The latest issue of the New York University Journal of International Law and Politics (Vol. 46, no. 2, Winter 2014) is out. Contents include:
The latest issue of the Journal of Conflict Resolution (Vol. 58, no. 4, June 2014) is out. Contents include:
The judgment of the European Court of Justice concerning the Kadi case has raised substantive and procedural issues that have caught the attention of scholars from many disciplines including EU law, constitutional law, international law and jurisprudence. This book offers a comprehensive view of the Kadi case, and explores specific issues that are anticipated to resonate beyond the immediate case from which they derive.
The first part of the volume sets out an analysis of the new judgment of the Court, favouring a "contextual" reading of what is the latest link in a judicial chain. The following three parts offer interdisciplinary accounts of the decision of the European Court of Justice, including legal theory, constitutional law, and international law. The book closes with an epilogue by Ernst-Ulrich Petersmann, who studies the role of the Kadi case in the methodology of international law and its contribution to the concept of global justice.
'L'idée de crime est un concept universel' pouvait-on lire dans un rapport publié en 1999 par les Nations Unies sur la criminalité dans le monde. Cette prémisse soulève la problématique générique au cœur de ce colloque : d'une part, une partie du discours scientifique sur l'international a contribué à déconstruire la notion d'universel en montrant que son usage occulte souvent des relations de domination ; d'autre part, plusieurs discours scientifiques sur le crime révèlent que le concept de crime n'a rien d'évident en soi, que le crime peut être vu comme le produit renégocié de luttes visant à le définir autant qu'à fixer la réponse institutionnelle que l'on entend lui apporter. C'est la rencontre et la discussion de ces deux perspectives critiques qui animeront ce colloque ; l'intuition sur lequel il repose est que les processus internationaux de criminalisation constituent un matériau privilégié pour saisir tant les pratiques impérialistes, passées et contemporaines, que les termes, consensuels ou dissensuels, de leurs analyses.
Depuis une vingtaine d'années, nous assistons, dans le paysage des sciences sociales, au retour du concept d'impérialisme. Dans la littérature, la notion d'Empire est convoquée en vue de rendre visible, par son usage, ce qu'une architecture internationale - des États Nations formellement égaux et tendanciellement coopérants - occulte puissamment - un monde composé d'un centre s'accaparant des satellites. Le concept d'impérialisme vise, ainsi et en général, à signifier le maintien d'un schème invariant de domination saisi au-delà des variations constatées dans les pratiques concrètes d'exploitation. Ce colloque visera à tester ce type de perspectives en s'attardant spécifiquement aux dimensions pénales de l'ordre juridique international afin d'identifier dans quelles mesures celles-ci contribuent à l'émergence, au maintien ou à la transformation d'une structuration inégalitaire de cet ordre. Car, sur l'arène internationale, l'un des éléments clefs observables à la charnière opérée entre le XXe et le XXIe siècle est la vigueur du recours à la notion de crime et ce à deux points de vue. D'une part, la plupart des interventions militaires ont été justifiées par la dénonciation d'un "crime international", qu'il soit de guerre, contre l'humanité ou encore constitutif de génocide. D'autre part, ont été mises en place des institutions largement internationales ou internationalisées chargées d'identifier et/ou de poursuivre ces criminels.
Ainsi, ce colloque entend croiser plusieurs disciplines et paradigmes en vue d'envisager à l'aide d'une grille de lecture critique comment se déploient aujourd'hui les processus internationaux de criminalisation. À cette fin, son programme s’articule autour de quatre panels. Le premier visera à situer historiquement, géographiquement et socialement la notion même de crime international en revenant notamment aux racines du droit pénal international. Le deuxième panel analysera le rôle et la place des élites politiques ou académiques dans l'analyse théorique et le déploiement pratique de ce droit. Un troisième panel rendra compte des manifestations inédites ou à construire de la justice pénale internationale notamment en matière environnementale ou dans les camps de personnes déplacées. Enfin, un dernier panel réunira les chercheurs et chercheuses interrogeant les prémisses et les produits paradoxaux de la justice dite transitionnelle dont les objectifs sont aussi divers que les modalités. Ce colloque se terminera par la présentation inédite d'un cas illustrant l'hypothèse de ce colloque, soit l'instrumentalisation géopolitique de ce double mouvement de criminalisation des relations internationales et d'internationalisation des criminalités . . .
