The latest issue of the Michigan Journal of International Law (Vol. 36, no. 2, Winter 2015) is out. Contents include:
With the UN's attention to individual accountability for human rights abuses now well into its third decade, this paper appraises the added value of a UN role and the best methods for accomplishing it. The paper argues that human rights fact-finding is an especially important task for the UN and considers, based on past practice, the factors that contribute to successful fact-finding as well as the pitfalls for the UN to avoid in the future. Some of the insights are based on the author's membership in the Secretary-General Group of Experts for Cambodia and the Secretary-General's Panel of Experts on Accountability in Sri Lanka. This paper was originally delivered as the John P. Humphrey Lecture in Human Rights at McGill University in September 2014.
The latest issue of the Journal of International Arbitration (Vol. 32, no. 4, 2015) is out. Contents include:
The latest issue of the Journal of World Trade (Vol. 49, no. 4, 2015) is out. Contents include:
Bringing together international lawyers and EU external relations lawyers, the conference will discuss recent developments concerning EU external action in the field of international economic law, concentrating, on a number of important issues raised by recent practice and case law whose resolution does not appear to be in the offing.
Attention will be paid, firstly, to the division of competence between the EU and the Member States in the field of international economic relations, which remains unclear. Whereas the European Commission advocates a comprehensive, all-encompassing competence under the common commercial policy provision (Art. 207 TFEU), the Member States and the Council claim that comprehensive free trade agreements (FTAs) fall within shared competence and ought to be concluded in the form of mixed agreements.
Next, the highly controversial issue of the inclusion of dispute settlement mechanisms in such agreements will be examined. The EU, along with its Member States, is already party to one agreement including investor-state dispute settlement (ISDS), namely the Energy Charter Treaty. It is unclear, however, to what extent ISDS is compatible with EU law and with the principle of autonomy in particular.
Finally, the conference will discuss issues concerning the distribution of international responsibility between the EU and its Member States, as well as the relation between FTAs and the regulatory powers of the Member States in sensitive fields such as environmental protection, public health and labour law.
In 2007, ASEAN adopted the ASEAN Charter, which stated its ambition to become a 'rules-based' community respecting the rule of law. In order to fulfil this objective, it is vital that the necessary legal infrastructure has effective legal support. This book helps readers to understand the need for and role of such a legal service. To begin with, it explores the way ASEAN and its various institutions have evolved. The current situation with respect to the making of rules and settlement of disputes is then analysed, drawing not only on published primary and secondary materials, but also on the experience of diplomats, officials and legal officers. Finally, the authors draw on their practical experiences, as former attorney-general of an ASEAN member state and former head of the European Council legal service, to make recommendations on how an ASEAN Legal Service might be organised.
Ever since the first judicial decisions on the question of implementing the resolutions passed by the Security Council in the wake of combatting terrorism were rendered, the tension between the so-called 1267 sanctions regime and fundamental human rights became all too visible and confronted the lawyer – most of all, the judge(s) – with the unpleasant dilemma to choose sides in the classical liberty or security-dichotomy: obeying the Security Council or looking for legal loopholes, regardless of how fishy they may appear, in order to guarantee the basic human rights for those affected? Case-law on this subject matter shows that judges soon realized that they were not alone in attempting to find a somewhat acceptable way out of this dilemma. Many domestic and international courts have – to varying degrees – proven to be ready and willing to refer to the decisions and the underlying rationale of their counterparts in other jurisdictions. After all, the main reason why judges resort to such a ‘judicial dialogue’ – a legal problem which goes beyond the specific technicalities of a given legal order and which has been raised during the proceedings of various courts – was obviously present and while it may be too emphatic to speak of a triumph of judicial dialogue, it has certainly played a key role in improving (although still not to a satisfying extent) the 1267 sanctions regime.
Given the literature in the field of jus cogens one might ask what could possibly be added to the body of literature already existing in field? Robert Kolb, one of the leading international scholars of his generation, offers a seminal survey of the question of peremptory international law. The book analyses and systemises courts’ diverging approaches, and draws a typology of techniques for judicial protection afforded to individuals affected by UNSC measures. On the basis of this analysis, the book identifies the discrepancies with the international human rights law standards and proposes solutions. The study pays special attention to the persisting problem with the targeted sanctions regime, which is that the grounds and evidence on the basis of which individuals are designated remain largely confidential. The book suggests an amendment to the present UNSC procedure, which would mitigate this problem. This important book is essential reading for all scholars of the subject.
In Christian Human Rights, Samuel Moyn asserts that the rise of human rights after World War II was prefigured and inspired by a defense of the dignity of the human person that first arose in Christian churches and religious thought in the years just prior to the outbreak of the war. The Roman Catholic Church and transatlantic Protestant circles dominated the public discussion of the new principles in what became the last European golden age for the Christian faith. At the same time, West European governments after World War II, particularly in the ascendant Christian Democratic parties, became more tolerant of public expressions of religious piety. Human rights rose to public prominence in the space opened up by these dual developments of the early Cold War.
