Au sein de la francophonie, le champ du droit international semble offrir beaucoup plus de résistance au développement d’un espace critique que dans le monde anglophone. Sauf exceptions, la critique francophone semble souvent s’y résumer à quelques chercheurs remettant en question le rôle du droit international dans la pérennisation des structures de domination, et d’autres, qui ont intégré la critique post-positiviste et poststructuraliste du droit international, mais qui peinent à faire une critique radicale de ses effets sur les structures de pouvoir politiques, économiques et culturelles. Plus important encore, ces voix dissidentes restent marginales et ont un impact limité sur les pratiques institutionnelles. Ce livre cherche à rompre avec cette situation en rassemblant des contributions d’une dizaine de jeunes auteurs oeuvrant de près ou de loin dans le droit international et qui s’interrogent sur les fondements d’une théorie critique dans ce champ. En plus de contributions proposant des analyses critiques à différentes problématiques propres au droit international, ce livre offre des réflexions sur ce qu’est une théorie critique, sur les fondements historiques, épistémologiques et méthodologiques de celle-ci, ainsi que sur les stratégies à adopter pour en assurer la diffusion à l’intérieur de la francophonie.
Saturday, June 15, 2013
Friday, June 14, 2013
The book offers a comparative perspective with regard to Turkey’s approach towards the International Criminal Court, and a critical analysis of the Turkish substantive criminal law in respect of the principle of complementarity. The first chapter of the book focuses on the Turkish membership issue to the ICC from the Turkish perspective as well as prospects for Turkey’s membership to the Court. The second chapter is a comparative analysis, which deals with the ICC crimes (genocide, crimes against humanity etc.) and the corresponding norms in the Turkish penal code with the assistance of classical legal interpretation and comparative law methods. The third chapter analyzes the issues stemming from the general principles of the Rome Statute’s criminal law, which calls for a review and comparison with their Turkish counterparts. The final chapter of the book shifts its focus from substance to form of legislation through comparing models for implementing international criminal law into municipal law.
International Maritime Security Law by James Kraska and Raul Pedrozo defines an emerging interdisciplinary field of law and policy comprised of norms, legal regimes, and rules to address today's hybrid threats to the global order of the oceans. Worldwide shipping commerce, fishing fleets, pleasure craft, and coastal states are exposed to the menace of offshore terrorism, weapons of mass destruction, piracy, smuggling, robbery, marine insurgency and anti-access threats. Land-based institutions and maritime constabulary forces operate within an increasingly integrated network that blends elements of humanitarian law, human rights law, criminal law, and law of the sea, with inspection regimes, commercial enterprise, and marine safety and environmental stewardship. The new authorities fuse together a global maritime partnership among states, international organizations and commercial interests to protect the maritime commons from the most dangerous risks and hazards.
- Glenn Mitoma & Kerry Bystrom, Introduction: Humanitarianism and Responsibility
- Emma Gilligan, Redefining Humanitarian Intervention: The Historical Challenge of R2P
- Ayça Çubukçu, The Responsibility to Protect: Libya and the Problem of Transnational Solidarity
- David P. Forsythe, On Contested Concepts: Humanitarianism, Human Rights, and the Notion of Neutrality
- Rebecca Walker, Taking a Back Seat: The Uses and Misuses of Space in a Context of War and Natural Disaster
- Alexandra Schultheis Moore, Témoignage and Responsibility in Photo/Graphic Narratives of Médecins Sans Frontières
- Shameem Black, Fictions of Humanitarian Responsibility: Narrating Microfinance
- Crystal A. Parikh, “Come Almost Home”: Human Rights and the Return of Minor Subjects
Van Dyke, Broder, Lee, & Paik: Governing Ocean Resources: New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park
This collective work of a renowned group of scholars, Governing Ocean Resources: New Challenges and Emerging Regimes, edited by Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jin-Hyun Paik, examines the current state of the Law of the Sea today, offers a variety of new approaches to the field, and serves as a tribute to the late Judge Choon-ho Park, whose profound depth of learning and indomitable spirit of optimism regarding the possibilities of reform and improvement comprised an immense contribution to the study of the Law of the Sea.
