Saturday, February 22, 2014

New Issue: Journal of International Dispute Settlement

The latest issue of the Journal of International Dispute Settlement (Vol. 5, no. 1, March 2014) is out. Contents include:
  • Gus Van Harten, Judicial Restraint in Investment Treaty Arbitration: Restraint Based on Relative Suitability
  • Tania Voon, Andrew Mitchell, & James Munro, Legal Responses to Corporate Manoeuvring in International Investment Arbitration
  • Céline Lévesque, ‘Correctness’ as the Proper Standard of Review Applicable to ‘True’ Questions of Jurisdiction in the Set-Aside of Treaty-Based Investor-State Awards
  • Gino J Naldi, The ASEAN Protocol on Dispute Settlement Mechanisms: An Appraisal
  • Caroline E. Foster, New Clothes for the Emperor? Consultation of Experts by the International Court of Justice
  • Marta Infantino, International Arbitral Awards’ Reasons: Surveying the State-of-the-Art in Commercial and Investment International Dispute Settlements
  • Clovis J. Trevino, State-to-State Investment Treaty Arbitration and the Interplay with Investor–State Arbitration Under the Same Treaty

Friday, February 21, 2014

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 14, no. 1, March 2014) is out. Contents include:
  • Articles
    • Elina Steinerte, The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the UN Torture Convention
    • Peter Cumper, Multiculturalism, Human Rights and the Accommodation of Sharia Law
    • Dirk van Zyl Smit, Pete Weatherby, & Simon Creighton, Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?
    • Federico Fabbrini, The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations
    • Mark Coen, ‘With Cat-Like Tread’: Jury Trial and the European Court of Human Rights
  • Shorter Articles and Recent Developments
    • Michael K. Addo, The Reality of the United Nations Guiding Principles on Business and Human Rights
    • Janneke Gerards, Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 83, no. 1, 2014) is out. Contents include:
  • Alexander Orakhelashvili, Scelle, Schmitt, Kelsen, Lauterpacht, and the Continuing Relevance of their Inter-War Debate on Normativity
  • Auke Willems, The European Court of Human Rights on the UN Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland

Stahn: Complementarity and Cooperative Justice Ahead of Their Time? The United Nations War Crimes Commission, Fact-Finding and Evidence

Carsten Stahn (Leiden Univ. - Law) has posted Complementarity and Cooperative Justice Ahead of Their Time? The United Nations War Crimes Commission, Fact-Finding and Evidence. Here's the abstract:
Today, many international criminal lawyers claim that the future of international law is 'domestic'. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the 'future', but also the 'past'. This article analyzes the practice of the Commission (1943-1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many WWII accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of UN peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has gone lost in the course of the second half of the 20th century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labeling and origin of core crimes (e.g., aggression, crimes against humanity), the treatment of group criminality (e.g., attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g., 'mutual trust' under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court. But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.

Conference: Crisis of Humanitarianism / Humanitarianism in Crisis

On April 25-26, 2014, the Human Rights Program at the University of Chicago will host a conference on "Crisis of Humanitarianism / Humanitarianism in Crisis." The program is here. Here's the idea:
This conference presented by the Human Rights Program will bring together an interdisciplinary group of scholars working on compassion, mobilization, and power in humanitarian thought and practice in a variety of geographical spaces. Over the course of two days, we will interrogate the genealogies of the present moment and reflect upon the future of a new politics of humanitarianism.

Waibel: Investment Arbitration: Jurisdiction and Admissibility

Michael Waibel (Univ. of Cambridge - Law) has posted Investment Arbitration: Jurisdiction and Admissibility. Here's the abstract:

Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid.

After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.

Mueller: Kenya and the International Criminal Court (ICC): Politics, the Election and the Law

Susanne D. Mueller (Boston Univ. - African Studies Center) has published Kenya and the International Criminal Court (ICC): Politics, the Election and the Law (Journal of Eastern African Studies, Vol. 8, no. 1, pp. 25-42, 2014). Here's the abstract:
Kenya's 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto's run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.

Call for Submissions: The End of Treaties? An Online Agora

AJIL Unbound has issued a call for submissions for an online agora on "The End of Treaties?" Here's the call:

Are treaties in decline as a form of international cooperation? Possible evidence for such a decline includes the rise of soft law commitments, intergovernmental networks, hybrid governance arrangements, and other less formal cooperation schemes, as well as unilateral denunciations of some treaties (such as BITs and the ICSID Convention) and threats of withdrawals from others (African nations and the ICC, for example). In addition, major multilateral negotiations in the trade and environmental protection regimes are stalled, and the leading UN entity in charge of the progressive development and codification of international law, the International Law Commission, is now generating draft articles or studies in lieu of draft conventions. There is also a domestic challenge to treaty power in the United States, embodied in Bond v. U.S., and the continuing unwillingness of the Senate to give advice and consent to what are widely viewed as noncontroversial treaties. Are treaties really in decline? If so what are the implications for international cooperation and international law? What is the role of global power shifts in explaining decline? Is there regional and national variation in propensity to adopt treaties? Are there any signs of 'the return of the treaty'?

Agora submissions should be no more than 3000 words in length and should use URL hyperlinks rather than footnotes/endnotes for any references where possible. Please submit (in Microsoft Word or Word-compatible format) to AJILUnbound[at]asil.org by April 15, 2014. If you would like to consult about a potential topic, please use the same email address.

Call for Submissions: The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century

Transnational Dispute Management has issued a call for submissions for a TDM special issue on "The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century." Here's the call:

TDM Call for Papers "The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century"

Economic activity within the Pacific Rim region has been expanding at such an extraordinary rate that the 21st century has been labeled as the "Pacific Century". Such activity is regulated in significant part by a comparably dynamic international economic law regime. Ambitious and active negotiations continue apace for two vast trade agreements that would cover much of the Pacific Rim region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). If finalized, those two agreements would represent, respectively, approximately 40% and 27% of the global GDP.

While recent State practice in the Pacific Rim region has reflected a keen interest in ambitious free trade agreements, the views of Pacific Rim States toward investment treaties have been decidedly mixed. The world's two largest economies-the United States and China-recently completed an 11th round of bilateral investment treaty (BIT) negotiations; at the same time, however, Pacific Rim States such as Ecuador and, until recently, Australia have sharply criticized investor-State dispute settlement as a flawed method for resolving international investment disputes.

The new Australian Government has agreed to ISDS in its Korea FTA negotiations and has signaled its willingness to negotiate the issue for the FTA with Japan and now this week for the TPP. Peru has made adjustments in light of its investment treaty program by creating a coordination and response system for international investment disputes. Japan, China, and Korea recently entered into a trilateral investment treaty that may offer insights into the future direction of their respective investment treaty programs.

The formidable scale and pace of economic and legal development in the Pacific Rim region offers considerable opportunities, but also carries certain risks. The forthcoming Pacific Rim TDM Special Issue will collect views of experienced practitioners, academics, and policymakers on key economic and legal opportunities and risks in the Pacific Rim region today. Topics to be addressed could include, but are not limited to, the following:

1. TPP and RCEP: Competition, Coordination, or Consolidation?

Should the parallel TPP and RCEP negotiations be coordinated in some way? If so, how?

Should and could APEC play a role in the possible coordination or consolidation of the regional economic treaty making processes in the Pacific Rim, particularly between the TPP and RCEP negotiations?

Should China join the TPP negotiations? Should the TPP negotiating States seek China's participation?

2. A U.S.-China BIT as a 21st Century Model BIT?

To what extent could a U.S.-China BIT serve as a model BIT for a new generation of investment treaties?

With respect to balancing the interests of foreign investors and host governments, should future global BIT practice achieve a balance similar to the one reflected in the 2012 U.S. Model BIT? If so, to what extent?

What key features distinguish China's fourth generation of investment treaties? What impact might such features have on future global BIT practice?

3. Pacific Rim Investment Treaty Practice: Regional Considerations

Does the 2011 Gillard Government Trade Policy Statement reflect current Australian policy on investor-State dispute settlement?

Does the recent Japan-China-Korea Trilateral Investment Agreement offer insights into the future direction of the respective Japanese and Korean investment treaty programs?

To what extent can Peru's coordination and response system for international investment disputes serve as a model for neighboring Pacific Rim States such as Colombia, Ecuador, and Chile?

4. Pacific Rim Approaches to Key Legal Issues

Market access. In a joint statement with the United States, China announced that a U.S.-China BIT would include "pre-establishment" protections and would be negotiated pursuant to a negative list approach. China's Shanghai free trade zone also has adopted a negative list approach with respect to foreign investment. What impact might such developments have on foreign investment in China?

Fair and equitable treatment. Will greater specificity with respect to the fair and equitable treatment obligation, as reflected in recent treaty practice by the United States, China, and Canada lead to greater predictability and more consistent outcomes in investment treaty cases?

Competitive neutrality. Does the goal of maintaining a level playing field between private and state-owned enterprises merely serve protectionist ends?

Environment and labor. Should States follow the environmental and labor provisions of the 2012 U.S. Model BIT, pursuant to which States commit not to weaken their existing environmental and labor laws in order to encourage investment, and the Environmental and Labour chapters of recent U.S. free trade agreements such as the Korea-US agreement (KORUS) which provide for binding State-State dispute resolution of certain environmental or labour disputes?

Extraterritorial application of anti-corruption measures. What limits, if any, should apply to the extraterritorial application of anti-corruption measures? Have such limits been respected in recent U.S. practice under the Foreign Corrupt Practices Act?

The editors of the Pacific Rim TDM Special Issue are Wenhua Shan (Xi'an Jiaotong University School of Law) and Mark Feldman (Peking University School of Transnational Law). Proposals for papers (e.g. abstracts) should be submitted to the editors by May 15th. Publication September/October 2014.

Professor Wenhua Shan

Xi'an Jiaotong University

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Mark Feldman

Peking University School of Transnational Law

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Please address all proposals to both Professor Wenhua Shan at wenhuashan[at]gmail.com and Mark Feldman at mfeldman[at]stl.pku.edu.cn. Please CC info[at]transnational-dispute-management.com when submitting your materials.

