for papers for a conference on "International Law in Africa," to take place October 5-6, 2012, in Maputo, Mozambique. The call is here. The deadline is May 1, 2012.

Amann: Politics and Prosecutions, from Katherine Fite to Fatou Bensouda

Diane Marie Amann (Univ. of Georgia - Law) has posted Politics and Prosecutions, from Katherine Fite to Fatou Bensouda (in Proceedings of the Fifth International Humanitarian Law Dialogs, Elizabeth Andersen & David M. Crane eds., forthcoming). Here's the abstract:
Based on the Katherine B. Fite Lecture delivered at the 5th Annual International Humanitarian Law Dialogs in Chautauqua, New York, this essay examines the role that politics has played in the evolution of international criminal justice. It first establishes the frame of the lecture series and its relation to IntLawGrrls blog, a cosponsor of the IHL Dialogs. It then discusses the career of the series' namesake, Katherine B. Fite, a State Department lawyer who helped draft the Charter of the International Military Tribunal at Nuremberg and who was, in her own words, a "political observer" of the proceedings. The essay then turns to the the International Criminal Court, in which the first Prosecutor insisted that his was a "judicial" mandate wholly separate from politics. With an eye to transition this year, when a new Prosecutor will assume office, it considers how the ICC might work more effectively within the context of policy choices its officers make.

New Volume: Ocean Yearbook

The latest volume of the Ocean Yearbook (Vol. 26) is out. The table of contents is here.

Conference: ICC Turns Ten - Reviewing the Past, Assessing the Future of the International Criminal Court

On May 11, 2012, Stanford Law School will host a conference on "ICC Turns Ten - Reviewing the Past, Assessing the Future of the International Criminal Court." The program is not yet available. Here's the idea:
This year marks the ten-year anniversary of the International Criminal Court (ICC). This significant milestone provides an opportunity to review and discuss the work of the ICC–its impact, successes and challenges over the past decade, and to assess future challenges, especially with regard to ICC-U.S. relations.

Thursday, April 26, 2012

New Issue: Internationales Handelsrecht

The latest issue of Internationales Handelsrecht (2012, no. 2) is out. Contents include:
  • Peter Mankowski, CESL – who needs it?

Call for Submissions: The Role of International Criminal Justice in Transitional Justice

The International Journal of Transitional Justice has issued a call for submissions for a special issue on "The Role of International Criminal Justice in Transitional Justice." Here's the call:

The International Journal of Transitional Justice invites submissions for its 2013 special issue titled ‘The role of international criminal justice in transitional justice,' to be guest edited by Naomi Roht-Arriaza, Professor of Law at the University of California, Hastings College of Law.

International criminal justice has been a key ingredient in shaping the field of transitional justice. The focus of the 2013 special issue is on the impacts of international criminal justice on transitional justice processes and goals. The timing of this special issue – the 20th anniversary of the establishment of the ICTY; slightly over a decade since the entering into force of the ICC Rome Statute; and on the 10th anniversary of the Special Court for Sierra Leone – provides significant scope for reflection. The issue will seek to share critical reflections on the contribution of international criminal justice – its mechanisms, concepts, movements and ideas – to the development of the transitional justice field.

While some argue that international justice has played a key role in combatting impunity and filling deficits of justice in post-conflict and post-authoritarian contexts, others criticize the international justice ‘movement’ for undermining national processes of transition and local initiatives. The human and financial resources dedicated to creating and operating these courts have ‘sucked the air’ out of more local initiatives, in this view. In light of rapid developments in this area over the last two decades it is appropriate and timely to reappraise the role for international criminal justice in political transitions and post-conflict environments in building sustainable peace.

Looking at the historical record of these international justice institutions and present burning policy debates, the Special Issue invites questions about the legacy of the ICTY, ICTR, and subsequent internationalized criminal justice institutions not only for the contexts in which they have functioned, but also for the development of international criminal justice and its future trajectory as well as for justice in transition generally.

