In Syria, the United States is “training and equipping” non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training and support to separatists. In China, “private” computer hackers create codes designed to infiltrate sensitive computer systems. These are just a few examples of the many ways in which states to work with non-state actors to accomplish their military and political objectives. While state/non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law with impunity. In extreme cases, a state could go as far as to fund, train, and instruct a non-state actor to commit war crimes and escape without international legal responsibility. This is no mere academic hypothetical: consider the Former Republic of Yugoslavia’s support of the Free Serbian Army, which committed the genocide at Srebrenica.
Recognizing this problem, international courts have developed a doctrine of state responsibility designed to hold states accountable for internationally wrongful acts of their non-state actor partners. Unfortunately, existing doctrine leaves an accountability gap and fails to correct the perverse incentive to use non-state actors as proxies for illegal acts. Moreover, it creates a second perverse incentive: states with good intentions might avoid training non-state actors in international law compliance to avoid crossing the “bright line” for attribution.
This Article proposes a fix to these problems, drawing on a novel interpretation of the Geneva Conventions released by the ICRC in March 2016. It argues that the duty “to ensure respect” in Common Article 1 can fill the gap. In addition, it argues that Common Article 1 will be more widely embraced and therefore more effective if states that have exercised due diligence to prevent violations are allowed an affirmative defense against liability for any ultra vires violations. The Article concludes with recommendations for states that wish to fulfill their Common Article 1 obligations in good faith while working with non-state actors.
Saturday, April 9, 2016
Hathaway et al.: Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors
Friday, April 8, 2016
Job Openings: Research Associates (gLAWcal)
Workshop: Law, Neoliberalism and Social Protest: Lessons from TTIP
The academic workshop will critically discuss the process of negotiation and drafting of the Transatlantic Trade and Investment Partnership (TTIP), and certain controversial aspects of its proposed content. It will bring together legal scholars, social scientists and activists in order to explore the role law and lawyers have so far played in the social contestation over TTIP and to draw more general lessons about the role of law in social movements.
New Issue: Global Responsibility to Protect
The latest issue of Global Responsibility to Protect (Vol. 7, nos. 3-4, 2015) is out. Contents include:- Special Issue: The Responsibility to Protect: Ten Years on from the World Summit
- Adrian Gallagher & Jason Ralph, The Responsibility to Protect at Ten
- Adrian Gallagher, The Responsibility to Protect Ten Years on from the World Summit: A Call to Manage Expectations
- Gregor Peter Hofmann, R2P Ten Years on: Unresolved Justice Conflicts and Contestation
- Andrew Garwood-Gowers, R2P Ten Years After the World Summit: Explaining Ongoing Contestation over Pillar III
- Kai Michael Kenkel & Felippe De Rosa, Localization and Subsidiarity in Brazil’s Engagement with the Responsibility to Protect
- Malte Brosig & Natalie Zähringer, Norm Evolution a Matter of Conformity and Contestedness: South Africa and the Responsibility to Protect
- Volkan Şeyşane & Çiğdem Çelik, R2P and Turkish Foreign Policy: Libya and Syria in Perspective
- Justin Morris, The Responsibility to Protect and the Great Powers: The Tensions of Dual Responsibility
Fletcher: A Wolf in Sheep's Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes
If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? The rise of international criminal law is celebrated as an achievement of the international rule of law, yet its advance effectively may come at the expense of holding States accountable for their role in mass violence. Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Liberalism strongly influences transitional justice, which has produced individual criminal accountability as the desired form of legal accountability for atrocities. Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law). In fact, transitional justice theorization of justice largely ignores legal accountability for States. Without legal accountability, States enjoy moral and legal impunity for their crimes. States escape their legal obligations to repair the injury they cause and to institute reforms that secure a fuller measure of justice and peace. This Article examines how international law and transitional justice have developed conceptually to effectively prevent legal accountability for States that commit atrocity crimes, and argues that a new politics of transitional justice is necessary to harness the productive potential of State legal accountability to achieve a fuller measure of international justice.
Biersteker, Eckert, & Tourinho: Targeted Sanctions: The Impacts and Effectiveness of United Nations Action
- Sue Eckert, Thomas J. Biersteker & Marcos Tourinho, Introduction
- Thomas J. Biersteker, Marcos Tourinho & Sue Eckert, Thinking about United Nations targeted sanctions
- Francesco Giumelli, The purposes of targeted sanctions
- Michael Brzoska & George A. Lopez, Security council dynamics and sanctions design
- Paul Bentall, United Nations targeted sanctions and other policy tools: diplomacy, legal, use of force
- Andrea Charron & Clara Portela, The relationship between United Nations sanctions and regional sanctions regimes
- Alix Boucher & Caty Clement, Coordination of United Nations sanctions with other actors and instruments
- Enrico Carisch & Loraine Rickard-Martin, Implementation of United Nations targeted sanctions
- Kimberly Ann Elliott, The impacts of United Nations targeted sanctions
- Mikael Eriksson, The unintended consequences of United Nations targeted sanctions
- Thomas J. Biersteker, Marcos Tourinho & Sue Eckert, The effectiveness of United Nations targeted sanctions
- Peter Wallensteen, Institutional learning in targeting sanctions
- Thomas J. Biersteker, Marcos Tourinho & Sue Eckert, Conclusion
Ruse-Khan: The Protection of Intellectual Property in International Law
This book examines intellectual property (IP) protection in the broader context of international law. Against the background of the debate about norm relations within and between different rule systems in international law, it construes a holistic view of international IP law as an integral part of the international legal system.
The first part sets out the theoretical foundation for such a holistic view by offering several methodological frameworks for the analysis of norm relations in international law. As a toolbox, these frameworks allow for different ways to conceptualise the linkages amongst international IP rules and those to other areas of international law. Part two then considers norm relations within the international IP system. It analyses the relationship of the two main IP conventions to the World Trade Organisation (WTO) Agreement on Trade Related Aspects of International Property Rights (TRIPS), as well as the relationship between TRIPS and Free Trade Agreements (FTAs). The third part discusses alternative rule systems for the protection of IP in international law. The intellectual creations element of IP is captured by the concept of creator's rights in international human rights law; while the property aspect of IP is protected by international investment agreements and European human rights treaties.
Part Four focuses on three core intersections between the international IP system and other areas of international law related to environmental, social and economic concerns. The areas examined concern international law on trade, biological diversity and climate change. As in part three, the perspective taken is that of the 'other' area and how it perceives its relations with international IP norms. In part five finally, the focus shifts back to the international IP system and the mechanisms it provides for taking into account the interests protected in other areas of international law.
Hsu: Trade, Investment, Innovation and their Impact on Access to Medicines: An Asian Perspective
The last two decades have seen great economic change in Asia and this has impacted upon the vexed question of access to affordable healthcare and medicines in many Asian states. In this book Locknie Hsu examines the issue of access to medicines in Asia from a fresh perspective which embraces trade and investment law, innovation, intellectual property law, competition policy and public health issues. Hsu explores the key evolving legal issues in these areas, including ASEAN integration, free trade agreement negotiations (such as those for the TPP), bilateral investment agreements and significant court decisions. The book goes on to present proposals for steps to be taken in addressing access to medicines in Asia and will be useful to academic researchers, regulators, law-makers and global organizations involved in the issues surrounding access to affordable healthcare and medicines.
Thursday, April 7, 2016
New Issue: Columbia Journal of Transnational Law
The latest issue of the Columbia Journal of Transnational Law (Vol. 54, no. 2, 2016) is out. Contents include:- David Bosco, Letters from the Front Lines: State Communications to the U.N. Security Council During Conflict
- Nadia Banteka, Dangerous Liaisons: The Responsibility to Protect and a Reform of the U.N. Security Council
Conference: Smart Mixes in Relation to Transboundary Environmental Harm
The increasingly complex nature of transboundary environmental problems, such as global warming, deforestation, fish stock depletion, oil pollution and biodiversity loss, and the risks associated with such problems, pose a fundamental challenge to policy makers worldwide, namely that of designing an effective global environmental governance system. States have traditionally resorted to the conclusion of international agreements as a means of targeting environmental problems, thus giving rise to a rich body of international law. Nonetheless, over the last years doubts have been voiced about the capacity of these agreements to effectively counter environmental problems.
In response, we have seen a profound expansion in the development of alternative regulatory instruments that can complement international agreements. In part, these alternatives reflect a turn to the market as a force through which environmental goals can be achieved. States themselves increasingly resort to combinations of command-and-control, economic and informational instruments. Partly related to the turn to the market, we also have seen an emergence of a network of private actors, often acting across borders, which engage in the creation of environmental initiatives, either beyond or in collaboration with the State. Thus, international environmental law nowadays operates in tandem and in certain instances interacts with private or hybrid initiatives existing on all levels of governance.
Aim of the Conference
The conference will seek to present the latest research results on how alternative modes of regulation (hybrid and private) and different forms of regulatory instruments (command-and-control, market-based, suasive) can complement the operation of international agreements. The conference aims at presenting and discussing: 1) the results of the ‘Smart Mixes’ project; and 2) the results of other research that has been conducted on mixes that have supplemented or could be considered for supplementing international environmental agreements. It also aims at identifying specific policy recommendations that can be based on these outcomes of research.