Moyn argues that human dignity became central to Christian political discourse as early as 1937. Pius XII's wartime Christmas addresses announced the basic idea of universal human rights as a principle of world, and not merely state, order. By focusing on the 1930s and 1940s, Moyn demonstrates how the language of human rights was separated from the secular heritage of the French Revolution and put to use by postwar democracies governed by Christian parties, which reinvented them to impose moral constraints on individuals, support conservative family structures, and preserve existing social hierarchies. The book ends with a provocative chapter that traces contemporary European struggles to assimilate Muslim immigrants to the continent's legacy of Christian human rights.
In popular, scholarly, and legal discourse, psychological trauma is an experience that belongs to victims. While we expect victims of crimes to suffer trauma, we never ask whether perpetrators likewise experience those same crimes as trauma. Indeed, if we consider trauma in the perpetration of a crime at all, it is usually to inquire whether a terrible experience earlier in life drove a person toward wrongdoing. We are loath to acknowledge that the commission of the crime itself may cause some perpetrators to experience their own psychological injury and scarring.
This Article aims to fill this gap in our understanding of crime and trauma by initiating a long overdue conversation about perpetrator trauma. Specifically, this Article argues that perpetrator trauma exists and merits attention. In doing so, it traces a cultural evolution in the concept of trauma from a psychological category to a moral one, and in response, it proposes a counternarrative of trauma — one that recognizes trauma as a neutral, human trait, divorced from morality, and not incompatible with choice and agency.
Finally, this Article argues that we ignore this counternarrative of trauma at our peril. Acknowledging the reality of perpetrator trauma can improve reconciliation efforts in the aftermath of mass atrocity by exposing the need to rehabilitate perpetrators. As importantly, recognizing perpetrator trauma erodes the all-too-common perception of perpetrators as cartoonish monsters by exposing their ordinariness and humanity. The point is not to generate sympathy for a génocidaire. But recognizing him as a person who chose to kill, and who now suffers because of it, can illuminate both the roots of his crimes and the real horror undergirding them — that perpetrators are merely people, and that any other person could do the same. In exposing these overlooked aspects of crime, this Article unsettles understandings of suffering and violence, challenges the categories of perpetrator and victim, and makes clear that the question of how to respond to mass atrocity is even more complex than we know.
This contribution looks at recent developments concerning the accountability of armed groups and corporations under international law. In particular it looks at corporate criminal responsibility and the new AU Protocol providing for a criminal chamber to prosecute corporations, developments in investment law, and new approaches by the UN towards reporting on human rights violations committed by armed groups.
This book traces the creation of international anti-corruption norms by states and other actors through four markedly different institutions: the Organisation for Economic Co-operation and Development, the United Nations, the Extractive Industries Transparency Initiative, and the Financial Action Task Force. Each of these institutions oversees an international instrument that requires states to combat corruption. Yet, only the United Nations oversees anti-corruption norms that take the sole form of a binding multilateral treaty. The OECD has, by contrast, fostered the development of the binding 1997 OECD Anti-Bribery Convention, as well as non-binding recommendations and guidance associated with treaty itself. In addition, the revenue transparency and anti-money laundering norms developed through the Extractive Industries Transparency Initiative and the Financial Action Task Force, respectively, take the form of non-binding instruments that have no relationship with multilateral treaties. The creation of international anti-corruption norms through non-binding instruments and informal institutions has the potential to privilege the interests of powerful states in ways that raise questions about the normative legitimacy of these institutions and the instruments they produce. At the same time, the anti-corruption instruments created under the auspices of these institutions also show that non-binding instruments and informal institutions carry significant advantages. The non-binding instruments in the anti-corruption field have demonstrated a capacity to influence domestic legal systems that is comparable to, if not greater than, that of binding treaties.
ASEAN has undertaken the complex task of creating a single economic entity for Southeast Asia by 2015 in the form of the ASEAN Economic Community (AEC), but without regulators or supranational institutions, its implementation has been an inconsistent process. Through comparisons with the EU and NAFTA, this book illustrates the shortcomings of the current system, enabling readers to understand both the potential of regional economic development in ASEAN and its foundational and institutional deficiencies. The authors' analysis of trade in goods and services, investment, and dispute resolution in the AEC indicates that without strong regional institutions, strong dispute resolution or a set of norms, full and effective implementation of the AEC is unlikely to result. The book offers clear solutions for the ASEAN institutions to help the AEC reach its full potential. Written by two leading practitioners, this insightful book will interest policymakers, students and researchers.
This chapter surveys settings under the auspices of international organizations and institutions that address the environment and highlights a number of underappreciated structural attributes of international environmental governance. A variety of approaches to treating environment on the multilateral level are categorized, resulting in a typology of both international institutional structures and the diversity of international instruments and policy tools available for promoting substantive international environmental policy. Utilizing examples that are intended to be illustrative of specific aspects of the challenges presented by international environmental policy and law rather than exhaustive, the piece concludes by examining the extent to which form effectively follows function on a variety of subject matter areas from the point of view of multilateral governance.
A number of conclusions emerge from this analysis. First, many international organizations whose functional orientation is not primarily environmental, including the Organization for Economic Cooperation and Development and the World Trade Organization, are very active on environmental issues. Further, only one international institution - the United Nations Environment Program, which is not even formally an international organization - is charged with environment as its primary mission. Third, the treatment of environment is highly compartmentalized and fragmented, distributed among multiple multilateral institutions and international agreements. Last, an identifiable model of an organic treaty establishing a comprehensive, self-contained regime has emerged in recent years. The environmental-treaty-as-governance-structure is an alternative to, although in some ways the functional equivalent of, a formal international organization as an international institutional vehicle for addressing environmental issues.
This book analyses whether, and how, equity and equitable principles can be employed as juridical tools in the legal reasoning of judges and lawyers in World Trade Organization (WTO) disputes where there is interaction between norms derived from the multilateral trade regime and other international legal regimes. Bringing the literature on equity and equitable principles in international law up to date this book tackles several legal problems which have emerged in WTO dispute settlement practice as well as engaging with the concept of the fragmentation of international law. The book provides an original argument about the role and significance of equity and equitable principles in the debate over fragmentation by providing a coherent methodology for addressing conflicts and overlaps between WTO and non-WTO norms in the context of Dispute Settlement Body proceedings.
The 2015 Chadwick Alger book prize is now open for nominations. The Alger prize is open to books published in 2015 on international organization, global governance, and related topics, and is sponsored by the International Organization section of the International Studies Association.
Books can be nominated by their authors, publishers, or others. To submit a book for consideration, send copies to the three members of the Prize Committee: Len Seabrooke, Patricia Owens, and Sarah Percy. For questions, please contact Ian Hurd, Chair of the ISA-IO section at ianhurd@northwestern.edu.
Len Seabrooke
Department of Business and Politics
Copenhagen Business School
Steen Blichers Vej 22
Frederiksberg 2000
DENMARKPatricial Owens
International Relations
Arts C
University of Sussex
Brighton
BN1 9SJ
UKSarah Percy,
c/o Richard Devetak
Associate Professor in International Relations and Head of School
School of Political Science and International Studies
University of Queensland
Brisbane QLD 4072
Australia
An 'implementation crisis' has been identified in the enforcement of rulings of UN and regional human rights bodies and fundamental but crucial questions remain unanswered: what exactly does it mean to implement and comply with international and regional human rights decisions; and what factors influence whether a state implements and complies or not? Much more is now known about the work of the African Commission on Human and Peoples' Rights, but a gap still exists in the literature on the implementation of the findings of the Commission. This book draws upon the data and evaluation from a four-year research project, analysing the range of pronouncements of the African Commission, including its decisions on individual communications, provisional measures, resolutions, and promotional and protective mission reports. It investigates the extent to which States implement these findings and examines how that implementation is monitored by others.
This article takes a critical view on the debates around the phenomenon of jurisprudential cross-fertilization between international criminal tribunals and human rights courts, in particular the European Court of Human Rights. Asymmetries of cross-citation and influence along this axis of cross-judicial communication can be explained by distinct judicial styles and uneven mutual relevance, rather than by any sort of hierarchy. However, the discourse surrounding the tribunal-oriented ‘cross-fertilization’ has a normative pull that introduces an informal hierarchy, which is a means to ensure the tribunals’ conformity with human rights law. However valid its agenda may be, this approach is legally groundless and incompatible with the terms of transjudicial communication and it underestimates the pluralist nature of international human rights, among other discontents. Ultimately, it is also ineffective in serving its main ideological purpose.
The article examines whether the North-Gauteng High Court in South Africa came to the right conclusion, both in terms of the applicable international and domestic law, in its decision of 15 June 2015 concerning Al Bashir. As will be illustrated below, the international law assessment turns on one’s interpretation of the inter-relationship between articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). This analysis will inter alia make reference to the ICC Pre-Trial Chamber II decision of 14 April 2014 against the Democratic Republic of Congo (‘DRC’). The circumstances of that decision were very similar to the one against South Africa. It resulted from a visit by Al-Bashir to the DRC in 2014, in order to attend a meeting of the Common Market for Eastern and Southern Africa (‘COMESA’). The DRC, a state party to the ICC Statute, failed to comply with a request for arrest and surrender of Al Bashir to the ICC. It justified its position by relying on the AU decision not to surrender any sitting head of state to the ICC. The national law assessment turns on the status of the Implementation Act and the host-state agreement in the domestic legal order, as well as the requirement in section 233 of the Constitution of the Republic of South Africa, 1996 (‘Constitution’) that domestic law has to be interpreted in an accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.
The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 17, no. 1, 2015) is out. Contents include:
