The latest issue of International Studies Review (Vol. 14, no. 3, September 2012) is out. Contents include:
Alan Bryden (Geneva Centre for the Democratic Control of Armed Forces) has published International Law, Politics and Inhumane Weapons: The effectiveness of global landmine regimes (Routledge 2012). Here's the abstract:This book contributes to contemporary debates on the effectiveness of international humanitarian law (IHL) in regulating or prohibiting inhumane weapons, such as landmines.
Two treaties have emerged under IHL in response to the humanitarian scourge of landmines. However, despite a considerable body of related literature, clear understandings have not been established on the effectiveness of these international legal frameworks in meeting the challenges that prompted their creation.
This book seeks to address this lacuna. An analytical framework grounded in regime theory helps move beyond the limitations in the current literature through a structured focus on principles, norms, rules, procedures, actors and issue areas. On the one hand, this clarifies how political considerations determine opportunities and constraints in designing and implementing IHL regimes. On the other, it enables us to explore how and why ‘ideal’ policy prescriptions are threatened when faced with complex challenges in post-conflict contexts.
The latest issue of the Melbourne Journal of International Law (Vol. 13, no. 1, June 2012) is out. Contents include:
Hatsue Shinohara (Waseda Univ.) has published US International Lawyers in the Interwar Years: A Forgotten Crusade (Cambridge Univ. Press 2012). Here's the abstract:In the interwar years, a group of reform-minded American scholars of international law, such as Quincy Wright and Manley Hudson, challenged traditional international law and strove to establish a 'new' international law in which outlawry of war was institutionalized. They highly valued the Covenant of the League of Nations and the Kellogg–Briand Pact and presented legal arguments in support of them. These scholars were activists in their efforts to promote their views to policy makers and the public. In the US international law community, however, a different group of scholars, notably Edwin Borchard, vehemently opposed the progressive scholars. US International Lawyers in the Interwar Years chronicles those involved in the debate and provides a detailed account of their scholarly works and activities that hitherto have not had the recognition that they deserve.
Jorge E. Viñuales (Graduate Institute of International and Development Studies - Law) has published Foreign Investment and the Environment in International Law (Cambridge Univ. Press 2012). Here's the abstract:Conflicts between foreign investment law and environmental law are becoming increasingly frequent. On the one hand, the rise of environmental regulation poses significant challenges to foreign investors in several industries. On the other, the surge in investment arbitration proceedings is making States aware of the important litigation risks that may result from the adoption of environmental regulation. This study of the relationship between these two areas of law adopts both a policy and a practical perspective. It identifies the major challenges facing States, foreign investors and their legal advisers as a result of the potential friction between investment law and environmental law and provides a detailed analysis of all the major legal issues on the basis of a comprehensive study of the jurisprudence from investment tribunals, human rights courts and bodies, the ICJ, the WTO, the ITLOS, the CJEU and other adjudication mechanisms.
Neil Boister (Univ. of Canterbury - Law) has published An Introduction to Transnational Criminal Law (Oxford Univ. Press 2012). Here's the abstract:The suppression of cross-border criminal activity has become a major global concern. An Introduction to Transnational Criminal Law examines how states, acting together, are responding to these forms of criminality through a combination of international treaty obligations and national criminal laws. Multilateral 'suppression conventions' oblige states parties to criminalise a broad range of activities including drug trafficking, terrorism, transnational organised crime, corruption, and money laundering, and to provide for different types of international procedural cooperation like extradition and mutual legal assistance in regard to these offences. Usually regarded as a sub-set of international criminal justice, this system of law is beginning to receive greater attention as a subject in its own right as the scale of the criminal threat and the complexity of synergyzing the criminal laws of different states is more fully understood.
The book is divided into three parts. Part A asks and attempts to answer what is transnational crime and what is transnational criminal law? Part B explores a selection of substantive transnational crimes from piracy through to cybercrime. Part C examines the main procedural mechanisms involved in establishing jurisdiction and then the exercise of jurisdiction through the effective investigation and prosecution of transnational crimes. Finally, Part D looks at the implementation of transnational criminal law and the prospects for transnational criminal justice. Until recently this system of law has been largely the domain of professionals. An Introduction to Transnational Criminal Law provides a comprehensive introduction designed to fill that gap.