The Israel Law Review invites submissions on areas of interest in human rights, international and public law.
The Israel Law Review is a double-blind peer reviewed journal established in 1966, published by Cambridge University Press under the auspices and management of the Minerva Center for Human Rights at the Law Faculty of the Hebrew University of Jerusalem. Under this stewardship, it focuses on scholarship in the fields of human rights, public law and international law. The Chief editors of the journal are Prof. Sir Nigel Rodley, University of Essex, UK, and Prof. Yuval Shany, Hebrew University of Jerusalem, Israel. Issues of recent years have featured contributions by prominent scholars such as Martti Koskenniemi, Lech Garlicki, David Kretzmer, Kenneth Watkin, Yuval Shany and Mark Tushnet.
The journal publishes articles, shorter pieces addressing topical issues under the rubric of 'opposing views', as well as book reviews and review essays. We aim to present scholarship that is representative in terms of gender, geographical distribution and viewpoint. We accept submissions on a rolling basis.
Consideration will normally be given only to original material that has not previously been published and is not under consideration elsewhere. All submissions are subjected to a double-blind review process. You can find further details on our publication policy and process here.
For queries and additional information, please contact the academic editor, Dr. Yaël Ronen, at yael.ronen@mail.huji.ac.il.
The latest issue of Global Responsibility to Protect (Vol. 6, no. 1, 2014) is out. Contents include:
The latest issue of the Journal of International Trade Law and Policy (Vol. 13, no. 2, 2014) is out. Contents include:
The latest issue of the International Journal of Refugee Law (Vol. 26, no. 1, March 2014) is out. Contents include:
This conference aims to comprehensively address the contemporary phenomenon of ‘boat migration’ with a holistic approach. We will consider its multiple facets, combining knowledge from several disciplines and regions of the world, with a view to making a decisive contribution to our understanding of current trends, against the background of the fragmentary responses adopted and innumerable tragedies occurred thus far.
The final goal is to unpack the tension between security concerns and human rights in this context. Therefore, our joint reflections will build on recent developments in law and case law regarding the applicability of human rights at sea and take account of past and present policy experiences to help placing on-going discussions within a comprehensive framework. The objective is to trigger an inter-regional and multidisciplinary dialogue with contributions from Law of the Sea, maritime security, migration and refugee studies, and human rights, to address the position of ‘migrants at sea’ from an integrated perspective, bridging current gaps in knowledge and policy responses, ranging from how to conceptually categorise ‘boat migrants’, to how to respond to differing needs and entitlements and how to reconcile them with State obligations and security constraints.
The conference is projected following a logical flow, which starts with the joint identification of the subject matter, moving on to the analysis of core issue-areas and policy initiatives adopted in the EU and beyond, and closing with the identification of outstanding problems, pointing the way ahead in which research should move to contribute to the development of sustainable policy, mindful of both State interests and the rights of refugees and migrants. Attention will be drawn to the instruments, actors and institutions involved to yield insights on how migration by sea has been and should be governed. To this end, each session will regroup panelists from a variety of backgrounds, who will be asked to deal with a common question.
International Review of Law is seeking papers for a special issue on ‘The Syrian Crisis and International Law’.
Our goal is to discuss various aspects of International Law applicable to the Syrian crisis. The special issue aims to bring together different perspectives and welcomes theoretical, doctrinal and empirical approaches. We will be publishing the work of select scholars working on a range of themes which could involve:
- public international law, including collective security and the use of force as well as papers exploring the applicability of the Responsibility to Protect theory;
- international humanitarian law and international human rights law including the relationship of the two bodies of law in the Syrian context;
- international criminal law – procedural and substantive aspects;
- refugee protection and the international ramifications in the Arab region.
International Review of Law is a bilingual, open-access, peer-reviewed international law journal published by QScience.com.
Those interested in contributing are requested to respond to this call for papers by submitting their submissions by August 15th, 2014 at this link.
All submissions will be subject to double-blind peer-review. Submissions are accepted in both English and Arabic. Articles of between 6,000 and 10,000 words are preferred but shorter or longer articles may be considered. Authors should follow the Bluebook citation format.
For an informal discussion please email the guest editor, Assistant Professor Adamantia Rachovitsa, College of Law, Qatar University, at: rachovitsa@qu.edu.qa
Although self-determination is rightly regarded as one of the highest collective rights protected by the UN Charter, there is precious little positive law outlining the scope and content of this right because courts rarely pass judgment on claims regarding self-determination. This Essay makes three elementary points regarding the core right of self-determination. First, although the right of self-determination has been inhibited by uncertainty surrounding its connection to the abstract concept of peoples or nations, these entities can be defined either through self-perceptions or other-perceptions, and either is sufficient to ground the right of self-determination. Second, the right of self-determination belongs to a cluster of legal rights, including the right to be free from aggression and genocide, which emerge from two natural rights: the right to exist and the right to resist autonomy-threatening attacks. Although one might think that a right of resistance is necessarily an outgrowth of the more primary right to exist (since resistance might be an instrumental method of securing existence), the following Essay denies this common-sense intuition. This brings us to the third claim: the right of resistance is an independent, neo-Kantian right regarding the autonomy of collective groups, such as nations or peoples, that is not reducible to the right to exist. The primary argument for its theoretical independence stems from a discussion of cases of futile self-defense, where it is certain that resistance will not achieve the continued existence of the defender. But even in such cases where annihilation is inevitable and existence cannot be protected, the right of resistance persists.
Der Autor würdigt in vorliegender Untersuchung etablierte Theorien zur Erklärung des Verhältnisses von Völkerrecht zu Staatsrecht (Monismus, Dualismus). Aufgrund ihrer undifferenzierten absoluten Rechtsfolgen sowie wesentlicher Veränderungen des Völker- und Staatsrechts werden ihnen aber Aktualität und damit eine zufriedenstellende Erklärung des Verhältnisses im 21. Jahrhundert abgesprochen. Lando Kirchmair skizziert eine Alternative und richtet den Fokus auf die Entwicklung neuer theoretischer Grundlagen zum Verhältnis von Völkerrecht zu Staatsrecht.
Teil A. begründet die Theorie des Rechtserzeugerkreises (TREK), welche als gemeinsamer Nenner von Völkerrecht und Staatsrecht identifiziert wird. Teil B. analysiert die Auswirkungen der TREK anhand des Beispiels der österreichischen Rechtsordnung. Während die herrschende Lehre die Rezeption von Völkerrecht in die österreichische Rechtsordnung vertritt, stellt die Arbeit die Integration des Völkerrechts in die nationale Stufenbauordnung in Frage. Entsprechend der TREK werden die einschlägigen Bestimmungen der österreichischen Rechtsordnung als Ermächtigungsnormen zum Abschluss völkerrechtlicher Bestimmungen verstanden.
Um grundlegende und nicht spezifische Fragen einzelner (Völker-)Rechtsquellen zu adressieren, werden die Rechtswirkung von Völkervertragsrecht, Völkergewohnheitsrecht, allgemeiner Rechtsgrundsätze, Rechtsakte internationaler Organisationen und erstmals auch zwingendem Völkerrecht und einseitiger Rechtsgeschäfte in der österreichischen Rechtsordnung untersucht.
A century after the outbreak of the Great War, we have forgotten the central role that international law and the dramatically different interpretations of it played in the conflict’s origins and conduct. In A Scrap of Paper, Isabel V. Hull compares wartime decision making in Germany, Great Britain, and France, weighing the impact of legal considerations in each. Throughout, she emphasizes the profound tension between international law and military necessity in time of war, and demonstrates how differences in state structures and legal traditions shaped the way in which each of the three belligerents fought the war.
Hull focuses on seven cases in which each government’s response was shaped by its understanding of and respect for the law: Belgian neutrality, the land war in the west, the occupation of enemy territory, the blockade, unrestricted submarine warfare, the introduction of new weaponry (including poison gas and the zeppelin), and reprisals. Drawing on voluminous research in German, British, and French archives, the author reconstructs the debates over military decision making and clarifies the role played by law—where it constrained action, where it was manipulated to serve military need, where it was simply ignored, and how it developed in the crucible of combat. She concludes that Germany did not speak the same legal language as the two liberal democracies, with disastrous and far-reaching consequences. The first book on international law and the Great War published since 1920, A Scrap of Paper is a passionate defense of the role that the law must play to govern interstate relations in both peace and war.
Does it matter that we call something law? Discussions abound on the question whether we should put the label “law” on certain norms or systems of norms. There are many areas of social life - perhaps an increasing number of areas of social life - where it isn’t obvious what we should, or can, call law. International law is a classical terrain for such debates. Stateless law is another, notably in regard to international arbitration. Much scholarly work is put into these discussions. But does it actually matter? Why can’t we, like Humpty Dumpty, simply call law whatever we want? Are we really doing more, there, than settling semantics? Then again, if it does have consequences where we see law, shouldn’t these consequences be taken into consideration - actually be central - in our discussions of what we are willing to call law? Shouldn’t the consequences of affixing the label of law be the point of departures for investigations about the whereabouts of legality? These questions, illustrated by reference to international law, stateless law, and international arbitration, form the substance of the current chapter of the book TRANSNATIONAL LEGALITY: STATELESS LAW AND INTERNATIONAL ARBITRATION (Oxford University Press 2014).
The European Journal of International Law has announced the launch of the journal’s official podcast, EJIL: Live! Regular episodes of EJIL: Live! will be released in both video and audio formats to coincide with the publication of each issue of the journal, and will include a wide variety of news, reviews, and interviews with the authors of articles appearing in that issue.
The first video episode features an extended interview between the editor-in-chief of the journal, Joseph Weiler, and Maria Aristodemou, whose article "A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours" appeared in issue 25:1. The first audio episode features a shorter, edited version of the same interview, as well as conversations with the journal's book review editor, Isabel Feichtner, and the editors of EJIL: Talk!, Dapo Akande and Marko Milanovic.
Episodes of EJIL: Live! can be accessed, in both audio and video formats, via the EJIL website and the EJIL: Talk! website. EJIL: Live! is also available by subscribing to the EJIL: Live! channel on YouTube (for videos) and the EJIL: Live! account on SoundCloud (for audio podcasts). Additional, special episodes will also be released from time to time to address a range of topical issues.
When courts are required to reach a decision, they are often faced with the dilemma whether to give primacy to the pragmatic implications of the litigation on the case or to its normative effects on society at large. This pull between normativity and pragmatism is not only the province of courts, but defines law in its essence throughout its diverse fields and manifestations.
How ought law deal with the inherent tension between solving specific cases and setting general rules? How do different fields of law, such as constitutional law, transitional justice and human rights, administrative law, civil law, corporate law, criminal law, transnational law, international law, environmental law and others consider and handle this tension? What are the obligations of states towards foreign individuals or communities under this framework? How do different actors, such as cause lawyers, political lawyers, state prosecutors, and human rights organizations, approach this tension? And what are the effects of historical, social, political, global and technological changes on this dilemma?
We invite junior scholars (doctoral candidates, VAPs, writing fellows, and post doctoral fellows) from universities and research institutions throughout the world to submit abstracts involving the leading theme of the workshop.
Limited travel grants and accommodation will be available for participants with no institutional funding.
Submissions: Abstracts of up to 500 words of the proposed presentation (with your institutional affiliation(s)) should be submitted by email to TAU.workshop2014@gmail.com by June 12, 2014. Applicants requesting travel grants and/or accommodation should indicate so in their submission, along with the amount asked for.
Applicants will be informed of acceptance or rejection by July 15, 2014. Selected presenters must submit their papers up to 10,000 words in length by October 10, 2014.
For further inquiries contact us at TAU.workshop2014@gmail.com.
The latest issue of Criminal Law Forum (Vol. 25, nos. 1-2, June 2014) is out. Contents include:
This article provides empirical support for what might strike some as a truism: oral proceedings before the International Court of Justice (the Court) are dominated by male international law professors from developed States. In order to test this claim, our study examines the composition of legal teams appearing on behalf of States before the Court in contentious proceedings between 1999 and 2012. We have focused, in particular, on counsels’ gender, nationality, the development status and geographical region of their country of citizenship, and their professional status (as members of law firms, barristers or solo practitioners, professors, or other). The results of our study raise questions about the evident gender imbalance among counsel who have appeared before the Court during the timeframe of this study, as well as the apparent preference that States have shown for ‘repeat players’ and professors of public international law. By presenting data on the composition of legal teams, and discussing possible explanations for the patterns that we have observed, this study aims to contribute to the development of a body of scholarship on international law as a profession.
The notion of a contractual “gap” is an evanescent one, which can -- and often does -- mean everything and nothing. It could perhaps be said that the very notion of a “gap” is simply incoherent -- for once we are satisfied that the parties have entered into a “contract,” there can by definition be no “gaps.” Indeed, by its legal definition a “contract” cannot be incomplete. Or perhaps it could be said that, by contrast, there are nothing but “gaps” -- that unless the parties have taken the pains to construct an infinite agreement, mapping onto every conceivable state of the world, likely or unlikely, known or unknown -- then courts must be free to reconstruct or interpolate.
When we are working through problems like this in the context of arbitration, the difficulties become far more acute -- for here our ordinary concerns aimed at giving effect to contractual intention, if we can locate it, intertwine with our concerns aimed at giving effect to the choice of private decisionmakers -- that is, at preserving the powers that the parties (and thus the state) have entrusted to them.
A failure of agreement may at times be fatal in the sense that -- as in some low-budget horror film -- the cracks spread so widely as to swallow up any pretense of a contract. On the margins of contractual behavior, or at its outer limits, we may find it impossible to construct any story at all with respect to what the parties have agreed to -- in which case neither has any right to impose duties on the other.
Here, though, a rather naive “contract/no contract” dichotomy is infinitely less interesting than two related points: that (a) such challenges must not be taken to impair any contractual duty to arbitrate---and so they should be entrusted to the arbitrators themselves for decision; and (b) the parties may have contemplated that any “gaps” that present themselves -- however fatal they would otherwise be -- could be filed in by the arbitral tribunal itself: In a sense then an arbitrator’s decision, being itself an “instance of contractual gap-filling, just is a term of the parties’ contract.” It is thus a familiar proposition that what might otherwise be a fatal “uncertainty” of terms can be cured simply by adding an arbitration clause.
The Supreme Court has recently grappled with the problem of omitted terms -- phrased in terms of “silence” -- in three recent cases all involving classwide proceedings. It is hard to know just where the Court has left us in our attempt to assess the power of arbitral tribunals to “fill gaps” in apparently “silent” agreements. One may well be forgiven for thinking that the result-oriented “reading” indulged in by the arbitrator in Oxford Health -- in which the Court apparently saw itself obligated to acquiesce -- has set courts on the path of leaving future arbitrators quite at large.
A number of things, though, can be asserted with at least some degree of confidence. 1. The results reached by the arbitral tribunal in Oxford Health -- and by those in succeeding cases -- seem to be perfectly in line with the expansive “gap filling” authority that I have argued should be presumptively attributed to arbitrators. This is at least as broad as -- and indeed considerably exceeds -- the authority that a “common-law court” is assumed to possess. 2. The Court’s refusal in Stolt- Nielsen to allow arbitrators themselves to devise appropriate default rules in the absence of some demonstrable “agreement,” may perhaps have rested on considerations peculiar to classwide proceedings -- concerns that seemed to justify the intrusion of some supervening federal common-law default rule that arbitrators are bound to respect. But whether in that context or otherwise, there is inherent in the Court’s opinion a vision of arbitral adjudication that is cramped indeed -- and which in consequence creates obvious incentives for private decisionmakers to be somewhat less than candid with respect to the true rationale of their awards, in the interest of avoiding the risk of vacatur. This cabined view of what is permissible (finding a “contractual basis”) and what is not (creating “sound policy”) promotes disingenuousness and so denatures the arbitral task, which -- precisely as is true for state tribunals themselves -- should embrace both.
The paper is organized into three parts. First, it provides an overview of the process through which the general principle of proportionality, which judges operationalize as a multi-stage series of tests, has diffused globally. Today, the most powerful courts in the world, at both the national and international levels, use proportionality analysis [PA] to assess state claims to available derogations from constitutional or treaty obligations for measures that are “necessary” to achieve important public or state interests. Second, it examines how proportionality appeared in investor-state arbitration (ICSID), in the context of the Argentina cases. Since 2005, a series of arbitral tribunals have been required to interpret a derogation clause, contained in Article XI of the U.S.-Argentina Bilateral Investment Treaty (Art. XI-BIT) which, Argentina claimed, exempted it from liability to investors during its massive economic meltdown (roughly 1999-2002). In 2008, the tribunal in Continental Casualty v. Argentina deployed a method of interpreting Art. XI-BIT that was directly inspired by the jurisprudence of the Appellate Body of the World Trade Organization. The move has been controversial in some quarters. José Alvarez and his collaborators [e.g., José E. Alvarez & Katheryn Khamsi, The Argentina Crisis and Foreign Investors: A Glimpse into the Heart of the International Investment Regime, 2008/2009 Yearbook on International Investment Law and Policy 379; José E. Alvarez & Tegan Brink, Revisiting the Necessity Defense: Continental Casualty v. Argentina, 2010-2011 Yearbook on International Investment Law & Policy 319], in particular, have harshly criticized the Continental Casualty award as being indefensible legally. Alvarez’s views on the Argentina cases are untenable and we reject them. Third, we address the evolution of the general principles of law more generally. Certain fundamental principles of law, not least the maxim nemo judex in re propria, derive from understandings about the law that are shared by most, if not all, the legal systems of the world. These general principles are foundational, in that they help judges organize the internal morality of any legal system based on the rule of law. When international and supranational courts assess the validity of national rules and measures, they should and do refer to the wider world of principles. In a recent paper, Beware Boundary Crossings [in Boundaries of Rights, Boundaries of States (Tsvi Kahana & Anat Schnicov eds., forthcoming)], Alvarez, after restating his objections to Continental Casualty, argues that legal systems should not borrow from one another, or evolve common principles, except in narrow circumstances. We reject this view as well. Most important, Alvarez’s approach fails to explain actual judicial practice, as our brief survey of the evolution of due process requirements in a variety of national and international jurisdictions demonstrates.
Today marks the seventh anniversary of the International Law Reporter's inaugural post. Approximately 9300 posts have followed.
The idea behind ILR was straightforward - to post the latest and most interesting news and information on scholarship, events, and ideas in international law and related fields. An obvious corollary was that reports should reflect the wide range of scholarship out there - in terms of viewpoint, scholarly discipline, type of publication, and language. Another was that ILR's coverage should encompass the full scope of contemporary international law subjects. In other words, the assumption was that folks interested in international law needed to know not only what was going on in their own particular specialty and in their own particular country but also what was going on in seemingly unrelated substantive areas and unfamiliar disciplines and in journals and books published in different languages and in different parts of the world.
I have tried hard to do all this, but I know that there is always room for improvement. Suggestions are most welcome. And though I cannot guarantee that I will post everything I receive, I encourage you to contact me with announcements of events, calls for papers, job openings, and current and forthcoming publications.
If you would like to join the more than 2200 persons who follow ILR daily through various electronic services, you can sign up for the rss feed, become a twitter follower, or subscribe to the daily email updates.
The latest issue of the Melbourne Journal of International Law (Vol. 14, no. 2, March 2014) is out. Contents include:
