Saturday, May 30, 2015
Friday, May 29, 2015
This meeting brings together high-level speakers from government, business, academia and civil society to examine the European Union as an investment treaty actor. The day will include a keynote dialogue among members of the Swedish and European Parliament, as well as panels looking at the role of the European Commission in shaping the EU's investment treaties and the substance of the deals which Europe is negotiating. Among the central questions raised by this meeting is whether the investment chapters in Europe's treaties with Canada, Singapore and the United States (TTIP) are likely to be good for European economic growth or whether they are more likely to expose Europe and its Member States to a future of litigation from foreign investors.
Kaye: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
In the present report, submitted in accordance with Human Rights Council resolution 25/2, the Special Rapporteur addresses the use of encryption and anonymity in digital communications. Drawing from research on international and national norms and jurisprudence, and the input of States and civil society, the report concludes that encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.
As part of a symposium on cyberwar, this invited contribution explores the challenges that new technologies pose for international law. Borrowing from administrative law’s discussion of the “Chevron step-zero” question, the Article argues that weapons-related technological innovation spurs an analogous international law question: Is the new innovation a type of weapon that existing international law can satisfactorily regulate? This is the “international law step-zero” question.
Part I chronicles recent instances in which the “international law step-zero” question has arisen with respect to new technologies and the laws of war, including debates about whether the laws of war can and do regulate nuclear weapons, drones, cyber weapons, and lethal autonomous weapons systems (or “killer robots”). Despite the recurring debates, the answer to the step-zero question often steers toward rejecting fundamental changes to existing laws and regulating new technologies through the application of existing laws, perhaps with tweaks at the margins to accommodate the new technologies’ peculiar features.
Part II focuses on cyber weapons as a case study to explore first, why debates continue to arise with respect to the step-zero question, and second, why the frequent answer is the application of existing laws of war. On the first question, the Article argues that the nature of international law, frequency of weapons development, and incentives of a variety of groups to question the legality of new weapons spark the recurrence of the step-zero question. The Article then identifies several explanations for the recurrence of the application of existing law, including the adaptability of existing laws of war, continuity in the fundamental interests that the laws of war seek to protect, the desire to ensure that weapons are regulated from the time of their first use, and the utility of creating a shortcut to a workable regulatory regime that, at worst, preserves existing disagreements about the laws of war.
Although recognizing that the answer to the step-zero question is generally the application of existing laws of war, this Article does not suggest that no new law is needed for new technologies. Rather, it argues that most law-of-war rules apply most of the time to most new technologies and that any new laws specific to a new technology should generally constitute a comparatively small fraction of the laws of war applicable to that technology. To that end, Part III addresses circumstances in which new law for cyberwar may be necessary and offers several proposals for cyber-specific additions or amendments to existing laws of war.
Roscini: Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations
In spite of the crucial importance of evidentiary issues, works on inter-state cyber operations, both above and below the level of the use of force, have so far focused on whether such operations are consistent with primary norms of international law and on the remedies available to the victim state under the jus ad bellum and the law of state responsibility, and have almost entirely neglected a discussion of the evidence the victim state needs to produce to demonstrate, either before a judicial body or elsewhere, that an unlawful cyber operation has been conducted against it and that it is attributable to another state. The present article fills this gap. It starts with a brief account of the international law of evidence and then discusses who has the burden of proof in relation to claims seeking remedies (including reparation) for damage caused by cyber operations. It then analyzes the standard of proof required in the cyber context. Finally, the possible methods of proof are examined, distinguishing between those which are admissible and those which are inadmissible.
Thursday, May 28, 2015
- Spencer Zifcak, Rethinking international law and justice
- Steve Nabors, A right to fight: the belligerent’s privilege
- Davide Tundo, Justice and protection of civilians in armed conflicts through the enforcement of the international legal obligations: the case of the Gaza Strip
- Selman Karakul, How effective are national remedies in securing international justice?
- Amrita Mukherjee, Rethinking justice: individual criminal responsibility, immunity and torture
- Tomoko Ishikawa, Interpreting the most-favoured-nation clause in investment treaty arbitration: interpretation as a process of creating an obligation?
- Angelica Bonfanti, Accountability of multinational corporations for human rights and environmental abuse: how far can extraterritorial jurisdiction go?
- Bethany J. Spielman, The Alien Tort Statute as access to justice, post Kiobel: when the international norm prohibiting nonconsensual human experimentation is violated
- Genny Ngende, The role of NGOs and accountability of corporations for human right infringements
- Saheed Alabi, Non-state actors and international climate justice under global climate governance
- Mohammad H. Zarei & Azar Safari, The status of non-state actors under the international rule of law: a search for global justice
- Spencer Zifcak, The responsibility to protect at the United Nations
- Charles Sampford, Is justice the first virtue of international institutions?
- Ahmet Ulvi Türkbağ, Is it justice or justice(s)? The concept of justice in Western and Islamic natural law traditions
- Gábor Sulyok, General principles of law and international law-making
- Lydia A. Nkansah, The Dance of Truth and Justice in Postconflict Peacebuilding in Sierra Leone
- Thaddeus Manu, Assessing the Potential Impact of Intellectual Property Standards in EU and US Bilateral Trade Agreements on Compulsory Licensing for Essential Medicines in West African States
- Angelo Dube, Towards a Single African Sky: Challenges and Prospects
- Marcus Ayodeji Araromi, Regulatory Framework of Telecommunication Sector: A Comparative Analysis Between Nigeria and South Africa
- Henok G. Gabisa, ‘Justice System Reform Programme’ in Ethiopia: Is Rule of Law Lost in Translation?
- Stephen Kwaku Asare, Striking a Balance Between the Administration of Justice and Free Speech During the Live Broadcast of a Presidential Election Petition
- Jamil Ddamulira Mujuzi, Prosecuting and Punishing Torture in South Africa as a Discrete Crime and as a Crime Against Humanity
- M Sornarajah, Introduction
- Andreas R Ziegler & Jorun Baumgartner, Good Faith as a General Principle of (International) Law
- Eric de Brabandere & Isabelle Van Damme, Good Faith in Treaty Interpretation
- Tania Voon, Andrew D Mitchell, & James Munro, Good Faith in Parallel Trade and Investment Disputes
- Stephan W Schill & Heather L Bray, Good Faith Limitations on Protected Investments and Corporate Structuring
- M Sornarajah, Good Faith, Corporate Nationality, and Denial of Benefits
- Martins Paparinskis, Good Faith and Fair Equitable Treatment in International Investment Law
- Andrew D Mitchell & Tania Voon, Conclusion
In The Continental Shelf Beyond 200 Nautical Miles, Bjarni Már Magnússon explores various aspects of the establishment of the outer limits of the continental shelf beyond 200 nautical miles and maritime boundary delimitations. Special emphasis is laid on the interplay between these processes and the role of coastal States, the Commission on the Limits of the Continental Shelf and international courts and tribunals in this regard.
Magnússon convincingly argues that despite the possibility for tension to arise the relationship between the relevant institutions and processes is clear and precise and they together form a coherent system where each separate institution plays its own part in a larger process.
The World Trade Organization (WTO) is held out as an exemplar of an effectively functioning international “court.” Yet, a puzzle remains unexplained: in WTO litigation, a respondent found to have enacted an illegal trade policy measure needs only to remedy the illegality. So long as it does, the WTO lacks the authority to order retrospective remedies to be paid to the complainant for past harm. The remedies loophole provides countries with a “free pass” for temporary breach. Why do more countries not take advantage of this pass more frequently? How is it that the WTO manages to function effectively in spite of its imperfect remedies?
This Article suggests that the key to understanding the answer to this puzzle lies in the importance of power asymmetries in a WTO system that is dynamic and evolving. It identifies a series of policy instruments available to a powerful country whenever its trading partner is tempted to undertake a temporary breach that harms the powerful state’s interests. These instruments create additional costs that offset the benefit of any temporary breach, thereby effectively deterring most, albeit not all, temporary breaches. In addition, the established powers share a collective interest in maintaining the WTO system’s stability. This also causes them to exercise collective self-restraint in their own exercise of temporary breaches.
The answer to this puzzle is of more than just academic importance. It also sheds important light on the future of the international trade regime. As geopolitical power shifts and trade among developing countries increases, particular countries may find it more tempting to engage in temporary breaches under certain circumstances. This Article examines the nature of these emergent conflicts and discusses its implications for the future of the global trading regime.
- Catharine Titi, Are Investment Tribunals Adjudicating Political Disputes?
- Matthew Barry, The Role of the Seat in International Arbitration: Theory, Practice, and Implications for Australian Courts
- Burcu Osmanoglu, Third-Party Funding in International Commercial Arbitration and Arbitrator Conflict of Interest
- Weidong Zhu, The Recognition and Enforcement of the Foreign Arbitral Awards ‘with No Foreign Element’ in China
Wednesday, May 27, 2015
Human rights, even perfectly realized human rights, are compatible with inequality, even radical inequality.
