Saturday, April 11, 2015

Dünnwald: Bilateral and Multilateral Investment Treaties and Their Relationship with Environmental Norms and Measures

Sonja Dünnwald has published Bilateral and Multilateral Investment Treaties and Their Relationship with Environmental Norms and Measures (Duncker & Humblot 2015). Here's the abstract:
Investment treaties protect the investments of foreign investors against interference by the host state: The core standards offer protection against discriminatory or unequitable treatment and expropriation. However, the investment activities can impact on the environment of the host state. The state retains its policy space to regulate for an environmental purpose. Some investment treaties refer to concepts of international environmental law, but do not impose a hierarchy of norms. In practice, it often falls to investment tribunals to distinguish between legitimate regulation and the violation of investors' rights. They decide on the scope of the state's policy space by balancing the opposing interests: Investment tribunals focus on the absence of protectionist intent, procedural propriety and the review of scientific evidence. If the regulatory framework is more stringent when the investment is made, there is less potential for subsequent conflict.

Friday, April 10, 2015

Helfer, Alter, & Gathii: Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Laurence R. Helfer (Duke Univ. - Law), Karen J. Alter (Northwestern Univ. - Political Science), & James Thuo Gathii (Loyola Univ. Chicago - Law) have posted Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences. Here's abstract:
This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to restructure the EACJ in ways that have significantly affected the court’s subsequent trajectory. In Southern Africa, after the SADC Tribunal ruled in favor of white farmers in disputes over land seizure, Zimbabwe prevailed upon SADC member states to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of Community secretariats, civil society groups and sub-regional Parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EAC, and largely succeeded in SADC.

Mancisidor: Is There Such a Thing as a Human Right to Science in International Law?

Mikel Mancisidor (International Institute for the Human Right to Science; UN Committee on Economic, Social and Cultural Rights) has posted an ESIL Reflection on Is There Such a Thing as a Human Right to Science in International Law?

Peters: Constitutional Fragments – On the Interaction of Constitutionalization and Fragmentation in International Law

Anne Peters (Max-Planck-Institute for Comparative Public Law and International Law) has posted Constitutional Fragments – On the Interaction of Constitutionalization and Fragmentation in International Law. Here's the abstract:

This contribution suggests that a constitutional perspective allows for a more adequate description of the international order as it stands, exactly because of the latter’s fragmented character. Beyond that heuristic insight, this paper makes four points: First, the constitutionalization of international law is a broad and deep phenomenon which historically started before fragmentation (section 2) has been discussed as a problem. Second, fragmentation and constitutionalization are mutually reinforcing and to some extent even mutually constitutive: On the one hand, constitutionalization phenomena within international law have exacerbated fragmentation, because they have from the outset on taken place at multiple sites, and have produced only constitutional fragments (section 3). On the other hand, fragmentation in turn has triggered new forms of constitutionalization in international law; the processes of fragmentation are themselves being ‘constitutionalized’. Put differently, constitutionalization (as a process) and global constitutionalism (as an intellectual framework) is profoundly shaping how law-appliers deal with fragmentation, notably because the current ‘second stage’-fragmentation debate which concentrates on principles, procedures, and institutions for coordinating, harmonising, and integrating various international regimes, is explicitly or implicitly guided by genuine constitutionalist considerations (section 4).

Thirdly, the discourses of fragmentation and constitutionalization are largely motivated by a common root concern, namely the concern about the legitimacy of international law. Both phenomena also share the merit of promoting contestation and politization within the international legal process; they are kindred-spirited. Importantly, constitutionalism is not a reconciliatory strategy responding to fragmentation but a critical discourse (section 5).

My conclusion is that global constitutionalism is a useful analytic lens for understanding how international law evolves and works, as long as it is understood as ‘thin’ (contending itself with procedures as opposed to substance), and inevitably multi-level (necessarily involving domestic constitutional law). Even if a global constitutionalism of this type stays (partly) outside the picture of international law proper, it will always be reproduced in the fragments of the international legal order (section 6).