While it is widely acknowledged that international tribunals may, depending on their jurisdictional entitlements, entertain treaty claims as well as claims arising out of breaches of contract, the exercise of jurisdiction by domestic courts has generally been deemed to be limited to matters of national law. What is more, domestic adjudication has generally been considered without consequence for the outcome of a number of international proceedings. However, is deference to international dispute settlement mechanisms really compatible with dispute settlement clauses contained in investment treaties and contractual agreements that foresee a role to be played by domestic courts? The answer attempted by this paper is in the negative. On the one hand, the identity of a legal dispute within the jurisdiction of different forums is not dependent on the cause of action that might be invoked, nor is the distinction between contract claims and treaty claims one that necessarily justifies the existence of two wholly separate layers of legal obligations. This may be illustrated through an assessment of how international jurisdictional entitlements exist and interact with specific dispute settlement clauses contained in contracts and treaties. On the other hand, where a distinction based on the causes of action might exist, municipal courts that deal strictly with matters of domestic law ought not to be deprived of influence on the outcome of international proceedings. In this regard, an analysis of the consequences for international tribunals of adjudication by municipal courts over derivative claims and investment disputes in general will be of avail.
This chapter claims that anti-corruption policy and trade and investment treaties pursue the same ultimate goals, albeit through different means. The chapter has two objectives. Firstly, it surveys how the international trade and investment regimes at least indirectly contribute to anti-corruption policy. In both regimes, awareness of and arguments related to corruption have increased considerably especially since the entry into force of the UN Convention Against Corruption in 2005. Secondly, the chapter assesses what lessons may be learnt for a more effective enforcement of anti-corruption rules from World Trade Organization (WTO) and investor-state dispute settlement mechanisms. To date, in both the trade and investment regime, corruption is predominantly invoked by defending states in an attempt to justify trade restrictions or escape investment protection liability. So far, fewer (in the WTO, no) complainants have challenged corrupt practices. Design features of WTO and investor-state dispute settlement explain this discrepancy. Investor-state arbitration is the more likely avenue for individual corruption complaints. That said, also WTO corruption complaints or complaints under Free Trade Agreements (FTAs), especially those of a more systemic nature, remain possible, in particular once the 2012 Revised Government Procurement Agreement will have entered into force.
Kai Ambos, Luís Pereira Coutinho, Maria Fernanda Palma, & Paulo de Sousa Mendes have published Eichmann in Jerusalem – 50 Years After: An Interdisciplinary Approach (Duncker & Humblot 2012). The table of contents is here. Here's the abstract:On the occasion of the 50th anniversary of the end of the Eichmann trial, the Law Faculty of the University of Lisbon organized and hosted an international colloquium on the book »Eichmann in Jerusalem« that took place on April 27–28, 2011, in Lisbon. The main purpose was to evoke Hannah Arendt's oeuvre and to reflect upon the Eichmann trial. »Eichmann in Jerusalem: A Report on the Banality of Evil« is indeed an important keystone to understanding Arendt's work as a whole and constitutes a reference point in itself when addressing crucial problems in the fields of criminal law, international criminal law and philosophy of law. The main contributions, recollected for publication in the present English edition, give a rare opportunity for a kaleidoscopic and pluralistic series of views, made possible since her book gives an excellent lesson to experts in law and maintains an astonishing actuality. The present book covers aspects as broad and diverse as facing the evil; the legal and the political in Hannah Arendt; Eichmann in Jerusalem and Hannah Arendt's oeuvre; the Eichmann trial; reflections starting from Eichmann in Jerusalem; and finally, contemporary experiences of transitional justice.
This lecture, delivered at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, considers the short-, medium-, and long-term legacy of the ICTR. During its seventeen-year history, the ICTR has made notable contributions to the development of international criminal law generally and has impacted the lives of thousands of individuals specifically. Despite its precarious beginnings, the ICTR grew from a tiny organization to a vital institution trying cases of extraordinary historical significance, including the first conviction for genocide since the convention’s adoption in 1948. Situating the Tribunal’s work in its historical context, this lecture reflects upon the principles first developed at Nuremberg and offers suggestions for future action to help consolidate the legacy of the ICTR. As the work of the ad hoc international criminal tribunals winds down and the Residual Mechanism begins, it is clear that the ICTR has had profound effect upon people in Rwanda, East Africa, and the broader international community. The lecture concludes with the recognition that trials alone cannot bring about peace and reconciliation and emphasizes the need for continued development assistance and capacity building to ensure national healing. In short, much has been achieved in the almost two decades of operation at the ICTR but there remains a long road ahead for those committed to international peace and justice.
Björn Elberling has published The Defendant in International Criminal Proceedings: Between Law and Historiography (Hart Publishing 2012). Here's the abstract:It is often said that criminal procedure should ensure that the defendant is a subject, not just an object, of proceedings. This book asks to what extent this can be said to be true of international criminal trials.
The first part of the book aims to find out the extent to which defendants before international criminal courts are able to take an active part in their trials. It takes an in-depth look at the procedural regimes of international courts, viewed against a benchmark provided by national provisions representing the main traditions of criminal procedure and by international human rights law.
The results of this comparative endeavour are then used to shed light, from a practical point of view, on the oft-debated question whether (international) criminal trials should be used as a tool for writing history or whether, as claimed by Martti Koskenniemi, pursuing this goal leads to a danger of “show trials”.
This Thursday through Saturday, September 13-15, 2012, the European Society of International Law will hold its 5th Biennial Conference, in Valencia. The theme is "Regionalism and International Law." The program is here. In connection with the conference, a number of ESIL Interest Groups will be holding workshops, either on Wednesday afternoon (September 12) or Thursday morning (September 13). Further information on the interest group programs can be found here.
Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. The regime’s legitimacy crisis should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime. I argue that this strategy represents at once a more feasible and more sensible means of improving international investment law than other alternatives.
Nel convegno si affronteranno alcune tematiche di fondo del diritto transnazionale: primato della legge/strumenti di soft law; divisione/contaminazione tra diritto pubblico e diritto privato; convergenza/divergenza tra sistemi giuridici (diritto giudiziario e governance giudiziaria).
L’approccio che si intende utilizzare è quello della ‘logica del paradosso’ attraverso cui si vuole cogliere “l’impossibile possibilità di identità generate da differenze, di aperture prodotte da chiusure” (G. Teubner), affrontando il tema del diritto transnazionale secondo un’ottica multidisciplinare utile a favorire una riflessione critica sulle interconnessioni tra i diversi settori giuridici.
Ross Becroft (Gross & Becroft Lawyers) has published The Standard of Review in WTO Dispute Settlement: Critique and Development (Edward Elgar Publishing 2012). Here's the abstract:This detailed book critiques how the World Trade Organization scrutinizes domestic measures to determine compliance with the WTO Agreements. This scrutiny, known as the standard of review, is particularly relevant when WTO panels are examining measures involving controversial domestic policy issues. The author argues that the current WTO standard of review is inadequate and a flexible standard based on the responsibilities that WTO members have retained for themselves under the WTO Agreements is preferable. This new standard of review would better reflect the autonomy contemplated for members under the WTO rules and reduce scope for the contention that the WTO overreaching its mandate.
Jurisdiction and immunity have tempered the emergence of human rights and remedies. They are often the first line of defense for authorities when a new area is brought in under judicial review.
Government acts abroad, and in particular acts of war and occupation, are perhaps the last frontier. The recent judgments by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda rejected Government claims of lack of jurisdiction and attribution of acts by British soldiers to the UN instead of to the United Kingdom, which would have resulted in an effective immunity for the acts concerned, which included murder, torture, and arbitrary detention. The UK courts applied a restrictive jurisdictional principle with extra-territorial application only in narrowly defined exceptional categories, of which the House of Lords used only one.
The European Court, however, enumerated circumstances which go so much further that they no longer constitute exceptions but a return to the principle that the European Convention is fully capable of extra-territorial application. The incremental application of this general principle in a new area brought before the Court in the cases, and the gradual rejection of Government defenses that previously had been accepted under special circumstances of the interventions in the former Yugoslavia in the 1990s, are not surprising, and the outcome in Al-Skeini and Al-Jedda is difficult to criticize.
This paper examines the competences of the UN Security Council under the “constitution” of the United Nations, focusing in particular on its recent innovations in legislation. Certain critics decry Council legislation as unconstitutional, null and void. Apologists retort that the Charter delegates broad power to the Council, and the impugned legislative Resolutions fall well within the broad textual limitations on its competence. I propose an approach to constitutional analysis to help cut through this debate, based on distinguishing between two perspectives on the “constitution” of an international organization: the juridical perspective emphasizing the transmission of validity in the creation, interpretation, and application of legal norms (constitutionality/unconstitutionality); and the political perspective from which the ordering of power among the constituted bodies may be assessed in terms of legitimacy and justice (e.g. the political-theoretical language of constitutionalism).
Distinguishing between the perspectives illuminates the merits of the arguments on both sides of the debate on the Council’s competences. Juridically speaking, it is difficult to argue that the Council’s innovations are unconstitutional and void. Yet the political perspective helps explain the critics’ discomfort with the Council’s expansive innovations; from the latter angle it appears that the Charter’s broad, unreviewable, and effectively unamendable delegation of power to the Council yields a deeply flawed constitutional arrangement, entailing systemic risks of hegemonic international law-making and the demise of constitutionalism.
This chapter proceeds in three steps. I first briefly outline the principal theories that justify secession. Next, I analyze the evolution of secession in international law and in international practice, as a corollary of the right of all peoples to self-determination. Finally, in the last Section, I turn to the relationship between secession and constitutionalism and ask whether the constitutionalization of the right to secede can, in particular context, be regarded as a constructive response to secessionist challenges and what its implications are for constitutional law.
The latest issue of Criminal Law Forum (Vol. 23, nos. 1-3, September 2012) is out. Contents include:
Ingo Venzke (Univ. of Amsterdam - Amsterdam Center for International Law) has published How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford Univ. Press 2012). Here's the abstract:Challenging the classic narrative that sovereign states make the law that constrains them, this book argues that treaties and other sources of international law form only the starting point of legal authority. Interpretation can shift the meaning of texts and, in its own way, make law. In the practice of interpretation actors debate the meaning of the written and customary laws, and so contribute to the making of new law. In such cases it is the actor's semantic authority that is key - the capacity for their interpretation to be accepted and become established as new reference points for legal discourse. The book identifies the practice of interpretation as a significant space for international lawmaking, using the key examples of the UN High Commissioner for Refugees and the Appellate Body of the WTO to show how international institutions are able to shape and develop their constituent instruments by adding layers of interpretation, and moving the terms of discourse.
The book applies developments in linguistics to the practice of international legal interpretation, building on semantic pragmatism to overcome traditional explanations of lawmaking and to offer a fresh account of how the practice of interpretation makes international law. It discusses the normative implications that arise from viewing interpretation in this light, and the implications that the importance of semantic changes has for understanding the development of international law. The book tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders how semantic authority can be justified democratically in a normative pluriverse.
The latest issue of Global Policy (Vol. 3, no. 3, September 2012) is out. Contents include:
Michael Zürn (Wissenschaftszentrum Berlin für Sozialforschung), André Nollkaemper (Universiteit van Amsterdam - Law), & Randy Peerenboom (La Trobe Univ. - Law) have published Rule of Law Dynamics in an Era of International and Transnational Governance (Cambridge Univ. Press 2012). Contents include:
