Saturday, November 9, 2013

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 52, no. 3, 2013) is out. Contents include:
  • Abaclat and Others v. The Argentine Republic: Decision on Jurisdiction and Admissibility (ICSID), with introductory note by Susan L. Karamanian
  • Pringle v. Ireland (E.C.J.), with introductory note by Susan Power
  • Chafin v. Chafin (U.S. Sup. Ct.), with introductory note by Keith Loken
  • Final Acts of the World Conference on International Telecommunications, with introductory note by David P. Fidler
  • Department of State Rewards Program Update and Technical Corrections Act of 2012, with introductory note by Michael A. Newton

Horvath & Wilske: Guerrilla Tactics in International Arbitration

Günther J. Horvath & Stephan Wilske have published Guerrilla Tactics in International Arbitration (Wolters Kluwer 2013). Here's the abstract:
To an extent that may surprise many, international arbitral proceedings are prone to serious interference from the obstructive or even criminal behaviour of interested ‘stakeholders’. Numerous anecdotes involving not only bribery and subornation but actual violent threats of retaliation have emerged since the editors of this book addressed an audience at Vienna Arbitration Days 2010, at which time they used the popular term guerilla – denoting such tactics as ambushes, sabotage, and terrorism – to evoke their topic, and called for effective means to combat this undermining of the integrity and popularity of international arbitration. Their call bore fruit, and this collection of essays by a wide spread of seasoned arbitration practitioners – the driving forces in their field – as well as leading academics with distinguished backgrounds and reputations bears powerful witness to the importance of the subject. Going beyond anecdote, these authors adopt an analytic view of guerilla tactics in arbitration as a broad collective of unconventional means that undermine the mechanism’s envisioned mode of operation. They offer eminently practical, ‘hands-on’ discussions that give this topic foundation and elaborate on the issue in detail, from the perspectives of counsel, arbitrators, and arbitral institutions, to the specifics and intricacies of national and international litigation and the role of international institutions, to an intensive discussion on ethics in international arbitration, and – most importantly – the way forward. Among the specific topics are the following: dealing with state entities; sanctions available for arbitrators to curtail guerrilla tactics; tools available to the arbitral tribunal; and use of diplomatic channels. The book describes actual experiences from all major legal systems worldwide. Further practical guidance includes details of how to seek assistance from state courts, bar associations, the IMF, and the World Bank.

Friday, November 8, 2013

Samuel: The OIC, the UN, and Counter-Terrorism Law-Making: Conflicting or Cooperative Legal Orders?

Katja LH Samuel (Univ. of Reading - Law) has published The OIC, the UN, and Counter-Terrorism Law-Making: Conflicting or Cooperative Legal Orders? (Hart Publishing 2013). Here's the abstract:

The increasingly transnational nature of terrorist activities compels the international community to strengthen the legal framework in which counter-terrorism activities should occur at every level, including that of intergovernmental organizations.

This unique, timely, and carefully researched monograph examines one such important yet generally under-researched and poorly understood intergovernmental organization, the Organization of Islamic Cooperation ('OIC', formerly the Organization of the Islamic Conference). In particular, it analyses in depth its institutional counter-terrorism law-making practice, and the relationship between resultant OIC law and comparable UN norms in furtherance of UN Global Counter-Terrorism Stategy goals. Furthermore, it explores two common (mis)assumptions regarding the OIC, namely whether its internal institutional weaknesses mean that its law-making practice is inconsequential at the intergovernmental level; and whether its self-declared Islamic objectives and nature are irrelevant to its institutional practice or are instead reflected within OIC law.

Where significant normative tensions are discerned between OIC law and UN law, the monograph explores not only whether these may be explicable, at least in part, by the OIC's Islamic nature, and objectives, but also whether their corresponding institutional legal orders are conflicting or cooperative in nature, and the resultant implications of these findings for international counter-terrorism law- and policy-making.

Conference: The Domestic Politics of International Human Rights Agreements

Today and tomorrow, November 8-9, 2013, the Center for Globalization and Governance at Princeton's Woodrow Wilson School of Public and International Affairs will host a conference on "The Domestic Politics of International Human Rights Agreements." The program is here.

Miles: The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital

Kate Miles (Univ. of Cambridge - Law) has published The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (Cambridge Univ. Press 2013). Here's the abstract:
International investment law is a complex and dynamic field. Yet, the implications of its history are under-explored. Kate Miles examines the historical evolution of international investment law, assessing its origins in the commercial and political expansionism of dominant states during the seventeenth to early twentieth centuries and the continued resonance of those origins within modern foreign investment protection law. In particular, the exploration of the activities of the Dutch East India Company, Grotius' treatises, and pre–World War II international investment disputes provides insight into current controversies surrounding the interplay of public and private interests, the systemic design of investor-state arbitration, the substantive focus of principles, and the treatment of environmental issues within international investment law. In adopting such an approach, this book provides a fresh conceptual framework through which contemporary issues can be examined and creates new understandings of those controversies.

Murphy: Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission

Sean D. Murphy (George Washington Univ. - Law) has posted Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission (American Journal of International Law, forthcoming). Here's the abstract:

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7 and from July 8 to August 9, 2013. The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction; subsequent agreements and subsequent practice in relation to the interpretation of treaties; and protection of persons in the event of disasters. Notably, the Commission adopted three draft articles and commentary identifying three senior governmental officials as entitled to immunity ratione personae from foreign criminal jurisdiction – heads of state, heads of government, and foreign ministers – for their public or private acts, an immunity that ceases once they leave office.

Work also continued on four other topics already on the Commission’s current program of work (identification of customary international law, provisional application of treaties, the obligation to extradite or prosecute, and the most-favored-nation clause), while new topics on protection of the environment in relation to armed conflicts and on protection of the atmosphere were added to the program. At the prior (sixty-fourth) session, the Commission had adopted thirty-two draft articles, together with commentaries, on the topic of expulsion of aliens, and is awaiting the comments and observations of governments on those draft articles to be submitted by 2014. Therefore, that topic was not addressed at the sixty-fifth session.

Tsagourias & White: Collective Security: Theory, Law and Practice

Nicholas Tsagourias (Univ. of Sheffield - Law) & Nigel D. White (Univ. of Nottingham - Law) have published Collective Security: Theory, Law and Practice (Cambridge Univ. Press 2013). Here's the abstract:
This analysis of collective security covers its institutional, operational and legal parameters along with the United Nations system, presenting it as a global public order institution for maintaining peace. The authors study its constitutional premises as they are shaped by the forces of law and politics. After an historical account of initiatives and projects for global peace, the authors explain the morphology of collective security as a global public order institution and outline its triggers, institutions, actors, components and tools. They go on to analyse its legal properties and the processes of political, legal and criminal accountability. The analysis and assessment are informed throughout by practice drawn from examples including Korea, Iraq and Libya, and by a wealth of cases from national and international jurisdictions.

Thursday, November 7, 2013

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 31, no. 3, 2013) is out. Contents include:
  • Alexander R. Markus, Rechtsmittel gegen Entscheide des juge d’appui bei der internationalen Schiedsgerichtsbarkeit der Schweiz
  • Laurence Burger, The Trouble with Salini (Criticism of and Alternatives to the Famous Test)
  • Asli Bayata Canyaş, Enforcement of Foreign Arbitral Awards in Turkey. Further Steps Towards a More Arbitration-Friendly Approach
  • Dimitrij Euler & Giuseppe Bianco, Breaking the Bond: Vulture Funds and Investment Arbitration
  • Michael Wietzorek, Decisions from Russia, Ukraine, and Kazakhstan related to Arbitration Proceedings Held in Switzerland
  • Dirk de Meulemeester & Maud Piers, The New Belgian Arbitration Law

Conference: The European Union’s External Action in Times of Crisis

On November 28-29, 2013, the Departamento de Derecho Internacional Público y Relaciones Internacionales of the Universidad de Granada, in cooperation with the European Society of International Law Interest Group on the EU as a Global Actor, will host a conference (English/Español) on "The European Union’s External Action in Times of Crisis/La Acción Exterior de la Unión Europea en tiempos de crisis." The program is here (English/Español).

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 8, nos. 11/12, 2013) is out. Contents include:
  • Enrique Valerdi Rodriguez & Elena Dulguerova, Blues at the Border: The Quest for Uniform Tariff Classification in the European Union
  • David H. Laufman, Man the Firewalls: Cyber Intrusions and Compliance Risks under U.S. Export Control Laws
  • Terence P. Stewart, Patrick J. McDonough, Jennifer M. Smith, & Sandra K. Jorgensen, The Increasing Recognition of Problems with WTO Appellate Body Decision-Making: Will the Message Be Heard?
  • Daniel Kiselbach, Alizee Bilbey, William E. Perry, & Ryan Brady, Demystifying the Trans-Pacific Partnership: An American and Canadian Perspective
  • Alan Yanovich, Canada – Renewable Energy and Canada – FIT Program – Debunking the Myth that the GATT 1994 Provides Carte Blanche to Discriminate in Government Procurement

Alter: International Law and Courts: The Promise of Historical Institutional Analysis

Karen J. Alter (Northwestern Univ. - Political Science) has posted International Law and Courts: The Promise of Historical Institutional Analysis (in Oxford Handbook of Historical Institutionalism, Orfeo Fioretos, Tulia G. Falleti, & Adam Sheingate eds., forthcoming). Here's the abstract:
This paper examines what the tools of historical institutional analysis can bring to the study of international courts. Rather than seeing the creation of an international court as a new institutional moment, I argue that the proliferation and fundamental reorientation of international courts over time is best understood as institutional evolution across three critical junctures: the disappointing Hague Peace conference era, the trauma of WWII, and the end of the Cold War. New-style international courts reflect lessons learned that combine with a desire to make state legal commitments more meaningful and international legal instruments more effective. To understand the varied influence of established ICs, one should look at international law and international courts as opportunity structures that societal actors activate. The paper then considers whether courts, as legal institutions, are a distinct type of institution and whether international courts are distinct types of courts. I argue that international courts draw on the authority of the rule of law yet per force operate in a polycentric context, with the competing authority and pull of domestic law and democratic choice serving as counterweights that fuel and limit appeals to international courts and that constrain international court decision-making and influence. Within this context, historical institutional approaches are likely to significantly contribute: 1) in helping us understand the differing decisions of political actors to invoke litigation threats and litigation; 2) in helping us understand the choices of international judges and the varying impact of international legal rulings; 3) in helping us understand how national legal doctrine vis-à-vis international law evolves over time.

Tedsen, Cavalieri, & Kraemer: Arctic Marine Governance: Opportunities for Transatlantic Cooperation

Elizabeth Tedsen (Ecologic Institute), Sandra Cavalieri (Ecologic Institute) , & R. Andreas Kraemer (Ecologic Institute) have published Arctic Marine Governance: Opportunities for Transatlantic Cooperation (Springer 2013). The table of contents is here. Here's the abstract:
The Arctic region plays an important role in regulating the world’s climate and is also highly impacted by climate change, with average temperatures rising almost twice as fast as the rest of the world and sea ice melting much faster than previously predicted. These rapid changes will have significant impacts on human activity in the region and on the Arctic marine environment. This book draws on the results of the 2008-2009 Arctic TRANSFORM project, funded by the European Commission‘s Directorate General of External Relations, which engaged experts in a transatlantic discussion on the roles of the European Union and United States in light of the Arctic’s changing climate and political and legal complexities. The book addresses the significant changes and developments in the marine Arctic, with descriptions and recommendations reflecting the current governance environment. A comprehensive overview of environmental governance and sustainable development in the Arctic is created. Chapters explore impacts and activities by sector, looking at fisheries, shipping, and offshore hydrocarbon in the Arctic and at policy options and strategies for improving marine governance in the region. A particular focus is given to the roles of the European Union and United States and opportunities for cooperation to enhance Arctic environmental governance.

New Issue: Legal Issues of Economic Integration

The latest issue of Legal Issues of Economic Integration (Vol. 40, no. 4, 2013) is out. Contents include:
  • Lorand Bartels, Human Rights and Sustainable Development Obligations in EU Free Trade Agreements
  • Giuseppe Bianco, The Bitter End of Sovereign Debt Restructurings: The Abaclat v. Argentina Arbitration and the Eurozone Crisis
  • Antigoni Lykotrafiti, EU Innovation Policy: Lessons Learned from the Inclusion of Aviation in the EU Emissions Trading Scheme
  • Alex Crespo van de Kooij, The Private Effect of the Free Movement of Goods: Examining Private-Law Bodies’ Activities under the Scope of Article 34 of the Treaty of the Functioning of the European Union

Rovine: Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2012

Arthur W. Rovine has published Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2012 (Martinus Nijhoff Publishers 2013). The table of contents is here. Here's the abstract:
The 2012 volume of Contemporary Issues in International Arbitration and Mediation: The Fordham Papers is a collection of important works in the field written by the speakers at the 2012 Fordham Law School Conference on International Arbitration and Mediation, held in London. The 22 papers are organized into the following five parts: Keynote Presentation; Part I: Investor-State Arbitration; Part II: Arbitration of International Financial Disputes; Part III: Arbitration of International Construction Disputes; Part IV: Arbitration in Asia; and Part V: Mediation.

Heller & Simpson: The Hidden Histories of War Crimes Trials

Kevin Jon Heller (Univ. of Melbourne - Law) & Gerry Simpson (Univ. of Melbourne - Law) have published The Hidden Histories of War Crimes Trials (Oxford Univ. Press 2013). The table of contents is here. Here's the abstract:

Several instances of war crimes trials are familiar to all scholars, but in order to advance understanding of the development of international criminal law, it is important to provide a full range of evidence from less-familiar trials. This book therefore provides an essential resource for a more comprehensive overview, uncovering and exploring some of the lesser-known war crimes trials that have taken place in a variety of contexts: international and domestic, northern and southern, historic and contemporary. It analyses these trials with a view to recognising institutional innovations, clarifying doctrinal debates, and identifying their general relevance to contemporary international criminal law. At the same time, the book recognises international criminal law's history of suppression or sublimation: What stories has the discipline refused to tell? What stories have been displaced by the ones it has told? Has international criminal law's framing or telling of these stories excluded other possibilities? And - perhaps most important of all - how can recovering the lost stories and imagining new narrative forms reconfigure the discipline?

Many of the trials examined in this book have hardly ever before been discussed; others have been examined only in the most cursory manner. Indeed, until now, no volume has been dedicated to telling the story of these trials, that have yet to find a place in the international criminal law canon. Providing a detailed analysis of these trials, which took place in Europe, Africa, South America, and Australasia, in both historical and contemporary contexts, this book is essential reading for anyone concerned with the development of international criminal law.

Wednesday, November 6, 2013

New Issue: Cambridge Journal of International and Comparative Law

The latest issue of the Cambridge Journal of International and Comparative Law (Vol. 2, no. 3, 2013) is out. Contents include:
  • Articles
    • Beatrice Krebs, Justification and Excuse in Article 31(1) of the Rome Statute
    • Dan Saxon, Covering Syria: Legal and Ethical Obligations of Journalists
    • Tim Wood, Extending International Human Rights Obligations to Political Parties
    • Riccardo de Caria, The Constitutional Right to Lobby on the Two Sides of the Atlantic: Between Freedom and Democracies
    • Pedro Caro de Sousa, Horizontal Expressions of Vertical Desires: Horizontal Effect and the Scope of the EU Fundamental Freedoms
    • Ruben Martini, Numerical Methodology in Comparative Tax Law: The Mathematical Model of Elasticity as a Thinking Model for Legal Comparisons
  • Law of the Sea Special
    • Vincent P Cogliati-Bantz & Craig J S Forrest, Consistent: The Convention on the Protection of the Underwater Cultural Heritage and the United Nations Convention on the Law of the Sea
    • Michail Risvas, The Duty to Cooperate and the Protection of Underwater Cultural Heritage
    • Andrew Serdy, Interpretation of UNCLOS Article 76 and the Negative Recommendation of the Commission on the Limits of the Continental Shelf on Ascension Island: Is the United Kingdom Stuck with it?
  • Case Analysis
    • Berk Demirkol, Does an Investment Treaty Tribunal Need Special Consent for Mass Claims?
    • Charlotte Bates, Abortion and a Right to Health in International Law: L.C. v. Peru

Vedder: Völkerrecht 2012

Christoph Vedder (Universität Augsburg - Law) has published Völkerrecht 2012 (Peter Lang 2013). The table of contents is here. Here's the abstract:
Dieser Sammelband enthält die Beiträge des 37. Österreichischen Völkerrechtstages 2012. Im Mittelpunkt steht der Austausch zwischen gerichtlicher und diplomatischer Völkerrechtspraxis und Völkerrechtswissenschaft. Der erste Teil befasst sich mit einer der beiden streitentscheidenden Institutionen im Haager Friedenspalast, dem Ständigen Schiedshof, der jüngst eine Renaissance als Forum zur Streitbeilegung im Völkerrecht erlebt. Der zweite Teil behandelt aktuelle Themenstellungen aus der Völkerrechtspraxis. Thematisiert werden die Erklärung von Brighton und die Bemühungen zur Reform des Europäischen Menschenrechtsgerichtshofs, der Fiskalpakt der EU aus europa- sowie verfassungs- und völkerrechtlicher Sichtweise und neuere Entwicklungen im Bereich der völkerrechtlichen Immunitäten. Der dritte Teil enthält Beiträge aus der Völkerrechtswerkstatt der Fakultäten. Im Blickpunkt stehen hier der Einfluss der Internet Governance auf das Völkergewohnheitsrecht und die Problematik des Beitritts der Europäischen Union zur Europäischen Menschenrechtskonvention.

Gaer & Broecker: The United Nations High Commissioner for Human Rights: Conscience for the World

Felice D. Gaer (Jacob Blaustein Institute for the Advancement of Human Rights) & Christen L. Broecker (Jacob Blaustein Institute for the Advancement of Human Rights) have published The United Nations High Commissioner for Human Rights: Conscience for the World (Martinus Nijhoff Publishers 2013). The table of contents is here. Here's the abstract:
In this first systematic examination of the role of the top United Nations human rights official, editors Felice Gaer and Christen Broecker analyze the achievements, leadership styles of, and obstacles encountered by the UN High Commissioner for Human Rights, and propose recommendations for the future. The editors are joined by 18 expert contributors including present and former UN policymakers, human rights practitioners, legal scholars, and current High Commissioner Navi Pillay. The United Nations High Commissioner for Human Rights: Conscience for the World examines how the six individuals who have served in this post have worked to end atrocities, hold perpetrators of abuses to account, promote equality and justice, and provide protection and redress to victims.

de Wet: The Evolving Role of ECOWAS and the SADC in Peace-Operations: A Challenge to the Primacy of the United Nations Security Council in Matters of Peace and Security?

Erika de Wet (Univ. of Pretoria - Institute for International and Comparative Law in Africa) has posted The Evolving Role of ECOWAS and the SADC in Peace-Operations: A Challenge to the Primacy of the United Nations Security Council in Matters of Peace and Security? (Leiden Journal of International Law, forthcoming). Here's the abstract:
The article examines the evolution of military operations by the Economic Community of Western African States (ECOWAS) and the South African Development Community (SADC) over the last three decades. By examining constitutional (treaty) developments and organizational practice, it questions whether these sub-regional organizations have displaced the primacy of the United Nations Security Council (UNSC) in matters pertaining to international peace and security, as foreseen in articles 24(1) and 103 of the United Nations Charter (the UN Charter). The relevance of this question is underscored by the fact that ECOWAS and SADC have engaged in various peace operations since the 1990s. The article concludes that since all the interventions under discussion were underpinned by the consent of the recognized government, it would be premature to suggest that the practice of African sub-regional organizations amounts to the emergence of a new customary right to engage in ‘first-instance enforcement action’.

Sikkink & Kim: The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations

Kathryn Sikkink (Univ. of Minnesota - Political Science) & Hun Joon Kim (Griffith Univ. - Government and International Relations) have published The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations (Annual Review of Law and Social Science, Vol. 9, pp. 269-285, 2013). Here's the abstract:
The justice cascade refers to a new global trend of holding political leaders criminally accountable for past human rights violations through domestic and international prosecutions. In just three decades, state leaders have gone from being immune to accountability for their human rights violations to becoming the subjects of highly publicized trials in many countries of the world. New research suggests that such trials continue to expand and often result in convictions, including some of high-level state officials. This article summarizes research on the origins of the justice cascade and its effects on human rights practices around the world. It presents evidence that such prosecutions are affecting the behavior of political leaders worldwide and have the potential to help diminish human rights violations in the future.

Sharp: Human Rights Fact-Finding and the Reproduction of Hierarchies

Dustin N. Sharp (Univ. of San Diego - School of Peace Studies) has posted Human Rights Fact-Finding and the Reproduction of Hierarchies. Here's the abstract:

As it is practiced by the world’s biggest international human rights NGOs (INGOs), fact-finding has become an elite activity, carried out, for the most part, by a class of professionalized 'experts.' Over the last several decades, their work has catapulted organizations like Human Rights Watch and Amnesty International to positions of prominence and influence in myriad global political and policy processes. The work of these individuals and organizations is projected to be (and indeed is sincerely imagined to be) neutral and apolitical, the product of technocrats concerned only with exposing abuses by powers small and large.

While no one can doubt that INGO-led fact-finding has been a force for much good, raising the level of global human rights awareness, the collection and dissemination of human rights facts and knowledge have also been intimately bound of up with politics, power, and the reproduction of hierarchies, making the technocratic view of human rights fact-finding highly problematic. In this chapter, I argue that there is a particular need to think carefully and critically about the role of human rights fact-finding in generating institutional legitimacy and power, in privileging certain questions of social justice over others, and in potentially serving to narrow the terrain through which broader projects of social change might take place.

Understanding fact-finding not as a technocratic exercise, but as part of a set of complex institutional and global power dynamics with distributional consequences may suggest the need to democratize the field, including the collection and dissemination of human rights facts. Though it has fallen out of favor with some of the biggest NGOs, 'capacity building' is one potential model that could be used to try to diversify and pluralize the production of human rights knowledge, making human rights fact-finding more of a true global project rather than the domain of a relatively restricted set of elite institutions. Yet capacity building projects carry their own problematic dimensions, implying, among other things, a one-way transmission of expertise from elite to ‘local’ organizations, and may serve to propagate the very hierarchies and elite strategies for change typified some global NGOs. Thus, simplistic recipes of 'more local, less global' are not sufficient to address some of the more problematic aspects of fact-finding practice.

Ultimately, I argue, there is a need for NGOs, both local and international, to diversify and democratize not only in terms of composition, but in terms of fundamental advocacy paradigms. Fact-finding and the projection of professional, technocratic expertise has served as an impressive platform for high-level lobbying and pressure politics via the mobilization of shame, but is ultimately no substitute for developing a genuine human rights constituency akin to other social justice movements throughout history. While fact-finding may still serve as an engine of growth and legitimacy for some INGOs in the 21st century, it needs to be leveraged to support a richer palette advocacy tactics if the human rights 'movement' is to move outside of the elite circles to which it has largely heretofore been restricted.

Tuesday, November 5, 2013

International Crimes Database

On November 12, 2013, the T.M.C. Asser Instituut in The Hague will launch the International Crimes Database. This platform offers a comprehensive database on international crimes adjudicated by national, international and internationalized courts and will provide access to a range of information not just for lawyers and judges but also for students, academics, families and communities of victims of crimes, among others. Details concerning the launch event are available here.

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 44, no. 4, 2013) is out. Contents include:
  • Sienho Yee, Conciliation and the 1982 UN Convention on the Law of the Sea
  • Sergei Vinogradov, The Impact of the Deepwater Horizon: The Evolving International Legal Regime for Offshore Accidental Pollution Prevention, Preparedness, and Response
  • Clive Schofield, Anastasia Telesetsky & Seokwoo Lee, A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case

Donaldson & Kingsbury: The Adoption of Transparency Policies in Global Governance Institutions: Justifications, Effects, and Implications

Megan Donaldson (New York Univ. - Law) & Benedict Kingsbury (New York Univ. - Law) have published The Adoption of Transparency Policies in Global Governance Institutions: Justifications, Effects, and Implications (Annual Review of Law and Social Science, Vol. 9, pp. 119-147, 2013). Here's the abstract:
Formal transparency policies are increasingly prevalent in global governance institutions, partially attenuating the influence in these institutions of practices of secrecy inherited from interstate diplomacy. This article assesses the incidence and specific characteristics of formal transparency policies across a select group of institutions and outlines some of the justifications given for these policies—including justifications based on the publicness of these institutions—and for the more controversial exceptions to transparency, such as the exception for deliberative materials. It examines three drivers affecting the adoption, form, and content of transparency policies and other transparency measures in these institutions: spillover from national transparency laws and policies, growth in the reach and significance of authority exercised in and through global institutions, and criticism of global institutions by influential states and nongovernmental organizations. Twelve hypotheses are proposed about the effects, for states, nonstate actors, and global governance institutions, of transparency measures—formal policies and other steps to increase transparency—in global governance institutions. Finally, the article considers some implications of transparency measures for structures of political power and authority beyond the state and for global administrative law.

Binder: Die Grenzen der Vertragstreue im Völkerrecht

Christina Binder has published Die Grenzen der Vertragstreue im Völkerrecht (Springer 2013). Here's the abstract:
Die Arbeit untersucht das Spannungsverhältnis zwischen Vertragstreue und Umstandsänderung im aktuellen Völkerrecht. Hierzu werden zunächst die Rechtsinstitute des allgemeinen Völkervertragsrechts, grundlegende Umstandsänderung, nachträgliche Unmöglichkeit der Erfüllung und Obsoleszenz dargestellt, die ein Abrücken von Vertragspflichten durch eine Vertragspartei unter dem Eindruck der nachträglichen Änderung der Umstände ermöglichen. Im Folgenden wird erörtert, inwiefern die Rechtswidrigkeitsausschlussgründe des Rechts der Staatenverantwortlichkeit – Notstand und höhere Gewalt – das Instrumentarium des allgemeinen Völkerrechts als Grenzen der Vertragstreue erweitern. Schließlich wird der Umgang mit Umstandsänderungen in ausgewählten Vertragsregimen – Menschenrechten, Seerecht, GATT/WTO-Regime und Investitionsrecht – analysiert und gefragt, inwiefern die Grenzen der Vertragstreue in den spezifischen Regimen differenzierter gezogen werden und wie das Verhältnis zwischen den Vertragsbestimmungen und den Rechtsinstituten des allgemeinen Völkerrechts zu lösen ist.​

Wouters, Odermatt, & Ramopoulos: The EU in the World of International Organizations: Diplomatic Aspirations, Legal Hurdles and Political Realities

Jan Wouters (Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies), Jed Odermatt (Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies), & Thomas Ramopoulos (Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies) have posted The EU in the World of International Organizations: Diplomatic Aspirations, Legal Hurdles and Political Realities. Here's the abstract:
The Lisbon Treaty emphasizes the European Union’s (EU) commitment to multilateralism. A key part of this is the EU’s engagement with and participation in international organizations (IOs). While the EU has clear ambitions to take part and play a leading role in IOs, it faces significant obstacles in making this a reality. This paper begins by outlining the status the EU currently enjoys in IOs, ranging from full member to observer or no status at all. It then examines some of the legal and political issues the EU faces when seeking to join or upgrade its status in an IO. Issues such as representation in areas of shared competence and the difficulties arising from parallel membership in an IO are discussed. It then examines how the EU goes about choosing which IOs to seek closer co-operation with, discussing its efforts to improve its representation in three IOs: the Arctic Council, the International Maritime Organization and the International Atomic Energy Agency. It is submitted that the EU’s involvement in IOs is as much a legal issue as it is a political and diplomatic one. Upgrading the EU’s status in IOs requires more than legal changes; it requires careful diplomacy to ensure that the EU’s international status lives up to its external aspirations.

New Issue: Global Governance: A Review of Multilateralism and International Institutions

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 19, no. 4, October-December 2013) is out. Contents include:
  • Tom Farer, Looking Forward: Incremental Change or Transformation?
  • Timothy D. Sisk, Enhancing International Cooperation: From Necessity to Urgency in Responding to Intrastate Conflict
  • Global Insights
    • Steven C. Roach, How Political is the ICC? Pressing Challenges and the Need for Diplomatic Efficacy
  • Articles
    • John Karlsrud, Special Representatives of the Secretary-General as Norm Arbitrators? Understanding Bottom-up Authority in UN Peacekeeping
    • Il Hyun Cho, Dual Identity and Issue Localization: East Asia in Global Governance
    • Thomas Gehring & Thomas Dörfler, Division of Labor and Rule-based Decisionmaking Within the UN Security Council: The Al-Qaeda/Taliban Sanctions Regime
    • Müge Kınacıoğlu & Aylin G. Gürzel, Turkey's Contribution to NATO's Role in Post–Cold War Security Governance: The Use of Force and Security Identity Formation
    • Oliver Stuenkel, The Financial Crisis, Contested Legitimacy, and the Genesis of Intra-BRICS Cooperation

Cullen & Wheatley: The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights

Anthony Cullen (Middlesex Univ. - Law) & Steven Wheatley (Univ. of Lancaster - Law) have posted The Human Rights of Individuals in De Facto Regimes under the European Convention on Human Rights (Human Rights Law Review, forthcoming). Here's the abstract:
The objective of this article is to evaluate the extent to which we can regard individuals in the territories of de facto regimes in the Council of Europe region (Abkhazia, South Ossetia, Nagorno-Karabakh, Transdniestria and Turkish Republic of Northern Cyprus) as enjoying the protection of the European Convention on Human Rights. The work considers the utility of recognising ‘de facto regimes’ as subjects of international law, before examining the relevant case law of the European Court of Human Rights and wider international law on the human rights obligations of such political entities. It then draws on the doctrine of acquired human rights to recognise, in certain circumstances, that the European Convention on Human Rights can be opposable to such regimes and concludes by reflecting on the implications of the analysis for understanding human rights in world society.

Venzke: Post-Modern Perspectives on Orthodox Positivism

Ingo Venzke (Univ. of Amsterdam - Law) has posted Post-Modern Perspectives on Orthodox Positivism (in International Legal Positivism In A Post-Modern World, Jean d’Aspremont & Jörg Kammerhofer eds., forthcoming). Here's the abstract:
This contribution explains the travails of international legal positivism (ILP) from post-modern perspectives. It identifies conventional precepts of orthodox ILP and shows how variants of post-modern thinking unravel them. The focus rests on three main such precepts and their critique: first, orthodox ILP works against the backdrop of a given language that stands stable and unsoiled from the operation of the law. Second, it embraces a political philosophy that gives the legal subject – traditionally the sovereign state – a foundational role. Third, orthodox ILP sees but a small space for politics in international law that is confined to law’s creation through legal sources. These three basic precepts relate to linguistics (the location and generation of meaning), to subjectivity (the place of state consent), and to politics (here understood as the struggle for power and its exercise). Three key concepts of post-modern thinking are introduced in order to question each of these precepts: the vivacious concept of performativity embodies lessons of the linguistic turn. Deconstruction suggests unveiling conflicting diversity underneath harmony and unity of any subject. Governmentality, finally, exposes the many faces of power. In sum, law and politics are much more entangled than ILP would traditionally have it.

Monday, November 4, 2013

Symposium: Theoretical Boundaries of Armed Conflict and Human Rights

On November 8, 2013, the International Legal Theory Interest Group of the American Society of International Law will hold a symposium on "Theoretical Boundaries of Armed Conflict and Human Rights," at ASIL's Tillar House in Washington, DC. The program is here.

New Issue: International Security

The latest issue of International Security (Vol. 38, no. 2, Fall 2013) is out. Contents include:
  • Making Sense of Cyber Security
    • Lucas Kello, The Meaning of the Cyber Revolution: Perils to Theory and Statecraft
    • Erik Gartzke, The Myth of Cyberwar: Bringing War in Cyberspace Back Down to Earth
    • David A. Lake, Legitimating Power: The Domestic Politics of U.S. International Hierarchy
  • Oil, Conflict, and U.S. Interests
    • Charles L. Glaser, How Oil Influences U.S. National Security
    • Jeff D. Colgan, Fueling the Fire: Pathways from Oil to War
  • Correspondence
    • Campbell Craig, Benjamin H. Friedman, Brendan Rittenhouse Green, Justin Logan, Stephen G. Brooks, G. John Ikenberry, & William C. Wohlforth, Debating American Engagement: The Future of U.S. Grand Strategy
    • Alex J. Bellamy & Robert A. Pape, Reconsidering the Cases of Humanitarian Intervention

New Issue: Air & Space Law

The latest issue of Air & Space Law (Vol. 38, no. 6, 2013) is out. Contents include:
  • Kinga Arnold, EU Air Passenger Rights: Assessment of the Proposal of the European Commission for the Amendment of Regulation (EC) 261/2004 and of Regulation (EC) 2027/97
  • Alan Khee-Jin Tan, India’s Evolving Policy on International Civil Aviation
  • Geoffrey Deasy, EU Competition Law Developments in the Aviation Sector from 01 January 2013 to 3 July 2013
  • Katja Helen Brecke & Ulrich Steppler, IATA’s New Distribution Capability (NDC): A Revolution?

Chesterman: Introduction and Chapter One: From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN

Simon Chesterman (National Univ. of Singapore - Law) has posted Introduction and Chapter One: From Community to Compliance? The Evolution of Monitoring Obligations in ASEAN. Here's the abstract:
The Association of Southeast Asian Nations (ASEAN) has been transformed from a periodic meeting of ministers to become the most important regional organisation in Asia’s history. An important tension in this transformation is the question of whether the ‘ASEAN way’ — defined by consultation and consensus, rather than enforceable obligations — is consistent with the establishment of a community governed by law. This book examines the evolution of efforts to gather and share information about compliance with international obligations, the other purposes that monitoring has served, and how such regimes might influence ASEAN’s ambitious goal of forming an ASEAN Community by 2015.

Avi-Yonah: Hanging Together: A Multilateral Approach to Taxing Multinationals

Reuven S. Avi-Yonah (Univ. of Michigan - Law) has posted Hanging Together: A Multilateral Approach to Taxing Multinationals. Here's the abstract:
The recent revelation that many multinational enterprises (MNEs) pay very little tax to the countries they operate in has led to various proposals to change the ways they are taxed. Most of these proposals, however, do not address the fundamental flaws in the international tax regime that allow companies like Apple or Starbucks to legally avoid taxation. In particular, the Organization for Economic Cooperation and Development (OECD) has been working on a Base Erosion and Profit Shifting (BEPS) project and is supposed to make recommendations to the G20, but it is not clear yet whether this will result in a meaningful advance toward preventing BEPS. This paper will advance a simple proposal that will allow OECD member countries to tax MNEs based in those countries without impeding their competitiveness. The key observation is that in the 21st century unilateral approaches to tax corporations whose operations span the globe are obsolete, and a multilateral approach is both essential and feasible. The paper therefore proposes that each OECD country commit to taxing its multinationals fully on a current basis, since such a multilateral approach eliminates all the usual arguments against current taxation.

Call for Papers: Subsidiarity in Global Governance

The Hertie School of Governance has issued a call for papers for a workshop on "Subsidiarity in Global Governance," to take place in Berlin, on June 19-20, 2014. The workshop will gather around 25 scholars from law, politics and related disciplines for an in-depth debate over two days. The organizers welcome proposals from scholars at any level – PhD students at an advanced stage, postdoctoral and more senior researchers alike. Details can be found here.

Sunday, November 3, 2013

Talmon: Das Abhören des Kanzlerhandys und das Völkerrecht

Stefan A. G. Talmon (Univ. of Bonn - Law) has posted Das Abhören des Kanzlerhandys und das Völkerrecht (Tapping the German Chancellor's Cell Phone and Public International Law). Here's the abstract:

Die deutsche Bundeskanzlerin Angela Merkel ist empört darüber, dass der amerikanische Geheimdienst NSA angeblich ihr persönliches Handy überwacht hat. Dieser kurze Beitrag untersucht, ob die Vereinigten Staaten durch das Abhören des Handys der Kanzlerin Regeln des Völkerrechts verletzt haben. Der Beitrag stellt fest, dass das Abhören der Handys ausländischer Regierungschefs den Tatbestand der Spionage in Friedenszeiten erfüllt und somit grundsätzlich völkerrechtlich zulässig ist, solange die Abhöraktion nicht vom Gelände einer Botschaft oder von einer ausländischen Militärbasis im Gebiet des betroffenen Staates aus erfolgt. Der Beitrag legt nahe, dass der Abschluss von so genannten "No Spy-Abkommen" weder praktisch durchführbar noch politisch sinnvoll ist und rät vom Abschluss solcher Abkommen auch unter "Freunden" ab.

German Chancellor Angela Merkel has been outraged over allegations that the NSA monitored her personal cell phone. This brief paper examines whether the United States violated any rules of public international law when tapping the Chancellor's cell phone. It concludes that tapping a foreign leader's cell phone constitutes an act of espionage in peacetime and as such is generally lawful under international law unless conducted from embassy premises or military bases in the territory of the foreign leader's State. The paper questions whether the conclusion of so-called "no spy agreements" is either practical or expedient and cautions against the conclusion of such agreements even among "friends".

Note: Downloadable document is in German.