Several states have been engaged for years in armed conflicts against non-state actors outside their territory. These conflicts implicate a wide array of difficult questions related to international humanitarian law (‘IHL’). Yet for structural and political reasons, the international community has not attempted to craft a new treaty to regulate these armed conflicts, and state practice is not yet sufficiently robust to crystallize new rules of customary international law.
Although we have no new international rules to guide states’ conduct in these contexts, that is not to say that we have no new rules at all to regulate these types of armed conflict. The new rules simply stem from non-international sources. Domestic courts of certain states have played a significant role in establishing new rules to govern how those states must conduct themselves during these armed conflicts. These courts have stepped in to interpret, extend, and craft laws applicable in armed conflict, producing what this chapter terms ‘domestic humanitarian law’ (‘DHL’).
DHL is important for two reasons. First, it establishes detailed, legally binding rules by which particular states’ militaries must conduct themselves in extra-territorial conflicts. Second, the existence of DHL will have a significant effect on future IHL developments. DHL will affect the production and content of customary rules, the likelihood of future agreements about IHL, and the substance of those future rules in the event such an agreement emerges. The proliferation of DHL has the propensity to reduce international calls for a new treaty and complicates the initial negotiating positions of states whose courts have produced DHL. But DHL has advantages as well for IHL development, akin to the U.S. constitutional idea that U.S. states serve as experimental ‘laboratories’ in which different approaches to problems are tested.
Because states will continue to face serious challenges in developing new IHL treaty rules on the international stage, the production of new interpretations and norms in U.S. and other domestic courts represents a potentially important phase in the development of IHL. As importantly, the phenomenon of DHL allows us fruitfully to explore the nature of domestic court decisions more generally in the project of international law creation.
Saturday, October 12, 2013
Friday, October 11, 2013
Between the 1960s and the 1980s, the human rights movement achieved unprecedented global prominence. Amnesty International attained striking visibility with its Campaign Against Torture; Soviet dissidents attracted a worldwide audience for their heroism in facing down a totalitarian state; the Helsinki Accords were signed, incorporating a "third basket" of human rights principles; and the Carter administration formally gave the United States a human rights policy.
The Breakthrough is the first collection to examine this decisive era as a whole, tracing key developments in both Western and non-Western engagement with human rights and placing new emphasis on the role of human rights in the international history of the past century. Bringing together original essays from some of the field's leading scholars, this volume not only explores the transnational histories of international and nongovernmental human rights organizations but also analyzes the complex interplay between gender, sociology, and ideology in the making of human rights politics at the local level. Detailed case studies illuminate how a number of local movements—from the 1975 World Congress of Women in East Berlin to anti-apartheid activism in Britain, to protests in Latin America—affected international human rights discourse in the era as well as the ways these moments continue to influence current understanding of human rights history and advocacy. The global south—an area not usually treated as a scene of human rights politics—is also spotlighted in groundbreaking chapters on Biafran, South American, and Indonesian developments. In recovering the remarkable presence of global human rights talk and practice in the 1970s, The Breakthrough brings this pivotal decade to the forefront of contemporary scholarly debate.
- October 11, 2013: Jan Klabbers (Univ. of Helsinki - Law), Research as Curiosity
- October 18, 2013: Louise Chappell (Univ. of New South Wales - School of Social Sciences), Gender Justice and Legitimacy at the International Criminal Court
- October 25, 2013: Guglielmo Verdirame (King's College London - Law), The Devil and the Holy Water: Will Human Rights Tame War or Will War Corrupt Human Rights?
- November 1, 2013: Olufemi Elias (World Bank Administrative Tribunal), Recent Developments in the Administration of Justice in International Organisations
- November 8, 2013: Robert Volterra (Volterra Fietta), Facts, Evidence and Causation: Practice of the ICJ
- November 15, 2013: Penelope Nevill (20 Essex Street), Sanctions: current issues of implementation and enforcement
- November 22, 2013: Stephen Humphreys (London School of Economics - Law), Theorising International Environmental Law
Jacobs & Harwood: International Criminal Law Outside the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding by International Commissions of Inquiry
The renaissance of international criminal law in the 1990s not only altered the landscape of international law, but has had an impact on international fact-finding. Analysis of mandates and reports of international commissions of inquiry established by the United Nations reveals that international criminal law concepts have migrated into their investigations, findings and recommendations. This chapter tracks this migration of international criminal law from the courtroom and explores how an increased focus on international criminal law may affect the quality of the fact-finding process. A focus on international crimes has an influence on both substantive and procedural dimensions of fact-finding. Ultimately, these questions lead to an inquiry into the fundamental notion of 'quality'. An international criminal law-focus might contribute to a more rigorous fact-finding methodology, thereby increasing certainty in findings. However, when 'quality' is considered as a wider notion linked to normative and narrative agendas, an international criminal law-focus may limit the utility of fact-finding.
- Isabel Mota Borges, La protección comienza en casa pero no termina ahí! Las dinámicas de las obligaciones que tienen los estados de proteger los derechos humanos de los desplazados ambientales
- José Manuel Velasco Retamosa, Libre circulación de personas en la Unión Europea: los nacionales de terceros Estados como beneficiarios de esta libertad
- Friedarike Santner, La política de Uganda para la población desplazada. Una comparación con las reglamentaciones colombianas sobre el desplazamiento forzado
- Clara Atehortúa−Arredondo & Diana fuentes−Becerra, Efectos desapercibidos de la sentencia T/025 de 2004: sobre la necesidad de una aproximación cualitativa a las realidades de la población en situación de desplazamiento
- Marco Alberto Velásquez−Ruiz, La Migración generada por actividades de Inversión Extranjera en Colombia: Repensando los Esquemas de Protección y Responsabilidad
The Approaches of Liberal and Illiberal Governments to International Law:
A Conference Marking 25 Years since the Collapse of Communist Regimes in Central and Eastern Europe
The theory that liberal democracies are more peace-loving and generally ’better’ members of the international community is usually attributed to the philosopher Immanuel Kant. In fact, variations of this argument have been prevalent throughout the history of international law. For example, Friedrich Martens (1845-1909), the leading Tsarist Russian scholar, when constructing his international law of ‘civilized peoples’, defined civilization as government’s respect for individual rights and liberties. In the 1990s, this thesis again emerged when Anne-Marie Slaughter made a similar argument specifically in the context of post-Cold War international law. In Slaughter’s view, liberal states were best situated to produce an international legal order geared towards human rights and ‘real’ integration, as opposed to more general calls within the international legal community for a ‘universal’ architecture that bound and called for participation from liberal and illiberal states.
The University of Tartu and the European Society of International Law’s Interest Group on International Legal Theory (IGILT) invite submissions that will examine whether liberal (and illiberal) ideas make a difference in the context of international law along three general themes. First, how should we define liberalism, and to what extent is liberalism bound to a ‘Western’-centric orientation or embedded within the 19th century colonial legacy? Second, what are the defining features of illiberalism (or authoritarianism, traditionalism, etc.), and how might international law address the tension between illiberal state regimes and the doctrine of sovereign equality? And third, in addressing these above questions, what new empirical, historical or theoretical studies would help test the validity of the theory that liberal states ‘behave better’ in the context of international law?
In particular, applicants are encouraged to address these questions in relation to former Eastern Bloc countries. For instance, with the exception of Belarus, all of these countries are subject to the jurisdiction of the European Court of Human Rights, sometimes with troubling records. Moreover, if we treat EU law as a regional manifestation of international law, then EU membership based on the Copenhagen criteria related to rule of law, democracy and human rights, has in a way become one of the new dividing lines in Eastern Europe. Yet the protection of human rights and respect for democracy has remained problematic not just in countries like the Russian Federation and Ukraine (i.e., outside the EU), but also in countries such as Hungary and Romania. Thus, can it be true that the EU law is the regional integration law of ‘liberal’ European states while the post-Communist states that resist more liberal ideas have remained outside it? Have greater spaces of the EU and the CIS, or in the context of international trade, the EU and the Russian-led Customs Union, been built up based on geopolitics and history or also on different understandings of liberal and traditionalist values?
Similarly, the Russian Federation, due to its size and weight in the international community as a permanent member of the UN Security Council and the G8, remains a particularly relevant testing ground in the context of (il)liberal ideas and international law. How has Russia’s official approach to such central themes in international law as jus ad bellum and human rights evolved since the collapse of the USSR and the decline of Communist ideas? Do Russia, the US and West European nations interpret key articles in the UN Charter in a similar or different manner, and what importance do they still attribute to the Charter? To the extent that the Russian government remains protective of state sovereignty, does it attempt to fight liberal ideas and the penetration of human rights with traditionalism and (Orthodox-influenced) critiques of the West? Now that the Russian Federation has finally become a member of the WTO, does it also accept ‘liberal’ ideas about trade and international governance?
The conference will take place on June 12-13, 2014 at the University of Tartu History Museum, featuring keynote talks by José E. Alvarez (NYU) and Gerry Simpson (Melbourne). Due to a generous grant from the European Research Council, successful applicants will receive full scholarships to cover flight and accommodation costs, on the condition that they develop their presentation into an article of publishable quality and that they are ESIL members. Approximately ten articles from the conference will be selected for publication in the 15th volume of the Baltic Yearbook of International Law, which will be edited by Lauri Mälksoo and Ineta Ziemele.
Please submit your paper proposal, along with your CV, to the e-mail address firstname.lastname@example.org by November 30, 2013. Applicants will be notified by December 15, 2013.
Thursday, October 10, 2013
CALL FOR PAPERS
MELBOURNE JOURNAL of INTERNATIONAL LAW
The Editors of the Melbourne Journal of International Law (‘MJIL’) invite submissions on areas of interest in international law for the first issue of their 15th volume. MJIL will also consider submissions on comparative and transnational law issues that do not necessarily fall neatly into the traditional public/private international law categories. Issue 15(1) will be published in June 2014.
MJIL, Australia’s premier generalist international law journal, is a peer-reviewed academic journal run through the Melbourne Law School at the University of Melbourne. MJIL’s objective is to facilitate scholarly research and critical discussion of private and public international law issues.
MJIL publishes articles, commentaries, case notes and book reviews. Articles for 15(1) should be in the vicinity of 10 000 to 15 000 words in length and be an original and detailed contribution to international, transnational and/or comparative law scholarship. Commentaries should explore recent developments in a specific field and their practical applications, and should be between 5000 and 8000 words in length.
All articles, case notes, commentaries and review essays published in MJIL are subjected to a double-blind refereeing process, involving at least two specialists in the field. Once accepted for publication, submissions will then be edited for compliance with the Australian Guide to Legal Citation. Authors have an opportunity to review the final version of the piece prior to publication. Our publication policy can be accessed here.
All submissions should be sent to email@example.com in Word format, together with a signed publication policy.
The submission deadline for 15(1) is 31 January 2014.
Chey: International Harmonization of Financial Regulation? The Politics of Global Diffusion of the Basel Capital Accord
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.
As fragmentation in international law and institutions increases unabated, the associated theoretical debate has virtually gone silent. Koskenniemi’s contributions to the fragmentation debate, primarily the 2006 ILC study group report and several academic articles, played a central role in this ‘normalization of fragmentation’. They demonstrated that fragmentation is politically inevitable and legally manageable, through formal rules of interpretation. Adopting an analogy between states and functional regimes, Koskenniemi views fragmentation through the same lenses he applies to international law more generally, acknowledging and identifying its political undercurrents while advocating an applied ethics of formalism. While generally one might “keep calm and carry on” in the face of fragmentation, Koskenniemi flags one concern nevertheless: the propensity of fragmentation to promote anti-formalist managerialism in international affairs.
- Research Articles
- Michael G. Findley, Daniel L. Nielson & J.C. Sharman, Using Field Experiments in International Relations: A Randomized Study of Anonymous Incorporation1
- Tanisha M. Fazal, The Demise of Peace Treaties in Interstate War
- Benjamin Brake & Peter J. Katzenstein, Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law
- Christina J. Schneider & Branislav L. Slantchev, Abiding by the Vote: Between-Groups Conflict in International Collective Action
- Daniel J. Blake, Thinking Ahead: Government Time Horizons and the Legalization of International Investment Agreements
- Marcus Holmes, The Force of Face-to-Face Diplomacy: Mirror Neurons and the Problem of Intentions
- Review Essay
- Stephen G. Brooks, Economic Actors' Lobbying Influence on the Prospects for War and Peace
- Research Note
- Daniel Maliniak, Ryan Powers & Barbara F. Walter, The Gender Citation Gap in International Relations
Wednesday, October 9, 2013
- Scientific Articles
- Lianne Boer, 'Restating the Law "As It Is"': On the Tallinn Manual and the Use of Force in Cyberspace
- Jed Odermatt, Between the Law and Reality: 'New Wars' and Internationalised Armed Conflict
- Keiichiro Okimoto, The Relationship between a State and an Organized Armed Group and Its Impact on the Classification of Armed Conflict
- Opinion Articles
- Artur Malantowicz, Civil War in Syria and the 'New Wars' Debate
- Andreas Furrer, Die Schweiz vor den Herausforderungen des Europäischen (Internationalen) Privat- und Verfahrensrechts
- Ingrid Wuerth, Foreign Official Immunity: Invocation, Purpose, Exceptions
- Anne-Catherine Hahn, Dealing with Sovereigns: Immunity Risks and Planning Tools
- Robert Kolb & Thiago Braz Jardim Oliveira, Le droit des immunités juridictionnelles étatiques et l'arrêt de la Cour Internationale de Justice dans l'affaire italo-allemande
- José Manuel Velasco Retamosa, La subrogation dans le Règlement 593/2008 sur la loi applicable aux obligations contractuelles
Grabenwarter: The European Convention for the Protection of Human Rights and Fundamental Freedoms: A Commentary
The European Convention on Human Rights (ECHR) entered into force on 3 September 1953 with binding effect on all Member States of the Council of Europe. It grants the people of Europe a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination) plus some more by additional protocols to the Convention (Protocols 1 (ETS No. 009), 4 (ETS No. 046), 6 (ETS No. 114), 7 (ETS No. 117), 12 (ETS No. 177) and 13 (ETS No. 187)).
Any person who feels his or her rights under the ECHR have been violated by the authorities of one of the Member States can bring a case to the European Court of Human Rights, established under the Convention. The States are bound by the Court's decisions. The Committee of Ministers of the Council of Europe make sure that the decisions are properly executed. Today the Court receives thousands of petitions annually, demonstrating the immense impact of the Convention and the Strasbourg Court.
Professor Grabenwarter's Commentary deals with the Convention systematically, article-by-article, considering the development and scope of each article, together with the relevant case-law and literature.
Lupu: The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects
The effects of international institutions on state behavior make up a key research agenda in international-relations scholarship. Because states self-select into treaties, we cannot infer that these commitments have causal effects unless we address this selection effect. I explain the significant limitations of the methods used thus far to overcome this problem and argue that a more effective approach must take into account states’ treaty preferences. I describe a novel combination of ideal-point estimation and propensity-score matching that can estimate the probabilities of treaty commitment and use them to test hypotheses. I use this procedure to test the effects of three key international human-rights treaties. My results provide significant new findings regarding the effects of these important agreements. I show that the Convention on the Elimination of All Forms of Discrimination against Women has significantly improved respect for women's rights, but that the Convention against Torture and the International Covenant on Civil and Political Rights have not had significant effects on human rights.
Tuesday, October 8, 2013
The Iranian nuclear crisis reflects international worries about Iran’s intentions in developing a nuclear energy program with potential military applications. This Article suggests that strengthening existing international institutions to more effectively provide ongoing verification of the civilian character of the Iranian program offers a diplomatic avenue of resolving this crisis. The nonproliferation regime includes safeguards to detect and deter the diversion of nuclear materials from civilian applications to weapons programs. The question of how to strengthen these safeguards to ensure that Iranian nuclear activities are verifiably proliferation-resistant is at the heart of resolving the current crisis.
This Article shows that there is an identifiable compromise position that would address the concerns of the international community while enabling Iran to claim its ‘right’ to nuclear energy. Yet despite this available avenue of compromise, missed negotiating opportunities have prolonged the crisis. Drawing on recent scholarship in the areas of negotiations theory and international delegations, this Article suggests an alternative approach to overcoming the conflict. By structuring negotiations around persuasive information, adopting an iterative and reciprocal negotiating structure, and strengthening the role of the International Atomic Energy Agency (IAEA or simply, the Agency), the parties could address many of the challenges that undermined previous rounds of negotiations. Further, a delegation of greater authority to the IAEA over safeguards-implementation in the Iranian context will set an important precedent for strengthening the verification and monitoring capacities of the organization, enabling it to facilitate resolution in the instant case and to better address any future crises involving potential proliferators.
Utrecht Journal of International and European Law, formerly Merkourios, is issuing a call for papers in relation to its forthcoming 78th edition on ‘Legal Aspects of Corporate Social Responsibility’.
It is a well-attested fact that there is a lack of legal accountability for multinational corporations both at an international and national level. Various different means have been utilised in an attempt to fill this gap in corporate governance. This topic has provoked increasing levels of discussion with varying perspectives as to the correct path with which to move forward.
The Board of Editors invites you to submit papers addressing any legal issues relating to corporate social responsibility from an international or European law perspective.
This edition is primarily concerned with corporate social responsibility but relevant issues may also have broader implications, including: the growing overlap of different spheres of international law; the right to development; the conflict between universalism and particularism; the relationship between developing and developed countries; long-standing principles of international law such as non-intervention in internal affairs and the state centric nature of international law as a whole and the rejection of human rights law norms for multinationals in favour of voluntary initiatives.
All types of manuscripts, from socio-legal to legal-technical to comparative will be considered.
The submissions deadline for our upcoming issue on 'Legal Aspects of Corporate Social Responsibility' is 14 November 2013
The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. Utrecht Journal holds a word limit of 15000 words, including footnotes. Authors may be graduate students, post-graduates, legal academics or practitioners.
Utrecht Journal is the student-led, peer-reviewed biannual law journal of Urios, the Utrecht Association for International and European Law. The Journal was founded in 1981 as Merkourios. This year, the Board of Editors decided to change it to its current name. In the years since 1981, Utrecht Journal has expanded its readership and is now distributed all over the world through databases such as HeinOnline and the Directory of Open Access Journals.
This year’s CCIL Annual Conference will discuss how international law is formed in 2013 and who contributes to its formation.
International law today draws more and more on actions and actors that traditionally were not seen as sources of international law. Examples include voluntary codes of corporate conduct established by corporations acting together, human rights guidance developed by non-governmental organizations supported by individuals in many countries, and interactions between international organizations whose memberships are not limited to states.
The growing impact of these “new” actors’ actions on the international stage might suggest that a radical re-thinking of the sources of international law is in order. Or perhaps not. The conference will explore that question from a variety of perspectives, including a concrete study of the many types of entities active on the international legal arena and the activities in which they are engaged.
Many legal scholars have characterized the international community’s “responsibility to protect” as a moral or political ideal without a well-established foundation in international law. In this chapter, I argue that the legal character of the responsibility to protect cannot be so easily dismissed. The idea that individual states and the broader international community share responsibility for guaranteeing the security and basic rights of human beings can be traced back to international law’s colonial-era origins, a time when Western nations rationalized their subjugation of indigenous peoples by casting themselves as benevolent “guardians” or “trustees” for humanity. Although the historical record suggests that colonial powers abused fiduciary rhetoric as a pretext for subjugating, exploiting, and even destroying indigenous communities, over time the continuing penetration and diffusion of fiduciary concepts has subtly redefined sovereignty itself as a form of legal authority that is entrusted to states as fiduciaries for the benefit of humanity. Under this fiduciary model of sovereignty, international law and international institutions are necessary to mediate the relationship between states and their people, ensuring that this relationship is not corrupted by domination or instrumentalization. When states flagrantly neglect their responsibility to protect their people from abuse or affirmatively violate the human rights of their people, international law entrusts the international community as a whole — acting primarily through the U.N. Security Council — with responsibility to intercede for the protection of oppressed peoples. Although the international community’s responsibility to protect requires further institutional development, it constitutes an essential feature of international legal order.
- Helen Keller & Cedric Marti, Interim relief compared: Use of interim measures by the UN Human Rights Committee and the European Court of Human Rights
- Philipp Wittmann, Nobody watches the watchmen - Rechtliche Rahmenbedingungen und zunehmende Ausweitung der öffentlichen Videoüberwachung in den USA
- Bertus de Villiers, Experimenting in federal systems - The case of the State Administrative Tribunal of Western Australia and accessibility to justice
Gaggioli: L'influence mutuelle entre les droits de l'homme et le droit international humanitaire à la lumière du droit à la vie
Les relations entre les droits de l’homme et le droit international humanitaire ne sont pas statiques mais dynamiques. Au-delà d’une simple complémentarité, il existe une influence mutuelle entre ces deux branches de droit international au niveau structurel et substantiel.
Au niveau structurel, le rapprochement entre le droit international humanitaire et les droits de l’homme dans la seconde moitié du XXème siècle a permis une extension des champs d’application et une amélioration de la mise en œuvre de ces deux branches du droit international.
Au niveau substantiel, il apparaît qu’une protection cohérente et optimale des individus dans les conflits armés n’est possible que si l’on tient compte du droit international humanitaire et des droits de l’homme de manière combinée. A cet égard, le droit à la vie a été choisi comme droit-test puisqu’en ce domaine les droits de l’homme et le droit international humanitaire sont souvent considérés, à tort, comme contradictoires.
A travers une analyse de la pratique internationale, cet ouvrage démontre que l’influence mutuelle est un excellent, voire le meilleur, moyen d’améliorer progressivement la protection des individus en période de conflit armé.
Monday, October 7, 2013
Orakhelashvili: The European Court of Human Rights in a Multi-Level Context: Between Interpretation and Normative Conflict
Presentation given at the conference dedicated to the launch of "Constituting Europe", G Ulfstein & M Folesdal, eds., CUP 2013; held at Middle Temple, London, 3 October 2013.
Rocha Loures & Rieu-Clarke: The UN Watercourses Convention in Force: Strengthening International Law for Transboundary Water Management
At the UN General Assembly in 1997, an overwhelming majority of States voted for the adoption of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses – a global overarching framework governing the rights and duties of States sharing freshwater systems. Globally, there are 263 internationally shared watersheds, which drain the territories of 145 countries and represent more than forty percent of the Earth's land surface. Hence, inter-State cooperation towards the sustainable management of transboundary water supplies, in accordance with applicable international legal instruments, is a topic of crucial importance, especially in the context of the current global water crisis.
This volume provides an assessment of the role and relevance of the UN Watercourses Convention and describes and evaluates its entry into force as a key component of transboundary water governance. To date, the Convention still requires further contracting States before it can enter into force. The authors describe the drafting and negotiation of the Convention and its relationship to other multilateral environmental agreements. A series of case studies assess the role of the Convention at various levels: regional (European Union, East Africa, West Africa, Central Asia, Central America and South America), river basin (e.g. the Mekong and Congo) and national (e.g. Ethiopia and Mexico). The book concludes by proposing how future implementation might further strengthen international cooperation in the management of water resources, to promote biodiversity conservation as well as sustainable and equitable use.
Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? Critics of the status quo regarding the use of lethal force and military detention tend to assume that it matters a great deal, and that shifting to a postwar framework will result in significant practical change. Supporters of the status quo tend to share that assumption, and oppose abandoning the armed-conflict model for that reason. But both camps are mistaken about this common premise. For better or worse, shifting from the armed-conflict model to a postwar framework would have far less of a practical impact than both assume.
Consider lethal force first. The Obama administration has made clear that lethal force would remain on the table even under a postwar model, and more specifically that it would remain an option against “continuous” terrorist threats. This in itself is not surprising; the U.S. government took a similar position for decades preceding 9/11. What is surprising is the capaciousness of the continuous-threat framework, and the extent to which it turns out to be consistent with the government’s existing approach to targeting even while we remain within the armed-conflict model. The capaciousness is not new. It was built into the continuous-threat model all along, in fact, as a review of key events in the 1980s and 1990s reveals. But the flexibility of the continuous-threat model was thoroughly obscured in the pre-9/11 period thanks to certain non-legal constraints, including especially the limited technology then available to carry out airstrikes in denied areas and the paucity of actionable intelligence. A variety of technological and institutional changes over the past dozen years — particularly the emergence of armed drones and the expansion of CIA and JSOC capabilities — have sharply eroded those constraints, altering what it would mean in practice to operate under the continuous-threat model once more. This helps explain why the government, though still maintaining the relevance of the armed-conflict model as a formal matter, has in fact already returned to the continuous-threat model as a matter of policy for operations outside of Afghanistan. There was relatively little cost to doing so in terms of operational flexibility, and by the same token there would be surprisingly little loss of operational flexibility should the underlying armed-conflict framework be abandoned.
The situation with respect to military detention is different, but only marginally so. The demise of the armed-conflict model will certainly matter for the dwindling legacy population at Guantanamo (and, perhaps, for a handful of legacy detainees in Afghanistan). It will not matter nearly so much for potential future detainees, however, for the simple reason that the United States long-ago got out of the business of taking on new detainees outside of Afghanistan. There are several reasons for the demise of long-term military detention as a policy option, including the fact that it has become unattractive compared to alternatives such as prosecution, the use of lethal force, and encouraging detention in the hands of other countries. The theoretical loss of legal authority to detain in the postwar period will have comparatively little real consequence in light of this larger dynamic.
None of this is an argument for or against declaring an end to the conflict with al Qaeda. The debate over that issue is badly distorted, however, by the shared and mistaken assumption that status quo targeting and detention policies depend on the armed-conflict model. Moving to postwar would not generate the sea change that advocates seek and opponents fear.
Van Harten: Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration
Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives.
It analyses the extent to which the system used to resolve disputes impacts on the role of government, affecting diverse constituencies, as opposed to limiting itself to case-specific disputes between a single business enterprise and state entity. The book provides a comprehensive review of known awards in order to determine the types of government measures that have triggered disputes. It investigates how investment arbitrators have exercised their authority in recent case law. It provides a review of the approaches adopted in the reasoning of investment treaty tribunals on questions of judicial deference and respect for sovereign decision-makers. In doing so, it determines whether investment tribunals have taken a predominantly assertive approach to investor protection, without regard to their relative lack of accountability, capacity, or proximity in some cases. This approach does not sit comfortably with the relative restraint seen by domestic and international courts in similar contexts.
The book argues that the unique characteristics of investment treaty arbitration make the experience of domestic judicial review more pertinent to international investment arbitration than to any other contexts for international adjudication. However, it argues that mediating devices in some form should be incorporated into the process in order to solve the tension between the extensive scope and potency of international investment arbitration as an important site of global governance, and the challenges of the review function in reviewing decisions which have strong claims to having comprehensive regulatory expertise, inclusive decision-making, electoral or other public accountability, or greater proximity to the underlying facts and context.
Boisson de Chazournes: United in Joy and Sorrow: Some Considerations on Responsibility Issues Under Partnerships Among International Financial Institutions
In the sprawling system of global governance, collaboration is widely sought to curb inefficiencies in resource allocations. That gives rise to complex and fast changing bundles of relationships. Partnerships between international organizations are one of the best examples of this: multi-purpose and flexible, they have come to represent an ideal tool to accommodate pragmatic needs flowing from the common or parallel action of organizations.
- Zachary Manfredi, Recent Histories and Uncertain Futures: Contemporary Critiques of International Human Rights and Humanitarianism
- Didier Fassin, The Predicament of Humanitarianism
- Political Ends, Historical Overtures: A Discussion of Samuel Moyn’s The Last Utopia
- Jason Frank, Human Rights in History Human Rights Regimes and The Last Utopia
- Pheng Cheah, Human Rights and the Material Making of Humanity: A Response to Samuel Moyn’s The Last Utopia
- Antony Anghie, Whose Utopia?: Human Rights, Development, and the Third World
- Seyla Benhabib, Moving beyond False Binarisms: On Samuel Moyn’s The Last Utopia
- Samuel Moyn, The Continuing Perplexities of Human Rights
- Claude Lefort & Jesse Cordes Selbin, International Law, Human Rights, and Politics
- Nikita Dhawan, Coercive Cosmopolitanism and Impossible Solidarities
- Eyal Weizman & Zachary Manfredi, “From Figure to Ground”: A Conversation with Eyal Weizman on the Politics of The Humanitarian Present
Sunday, October 6, 2013
In studies of compliance with international law, the focus is usually on the "demand side" – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the "supply side" – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). This Article presents empirical evidence that who within the government must supply compliance is the most important factor in explaining both whether and when the United States government complies with WTO rulings, even after controlling for important characteristics of the state filing the request and the political importance of the affected industry. These results demonstrate that understanding the domestic supply of compliance is a critical, if neglected, aspect of international law theory. The results also highlight how the dominant "unitary actor" model (adopted by international law scholars to explain compliance) obscures important causal pathways in the compliance process. This Article opens up a new and rich field of study into what makes international law effective or ineffective.