Furthermore, how can the lessons gleaned from the experiences of these justice institutions be applied to the ongoing role of the ICC? While hybrid and country-specific courts were specifically set up to help transitions, the ICC, by virtue of being a ‘world court’, has a far broader agenda and is therefore more distanced from the contexts in which it operates. In addition, increased attention is being paid to the concept of complementarity, both as a legal norm binding state and international action and as a politically negotiated space between the UN, state representatives, national leaders, and civil society advocates. Thus, attention to international criminal justice is not limited to consideration of cases and countries where an international or internationalized court operates or has operated, but also to the effect of the threat of international prosecution and the discourse of international criminal justice even in countries where neither the ICC nor a country-specific court is now actively seized of a case.

The Special Issue provides an opportunity for scholars and practitioners to explore the evolution of the mechanisms, ideas/concepts, and movements of international criminal law and justice, and consider their current forms, as well as how they may continue to shape transitional justice.

Some of the key questions to explore in this regard include:

  • What is the record of international and hybrid criminal justice institutions in prosecuting historic and contemporary atrocity crimes and redressing impunity?
  • What has been the relationship between the growth of international criminal justice and the use of domestic criminal justice to provide redress for mass violence?
  • Have these efforts led to a better understanding of the relationship between law, justice, and post-conflict reconstruction?
  • What has been their impact on ensuring long-term stability, peace and in contributing to more equitable/transparent/participatory democracies?
  • Where do the interests of victims and communities fit into international justice institutions?
  • What can be the balance between pursuit for international criminal justice and the imperatives for peace and reconciliation?
  • What are the processes through which tensions among stakeholders can be resolved?
  • Who gets to define the contours of justice at both an empirical and practical level?
  • What is the meaning of complementarity between national, regional and international justice forums?
  • Ultimately, what role can and should international law and institutions play in addressing justice in the wake of internal conflict, and in aiding transitions?

The deadline for submissions is 1 March 2013.

Moon: Essential Security Interests in International Investment Agreements

William J. Moon (Yale Univ. - Law) has posted Essential Security Interests in International Investment Agreements (Journal of International Economic Law, forthcoming). Here's the abstract:
Embedded in a significant number of international investment agreements are provisions that allow states to invoke essential security interests at times of necessity to limit the application of substantive treaty agreements. These provisions, which are largely devoid of express signatory intent, have caused an intensified debate over their scope and meaning in light of recent investor-state arbitration proceedings against Argentina. This article investigates the historical origins and state usage of security provisions found in international economic agreements and argues an essential security defense may be raised only in circumstances involving national security interests. While states ought to be given a margin of appreciation on what constitutes a threat to their own national security interests, the burden falls on the signatory states to diverge from the shared linguistic expectations attached to the ordinary usage of treaty terms. This approach injects a degree of predictability into the meaning of otherwise silent terms, reducing the detrimental reliance problem introduced by treaties that are designed to induce good faith investment by third party beneficiaries.

Lukner: Global Goals versus Bilateral Barriers? The International Criminal Court in the Context of US Relations with Germany and Japan

Kerstin Lukner (Univ. of Duisburg-Essen - Institutes of East Asian Studies and Political Science) has published Global Goals versus Bilateral Barriers? The International Criminal Court in the Context of US Relations with Germany and Japan (Japanese Journal of Political Science, Vol. 13, no. 1, pp. 83-104, March 2012). Here's the abstract:
This article deals with the International Criminal Court (ICC) as a point of contention in US relations with Germany and Japan. Both countries rank among America's closest allies, but – quite contrary to the US – they have also been supporting the establishment and operation of the ICC, although each to a different extent. The article analyzes the reasons for the three countries’ diverging attitudes and policies towards the establishment and operation of the Court, and contrasts Germany's and Japan's handling of the ICC issue vis-à-vis the US. It suggests that Berlin's idealistic position and full ICC support on the one hand, as well as Japan's cautious and pragmatic approach on the other, are both rooted not only in their individual evaluations of the ICC's institutional design, but also the varying degrees of their bi/multilateral orientation and the extent of their ‘dependence’ on US security commitments.

de la Rasilla del Moral: The Fascist Mimesis of Spanish International Law and its Vitorian Aftermath