Wouters, De Man, & Verlinden: Armed Conflicts and the Law
- Luc Reydams & Jan Wouters, A la guerre comme à la guerre
- Jan Wouters & Philip De Man, Legal Instruments for the Prevention of Armed Conflicts
- Nele Verlinden, The Law of Neutrality
- Tom Ruys, International Law on the Use of Force
- Sten Verhoeven, International and Non-International Armed Conflicts
- Frederik Naert, Human Rights and (Armed) Conflict
- Jean-Marie Henckaerts, The Development of International Humanitarian Law and the Continued Relevance of Custom
- Sten Verhoeven, The Protection of Civilians and Civilian Objects against Hostilities
- Bruno Demeyere & Tom Ruys, Means and Methods of Warfare
- William Boothby, New Technologies in Means and Methods of Warfare
- Sten Verhoeven & Hilde Sagon, Persons in International Humanitarian Law
- Hanne Cuyckens, The Law of Occupation
- Stefaan Ghesquiere, The Implementation of International Humanitarian Law and the International Committee of the Red Cross
- Cedric Ryngaert, Repression of Violations of International Humanitarian Law
- Jan Wouters & Philip De Man, Post-Conflict Reconstruction
ESIL Lecture Series (Video)
- Niels Blokker, "Who Is Governing International Courts and Tribunals? On the Need for an Institutional Law Approach," University of Geneva, November 17, 2015
Call for Submissions: IJRL Special Issue on "1967 Protocol relating to the Status of Refugees: 50th Anniversary"
1967 Protocol Anniversary Call for Papers
1967 Protocol relating to the Status of Refugees:
50th Anniversary
2017 will mark the 50th anniversary of the 1967 Protocol relating to the Status of Refugees. This instrument removed the temporal and (for some States) geographical limitations of the 1951 Convention relating to the Status of Refugees so that refugee status could be sought by all.The International Journal of Refugee Law invites articles of up to 12,000 words to mark this occasion. Authors may write on any aspect of the 1967 Protocol that falls within the scope of the journal. Possible topics could include the history of the Protocol’s adoption, its application domestically (particularly in the US, which is not a party to the 1951 Convention), its relationship to subsequent regional instruments (such as the 1969 OAU Convention), and its impact over the past half-century.
The deadline for contributions is 31 August 2016. Articles should be submitted via the website and authors must follow the Instructions to Authors. All articles will go through the standard peer review process.
The International Journal of Refugee Law is the leading peer-reviewed journal on all aspects of international law relating to forced migration. It is an essential tool for academics, policymakers, and practitioners concerned with the protection of refugees and other forced migrants. It publishes high-quality articles on issues at the forefront of the law on forced migration, rigorous analysis of refugee law jurisprudence and State practice, as well as scholarship on the history and evolution of refugee law.
Wednesday, April 6, 2016
Call for Papers: Maritime Actors and Climate Change: Incentives and Strategies for Voluntary Action
Meisenberg & Stegmiller: The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law
- Simon M. Meisenberg & Ignaz Stegmiller, Introduction: An Extraordinary Court
- Helen Jarvis, Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide
- Shannon Maree Torrens, Allegations of Political Interference, Bias and Corruption at the ECCC
- Frank Selbmann, The 1979 Trial of the People’s Revolutionary Tribunal and Implications for ECCC
- Jeudy Oeung, Expectations, Challenges and Opportunities of the ECCC
- Viviane E. Dittrich, The Legacy of the ECCC
- Franziska C. Eckelmans, The Duch Case: The ECCC Supreme Court Chamber’s Review of Case 001
- Russell Hopkins, The Case 002/01 Trial Judgment: A Stepping Stone from Nuremberg to the Present?
- Lachezar Yanev, The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship
- Mélanie Vianney-Liaud, Legal Constraints in the Interpretation of Genocide
- Nathan Quick, Forced Transfer and Customary International Law: Bridging the Gap Between Nuremberg and the ICTY
- Valerie Oosterveld & Patricia Viseur Sellers, Issues of Sexual and Gender-Based Violence at the ECCC
- Noëlle Quénivet, The Grave Breaches Charges at the ECCC: An Analysis
- of International Humanitarian Law in the Duch Case
- David Boyle, Past Crimes and the Effect of Statutory Limitations on the ECCC
- Sergey Vasiliev, Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law?
- Anne Heindel, Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment
- Roger L. Phillips, Frail Accused and Fitness to Stand Trial Tobias Thienel, The Admission of Torture Statements into Evidence
- Binxin Zhang, Recognizing the Limits of Victims Participation: A Comparative Examination of the Victim Participation Schemes at the ECCC and the ICC
- Ignaz Stegmiller, Legal Developments of Civil Party Participation at the ECCC
Georgiou: The Russian Gas Deal with Greece and Its Effect on EU Solidarity: Pipe Dream or Diversion?
New Issue: Journal of World Trade
The latest issue of the Journal of World Trade (Vol. 50, no. 2, 2016) is out. Contents include:- Christian Häberli, An International Regulatory Framework for National Employment Policies
- Zhu (Judy) Wang, CFIUS under Review: National Security Review in the US and the WTO
- Lars Nilsson, EU Exports and Uptake of Preferences: A First Analysis
- Sanchita Basu Das, Rahul Sen, & Sadhana Srivastava, Can ASEAN+1 FTAs Be a Pathway towards Negotiating and Designing the Regional Comprehensive Economic Partnership (RCEP) Agreement?
- Dirk De Bièvre, Arlo Poletti, Marcel Hanegraaff, & Jan Beyers, International Institutions and Interest Mobilization: The WTO and Lobbying in EU and US Trade Policy
- Iva Mihaylova, Could the Recently Enacted Data Localization Requirements in Russia Backfire?