Thursday, June 13, 2013
This book offers a comprehensive analysis of the legal issues around intangible cultural heritage (also known as traditional cultural expressions or folklore). It explores both institutional and substantive responses the law offers to the safeguarding of intangible heritage, relying heavily on critiques internal and external to the law. These external critiques primarily come from the disciplines of anthropology and heritage studies.
Intangible cultural heritage is safeguarded on three different levels: international, regional, and national. At the international level, the foremost instrument is the specific UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003). At the regional level, initiatives are undertaken both in schemes of political and economic integration, a common thread being that intangible cultural heritage helps promote a common identity for the region, becoming thus a desirable aspect of the integration process. Domestically, responses range from strong constitutional forms of protection to rather weak policy initiatives aimed primarily at attracting foreign aid.
Intangible heritage can also be safeguarded via substantive law, and, in this respect, the book looks at the potential and pitfalls of human rights law, intellectual property tools, and contractual approaches. It investigates how the law works and ought to work towards protecting communities, defined as those from where intangible cultural heritage stems, and to whom benefits of its exploitation must return. The book takes the critiques from anthropological and heritage studies into account in order to posit a re-shaped law, offering tools that can be valuable to both scholars and practitioners when understanding how to safeguard intangible heritage.
The paper provides an overview of the current international legal framework against corruption. The first part sketches the genesis of the international legal framework regarding corruption. The second part outlines the main international anti-corruption instruments. Special attention is paid to the United Nations and OECD instruments. In addition, the Council of Europe’s monitoring mechanism, GRECO, some other regional instruments outside Europe, anti-corruption initiatives within international financial institutions, and the most important private initiatives are discussed. In the third part, specific challenges to the current global anti-corruption framework will be assessed: definitional problems, jurisdictional challenges as regards foreign corruption practices, asset recovery, the interface between corruption and good governance and that between corruption and human rights, as well as private sphere corruption. The concluding part lists a number of specific recommendations.
In recent years, G20 has emerged as a relatively new, yet influential actor on the world stage which brings together the leaders of the twenty systemically most important economies. Its informality and flexible character warrant the use of the term ‘Informal International Lawmaking’ with regard to this global network. ‘Informal International Lawmaking’ (or “IN-LAW”) comprises of networks of global cooperation that are distinct from ‘traditional’ international law as they display less formal characteristics; the actors are not necessarily diplomats or heads of state, the process is not necessarily structured by formal proceedings and the output is not (always) an internationally binding legal instrument. G20 displays many of these characteristics and, as a result, there are concerns as regards the legitimacy and accountability of the network as an actor in Global Governance. The authors argue that as G20 was never intended to produce international legally binding outcomes, its informality results in a setting where world leaders can discuss global issues without having to fear to be immediately bound by legal commitments. This does, however, not mean that we should disregard the concerns raised as regards the accountability and legitimacy of G20. The authors support the proposed initiatives to create a more structured dialogue between G20 and its Members (the internal stakeholders) and those excluded from the network (the external stakeholders).
- Elin Skaar & Eric Wiebelhaus-Brahm, Drivers of Justice after Violent Conflict: An Introduction
- Elin Skaar & Eric Wiebelhaus-Brahm, The Drivers of Transitional Justice: - An Analytical Framework for Assessing the Role of Actors
- Victor Igreja & Elin Skaar, A Conflict Does Not Rot: State and Civil Society Responses to Civil War Offences in Mozambique
- Are Knudsen & Sari Hanafi, Special Tribunal for Lebanon (STL): Impartial or Imposed International Justice?
- Aziz Hakimi & Astri Suhrke, A Poisonous Chalice: The Struggle for Human Rights and Accountability in Afghanistan
- Gunnar M Sørbø & Abdel Ghaffar M Ahmed, Justice by Default? - Dealing with Accountability Issues in Sudan
- Chandra Lekha Sriram, Spoilers of Justice
Wednesday, June 12, 2013
- Cees Flinterman, Vienna Declaration and Programme of Action: 20 Years Later
- Elina Steinerte, The Changing Nature of the Relationship between the United Nations Subcommittee on Prevention of Torture and National Preventive Mechanisms: In Search for Equilibrium
- Oswaldo R. Ruiz-Chiriboga, The American Convention and the Protocol of San Salvador: Two Intertwined Treaties. Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System
- Arne Vandenbogaerde, The Right to Development in International Human Rights Law: A Call for Its Dissolution
This book addresses conflicts involving different normative orders: What happens when international law prohibits behavior, but the same behavior is nonetheless morally justified or warranted? Can the actor concerned ignore international law under appeal to morality? Can soldiers escape legal liability by pointing to honor? Can accountants do so under reference to professional standards? How, in other words, does law relate to other normative orders? The assumption behind this book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. The novelty resides not so much in identifying conflicts, but in exploring if, when, and how different orders can be used intentionally. In doing so, the book covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards, and morality.
Call for Scholarly Papers
ASIL Research Forum
November 1-3, 2013
The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at the New York University School of Law on November 1-3, 2013.
The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Authors may only submit one proposal, although an author may be listed as a non-primary co-author on multiple proposals. Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted here by Friday, June 14.
Proposals should include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract. Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author. Abstracts containing identifying information will not be reviewed. The Research Forum Committee will announce selections by July 25.
The Research Forum Committee will organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum as a condition for participation. Failure to submit a draft paper may result in disqualification. Drafts will be posted on the Research Forum website.
Kristen Boon (Seton Hall)
Timothy Meyer (Georgia)
2013 Research Forum Co-chairs
The idea of cultural heritage as an 'international public good' can be traced back to the Preamble of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, according to which "damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind". How this idea of cultural heritage as a global public good can be reconciled with the effective enforcement of protection norms is the subject of this study. Bringing together world experts in protecting cultural heritage, Enforcing International Cultural Heritage Law examines the different ways that cultural heritage property can be protected, including protection at the international level, enforcement in domestic courts, and the role of alternative dispute resolution mechanisms.
The book is divided into three sections. The first section assesses international law and analyses the interaction between international and domestic norms of public and private law. It discusses the different methods of international enforcement, the role of international and mixed criminal tribunals and courts, and the means for protecting cultural heritage in times of armed conflict. The second section addresses the role of national courts, discussing such topics as: barriers to domestic enforcement of international norms, the refusal to enforce foreign law, the difficulty of territorial boundaries in relation to underwater heritage, and the application of criminal sanctions by domestic courts. The final section of the book surveys alternatives to the legal enforcement of the norms protecting cultural heritage, including arbitration, soft law, and diplomacy.
- Laurence Boisson de Chazournes, Relationships and Interfaces between Regional and Universal Organizations: Room for New Developments
- Machiko Kanetake, The Interfaces between the National and International Rule of Law: The Case of UN Targeted Sanctions
- Matthieu Waechter, Due Process Rights at the United Nations: Fairness and Effectiveness in Internal Investigations
- Gino J Naldi & Konstantinos D. Magliveras, The African Court of Justice and Human Rights: A Judicial Curate’s Egg
- Stephen Bouwhuis, The International Law Commission’s Definition of International Organizations
- Faith Kamau & Marieclaire Colaiacomo, Financing for Development: Examining the Concept of Resource Mobilization for International Organizations, a case study of the International Fund for Agricultural Development (IFAD)
Tuesday, June 11, 2013
Comprehensively analyses the key role subsequent practice plays in the dynamic interpretation of international treaties Includes contributions by leading international lawyers addressing both practical cases and more theoretical assessments Includes two previously unpublished reports from the International Law Commission's 'Treaties over Time' study group Under the relevant rules of international law, treaties are interpreted in accordance with the ordinary meaning of the language they use, their object and purpose, and the intention of the drafters, but also in light of the subsequent practice of its parties. This subsequent practice can shed light on articles whose meaning is ambiguous and subsequent agreement can even alter the meaning of treaty provisions. At a time when many of the most important international treaties are more than fifty years old, subsequent practice plays an increasingly important role in their interpretation.
Treaties and Subsequent Practice discusses the role and relevance of this subsequent practice in the process of dynamic treaty interpretation. The book provides a comprehensive treatment of this topic by eminent commentators, combining contributions which focus on practical cases with chapters examining the theoretical underpinnings of treaty interpretation. The concept of subsequent practice is situated in the more general context of treaty law and international law, looking at different cases and doctrinal questions to assess its policy dimensions. The book addresses the question of whether subsequent practice plays a more or less significant role in different areas of international law, and whether it can be employed as a partial substitute for formal treaty amendments. It also includes two previously unpublished reports issued by the International Law Commission's Study Group on this topic.
- JHHW, Human Rights: Member State, EU and ECHR Levels of Protection; P.S. Catalonia; Why Does it Take So Long for my Article to Be Published?; In this Issue: Human Rights: Member State, EU and ECHR Levels of Protection
- Christopher McCrudden & Brendan O’Leary, Courts and Consociations, or How Human Rights Courts May De-stabilize Power-sharing Settlements
- Boris Rigod, The Purpose of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)
- Anne Peters, Realizing Utopia as a Scholarly Endeavour
- New Voices: A Selection from the Inaugural Annual Junior Faculty Forum for International Law
- Dino Kritsiotis, Anne Orford, & JHH Weiler, On the Annual Junior Faculty Forum for International Law
- Christopher N. Warren, John Milton and the Epochs of International Law
- Evan J. Criddle, Humanitarian Financial Intervention
- Martins Paparinskis, Investment Treaty Arbitration and the (New) Law of State Responsibility
- Critical Review of International Jurisprudence
- Aldo Zammit Borda, A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Courts and Tribunals
- Roaming Charges: The Backview: New York and Singapore
- EJIL: Debate!
- Emmanuelle Tourme-Jouannet, The International Law of Recognition
- Jean d’Aspremont, The International Law of Recognition: A Reply to Emmanuelle Tourme-Jouannet
- Emmanuelle Tourme-Jouannet, The International Law of Recognition: A Rejoinder to Jean D’Aspremont
- Aniruddha Rajput, Defining “Investment” – A Developmental Perspective
- V. Inbavijayan & Kirthi Jayakumar, Arbitration and Investments – Initial Focus
- Aravamudhan Ulaganathan Ravindran, International Investment Law and Developing Economies: The Good, Bad and Comme Ci, Comme Ça
- Murtada Bulbul, Swineherders
- Sharon Sliwinski, The Storyteller: Observations on Murtada Bulbul's "Swineherders"
- Sharon Sliwinski, Swineherders: An Interview with Murtada Bulbul
- Zerrin Özlem Biner & Sharika Thiranagama, Preface to Dossier on Rethinking Post-Conflict Resolution
- Jill Stauffer, Speaking Truth to Reconciliation: Political Transition, Recovery, and the Work of Time
- Mariane C. Ferme, “Archetypes of Humanitarian Discourse”: Child Soldiers, Forced Marriage, and the Framing of Communities in Post-Conflict Sierra Leone
- Zerrin Özlem Biner, The Logic of Reconciliation: Between the Right to Compensation and the Right to Justice in Turkey
- Sharika Thiranagama, Claiming the State: Postwar Reconciliation in Sri Lanka
- John E. Drabinski, Reconciliation and Founding Wounds
- Diana Allan, Commemorative Economies and the Politics of Solidarity in Shatila Camp
- Isaias Rojas-Perez, Inhabiting Unfinished Pasts: Law, Transitional Justice, and Mourning in Postwar Peru
- John E. Drabinski, “That Gesture of Recognition”: An Interview with Salomón Lerner Febres
Monday, June 10, 2013
Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.