Ignacio de la Rasilla del Moral (European Univ. Institute) has posted The Fascist Mimesis of Spanish International Law and its Vitorian Aftermath (Journal of the History of International Law, forthcoming). Here's the abstract:
The figure and works of Francisco de Vitoria, the father of international law, have fascinated generations of non Spanish international legal scholars - past and present. These range from classic figures as diverse as the founder of the American Society of International Law, James Brown Scott, or the Crown Jurist of the Third Reich, Carl Schmitt, to the recent post-colonial approaches to international law proposed by Antony Anghie or the most recent inquiries of Martti Koskenniemi on the private law underpinnings that for the universal ordering of international relations were contained in the work of the Spanish Scholastics of the sixteenth century. In this work, which is part of an on-going series, I examine how a climate of severe intellectual repression and organically nationalist-directed scientific work in Spain and the nationalist reaffirmation of a culture grounded in Catholic conservatism and traditionalism fostered the adoption of a marked thematic orientation towards natural law and the reinstatement of the Siglo de Oro’s Salamanca School among Spanish international lawyers after the Fascist Mimesis of Spanish International Law.

Talmon: Günter Grass und das Völkerrecht

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted Günter Grass und das Völkerrecht (Günter Grass and Public International Law). Here's the abstract:
On 4, April 2012, German Nobel Laureate for Literature, Günter Grass published his controversial poem "What must be said" which deals with a possible attack by Israel on Iran in order to stop that country's nuclear (weapons) programme. Grass accuses Israel of endangering "the already fragile world peace" by claiming a "right to the first strike". Although, strictly speaking, Grass does not put forward a legal argument, he raises three interesting legal questions: First, the right of a State to anticipatory self-defense in cases where the threat in question is not imminent but still claimed to be real. For example, where a State tries to acquire nuclear weapons-making capability with allegedly hostile intent. Second, the international responsibility of a State (Germany) and the criminal responsibility of its officials for aiding and abetting another State (Israel) that might engage in premature acts of self-defense; and, third, the different treatment accorded by the international community to the nuclear (weapons) programmes of Israel and Iran. Note: Downloadable document is in German.

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 59, no. 1, May 2012) is out. Contents include:
  • Rosanne van Alebeek, National Courts, International Crimes and the Functional Immunity of State Officials
  • Michail Vagias, The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the ICC?
  • Yoshinobu Takei, Institutional Reactions to the Flag State that Has Failed to Discharge Flag State Responsibilities
  • Hélène van Lith, Uniform Rules for Contract Disputes: Putting Activity-Related Jurisdiction on the Agenda

Wednesday, April 25, 2012

Shaffer & Pollack: Hard and Soft Law: What Have We Learned?

Gregory Shaffer (Univ. of Minnesota - Law) & Mark A. Pollack (Temple Univ. - Political Science) have posted Hard and Soft Law: What Have We Learned? Here's the abstract:
Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key definitional question, noting the substantial disagreements among positivist, rational institutionalist, and constructivist scholars about the definitions and the key features of hard and soft law. Next, we examine the question of hard and soft law as a design choice, asking under what conditions states (or other actors) might opt for hard- or soft-law commitments in international relations. We distinguish between a nearly ubiquitous functionalist approach and a nascent distributive approach distinctive to contemporary IL/IR scholarship. We then examine the question of how hard and soft law interact in an increasingly complex and fragmented international legal landscape. Finally, we examine the sparse but highly suggestive scholarship on the impact of hard and soft law on legal interpretation, compliance, and effectiveness. We conclude by assessing the value-added, lacunae, and blind spots of the IL/IR literature in this area.

de la Rasilla del Moral: The Case for Comparative International Law in Question - A Response to Martti Koskenniemi's The Case for Comparative International Law

Ignacio de la Rasilla del Moral (European Univ. Institute) has posted The Case for Comparative International Law in Question - A Response to Martti Koskenniemi's The Case for Comparative International Law (Finnish Yearbook of International Law, forthcoming). Here's the abstract:
Comparative international legal studies are on the rise. One of the reasons for this phenomenon is the contemporary ascendancy of comparative constitutional law. A second contemporary source for the rise of comparative international law is the increasing appeal of comparative regional legal studies. A third related source for the contemporary rise of comparative international law is the on-going scholarly paradigm shift in the study of law that reflects the impact of globalization on the social sciences within which legal studies themselves find their conceptual place. The seemingly ineluctable rise of comparative international law as an academic subject in the twenty-first century makes advisable to review the “scattered, terse even cryptic” recent references one can find in today’s literature about this hitherto little used term among which features interestingly The Case for Comparative International Law by Martti Koskenniemi.