Kumm: An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege
Hans Kelsen was perhaps the foremost continental lawyer of the 20th century. The founder of the immensely influential Pure Theory of Law, he is primarily remembered as a groundbreaking Austrian jurist. However, Kelsen was also a Jew, albeit an extremely assimilated one. His life story – from his early days in Vienna until his death in California – is truly representative of the tragedy of European Jewry in the 20th century. This Chapter discusses Kelsen in light of the ever-present tensions between Jewish and European identity, with particular attention to his position as an international lawyer. Focusing on the period surrounding the publication of the first edition of his Pure Theory of Law (1934), the Chapter discusses Kelsen along three interrelating themes relevant to the Jewish experience of the time. The first part situates Kelsen in relation to a key dilemma of Jewish politics: the tension between Jewish nationalism and assimilationism. It highlights the different constructions of Kelsen’s identity, and their uses by various actors. The second theme focuses on assimilationist politics in Kelsen’s jurisprudence, suggesting a reading of Kelsen’s Pure Theory which I call “assimilation through law.” The third theme pitches Kelsen’s Pure Theory of (international) law against the ideology of progress – a key idea in the thought of assimilated Jewish internationalists. As I demonstrate, although Kelsen’s Pure Theory famously claimed to be “anti-ideological,” the notion of progressivism still shines through its cold and analytic reasoning.
Tallberg, Sommerer, & Squatrito: Democratic Memberships in International Organizations: Sources of Institutional Design
Domestic regime type has emerged a powerful explanation of multiple phenomena in world politics. This article extends this argument to the design of international organizations (IOs), where a profound development in recent decades is growing access for transnational actors (TNAs). While earlier research has shown that democracy in IO memberships helps to explain IO openness, we know little about the mechanisms that drive this effect. This article unpacks the relationship between democratic memberships and IO design by theorizing and assessing the impact of three different constellations of democracies on the openness of IOs. Empirically, we conduct a multivariate analysis of TNA access to 50 IOs from 1950 to 2010, combined with a case study of the Organization for Security and Co-operation in Europe. Our main findings are three-fold. First, democracy’s effect on openness is primarily a product of the combined weight of democracies within IOs and their resulting capacity to secure support for their polity preferences. Second, in contrast, we only find limited support for a specific influence of new democracies and democratic major powers on IO openness. Third, decision rules that allow for openness reforms to be adopted by a majority of member states facilitate and strengthen the influence of democracies, by reducing the ability of autocracies to block change. The findings have implications for our understanding of institutional design in global governance and democracy’s effects in world politics.
Tuesday, May 26, 2015
- Patricia Jimenez Kwast, International Law as We Know It
- Cedric Ryngaert, Erik J. Molenaar, & Sarah M.H. Nouwen, Introduction
- André Nollkaemper, Fred Soons: A Pragmatic Trust in International Law
- John Gamble, An Appreciation of Fred Soons
- Rosemary Rayfuse, Some Reflections on What's Wrong with the Law of the Sea
- Jessica N.M. Schechinger, Responsibility for Human Rights Violations Arising from the Use of Privately Contracted Armed Security Personnel Against Piracy: Re- emphasizing the Primary Role and Obligations of Flag States
- Yoshinobu Takei, A Sketch of the Concept of Ocean Governance and its Relationship with the Law of the Sea
- Seline Trevisanut, Is There Something Wrong with the Increasing Role of Private Actors?
- Vivian van der Kuil, Limitation of Liability for Maritime Claims and Politics: Curse or Cure?
- Matthijs de Blois, Bad Law and a Hard Case? The Impact of the Wall Advisory Opinion
- Jenny E. Goldschmidt, International Human Rights Implementation: Strengthen Existing Mechanisms, Establish a World Court for Human Rights, or Both?
- Patricia Jimenez Kwast, Prohibitions on Dissenting Opinions in International Arbitration
- Menno T. Kamminga, Transnational Human Rights Litigation against Multinational Corporations post-Kiobel
- Frans Pennings, What is Wrong with International Standards on Social Protection?
- Teun Jaspers, Corporate Social Responsibility: A New Framework for International Standard Setting
- Arie Trouwborst, Caught Napping by (Sea) Wolves: International Wilflife Law and Unforeseen Circumstances Involving the Killer Whale (Orcinus orca) and the Gray Wolf (Canis lupus)
- Johan G. Lammers, What is Wrong with International Environmental Law?
