New Volume: South African Yearbook of International Law

The latest volume of the South African Yearbook of International Law (Vol. 36, 2011) is out. Contents include:

• Miguel Galvao Teles, State succession and treaty survival between the predecessor state and the other state party
• Arpita Gupta, Constitutional pluralism, a recent trend in international constitutional law : European origins and the third world concerns
• Annet Wanyana Oguttu, Developing South Africa as a gateway for foreign investment in Africa : a critique of South Africa's headquarter company regime
• Arnold N. Pronto, An introduction to the articles on the responsibility of international organisations
• Rebecca M.M. Wallace & Fraser A.W. Janeczko, The 2011 EU Directive on Combating Human Trafficking : does the United Kingdom comply?

Chander: The Electronic Silk Road: How the Web Binds the World Together in Commerce

Anupam Chander (Univ. of California, Davis - Law) has published The Electronic Silk Road: How the Web Binds the World Together in Commerce (Yale Univ. Press 2013). Here's the abstract:

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world? In this accessible book, cyber-law expert Anupam Chander provides the first thorough discussion of the law that relates to global Internet commerce. Addressing up-to-the-minute examples, such as Google’s struggles with China, the Pirate Bay’s skirmishes with Hollywood, and the outsourcing of services to India, the author insightfully analyzes the difficulties of regulating Internet trade. Chander then lays out a framework for future policies, showing how countries can dismantle barriers while still protecting consumer interests.

Boas: What is International Criminal Justice

Gideon John Boas (Monash Univ. - Law) has posted What is International Criminal Justice (in International Criminal Justice: Legitimacy and Coherence, Gideon Boas, William A. Schabas & Michael P. Scharf eds., 2012). Here's the abstract:

What is understood by the phrase 'international criminal justice' is surprisingly difficult to articulate comprehensively. At a fundamental level, it describes the response of the international community – and other communities to mass atrocity. This seems to be a broadly accepted definition. How we respond to war, to the rupture of society and to systematised murder and persecution, is at the heart of the issue. What forms of transitional justice are attempted and how their goals are achieved, or at least attempted, are all importance responses. But international criminal justice is about more than responses. How do we learn from history, or sometimes fail to do so? Can we use our understanding of human psychology to respond better to mass atrocity, or to prevent or address it sooner? What of the sociological elements that are infused in our response to heinous international crimes; how do these affect our understanding and practice of international criminal justice? This chapter explores some different perspectives and disciplinary approaches to this complex area, including political, historical and sociological perspectives.

Thurnher: Examining Autonomous Weapon Systems from a Law of Armed Conflict Perspective

Jeffrey S. Thurnher (Naval War College - Law) has posted Examining Autonomous Weapon Systems from a Law of Armed Conflict Perspective (in New Technologies and the Law of Armed Conflict, Hitoshi Nasu & Robert McLaughlin eds., forthcoming). Here's the abstract:

This chapter explores the legal implications of autonomous weapon systems and the potential challenges such systems might present to the laws governing weaponry and the conduct of hostilities. Autonomous weapon systems are weapons that are capable of selecting and engaging a target without further human operator involvement. Although such systems have not yet been fully developed, technological advances, particularly in artificial intelligence, make the appearance of such systems a distinct possibility in the years to come. In fact, several experts predict autonomous weapons will become the norm on the battlefield within twenty years. Given such a possibility, it is essential to look closely at both the relevant technology involved in these cutting-edge systems and the applicable law. This chapter commences with an examination of the emerging technology supporting these sophisticated systems, by detailing autonomous features that are currently being designed for weapons and anticipating how technological advances might be incorporated into future weapon systems. A second aim of the chapter is to describe the relevant law of armed conflict principles applicable to new weapon systems, with a particular focus on the unique legal challenges posed by autonomous weapons. The legal analysis will outline both how autonomous weapon systems would need to be designed for them to be deemed lawful per se, and whether the use of autonomous weapons during hostilities might be prohibited in some manner under the law of armed conflict. The third and final focus of this chapter is to address potential lacunae in the law dealing with autonomous weapon systems. In particular, the author will reveal how interpretations of and issues related to subjectivity in targeting decisions and overall accountability may need to be viewed differently in response to autonomy.

New Issue: Polish Review of International and European Law

The latest issue of the Polish Review of International and European Law (Vol. 1, nos. 3-4, 2012) is out. Contents include:

• Articles
• Bożena Gronowska, Finality of Judgement in the Context of the Revision provided for by the Rules of the European Court of Human Rights
• Agnieszka Różalska-Kucal, Intra-EU BITs - are They Really Still Necessary? The Best Award of the Year 2012 and Professor Emmanuel Gaillard Say "Yes"
• Piotr Mostowik, Elena Judova, Should We Stay or Should We Go in? Advantages of Enhanced Cooperation Aimed to Unification of Conflict of Laws Rules in Divorce and Separation Matters
• Symposium on Maritime Piracy in International Law
• Konrad Marciniak, International Law on Piracy and Some Current Challenges Related to Its Definition from International Law Perspective
• Leonard Łukaszuk, Combating Maritime Piracy within the Asia and Pacific Region. Selected Issues
• Case Comments
Marcin Menkes, Sovereign Immunity and the ICJ's Ruling in Ferrini

