- JHHW, Fateful Elections? Investing in the Future of Europe; Masthead Changes; In this Issue
- EJIL: Keynote!
- Anne Orford, Scientific Reason and the Discipline of International Law
- Sergio Puig, Social Capital in the Arbitration Market
- Tilmann Altwicker & Oliver Diggelmann, How is Progress Constructed in International Legal Scholarship?
- Grégoire Mallard, Crafting the Nuclear Regime Complex (1950–1975): Dynamics of Harmonization of Opaque Treaty Rules
- New Voices: A Selection from the Second Annual Junior Faculty Forum for International Law
- Moria Paz, The Tower of Babel: Human Rights and the Paradox of Language
- Arnulf Becker Lorca, Petitioning the International: A ‘Pre-history’ of Self-determination
- Roaming Charges: Places of Social and Financial Crisis: Dublin 2014
- EJIL: Debate!
- László Blutman, Conceptual Confusion and Methodological Deficiencies: Some Ways that Theories on Customary International Law Fail
- Andrew T. Guzman & Jerome Hsiang, Some Ways that Theories on Customary International Law Fail: A Reply to László Blutman
- Critical Review of International Jurisprudence
- Loveday Hodson, Women’s Rights and the Periphery: CEDAW’s Optional Protocol
- Critical Review of International Governance
- Wolfgang Hoffmann-Riem, The Venice Commission of the European Council – Standards and Impact
Saturday, August 2, 2014
The dilemma of holding prosecutors accountable while ensuring their independence was at the center of the debates surrounding the establishment of the International Criminal Court (ICC). The drafters of the Rome Statute for the ICC understood that the Court would be handling cases with significant political implications and yet working with limited resources and no independent enforcement capacity. To enhance prosecutors’ ability to operate successfully in this environment, the drafters enshrined prosecutorial independence into the Statute and gave prosecutors significant discretion over charging and investigation decisions. At the same time, drafters worried that ICC prosecutors were not sufficiently accountable to anyone. This led to the decision to give judges and the Assembly of States Parties limited authority to oversee prosecutorial actions.
This chapter reviews how the ICC has addressed prosecutorial mistakes and misconduct in the first ten years of its existence. It evaluates how existing sanctions and remedies for prosecutorial wrongdoing respond to the challenge of preserving the independence of international prosecutors while ensuring their accountability. Finally, the chapter examines whether stricter internal oversight, discipline by external professional bodies, or informal sanctions can usefully supplement existing judicial and administrative sanctions for prosecutorial misconduct at the ICC.
Friday, August 1, 2014
- Shifting from Article 103 to ‘equivalent protection’. The Al-Dulimi case before the European Court of Human Rights
- Introduced by Antonello Tancredi
- Maura Marchegiani, Le principe de la protection équivalente dans l’articulation des rapports entre ordre juridique des NU et CEDH après l’arrêt Al-Dulimi
- Gianluigi Palombella, The principled, and winding, road to Al-Dulimi. Interpreting the interpreters
Tuesday, July 29, 2014
Jinks, Maogoto, & Solomon: Applying International Humanitarian Law to Judicial and Quasi Judicial Bodies - International and Domestic Aspects
International humanitarian law has been perceived till now as encompassing only judicial cases concerning refugee protection or war crimes prosecutions, particularly in domestic fora. Yet, the last decade has witnessed a revolution in the way judicial bodies—international and domestic alike—are ready to tackle complex security aspects pertaining to the laws of war. The present volume follows the international and domestic courts’ jurisprudential evolution as they deal with issues like the classification of armed conflicts, direct participation in hostilities and the nexus between international humanitarian law and human rights law. Projecting the field’s jurisprudential development, the volume examines the role of international humanitarian law also in the realms of quasi-judicial bodies.
- Volume 364
- Giorgio Gaja, The Protection of General Interests in the International Community. General Course on Public International Law
- H.P. Glenn, La conciliation des lois. Cours général de droit international privé
Call for Submissions: The World Trade Organisation
The editors of the International Community Law Review are pleased to announce a call for papers for a special issue of the journal on ‘The World Trade Organisation’.
The International Community Law Review is a peer-reviewed academic journal, published quarterly by Brill/Nijhoff. The journal addresses all aspects of international law and the international community, and aims to explore the implications of various traditions of international law and how the international community uses and adapts international law to deal with new and emerging challenges.
Submissions are invited for the special issue on all aspects of the topic. Areas of interest may include (but are not restricted to):
All those with an interest in the subject are invited to contribute articles for publication in the special issue. Proposals for papers should be should be no more than 10000 words, and be submitted to the editors by 31st January 2015. Publication is expected in the second quarter of 2016. For further information please contact Dr Sarah Singer at email@example.com
- The World Trade Organisation (WTO) and the protection of natural resources;
- Standard of review in the context of the International Court of Justice case Whaling in the Antarctic (Australia v. Japan: New Zealand intervening);
- The input of the WTO in the development of the law of treaties, especially in relation to:
- the object and purpose of a treaty;
- systemic integration;
- evolutionary or dynamic interpretation.
Call for Papers
Lex Mercatoria Publica - Workshop
The (Comparative) Constitutional Law of Private‐Public Arbitration
Heidelberg, November 21‐22, 2014
Arbitrations between private economic actors and public law bodies are on the rise, both under international investment treaties and contracts between private and public actors, such as concession agreements or public‐private‐partnerships. Arbitrators, instead of domestic courts, now settle a wide variety of private‐public disputes, ranging from the simple non‐fulfillment of contractual obligations to complex disputes about the limits of states’ regulatory powers. Yet, in doing so, they not only settle disputes, but also review the legality of government acts and incrementally develop the applicable law. Arbitrators thereby become important law‐makers that generate the law governing public‐private relations rather independently of specific domestic legal systems and their democratic processes. The body of law thus developed, designated for present purposes as lex mercatoria publica, may then prospectively steer and restrict government conduct.
Relegating the resolution of private‐public disputes to arbitration raises questions of legitimacy and concerns for principles of constitutional law, such as democracy, the rule of law, and the protection of fundamental rights, because governments are controlled, and the concrete delineation of private rights and public interests is drawn, not by democratically legitimized domestic courts, but by party‐appointed one‐off arbitral tribunals. Concerns of a constitutional nature are all the more significant as arbitration proceedings in private‐public disputes do not conform to safeguards that are usually in place in public law adjudication in domestic courts, such as transparency of the proceedings, possibilities for third‐party participation, limitations on damages as public law remedies, or the need for public law expertise of adjudicators. Instead, arbitration generally follows private law rationales, such as party autonomy and confidentiality of the proceedings. All of this may endanger how states regulate in the public interest. It raises questions, such as: how are arbitrators in such proceedings legitimized? What powers do they, or should they have? What is their proper role when reviewing government acts? What is the appropriate normative framework governing their activity? Is the consent of the disputing parties sufficient to legitimize private‐public arbitrations, or are farther‐reaching public law strictures necessary?
The ERC‐funded Lex Mercatoria Publica Project under the direction of Dr. Stephan Schill (a brief description is here) aims at developing a solid framework for assessing legitimacy concerns relating to private‐public arbitration. However, rather than discussing in the abstract how constitutional ideals may impact private‐public arbitration, it aims at developing criteria to assess the legitimacy of private‐public arbitrations through comparative analysis of concrete constitutional regimes. It wants to explore the conditions under which different domestic legal systems, as well as supranational regional regimes, permit private‐public arbitrations, and distil, if possible, common principles, or develop different models, from such a comparative exercise. How does, for example, Columbian, Brazilian, Chinese, Indian, French, Russian, South‐African, or US (constitutional) law and practice look at the involvement of its and other government entities in arbitration? Does it treat it differently from commercial arbitration between private parties? To which extent does it permit it? How does it regulate private‐arbitration? What control mechanisms does it establish in order to ensure that the public interest is safeguarded when public entities agree to have disputes resolved through arbitration rather than in domestic courts? Similarly, what is the position, for example, of ASEAN, the EU, the Council of Europe, the Inter‐American Convention on Human Rights, OHADA, or COMESA on these issues?
Against this background, a workshop is convened at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg on November 21‐22, 2014, which focuses on the constitutional law of private‐public arbitration in a comparative perspective. It aims to receive contributions from participants that will address, in the form of national reports or (regional) comparative analyses, how a specific jurisdiction (e.g., Spain, Egypt, or Russia), a group of countries (e.g., West‐Africa, Central‐Asia, Central Europe), or a regional organization (e.g., OHADA, ASEAN) approach and regulate private‐public arbitration and how they ensure that the public interest is safeguarded when public entities agree to arbitrate disputes. Contract‐based as well as investment treaty‐based, domestic and international arbitration should be considered.
We hope to receive contributions reporting on jurisdictions that are representative of as many of the world’s legal systems as possible and particularly encourage contributions from jurisdictions that are usually under‐represented in comparative law research, including from Latin‐America, Africa, and Asia. Possible contributors can be specialists in arbitration with expertise in constitutional and administrative law or vice‐versa specialists in constitutional or administrative law with knowledge of arbitration.
Submission of Proposals and Timeline
Original and non‐published submissions from both junior and senior academics and practitioners are invited on the themes outlined above. An abstract of max. 800 words and the applicant’s CV should be sent (in .pdf or .doc format) to lex‐firstname.lastname@example.org by 15 September 2014. Abstracts must include the legal order(s) considered, the approach taken by the author, and the major arguments to be made.
A selection panel will consider all abstracts and notify applicants of acceptance by 30 September 2014. Applicants must be prepared to circulate a draft of their paper by 10 November 2014. Following the Workshop, papers must be prepared for publication in an edited monograph with a leading international publisher. Costs for travel and accommodation will be covered by the organizers.
If you are unable to attend the workshop, but are interested in contributing to the edited volume, we are equally happy to receive your statement of interest. Please direct inquiries to lex‐email@example.com.
Monday, July 28, 2014
- Raphael Bitton, Intelligence Agents, Autonomous Slaves and the U.S. Supreme Court’s Wrong (and Right) Concept of Personal Autonomy
- Sergii Shcherbak, How Should Bitcoin Be Regulated?
- Zygimantas Juska, Obstacles in European Competition Law Enforcement: A Potential Solution from Collective Redress
- Jaime Rodriguez Medal, Transparency in the Staff Selection Procedure of the EU Institutions: Comments on the Pachtitits Case
- Mandana Niknejad, European Union Towards the Banking Union, Single Supervisory Mechanism and Challenges on the Road Ahead
Call for Papers
International Interdisciplinary Conference
Working Group of Young Scholars in Public International Law
The Transnational in International Law
University of Bremen
25 ‒ 27 March 2015
International legal scholarship has since long tried to comprehend the diversifica-tion of actors, rules, and authorities in international law. Almost 60 years ago, Philip Jessup, who was later appointed as a judge at the International Court of Justice, developed the idea of a “transnational law”, including “all law which regulates actions or events that transcend national frontiers”. His approach aimed at substitut-ing and expanding the traditional notion of international law which used to be confined to inter-state relations. Recently, similar approaches have regained significance in analyzing the impact of what is commonly called globalization on the law. It still remains unclear, however, how such approaches affect the conventional concepts, instruments, and methods of international law.
To grasp the alleged transformation of international law is all the more difficult since the notion of transnationalism, or transnationalization, is employed in various meanings with regard to the law. At the outset, two conceptions may be dis-tinguished. According to a more comprehensive understanding, transnationalization of law denotes the intertwinement and interaction of different legal actors or orders (state, sub-state, inter-state, supra-state, non-state). Pursuant to narrower conception, by contrast, transnationalization of law only points to the inclusion of non-state actors in regulating cross-border issues. Both notions are not mutually exclusive. They depart from the shared observation that the law regulating cross-border issues has become more complex than ever before. Law-making authority is no longer solely claimed by states, but also by international and supranational organizations as well as non-state actors. In the resulting plurality of actors, fora, norms, and implementation procedures, the relationship of the different constituencies is not always clearly defined.
Against this background, the conference seeks to explore the significance of the concept of transnationalism within and beyond international law. On the one hand, it intends to define and demarcate the potential and limits of the concept of transnationalism in law. On the other hand, it strives to inquire into the conse-quences of a possible transnationalization for international law. From an empirical perspective, it calls upon to ascertain the remaining role of the state in cross-border regulation. From a normative perspective, it invites to argue whether the state deserves any preponderance as a resource of legitimacy in global governance.
The general subject allows for various topics and approaches. Empirical, normative, and legal-dogmatic contributions are equally welcome. Interdisciplinary studies would be particularly helpful, especially from the fields of history, sociology, philosophy, and economics. Possible subjects may include:
What does transnationalism, or transnationalization, mean with regard to inter-national law? How does the transnationalization of law affect the concepts, in-struments, and methods of international law?
Against which rules and principles of law is the action of transnational corpora-tions and arbitration panels to be scrutinized? Are non-state actors bound by human rights?
Under what conditions may the practice of international institutions which inter-pret their competencies and legal instruments dynamically be deemed legitimate? Does the participation of non-governmental institutions enhance or impair the le-gitimacy of law-making processes across borders?
In which way may the interaction of different legal orders and actors be regulat-ed? How can conflicts of norms be solved?
The two-day conference will take place at the Center for Transnational Studies of the University of Bremen from 25 until 27 March 2015. It is supposed to provide a forum of dialogue between junior and senior researchers. Therefore, established professors will comment on the contributions of younger scholars (advanced doc-toral and post-doctoral stages). Proposals for papers of no more than 500 words and a short CV should be submitted to Transnational_Law@gmx.com by 31 October 2014. Selected participants will be notified by 30 November 2014. Elaborated papers of no more than 10.000 words (including footnotes) are expected by 28 February 2015. Expenses for travel and accommodation will be covered to a certain extent.
Organizing committee: Dr. Anuscheh Farahat, LL.M. (Max Planck Institute for Comparative Public Law and International Law Heidelberg), Dr. Birgit Peters, LL.M. (Westfälische Wilhelms-Universität Münster), Dr. Lars Viellechner, LL.M. (Humboldt-Universität zu Berlin).
Submission of abstracts: 31 October 2014 (max. 500 words, to: Transnational_Law@gmx.com)
Notification of participants: 30 November 2014
Submission of papers: 28 February 2015 (max. 10.000 words)
- David P. Forsythe, The UN Security Council and Human Rights: Promising Developments, Persistent Problems
- Janine Natalya Clark, A Crime of Identity: Rape and Its Neglected Victims
- Jelena Subotić, Legitimacy, Scope, and Conflicting Claims on the ICTY: In the Aftermath of Gotovina, Haradinaj and Perišić
- Reed M. Wood, Aiding Labor: Foreign Aid and the Promotion of Labor Rights in LDCs
- Daniel B. Braaten, What Rights and Which Countries?: US Human Rights Policy in the Multilateral Development Banks
- Jesse Kirkpatrick, A Modest Proposal: A Global Court of Human Rights
- Keith David Watenpaugh, Between Communal Survival and National Aspiration: Armenian Genocide Refugees, the League of Nations, and the Practices of Interwar Humanitarianism
- G. Daniel Cohen, Elusive Neutrality: Christian Humanitarianism and the Question of Palestine, 1948–1967
- Vanessa Ogle, State Rights Against Private Capital: The "New International Economic Order" and the Struggle Over Aid, Trade, and Foreign Investment, 1962–1981
- David Shneer, Ghostly Landscapes: Soviet Liberators Photograph the Holocaust
- The Editors, From Anti-Politics to Post-Neoliberalism: A Conversation with James Ferguson
- Bronwyn Leebaw, Justice, Charity, or Alibi? Humanitarianism, Human Rights, and "Humanity Law"
- Umut Özsu, International Legal Fields
- Bradley R. Simpson, "Democratic Development" in Neoliberal Drag
Talmon: Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion
Methodology is probably not the strong point of the International Court of Justice (the Court) or indeed of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law which it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law. The legal literature also has little to say on this subject. In view of the fact that determining the law always also means developing and, ultimately, creating the law, it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law which it applies, and to highlight the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction, and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom, and demonstrates that the main method employed by the Court is neither induction nor deduction but assertion.
Sunday, July 27, 2014
Roscini: International Law, Nuclear Weapon-Free Zones and the Proposed Zone Free of Weapons of Mass Destruction in the Middle East
The chapter discusses the international law issues arising from the treaties establishing nuclear weapon-free zones in inhabited regions of the world. In particular, it focuses on the proposed zone free of weapons of mass destruction in the Middle East, identifying the potential legal problems and making suggestions for possible solutions.