- Irina Buga, A Critical Look at the Law of Treaties: Giving Recognition to Informal Means of Treaty Adaptation
- Guide den Dekker, Absolute Validity, Absolute Immunity: Is There Something Wrong With Article 103 of the UN Charter?
- Kenneth J. Keith, Aspects of the Law of Treaties
- Henk Addink, Good Governance: A Principle of International Law
- Peter van Kriekan, The Right to Peace: A Mischievous Declaration
- Brianne McGonigle Leyh, Self-determination and Regional Human Rights Bodies: The Case of Southern Cameroons and the African Commission for Human and Peoples' Rights
- Otto Spijkers, What's Wrong with the Relationship between the International Court of Justice and the Security Council?
- M.C.W. Pinto, What's Wrong with International Law?
- Pieter Bekker & Thomas Innes, The Under-appreciated Role of Curial Settlement in International Law Norm-making: Using Transnational Law and Diffusion Studies to Re-Assess the Status of Prior Decisions
- John Gamble, How and to Whom Do We Explain International Law?
- Charlotte Ku, Fragmentation in International Law and Governance: Understanding the Sum of the Parts
- Cedric Ryngaert, Whither Territoriality? The European Union's Use of Territoriality to Set Norms with Universal Effects
- Ramses A. Wessel, Revealing the Publicness of International Law
- John Dugard, What is Wrong with International Lawyers?
This conference looks at recent trends in unconventional warfare involving cyber-attacks, the media and the use of irregular forces, and their relationship with human and minority rights. Three panels will address 1. Cyberwarfare, Freedom of Expression and Minorities; 2. Hybrid Warfare and Attribution; 3. Hybrid Warfare and the Concept of “Attack”. Keynote speakers are Dr Thomas D. Grant (University of Cambridge) and Professor Bill Bowring (Birkbeck, University of London).
International humanitarian law has developed through a pluralistic process. Its history reveals a pattern of rough proportionality between State opinio juris and non-State expressions of law. These diverse sources have maintained a respectable yet realistic balance between humanity and military necessity. However, present IHL dialogue presents a stark contrast to the vibrant and pluralistic exchanges of the past. The substantive input of non-State actors such as non-governmental organizations, tribunals, and scholars far outpaces the work of States. Parity of input, especially in quantitative terms, is surely too much to demand and surely not necessary given the special status of State opinio juris. However, States’ legal agencies and agents should be equipped, organized, and re-empowered to participate actively in the interpretation and development of IHL. This Article, extracted from a larger work, argues that reinvigorating opinio juris would reestablish the pluralistic IHL dialogue that formerly tested, updated, and enriched the balance between military necessity and humanity.
- Anne Millet-Devalle, Avant-propos
- Louis Balmond, Défis actuels et perspectives de l’emploi des armes aérienne et spatiale
- Michel Veuthey, Histoire du droit international humanitaire dans la guerre aérienne
- Eric David, Les principes de DIH dans le contexte de la guerre aérienne
- Marco Sassòli, Le principe de précaution dans la guerre aérienne
- Isabelle Moulier, La jurisprudence internationale en matière de guerre aérienne
- Jean-Christophe Martin, Les zones d’exclusion aérienne
- Anouche Beaudouin, La neutralite à l’epreuve de la guerre aérienne
- Karine Bannelier, Les enjeux de la guerre aérienne pour la protection de l’environnement. Remarques à propos du manual on international law applicable to air and missile warfare
- Eric Pomes, Les bombardements à l’aide de drones et les principes du droit droit international humanitaire : La difficile conciliation des principes d’humanité et de nécessité militaire
- Anne Millet-Devalle, Les processus diplomatiques relatifs à l’arsenalisation de l’espace extra-atmospherique
- Xavier Perillat-Piratoine, La mise en œuvre des principes de distinction et de proportionnalité matièren matière d’opérations aériennes
- Christian de Cock, Les frappes aériennes et l’operation « unified protector »
- Yoram Dinstein, Concluding remarks
For a related argument, see my The Regulatory Turn in International Law, 52 Harvard International Law Journal 321 (2011), in which I describe the emergence of "carceral humanitarianism" as part of a broader "regulatory turn" in international law.
Since the beginning of the twenty-first century, the human rights movement has been almost synonymous with the fight against impunity. Today, to support human rights means to favor criminal accountability for those individuals who have violated international human rights or humanitarian law. It also means to be against amnesty laws that might preclude such accountability.
This article both chronicles and critiques this turn to criminal law within human rights. It argues that as criminal law has become the enforcement tool of choice, it has negatively affected the lens through which the human rights movement and the international law scholars who support it view human rights violations. In short, as advocates increasingly turn to international criminal law to respond to issues ranging from economic injustice to genocide, they reinforce an individualized and decontextualized understanding of the harms they aim to address, even while relying on the state and on forms of criminalization of which they have long been critical.
Between the late 1880s and the onset of the Second World War, anti-slavery activism experienced a revival in Europe. Anti-slavery organizations in Britain, Italy, France, and Switzerland forged an informal international network to fight the continued existence of slavery and slave trading in Africa. Humanitarian Imperialism explores the scope and outreach of these antislavery groups along with their organisational efforts and campaigning strategies. The account focuses on the interwar years, when slavery in Africa became a focal point of humanitarian and imperial interest, linking Catholic and Protestant philanthropists, missionaries of different faiths, colonial officials, diplomats, and political leaders in Africa and Europe. At the centre of the narrative is the campaign against slavery in Ethiopia, an issue which served as a catalyst for the articulation of international humanitarian standards within the League of Nations in Geneva.
By looking at the interplay between British and Italian advocates of abolition, Humanitarian Imperialism shows how in the 1930s anti-slavery campaigning evolved in close association with Fascist imperialism. Thus, during the Italo-Ethiopian war of 1935, the anti-slavery argument became a propaganda tool to placate public opinion in Britain and elsewhere. Because of its global echoes, however, the conflict also generated worldwide protest that undermined the beliefs and certainties of anti-slavery campaigners, resulting in a crisis of humanitarian imperialism. By following the story of anti-slavery activism into the post-1945 period, this volume illuminates the continuities and discontinuities in the international history of humanitarian organizations as well as the history of imperial humanitarianism.
Monday, May 25, 2015
The Second World War created and the Cold War sustained a “special relationship” between America and Britain, and the terms on which that decades-long conflict ended would become the foundation of a new world order. In this penetrating analysis, a new history of recent global politics, author James Cronin explores the dramatic reconfiguring of western foreign policy that was necessitated by the interlinked crises of the 1970s and the resulting global shift toward open markets, a movement that was eagerly embraced and encouraged by the U.S./U.K. partnership.
Cronin’s bold revisionist argument questions long-perceived views of post–World War II America and its position in the world, especially after Vietnam. The author details the challenges the economic transition of the 1970s and 1980s engendered as the United States and Great Britain together actively pursued their shared ideal of an international assemblage of market-based democratic states. Cronin also addresses the crises that would sorely test the system in subsequent decades, from human rights violations and genocide in the Balkans and Africa to 9/11 and militant Islamism in the Middle East to the “Great Recession” of 2008.
Sunday, May 24, 2015
At the end of the First World War, the Paris Peace Conference saw a battle over the future of empire. The victorious allied powers wanted to annex the Ottoman territories and German colonies they had occupied; Woodrow Wilson and a groundswell of anti-imperialist activism stood in their way. France, Belgium, Japan and the British dominions reluctantly agreed to an Anglo-American proposal to hold and administer those allied conquests under "mandate" from the new League of Nations. In the end, fourteen mandated territories were set up across the Middle East, Africa and the Pacific. Against all odds, these disparate and far-flung territories became the site and the vehicle of global transformation.
In this masterful history of the mandates system, Susan Pedersen illuminates the role the League of Nations played in creating the modern world. Tracing the system from its creation in 1920 until its demise in 1939, Pedersen examines its workings from the realm of international diplomacy; the viewpoints of the League's experts and officials; and the arena of local struggles within the territories themselves. Featuring a cast of larger-than-life figures, including Lord Lugard, King Faisal, Chaim Weizmann and Ralph Bunche, the narrative sweeps across the globe-from windswept scrublands along the Orange River to famine-blighted hilltops in Rwanda to Damascus under French bombardment-but always returns to Switzerland and the sometimes vicious battles over ideas of civilization, independence, economic relations, and sovereignty in the Geneva headquarters. As Pedersen shows, although the architects and officials of the mandates system always sought to uphold imperial authority, colonial nationalists, German revisionists, African-American intellectuals and others were able to use the platform Geneva offered to challenge their claims. Amid this cacophony, imperial statesmen began exploring new means - client states, economic concessions - of securing Western hegemony. In the end, the mandate system helped to create the world in which we now live.
A riveting work of global history, The Guardians enables us to look back at the League with new eyes, and in doing so, appreciate how complex, multivalent, and consequential this first great experiment in internationalism really was.