Chander: Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy

Anupam Chander (Univ. of California, Davis - Law) has posted Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy (American Journal of International Law, forthcoming). Here's the abstract:

Kiobel v. Royal Dutch Petroleum disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This is because application of the Alien Tort Statute, as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

The argument proceeds as follows. First, this paper shows that American corporations are, for practical purposes, still bound by human rights law, enforceable in U.S. courts. Second, it demonstrates that foreign corporations, however, are largely freed by Kiobel from similar obligations enforceable in U.S. courts. After describing this differential treatment and why it matters, the paper concludes by delineating possible ways to resolve Kiobel’s asymmetrical effects. Perhaps most promisingly, Congress could level the playing field by declaring the Alien Tort Statute to have extraterritorial effect, against foreign and domestic concern alike.

Call for Papers: International Human Rights Fact-Finding in the Twenty-First Century

The Center for Human Rights and Global Justice at New York University School of Law has issued a call for papers for a conference on "International Human Rights Fact-Finding in the Twenty-First Century," to take place November 1-2, 2013, in New York. Here's the call:

INTERNATIONAL HUMAN RIGHTS FACT-FINDING IN THE TWENTY-FIRST CENTURY

New York University School of Law

November 1-2, 2013

Conference Announcement, Invitation, and Call for Papers

The Center for Human Rights and Global Justice (New York University School of Law) is pleased to announce a major global conference on International Human Rights Fact-Finding in the Twenty-First Century, to be held in New York on November 1-2, 2013. This conference will bring together leading practitioners and scholars to facilitate a critical and constructive discussion about the key challenges and opportunities in international fact-finding, a subject that is fundamental to human rights, but has thus far received far too little scholarly attention or critical analysis.

Confirmed Speakers

Philip Alston (NYU), Jay Aronson (Carnegie Mellon University), M. Cherif Bassiouni (DePaul University; Istituto Superiore Internazionale di Scienze Criminali), Theo Boutruche (REDRESS), Claude Bruderlein (Harvard University), Elora Chowdhury (University of Massachusetts), Rob Grace (Harvard University), Sam Gregory (WITNESS), Thomas Hammarberg (EU Special Representative to Georgia), Sarah Knuckey (NYU), Molly Land (New York Law School), Joanne Mariner (Amnesty International), Frédéric Mégret (McGill University), Obiora Okafor (Osgoode Hall Law School), Diane Orentlicher (American University), Steve Ratner (University of Michigan), Brian Root (Human Rights Watch), Ken Roth (Human Rights Watch), Margaret Satterthwaite (NYU), Alex Vitale (Brooklyn College), Alex Whiting (International Criminal Court), Susan Wolfinbarger (AAAS).

Additional speakers will be announced in the coming months.

Conference Panels and Call for Papers

The confirmed speakers will present new scholarship on the following key issues in human rights fact-finding. We also invite submissions of additional paper proposals on these key issues:

* Politics and imperialism: In what ways can human rights fact-finding enact or further imperialism, support injustice hierarchies, and be wielded as a political tool? Which of the methods, principles, and aims of fact-finding are most problematic? What could a non-imperial or non-elitist fact-finding mission look like?

* Victims and witnesses: What is the role of witness evidence in fact-finding? How is testimony obtained, how is it used to construct human rights narratives, and what problems result? To what extent is fact-finding extractive? How can the need for objective and independent investigations be balanced with the interests and rights of witnesses and victims, particularly around autonomy, security, consent, and re-traumatization? How successful are recent efforts to democratize fact-finding, empower victims, and/or improve the gathering of reliable testimony?

* Enforcement mechanisms and litigation: What is the relationship between fact-finding, enforcement mechanisms, and litigation? How can the differing goals and mandates of various fact-finders, as well as institutional competition and siloing, fragment information or undermine accountability? What fact-finding practices can best contribute to effective complementarity, information-sharing, and respect for the rights of alleged victims and perpetrators?

* Interdisciplinary expertise and methodologies: How are social science methods influencing the way human rights fact-finders acquire and synthesize information? How have human rights practitioners responded to the methodological critiques and techniques being brought to bear on human rights fact-finding from other disciplines? How do such methods enable the field to better—or differently—see or provide human rights abuses? Do such changes come at a cost?

* Social media, crowd-sourcing, big data: How is the human rights field using new technologies in factfinding? How is this expanding available information on abuses, democratizing fact-finding, and/or what concerns do new technologies pose for efficacy, utility, accuracy, reliability, safety and ethics?

* International fact-finding guidelines: Is there a need for guidelines or international norms for factfinding? Why does the field resist standardization in this area? Are guidelines possible that would not be too bureaucratic, stifling, incompatible with grassroots efforts, or too general to be useful?

Conference Registration and Paper Proposal Submission

The conference is open to all academics, students, practitioners, and the general public, but space is limited. To register to attend, please email: Veerle Opgenhaffen (Executive Director, Center for Human Rights and Global Justice) at opgenhaffen@exchange.law.nyu.edu. Please include your name, email address, and affiliation.

To propose a paper for presentation at the conference, please submit an abstract of no more than 500 words to Sarah Knuckey (Director, Initiative on Human Rights Fact-Finding, Center for Human Rights and Global Justice) at sarah.knuckey@nyu.edu by August 15, 2013. Accepted papers will be published in a volume of essays, to be edited by Philip Alston and Sarah Knuckey. Presenter conference travel and accommodation costs will be covered by the Center for Human Rights and Global Justice.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 53, no. 3, Summer 2013) is out. Contents include:

• S.I. Strong, Beyond the Self-Execution Analysis: Rationalizing Constitutional, Treaty, and Statutory Interpretation in International Commercial Arbitration
• Galit A. Sarfaty, Regulating Through Numbers: A Case Study of Corporate Sustainability Reporting
• Sungjoon Cho & Claire R. Kelly, Are World Trading Rules Passé?
• Kevin L. Cope, The Intermestic Constitution: Lessons from the World’s Newest Nation

Pollack: A Truce in the Transatlantic Food Fight: The United States, the European Union, and Genetically Modified Foods in the Obama Years

Mark A. Pollack (Temple Univ. - Political Science) has posted A Truce in the Transatlantic Food Fight: The United States, the European Union, and Genetically Modified Foods in the Obama Years. Here's the abstract:

The transatlantic dispute over the regulation of genetically modified (GM) foods and crops has for more than two decades been one of the most intractable conflicts dividing the United States (US) and the European Union (EU). The eight years of the George W. Bush Administration witnessed the high-water mark of conflict over GM foods, culminating in the US filing of a case against the EU at the World Trade Organization (WTO) in 2003, the WTO’s subsequent finding in favor of the US in 2006, and the EU’s apparent failure to comply with the ruling by the end of 2008 due to deep-seated opposition among EU member states and their publics. Despite hopes that US and EU policies might converge over time, the US and the EU in January 2009 seemed as far apart as ever on the regulation of GM foods, which threatened to become a flashpoint in the transatlantic relationship during the presidency of Barack Obama.

This paper examines the record of US and EU policies on GM foods during the Obama years, to determine whether policy convergence has taken place, to understand the nature of EU/US cooperation and conflict, and to ascertain the degree of continuity or change from the Bush to the Obama years. The evidence from the period since 2009 suggests substantial continuity in both US and EU policies, which remain deeply entrenched, as well as in the two sides’ joint efforts to manage cooperatively the resulting frictions. In the US, NGO hopes and industry fears of more restrictive GMO regulation under Obama have not come to pass, with regulators continuing to implement the same permissive regulations as the Bush administration, even in the face of increasingly skeptical public opinion and initiatives to require mandatory labeling. In the EU, the Commission has continued its effort to speed up the approval new GM varieties in the face of member-state opposition, but both the EU’s strict regulations and strong public opposition toward GMOs remain entrenched. Regulatory polarization on this issue is therefore likely to remain robust for the foreseeable future, with only minor, path-dependent changes in the absence of any major exogenous shock.

Given this persistent gulf between US and EU policies, prospects for a definitive solution to the GMO dispute seem dim – yet neither have the two sides descended into a transatlantic trade war. Instead, the US under Obama has continued with the broad lines of the approach established during the final years of the Bush administration, threatening retaliation for EU non-compliance in order to keep the pressure on the EU, while working with the Commission to promote the approval of new GM varieties and the adoption of policies important to US industry and farmers. This combination of deeply entrenched, change-resistant domestic policies within the US and the EU, together with a pragmatic willingness of both sides to work together to minimize the disruptive effects of persistent regulatory differences, has yielded, not a settlement, but an apparently lasting truce, in the transatlantic “food fight.”

Tzanakopoulos: Domestic Judicial Law-Making

Antonios Tzanakopoulos (Univ. of Oxford - Law) has posted Domestic Judicial Law-Making (in Research Handbook on the Theory and Practice of International Law-Making, Catherine Brölmann & Yannick Radi eds., forthcoming). Here's the abstract:

This contribution to the Research Handbook on the Theory and Practice of International Law-Making discusses the law-making potential of domestic courts. Given the seemingly strict 'dualist' approach of international law to domestic law and domestic court decisions ('merely facts'), the paper demonstrates the modest international law-developing function of domestic courts: it first details their methods in engaging international law, and then discusses the impact of such engagement. It concludes that domestic courts may, in terms of content, fine-tune rules of international law rather than set grand principles. In terms of process, this is done by 'suggesting' the fine-tuning, rather than in any way single-handedly developing international law.