Thursday, February 20, 2014

Newton: Charging War Crimes: Policy & Prognosis from a Military Perspective

Michael A. Newton (Vanderbilt Univ. - Law) has posted Charging War Crimes: Policy & Prognosis from a Military Perspective (in The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements, Carsten Stahn ed., forthcoming). Here's the abstract:
This chapter highlights the import of the war crimes provisions found in Article 8 of the Rome Statute and describes the correlative considerations related to charging practices for the maturing institution. It discusses the subtleties of the Rome Statute structure insofar as they facilitate a harmonious balance between the prerogatives of responsible military commanders and the vitally important role of the Court in prosecuting perpetrators of war crimes. The text of Article 8 should not be understood either as a rejection of prior practice or an evisceration of the core precepts that were widely accepted prior to 1998. When properly understood and applied in light of the Elements of Crimes, the Court’s charging decisions with respect to the war crimes found in Article 8 ought to reflect the paradox that its operative provisions are at once revolutionary yet broadly reflective of the actual practice of warfare. Even as Article 8 embodied notable new refinements, the Rome Statute made such sweeping legal advances against a backdrop of pragmatic military practice. The logical conclusion is that the carefully constructed Statute will have been effectively abandoned if the Court habitually overrides the permissible discretion of domestic officials by displacing the proper authority of responsible military commanders based on its own preferences or the expediency of political considerations. To be more precise, judicially superimposed preferences would effectively amend the Rome Statute contrary to the intentions of the States Parties. The text of Article 8 in essence baked in a complex commingling of lex lata hard law and established state practice, as informed by the much more diffuse expectations and assessments of expert practitioners. Section 2 of this chapter examines the explicitly permissive aspects of the laws and customs of war, while Section 3 details the conformity of the Rome Statute and its constituent Elements of Crimes with that basic framework. Section 4 builds on these foundational principles to identify some of the most important consequences of the design of the Rome Statute. The chapter concludes with a series of specific recommendations that should guide prosecutorial discretion in charging decisions as well as the range of judicial decision-making. To wit, Section 4 of this chapter explains how the Court should 1) recognize the principle of the jurisdictional floor for war crimes charging that is embedded in the Rome Statute, 2) understand the implications of the Status of Forces agreements widely employed in international military operations, and 3) respect and reinforce the rationale behind the principles embedded in Article 28.

Sarooshi: Investment Treaty Arbitration and the World Trade Organization: What Role for Systemic Values in the Resolution of International Economic Disputes?

Dan Sarooshi (Univ. of Oxford - Law; Essex Court Chambers) has posted Investment Treaty Arbitration and the World Trade Organization: What Role for Systemic Values in the Resolution of International Economic Disputes? (Texas International Law Journal, forthcoming). Here's the abstract:
The WTO Dispute Settlement System and ICSID are two of the most widely used methods of international dispute settlement. But the WTO, unlike ICSID, is much more than just a dispute settlement system: the WTO possesses an important institutional element that has the capacity to formulate and apply systemic values, and it is this feature which represents a fundamental difference between the WTO Dispute Settlement System and ICSID arbitration. This element of WTO dispute settlement provides this article with an analytical perspective that is used to evaluate and compare a number of key elements of WTO and ICSID dispute settlement in order to gauge the extent to which broader values can, or indeed should, play a role in these two leading fora for the settlement of international economic disputes. A number of issues considered include, e.g., dispute settlement and national regulations relating to the environment, applicable law, remedies, and amicus curiae submissions.

Call for Papers: 25 Years CRC

The Department of Child Law of Leiden University has issued a call for papers for a conference on "25 Years CRC" [UN Convention on the Rights of the Child], to take place November 17-19, 2014. The call is here.

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 53, no. 2, April-June 2013) is out. Contents include:
  • Articles
    • Katak Malla, Climate Change Loss and Damage Compensation
    • Ajay Sharma, Examining the Indian Multi brand Retail Sector FDI Policy's (in) consistency with the WTO National Treatment norms
    • Abdul Haseeb Ansari & Sri Wartini, The Application of Precautionary Principle under the SPS Agreement by the WTO: An Analytical Appraisal
  • Shorter Articles
    • C.E. Aduaka, Contemporary Problems in International Commercial Arbitration Practice in Nigeria

Hammerstad: The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security

Anne Hammerstad (Univ. of Kent - International Relations) has published The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security (Oxford Univ. Press 2014). Here's the abstract:

The Rise and Decline of a Global Security Actor investigates the rise of the United Nations High Commissioner for Refugees (UNHCR) as a global security actor. It follows the refugee agency through some of the past two decades' major conflict-induced humanitarian emergencies: in northern Iraq (1991), Bosnia (1991-95), eastern Zaire (1994-96), Kosovo (1998-99), Afghanistan (2001-) and Iraq (2003-). It analyses UNHCR's momentous transformation from a small, timid legal protection agency to the world's foremost humanitarian actor playing a central role in the international response to the many wars of the tumultuous last decade of the 20th century. Then, as the 21st century set in, the agency's political prominence waned. It remains a major humanitarian actor, whose budgets and staffing levels continue to rise. But the polarised post-9/11 period and a worsening protection climate for refugees and asylum seekers spurred UNHCR to abandon its claim to be a global security actor and return to a more modest, quietly diplomatic role.