Thursday, April 9, 2015

Chehtman: Problemas estructurales de Derecho penal internacional

Alejandro Chehtman (Universidad Torcuato Di Tella - Law) has published Problemas estructurales de Derecho penal internacional (Marcial Pons 2015). Here's the abstract:
A diferencia de la gran mayoría de los sistemas jurídico-penales nacionales, el Derecho penal internacional está en fase de construcción. Muchos consideran que su desarrollo es aún frágil, tentativo. El presente volumen reúne una serie de textos fundamentales sobre distintos aspectos «estructurales» de este sistema jurídico y del grupo de instituciones que lo componen. Los artículos aquí reunidos buscan ahondar en distintos aspectos importantes de este sistema –ya sea examinando su adecuada conceptualización, su fundamentación normativa, o los déficits, desafíos y problemas que aquejan a su funcionamiento–. El libro gira alrededor de tres ejes temáticos. En primer lugar, examina la pregunta acerca de la naturaleza del Derecho penal internacional y sus fines. Esto es, ¿qué características lo definen y, en consecuencia, lo distinguen del Derecho penal interno y del Derecho penal transnacional?; pero también, ¿cuál es la relación entre el castigo y la construcción de una verdad histórica, las funciones didácticas de los juicios penales y su potencial contribución a la reconciliación de las comunidades afectadas? En segundo lugar, analiza las condiciones que permitirían el surgimiento de un «sistema» de tribunales con competencia sobre crímenes internacionales (tribunales internacionales, híbridos o internacionalizados, y nacionales), y la mejor forma de pensar las relaciones entre ellos. Por último, el presente volumen reúne una serie de trabajos que abordan las características centrales de los crímenes internacionales, como los crímenes de guerra y de lesa humanidad. Mediante el análisis de cuestiones jurídicas, conceptuales e institucionales, esta colección de trabajos busca contribuir a una mejor y más profunda comprensión de algunos de los principales desafíos que plantea el Derecho penal internacional como proyecto.

Madsen: The Challenging Authority of the European Court of Human Rights

Mikael Rask Madsen (Univ. of Copenhagen - iCourts, Centre of Excellence for International Courts) has posted The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash (Law and Contemporary Problems, forthcoming). Here's the abstract:
This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.

Howse, Langille, & Sykes: Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products

Robert L. Howse (New York Univ. - Law), Joanna Langille (New York Univ. - Law), & Katie Sykes (Thompson Rivers Univ. - Law) have posted Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products (George Washington International Law Review, forthcoming). Here's the abstract:
This article examines the relationship between the law of the World Trade Organization (WTO) and morally motivated legislation of the WTO's Member states. Building on our 2012 article entitled Permitting Pluralism, we argue that the WTO should adopt a pluralistic approach to morally motivated legislation of its Member states. That is, WTO law should allow the greatest latitude possible for states to adopt morally motivated legislation, and should permit all types of moral and religious reasons for restricting international trade, including non-instrumental moral reasons. The WTO should not attempt to second-guess the moral and religious commitments of its Members, and it should permit morally complex legislation, involving trade-offs and multiple, possibly competing, motivations. Instead the WTO should confine its role to a thorough analysis of any discriminatory aspects of the measure to determine whether the measure is protectionist. This approach is justified by the WTO's institutional capacity and purpose, when understood in historical context. After articulating this pluralist approach, we analyze the recent EC-Seal Products dispute at the WTO, a watershed WTO case on morally motivated domestic legislation, to determine whether the WTO's adjudicatory bodies adopted an appropriate attitude to the European Union's legislation banning the importation of seal products for explicitly moral reasons, out of concern for animal welfare. We argue that the Seal Products case largely followed our pluralist approach, adapting the law of the WTO to accommodate non-instrumental moral reasons for regulating by WTO Member states. Finally, we defend the Seal Products decision against criticisms that have emerged in the scholarly literature, including those that have criticized our pluralistic approach to morally motivated legislation.

New Volume: Baltic Yearbook of International Law

The latest volume of the Baltic Yearbook of International Law (Vol. 14, 2014) is out. Contents include:
  • Symposium: Low Intensity Cyber Operations – The International Legal Regime
    • Michael N. Schmitt & M. Christopher Pitts, Cyber Countermeasures and Effects on Third Parties: The International Legal Regime
    • Karine Bannelier-Christakis, Cyber Diligence: A Low-Intensity Due Diligence Principle for Low-Intensity Cyber Operations?
    • Zhxiong Huang, The Attribution Rules in ILC’s Articles on State Responsibility: A Preliminary Assessment on Their Application to Cyber Operations
    • Eduard Ivanov, Combating Cyberterrorism under International Law
    • Eric Talbot Jensen, State Obligations in Cyber Operations
    • Andrey L. Kozik, The Concept of Sovereignty as a Foundation for Determining the Legality of the Conduct of States in Cyberspace
    • Nicholas Tsagourias, The Law Applicable to Countermeasures against Low-Intensity Cyber Operations
    • René Värk, Diplomatic and Consular Privileges and Immunities in Case of Unfriendly Cyber Activities
    • Sean Watts, Low-Intensity Cyber Operations and the Principle of Non-intervention

Wednesday, April 8, 2015

Luban: Arendt on the Crime of Crimes

David J. Luban (Georgetown Univ. - Law) has posted Arendt on the Crime of Crimes (Ratio Juris, forthcoming). Here's the abstract:

Genocide-–the intentional destruction of groups “as such” – is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.

The paper analyzes several possible approaches to the problem of explaining the special value of groups, beginning with Raphael Lemkin’s theory of groups as contributors to universal civilization, and then turning to Arendt’s efforts. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept. For Arendt, group identification makes sense solely as a political act of resistance to persecution. In the conclusion, the paper examines a remarkable moment during the trial of Radovan Karadzić, when a defense witness explained his conversion to radical nationalism by quoting “Mrs. Hannah Arendt, a prominent philosopher.” The moment illustrates how hard it is to maintain the stance of humanity while assigning political value to group identity.

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 10, no. 4, 2015) is out. Contents include:
  • Cherise M. Valles, Appellate Body Report in China: Rare Earths – Addressing Violations of WTO-Plus Obligations
  • Timothy Lyons, A Customs Union without Harmonized Sanctions: Time for Change?
  • Patricio Diaz Gavier, General Rule 5(b) for the Interpretation of the Tariff
  • Edwin Vermulst & Christofer Fjellner, An APO System in EU Trade Defence Investigations: No Guts, No Glory
  • Derk Bienen, The Quest for Finding the Balance between Transparency and Confidentiality in EU Trade Defence Cases
  • Doris Lin & Kaiwei Chan, Administrative Protective Orders in Taiwan Trade Remedy Proceedings
  • Darrel Pearson, Jessica Horwitz, Adrian B. Vazquez, & Patrick J. Togni, Additional Insights on APO Practice and Procedure in Anti-dumping and Countervailing Duty Proceedings in Canada, Mexico and the United States

New Issue: Transnational Environmental Law

The latest issue of Transnational Environmental Law (Vol. 4, no. 1, April 2015) is out. Contents include:
  • Editorial
    • Thijs Etty, Veerle Heyvaert, Wil Burns, Cinnamon Carlarne, Dan Farber & Jolene Lin, The Challenge of Keeping Environmental Law Dynamic
  • Articles
    • Delphine Misonne, The Importance of Setting a Target: The EU Ambition of a High Level of Protection
    • Adam Byrne, The 1979 Convention on Long-Range Transboundary Air Pollution: Assessing its Effectiveness as a Multilateral Environmental Regime after 35 Years
    • Christopher Arup & Hao Zhang, Lessons from Regulating Carbon Offset Markets
    • Anna Huggins, The Desirability of Depoliticization: Compliance in the International Climate Regime
    • Rosemary Lyster, A Fossil Fuel-Funded Climate Disaster Response Fund under the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts
    • Cordelia Christiane Bähr, Greenhouse Gas Taxes on Meat Products: A Legal Perspective
  • Commentary
    • Cymie R. Payne, ICJ Halts Antarctic Whaling – Japan Starts Again

Workshop and Symposium: The Rights of States in International Law

On April 13-14, 2015, the University of Alabama School of Law will host a workshop and symposium on "The Rights of States in International Law." Here's the idea:

The participants will workshop their papers, which are to comprise a special issue of the Cambridge Journal of International & Comparative Law, which is being organized by Professor Joyner and Dr. Marco Roscini.