Rau: The Errors of Comity: Forum Non Conveniens Returns to the Second Circuit

Alan Scott Rau (Univ. of Texas, Austin - Law) has posted The Errors of Comity: Forum Non Conveniens Returns to the Second Circuit (American Review of International Arbitration, forthcoming). Here's the abstract:

What a federal court is expected to do when asked to enforce a foreign arbitral award --- what constraints the Conventions impose on its normal course of adjudication --- is of course a vast question. But there is one small piece of the puzzle that recurs frequently, and which has in particular been troublesome to the Second Circuit.: What remains of the inherent power of a common-law court to defer or dismiss litigation of a Convention case on the grounds that it constitutes an “inconvenient” forum?

A decade ago a federal district court in Monde Re, “relying on the doctrine of forum non conveniens,” dismissed a petition to confirm a foreign arbitral award, and the Second Circuit affirmed. The received wisdom ever since has been quite hostile --- uniformly to the effect that the obligations imposed by the New York and Panama Conventions make any recourse to the doctrine inappropriate. Despite the fact that the Convention in art. III allows contracting states to continue to use their “rules of procedure” in recognizing or enforcing foreign awards, that is a category of very weak explanatory power: While litigants may have to take local courts as they find them, the one thing art. III cannot be intended to do, is to permit local courts to devise rules that compete with, or undermine, or put up obstacles to, the rules of decision under which the Convention expects them to assess the legitimacy of awards.

Now in Monde Re itself the respondent, the state of Ukraine, had not been a signatory to the contract nor did it participate in the arbitration: Its defense ---“I was never a party to any agreement to arbitrate”--- would indeed constitute an art. V ground for the refusal of recognition and enforcement. The inquiry then becomes, “just how do we go about answering the question?”--- or more precisely, “just who is best placed to evaluate whether these ‘grounds’ are present? Or perhaps, “just who is to make the decision?” It is a familiar notion that the grounds for decision, and the identity of the appropriate decisionmaker, are likely to call for entirely distinct inquiries, and it seems plausible to say that the former may be so intertwined with the need to obtain foreign-source evidence, and with the need to assess foreign law, that it may become prudent to defer the decision to a foreign court.

But by contrast the Second Circuit’s latest venture into the area, in Figueiredo Ferraz, is astonishing: Here the court deferred the enforcement of a Peruvian award on the basis of the “public interest factors” called for in the usual forum non conveniens analysis --- and these “factors” did not refer in any way to any supposed difficulties a U.S. court might face in establishing the identity of the “proper party.” Instead the “public interest” was entirely that of Peru, for Peruvian legislation imposed a limit on what a government agency was permitted to pay annually in satisfaction of a judgment against it. Apparently such “public factors” were closely congruent with considerations of international comity. But none of this even comes close to being an art. V ground for the refusal of recognition and enforcement, and in a Convention case the usual recourse to a court’s “discretion” must be foreclosed: While by its terms the Convention may allow a contracting state to enforce awards even where the canonical art. V grounds are present, it extends no leeway whatever to refuse to do so when they are not.

Whether on a motion to confirm a Convention award --- or at an earlier stage on a motion to stay litigation or compel arbitration --- a doctrine of forum non conveniens must in the structure of our law have only the most marginal presence. Anything more robust would be in considerable tension with the goals of the Convention to increase the currency of awards by limiting challenges and expediting enforcement. But although forum non must play a slender role of only intermittent interest, it has a role nonetheless, whenever a Convention defense is in play and the identity of the appropriate decisionmaker is in doubt. The trick is to preserve the classic virtues of prudence and restraint and economy of means in adjudication, while at the same time managing to respect the structure of the Convention, and being alert to the policies in support of the arbitral process that the Convention seeks to advance.

Hemmings, Rothwell, & Scott: Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives

Alan D. Hemmings, Donald R. Rothwell (Australian National Univ. - Law), Karen N. Scott (Univ. of Canterbury - Law) have published Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives (Routledge 2012). The table of contents is here. Here's the abstract:
The Antarctic Treaty (1959) was adopted for the purpose of bringing peace and stability to Antarctica and to facilitate cooperation in scientific research conducted on and around the continent. It has now been over fifty years since the signing of the treaty, nevertheless security continues to drive and shape the laws and policy regime which governs the region. Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives assess Antarctic security from multiple legal and policy perspectives. This book reviews the existing security construct in Antarctica, critically assesses its status in the early part of the Twenty-First century and considers how Antarctic security may be viewed in both the immediate and distant future. The book assesses emerging new security threats, including the impact of climate change and the issues arising from increased human traffic to Antarctica by scientists, tourists, and mariners. The authors call into question whether the existing Antarctic security construct framed around the Antarctic Treaty remains viable, or whether new Antarctic paradigms are necessary for the future governance of the region. The contributions to this volume engage with a security discourse which has expanded beyond the traditional military domain to include notions of security from the perspective of economics, the environment and bio-security. This book provides a contemporary and innovative approach to Antarctic issues which will be of interest to scholars of international law, international relations, security studies and political science as well as policy makers, lawyers and government officials with an interest in the region.

Tuesday, April 24, 2012

Salzburg Law School Summer Session

The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law is accepting applications for its fourteenth summer session:

The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Fourteenth Summer Session, Sunday 5 to Friday 17 August 2012, under the draft title

“Enforcing International Criminal Law

Through the Complementarity Regime of the Rome Statute!

Demand and Reality”

This year’s topical focus sets the ground for a critical assessment of the concept of the Rome Statute’s complementarity regime, its interpretation in the early jurisprudence of the Court as well as on national efforts to implement and prosecute core international crimes, with a special emphasis on situation countries. SLS 2012 will take up the debate on pertinent substantive issues, such as on the definition of the crime of aggression, the special intent requirement of genocide, the outer boundaries of crimes against humanity and future amendments to the Rome Statute. The first decade of the Court will be thoroughly analysed with a view to the powers and functions of the pre-trial chamber, the first ICC trial judgement, the question of immunities and cooperation issues. Lectures on Islamic law, the African Court of Human and Peoples’ Rights as well as on other topics will offer further insights and familiarize the participants with latest developments in the fields of international criminal law, humanitarian law and human rights law. Last but not least, the ‘Salzburg Law School Trophy’ will provide an opportunity to engage in a practical pleading exercise.

The 2012 faculty consists of distinguished scholars and practitioners, among them, Dr. Mohamed Elewa Badar, Lecturer in Law, Brunel Law School; Gilbert Bitti, Senior Legal Advisor, International Criminal Court; Eleni Chaitidou, Legal Officer, Pre-trial Division, International Criminal Court; Roger Clark, Board of Governors Professor, Rutgers University School of Law; Dr. David Donat Cattin, Director, International Law and Human Rights Programme, Parliamentarians for Global Action (PGA); Prof. Benjamin Ferencz, A former Nuremberg War Crimes Prosecutor and frequent lecturer on international criminal courts and world peace; Prof. Charles Garraway, Associate Fellow at Chatham House, Visiting Fellow in the Department of Human Rights, University of Essex; Gillian Higgins, Barrister UK, International Criminal Law Bureau; Steven Kay, Queens Counsel, Barrister UK, International Criminal Law Bureau; Prof. Christoph Safferling, Professor of Criminal Law, Criminal Procedure, International Criminal and International Law, University of Marburg; Jennifer Trahan, Assistant Clinical Professor of Global Affairs at N.Y.U.; Astrid Reisinger Coracini, Lecturer, Institute of International Law and International Relations, University of Graz; Prof. Otto Triffterer, Professor of Austrian and International Criminal Law, University of Salzburg; Further details on the academic programme are available at

Applications should be submitted online at latest until 15 May 2012. For inquiries contact Astrid Reisinger Coracini at