The rise of UNHCR as a global security actor is placed within the context of the dramatic shift in perceptions of national and international security after the end of the Cold War. The Cold War superpower struggle encouraged a narrow strategic-military understanding of security. In the more fluid and unpredictable post-Cold War environment, a range of new issues were introduced to states' security agendas. Prominent among these were the perceived threats posed by refugees and asylum seekers to international security, state stability, and societal cohesion. This book investigates UNHCR's response to this new international environment; adopting, adapting, and finally abandoning a security discourse on the refugee problem.

Carnegie: States Held Hostage: Political Hold-Up Problems and the Effects of International Institutions

Allison Carnegie (Univ. of Chicago - Political Science) has published States Held Hostage: Political Hold-Up Problems and the Effects of International Institutions (American Political Science Review, Vol. 108, no. 1, pp. 54-70, February 2014). Here's the abstract:
This paper argues that the benefits of international institutions accrue disproportionately to pairs of states that find cooperation most difficult. It determines which states achieve the greatest gains from these institutions by identifying a central reason that states fail to cooperate in international relations: they fear being “held up” by other states for political concessions. Political hold-up problems occur when one state fails to undertake an otherwise productive investment due to the increased ability it would give another state to extract political concessions. Focusing on the World Trade Organization (WTO), I demonstrate that political hold-up problems are pervasive in international relations due to links between economic and political policies, but that international institutions can solve hold-up problems by helping to enforce agreements. I first formalize this argument and then empirically test the implications derived from the model, finding that the WTO increases trade most for politically dissimilar states by reducing states' abilities to hold up their trading partners for foreign policy concessions. I provide evidence of the causal mechanism by showing that WTO membership increases trade in contract-intensive goods and boosts fixed capital investment. I conclude that by solving political hold-up problems, international institutions can normalize relations between politically asymmetric states that differ in terms of capabilities, regime types, and alliances.

New Issue: International Journal of Transitional Justice

The latest issue of the International Journal of Transitional Justice (Vol. 8, no. 1, March 2014) is out. Contents include:
  • Onur Bakiner, Truth Commission Impact: An Assessment of How Commissions Influence Politics and Society
  • Joanna Pozen, Richard Neugebauer, & Joseph Ntaganira, Assessing the Rwanda Experiment: Popular Perceptions of Gacaca in Its Final Phase
  • Kirsten Campbell, Reassembling International Justice: The Making of ‘the Social’ in International Criminal Law and Transitional Justice
  • Francesca Lessa, Tricia D. Olsen, Leigh A. Payne, Gabriel Pereira, & Andrew G. Reiter, Overcoming Impunity: Pathways to Accountability in Latin America
  • Jonah S. Rubin, Transitional Justice against the State: Lessons from Spanish Civil Society-Led Forensic Exhumations
  • Diana Sankey, Towards Recognition of Subsistence Harms: Reassessing Approaches to Socioeconomic Forms of Violence in Transitional Justice
  • Bronwyn Harris, John Eyles, Loveday Penn-Kekana, Jana Fried, Harry Nyathela, Liz Thomas, & Jane Goudge, Bringing Justice to Unacceptable Health Care Services? Street-Level Reflections from Urban South Africa

Wednesday, February 19, 2014

Swaine: Substantive New Normative Provisions on Women and Armed Conflict Concurrently Adopted by the United Nations Security Council and the CEDAW Committee

Aisling Swaine (George Washington Univ. - Elliott School of International Affairs) has posted an ASIL Insight on Substantive New Normative Provisions on Women and Armed Conflict Concurrently Adopted by the United Nations Security Council and the CEDAW Committee.

Conference: The Syrian Crisis and International Law

On February 25-26, 2014, the College of Law, Qatar University will host a conference on "The Syrian Crisis and International Law," in Doha. I noted the call for papers here. The program is here. Here's the idea:

The College of Law, Qatar University is organizing an international conference focusing on ‘The Syrian Crisis and International Law’. The conference is scheduled to take place on the 25th and 26th of February 2014, in Doha (Qatar). Invited speakers will include academics, diplomats, activists and legal practitioners who will discuss different aspects of International Law applicable to the Syrian crisis. The conference aims to not only revisit the tragic events that have occurred but also, most importantly, to think ahead in the quest for peace and justice. The overall objective is to exchange ideas and suggestions on the future of the rule of law in Syria.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 141, no. 1, Janvier-Février-Mars 2014) is out. Contents include:
  • Doctrine
    • Alain Pellet, La jurisprudence de la Cour internationale de justice dans les sentences CIRDI (Lalive Lecture, 5 juin 2013)
    • Sandrine Sana-chaillé de Néré, Les conflits de normes internes issus du transfert à la Nouvelle-Calédonie de la compétence normative en droit civil, Réflexions sur l’élaboration d’une règle de conflit
    • Étienne Cornut, Les conflits de normes internes en Nouvelle-Calédonie, Perspectives et enjeux du pluralisme juridique calédonien ouverts par le transfert de la compétence normative du droit civil
  • Variétés
    • Nadia Darwazeh, Jerusalem Arbitration Center, Entre classicisme et avant-garde

Call for Papers: Procedural Fairness in International Courts and Tribunals

A call for papers has been issued for a conference on "Procedural Fairness in International Courts and Tribunals," to take place September 19-20, 2014, at the University of Surrey. Here's the call:

Procedural Fairness in International Courts and Tribunals

University of Surrey, Guildford

19-20 September 2014

The Surrey International Law Centre of the School of Law of the University of Surrey with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law (‘BIICL’) will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. A topical and timely subject for study, the question of procedural fairness entails the identification of fundamental principles inherent to the judicial and arbitral processes. Whilst the manifestation of such core standards of fairness will necessarily diverge according to the particular forum, the workshop aims to identify their essence with reference to the procedural issues arising in practice.

The aim of this workshop is to bring academics and practitioners together to initiate ground-breaking research into this novel topic. The workshop employs a comparative approach whereby participants will analyse the procedures and practices of various international courts and tribunals. It aims to identify patterns of commonality and divergence in the core standards of procedural fairness of international courts and to develop a holistic understanding of the nature of procedural fairness and the challenges to its realisation in the international judicial system.

Proposals are invited on topics relating to the aforementioned themes in addition to specific aspects of international judicial procedure. In addition, the workshop welcomes contributions on the theoretical question of the implications that fairness in international procedural law may have for general international law, such as its systemic traits, the ‘humanisation’ of international procedure and the responsibility of international courts and tribunals for failure to meet standards of fairness.

This call is directed to academics at all career stages who wish to bring fresh perspectives to the workshop with established scholars and practitioners. Senior scholars and practitioners who have committed to participate, subject to scheduling, include: Judge Paul Mahoney (European Court of Human Rights), Professor Philippe Sands QC (University College London and Matrix Chambers), Judge Sir Kenneth Keith (International Court of Justice), Judge Awn al-Khasawneh (former Judge, International Court of Justice), Dr Andraz Zidar (Dorset Senior Research Fellow, BIICL), Professor Sir David Edward QC (University of Edinburgh and Blackstone Chambers), Mr N. Jansen Calamita (University of Birmingham and Senior Research Fellow, BIICL), Ms Jill Barrett (Arthur Watts Senior Research Fellow, BIICL), Judge Joanna Korner QC (former prosecutor, International Criminal Tribunal for the Former Yugoslavia), Dr John Sorabji (University College London), and Mr Phillip Weiner (former prosecutor, International Criminal Tribunal for the Former Yugoslavia).

Submissions: Interested parties should submit an abstract of maximum 500 words by the 1st of April 2014 here. The organising committee comprises: Dr Arman Sarvarian (University of Surrey), Professor Sir Michael Aaronson CBE (University of Surrey), Professor Makane Mbengue (University of Geneva), Mr Rudy Baker (University of Surrey), Dr Sabine Braun (University of Surrey), Dr Filippo Fontanelli (University of Surrey), and Dr Vassilis Tzevelekos (University of Hull). Speakers will be informed of acceptance by the 1st of May, 2014 and will be expected to submit a paper by the 1st of August, 2014. Participants will be expected to pay a fee and to cover their travel and accommodation, details of which will be announced in due course.

Call for Papers: Rethinking the Boundaries of Public Law and Public Space

The International Society of Public Law (ICON·S) has issued a call for papers and panels for its inaugural conference, to be held June 26-28, 2014, in Florence. The theme is: "Rethinking the Boundaries of Public Law and Public Space." Here's the call:

International Society of Public Law (ICON·S)

2014 Inaugural Conference

Florence, June 26-28, 2014

CALL FOR PANELS AND PAPERS

“RETHINKING THE BOUNDARIES OF PUBLIC LAW

AND PUBLIC SPACE”

We invite you to join the newly established International Society of Public Law (ICON·S) and to propose panels and papers for our Inaugural Conference on “Rethinking the Boundaries of Public Law and Public Space”.

The Conference, to be held in Florence, Italy, on June 26-28, 2014, will be jointly organized by the European University Institute and the New York University School of Law.

The Conference program will include a keynote address by Jeremy Waldron, as well as three plenary sessions (a provisional program can be found here). The heart of the Conference, however, will be the two half-days devoted to the panels selected through this Call.

We welcome panel suggestions for the Conference as well as submissions of individual papers. Panel suggestions should include at least three papers by scholars who have agreed in advance to participate. Panel suggestions should also name one or two discussants. Concurrent panel sessions will take place over two half-days during the Conference. Each panel session will last 1 hour and 30 minutes.

The topics of Plenary Sessions are not meant to limit proposals to those specific issues. Panels and papers may focus on any theoretical and practical topic related to public law, administrative law, constitutional law, criminal law, or international law in all their possible domestic, transnational, supranational, international and global variants.

We particularly welcome panels that offer a genuine “trans-boundary” perspective: transcending the boundaries between different jurisdictions and legal traditions or between disciplines and areas of public law. We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic. Panels and papers challenging established theoretical schemes or adopting multi-disciplinary approaches are strongly encouraged.

ICON·S is by no means restricted to public lawyers! We welcome proposals from various areas of law (including civil, commercial, tax, and labor law), as well as from scholars from the humanities and the social sciences with an interest in the study of public law and public space.

Submissions from both senior and junior scholars (including advanced Ph.D. students) as well as practitioners are welcome. All submissions must be made through our online forms (for panels; for individual papers), by March 31, 2014. Applicants will be notified of acceptance by April 30, 2014.

All participants will be responsible for their travel and accommodation expenses.

Please find here a list of affiliated hotels.

For any further information please contact icons@icon-society.org

Tuesday, February 18, 2014

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 9, no. 1, March 2014) is out. Contents include:
  • Muhammet A. Bas & Randall W. Stone, Adverse selection and growth under IMF programs
  • Cullen S. Hendrix & Wendy H. Wong, Knowing your audience: How the structure of international relations and organizational choices affect amnesty international’s advocacy
  • Thomas Hale & Charles Roger, Orchestration and transnational climate governance
  • Simon Hug & Richard Lukács, Preferences or blocs? Voting in the United Nations Human Rights Council
  • Trude M. Midtgaard, Krishna Chaitanya Vadlamannati, & Indra de Soysa, Does the IMF cause civil war? A comment

Stahn, Easterday, & Iverson: Jus Post Bellum: Mapping the Normative Foundations

Carsten Stahn (Leiden Univ. - Law), Jennifer S. Easterday (Leiden Univ. - Law), & Jens Iverson (Leiden Univ. - Law) have published Jus Post Bellum: Mapping the Normative Foundations (Oxford Univ. Press 2014). Contents include:
  • Carsten Stahn, Jennifer S. Easterday, & Jens Iverson, Introduction
  • Larry May, Jus Post Bellum, Grotius, and Meionexia
  • Mark Evans, At War's End: Time To Turn to Jus Post Bellum?
  • Dieter Fleck, Jus Post Bellum as a Partly Independent Legal Framework
  • James Gallen, Jus Post Bellum: An Interpretive Framework
  • Jens Iverson, Jus Post Bellum and Transitional Justice
  • Carsten Stahn, R2P and Jus Post Bellum: Towards a Polycentric Approach
  • Eric de Brabandere, The Concept of Jus Post Bellum in International Law: A Normative Critique
  • Roxana Vatanparast, Waging Peace: Ambiguities, Contradictions, and Problems of a Jus Post Bellum Legal Framework
  • Fionnuala Ní Aoláin & Dina Haynes, The Compatibility of Justice for Women with Jus Post Bellum Analysis
  • Christine Bell, Of Jus Post Bellum and Lex Pacificatoria: What's in a Name?
  • Inger Österdahl, The Gentle Modernizer of the Law of Armed Conflict?
  • Gregory Fox, Navigating the Unilateral/Multilateral Divide
  • Kristen Boon, The Application of Jus Post Bellum in Non-International Armed Conflict
  • Astri Suhrke, Post-War States: Differentiating Patterns of 'Peace'
  • Jann Kleffner, Temporal Dimensions of Jus Post Bellum: Some Dilemmas and Possible Responses
  • Rogier Bartels, From Jus in Bello to Jus Post Bellum: When do Non-International Armed Conflicts End?
  • Martin Wählisch, Conflict Termination from a Human Rights Perspective: State Transitions, Power-Sharing, and the Definition of the 'Post'
  • Yaël Ronen, Post-Occupation Law
  • Dominik Zaum, The Norms and Politics of Exit: Ending Post-Conflict Transitional Administrations
  • Freya Baetens, Facilitating Post-Conflict Reconstruction: Is the UN Peacebuilding Commission Successfully Filling an Institutional Gap or Marking a Missed Opportunity?
  • Jennifer S. Easterday, Jus Post Bellum, Peace Agreements, and Constitution Making
  • Dov Jacobs, Targeting the State in Jus Post Bellum: Towards a Theory of Integrated Sovereignties
  • Matthew Saul, Creating Governments in the Aftermath of War: Is there a Role for International Law?
  • Aurel Sari, The Status of Foreign Armed Forces Deployed in Post-Conflict Environments: A Search for Basic Principles
  • Cymie Payne, The Norm of Environmental Integrity in Post-Conflict Legal Regimes
  • Frédéric Mégret, Should Rebels Be Amnestied?
  • Jens Iverson, Jennifer S. Easterday, & Carsten Stahn, Epilogue: Jus Post Bellum - Strategic Analysis and Future Directions

Lewis: The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950

Mark Lewis (College of Staten Island - History) has published The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 (Oxford Univ. Press 2014). Here's the abstract:

The Birth of the New Justice is a history of the attempts to instate ad hoc and permanent international criminal courts and new international criminal laws from the end of World War I to the beginning of the Cold War. The purpose of these courts was to repress aggressive war, war crimes, terrorism, and genocide.

Rather than arguing that these legal projects were attempts by state governments to project a "liberal legalism" and create an international state system that limited sovereignty, Mark Lewis shows that European jurists in a variety of transnational organizations derived their motives from a range of ideological motives - liberal, conservative, utopian, humanitarian, nationalist, and particularist. European jurists at the Paris Peace Conference in 1919 created a controversial new philosophy of prosecution and punishment, and during the following decades, jurists in different organizations, including the International Law Association, International Association for Criminal Law, the World Jewish Congress, and the International Committee of the Red Cross, transformed the ideas of the legitimacy of post-war trials and the concept of international crime to deal with myriad social and political problems. The concept of an international criminal court was never static, and the idea that national tribunals would form an integral part of an international system to enforce new laws was frequently advanced as a pragmatic-and politically convenient-solution.

The Birth of the New Justice shows that legal organizations were not merely interested in ensuring that the guilty were punished or that international peace was assured. They hoped to instil particular moral values, represent the interests of certain social groups, and even pursue national agendas. At the same time, their projects to define new types of crimes and ensure that old ones were truly punished also sprang from hopes that a new international political and moral order would check the power of the sovereign nation-state. When jurists had to scale back their projects, it was not only because state governments opposed them; it was also because they lacked political connections, did not build public support for their ideas, or decided that compromises were better than nothing.

Bartels: The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

Lorand Bartels (Univ. of Cambridge - Law) has posted The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects (European Journal of International Law, forthcoming). Here's the abstract:

That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question.

This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Second B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU’s obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.

Pulkowski: The Law and Politics of International Regime Conflict

Dirk Pulkowski (Permanent Court of Arbitration) has published The Law and Politics of International Regime Conflict (Oxford Univ. Press 2014). Here's the abstract:

The international order is constituted by a plurality of international regimes - institutionalized arrangements in different issue areas that possess their own norms and procedures. The present book examines how conflict among regimes may arise and probes the role that international law can play in managing such conflict. Throughout the book, the example of trade in cultural products is used to illustrate the evolution of regime conflict and the potential for its management. Conflicts between the goals of 'free trade' and 'cultural diversity' have notably surfaced within the World Trade Organization (WTO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). As a result, there is a potential for conflict among WTO law, the UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions, and human rights.

The book posits that three dimensions are characteristic for regime conflict: First, regime conflict is a function of conflict among different social goals or values. Second, such goal conflicts are institutionalized through the interaction of a variety of political actors struggling for influence, often in intergovernmental organizations. Third, regime conflict may manifest itself in conflicts of legal rules. If a state acts in conformity with the rules of one regime, its conduct may trigger a violation of the rules of another regime.

The author argues that, while international law cannot be construed as a fully integrated and unified system, it does provide a common language for different regimes to engage with each other. The shared discourse rules of international law enable a degree of coordination of the policies of different regimes, notably through techniques of interpretation and legal priority rules. International law contributes to the management of regime conflict by providing commonly accepted reasons for choosing among competing policy goals.

Monday, February 17, 2014

New Issue: Journal of International Trade Law and Policy

The latest issue of the Journal of International Trade Law and Policy (Vol. 13, no. 1, 2014) is out. Contents include:
  • Caf Dowlah, Cross-border labor mobility—a critical assessment of WTO’s GATS Mode 4 vis-à-vis Regional Trade Agreements
  • Abdul Haseeb Ansari & Sri Wartini, Application of precautionary principle in international trade law and international environmental law: a comparative assessment
  • Felicity Jane Deane, Emissions trading and the GATS financial services provisions: a case study of the Australian carbon pricing mechanism
  • Ana Manero Salvador, The drastic change of the EU relationship with ACP countries in the context of international economic relations
  • Meenakshi Ramesh Kurpad, Made in Bangladesh: challenges to the ready-made garment industry

Saul: Terrorism and International Humanitarian Law

Ben Saul (Univ. of Sydney - Law) has posted Terrorism and International Humanitarian Law (in Research Handbook on International Law and Terrorism, B. Saul ed., forthcoming). Here's the abstract:
This chapter focuses on the threshold issue when international humanitarian law (IHL) applies to violence involving terrorism or terrorist groups, in the context of international or non-international armed conflicts. It discusses the particularly complex problem of ‘transnational’ violence and the geographical and temporal scope of hostilities. It then considers the legal consequences of the classification of conflicts, as regards targeting, detention, substantive criminal liabilities, and criminal trial procedure. Overall the challenge of terrorism has principally impelled a clarification of existing IHL norms but without generating terrorism-specific rules or refashioning IHL’s basic norms. Terrorists can be targeted for direct participation in hostilities; administratively detained where they are dangerous; and prosecuted for war crimes. Human rights law applies alongside the lex specialis of IHL to supplement its rules in certain areas, particularly as regards detention in non-international conflict. There is no need for any special status of ‘terrorist’ in IHL, which would only serve to diminish existing humanitarian protections. The chapter concludes with observations about the impact of international counter-terrorism law on the effectiveness of IHL, including its balance between military necessity and humanitarian protection.

Luban: Human Rights Pragmatism and Human Dignity

David J. Luban (Georgetown Univ. - Law) has posted Human Rights Pragmatism and Human Dignity (in Philosophical Foundations of Human Rights, Massimo Renzo, Rowan Cruft, & Matthew Liao eds., forthcoming). Here's the abstract:

Human rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. I call this approach “human rights pragmatism.” It is pragmatism in that it puts practice rather than theory in the driver’s seat, and denies the need for theoretical foundations for international legal human rights.

In “Why International Legal Human Rights?” Allen Buchanan offers a forceful pragmatist critique of foundationalism, which he calls the “Mirroring View”: that international legal human rights must mirror moral rights. Buchanan demonstrates that there are reasons for establishing a regime of international legal human rights that have nothing to do with the Mirroring View. My paper is a response to Buchanan’s. I agree with Buchanan’s pragmatist critique of foundationalism, but I argue that without some connection between international legal human rights and moral rights grounded in human dignity, a regime of international legal human rights will fail on its own terms. The paper explores what that connection is, and explains why focusing on human dignity is essential on pragmatist, anti-foundationalist grounds.

Meyer: The Role of Science in Adducing Evidence of Climate Change

Timothy Meyer (Univ. of Georgia - Law) has posted The Role of Science in Adducing Evidence of Climate Change (in The Oxford Handbook on International Climate Change Law, Cinnamon Carlarne, Kevin R. Gray & Richard Tarasofsky eds., forthcoming). Here's the abstract:

This chapter applies the theory of the firm to argue that the Intergovernmental Panel on Climate Change (IPCC) might more effectively influence international climate change negotiations if it were directly subordinate to the United Nations Framework Convention on Climate Change. The chapter begins by describing the IPCC’s organization, as well as several recent challenges to the credibility of its work, most notably the “Climategate” scandal. The IPCC is an “epistemic institution” — an intergovernmental organization that assimilates basic scientific and/or technical research and applies it to specific legal or policy problems. States create epistemic institutions when unorganized epistemic communities cannot provide policy and law makers with a relevant, credible, and accessible scientific record. Such a record can improve law and policy making by 1) making it more responsive to scientific facts, but just as importantly, by 2) providing policymakers with a common factual basis for negotiations, 3) channeling disagreements into disputes about facts rather than values, and 4) publicly legitimating scientifically-based policies.

States must decide whether epistemic institutions like the IPCC should be independent or integrated into a lawmaking institution like the UNFCCC. This chapter argues that epistemic institutions should be integrated into legal institutions when states face a collective action problem, as they do in the climate change context. In these situations, coordinating environmental policies across countries cannot proceed unless a critical mass of states agree. Yet developing states frequently lack the capacity to evaluate the scientific record supporting proposed regulations. They may therefore fear opportunism by developed states in the form of a biased scientific record aimed at encouraging particular outcomes. Developing states may block the adoption of legal rules in part because they do not view the scientific record as credible. Hierarchical control of epistemic institutions can overcome this problem by allowing developing states a role in overseeing the scientific assessment process. By contrast, where a collective decision by a legal institution is not necessary to coordinate state behavior, the decentralized adoption of policy-relevant scientific recommendations signals to developing states that the scientific record is credible, thereby eliminating the need for hierarchical controls to perform the same function.

Applying this theory to the IPCC suggests that the IPCC might more effectively influence international climate negotiations if it were integrated into the UNFCCC. Such integration might make it more difficult for climate skeptics to attack the credibility of the IPCC. To be sure, such integration would likely entail costs in terms of the independence of the IPCC and its ability to remain above the political dynamics that have frustrated climate negotiations within the UNFCCC. But because a collective decision on climate change is necessary, bring science closer to politics may counter-intuitively improve the ability of science to influence politics.

Harrington: Extradition of Transnational Criminals

Joanna Harrington (Univ. of Alberta - Law) has posted Extradition of Transnational Criminals (in Routledge Handbook of Transnational Criminal Law, Neil Boister & Robert J. Currie eds., forthcoming). Here's the abstract:
The effort to suppress transnational crimes has not led to the creation of a new extradition processes, but instead relies upon various pre-existing extradition arrangements that are flexible enough to accommodate a variety of serious offences. Yet, despite the longstanding nature of these arrangements, extradition nevertheless remains a fraught process, often subject to delays, despite years of law reform. This chapter examines the issues that arise, taking into account the historical perspective as well as illustrative developments of a multilateral nature in both Europe and the Americas. The template for a model extradition treaty, as approved by states under the aegis of the United Nations, is also discussed, with its existence (notwithstanding revision in 1997) having failed to address the main obstacle to any effective extradition scheme, namely the lingering sense of distrust in another’s justice system that leads to the insistence on grounds for refusing an otherwise valid extradition request.

Sunday, February 16, 2014

Talmon & Jia: The South China Sea Arbitration: A Chinese Perspective

Stefan Talmon (Univ. of Bonn - Law) & Bing Bing Jia (Tsinghua Univ. - Law) have published The South China Sea Arbitration: A Chinese Perspective (Hart Publishing 2014). The table of contents is here. Here's the abstract:

On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People's Republic of China (PRC) under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea (South China Sea Arbitration). On 19 February 2013, the PRC formally expressed its opposition to the institution of proceedings, making it clear from the outset that it will not have any part in these arbitral proceedings and that this position will not change. It is thus to be expected that over the next year and a half, the Tribunal will receive written memorials and hear oral submissions from the Philippines only. The Chinese position will go unheard. However, the Tribunal is under an obligation, before making its award, to satisfy itself not only that it has jurisdiction over the dispute, but also that the claims brought by the Philippines are well founded in fact and law (UNCLOS Annex VII, Article 9).

This book aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal and thus to assist the Tribunal in meeting its obligations under the Convention. The book does not set out the official position of the Chinese government, but is rather to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. The book does not deal with the merits of the disputes between the Philippines and the PRC, but focuses on the questions of jurisdiction, admissibility and other objections which the tribunal will have to decide as a preliminary matter. The book will show that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

The book brings together scholars of public international law from mainland China, Taiwan and Europe united by a common interest in the law of the sea and disputes in the South China Sea.