This project is devoted to the question of whether fundamental rights of states, which appear to be recognized in the provisions of a number of conventional and customary sources of international law, actually exist. These purported rights include the right to self-defense, the right to existence, the right to private life/noninterference, the right to permanent sovereignty over natural resources; the right to be free from economic coercion, and the right to peaceful nuclear energy. If in fact they do exist, what is their source and legal character? What are their juridical implications – e.g. when they come into conflict with the legal obligations of the right holder, or with the actions of other states and international organisations? The papers in this special issue seek to examine these questions both theoretically and doctrinally, and to provide a framework for understanding the fundamental rights of states, and their role in the international legal system.

Wellens: Negotiations in the Case Law of the International Court of Justice

Karel Wellens (Radboud Univ.) has published Negotiations in the Case Law of the International Court of Justice: A Functional Analysis (Ashgate 2015). Here's the abstract:

This book examines the multifunctional role negotiations play in the jurisprudence of the International Court of Justice. Prior negotiations may be necessary to bring to the surface and clarify the legal aspects of a dispute before its submission to the ICJ. Negotiations may play a potential and parallel role during the course of the proceedings; results of negotiations may find their way into the judicial reasoning and may even form part of the basis of the judicial settlement. The Court’s judgment may require further negotiations for its implementation. A failure of this process may bring the parties back before the Court.

This volume presents a detailed and critical examination of the case law of the ICJ through the prism of the functional interaction between negotiation and judicial settlement of disputes. In cases where legal interests of third States are involved this functional interaction becomes even more complex. The focus is not on the merits of each individual case, but on the Court’s contribution and clarification of this functional interplay.

Tuesday, April 7, 2015

ASIL Annual Meeting Panel: Adapting to Change: The Role of International Organizations

Per the preceding post, here's the second panel I would recommend to conference attendees:

Adapting to Change: The Role of International Organizations

Friday, 1:00 pm – 2:30 pm

Room: Regency A

International organizations are among the key instruments by which the international community is adapting to a rapidly changing world. Many organizations were created long ago. Their original powers and institutional structures might be limited and insufficient to address a modern challenge. Have international organizations been able to keep pace with changes that occur in the areas in which they carry out their functions? If so, how? If not, why not? Against this background the panel will focus on the practices and strategies by which international organizations respond to contemporary challenges. The panel will discuss specific cases and present broader perspectives on long-term implications for institutional change.

Moderator: Niels Blokker, Leiden University


  • Stephen Mathias, Office of the Legal Counsel, United Nations
  • Kimberly Prost, United Nations Security Council 1267 Sanctions Committee
  • August Reinisch, University of Vienna
  • Lisa Tabassi, Organization for Security and Co-operation in Europe

ASIL Annual Meeting Panel: The Role of International Law in Negotiating Peace

I have had the privilege of serving on the Program Committee of this year's ASIL Annual Meeting, which begins tomorrow, with specific responsibilities for two panels in the final program. Both panels are excellent. Here's the first (which, uniquely, includes the showing of a film); a second will be highlighted in the next post.

The Role of International Law in Negotiating Peace

Thursday, 2:45 pm – 4:45 pm

Room: Regency D

In 2011, representatives from Serbia and Kosovo met for the first time since Kosovo had declared independence three years earlier, and cameras recorded the action. Using this footage, the documentary "The Agreement" shows these critical talks on peaceful coexistence between Serbia and Kosovo. This two-hour session includes both a viewing and a moderated discussion of the film. The discussion will consider the following questions: To what extent can negotiators help drive the peacemaking process or achieve a lasting peace? How does international law help (or not help) bring the parties to the table, and buttress (or undermine) their positions in the negotiating process? More generally, to what extent does international law play a role in each actor’s decision making process?

Moderator: Veronika Fikfak, University of Cambridge


  • Andrew Ladley, Victoria University of Wellington
  • Carne Ross, Independent Diplomat
  • Marc Weller, University of Cambridge

Conference: ASIL Annual Meeting 2015 (Reminder)

The 109th Annual Meeting of the American Society of International Law will take place later this week, April 8-11, 2015, in Washington, DC. The theme is "Adapting to a Rapidly Changing World." The program is here. Here's the idea:

For better or worse, international law is confronting a period of profound change. Geopolitical developments—in particular, new assertions of economic, political, or military power by countries like Brazil, Russia, India, China, and South Africa—have simultaneously aggravated latent territorial disputes and created the potential for unprecedented economic integration. Advances in technology have enabled cyber-conflicts and forged new tools for governmental coercion or control, while also facilitating the dissemination of information. Shared environmental challenges have presented new causes of human suffering or conflict, as well as new possibilities for global cooperation and assistance. And the increased role of non-state actors in international affairs has made more vocal the still unfulfilled demands on, for example, the universal recognition of the human rights of LGBT persons, the responsibilities associated with corporate conduct, and the protection of people from mass atrocities.

The 2015 ASIL Annual Meeting will ask how international law is adapting to a rapidly changing world. For example: Are the existing international legal regimes capable of meeting these challenges or will new regimes be required? Through what processes can we expect international law to adapt, and how might new norms emerge in the face of persistent disagreements or holdout problems? How is the legal order responding as the world moves from a unipolar system dominated by the United States to a more multipolar system? And what is the role or relevance of international law where it might be unable to resolve global issues?

The American Society of International Law, with its membership of scholars, practitioners, and students of international law from around the world, will explore these questions at the 2015 Annual Meeting.

Cogan: The Decline of 'Drafts"

Jacob Katz Cogan (Univ. of Cincinnati - Law) has posted The Decline of 'Drafts' (International Organizations Law Review, Vol. 11, no. 1, p. 1, 2014). Here's the abstract:

Once, not too long ago, the word ‘draft’ was an important, if taken-for-granted, term in the practice of the International Law Commission (‘Commission’). Employed by both the Commission and the United Nations General Assembly, the word acted as a marker, distinguishing the texts produced by the Commission, which were assigned that term, from those instruments based on the Commission’s work that were subsequently adopted by states through treaty negotiations. Today, the use of the word ‘draft’ is in decline: the Commission is producing more and more products that are no longer labeled with that term; and even when the Commission still attaches that description to its completed work, the Assembly, after receiving the Commission’s completed ‘drafts’, is dropping the word when it subsequently refers to those texts in its resolutions.

The decline of ‘drafts’ is a constitutive change. It has turned the International Law Commission into the finalizer of international legal texts (not just their originator), replacing the collective law-making by states that once occurred in diplomatic conferences. And it has encouraged non-State actors (particularly tribunals) to pass judgment on the legal value and binding nature of the Commission’s work, again bypassing states and their role in perfecting international legal acts. Those who follow this novel practice and omit the word ‘draft’ — whether they are academics, attorneys, or diplomats — are effectively endorsing these shifts in international law-making (and the assumptions that underlie them), wittingly or not. Though these constitutional changes are consonant with the times, they are worth identifying as a first step toward appreciating and evaluating their consequences.

Helfer & Meyer: The Evolution of Codification: A Principal-Agent Theory of the International Law Commission’s Influence

Laurence R. Helfer (Duke Univ. - Law) & Timothy Meyer (Univ. of Georgia - Law) have posted The Evolution of Codification: A Principal-Agent Theory of the International Law Commission’s Influence (in Custom's Future: International Law in a Changing World, Curtis Bradley ed., forthcoming). Here's the abstract:

The International Law Commission has a mandate from the U.N. General Assembly to codify and progressively develop international law. For most of the ILC’s history, the lion’s share of its work took the form of draft articles adopted by the General Assembly as the basis for multilateral conventions. The ILC’s activities received their principal legal effect during this period through the United Nations treaty-making process, rather than directly on the basis of the ILC’s analysis of what customary international law does or should require. In recent decades, however, the ILC has turned to other outputs — such as principles, conclusions and draft articles that it does not recommend be turned into treaties. Significantly, the Commission often claims that these outputs reflect customary international law.

In this chapter, we argue that increasing political gridlock in the General Assembly has led the Commission to modify the form of the work products it produces. We make three specific contributions to the literature. First, using principal-agent theory we argue that the ILC chooses the work product that maximizes its influence in shaping the evolution of custom. Our core claim is that, as gridlock has limited the General Assembly’s ability either to adopt treaties or decisively reject non-treaty outputs, the Commission has had both the incentive and the discretion to choose other outputs that do not require General Assembly approval.

Second, we provide empirical support for this claim. Drawing upon a new data set that codes all ILC outputs since 1947, we show that the Commission began to favor non-treaty outputs beginning in the early 1990s. This followed a decade when ILC treaty recommendations were not adopted by the UNGA or, if adopted, did not garner sufficient ratifications for the treaties to enter into force.

Third, we argue that the shift away from draft treaties increases the salience of the methodology that the ILC uses to prepare non-treaty outputs. Methodology functions as a de facto substitute for the political blessing that flows from the General Assembly’s adoption of draft treaty articles. Adherence to methodology increases the likelihood that a wider audience — government officials, international judges, national courts and non-state actors — will accept the ILC’s non-treaty work products as valid statements of custom. We thus expect the Commission to select a methodological approach that it expects will be supported by the audience(s) it hopes to persuade.

Cogan: The Changing Form of the International Law Commission’s Work

Jacob Katz Cogan (Univ. of Cincinnati - Law) has posted The Changing Form of the International Law Commission’s Work (in Evolutions in the Law of International Organizations, Roberto Virzo & Ivan Ingravallo eds., Brill | Nijhoff 2015). Here's the abstract:
Two elements of the International Law Commission’s (ILC) procedure receive relatively little attention: its decision on the final form of its work and its recommendation to the UN General Assembly (GA) on what action the Assembly should take on its completed text. Though infrequently considered (at least in comparison to the substantive drafts it produces), this packaging is significant, as it frames how the Commission’s work will be conceptualized and evaluated upon completion. While the ILC Statute provides the Commission with flexibility in choosing the form and the action that it recommends to the GA, the Commission does not work in a vacuum. Because the impact of the Commission’s work depends on how that work is received (and because the ILC wants its work to be well-received), its decision to produce a certain type of text reflects its assessment of who its clients are and what legal products they desire. In other words, the Commission’s supply is a function of what it perceives as the demand. As this chapter will explain, the form of the ILC’s work is changing, reflecting larger trends in international lawmaking.

Monday, April 6, 2015

Symposium: Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

AJIL Unbound is currently hosting a symposium on Pierre-Hugues Verdier and Erik Voeten's article, Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory. Ingrid Wuerth's introduction and response essays authored by Jens David Ohlin and Timothy Meyer are currently online. A third response from Alejandro Lorite Escorihuela will go up later.

Marossi & Bassett: Economic Sanctions under International Law

Ali Z. Marossi & Marisa R. Bassett have published Economic Sanctions under International Law: Unilateralism, Multilateralism, Legitimacy, and Consequences (Asser Press 2015). Contents include:
  • Alexander Orakhelashvili, The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Cases of Iran and Syria
  • Hisae Nakanishi, The Construction of the Sanctions Regime Against Iran: Political Dimensions of Unilateralism
  • Najwa M. Nabti, Increasing the Cost of Rape: Using Targeted Sanctions to Deter Sexual Violence in Armed Conflict
  • Rahmat Mohamad, Unilateral Sanctions in International Law: A Quest for Legality
  • Daniel H. Joyner, International Legal Limits on the Ability of States to Lawfully Impose International Economic/Financial Sanctions
  • Nema Milaninia, Jus ad bellum economicum and jus in bello economico: The Limits of Economic Sanctions Under the Paradigm of International Humanitarian Law
  • Paul Waart, Economic Sanctions Infringing Human Rights: Is There a Limit?
  • Antonios Tzanakopoulos, Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility
  • Ali Z. Marossi, Unilateralism and Power of Revision
  • Katariina Simonen, Economic Sanctions Leading to Human Rights Violations: Constructing Legal Argument
  • Pierre-Emmanuel Dupont, The Arbitration of Disputes Related to Foreign Investments Affected by Unilateral Sanctions
  • S. Ghasem Zamani & Jamshid Mazaheri, The Need for International Judicial Review of UN Economic Sanctions
  • Katariina Simonen, Final Comment: Legal Review of New EU Sanctions Against Russia in Light of Recent Jurisprudence of the European Courts