- Alua Amirbekova & Ruslan Galyamov, Participation Constraints in the WTO Dispute Settlement: Considering Kazakhstan
New Additions to the UN Audiovisual Library of International Law
Call for Papers: The Impact of the Law of Armed Conflict on General International Law
The Impact of the Law of Armed Conflict
on General International Law
Expert roundtable
22–23 September 2016
Exeter, United Kingdom
Convenors:
Dr Lawrence Hill-Cawthorne (Reading) and Dr Kubo Mačák (Exeter)
Outline and Call for Papers
As one of the oldest substantive areas of international law, the law of armed conflict (LOAC) has played an important part in the development of general international law principles that now apply equally in other areas. For example, the evolution of the rules on State responsibility for the conduct of individuals can in part be traced to the development of rules attributing responsibility for violations of LOAC perpetrated by armed groups. This strong relationship between LOAC and general international law, however, has more recently come under strain as a result of more general concerns over the ‘fragmentation’ of international law, whereby substantive areas of law, including LOAC, have become divorced from general international law. It has been suggested, for example, that it is time to move away from traditional approaches to international law-making in order to ensure that LOAC remains effective at regulating contemporary conflicts. This is illustrated by claims that customary rules of LOAC, in contrast to customary international law more generally, should take account of the practice not only of States but also armed groups. In light of these conflicting perspectives, an assessment of the relationship between LOAC and general international law is both apposite and necessary.
It is on these issues that this roundtable will focus, and its goal is to facilitate in-depth discussion amongst all present. To ensure this is the case, attendees will prepare brief papers of 10-15 minutes that will initiate discussion and debate. Attendance will comprise both senior invited academics and practitioners, as well as those successfully responding to this call for papers. We therefore invite submissions on the topic of the impact of the law of armed conflict on general international law, and more generally on the relationship between LOAC and general international law. These may explore research questions such as the following:
Paper proposals going beyond this set of suggested questions are equally welcome, provided they fit the general theme of the roundtable.
- How do the rules on treaty interpretation in general international law operate in the specific area of LOAC?
- Has the debate on the binding nature of treaties in LOAC for non-State armed groups resonated in other areas of international law?
- To what extent is the practice of non-State armed groups relevant to the formation of customary rules of LOAC, and is the answer the same in other areas of international law in which non-State actors participate (such as investment law)?
- How, if at all, has the law of armed conflict influenced the rules on State responsibility in international law?
- Has the growth of rights and obligations of individuals and non-State armed groups under LOAC had any impact on the development of general international law?
- How, if at all, has LOAC contributed to the ‘humanization’ of international law?
- Have international judicial and quasi-judicial bodies which apply LOAC in their jurisprudence had any impact on the development of general international law?
- How does the impact of LOAC on general international law compare with the impact produced by other specialised areas of international law?
After the roundtable and subject to strict criteria of quality and thematic cohesion, the aim is to publish selected papers, following their development in light of the discussion, in an edited, peer-reviewed collection. The publication will provide a systematic and comprehensive examination of the impact of the law of armed conflict on general international law. Several leading academic publishers have already expressed their interest in this project.
Key information
Any questions about these themes or the suitability of a possible paper may be directed by email to the roundtable convenors, Dr Lawrence Hill-Cawthorne (l.hillcawthorne@reading.ac.uk) and Dr Kubo Mačák (k.macak@exeter.ac.uk).
Abstracts of no more than 500 words should be submitted by e-mail to loacimpact@gmail.com no later than 20th May 2016. Abstracts should be accompanied by your name, affiliation, email address and a brief note about your research interests and key relevant publications. A draft programme will be announced as soon as possible after the abstract submission deadline, together with registration details.
We will provide all participants with accommodation and meals in Exeter for the duration of the roundtable and cover reasonable travel expenses within the UK. There will be no registration fee
d'Aspremont: The Decay of Modern Customary International Law in Spite of Scholarly Heroism
This article sheds light on those conceptual artifices that made international custom – and behaviorally generated normativity – possible in international law and shows how international lawyers’ repeated fixes and sophistications have come to precipitate the decay of the modern way of organizing the behavioral generation of legal normativity in international law. After a few introductory considerations on the notion of custom and behaviorally generated normativity from a jurisprudential perspective, this article describes how the two-element doctrine of custom – that is what is called here ‘modern custom’ – was built by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. On that occasion, this study demonstrates that the traditional derivation of the two-element doctrine of customary law from the Statute of the Court rests on a false genealogy. This article goes on to show how this modern two-element doctrine proved deficient from the start, generating huge argumentative problems. Such problems – and the general inoperability of the two-element doctrine – did not, however, undermine the popularity of custom among international lawyers thanks to a wide array of virtues traditionally associated with customary international law. These virtues explain the impressive resolve and determination of international lawyers to vindicate or patch up the modern two-element doctrine of customary international law. Yet, as the last part of this article argues, the rescue of customary international law by international lawyers may prove counter-productive as it currently is accelerating the decay of the modern two-element doctrine of customary international law. The article ends with a few observations on the life and death of doctrines.
Tuesday, April 5, 2016
Call for Presentations: ESIL Law of the Sea Interest Group Workshop
Call for presentations
Enforcement at Sea:
Legal and Operational Challenges in Maritime Security
PhD and Research Forum
organised by
ESIL Interest Group on the Law of the Sea
Riga, Wednesday 7 September 2016
The topic Piracy, drugs and arms trafficking, migrant smuggling, traffic of human beings, maritime pollution, illegal fishing, protests at sea, are some of the many activities, which threaten maritime security and safety. States but also international organisations (e.g., NATO, EU) and private actors (e.g., insurance companies, ship owners) are increasingly involved in enforcement operations at sea. The legal framework of enforcement activities relies on well-established customary and treaty-based norms, such as the rights of the coastal state in its maritime zones, and the right of visit and the right of hot pursuit on the high seas. The application of those rights to some of the current security threats has highlighted also their limits under the current legal regime, in particular in relation to the protection of fundamental rights and the use of force.
Eligible speakers and event format
This call for presentations is only open to PhD students who are writing their dissertation on the above described topics or related issues, or PhD holders who have defended their PhD thesis in the last 4 years and have been researching on one of the above described topics or related issues. The four selected PhD students and young researchers will have the opportunity to present their current research and to receive feedback by an expert of the field who will act as commentator.
The Application Process
Please submit a 500 words abstract proposal via email to Seline Trevisanut (s.trevisanut@uu.nl) by 1 June 2016. Successful applicants will be informed by 30 June 2016 and will be required to submit a detailed outline of their research (min. 2000 words, max. 4000 words) by 15 August 2016.
In addition to the abstract, the following information must be provided on the submission:
Speakers will be selected by the co-convenors of the Interest Group (Miguel Garcia, Maria Gavouneli, and Seline Trevisanut), on the basis of abstracts submitted. Only one abstract per author will be considered.
- The author’s name and affiliation
- The author’s contact details
- Whether the author is an ESIL member
The working languages of the panel are English and French. Since no translation will be provided, participants should have passive understanding of both languages and active understanding of at least one of them.
In order to participate in the Interest Group event, speakers must be members of ESIL. The membership can be formalised once abstracts have been accepted. Unfortunately, the ESIL LAWSEA IG is not in a position to cover expenses for travelling and accommodation, or to waiver the ESIL conference fee. Information on the 12th ESIL Annual Conference is available here. For further information about the LAWSEA IG, please visit the interest group's website.
New Issue: Les Cahiers de l'Arbitrage
The latest issue of Les Cahiers de l'Arbitrage (2015, no. 4) is out. Contents include:- Doctrine – Débats
- Diego P. Fernández Arroyo & Ezequiel H. Vetulli, The Two Faces of the New Argentinian Arbitration Law
New Issue: Journal of the History of International Law / Revue d'histoire du droit international
The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 18, nos. 2-3, 2016) is out. Contents include:- Yi Ping, Swan Song, or a Phoenix Rising
- Vincent Genin, L’institutionnalisation du droit international comme phénomène transnational (1869–1873). Les réseaux européens de Gustave Rolin-Jaequemyns
- Ignacio de la Rasilla del Moral, In the General Interest of Peace? British International Lawyers and the Spanish Civil War
- Imprints of Colonialism in Public International Law
- Jörn Axel Kämmerer, Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition
- Martti Koskenniemi, Colonial Laws: Sources, Strategies and Lessons?
- Harald Kleinschmidt, The Family of Nations as an Element of the Ideology of Colonialism
- Fabian Klose, Human Rights for and against Empire – Legal and Public Discourses in the Age of Decolonisation
- Richard P. Boast, The Waitangi Tribunal in the Context of New Zealand’s Political Culture and Historiography
Mavroidis & Wolfe: Private Standards and the WTO: Reclusive No More
Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime — that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself in endless discussions regarding mundane, legalistic issues, and has not moved at all towards addressing the real concerns of developing countries. We discuss one aspect of the problem: How reclusive should the WTO allow product standards to be? We argue that the WTO should adopt a “Reference Paper” that would encourage its members to apply WTO rules for adopting those standards that already come under the aegis of the WTO to private standards. In the absence of centralized enforcement, utopia in the WTO legal paradigm, transparency disciplines imposed on standard-setters is the best the WTO could offer to those who are negatively affected by private standards.
