Saturday, January 23, 2016

Özsu: Legal Form

Umut Özsu (Univ. of Manitoba - Law) has posted Legal Form (in Fundamental Concepts for International Law: The Construction of a Discipline, Jean d’Aspremont & Sahib Singh eds., forthcoming). Here's the abstract:
This paper considers the theory and politics of international legal formalism. I argue that when contemporary international lawyers insist upon the need to "revive" legal formalism, or at least to take the formalist tradition more seriously than has been the case during the past half century, their appeals generally fall flat. Formalism, as conventionally understood, is nearly always framed as a relic of the past, an outdated and deeply suspicious modernist sensibility that ought to be derided, dismissed, or denounced. Yet, I argue, this is not the only (or even the most significant) problem, for to demand the "resuscitation" of legal formalism is to miss the more fundamental point that a certain commitment to formality - an alertness and sensitivity to the power of rationalization - is unavoidable when dealing with law. I propose that we acknowledge the full implications of the insight that international law is at one and the same time fed by extra-legal dynamics and informed by "relatively autonomous" structures of its own. Broached from this broader socio-legal perspective, anti-formalism today should be understood not as a grand theoretical innovation, to be lauded or lambasted, but as a piece of commonplace wisdom, fully capable of being absorbed into any "neo-formalism" that has come to terms with the legal realist challenge, distanced itself from artificial models of internal coherence and immanent intelligibility, and adopted the crucial, if somewhat prosaic, goal of supplying weaker actors with at least a limited measure of defensive tools.

Friday, January 22, 2016

Conference: War, Peace and International Order? The Legacies of The Hague Conferences of 1899 and 1907

On April 19, 2016, the Faculty of Arts at the University of Auckland and the New Zealand Centre for Human Rights Law, Policy and Practice will co-host a conference on "War, Peace and International Order? The Legacies of The Hague Conferences of 1899 and 1907." The program is here. Here's the idea:

On 27 August 1898, Tsar Nicholas II of Russia sent a diplomatic rescript to various accredited representatives, inviting nations to discuss disarmament and other initiatives in support of peace. His initiative resulted in the hosting of the first Hague peace conference, the following year. Delegations representing 26 states from around the world negotiated a range of conventions at The Hague centred on the use of inhumane weapons, the customs and law of land and naval warfare, neutrality, and the pacific settlement of international conflicts. In 1907, the work of The Hague continued during a second conference, this one lasting twice as long and involving 44 states.

The exact legacies of the two Hague Peace Conferences of 1899 and 1907 are unclear. Between the various strands of scholarship there is a wide range of understandings of the two Hague Peace Conferences (1899 and 1907). At one end, diplomatic and military historians, who cast their gaze to 1914, traditionally dismiss the events of 1899 and 1907 as insignificant ‘footnotes en route to the First World War’ (N. J. Bailey). At the other end, experts in international law posit that The Hague’s foremost legacy lies in the manner in which it progressed the law of war and the concept and application of international justice. Historians of peace and pacifism view the conferences as seminal moments that legitimated and gave a greater degree of relevance to international political activism. Cultural scholars tend to focus on the symbolic significance of The Hague and the Peace Palace, built in 1913, as places for explaining the meaning of peace.

Sadl & Madsen: A 'Selfie' from Luxembourg: The Court of Justice and the Fabrication of the Pre-Accession Case-Law Dossiers

Urska Sadl (Univ. of Copenhagen - iCourts) & Mikael Rask Madsen (Univ. of Copenhagen - Law) have posted A 'Selfie' from Luxembourg: The Court of Justice and the Fabrication of the Pre-Accession Case-Law Dossiers (Colombia Journal of European Law, forthcoming). Here's the abstract:
How does the European Court of Justice view itself? Which cases does it regard as most important? The question has riddled EU scholarship for decades. Due to a basic lack of empirical evidence, which is in part a consequence of secrecy surrounding the Court, no empirically firm answer has been provided. In this article we seek to close this gap in scholarship by using a unique data-set, compiled by the Court. We use a set of quantitative and qualitative methods to unpack the so-called historic case-law dossiers assembled by the Court, and presented to thirteen member states upon accessions in 2004, 2007 and 2013. We reconstruct the content of the selection as well as the rather specific legal EU that they project. From our empirical analysis, framed by social science theories on the relationship between knowledge and power, it follows that this was not a neutral compilation of what EU law is. On the contrary, the Court seized the opportunity to highlight its own role in the formation of the EU legal order. At the receiving end, the importance of the dossier was not in the detailed legal knowledge to facilitate the transition to the EU, but primarily the institutional knowledge on who were the real masters of the Treaties.

Aust & Nolte: The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence

Helmut Philipp Aust (Humboldt Univ. Berlin - Law) & Georg Nolte (Humboldt Univ. Berlin - Law; Member, International Law Commission) have published The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Oxford Univ. Press 2016). Contents include:
  • Georg Nolte, Introduction
  • Michael Waibel, Principles of Treaty Interpretation - Developed for and Applied by National Courts
  • André Nollkaemper, Grounds for the Application of International Rules of Interpretation in National Courts
  • Eirik Bjorge, 'Contractual' and 'Statutory' Treaty Interpretation in Domestic Courts? Convergence around the Vienna Rules
  • Antonios Tzanakopoulos, Judicial Dialogue as A Means of Interpretation
  • Mathias Forteau, The Role of the International Rules of Interpretation for the Determination of Direct Effect of International Agreements
  • Peter Staubach, The Interpretation of Unwritten International Law by Domestic Judges
  • Dire Tladi, Interpretation of Treaties in an International Law-Friendly Framework: the Case of South Africa
  • Alejandro Rodiles, The Law and Politics of the Pro Persona Principle in Latin America
  • Christian Djeffal, Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe
  • Julian Arato, Deference to the Executive: The US Debate in Global Perspective
  • Yukiko Takashiba, Gingerly Walking on the VCLT Frontier? Reflections from a Survey on the Interpretive Approach of the Japanese Courts to Treaties
  • Vik Kanwar, Treaty Interpretation in Indian Courts - Adherence, Coherence, and Convergence
  • Theresa Reinold, Diffusion Theories and the Interpretive Approaches of Domestic Courts
  • Achilles Skordas, Treaty Interpretation and Global Governance: The Role of Domestic Courts
  • Olga Frishman & Eyal Benvenisti, National Courts and Interpretive Approaches to International Law: The Case Against Convergence
  • Helmut Philipp Aust, Between Universal Aspiration and Local Application: Concluding Observations

Fard: Reciprocity in International Law: Its Impact and Function

Shahrad Nasrolahi Fard has published Reciprocity in International Law: Its Impact and Function (Routledge 2016). Here's the abstract:
In international relations, reciprocity describes an environment in which States support one another for short- or long-term advantage through the balancing of rights, duties and interests. This book examines reciprocity in the context of international law. It considers the role reciprocity plays in the creation and development of international law as well as in the interpretation and application of international law. The book illuminates the reciprocal framework of international law and international relations by examining the role reciprocity plays in different types of States’ obligations, including bilateral, bilateralisable multilateral, non-bilateralisable multilateral and obligations erga omnes. The book examines how reciprocity is intertwined with the principle of equality, as the rights and obligations of States are equal irrespective of size and economic or military strength, and the beneficial effects of reciprocity in creating stability and cooperation amongst States.

Hurd: Permissive Law on the International Use of Force

Ian Hurd (Northwestern Univ. - Political Science) has posted Permissive Law on the International Use of Force (Proceedings of the American Society of International Law, forthcoming). Here's the abstract:
The Charter of the United Nations provide the inescapable framework, both normative and legal, for the international regulation for inter-state violence. All international uses of force take place under its light. Its political effects are however the opposite of what is often assumed: this essay suggests that the Charter’s contribution is as much about endorsing international war as it is about restraining it. In providing the legal language of 'self-defense' within which states conduct their wars, the Charter becomes an instrument which states can use to legitimize their military operations through law. It authorizes states to engage in war, and defines the circumstances under which they can call it lawful. I use this to demonstrate an approach to the political contribution of international law that connects law with power — legal power, state power, and political authority — and which contradicts both the liberal internationalist and realist accounts of legalization in international relations theory.

d'Aspremont: Martti Koskenniemi, the Mainstream, and Self-Reflectivity

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted Martti Koskenniemi, the Mainstream, and Self-Reflectivity (Leiden Journal of International Law, forthcoming). Here's the abstract:
This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemi's work, international lawyers came to feel that they had domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline’s vocabulary decide on their behalf.

Thursday, January 21, 2016

New Issue: Chicago Journal of International Law

The latest issue of the Chicago Journal of International Law (Vol. 16, no. 2, Winter 2016) is out. Contents include:
  • Kristen E. Boon, The United Nations as Good Samaritan: Immunity and Responsibility
  • James Thuo Gathii, Saving the Serengeti: Africa's New International Judicial Environmentalism
  • Jared Genser & Clare Garvie, Contracting for Stability: The Potential Use of Private Military Contractors as a United Nations Rapid-Reaction Force
  • Harry Hobbs, Hybrid and the Composition of the Court: In Search of Sociological Legitimacy
  • Tina Søreide, Linda Gröning, & Rasmus Wandall, An Efficient Anticorruption Sanctions Regime? The Case of the World Bank

Call for Papers/Appel à contributions: 12th Annual ESIL Conference/12e conférence annuelle de la SEDI (Reminder)

The European Society of International Law has issued a call for papers for its 12th Annual Conference, which will take place September 8-10, 2016, in Riga and will be hosted by the Riga Graduate School of Law in cooperation with the Constitutional Court of the Republic of Latvia. The theme is: "How International Law Works in Times of Crisis." The call for papers is here and the call for posters is here. L'appel à contributions est ici et l'appel à affiches est ici. The deadline is Sunday, January 31, 2016. La date limite est le dimanche 31 janvier 2016.

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 48, no. 1, Fall 2015) is out. Contents include:
  • William J. Aceves, United States v. George Tenet: A Federal Indictment for Torture
  • Asad G. Kiyani, International Crime and the Politics of Criminal Theory: Voices and Conduct of Exclusion
  • Stephen Meili, Do Human Rights Treaties Matter?: Judicial Responses to the Detention of Asylum Seekers in the United States and the United Kingdom
  • Aaron D. Simowitz, Siting Intangibles

Goldmann & Sonnen: Soft Authority Against Hard Cases of Racially Discriminating Speech

Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law) & Mona Sonnen (Heidelberg Univ.) have posted Soft Authority Against Hard Cases of Racially Discriminating Speech: Why the CERD Committee Needs a Margin of Appreciation Doctrine. Here's the abstract:
Faced with an increasing backlash against immigrants in many developed states, this article revisits the practice of the Committee for the Elimination of All Forms of Racial Discrimination (CERD Committee) with respect to racially discriminating speech. Cases like the decision concerning Thilo Sarrazin reveal an impoverished style of reasoning that shows little sensitivity for the actual context of the decision. The CERD Committee seems insufficiently aware of the authority it exercises through its Communications, whose real, albeit not legal, effects resemble those of judgments of international courts. The CERD Committee should therefore consider applying standards of reasoning similar to those of international courts in order to increase the legitimacy and effectiveness of its Communications. They would particularly benefit from a margin of appreciation doctrine that leaves domestic authorities greater leeway in developing context-sensitive strategies to counter the threat of anti-migrant popular sentiment, including, but not limited to, criminal proceedings.

Messenger: The Development of World Trade Organization Law: Examining Change in International Law

Gregory Messenger (Univ. of Liverpool - Law) has published The Development of World Trade Organization Law: Examining Change in International Law (Oxford Univ. Press 2016). Here's the abstract:

The World Trade Organization is a central player in international trade regulation. The rights and duties that form WTO law are not created in a vacuum, however, and there exists a complex network of domestic, regional and international influences on the development of WTO law that go beyond the disciplines found in the covered agreements or the interpretations given by panels and the Appellate Body. As such, understanding the development of WTO law in a wider institutional context is critical to comprehending WTO law in a new age of legal globalization.

The Development of World Trade Organization Law: Examining Change in International Law examines the development of WTO law through an analysis of competing global actors, norms, and institutions. Taking a different approach to social-scientific or traditional legal models, this book argues that such globalized actors are the driving force behind the development of WTO law yet not in control of it. Identifying causal language as key to understanding this development, the volume examines three different causal influences: instrumental, systemic, and constitutive. It applies this causal methodology to three key areas of WTO law: safeguard measures, sanitary and phytosanitary measures, and subsidies. The volume provides detailed explanations of why the law has developed as it has and offers insights into the future functioning of the WTO system.

New Volume: Australian Year Book of International Law

The latest volume of the Australian Year Book of International Law (Vol. 32) is out. Contents include:
  • Kirby Lecture in International Law — 2013
    • Gillian Triggs, Freedom of Speech and Giving Offence: Can a Balance be Struck?
  • Kirby Lecture in International Law — 2014
    • Andrew Byrnes, The Meanings of International Law: Government Monopoly, Expert Precinct or Peoples’ Law?
  • Articles
    • Joyce Chia, Jane McAdam & Kate Purcell, Asylum in Australia: ‘Operation Sovereign Borders’ and International Law
    • Lucas Lixinski, Sustainable Development in International Heritage Law: Embracing a Backwards Look for the Sake of Forwardness?
  • Whaling Agora
    • Michael Johnson, Whaling in the Antarctic – the ICJ decision and its consequences for future special permit whaling
    • Penelope Ridings, The Intervention Procedure in Whaling in the Antarctic: A Threat to Bilateralism?
    • Dai Tamada, On the Way to Definitive Settlement of Dispute: Lessons from the Whaling Case
    • Claire Brighton, Unravelling Reasonableness: A Question of Treaty Interpretation
    • Robert Kolb, Short Reflections on the ICJ’s Whaling Case and the Review by International Courts and Tribunals of ‘Discretionary Powers’
    • Julian Wyatt, Should We Presume that Japan Acted in Good Faith? Reflections on Judge Abraham’s Burden of Proof Based Analysis

Wednesday, January 20, 2016

Call for Papers: Temporalities, Law & Security

The "Temporalities, Law & Security" stream is soliciting paper and panel submissions for a conference on "'New' Legal Temporalities? Discipline and Resistance Across Domains of Time," at University of Kent, September 8-10, 2016. Here's the call:

Call for papers and panels

Temporalities, Law & Security stream

Conference: The ‘New’ Legal Temporalities?

Discipline and Resistance Across Domains of Time

The 'Temporalities, Law & Security' stream is currently soliciting paper and panel submissions, as part of the ‘New’ Legal Temporalities? Discipline and Resistance Across Domains of Time conference to be held at University of Kent on 8 - 10 September 2016. Information about the conference can be found here.

Our stream invites contributors to analyse the relations between law and security through a temporal lens. What does it mean to rethink in temporal terms the legal conflicts provoked by security politics? Relevant practices for consideration include, but are not limited to: targeted killings, cybersecurity, communications surveillance, global health security, counter-radicalisation and other counter-terrorism measures. In the context of these practices, we invite interdisciplinary panel and paper investigations into the interrelationship of time, technology and security politics. One line of inquiry concerns how securing against uncertain future threats in the present alters the temporal features of law. Another asks how law and time operate together to enable security politics in the first place. We welcome proposals asking whether existing and emerging accountability mechanisms adequately respond to speculative security measures.

Convenors: Gavin Sullivan (Kent Law School) and Geoff Gordon (Vrije Universiteit Amsterdam).

Panel and paper submissions should be sent to regulatingtime@kent.ac.uk, specifying ‘Temporalities, Law & Security’ in the subject line. The deadline for panel proposals is 15 February; the deadline for individual abstracts (300 words maximum) is 29 February.

Collins: Performance Requirements and Investment Incentives Under International Economic Law

David Collins (City Univ. London - Law) has published Performance Requirements and Investment Incentives Under International Economic Law (Edward Elgar Publishing 2016). Here's the abstract:

In this discerning book, David Collins provides an eloquent analysis of performance requirements and investment incentives as vital tools of economic policy. Adopting a consciously broad definition of both instruments, this work provokes a constructively critical assessment of their existing treatment under international economic law.

Performance Requirements and Investment Incentives Under International Economic Law astutely links the debate surrounding the use of such tools to the rise of emerging markets as key participants in economic globalization. The industrialization of developing countries has led to an increased reliance on foreign direct investments as a method of growth, in turn giving rise to the implementation of various regulatory strategies. Innovatively focusing on the inter-relation between performance requirements and investment incentives, David Collins illustrates the problems caused by their differential control and considers some possible approaches to achieving effective oversight. Drawing on network governance theory, he considers a unified regime of governance, which would allow for more comprehensive and systematic evaluation.

Oxford Public International Law Discussion Group - Hilary Term 2016

Here's the schedule for the Oxford Public International Law Discussion Group for Hilary Term 2016:
  • January 21, 2016: Panos Merkouris (Univ. of Groningen - Law), Interpretation of Customary International Law: The Rules of the Game
  • January 28, 2016: Eyal Benvenisti (Univ. of Cambridge - Law), The mega regional agreements on trade, investment and much More: can law compensate for the democratic deficits?
  • February 4, 2016: Chaloka Beyani (London School of Economics; United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons), The forcible displacement of populations: territoriality and interlocking regimes in Public International Law
  • February 11, 2016: Kate Parlett (20 Essex Street), Incidental Jurisdiction of UNCLOS Tribunals
  • February 18, 2016: Paolo Palchetti (Università di Macerata - Law), The role of domestic courts in determining customary international law viewed through the prism of Italian practice
  • February 25, 2016: Vicki Prais (U.K. Foreign and Commonwealth Office), Protecting the human rights of British nationals in detention around the world: A view from the coalface

Fisch: The Right of Self-Determination of Peoples: The Domestication of an Illusion

Jörg Fisch (Universität Zürich - History) has published The Right of Self-Determination of Peoples: The Domestication of an Illusion (Cambridge Univ. Press 2016). Here's the abstract:
The right of self-determination of peoples holds out the promise of sovereign statehood for all peoples and a domination-free international order. But it also harbors the danger of state fragmentation that can threaten international stability if claims of self-determination lead to secessions. Covering both the late eighteenth- and early nineteenth-century independence movements in the Americas and the twentieth-century decolonization worldwide, this book examines the conceptual and political history of the right of self-determination of peoples. It addresses the political contexts in which the right and concept were formulated and the practices developed to restrain its potentially anarchic character, its inception in anti-colonialism, nationalism, and the labor movement, its instrumentalization at the end of the First World War in a formidable duel that Wilson lost to Lenin, its abuse by Hitler, the path after the Second World War to its recognition as a human right in 1966, and its continuing impact after decolonization.

Van Harten & Malysheuski: Who Has Benefited Financially from Investment Treaty Arbitration?

Gus Van Harten (York Univ. - Osgoode Hall Law School) & Pavel Malysheuski (Lockyer + Hein LLP) have posted Who Has Benefited Financially from Investment Treaty Arbitration? An Evaluation of the Size and Wealth of Claimants. Here's the abstract:
We collected data on the size and wealth of the foreign investors that have brought claims and received compensation due to ISDS. Our main findings are that the beneficiaries of ISDS, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue – especially extra-large companies with more than USD10 billion – and individuals with more than USD100 million in net wealth. ISDS has produced monetary benefits primarily for those companies or individuals at the expense of respondent states. Incidentally, we also found that extra-large companies’ success rates in ISDS, especially at the merits stage, exceeded by a large margin the success rates of other claimants. It was evident that ISDS has also delivered substantial monetary benefits for the ISDS legal industry.

Delimatsis: The Law, Economics and Politics of International Standardisation

Panagiotis Delimatsis (Tilburg Univ. - Law) has published The Law, Economics and Politics of International Standardisation (Cambridge Univ. Press 2016). Contents include:
  • Panagiotis Delimatsis, Continuity and change in international standardisation
  • Henk de Vries, Standardisation: a developing field of research
  • Hans Lindahl, ISO standards and authoritative collective action: conceptual and normative issues
  • Knut Blind, From standards to quality infrastructure: a review of impact studies and an outlook
  • Alessandra Arcuri, Global food safety standards: the evolving regulatory epistemology at the intersection of the SPS Agreement and the Codex Alimentarius Commission
  • Panagiotis Delimatsis, 'Relevant international standards' and 'recognised standardisation bodies' under the TBT Agreement
  • Juan Marchetti, Technical standard-setting in the financial sector
  • Petros C. Mavroidis, Standardizing trade in services?
  • Walter Mattli & Jack Seddon, The power of the penholder: the missing politics in global regulatory governance analysis
  • Harm Schepel, Between standards and regulation: on the concept of 'de facto mandatory standards' after Tuna II and Fra.bo
  • Jan Wouters, Competition and cooperation in the market of voluntary sustainability standards Axel Marx and
  • Olivier Cadot, Anne-Celia Disdier & Lionel Fontagné, Harmonizing non-tariff measures: always a blessing?
  • Stephanie Bijlmakers & Geert Van Calster, You'd be surprised how much it costs to look this cheap! A case-study of ISO 26000 on social responsibility
  • Awilo Ochieng Pernet, The development dimension of the Codex Alimentarius standard-setting process
  • Angelos Dimopoulos, Standards of responsible investment and international investment law
  • Pierre Larouche & Geertrui Van Overwalle, Interoperability standards, patents and competition policy
  • Neil Gandal & Pierre Régibeau, Standard-setting organisations (SSOs): current policy issues and empirical evidence
  • Eleni Kosta & Kees Stuurman, Technical standards and the draft General Data Protection Regulation
  • Panagiotis Delimatsis, The law, economics and politics of international standardisation: a future research agenda

Tuesday, January 19, 2016

Glennon & Sloane: The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power

Michael J. Glennon (Tufts Univ. - Fletcher School of Law and Diplomacy) & Robert D. Sloane (Boston Univ. - Law) have posted The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power (Yale Journal of International Law, forthcoming). Here's the abstract:
Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation.

Brier: Beyond the Quest for a “Breakthrough”: Reflections on the Recent Historiography on Human Rights

Robert Brier (London School of Economics - International History) has published Beyond the Quest for a “Breakthrough”: Reflections on the Recent Historiography on Human Rights (Jahrbuch für Europäische Geschichte, Vol. 16). Here's the abstract:
Human rights have become a central object of international and global history, with research focusing on the question where the origins of the central position of human rights language in our own time lie. The aim of this article is to take stock of this debate and discuss possible future avenues of research. The existing literature has shown, the article argues, that the 1970s were a crucial time for the rise of human rights, but it also warns against declaring this decade or any other time the definite breakthrough for human rights. Underlining how human rights have always been influenced by their past, discussing how tenuous the international position of human rights remains well into our own time and exposing different meanings human rights acquired historically, the article concludes that the identification of multiple chronologies of post-war human rights history and a focus on the great variety of human rights vernaculars provide more promising avenues along which to push this project ahead than the quest for an elusive human rights breakthrough.

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 13, no. 5, December 2015) is out. Contents include:
  • Articles
    • Mark A. Drumbl, Stepping Beyond Nuremberg’s Halo: The Legacy of the Supreme National Tribunal of Poland
    • Miles Jackson, A Conspiracy to Commit Genocide: Anti-Fertility Research in Apartheid’s Chemical and Biological Weapons Programme
    • Anni Pues, A Victim’s Right to a Fair Trial at the International Criminal Court?: Reflections on Article 68(3)
    • Sofia Stolk, The Victim, the International Criminal Court and the Search for Truth: On the Interdependence and Incompatibility of Truths about Mass Atrocity
  • Symposium: On President Al-Bashir’s Presence at the African Union Summit in South Africa and the Non-execution of the ICC Arrest Warrant
    • Manuel J. Ventura, Escape from Johannesburg?: Sudanese President Al-Bashir Visits South Africa, and the Implicit Removal of Head of State Immunity by the UN Security Council in light of Al-Jedda
    • Dire Tladi, The Duty on South Africa to Arrest and Surrender President Al-Bashir under South African and International Law: A Perspective from International Law
    • Erika de Wet, The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law
  • Cases before International Courts and Tribunals
    • Sebastián A. Green Martínez, Destruction of Cultural Heritage in Northern Mali: A Crime Against Humanity?
    • Marek Szydło, Reduction of Life Sentences Imposed by International Criminal Tribunals after the Galić Decision: Is There Need for Further Improvement?
  • National Prosecution of International Crimes: Legislation and Cases
    • José Elías Esteve Moltó, The ‘Great Leap Forward’ to Impunity: Burying Universal Jurisdiction in Spain and Returning to the Paradigm of Human Rights as ‘domaine réservé’ of States
  • Readers' Comments
    • Silke Studzinsky & Gianna Magdalena Schlichte, On ‘Civil Party Participation in Trials of Mass Crimes’ by Elisa Hoven

d'Aspremont: Methodology

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted Methodology (in Jean d'Aspremont, Epistemic Forces in International Law - Foundational Doctrines and Techniques of International Legal Argumentation, pp. 177-199, 2015). Here's the abstract:
This paper constitutes a chapter of the author's monograph entitled Epistemic Forces in International Law (Edward Elgar 2015). After formulating some general considerations on the relationship between theory and methodology, it builds on the idea that methodological choices are most conducive to the persuasiveness of legal arguments and explores the social constraints on methodological choices in international law (I). The paper then turns more specifically to international law and offers a handful of critical observations on methodological debates in contemporary international legal studies (II). In doing so, it revisits some of the methodological postures revered and venerated by international lawyers today: induction, the idea of system, the so-called turn to empiricism, interdisciplinarity and multidisciplinarity, the abiding (need for) methodological revolution, pluralism and methodological perspectivism. It ends with a few observations on deconstruction, structuralism and the critical attitude in international legal studies.

New Issue: International Organization

The latest issue of International Organization (Vol. 70, no. 1, Winter 2016) is out. Contents include:
  • Articles
    • Sarah Blodgett Bermeo, Aid Is Not Oil: Donor Utility, Heterogeneous Aid, and the Aid-Democratization Relationship
    • Nadav G. Shelef, Unequal Ground: Homelands and Conflict
    • Simone Dietrich, Donor Political Economies and the Pursuit of Aid Effectiveness
    • Austin Carson, Facing Off and Saving Face: Covert Intervention and Escalation Management in the Korean War
    • David B. Carter, Provocation and the Strategy of Terrorist and Guerrilla Attacks
    • James Ashley Morrison, Shocking Intellectual Austerity: The Role of Ideas in the Demise of the Gold Standard in Britain
    • Desha M. Girod & Jennifer L. Tobin, Take the Money and Run: The Determinants of Compliance with Aid Agreements

Klose: The Emergence of Humanitarian Intervention: Ideas and Practice from the Nineteenth Century to the Present

Fabian Klose (Leibniz-Institut für Europäische Geschichte) has published The Emergence of Humanitarian Intervention: Ideas and Practice from the Nineteenth Century to the Present (Cambridge Univ. Press 2016). Contents include:
  • Fabian Klose, The emergence of humanitarian intervention: three centuries of 'enforcing humanity'
  • Michael Geyer, Humanitarianism and human rights: a troubled rapport
  • Daniel Marc Segesser, Humanitarian intervention and the issue of state sovereignty in the discourse of legal experts between the 1830s and the First World War
  • Stefan Kroll, The legal justification of international intervention: theories of community and admissibility
  • Fabian Klose, Enforcing abolition: the entanglement of civil society action, humanitarian norm-setting, and military intervention
  • Mairi S. Macdonald, Lord Vivian's tears: the moral hazards of humanitarian intervention
  • Abigail Green, From protection to humanitarian intervention? Enforcing Jewish rights in Romania and Morocco around 1880
  • Jon Western, Prudence or outrage? Public opinion and humanitarian intervention in historical and comparative perspective
  • Davide Rodogno, Non-state actors' humanitarian operations in the aftermath of the First World War: the case of the Near East relief
  • Jost Dülffer, Humanitarian intervention as legitimation of violence – the German case 1937–9
  • Norrie Macqueen, Cold War peacekeeping versus humanitarian intervention: beyond the Hammarskjoldian model
  • Jan Erik Schulte, From the protection of sovereignty to humanitarian intervention? Traditions and developments of United Nations peacekeeping in the twentieth century
  • Bradley Simpson, A not so humanitarian intervention
  • Manuel Fröhlich, The responsibility to protect: foundation, transformation, and application of an emerging norm
  • Andrew Thompson, Humanitarian interventions, past and present

Etzersdorfer & Janik: Staat, Krieg und Schutzverantwortung

Irene Etzersdorfer (Universität Wien - Political Science) & Ralph Janik (Universität Wien - Law) have published Staat, Krieg und Schutzverantwortung (utb 2016). Here's the abstract:
Dieses Buch widmet sich dem Einsatz militärischer Mittel im Namen fundamentaler Menschenrechte. Dabei werden die dahinterstehenden Konzepte – die humanitäre Intervention und das Prinzip der Schutzverantwortung (responsibility to protect) – aus staatstheoretischer und völkerrechtlicher Perspektive erläutert. Darauf aufbauend erfolgt eine Darstellung einiger ausgewählter Fallbeispiele, von der Kongo- Krise der 1960er Jahre über die Kosovo-Intervention bis hin zu den Konflikten in Libyen und Syrien.

Monday, January 18, 2016

Saul: International Law and the Legitimacy of Interim Governments

Matthew Saul (Univ. of Oslo - PluriCourts) has posted International Law and the Legitimacy of Interim Governments. Here's the abstract:
This paper addresses the role of international law in political communication in the practice of interim governance. It seeks to develop a clearer understanding of the value of membership of an international human rights treaty regime for assessments of the legitimacy of interim governance arrangements. The paper has a particular focus on the case of Afghanistan. It has three main parts. The first part considers the way in which assessments of the legitimacy of interim governments are structured (it argues for legitimacy of promises to be added to the established two part schema of origin and exercise). The second part examines key considerations relevant for the extent to which political communication rights exert constraint on the discretion of interim governments. The third part examines three modalities by which the strength of political communication rights as a source of constraint might be strengthened: UN SC resolution, peace agreement, and aid agreement. A key argument is that membership of an international human rights regime with political communication rights is a reason to take more seriously the promises of interim governments to pursue democracy, as it provides a platform for international scrutiny of the efforts that are made to move towards democratic governance. However, it is further contended that in practice the law appears to be too easily overlooked by both interim governments and the international actors that keep them in authority.

Meshel: The Permanent Court of Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes

Tamar Meshel (Univ. of Toronto - Law; Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) has posted an ESIL Reflection on The Permanent Court of Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes.

Krisch: The Many Fields of (German) International Law

Nico Krisch (Graduate Institute of International and Development Studies) has posted The Many Fields of (German) International Law (in Comparative International Law, Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier & Mila Versteeg eds., forthcoming). Here's the abstract:
This paper contributes to the emerging field of comparative international law with a focus on academic international law in Germany, but also with an interest in the methodology of comparison. It uses the concept of social field as the starting point for its inquiry, outlines the different fields that are at play in international law, and then inquires into the operation of these fields, and their interrelations, in the case of Germany. It highlights particular characteristics of German international legal thought, the relatively limited projection of German scholarship into the transnational field of international law, and the peculiar dependence of international law on the broader public law field in Germany. It then inquires into the respective strengths of field-based and alternative approaches for understanding German international law, and concludes by considering the broader promise of placing social fields at the center of the comparative effort.

New Volume: Israel Yearbook on Human Rights

The latest volume of the Israel Yearbook on Human Rights (Vol. 45, 2015) is out. Contents include:
  • Air and Missile Warfare
    • Yoram Dinstein, The International Law of Air and Missile Warfare
    • Dale Stephens, The Age of the Manual – The Impact of the Manual on International Law Applicable to Air and Missile Warfare
    • Michael Bothe, De Facto Control of Land or Sea Areas; its Relevance under the Law of Armed Conflict, in Particular Air and Missile Warfare
    • Marie Jacobsson, Protection of the Environment and Air and Missile Warfare: Some Reflections
    • Rüdiger Wolfrum, The Protection of the Environment in Armed Conflict
  • International Humanitarian Law
    • Kubo Mačák, A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict
    • Nicholas Rosto, Pandora’s Paradoxes: Nuclear Weapons, World Public Order, and International Humanitarian Law
  • International Human Rights
    • David Kretzmer and Eckart Klein, The Human Rights Committee: Monitoring States Parties Reports
    • Chava Shachor-Landau, The European Convention on Human Rights (ECHR), 1950, as a Living Instrument in the Twenty-First Century

Call for Papers: ANZSIL 24th Annual Conference

The Australian and New Zealand Society of International Law has issued a call for papers for its 24th Annual Conference, to take place June 30-July 2, 2016, in Canberra. The theme is "International Law of the Everyday: Fieldwork, Friction & Fairness." Here's the call:

24th Annual Conference of the

Australian and New Zealand Society of International Law

Canberra, 30 June - 2 July 2016

International Law of the Everyday:

Fieldwork, Friction & Fairness

The 24th Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL) will take place from Thursday 30 June 2016 to Saturday 2 July 2016 at University House, Australian National University, Canberra, Australia. The Conference Organising Committee now invites proposals for papers to be presented at the Conference, either individually, or as a panel proposal.

Call for Papers & Panel Proposals: Deadline 26 February 2016

Much is made of international law’s chequered past and vaulting (or sometimes despairing) visions for the future. Yet international law also has a rich and variegated present and informs daily life in many ways. These senses of the present will be the focus of this year’s ANZSIL Conference. Participants are invited to reflect on what comprises the everyday of international law and how international law shapes the everyday. Is the former, for instance, made up of states’ reporting and meeting under multilateral treaties; the cyclical, ritualised work of international institutions; the rhythms of claim and counter-claim characteristic of dispute resolution; the routine advisory work of international lawyers embedded in corporate, public sector, military or advocacy environments; the mostly unseen work of consular servicing and diplomatic protection carried out by governments; the implementation and monitoring of sanctions regimes; popular mobilisation of international legal argument in the media and public debate; the operationalization of international law by NGOs and others working in the field; the familiar dramas of the classroom or the conference room; or something else? How does international legal normativity get enacted, affirmed or called into question in such mundane settings and how might we compare and contrast the versions of international law so produced? And how do these various activities register in daily lives commonly understood in national or local terms? Can we, indeed, conceive of an everyday or a present for, of or around international law at all, when the conditions under which people live across the globe are marked by such disparity? What is at stake in assembling a particular moment – a “now” – in which international law might operate and what is the history of the present international law purports to inhabit? Can international law speak meaningfully to quotidian concerns – the question of how to live any one day – and what guidance (if any) does it offer in that respect? What are, or should be, international lawyers’ most pressing tasks for the here and now?

The Conference Organising Committee invites paper submissions reflecting on these themes in any area of public and private international law including (but not limited to): human rights; the law of the sea; international humanitarian law; international trade law; international investment law; international financial regulation; international environmental law; international criminal law; global administrative law; diplomatic and consular law; international legal pedagogy; international legal theory; international legal history; anthropologies, sociologies or geographies of international law; and/or the ethics or politics of international law. Also invited are proposals for panels comprised of three to four papers in circumstances where the presenters concerned are already in conversation, or would find it useful to be so assembled. Please also note that the Conference Organising Committee has decided that all panels will contain balanced gender representation. Those proposing panels are also invited to seek out a diversity of presenters in other respects as well; the Conference Organising Committee would particularly like to encourage collaboration among those at different stages of their careers and/or from different types of workplace, discipline or sub-discipline, as applicable. In the tradition of ANZSIL Conferences, the Conference Organising Committee also invites and welcomes proposals on international law topics not connected to the conference theme.

Submission of Paper Proposals

Those proposing papers for presentation at the Conference should submit a single document comprised of:

  • a one page abstract;
  • a one page curriculum vitae of the presenter; and
  • 150-200 words of bio-data (for possible inclusion in the conference program).

Submission of Panel Proposals

Those proposing panels for presentation at the Conference should submit a single document comprised of:

  • 150-200 words explaining the rationale and theme of the panel; and
  • three or four paper proposals, including in each case the information requested above.

The information requested above should be submitted in a single document by email to the ANZSIL Secretariat (anzsil@anu.edu.au) no later than Friday, 26 February 2016. Please include the heading on your email message ‘ANZSIL Conference 2016 Proposal: [Your Name]’. The Conference Organising Committee will inform applicants of the outcome of their proposals by the end of March 2016. Further information about the Conference, including program and registration details, will be available on the ANZSIL website.

Sunday, January 17, 2016

Long: Court of Justice of the European Union Rules on EU Institutional Prerogatives in ITLOS Advisory Opinion

Ronán Long (National Univ. of Ireland Galway - Law) has posted an ASIL Insight on Court of Justice of the European Union Rules on EU Institutional Prerogatives in ITLOS Advisory Opinion.

Hovell: Kadi: King-Slayer or King-Maker?

Devika Hovell (London School of Economics - Law) has published Kadi: King-Slayer or King-Maker? The Shifting Allocation of Decision-Making Power between the UN Security Council and Courts (Modern Law Review, Vol. 79, no. 1, pp. 147–166, January 2016). Here's the abstract:
This note analyses the twelve-year span of the Kadi litigation in the European courts. The litigation raises the textbook question of the relationship between international and municipal legal orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times. The note examines the different approaches taken at the three key phases of the litigation: the ‘supremacy’ position adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court of Justice of the European Union in 2013. Ultimately, the note invites attention to the ‘Solange equivalence’ approach taken by the Advocates-General and argues that this strikes the best balance in normative terms for an enduring approach to power-sharing between legal orders.