Marochkin & Khalafyan: The Norms of International Soft Law in the Legal System of the Russian Federation
The norms of international “soft law” (ISL) have explicitly gained a certain importance in the legal system of the Russian Federation. Although soft law does not have legal force, its norms have become widespread within the framework of domestic jurisdiction. The present article reflects the outcome of the holistic legal analysis of the impact of ISL as a regulatory instrument on different component parts of the domestic legal system, such as positive law, law-enforcement practice, legal theory, legal consciousness of non-state actors. A conclusion has been formulated about the development of a definite tendency that the international component part of the Russian legal system is not only limited to “the universally-recognized norms of international law and international treaties and agreements”, as it is stated in part 4 of article 15 of the Constitution of the Russian Federation. An increasingly important role is played by international norms of a non-legal nature. This appears outstanding in view of the peculiarities of “soft law”.
- Rogério de Souza Farias, Mr GATT: Eric Wyndham White and the quest for trade liberalization
- Manfred Elsig, The democratizing effects of multilateral organizations: a cautionary note on the WTO
- Petros C. Mavroidis, Driftin’ too far from shore – Why the test for compliance with the TBT Agreement developed by the WTO Appellate Body is wrong, and what should the AB have done instead
- Tim Josling & Klaus Mittenzwei, Transparency and timeliness: the monitoring of agricultural policies in the WTO using OECD data
- Amélie Guillin, Assessment of tariff equivalents for services considering the zero flows
- Marc Auboin & Michele Ruta, The relationship between exchange rates and international trade: a literature review
Taking into account the alleged limited normative substance of economic, social, and cultural rights; this chapter seeks to revisit the theoretical explanation for the disconnect between international criminal law and economic, social, and cultural rights. It addresses the following questions: Does the special character of socio-economic and cultural human rights render them less easily reconcilable with the strict mens rea requirements that pervade international criminal law, or are socio-economic and cultural human rights less susceptible to international criminalization for another reason? Does the overall non-criminalization of violations of cultural and socio-economic rights, in fact, display a hidden sense of hierarchy, despite the lofty promises of Vienna 1993? In grappling with these questions, this chapter explores concrete examples and case scenarios in which international crimes prosecution could have a socio-economic or cultural dimension. This exercise will also identify limits of the current international crimes catalogue in respect of redressing second generation rights. The chapter concludes with some thoughts on the instrumentality of international criminal justice as a means to protect economic, social, and cultural rights.
This essay, forthcoming in the NYU Journal of International Law and Politics, is adapted from the inaugural Robert A. Kindler Professorship of Law lecture at NYU School of Law. It develops an economic perspective on the utility of international law, identifying the reasons why international law is sometimes successful at orchestrating international cooperation and sometimes unsuccessful. It considers two general accounts of the gains from international cooperation, including the control of trans-national externalities and domestic commitment issues. It argues that international law is more likely to be successful when the gains from cooperation are symmetrical and reciprocal, which facilitates the creation of self-enforcing agreements. Examples of successful and unsuccessful cooperation are developed from various fields of international law, including international trade, the laws of war, immigration, human rights, and international investment law.
Gerrard & Wannier: Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate
Rising seas are endangering the habitability and very existence of several small island nations, mostly in the Pacific and Indian oceans. This is the first book to focus on the myriad legal issues posed by this tragic situation: if a nation is under water, is it still a state? Does it still have a seat at the United Nations? What becomes of its exclusive economic zone, the basis for its fishing rights? What obligations do other nations have to take in the displaced populations, and what are these peoples' rights and legal status once they arrive? Should there be a new international agreement on climate-displaced populations? Do these nations and their citizens have any legal recourse for compensation? Are there any courts that will hear their claims, and based on what theories? Leading legal scholars from around the world address these novel questions and propose answers.
Sunday, June 9, 2013
Nadakavukaren Schefer: Poverty and the International Economic Legal System: Duties to the World's Poor
With a focus on how trade, foreign investment, commercial arbitration and financial regulation rules affect impoverished individuals, Poverty and the International Economic Legal System examines the relationship between the legal rules of the international economic law system and states' obligations to reduce poverty. The contributors include leading practitioners, practice-oriented scholars and legal theorists, who discuss the human aspects of global economic activity without resorting to either overly dogmatic human rights approaches or technocratic economic views. The essays extend beyond development discussions by encouraging further efforts to study, improve and develop legal mechanisms for the benefit of the world's poor and challenging traditionally de-personified legal areas to engage with their real-world impacts.