Saturday, July 28, 2012

New Issue: Global Governance: A Review of Multilateralism and International Institutions

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 18, no. 3, July-September 2012) is out. Contents include:
  • Global Insights
    • Thomas G. Weiss, Renewing Washington’s Multilateral Leadership
    • Henning Melber, “In a Time of Peace Which is No Peace”: Security and Development—Fifty Years After Dag Hammarskjöld
    • Paul D. Williams & Alex J. Bellamy, Principles, Politics, and Prudence: Libya, the Responsibility to Protect, and the Use of Military Force
  • Articles
    • Catherine Shanahan Renshaw, National Human Rights Institutions and Civil Society Organizations: New Dynamics of Engagement at Domestic, Regional, and International Levels
    • Chris Ansell, Egbert Sondorp, & Robert Hartley Stevens, The Promise and Challenge of Global Network Governance: The Global Outbreak Alert and Response Network
    • Ronald J. Deibert & Masashi Crete-Nishihata, Global Governance and the Spread of Cyberspace Controls
    • Judith Cherry & Hugo Dobson, “Seoul-searching”: The 2010 G-20 Seoul Summit
  • Review Essay
    • Yale H. Ferguson, NGOs’ Role in Constructing Global Governance

Friday, July 27, 2012

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 14, no. 6, 2011) is out. Contents include:
  • Ahmad Ali Ghouri, The Evolution of Bilateral Investment Treaties, Investment Treaty Arbitration and International Investment Law
  • Kirk Simmons & Scott McDonald, The Standard of Reasons under Australian Arbitration Law Following the Decision in Westport Insurance Corporation v Gordian Runoff Ltd
  • Sameer Sattar, Document Production and the 2010 IBA Rules on the Taking of Evidence in International Arbitration : a Commentary

Trujillo: The WTO Appellate Body Knocks Down U.S. “Dolphin-Safe” Tuna Labels But Leaves a Crack for PPMs

Elizabeth Trujillo (Suffolk Univ. - Law) has posted an ASIL Insight on The WTO Appellate Body Knocks Down U.S. “Dolphin-Safe” Tuna Labels But Leaves a Crack for PPMs.

Petersmann: International Economic Law in the 21st Century: Need for Stronger ‘Democratic Ownership’ and Cosmopolitan Reforms

Ernst-Ulrich Petersmann (European Univ. Institute - Law) has posted International Economic Law in the 21st Century: Need for Stronger ‘Democratic Ownership’ and Cosmopolitan Reforms (Polish Yearbook of International Law, forthcoming). Here's the abstract:
This article argues that – in order to make international economic law (IEL) a more effective instrument for protecting human rights and other public goods – citizens and courts of justice must insist on interpreting and developing IEL ‘in conformity with principles of justice’ and human rights, as required by the customary methods of treaty interpretation (I). By empowering citizens through legal and judicial remedies, cosmopolitan rights can strengthen the legal and democratic accountability of governments for their ‘duties to protect’ public goods (II). The ‘dual nature’ of modern legal systems resulting from their incorporation of ‘inalienable’ human rights requires justifying IEL in terms of ‘normative individualism’ and reasonable interests of all citizens (III). Human rights and democratic constitutionalism entail not only changes of the ‘rules of recognition’ (IV) and require ‘judicial balancing’ as the ‘ultimate rule of law’ (V). They also protect individual and democratic diversity and ‘reasonable disagreement’ (VI). The article discusses ten areas of increasing synergies between IEL and human rights law (VII- IX). Arguably, the normative proposition of justifying and designing IEL in terms of constitutional principles of justice and cosmopolitan rights is confirmed by the empirical fact that cosmopolitan legal systems (e.g. in European commercial, trade, investment and human rights law) tend to realize their declared objectives more effectively than state-centred ‘Westphalian legal regimes’ (X-XII).

ESIL Biennial Conference: Interest Group Workshops

In connection with the European Society of International Law's Biennial Conference in Valencia, a number of ESIL Interest Groups will be holding workshops, either on Wednesday afternoon (Sept. 12) or Thursday morning (Sept. 13). These include:


    ‘Universalism and Particularism in International Law’

    Aeyal Gross (Chair)

    Geoffrey Gordon, Vrije Universiteit Amsterdam, Transnational legal studies dept. Cosmopolitanism and Regionalism in International Law

    Jaye Ellis, Hydro-Québec Sustainable Development Law Scholar, Faculty of Law, McGill University Law’s Deference to Expert Discourses as Grounding for Universal Validity

    Fabia Veçoso, University of São Paulo, Brazil, Assessing Regionalism in International Law

    John D. Haskell, Durham Law School, ‘Against Culture’: Indeterminacy and Structural Bias in Progressive


    ‘Has International Law Something to Say about Revolution?’

    Chairman: Theodore Christakis (University of Grenoble)

    Annyssa Bellal (Irish Center for Human Rights, National University of Ireland, Galway): “Armed protest and international law”

    Kenneth Chan & Jed Odermatt (Katholieke Universiteit Leuven), “The ‘strategic’ recognition and de-recognition of old and new governments in the use of force: A legal analysis of issues of legality and inherent risks”

    Vaïos Koutroulis (ULB) : “Quand est-ce qu’un conflit armé non international commence ? Enseignements à la lumière des révoltes de 2010-2012 en Tunisie, en Egypte, en Libye et en Syrie”

    Shannonbrooke Murphy (Middlesex University): “Codifying the Right to Resist in International Law”

    Charlotte Steinorth (CEU), “Resolution 1973 and the Security Council’s Instrumental Turn to Democracy”

    Owen Taylor (School of Oriental and African Studies), ‘Between Reform, Revolution and a hard place: The political economy of the New International Economic Order’

    Fernando R. Tesón (Florida State University): “Humanitarian Intervention as Assistance to Justified Revolutions”


    ‘International Economic Law, Sovereign Debt and Bilateralism’

    Panel 1: The Regulatory Answers to the Sovereign Debt Crisis

    Chair: Luis Hinojosa (University of Granada)

    Angelos Dimopoulos (Tilburg University), The EU sovereign debt crisis and the use of “extra‐EU” institutions

    Matthias Goldmann and Armin von Bogdandy (Max Planck Institute for Comparative Public Law and International Law), Sovereign Debt Restructurings as Exercises of International Public Authority: Towards a Decentralized Sovereign Insolvency Law

    Annamaria Viterbo and Francesco Costamagna (University of Torino), Multi‐regionalism in the Context of the EU Sovereign Debt Crisis: Current Legal Challenges and the Way Forward

    Discussant: August Reinisch (University of Vienna)

    Panel 2: The reach and impact of bilateralism as a tool for fragmentation or de‐fragmentation in IEL

    Chair: Marion Panizzon (University of Bern)

    Thomas Cottier (University of Bern) and Hannes Schloemann (WTI Advisors), Re‐Examining Reciprocity: North‐South Agreements and WTO Disciplines on PTAs

    Chien‐Huei Wu (IEAS, Academia Sinica, Taipei), The Fragmentation of the Multilateral Trading System: the Case of Trading Rules on Export Restrictions

    Lars Schönwald (University of Passau), The Need for a Global Resource Agreement and its Regulatory Framework

    Discussant: Edna del Carmen Ramirez Robles (Graduate Institute of International and Development Studies)


    Joint Workshop of IG on International Environmental Law and IG on International Economic Law

    “The United Nations ‘Rio+20’ Conference on Sustainable Development: Appraisal and Prospects of a Paradigmatic Concept”

    KEY NOTE SPEECH Julia Frohneberg (University of Hamburg), ‘Taking Stock of the Concept of Sustainable Development in International Law and International Relations’


    1. Matthias Sant’Ana and Claire Debucquois, Université Catholique de Louvain (Belgium): ‘Rio+ 20 and the Future of Sustainable Development as a Legal Concept: Lessons Learned and Challenges Ahead’

    Discussant: Werner Scholtz, North-West Univeristy (South Africa)

    2. Carina Costa de Oliveira, FVG-Direito Rio (Brazil), ‘The International Institutional Framework for Sustainable Development: Insufficient Focus on National Implementation’

    Discussant: Rike Kraemer, University College London (United Kingdom)

    3. Takeo Horiguchi, Hokkaido University Graduate School of Public Policy (Japan), ‘The Influence of Sustainable Development on the Proceduralization of International Watercourse Law’

    Discussant: Klaus Blank, European Commission (Directorate General for Agriculture and Rural Development)


    “Regionalism and Feminism: How regionalism impacts on women’s lives”

    Enzamaria Tramontana, University of Palermo, Judicial Dialogue and Cross-Fertilization of Regional Women’s Rights Standards: The Case of Reproductive Rights

    Reut Yael Paz, Alexander von Humboldt Law Faculty, Ostjüdische Regionalism and Feminism à la Rosa Luxemburg

    Loveday Hodson, University of Leicester, The ECHR and Women’s Rights Dorothy Estrada-Tanck, European University Institute, Violence against Women, Human Security, and Human Rights of Women and Girls

    Marion Lewis, American Graduate School in Paris, Women, War and Just War Theory: Why this Silent Majority Must “Bandwagon” To Influence The “Power Brokers” To Create A Normative Framework For Jus Post Bellum

    Eki Y. Omorogbe, University of Leicester, 'Protecting Women in Armed Conflict in Africa'

    Solange Mouthaan, University of Warwick, Sexual Violence against Men in Armed Conflict in Africa

    CHEAH Wui Ling, National University of Singapore, Exploring Institutionalisation through Regionalisation: The Limits of Legal Mobilisation and the ‘Comfort Women’ Movement’s Experience in Southeast Asia

    Troy Lavers, University of Leicester, The evolving story of Violence against Women in Conflict: from Europe to Africa


    PANEL 1 Protecting the vulnerable: children, refugees and the environment

    Chair: Marta Requejo

    Margalida Capellà-Roig, Child Sex Tourism, business and human rights

    Nicola Jägers & Conny Rijken, Prevention of Human Trafficking for Labour Exploitation

    Silvia Scarpa, Fighting against the exploitation of children in cacao plantations

    Antonio Cardesa-Salzmann, Transnational cluster-litigation for environmental justice

    PANEL 2 Emerging corporate responsibility regulation

    Chair: Freya Baetens

    Olga Martin-Ortega, Regulating conflict minerals

    Damian de Felice, Private Banks and the corporate responsibility to protect

    Miriam Saage-Maaf, Possibilities to overcome the legal irresponsibility of mother companies

    Sorcha MacLeod and Alexandra Bohm, Regulating PMSCS: What can the EU learn from the UK's robust self-regulatory approach?


    The European Approach to International Bio Law

    Yao-Ming HSU, National Ceng-chi University, Taiwan, “The Legal Status of Women’s Body in China and Taiwan: Examples of Artificial Reproduction and Other Practices”

    María Isabel TORRES CAZORLA, University of Malaga, Spain, “Spanish municipal legislation and biomedicine: recent approaches in the field of the right to be/not to be informed”

    Roser PUIG MARCÓ, University of Barcelona, Spain, “DNA Samples and Biometric Data across European Union: Legal Challenges of Transnational Exchanges”

    Freya BAETENS and Ruben ZANDVLIET, Leiden University, The Netherlands, “Resticting Market Access for Biotech Products through Preferential Trade Agreements: A Critical Assessment of the recent European PTAs”

    Enrico BONADIO, City University London, United Kingdom, “Exclusion from Patentability of Human Embryonic Stem Cells in the EU: The Impact of Brüstle”

    César VILLEGAS DELGADO, University of Seville, Spain, “Human Embryo Research under the Principle of the Rule of Law. Do We Need to Worry?”

    José Manuel SÁNCHEZ PATRÓN, University of Valencia, Spain, “Biotechnological modifications, human health and international responsibility”

    Daniel GARCÍA SAN JOSÉ, University of Seville, Spain, “A Critical Approach to the European Regulation of Human Embryo and Biomedical Research”


    Inaugural Workshop of the IG “The European Union as a Global Actor”

    Welcome lecture on “The constitutionalization of European foreign policy” by Professor Piet Eeckhout, King’s College London


    We have our inaugural meeting in Valencia where we have a top level substantive panel on the 30th anniversary of the United Nations Convention on the Law of the Sea of 1982 with two confirmed remarkable panelists: Professor and Judge Rudiger Wolfrum (from ITLOS) and Professor Maria Gavouneli (University of Athens).

Call for Papers: International Humanitarian Assistance and International Law

Leiden Law School has issued a call for papers for a conference on "International Humanitarian Assistance and International Law," to take place January 24-25, 2013. Here's the call:

24 and 25 January 2013 | International Humanitarian Assistance and International Law

International humanitarian assistance, entailing the provision of emergency aid to those in need, may take place in situations of crisis. Such situations include natural or manmade disaster, armed conflict or occupation.


As a concept, international humanitarian assistance is receiving widespread attention from international organizations, NGOs, and other actors involved in the practice of aid delivery, yet it deserves more attention from scholars of public international law as there are many legal issues, ambiguities, and questions that arise time and again when humanitarian assistance is needed, or when it is being delivered.

These issues relate, inter alia, to the rights of the people in need of assistance, to the role of the affected states, to the specific circumstances in which humanitarian assistance is provided, to the duties of entities providing assistance as well as to the access of goods or relief personnel. Extensive research is still required to address these problems, in the hopes of making the provision of humanitarian assistance more effective.

The conference aims at bringing legal scholars who have been pioneering the field of international humanitarian assistance together with scholars of public international law who have not been working in this field but are nonetheless interested. Keeping this in mind, the conference will consist of multiple thematic panels, i.e. on ‘Humanitarian assistance and humanitarian law’; ‘Humanitarian assistance and international disaster response laws’, ‘Humanitarian assistance and human rights law’; and ‘Humanitarian assistance and other fields of law’, allowing for both scholars in the field and scholars from outside the direct field of international humanitarian assistance to participate. Furthermore, the contributions and findings of the conference will be published in a thematic edition of a legal journal.

Speakers include:

Em. Prof. Yoram Dinstein (Tel Aviv University)

Prof. dr. Horst Fischer (Leiden University)

Prof. dr. Hans-Joachim Heintze (Ruhr Universität Bochum)

Dr. iur. Heike Spieker (German Red Cross / Ruhr Universität Bochum)

Dr. Eduardo Valencia Ospina (Special Rapporteur International Law Commission)

Emilie E. Kuijt LL.M. (Leiden University)

Stefanie Jansen, LL.M. (De Volder & Jansen International Law Consultancy/ Tilburg University)

Call for Papers

Scholars (junior as well as senior) and practitioners working in the field of humanitarian assistance or in related fields who would like to participate in this conference as speaker or as a commentator in one of the panels are kindly invited to send an abstract of maximum 300 words (in English) to before 1 October 2012. In particular, papers relating to humanitarian assistance and the following topics are welcomed:

  • economic, social and cultural rights and/or human rights in general;
  • international humanitarian law;
  • access in time of (non-) international armed conflict;
  • access in time of natural disaster;
  • the use and/or implementation of international disaster response laws;
  • enforcement of the provision of assistance;
  • state sovereignty;
  • IDPs and/or refugee law;

or any other legal topic related to international humanitarian assistance.

Moyn: Substance, Scale, and Salience: The Recent Historiography of Human Rights

Samuel Moyn (Columbia Univ. - History) has posted Substance, Scale, and Salience: The Recent Historiography of Human Rights (Annual Review of Law and Social Science, forthcoming). Here's the abstract:
This review evaluates the current state of the historiography of human rights, which originated as a field a mere decade ago. It proposes that the substantive contents of norms, doctrines, and law still attract most historians interested in human rights but are only part of a necessarily broader domain of inquiry. Promisingly, recent entries in the field focus on the extension of the geographical scale of application of human rights, as well as on the differing political and ideological salience that human rights ideas have achieved in diverse moments. The historiographical survey concludes with a discussion of why the history of human rights began to be written and whether it is a pressing task to continue building the field.

Thursday, July 26, 2012

New Issue: ICC International Court of Arbitration Bulletin

The latest issue of the ICC International Court of Arbitration Bulletin (Vol. 22, no. 2, 2011) is out. Contents include:
  • Mads Bryde Andersen, Anders Ryssdal & Stefan Lindskog, Achieving Efficiency in International Arbitration: Some Strategic Suggestions for Arbitral Tribunals in ICC Proceedings
  • Ergun Ozsunay & Murat R. Ozsunay, Arbitration in Turkey: An Analysis of Turkish Arbitration Legislation in Light of the UNCITRAL Model Law
  • Guido Carducci, The Impact of the EU 'Rome I' Regulation on International Litigation and Arbitration, A-National Law, Mandatory and Overriding Rules
  • Simon Greenberg & Felix Lautenschlager, Adverse Inference in International Arbitral Practice

Conference: Stateless Law? The Future of the Discipline

The Paul-André Crépeau Centre for Private and Comparative Law (formerly the Quebec Research Centre of Private and Comparative Law) and the Faculty of Law of McGill University will host a conference on "Stateless Law? The Future of the Discipline," on September 28-29, 2012. I noted the call for papers here. The program is here. Here's the idea:

This event will aim to foster a debate that critically assesses the latest developments in legal thought and innovative approaches to law, in the light of the challenge of globalization and the move away from a national paradigm for understanding law. It will also ask the question of how to integrate the insights so gained into the teaching of law. The concern is with law in all its dimensions: public and private, local and transnational, formal and informal.

By being forced to abandon, at least in part, the posited law of the nation state as their lodestar, legal education and legal scholarship have been presented with an opportunity to break the mould of centuries of legal nationalism: an opportunity that encourages new, transdisciplinary and transnational ways of thinking about law. In short, the goal is to re-assess and to re-imagine the discipline of law, its place in the university, and its role in society.

New Issue: International Journal of Refugee Law

The latest issue of the International Journal of Refugee Law (Vol. 24, no. 2, May 2012) is out. Contents include:
  • Ryszard Piotrowicz, States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations
  • Danielle C Jefferis, Institutionalizing Statelessness: The Revocation of Residency Rights of Palestinians in East Jerusalem
  • Kelly E McMillan, Uganda’s Invocation of Cessation Regarding its Rwandan Refugee Caseload: Lessons for International Protection
  • Elena Fiddian-Qasmiyeh, Invisible Refugees and/or Overlapping Refugeedom? Protecting Sahrawis and Palestinians Displaced by the 2011 Libyan Uprising

Call for Papers: Debt and Financial Regulation in Reaction to the Crisis: Legal Perspectives on Recent Transformations of Public Authority

The Max Planck Institute for Comparative Public Law and International Law has issued a call for papers for a workshop to take place November 29, 2012. The workshop topic is: "Debt and Financial Regulation in Reaction to the Crisis: Legal Perspectives on Recent Transformations of Public Authority." Here's the call:

Debt and Financial Regulation in Reaction to the Crisis:

Legal Perspectives on Recent Transformations of Public


Workshop: Heidelberg, 29 November 2012


The ongoing financial and subsequent debt crisis has had an immense impact on financial regulation. The response in regulation mirrors trends in global and European governance which emerged in the last decades. While states still play an important role, their authority is complemented and transformed by international and supranational bodies. Institutions like the G20, the IMF, the Basel Committee, UNCTAD, or the European Union take the lead in both short and long term responses to the crisis. These bodies shape policy in more and more areas, ranging from fiscal policy to the resolution of insolvent banks. At the same time, they make use of new instruments in order to coordinate the crisis response, such as voluntary principles and guidelines, indicators, peer reviews, stress tests, and else.

The purpose of the workshop is to track these transformations and assess them from the perspective of legal scholarship. They raise pressing questions concerning their legality under domestic, European and international law, their legitimacy and effectiveness, the responsibility of states and international institutions, their consequences for distributive justice or legal and political integration in Europe and beyond. The workshop aims at bringing together analyses covering a broad range of issues in debt and financial regulation as well as of methodological approaches. We believe that such a broad view is necessary in order to explore the potential of legal scholarship for the understanding and conceptualization of the ongoing transformations, as well as for the formulation of responses to the questions raised.

We invite junior and senior researchers in law and related fields to submit proposals for presentations focusing on post-crisis transformations of financial regulation.The idea to carry out this workshop arises from the project on the exercise of international public authority carried out at the Max Planck Institute in Heidelberg. However, the workshop is by no means limited to presentations following this strand of research, or critically engaging with it. Rather, we welcome contributions approaching debt and financial regulation from any theoretical, empirical, doctrinal, interdisciplinary or other perspective. The following is a non-enumerative list of suggestions:

  • How to legally conceptualize the austerity measures imposed on Euro area Member States? Are they legitimate exercises of public authority? Which effect does the strengthened European economic governance have on sovereignty, fundamental rights or labor rights?
  • How to legally conceptualize international efforts to restructure sovereign debt and strengthen fiscal discipline? Are they legitimate exercises of authority? Do they respect human rights? Do the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing strike an equitable balance among the diverging interests in matters of sovereign debt? How could their effectiveness be enhanced?
  • How to legally conceptualize the transformations in bank regulation? Are informal instruments such as the revised Basel Accord, recommendations or stress tests legitimate exercises of public authority? Which conflicts might emerge from new regulation such as CRD IV or the rules for rating agencies?
  • How does the interplay between international, European and domestic regulators, supervisors, and central banks work? Should financial supervisors be independent? How could systemic supervision be enhanced? How should policy-makers and regulators respond to public opposition such as the Occupy movement?

The Conference will take place on Thursday, 29 November 2012 at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. Travel and accommodations costs will be reimbursed for participants.

Proposals for presentations not exceeding 500 words should be sent via e-mail to Matthias Goldmann and Carlino Antpöhler at by 15 September 2012. Applicants are requested to indicate whether they intend to submit a paper (> 5,000 words), a short paper (< 5,000 words), or to make a presentation based on an exposé, outline, or power point presentation. Successful applicants will be informed by 30 September 2012. Papers must be submitted by 15 November 2012. Each presentation will be commented on by a renowned scholar or practitioner.

Organization: Professor Dr. Armin von Bogdandy, Matthias Goldmann and Carlino Antpöhler, Max Planck Institute for Comparative Public Law and International Law, Im Neuenheimer Feld 535, 69120 Heidelberg, Germany, +49 6221 482 1,

For more information about the project on the exercise of international public authority see here.

Janik: Die Bindung internationaler Organisationen an internationale Menschenrechtsstandards

Cornelia Janik has published Die Bindung internationaler Organisationen an internationale Menschenrechtsstandards (Mohr Siebeck 2012). Here's the abstract:
Das internationale Menschenrechtsschutzsystem ist zunächst als Antwort auf Nationalsozialismus und Zweiten Weltkrieg entstanden und richtet sich an Staaten als potenzielle Menschenrechtsverletzer. Internationale Organisationen, allen voran die UNO, sind nach ihrer historischen Konzeption mit der Aufgabe betraut, Allgemeinwohl und Menschenrechte zu fördern. An Menschenrechtsverträge sind sie selbst nicht gebunden. Die Vorstellung, dass nur Staaten Menschenrechte verletzen, ist indes obsolet, wie etwa die black listing -Aktivitäten des UN-Sicherheitsrates oder die Finanzierung menschenrechtsadverser Projekte durch Weltbank und IWF vor Augen führen. Cornelia Janik zeigt daher methodische Ansätze auf, um die klassischen, auf Staaten zugeschnittenen Völkerrechtsquellen derart weiterzuentwickeln, dass sie auch internationale Organisationen zur Einhaltung internationaler Menschenrechte verpflichten.

Drahozal: Some Observations on the Economics of Comity

Christopher R. Drahozal (Univ. of Kansas - Law) has posted Some Observations on the Economics of Comity (in The Economic Analysis of International Law, Thomas Eger & Stefan Voigt eds., forthcoming). Here's the abstract:

Comity is the deference one State shows to the decisions of another State. Comity is manifested in an array of judicial doctrines, such as the presumption against the extraterritorial application of statutes and the presumption in favor of recognition of foreign judgments. Comity does not require a State to defer in every case (it is not “a matter of absolute obligation”), but determining when comity requires deference poses difficult doctrinal and theoretical issues.

This paper offers some observations on the economics of comity in an attempt to provide insights into those issues. It first describes the (largely unsatisfactory) attempts to define comity and identifies the various judicial doctrines that are based on comity. Generalizing from the existing literature, which uses game theory (most commonly the prisoners’ dilemma game) to analyze legal doctrines based on comity, the paper then sets out a basic and tentative economic analysis of comity. Comity often serves a cooperative function: courts rely on comity as the basis for doctrines that enhance cooperation with other States. In such cases, refusing to grant comity to a decision of another State constitutes defection from the cooperative solution. But if the original decision itself constitutes defection — such as a State opportunistically entering a judgment against a foreign citizen — refusing to grant comity would not be defection but would instead be an attempt to sanction the other State’s defection. Thus, the central inquiry when a court decides whether to grant comity can be framed as whether the State decision being examined constitutes cooperation or defection. Further, given the uncertainty courts face in making such a determination, comity itself then can be seen as establishing a default presumption that a particular type of State decision constitutes cooperation (or, in cases in which courts refuse to grant comity, as a default presumption of defection).

The paper then argues that any rule a court adopts on the basis of comity should be treated as a default rule rather than a mandatory rule. The argument in favor of default rules over mandatory rules is a familiar one, and seems to apply well here. Thus, as U.S. and U.K. courts have held — but contrary to decisions of the European Court of Justice — comity concerns should not preclude a court specified in an exclusive forum selection clause from entering an anti-suit injunction against foreign court litigation. An arbitration clause, by comparison, provides a much weaker case for finding that the parties contracted around the comity-based default. Finally, the paper suggests possible avenues for future research: in particular, examining the importance of rent-seeking and judicial incentives in the economics of comity.

Roht-Arriaza: The Spanish Civil War, Amnesty, and the Trials of Judge Garzón

Naomi Roht-Arriaza (Univ. of California - Hastings College of the Law) has posted an ASIL Insight on The Spanish Civil War, Amnesty, and the Trials of Judge Garzón.

Wednesday, July 25, 2012

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 27, no. 7, July 2012) is out.

Call for Papers: Melbourne Doctoral Forum on Legal Theory

A call for papers has been issued for the fifth annual Melbourne Doctoral Forum on Legal Theory, which will take place December 6-8, 2012, at Melbourne Law School. The theme is "Grounding Law." Here's the call:

Melbourne Doctoral Forum on Legal Theory

‘Grounding Law’

6–8 December 2012

Call for Papers

The fifth annual Melbourne Doctoral Forum on Legal Theory will be held at the Melbourne Law School, Melbourne, 6-8 December 2012. It will again bring together higher research students and early career researchers, who in different disciplines and across diverse fields of scholarship, engage with law and its theoretical and methodological questions.

This year the forum will explore how the challenge of ‘grounding’ law could offer a critical and political engagement with and responsibility for law. This is a different task to legitimating or substantiating a new foundation, basis or ground for law. Deconstructive jurisprudence has exposed the constituted violence inherent in every asserted or disavowed ground of law. What are the challenges of a ‘grounded’ jurisprudence? How can law be reflexively constituted by the demands of contingency or its context? Some elaborations of Australian Indigenous jurisprudence, for example, speak of a form of law which needs to contextualised rather than decreed: law is less a force that compels and more something that needs to be actualised, rebalanced and re-patterned into the land.

To ground, as a verb, could mean to connect something to the ground – to the surface of the Earth, the terrain, the humus. It could mean to connect to the immediacy of the present moment through affect and the senses. Grounding law may be a process of finding law in, and making law more responsive to, the question of particularity and immediacy, to the imperatives of being and dwelling.

To ground, as a verb, could also mean to discipline or constrict (law as the insolent child grounded in her room) or to prohibit something (such as an aircraft) from flying. As such, to ground law, may also be a process of constraining its abuses, its terrors, its excesses.

Grounding, both as place-making and disciplining, as the site of the burial of the dead, the method of constriction and the stage for stories and songlines, impels a law of relations. It thus compels obligations of surplus, of giving more than we take, and of transmission. ‘To ground’ could also then mean to relate to the past and the future, and to compile a legacy, history and genealogy.

This year we come together, on stolen land, at a time of a social and ecological crisis. Law, in both its humanitarian and authoritarian guises, is complicit in global capital’s assault on the ecological processes that sustain life and the practices of communal life. Being attentive to the grounding of law may present possibilities of thinking of resistance beyond questions of the means, tactics or processes of constructing a rebellion to a broader challenge of constructing the places where rebellion articulates and encounters itself, shows itself and begins to know itself.

We welcome participants from all disciplines to explore what a theory of grounding law could offer a critical and political engagement with law.

Possible topics may include (this list is non-exhaustive):

  • the force of law: rethinking violence as a ground of law
  • the ecological crisis: the relationship between law and the environment
  • land, sky, sea: the ethereal and terrestrial in law’s cosmos
  • Indigenous jurisprudence
  • settling/settler laws in the international
  • radical legal pluralism, religious laws and customary laws
  • the place and space of law
  • the Occupy Movement and/or resistance as a grounding project
  • the groundless community of global capitalism: the disciplinarity, (ir)regularity and cooperativity of law
  • grounding fiscal reform in economies of possession and dispossession, austerity and surplus, accumulation and expenditure
  • methodologies of legal ethnography, history and geography
  • transmission, transplantation and legacies of law making
  • constituting community: critical constitutionalism and administrative law

A limited number of bursaries will be available for interstate and international presenting participants who are unable to claim funding to cover the full cost of travel from their home institution. The bursaries are intended to contribute towards travel expenses. Please indicate in your application whether you would like to be considered for a bursary.

Conference Organisers:

Julia Dehm, Marc Trabsky and Timothy Neale

Send abstracts of 500 words (max) and biographies of 100 words to: by Monday 6th August 2012.

Confirmation of accepted abstracts will be made on 20th August 2012.

Submission of written papers (maximum of 3000 words) are due on 5 November 2012.

New Issue: Global Environmental Politics

The latest issue of Global Environmental Politics (Vol. 12, no. 3, August 2012) is out. Contents include:
  • Special Issue: Navigating Regional Environmental Governance
    • Jörg Balsiger & Stacy D. VanDeveer, Introduction: Navigating Regional Environmental Governance
    • Henrik Selin, Global Environmental Governance and Regional Centers
    • Lorraine Elliott, ASEAN and Environmental Governance: Strategies of Regionalism in Southeast Asia
    • Jörg Balsiger, New Environmental Regionalism and Sustainable Development in the European Alps
    • Andreas Klinke, Democratizing Regional Environmental Governance: Public Deliberation and Participation in Transboundary Ecoregions
    • Richard Matthew, Environmental Change, Human Security, and Regional Governance: The Case of the Hindu Kush/Himalaya Region
    • Bernard Debarbieux, How Regional Is Regional Environmental Governance?
    • Ken Conca, The Rise of the Region in Global Environmental Politics

Petersmann: Methodological Pluralism and Its Critics in International Economic Law Research

Ernst-Ulrich Petersmann (European Univ. Institute - Law) has posted Methodological Pluralism and Its Critics in International Economic Law Research (Journal of International Economic Law, forthcoming). Here's the abstract:
This paper uses the term ‘legal methodology’ as referring to the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of legal systems like international economic law (IEL), and their relationships to other areas of law and politics. It begins with discussing six competing theories of justice justifying international economic regulation. This overview of theories of justice is followed by a discussion of competing moral, economic, political and legal conceptions of the ‘primary’ and ‘secondary rules’ of IEL. Due to the ‘dual nature’ of modern legal systems resulting from the universal recognition of human rights and of other principles of justice, legal positivism, natural law theories, social and policy conceptions of national, transnational and international legal systems must be applied in mutually coherent ways. As law and jurisprudence are less about ‘truth’ than about ‘institutionalizing public reason’, positive and normative legal arguments must respect legitimate ‘constitutional pluralism’ and ‘reasonable disagreement’ about interpretation and legal protection of civil, political, economic, social and cultural human rights as relevant context for interpreting IEL. The paper explains why, due to ‘globalization’ and the transformation of ever more national into transnational public goods, national Constitutions have become ‘partial constitutions’ that can no longer protect many public goods without international law and institutions. Constitutional and ‘public goods’ theories confirm that the five competing conceptions of IEL must be embedded into a multilevel constitutional framework limiting abuses of public and private power in all human interactions at national, transnational and international levels. The paper includes case-studies illustrating the need for comparative institutional research on which multilevel legal, institutional and regulatory approaches protect human rights, other cosmopolitan rights of citizens and related public goods most effectively. The obvious ‘governance failures’ in protecting interdependent public goods call not only for ‘democratic empowerment’ of citizens by cosmopolitan rights compensating the inadequate parliamentary control of multilevel governance by new forms of ‘participatory’, deliberative and cosmopolitan democracy. The obvious abuses of ‘Westphalian conceptions’ of ‘international law among states’ must also be limited by stronger multilevel judicial protection of cosmopolitan rights in order to hold governments more accountable for their failures to protect interdependent public goods more effectively.

Krüger: The Judicialization of Governance in the WTO: ‘Strategic Litigation’ as an Explanatory Factor?

Tilman Krüger (Univ. of Bremen) has posted The Judicialization of Governance in the WTO: ‘Strategic Litigation’ as an Explanatory Factor? Here's the abstract:

While negotiations in the World Trade Organization (WTO) linger in gridlock, the WTO’s Appellate Body has become a strong international court in all but name. Over the years, increasing relative judicial power has lead to a judicialization of governance in the WTO: Appellate Body decisions have become increasingly authoritative and determinative not only for the solution of individual disputes but also for changes in the WTO’s overall legal and institutional setup. Offering explanations, some find an ‘activist’ Appellate Body that engages in inappropriate and illegitimate judicial lawmaking. Others observe a ‘capitulation’ of the WTO’s membership as a result of intractable collective action problems; like that the judicialization of governance in the WTO occurs because the members have handed over norm-creation powers to the judiciary. While both explanatory approaches add a number of valuable insights, they remain unsatisfactory.

Starting from there, the present paper argues that ‘strategic litigation’ may be another factor for the increasing judicialization in the WTO: WTO members pursue, it is argued, long-term, systemic goals towards WTO governance (also) in the rather unlikely forum of WTO dispute settlement and in their capacities as litigants. After clarifying core concepts and introducing the setting in which strategic litigation takes place, the paper illustrates two incidents of successful strategic litigation on the part of the European Union (EU), which have both preserved and even strengthened the trend of a judicialization of governance in the WTO. Rather than judicial activism or member state passivity, a convergence of preferences and strategies between the EU and the Appellate Body can explain the outcomes in the incidents described. Compared to the United States (US), the EU is found to be a more likely and more successful strategic litigant, due to factors at the level of trade policy making within the US and the EU.

Stearns: Human Rights in World History

Peter N. Stearns (George Mason Univ. - History) has published Human Rights in World History (Routledge 2012). Here's the abstract:

Defended by a host of passionate advocates and organizations, certain standard human rights have come to represent a quintessential component of global citizenship. There are, however, a number of societies who dissent from this orthodoxy, either in general or on particular issues, on the basis of political necessity, cultural tradition, or group interest.

Human Rights in World History takes a global historical perspective to examine the emergence of this dilemma and its constituent concepts. Beginning with premodern features compatible with a human rights approach, including religious doctrines and natural rights ideas, it goes on to describe the rise of the first modern-style human rights statements, associated with the Enlightenment and contemporary antislavery and revolutionary fervor. Along the way, it explores ongoing contrasts in the liberal approach, between sincere commitments to human rights and a recurrent sense that certain types of people had to be denied common rights because of their perceived backwardness and need to be "civilized". These contrasts find clear echo in later years with the contradictions between the pursuit of human rights goals and the spread of Western imperialism.

By the second half of the 20th century, human rights frameworks had become absorbed into key global institutions and conventions, and their arguments had expanded to embrace multiple new causes. In today’s postcolonial world, and with the rise of more powerful regional governments, the tension between universal human rights arguments and local opposition or backlash is more clearly delineated than ever but no closer to satisfactory resolution.

Tuesday, July 24, 2012

Mnookin & Marra: Rethinking the Tension between Peace and Justice: The International Criminal Prosecutor as Diplomat

Robert H. Mnookin (Harvard Univ. - Law) & William Marra (Harvard Univ. - Law) have posted Rethinking the Tension between Peace and Justice: The International Criminal Prosecutor as Diplomat (Harvard Negotiation Law Review, Vol. 18, No. 1, 2012). Here's the abstract:

Imagine you are the Prosecutor of the International Criminal Court. The year is 2014, and the war-weary Afghani people have struck a tentative deal to end their civil war. The deal contemplates amnesty for Mullah Omar and his deputies, many of whom have likely committed war crimes or crimes against humanity. As Prosecutor, you face a dilemma: Should you quietly accept the deal — or should you prosecute the Taliban, even though a prosecution risks jeopardizing the peace?

Using that hypothetical as a frame, this essay explores how the ICC Prosecutor ought to balance competing considerations of peace and justice when deciding whether to initiate a criminal investigation or prosecution. The Prosecutor’s official policy position is that he cannot consider the interests of peace when deciding whether to prosecute suspected criminals. In other words, his decision whether to go after Mullah Omar must be made without considering how his acts will affect ongoing peace processes.

This essay counters that it is both prudent and inevitable for the Prosecutor to consider the interests of peace. In a policy paper, the Prosecutor has ruled out the most natural method for considering the interests of peace, namely the Rome Statute’s Article 53 “Interests of Justice” provision. But there remain two other ways for the Prosecutor to take into account the interests of peace: first, through careful use of timing when initiating investigations and prosecutions; and second, through a process of proactive complementarity. This essay explains that on balance, delay and complementary are actually better vehicles to address the tension between peace and justice than Article 53’s Interests of Justice provision. The essay concludes by providing a set of practical guidelines the Prosecutor should follow when deciding when to prosecute, and when to defer. While the Prosecutor should not explicitly bargain with offenders or acknowledge the validity of blanket amnesty programs, he should delay investigations and employ proactive complementary when an investigation or prosecution unduly risks jeopardizing peace prospects.

Efrat: Governing Guns, Preventing Plunder: International Cooperation against Illicit Trade

Asif Efrat (Interdisciplinary Center Herzliya - Government) has published Governing Guns, Preventing Plunder: International Cooperation against Illicit Trade (Oxford Univ. Press 2012). Here's the abstract:

From human trafficking to the smuggling of small arms to the looting of antiquities, illicit trade poses significant threats to international order. So why is it so difficult to establish international cooperation against illicit trade? Governing Guns, Preventing Plunder offers a novel, thought-provoking answer to this crucial question.

Conventional wisdom holds that criminal groups are the biggest obstacle to efforts to suppress illicit trade. Contrarily, Asif Efrat explains how legitimate actors, such as museums that acquire looted antiquities, seek to hinder these regulatory efforts. Yet such attempts to evade regulation fuel international political conflicts between governments demanding action against illicit trade and others that are reluctant to cooperate. The book offers a framework for understanding the domestic origins of these conflicts and how the distribution of power shapes their outcome. Through this framework, Efrat explains why the interests of governments vary across countries, trades, and time. In a fascinating empirical analysis, he solves a variety of puzzles: Why is the international regulation of small arms much weaker than international drug control? What led the United States and Britain to oppose the efforts against the plunder of antiquities, and why did they ultimately join these efforts? How did American pressure motivate Israel to tackle sex trafficking? Efrat's findings will change the way we think about illicit trade, offering valuable insights to scholars, activists, and policymakers.

Biad & Tavernier: Le droit international humanitaire face aux défis du XXIe siècle

Abdelwahab Biad (Université de Rouen - Law) & Paul Tavernier (Université Paris XI - Law) have published Le droit international humanitaire face aux défis du XXIe siècle (Bruylant 2012).The table of contents is here. Here's the abstract:

Depuis, la fin de la Guerre froide plusieurs conflits armés ont permis de mesurer le degré d’application des prescriptions des Conventions de Genève et des Protocoles additionnels dont la valeur coutumière est établie.

La multiplication des conflits dits « déstructurés » dans les États « défaillants », ainsi que l’extension des guerres asymétriques ont révélé le rôle croissant d’acteurs non étatiques sur fond de « privatisation de la sécurité ». Ainsi, la prolifération de groupes armés non étatiques (« terroristes » et « mercenaires ») agissant aux limites des règles du droit international humanitaire vient compliquer la notion de « participation directe aux hostilités » destinée à assurer la protection des civils.

Parallèlement, les « guerres asymétriques » (Irak, Afghanistan, Liban et Gaza) sont pleines d’enseignements pour ce qui est des méthodes et moyens de guerre. Elles illustrent sous un nouveau jour la complexité de l’application des Conventions de Genève dans un contexte d’asymétrie des capacités militaires. Tout en mettant à rude épreuve les règles régissant la conduite des hostilités, ces conflits révèlent ainsi les défis posés par les nouvelles technologies militaires (« drones de combat », bombes à sous-munitions, armes au phosphore blanc ou à uranium enrichi) en termes de protection des civils.

Ce tableau n’en rend que plus complexe le défi de la répression pénale des infractions graves aux « lois et coutumes de la guerre » que la juridictionnalisation croissante de cette lex specialis alimente.

Le présent ouvrage constitue les Actes du colloque du CREDHO-DI de l’Université de Rouen organisé en coopération avec le CREDHO-Paris Sud en avril 2010.

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 15, no. 4, July 2012) is out. Contents include:
  • Deema S. Jaafari, Pharmaceutical Patents in Jordan
  • Nuno Pires de Carvalho, Toward a Unified Theory of Intellectual Property: The Differentiating Capacity (and Function) as the Thread That Unites All its Components
  • Ebenezer Kwabena Tetteh, Advance Market Commitments for R&D in Diseases That Disproportionately Affect Low-Income Countries

New Issue: International Law: Revista Colombiana de derecho Internacional

The latest issue of International Law: Revista Colombiana de derecho Internacional (No. 20, Enero-Junio 2012) is out. Contents include:
  • Mario Fernando Ortega-Jurado, Protección de la infancia y adolescencia en asuntos de derecho internacional humanitario en Colombia
  • Johann Manrique-García, La prueba de la ley extranjera en Colombia: Análisis comparado
  • Yadira Castillo-Meneses, La eficacia y legitimidad de la Corte Especial para Sierra Leona desde el Derecho Internacional
  • Juan Diego Martínez-García, The EC decision to include the aviation activities in the European Emissions Trading System (EU ETS): A breach of international law?
  • Pía M. Moscoso Restovic, Interpretación del artículo 5.3 del reglamento (CE) Bruselas I según los fines y principios de la competencia judicial civil internacional para los daños ambientales
  • Sergio Iván Anzola-Rodríguez, Governing through customary international law?
  • Rosmerlin Estupiñán-Silva, La gravedad de los crímenes de guerra en la jurisprudencia internacional penal
  • Juan Antonio Barrero-Berardinelli, El efecto de irradiación de los derechos fundamentales en el Lüth de 1958

Monday, July 23, 2012

Wasum-Rainer, Winkelmann, & Tiroch: Arctic Science, International Law and Climate Change: Legal Aspects of Marine Science in the Arctic Ocean

Susanne Wasum-Rainer, Ingo Winkelmann, & Katrin Tiroch have published Arctic Science, International Law and Climate Change: Legal Aspects of Marine Science in the Arctic Ocean (Springer 2012). The table of contents is here. Here's the abstract:
Developments in the Arctic region are increasingly part of international discussion. The book contains a comprehensive and interdisciplinary analysis of the current problems around marine scientific research in the Arctic region. It combines scientific, legal and policy aspects. The main questions addressed are: ongoing and future Arctic marine research, marine research in the Arctic Ocean in practice, the legal framework, enlarged continental shelves and the freedom of marine science and particularities and challenges of the Arctic region. The contributors are leading experts in the field of politics, law and science.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 81, no. 3, 2012) is out. Contents include:
  • Inger Österdahl, Just War, Just Peace and the Jus post Bellum
  • Yoshifumi Tanaka, Reflections on High Seas Marine Protected Areas: A Comparative Analysis of the Mediterranean and the North-East Atlantic Models
  • Christian Dahlman, The Function of Opinio Juris in Customary International Law
  • Ben Chigara, What Should a Re-constituted Southern African Development Community (SADC) Tribunal Be Mindful of to Succeed?

New Issue: International Security

The latest issue of International Security (Vol. 37, no. 1, Summer 2012) is out. Contents include:
  • Stephen Biddle, Jeffrey A. Friedman, & Jacob N. Shapiro, Testing the Surge: Why Did Violence Decline in Iraq in 2007?
  • Robert A. Pape, When Duty Calls: A Pragmatic Standard of Humanitarian Intervention
  • John Mueller & Mark G. Stewart, The Terrorism Delusion: America's Overwrought Response to September 11
  • Strategic and Social Sources of South Asian Insurgencies
    • S. Paul Kapur & Sumit Ganguly, The Jihad Paradox: Pakistan and Islamist Militancy in South Asia
    • Paul Staniland, Organizing Insurgency: Networks, Resources, and Rebellion in South Asia
  • Correspondence
    • Ulrich Krotz, Richard Maher, David M. McCourt, Andrew Glencross, Norrin M. Ripsman, Mark S. Sheetz, Jean-Yves Haine, & Sebastian Rosato, Debating the Sources and Prospects of European Integration

Conference: Postnational Rulemaking between Authority and Autonomy

On September 20-21, 2012, the project on the Architecture of Post-National Rulemaking at the University of Amsterdam School of Law will host a conference on "Postnational Rulemaking between Authority and Autonomy." The program is here. Here's the idea:

Our project took effect after a workshop in September 2011, which has guided its development. A year later we again wish to engage with our peers. During the Conference we will explore both empirical and normative approaches to the project themes outlined below, gathering contributions from the three fields of law that compose the project (public international law, European public law and European private law).

  • First, we examine the shifting sources of authority and do not take legal capacity or competence as a starting point for such authority.
  • Second, we focus on the process of rulemaking and on how actors or rules gain authority in this process – leaning and building on one another. This is highly relevant where no single actor could have produced a rule with authority, but actors’ interaction does precisely that.
  • Third, we examine authority and autonomy in the spaces between actors. Actors recognize or contest the authority of others. At this juncture lies a moment of autonomous will, and thus of legitimation. In short, we look at postnational rulemaking between authority and autonomy.

The conference seeks to combine conceptual, normative and empirical analysis in a mutually supportive fashion.

New Volume: Yearbook on Arbitration and Mediation

The latest volume of the Yearbook on Arbitration and Mediation (Vol. 3, 2011) is out. Contents include:
  • Professional Articles on International Arbitration
    • Lea Haber Kuck & Amanda Raymond Kalantirsky, Vacating an International Arbitration Award Rendered in the United States: Does the New York Convention, The Federal Arbitration Act or State Law Apply?
    • Roberto Castro de Figueiredo, Mobil v. Venezuela: The Nationality Requirement under the ICSID Convention
  • Arbitrator as Judge . . . and Judge of Jurisdiction Symposium
    • Thomas E. Carbonneau, Introduction to the Arbitrator as Judge . . . and Judge of Jurisdiction Symposium
    • Amy J. Schmitz, Arbitration Ambush in a Policy Polemic
    • David Allen Larson, The End of Arbitration As We Know It? Arbitration Under Attack
    • Thomas J. Stipanowich, Revelation and Reaction: The Struggle to Shape American Arbitration
    • William W. Park, A Cautionary Tale on Arbitral Authority: Judges, Arbitrators and the Stolt-Nielsen Decision
    • Peter B. Rutledge, Contract and Kompetenz

Sunday, July 22, 2012

Alter: The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review (in International Law and International Relations: Synthesizing Insights from Interdisciplinary Scholarship, Jeffrey L. Dunoff & Mark A. Pollack eds., forthcoming). Here's the abstract:
This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in the multiple roles ICs play because they allow us to appreciate the many different contributions ICs make to international politics. ICs do oversee state compliance with international agreements, but this is not all they do. Finally, I explain the relevance of this analysis for two prevalent debates regarding ICs; 1) whether we should conceive of ICs as Agents or Trustees and 2) whether compulsory jurisdiction and private litigant access for ICs inherently features undermine national sovereignty.