Inaugural Issue: Transnational Environmental Law

The inaugural issue of Transnational Environmental Law (Vol. 1, no. 1, April 2012) is out. Contents include:
  • Editorials
    • Veerle Heyvaert & Thijs Etty, Introducing Transnational Environmental Law
    • Cinnamon Carlarne & Daniel Farber, Law Beyond Borders: Transnational Responses to Global Environmental Issues
    • Jolene Lin & Joanne Scott, Looking Beyond the International: Key Themes and Approaches of Transnational Environmental Law
  • Invited Articles
    • Gregory Shaffer & Daniel Bodansky, Transnationalism, Unilateralism and International Law
    • Elizabeth Fisher, The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers
    • Tseming Yang, The Emerging Practice of Global Environmental Law
    • Koh Kheng-Lian, Transboundary and Global Environmental Issues: The Role of asean
    • Douglas A. Kysar, Global Environmental Constitutionalism: Getting There from Here
    • Ludwig Krämer, Transnational Access to Environmental Information
    • Robert G. Lee, Look at Mother Nature on the Run in the 21st Century: Responsibility, Research and Innovation
    • Neil Gunningham, Confronting the Challenge of Energy Governance
    • Charlotte Streck, Innovativeness and Paralysis in International Climate Policy
    • Edith Brown Weiss, The Coming Water Crisis: A Common Concern of Humankind
    • Alexander Gillespie, Science, Values and People: The Three Factors that Will Define the Next Generation of International Conservation Agreements
  • Commentaries
    • Peter H. Sand, The Evolution of Transnational Environmental Law: Four Cases in Historical Perspective
  • Articles
    • Louis J. Kotzé, Arguing Global Environmental Constitutionalism

Gallant: Africa and Beyond: Should the International Criminal Court Be the Sole International Organ of Criminal Justice?

Kenneth S. Gallant (Univ. of Arkansas, Little Rock - Law) has posted Africa and Beyond: Should the International Criminal Court Be the Sole International Organ of Criminal Justice? Here's the abstract:

Most of those at the Rome Conference which drafted the Statute of the International Criminal Court hoped that it would become, as its name says “The” International Criminal Court, the single international entity of international criminal justice for alleged offenses committed after its establishment. Ten years later, we might raise the question: Is it time for the ICC to become that sole organ?

First, this paper suggests some of the purposes of international criminal justice. Then it quickly reviews the existing institutions, ending with the International Criminal Court. It considers some of the strengths and weaknesses of the ICC in light of the purposes of international criminal justice. Finally, it suggests a few possible futures for the structures of international criminal justice, in the hope that this will encourage readers to imagine other futures. The material in this paper is intended to be selective and suggestive, but does not pretend to be complete or authoritative.

The purpose of the exercise presented here — not achievable in a few pages, and which will take years of hard legal and political work — is to develop structures that will best advance the goals of international criminal justice. Included in my definition of “best” is a requirement that the structures be realistically implementable.

Lindley-French & Boyer: The Oxford Handbook of War

Julian Lindley-French (Netherlands Defence Academy) & Yves Boyer (Ecole Polytechnique) have published The Oxford Handbook of War (Oxford Univ. Press 2012). The table of contents is here. Here's the abstract:
The Oxford Handbook of War is the definitive analysis of war in the twenty-first century. With over forty senior authors from academia, government and the armed forces world-wide the Handbook explores the history, theory, ethics and practice of war. The Handbook first considers the fundamental causes of war, before reflecting on the moral and legal aspects of war. Theories on the practice of war lead into an analysis of the strategic conduct of war and non Western ways of war. The heart of the Handbook is a compelling analysis of the military conduct of war which is juxtaposed with consideration of technology, economy, industry, and war. In conclusion the volume looks to the future of this apparently perennial feature of human interaction.

Tzanakopoulos: The Permanent Court of International Justice and the 'International Community'

Antonios Tzanakopoulos (Univ. College London - Law) has posted The Permanent Court of International Justice and the 'International Community' (in The Legacy of the Permanent Court of International Justice, Malgosia Fitzmaurice & Christian Tams eds., forthcoming). Here's the abstract:
The purpose of this brief study is to gauge what the Permanent Court of International Justice might have had to say about the nebulous concept of the ‘international community’, as the Court administering the law of that community, but also developing it, thereby contributing to the stabilization and further integration of that community. This is done by ‘reverse-engineering’ the jurisprudence of the PCIJ, seeking to canvass how the Court understood the concept of the 'international community' and how it would have wanted it to evolve. The study surveys the Court’s case law for what are commonly accepted as the ‘hallmarks’ of an (international) community, or at least those commonly associated with the idea: the make-up of the community; the concept of obligations and action in the ‘general’ interest; and the existence of institutions providing protection of the community interest.

Monday, April 23, 2012

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 44, no. 2, Winter 2012) is out. Contents include:
  • Symposium: Uncovering Asylum: A Conversation on Refugee Law, Sexual Orientation, and Moving Towards a Just Jurisprudence
    • Jeffrey D. Stein, A Brief Introduction to the Conversation
    • James C. Hathaway and Jason Pobjoy, Queer Cases Make Bad Law
    • Richard Buxton, A History from Across the Pond
    • Ryan Goodman, Asylum and the Concealment of Sexual Orientation: Where Not to Draw the Line
    • John Tobin, Assessing GLBTI Refugee Claims: Using Human Rights Law to Shift the Narrative of Persecution Within Refugee Law
    • David John Frank, Making Sense of LGBT Asylum Claim: Change and Variation in Institutional Contexts
    • Jenni Millbank, The Right of Lesbians and Gay Men to Live Freely, Openly, and on Equal Terms Is Not Bad Law: A Reply to Hathaway and Pobjoy
    • Deborah Anker and Sabi Ardalan, Escalating Persecution of Gays and Refugee Protection: Comment on Queer Cases Make Bad Law
    • Guglielmo Verdirame, A Friendly Act of Socio-Cultural Contestation: Asylum and the Big Cultural Divide

ESIL Lecture Series (Audio/Video)

The European Society of International Law has posted on YouTube the first three lectures in the ESIL Lecture Series. (ESIL has its own YouTube Channel.) The lectures are:

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 51, no. 3, July-September 2011) is out. Contents include:
  • Kasim Musa Waziri, Re-Thinking the TRIPS Agreement: History and Analysis
  • Rishi Gulati, The 26/11 Mumbai Terrorist Attacks: Assessing Pakistan's Responsibility in International Law
  • Selvi Ganesh, Indian Shipping and International Maritime Law
  • Jasper Doomen, The Meaning of "International Law"
  • Daud Hassan & Abdul Awal Khan, Right to Life and Abortion: A Study on the Legal Controversy of the Status of the Unborn Child in International Human Rights Law

Barsalou: La diplomatie de l'universel : la guerre froide, les États-Unis et la genèse de la Déclaration universelle des droits de l’Homme, 1945-1948

Olivier Barsalou has published La diplomatie de l'universel : la guerre froide, les États-Unis et la genèse de la Déclaration universelle des droits de l’Homme, 1945-1948 (Bruylant 2012). Here's the abstract:

Le présent ouvrage retrace la genèse de la Déclaration universelle des droits de l'Homme de 1948. Ce document adopté par l'Assemblée générale des Nations unies dans la nuit du 10 décembre 1948 marquait l'aboutissement d'un long processus diplomatique ayant duré près de trois ans au cours duquel les États-Unis jouèrent un rôle déterminant dans son élaboration.

Au cours de cette période, la Déclaration universelle des droits de l'Homme assimila lentement les préoccupations du gouvernement américain. Au final, le document servit de médium à la diffusion et l'universalisation d'une conception américaine des droits de l'Homme dans une société internationale désormais menacée par le totalitarisme soviétique.

S'appuyant sur une méthodologie multidisciplinaire combinant le droit, la science politique et l'histoire, le présent ouvrage revisite les sources matérielles au fondement de la Déclaration et resitue le document dans son contexte historique d'élaboration. Surtout, il met en lumière la façon par laquelle les droits de l'Homme furent conçus à la fois comme un enjeu et un instrument de la politique étrangère américaine au sortir de la Seconde Guerre mondiale. À la fois produit et miroir du processus d'émergence de la guerre froide, les droits de l'Homme devinrent dès 1945 un enjeu des relations de pouvoir dans la société internationale.

Whytock: Transnational Judicial Governance

Christopher A. Whytock (Univ. of California, Irvine - Law) has posted Transnational Judicial Governance (St. John's Journal of International and Comparative Law, Vol. 2, No. 1, p. 55, 2012). Here's the abstract:
This symposium essay discusses “transnational judicial governance” — that is, the regulation of transnational activity by domestic courts. Specifically, the essay makes three points. First, transnational judicial governance is an important form of global governance that interacts with, but is distinct from, other forms of global governance such as international institutions, transgovernmental networks, and private governance. Second, there is evidence suggesting that the influence of U.S. courts in transnational judicial governance may be declining as the transnational litigation system becomes increasingly multipolar. Third, transnational judicial governance seems to be a normatively mixed bag — but, for better or worse, it is likely that domestic courts will continue to play an important role in global governance.

New Volume: Berichte der Deutschen Gesellschaft für Völkerrecht

The latest volume of the Berichte der Deutschen Gesellschaft für Völkerrecht (Vol. 45) is out. The themes are "Paradigmen im internationalen Recht" and "Implikationen der Weltfinanzkrise für das internationale Recht." The table of contents has not yet been posted. Here's the abstract:

"Paradigmen im internationalen Recht" und "Implikationen der Weltfinanzkrise für das internationale Recht" waren die Oberthemen der 32. Tagung der Deutschen Gesellschaft für Völkerrecht, die vom 30. März bis 2. April in Köln stattgefunden hat.

Unter dem Oberthema "Paradigmen im internationalen Recht" werden "Denkschulen" und "Rollenverständnisse von Denkern und Praktikern" (jeweils im Völkerrecht und im Internationalen Privatrecht) sowie "Paradigmen in der internationalen Praxis" verhandelt. Das Oberthema "Implikationen der Weltfinanzkrise" wird vielschichtig aus materiell-rechtlicher, institutionell-prozeduraler, rechtspolitischer und sowohl öffentlich-rechtlich wie privatrechtlicher Sicht erörtert.

Dieser Band vereinigt die Referate und Diskussionsbeiträge der versammelten deutschsprachigen Vertreterinnen und Vertreter des Völkerrechts und des Internationalen Privatrechts.

Sunday, April 22, 2012

Metou: Le rôle du juge dans le contentieux international : Cas de la Cour internationale de justice

Brusil Miranda Metou (Université de Yaoundé II - Law) has published Le rôle du juge dans le contentieux international : Cas de la Cour internationale de justice (Bruylant 2012). Here's the abstract:

La saisine de la Cour internationale de justice par les États n’est pas uniquement une marque de leur confiance dans le droit international, c’est aussi une expression de leur reconnaissance de son efficacité dans le processus de règlement des différends qui lui sont soumis. Rendre justice entre les États est un exercice singulier. L’organe chargé de le faire a une façon particulière de s’acquitter de ses fonctions. En effet, il ne se contente pas d’invoquer les dispositions pertinentes des codes et conventions, encore moins de suivre de façon servile la procédure contentieuse telle qu’elle est décrite dans son règlement de procédure. Tout au long du procès interétatique, la CIJ garantit de façon constante les principes de la bonne administration de la justice qui relèvent tous des exigences inhérentes à sa nature d’organe judiciaire, tout en adaptant parfaitement la procédure contentieuse, le droit et les solutions applicables aux circonstances particulières de chaque espèce.

Au regard de l’univers institutionnel dans lequel il est inséré, des pressions exercées sur lui par les justiciables au cours de l’instance, des spécificités du droit qu’il applique et des circonstances particulières de chaque espèce contentieuse qui lui est soumise, il est donc impossible d’enfermer le juge interétatique dans un modèle de rôle prédéfini. Il fonctionne en définitive sur un mode ambivalent, caractérisé d’une part par le souci de préservation de son intégrité judiciaire, d’autre part par une adaptation judicieuse du droit applicable aux circonstances de l’espèce.