Keitner: Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity
During the late nineteenth and early twentieth centuries, jurists elaborated principles of attribution in the context of the international law of State responsibility. State practice in the late nineteenth and early twentieth centuries was divided on the question of whether to attribute ultra vires acts to the State for the purposes of State responsibility. Faced with these divided views, the International Law Commission (ILC) ultimately chose to adopt a broad attribution rule in order to promote clarity and facilitate recovery. The ILC did not consider the potential implications of attributing an official’s ultra vires act to the State for the doctrine of foreign official immunity. This article explores the genesis of the ILC’s decision to codify a broad attribution rule in the Draft Articles on State Responsibility, and its unintended consequences for the doctrine of foreign official immunity. Understanding the origins and implications of the ILC’s broad approach to attribution in the law of State responsibility can help us move beyond an overly simplistic reliance on attribution as the sole criterion for delineating the scope of foreign official immunity in two ways: first, by encouraging decision-makers to differentiate explicitly between acts that fall into what I call Category One, in which attribution to the State discharges the individual from personal responsibility, and those that fall into what I call Category Two, in which attribution to the State does not discharge the individual from personal responsibility; and, second, by emphasizing that the trade-offs involved in developing principles of responsibility and immunity for States may overlap with, but are not identical to, the trade-offs involved in developing principles of responsibility and immunity for individuals. Only by unpacking these categories — which are not monolithic — can we move towards a more conceptually and doctrinally coherent account of conduct-based immunity.
Cassese: Research Handbook on Global Administrative Law
- Sabino Cassese with Elisa D’Alterio, Introduction: The Development of Global Administrative Law
- Lorenzo Casini, The Expansion of the Material Scope of Global Law
- Stefano Battini, The Proliferation of Global Regulatory Regimes
- Santiago Villalpando, Managing International Civil Servants
- Elisabetta Morlino, International Public Procurement
- Christoph Möllers, Constitutional Foundations of Global Administration
- Mario Savino, Linkages Between Global Regimes and Interactions with Civil Society
- Paul Craig, Global Networks and Shared Administration
- Richard B Stewart, Global Standards for National Societies
- Jan Wouters, Government by Negotiation
- Fabrizio Cafaggi, Transnational Private Regulation: Regulating Private Regulators
- Barbara Marchetti, The Enforcement of Global Decisions
- Marco Macchia, The Rule of Law and Transparency in the Global Space
- Mikael Rask Madsen, Judicial Globalization: The Proliferation of International Courts
- Elisa D’Alterio, Judicial Regulation in the Global Space
- Francesca Bignami, Theories of Civil Society and Global Administrative Law: The Case of the World Bank and International Development
- Marta Infantino, Global Indicators
- Giulio Vesperini, Europe and Global Law
- René Fernando Urueña Hernandez, Global Administrative Law and the Global South
- Philipp Dann, The Global Administrative Law of Development Cooperation
- Edoardo Chiti, Bringing Global Law Home
- Emma Dunlop, Globalization and Sovereignty: Global Threats and International Security
- Eyal Benvenisti, The Future of Sovereignty: The Nation State in the Global Governance Space
- Sabino Cassese, Governing the World
- Robert Howse, The Globalization Debate – A Mid-decade Perspective
- Antoine Vauchez, The Disputed Field of Global Lawyering
- Lorenzo Casini, The Global Administrative Law Scholarship
Barnes & Tzevelekos: Beyond Responsibility to Protect: Generating Change in International Law
- Andre Nollkaemper, Foreword
- Richard A. Barnes & Vassilis P. Tzevelekos, Beyond Responsibility to Protect: Ceci n’est pas une pipe
- Henry Jones, The Kantian Defence of Murder
- Markus P. Beham & Ralph R.A. Janik, A ‘Responsibility to Democratise’? The ‘Responsibility to Protect’ in Light of Regime Change and the ‘Pro-Democratic’ Intervention Discourse
- Tony Ward, Commentary: Between Kant and Al-Shabaab
- Nabil Hajjami, The Institutionalisation of the Responsibility to Protect
- John Heieck, The Responsibility Not to Veto Revisited. How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council
- Julia Schmidt, The EU and the Responsibility to Protect: The Case of Libya, Mali and Syria
- Nigel D. White, Commentary: International Institutions and their Role in R2P
- Antal Berkes, De Facto Regimes and the Responsibility to Protect
- Jennifer Dee Halbert, ‘Guilty’ Governments and ‘Legitimate’ Leadership: The Concept of ‘National Authorities’ under the R2P
- Hitoshi Nasu, Commentary: Who Cares? The Primary Bearer of the Responsibility to Protect
- Humberto Cantu Rivera, On the Responsibility to Protect and the Business and Human Rights Agenda
- Kasey L. McCall-Smith, Tides of Change – The State, Business and the Human
- Lucas Lixinski, Commentary: The Responsibility to Protect and Non-State (Corporate) Actors – More of the Same?
- Sophie Rondeau, The Responsibility to Protect Doctrine, and the Duty of the International Community to Reinforce International Humanitarian Law and its Protective Value for Civilian Populations
- Raphael van Steenberghe, The Responsibility to Protect in Armed Conflict: A Step Forward for the Protection of Civilians?
- David Turns, Commentary: On the Intersection of the Responsibility to Protect, the Protection of Civilians and International Humanitarian Law in Contemporary Armed Conflicts
- Vito Todeschini, The Place of Aggression in the Responsibility to Protect Doctrine
- Barbara Sonczyk, The Impact of the Responsibility to Protect on the Protection of Peacekeeping Missions under the Rome Statute of the International Criminal Court
- Lindsay Moir, Commentary: R2P and its Consequences for International Criminal Law: Crimes as a Justification for the Use of Force
- Ludovica Poli, The ICJ Judgment in the Genocide Convention Case: Is R2P Drawing New Horizons for the Law on State Responsibility?
- Tomoko Yamashita, Responsibility to Protect as a Basis for ‘Judicial Humanitarian Intervention’
- Lenneke Sprik, Military Commanders as Bystanders to International Crimes: A Responsibility to Protect?
- Elena Katselli, Commentary: R2P as a Transforming and Transformative Concept in the Context of Responsibility as Liability
- Nicholas Tsagourias, R2P: An Inquiry into its Transformative Potential
- Jean d’Aspremont, The Transformative Agendas of R2P Discourses in International Law
Meyer: Instrumentalism
The tension between power and principle has long been central to international legal dis-course. Instrumentalism—the idea that international law can change behavior, but only by creating constraints and opportunities that affect state interests—straddles this tension. This chapter chronicles the rise, role, and contestation of instrumentalism in international legal thought. On its own terms, instrumentalism is a descriptive tool to explain how power and norms interact to shape state behavior. Critics, however, worry that instrumen-talism legitimates power politics by clothing them in the trappings of principled legal ar-guments. Arguments that international law is not “law” or is widely ineffective—arguments that critics fear are aimed at delegitimizing international law as a normative system—have fueled these fears. The chapter argues that instrumentalist thinking has largely survived these critiques. To be sure, instrumentalist scholarship often does aim for policy relevance, and it does view law’s effectiveness as contingent on political and so-cial factors. But instrumentalism continues to flourish in both academic work and interna-tional legal practice, in large part because its usefulness as a descriptive tool has been used to understand how to make international law more effective.
The chapter concludes by considering a challenge to instrumentalism from closer to home. Borrowing from behavioralist studies in domestic law, scholars have begun to argue that the assumption of rationality often associated with instrumentalism is flawed. Instead, these writers emphasize the role of psychological biases in decision-making by international actors. This behavioral turn is promising. It remains to be seen, though, whether it will be more successful than prior critiques in modifying the basic instrumentalist framework.
Monday, April 4, 2016
Krupiy: A Toolbox for the Application of the Rules of Targeting
How military commanders interpret the rules of targeting impacts not only on whether civilians and civilian objects are harmed in the course of a military operation, but also on the scale of harm that ensues. Commentators have queried whether military commanders observed the law even when parties to a conflict acted in accordance with mandates to protect civilians, as was the case when a coalition of states bombed targets in Libya in 2011. However, limited guidance is publicly available on how military commanders apply these rules on the battlefield. In order to allow military commanders to exercise judgment in determining what steps they are required to take to spare civilians in a specific set of circumstances, the rules of targeting are formulated in an open-ended fashion, which complicates one’s ability to evaluate whether a particular military operation complies with the law. By examining case studies ranging from Operation Desert Storm in 1991 to Operation Protective Edge in 2014, this book addresses lacunae in current scholarship. It puts forward principles which capture how military commanders deliberate while interpreting what the rules of targeting require in particular scenarios. International humanitarian law, this book contends, places a duty on attackers to assume risk in order to mitigate danger to civilians. Drawing on the field of psychology, this study provides an explanation of how military commanders assess when circumstances do not permit them to inform civilians about a forthcoming attack.
Deeks: Multi-Part Tests in the Jus Ad Bellum
As the U.N. Charter’s drafters might have predicted, various categories of cases have arisen since 1945 in which states have sought to use force in situations not expressly contemplated by the treaty text. Those who view the Charter as a “living instrument” urge flexibility in interpretation when approaching these nonstandard cases. But they also recognize that allowing excessive flexibility will destabilize the Charter. As a result, some states and scholars seek to promote constrained flexibility by proposing multi part tests to guide state decision making in these nontraditional cases. The MPTs propound on the meaning of sparse texts by articulating specific, legalistic elements or factors against which states may evaluate their contemplated actions.
This Article identifies the common use of MPTs in the jus ad bellum to structure and assess state uses of force in nontraditional contexts. Analytically, it explores why states and scholars turn to MPTs, arguing that MPTs emerge where treaty amendments or Security Council authorization are unlikely. Although not binding on states that have not adopted them, MPTs promote law specification and development and offer a way to reduce interstate conflict. The Article also argues that an MPT will garner more support when it is more rule like and when it closely tracks the underlying Charter or customary rule on which the MPT expounds. Using that analysis, it predicts that MPTs in the area of humanitarian intervention are likely to encounter continued skepticism, at least in the near term.
Singh: The Fundamental Rights of States in Neoliberal Times
This is a critical introduction to the symposium on “The Fundamental Rights of States”. Whether such rights exist, the bounds of their existence, or whether they ought to be striven towards are questions of considerable import in the wake of the Greek sovereign debt crisis or even given the ongoing Palestinian struggle for permanent sovereignty over their natural resources. I briefly outline how we might consider the question: is there any progressive political value in buttressing the state and its autonomy, through the doctrine of fundamental rights, in today's neoliberal world? First, I examine how we may progressively look at fundamental rights - as doctrine, narrative, memory or discourse. Second, I question the extent to which it is useful to see competing subjectivities, i.e. the maligned state against technocratic institutions, in a time where neoliberal logic has come to structure the workings of the state. It becomes quickly apparent that the discourse of fundamental rights may be used to both resist neoliberalism and enable it.
Mortenson: Snowflakes in a Blizzard: Treaty Interpretation in International Investment Law
Taken as a body of treaty law, the signal characteristic of the international investment regime is its peculiar combination of pervasive similarity and relentless variation. Thousands of bilateral investment treaties have similar concerns, similar substance, similar enforcement structure, and similar terms. And yet the widely varying permutations of substantive guarantees, dispute resolution mechanics, and covered activities means that very few are exactly alike.
As a result, interpreters must regularly navigate a deep tension between (on one hand) the need for individualized and contextually sensitive treatment and (on the other) the demands of a systemically sensible administrative apparatus. It is a measure of the sometimes awkward fit between the modern law of treaties and the modern law of investment protections that the latter seriously complicates at least three important aspects of the former: (1) the rules governing third-party beneficiaries; (2) the project of consistent interpretation in a decentralized system and (3) the distinction between multilateral and bilateral regimes.
This paper describes how the BIT ecosystem’s peculiar combination of pervasive similarity and relentless variation -- its swirl of snowflakes in a blizzard -- plays out in each of these three areas.
Sunday, April 3, 2016
New Issue: Humanity
The latest issue of Humanity (Vol. 7, no. 1, Spring 2016) is out. Contents include:- Human rights and Humanitarianism on the African Continent
- Amal Hassan Fadlalla & Omolade Adunbi, Introduction
- Amal Hassan Fadlalla, Humanitarian Dispossession: Celebrity Activism and the Fragment-Nation of the Sudan
- Lisa Ann Richey, Alexandra Cosima Budabin, Celebritizing Conflict: How Ben Affleck Sells the Congo to Americans
- Robert Wyrod, When Rights Come Home: The Intimate Politics of Women's Rights in Urban Uganda
- Nadine Naber & Atef Said, The Cry for Human Rights: Violence, Transition, and the Egyptian Revolution
- Bilal Butt, Conservation, Neoliberalism, and Human Rights In Kenya's Arid Lands
- Yepoka Yeebo, Photo Essay: Suame Magazine
- Keith Hart, Reflections On Ghana's Informal Economy At Fifty Years
- Joseph Morgan Hodge, Writing The History of Development (Part 2: Longer, Deeper, Wider)
Milanovic: Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences
In an earlier piece, forthcoming in the American Journal of International Law, I discussed the findings of a series of public opinion surveys in the former Yugoslavia probing the attitudes of the respondent populations regarding the mass atrocities committed during the Yugoslav wars of the 1990s, such as the Srebrenica genocide. That article concluded that the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first modern, post-Nuremberg international criminal jurisdiction, failed to persuade the target audiences in the former Yugoslavia that the findings in its judgments are true. The surveys show that denialism is widespread and governed by ethnic bias – for example, only 10% of the Serbian population accept the facts about the Srebrenica genocide, the greatest crime committed in Europe since World War II, as they were established by the ICTY.
While that companion piece addressed the empirical, “what” question, this one looks at the equally, if not even more important, “why” question – why has the ICTY proven to be so ineffectual in inducing attitude change? In answering this question I proceed primarily from the theoretical standpoint of social psychology, enabling a more sophisticated understanding of how the target audiences in the former Yugoslavia have so persistently resisted internalizing the ICTY’s factual findings. I argue that the causes of the ICTY’s ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal’s own work.
For example, average citizens normally lack any immediate experience of the event, which necessitates the mediation of information by third parties, e.g. the media and political and intellectual elites, while they similarly lack the time, expertise and resources to rigorously examine the information by themselves. Remoteness from the event also facilitates the avoidance of revising previously acquired beliefs about the event, for instance through discrediting certain sources of information, such as the ICTY. Crucially, ethnic nationalism continues to play a central role in the politics of the region, providing key political actors with both the opportunity and the incentive to engage in the deliberate manipulation of the (already heavily mediated) information that citizens receive about specific atrocities and the ICTY. These objective limitations then feed into the numerous cognitive biases which shape the processing of any information about mass atrocities, essentially pushing individuals (at an unconscious level) to believe what they want to believe and reason about the ICTY and its work in a way that is most protective of their own sense of identity.
The article thus argues that even had the ICTY been run perfectly – and it was not – it would not have been able to overcome the many barriers insulating the peoples of the former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral, the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. In other words, as a mechanism of transitional justice the Tribunal was from the outset doomed to fail. Valuable lessons can, however, be learned from that failure, and not every other international criminal court and tribunal will necessarily find itself in the same unenviable position.