New Issue: World Politics

The latest issue of World Politics (Vol. 67, no. 2, April 2015) is out. Contents include:
  • Research Articles
    • Torben Iversen & David Soskice, Democratic Limits to Redistribution: Inclusionary versus Exclusionary Coalitions in the Knowledge Economy
    • Paasha Mahdavi, Explaining the Oil Advantage: Effects of Natural Resource Wealth on Incumbent Reelection in Iran
    • Ryan Grauer, Moderating Diffusion: Military Bureaucratic Politics and the Implementation of German Doctrine in South America, 1885–1914
    • Mircea Popa, Elites and Corruption: A Theory of Endogenous Reform and a Test Using British Data
    • Elizabeth Carlson, Ethnic Voting and Accountability in Africa: A Choice Experiment in Uganda

Workshop: New Histories of Human Rights

On April 25, 2015, the University Center for Human Values at Princeton University will host a workshop on "New Histories of Human Rights." The program is here. Here's the idea:
The field of human rights history has become much more crowded – and much more controversial – over the past decade. New historical accounts are often deeply provocative and at odds with each other; they have also influenced debates about the goals and general value of human rights activism. In this colloquium, we will hear from some of the new historians of human rights, both to reflect on the historiographical stakes in this field, and on the relation between history and policy. What is the proper chronological scope of human rights history? What relation, if any, do older ideas about natural rights have with current notions of human rights? What role, if any, can history play in the crafting (or the criticism) of theoretical/normative arguments about human rights?

Luban: Human Rights Thinking and the Laws of War

David J. Luban (Georgetown Univ. - Law) has posted Human Rights Thinking and the Laws of War (in Theoretical Boundaries of Armed Conflicts and Human Rights, Jens David Ohlin, forthcoming). Here's the abstract:

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person… The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking (to distinguish it from doctrinal specifics). In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war.

Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend – with some qualifications – in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly – recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers.

Peel & Osofsky: Climate Change Litigation: Regulatory Pathways to Cleaner Energy

Jacqueline Peel (Univ. of Melbourne - Law) & Hari M. Osofsky (Univ. of Minnesota - Law) have published Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge Univ. Press 2015). Here's the abstract:
This examination of the role of litigation in addressing the problem of climate change focuses not only on how the massive and growing number of lawsuits influences regulation directly, but also on how the lawsuits shape corporate behaviour and public opinion. It provides readers with an understanding of how these lawsuits have shaped approaches to mitigation and adaptation, and have been used to try to force and to block regulation. There is a particular emphasis on lawsuits in the United States and Australia, the two jurisdictions which have had the most climate change litigation in the world, and the lessons provide broader insights into the role of courts in addressing climate change.

Sunday, April 5, 2015

New Issue: International Affairs

The latest issue of International Affairs (Vol. 91, no. 2, March 2015) is out. Contents include:
  • Alex J. Bellamy, A chronic protection problem: the DPRK and the Responsibility to Protect
  • Jinghan Zeng, Yuefan Xiao & Shaun Breslin, Securing China's core interests: the state of the debate in China
  • James Ker-Lindsay, Engagement without recognition: the limits of diplomatic interaction with contested states
  • Reinhard Wolf, Why wealthy countries must not drop nuclear energy: coal power, climate change and the fate of the global poor
  • Andrew Glencross, Why a British referendum on EU membership will not solve the Europe question
  • Katherine C. Epstein, Scholarship and the ship of state: rethinking the Anglo-American strategic decline analogy
  • David Blagden, Global multipolarity, European security and implications for UK grand strategy: back to the future, once again
  • Paul Cornish & Andrew M. Dorman, Complex security and strategic latency: the UK Strategic Defence and Security Review 2015
  • Anthony Richards, From terrorism to ‘radicalization’ to ‘extremism’: counterterrorism imperative or loss of focus?