Saturday, August 24, 2013
Becker: Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion
Friday, August 23, 2013
- Yoshiki Yamagata, Jue Yang, & Joseph Galaskiewicz, A contingency theory of policy innovation: how different theories explain the ratification of the UNFCCC and Kyoto Protocol
- Gurdial Singh Nijar, The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges
- Paul G. Harris, Alice S. Y. Chow, & Rasmus Karlsson, China and climate justice: moving beyond statism
- Qing Pei, Lanlan Liu, & David D. Zhang, Carbon emission right as a new property right: rescue CDM developers in China from 2012
- Itay Fischhendler & David Katz, The use of “security” jargon in sustainable development discourse: evidence from UN Commission on Sustainable Development
- Jürg Vollenweider, The effectiveness of international environmental agreements
- René Audet, Climate justice and bargaining coalitions: a discourse analysis
- Leo Wangler, Juan-Carlos Altamirano-Cabrera, & Hans-Peter Weikard, The political economy of international environmental agreements: a survey
Akandji-Kombé: L’homme dans la société internationale : Mélanges en hommage au Professeur Paul Tavernier
Tourme-Jouannet: What is a Fair International Society? International Law Between Development and Recognition
Today's world is post-colonial and post-Cold War. These twin characteristics explain why international society is also riddled with the two major forms of injustice which Nancy Fraser identified as afflicting national societies. First, the economic and social disparities between states caused outcry in the 1950s when the first steps were taken towards decolonisation. These inequalities, to which a number of emerging states now contribute, are still glaring and still pose the problem of the gap between formal equality and true equality. Second, international society is increasingly confronted with culture- and identity-related claims, stretching the dividing line between equality and difference. The less-favoured states, those that feel stigmatised, but also native peoples, ethnic groups, minorities and women now aspire to both legal recognition of their equal dignity and the protection of their identities and cultures. Some even seek reparation for injustices arising from the past violation of their identities and the confiscation of their property or land.
In answer to these two forms of claim, the subjects of international society have come up with two types of remedy encapsulated in legal rules: the law of development and the law of recognition. These two sets of rights are neither wholly autonomous and individualised branches of law nor formalised sets of rules. They are imperfect and have their dark side. Yet they can be seen as the first milestones towards what might become a fairer international society; one that is both equitable (as an answer to socio-economic injustice) and decent (as an answer to cultural injustice).
This book explores this evolution in international society, setting it in historical perspective and examining its presuppositions and implications.
Call for papers – Nov. 22 Human Rights Interest Group Paper Workshop
The ASIL Human Rights Interest Group is holding our first paper workshop on Friday, November 22, 2013, at UC Berkeley School of Law. The workshop will be a daylong event with an informal conference dinner in the evening.
If you have a work in progress that you would like to present, please send a short abstract to interest group co-chairs Robert Blitt (firstname.lastname@example.org) and Saira Mohamed (email@example.com) by Monday, September 9. Please also include a sentence about the stage you expect the paper will be in by November (e.g., reasonably complete draft, incomplete draft, etc.). Paper presenters will be asked to circulate their drafts to workshop attendees no later than November 8.
If you are interested in serving as a commentator for a paper, please send us an email by September 9. Commentators will be asked to prepare 5-8 minutes of comments on one of the papers.
Participants who are not ASIL members will be required to pay a $75 registration fee (includes workshop and meals).
We look forward to seeing many of you on November 22 at Berkeley Law.
Job Opening: PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (Researcher in International Trade Law)
This essay – a contribution to a workshop organized to assess Martti Koskenniemi’s scholarship – focuses principally on Koskenniemi’s work as a member of the International Law Commission (ILC) from 2002 to 2006, and in particular his chairmanship of an ILC study group. Unlike Koskenniemi’s scholarship, which is solely his own or perhaps his in conjunction with a co-author, the ILC study group report on "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report)," and the 42 associated conclusions, were a group effort, though it is well-understood that Koskenniemi was the driving force in writing, editing, and finalizing them. In considering Koskenniemi’s scholarly contributions to the field of international law, I think it reasonable to take into account this Report, especially since part of my interest lies in assessing the Report in relationship to Koskenniemi’s scholarship.
In briefly “deconstructing” the Report, the essay examines three different vantage points. First, is the Report mostly a scholarly think-piece that will sit on the jurisprudential shelf in the library – a self-contained intellectual regime of a sort? Or is the Report useful for the practical lawyer toiling in the field of international law, one that will prove illuminating for emerging areas of international law in the years to come? Second, how does the Report relate to Koskenniemi’s own scholarship; might the Report be viewed as a confirmation or extension of that scholarship, or – more provocatively – a betrayal of it? Third, will the Report have “legs” in helping point the direction for future work by the ILC and other comparable institutions? Does it suggest new ways of thinking about codification and progressive development of international law?
Thursday, August 22, 2013
- Mary Robinson, Climate Change post Durban
- Paul Govind, A Reorientation of Climate Justice—Capability Justice and Climate Change Adaptation
- Fanny Thornton, Compensatory Justice for Climate Change Displacees under International Law: Fault-Based and No-Fault Approaches
- David Browne, Causation and Damages in Climate Litigation: Evaluating the Role of Human Rights Law
- Shorter Articles and Notes
- Darren O’Donovan, The Diplomatic Disputes between the Holy See and the Irish State 2009-2012: A Legal Analysis
- In Memoriam: Kevin Boyle
- Marie McGonagle, Kevin Boyle—An Appreciation of His Work on Freedom of Expression
- Tom Hadden, Working with Kevin—A Personal Reminiscence
Conference: Encontro Latino Americano de Direito Internacional / Encuentro Latinoamericano de Derecho Internacional / Latin American Meeting of International Law
It is often argued that international financial regulation has been substantially strengthened over the past decades through the international harmonization of financial regulation. There are, however, still frequent outbreaks of painful financial crises, including the recent 2008 global financial crisis. This raises doubts about the conventional claims of the strengthening of international financial regulation.
This book provides an in-depth political economy study of the adoptions in Japan, Korea and Taiwan of the 1988 Basel Capital Accord, the now so-called Basel I, which has been at the center of international banking regulation over the past three decades, highlighting the domestic politics surrounding it. The book illustrates that, despite banks’ formal compliance with the Accord in these countries, their compliance was often cosmetic due to extensive regulatory forbearance that allowed their real capital soundness to weaken. Domestic politics thus ultimately determined national implementations of the Accord. This book provides its novel innovative study of the Accord through scores of interviews with bank regulators and analysis of various primary documents. It suggests that the actual effectiveness of international financial regulation relies ultimately on the domestic politics surrounding it. It implies as well that the past trend of international harmonization of financial regulation may be illusory, to at least some extent, in terms of its actual effectiveness.
- The "Manifest Disregard of Law" Doctrine and International Arbitration in New York: Report by the Committee on International Commercial Disputes of the Association of the Bar of the City of New York
- Troy L. Harris, Customary International Arbitration Law
- Lucas Bento, Time to Join the "BIT Club"? Promoting and Protecting Brazilian Investments Abroad
At a time when multilateral trade negotiations are failing, the World Trade Organization’s Dispute Settlement Understanding (DSU) is widely seen as the paragon of legalized dispute settlement and is thought to play a key role in liberalizing world trade. We ask a simple empirical question with important theoretical implications: do WTO disputes increase trade? We systematically analyze the effects of WTO disputes on a country’s imports at the product level.
We find that WTO disputes do not, on average, increase a country’s imports of the products at issue. We find only very specific effects of disputes based on the dispute outcome and issue-area. We find significant variation across countries in their responsiveness to disputes, yet that most common explanations cannot account for this variation. This article highlights and begins to fill a significant gap in our understanding of the purpose of the WTO and its effects on trade.
- Helene Lambert, The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence
- Reuven (Ruvi) Ziegler, Protecting Recognized Geneva Convention Refugees outside their States of Asylum
- Maarten Den Heijer, Reflections on Refoulement and Collective Expulsion in the Hirsi Case
- Robert Gibb & Anthony Good, Do the Facts Speak for Themselves? Country of Origin Information in French and British Refugee Status Determination Procedures
- Roundtable Discussion with the IARLJ, the ECtHR and the CJEU on Leading Asylum Cases
- Dean Spielmann, Welcome Address
- Hugo Storey, Briefing Note for Participants
- Nicholas Blake, Luxembourg, Strasbourg and the National Court: the Emergence of a Country Guidance System for Refugee and Human Rights Protection
- Harald Dörig, Germany: The Handling of Leading Asylum Cases by National Courts
- Boštjan Zalar, Comments on the Court of Justice of the EU’s Developing Case Law on Asylum
- Ledi Bianku, Roundtable Discussion with the IARLJ, the CJEU and the ECtHR on Leading Asylum Cases
- Volker Türk, Summary of Introductory Remarks
- Jean-Marc Sauvé, Introduction to the Concluding Session of the Roundtable
Wednesday, August 21, 2013
- Mary Dowell-Jones, Financial Institutions and Human Rights
- Stijn Smet, Conflicts between Absolute Rights: A Reply to Steven Greer
- Gina Bekker, The African Commission on Human and Peoples’ Rights and Remedies for Human Rights Violations
- Virginia Mantouvalou, Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation
- Recent Developments
- Catherine Shanahan Renshaw, The ASEAN Human Rights Declaration 2012
- Megan Pearson, Article 9 at a Crossroads: Interference Before and After Eweida
- Sven J. R. Bostyn, Patentability of Plants: At the Crossroads between Monopolizing Nature and Protecting Technological Innovation?
- Morten Walløe Tvedt & Ane E. Jørem, Bioprospecting in the High Seas: Regulatory Options for Benefit Sharing
- Christoph Laub, On Legal Validity: Using the Work of Patent Courts for Quality Management: The Statistical Reutilization of Patent Court Appeal Decisions
- Stewart Nyakotyo, The Protection of Geographical Indications in Zimbabwe: An Overview of the Relevant Legislation, Institutional Framework and Mechanisms
Liberal World Order is seen by many as either a fading international order in response to declining American hegemony, or as a failing international order riddled with internal tensions and contradictions. Either way, liberal world order is assumed to be in crisis. The contributors to Liberal World Orders do not reject the argument that liberal order is in crisis. Instead they contend that the crisis is primarily one of authority. This has been compounded by the relative lack of historical context supplied by liberal theorists of 'the international'. By not looking further than the 20th century, the field has ignored moments when similar tensions and contradictions have been evident. The authors question the way in which the debate about liberalism has been conducted. Against the theoreticians it is proposed that liberalism has suffered from being too closely tied to the quest for scientific authenticity, resulting in a theoretical perspective with little or no commitment to political values and political vision. By reformulating the classical liberalism of Kant, Paine, and Mill into neo-liberalism, liberalism lost its critical and normative potential. Against the policy-makers it is proposed that the practices of liberal ordering are resilient enough to prove durable despite the relative decline in the power and authority of liberal states. Just as cooperative practices between states predated liberalism, aspects of world order today which evolved during the high point of liberal internationalism may succeed in outliving liberalism.
The starting point of this chapter is that investment law partly borrows and partly diverges from pre-existing regimes of international law, and an interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures. Since investment law may be viewed as a normative progeny of multiple regimes of international law, the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law. The argument will be made in three steps. First, in order to situate investment protection law within the broader international legal order, one might draw upon multiple legal techniques from established legal regimes. The models of direct rights, beneficiary rights, and agency will be suggested as the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection (section II). A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law. The second step of the argument will apply the different perspectives identified earlier to aspects of interpretation and law-making in investment protection law (section III). Thirdly, certain elements of the law of State responsibility will be considered, again from the three different perspectives identified before (section IV). The concluding section will briefly and tentatively suggest further scope for operation of analogy, particularly regarding the imposition of obligations on investors. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.
To date, all situations where investigations before the ICC have been formally opened since its effective establishment in 2002 originate in the African continent, and also the ICC’s first conviction as well as its first acquittal concerned African nationals. This led to criticism of the ICC as an 'African Criminal Court', criticism which came to a head when an arrest warrant was issued against Sudan’s sitting President Omar al-Bashir. The paper analyses the – not uniform – position of African States towards the ICC and explains the legal and factual reasons which explain the Court’s focus on Africa. It nevertheless argues that the Court must expand its focus beyond the African continent in order to gain broader legitimacy and dispel existing African concerns.
Tuesday, August 20, 2013
Jodoin & Cordonier Segger: Sustainable Development, International Criminal Justice, and Treaty Implementation
Sustainable Development, International Criminal Justice, and Treaty Implementation provides a serious and timely perspective on the relationship between two important and dynamic fields of international law. Comprising chapters written by leading academics and international lawyers, this book examines how the principles and practices of international criminal law and sustainable development can contribute to one another's elaboration, interpretation and implementation. Chapters in the book discuss the potential and limitations of international criminalization as a means for protecting the basic foundations of sustainable development; the role of existing international crimes in penalizing serious forms of economic, social, environmental and cultural harm; the indirect linkages that have developed between sustainable development and various mechanisms of criminal accountability and redress; and innovative proposals to broaden the scope of international criminal justice. With its rigorous and innovative arguments, this book forms a unique and urgent contribution to current debates on the future of global justice and sustainability.
- Dimitrios Giannoulopoulos, Custodial Legal Assistance and Notification of the Right to Silence in France: Legal Cosmopolitanism and Local Resistance
- Michael G. Kearney, Any Other Contribution? Ascribing Liability for Cover-Ups of International Crimes
- Gerard Conway, Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions
Climate change and rising oil prices have thrust the Arctic to the top of the foreign policy agenda and raised difficult issues of sovereignty, security and environmental protection. Improved access for shipping and resource development is leading to new international rules on safety, pollution prevention and emergency response. Around the Arctic, maritime boundary disputes are being negotiated and resolved, and new international institutions, such as the Arctic Council, are mediating deep-rooted tensions between Russia and NATO and between nation states and indigenous peoples. International Law and the Arctic explains these developments and reveals a strong trend towards international cooperation and law-making. It thus contradicts the widespread misconception that the Arctic is an unregulated zone of potential conflict.
Systematic violations of the rights of unauthorized migrants on the fault lines between developed and developing countries expose the dialectic of transnationalism, a dynamic that occurs when both policy and judicial review go transnational. Three concurrent patterns define the dialectic: First, executive and judi- cial networks are bifurcated from each other, producing significant policies beyond the reach of judiciaries. Second, judiciaries exacerbate their bifurcation from policymaking through transnational decisions. Third, transnational law replaces absolute legal rules with pragmatic problem solving, eroding the normative basis of human rights. Although these patterns seem to show that the violations are an intractable feature of contemporary international law, this Article proposes countering them with “critical absolutism.” This approach identifies opportunities in which the dialectic can be challenged by presenting states with an existential dilemma: either treat people as humans and risk changing who you are (in terms of the composition of your population), or give up human rights and risk changing who you are (in terms of your constitutive commitments).
Climate change, population growth and the increasing demand for water are all capable of leading to disputes over transboundary water systems. Dealing with these challenges will require the enhancing of adaptive capacity, the improving of the quality of water-resources management and a reduction in the risk of conflict between riparian states. Such changes can only be brought about through significant international cooperation. Christina Leb's analysis of the duty to cooperate and the related rights and obligations highlights the interlinkages between this duty and the principles of equitable and reasonable utilisation and the prevention of transboundary harm. In doing so, she considers the law applicable to both international watercourses and transboundary aquifers, and explores the complementarities and interaction between the rules of international water law and the related obligations of climate change and human rights law.
Monday, August 19, 2013
- Invited Articles
- Song Sang-Hyun, Preventive Potential of the International Criminal Court
- M.C.W. Pinto, Article 76 of the UN Convention on the Law of the Sea and the Bay of Bengal Exception
- Andrew Coleman & Jackson Nyamuya Maogoto, “Westphalian” Meets “Eastphalian” Sovereignty: China in a Globalized World
- Veronika Fikfak, International Law Before English and Asian Courts: Finding the Judicial Role in the Separation of Powers
- Kalana Senaratne, Internal Self-Determination in International Law: A Critical Third-World Perspective
- Stefan Gruber, The Fight Against the Illicit Trade in Asian Cultural Artefacts: Connecting International Agreements, Regional Co-operation, and Domestic Strategies
- Aleksandra Čavoški, Revisiting the Convention on Nuclear Safety: Lessons Learned from the Fukushima Accident
- Mutaz M. Qafisheh, The Ability of the Palestinian Legal System to Secure Adequate Standards of Living: Reform or the Failure of State Duty
- Laura Fraedrich & Jamie A. Schafer, What Is In It For Me: How Recent Developments in FCPA Enforcement Affect the Voluntary Disclosure Calculus
- Maurizio Gambardella & Davide Rovetta, A New Creative Ruling of the Italian Supreme Court of Cassation on Customs Penalties: Time for a EU Harmonized Customs Regime?
- Bärbel Sachs, European Union Financial Sanctions Law and Its Application to Subsidiaries of Listed Entities
- Manoj K. Singh, Cross Retaliation under the WTO-DSM
- Jorge Miranda, Why the Potential for Trade Diversion should Be Examined Prior to Considering Setting an Antidumping Duty Lower than the Dumping Margin
- Fernando Piérola, The Question of the ‘Benefit’
- Gary N. Horlick, An Annotated Explanation of Articles 1 and 2 of the WTO Agreement on Subsidies and Countervailing Measures
- Veronika Haász, The Role of National Human Rights Institutions in the Implementation of the UN Guiding Principles
- Carla De Ycaza Pages, A Search for Truth: A Critical Analysis of the Liberian Truth and Reconciliation Commission
- Claudia Messina & Liliana Jacott, An Exploratory Study of Human Rights Knowledge: a Sample of Kindergarten and Elementary School Pre-service Teachers in Spain
- Pamina Firchow & Roger Mac Ginty, Reparations and Peacebuilding: Issues and Controversies
- Jemima García-Godos, Victims’ Rights and Distributive Justice: In Search of Actors
- Roddy Brett & Lina Malagon, Overcoming the Original Sin of the “Original Condition:” How Reparations May Contribute to Emancipatory Peacebuilding
- Kris Brown, Commemoration as Symbolic Reparation: New Narratives or Spaces of Conflict?
- Special Issue: Tracking and Protecting Marine Species at Risk: Scientific Advances, Sea of Governance Challenges
- David L. VanderZwaag, Richard Apostle & Steven J. Cooke, Tracking and Protecting Marine Species at Risk: Scientific Advances, Sea of Governance Challenges
- Tsafrir Gazit, Richard Apostle & Robert Branton, Deployment, Tracking, and Data Management: Technology and Science for a Global Ocean Tracking Network
- Cecilia Engler-Palma, David L. VanderZwaag, Richard Apostle, Martin Castonguay, Julian J. Dodson, Emma Feltes, Charles Norchi & Rachel White, Sustaining American Eels: A Slippery Species for Science and Governance
- Richard Apostle, Michael J. Dadswell, Cecilia Engler-Palma, Matthew K. Litvak, Montana F. McLean, Michael J.W. Stokesbury, Andrew D. Taylor & David L. VanderZwaag, Sustaining Atlantic Sturgeon: Stitching a Stronger Scientific and Governance Net
- John G. Phyne, Michael J.W. Stokesbury, Montana F. McLean & Phillip M. Saunders, Sustainability and the Atlantic Bluefin Tuna: Science, Socioeconomic Forces, and Governance
Sunday, August 18, 2013
This paper aims to offer some critical thought on the Tallinn Manual on the International Law Applicable to Cyber Warfare as regards its approach to the law of armed conflict. The paper makes some observations on the methodology of drafting the Manual and highlights a few issues of substantive law that illustrate the difficulties in applying the law of armed conflict to cyber operations.