Site visits by the bench occur rarely in inter-state adjudication and arbitration. Against this backdrop, the recent site visits in Indus Waters Kishenganga Arbitration (Pakistan v India) and Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) are noteworthy and raise questions about how on-site inspections influence the decision-making process and whether site visits are an underused fact-finding tool. An analysis of these site visits, as well as past examples of site visits by arbitral tribunals and the International Court of Justice, reveal that the utility and value of site visits by the bench is difficult to ascertain, and there is little evidence that site visits have played a dispositive role. Moreover, in many disputes, other fact-finding methods may be more suitable than a site visit. But if site visits do, in fact, play a significant role in decision-making, then adjudicators should acknowledge that influence in a more transparent manner.
Saturday, July 16, 2016
- Mariana Mota Prado, The past and future of law and development
- David M Trubek, Law and development: Forty years after ‘Scholars in Self-Estrangement’
- Michael Trebilcock, Between universalism and relativism: Reflections on the evolution of law and development studies
Friday, July 15, 2016
- Derecho Internacional Privado
- Javier Maseda Rodríguez, La acción directa contra el asegurador de la persona responsable del daño en el marco del art. 18 del Reglamento Roma II sobre ley aplicable a las obligaciones extracontractuales: breve aproximación a la posición del asegurador
- Lorena Sales Pallarés, A propósito de la entrada en vigor del protocolo aeronáutico y la incorporación de España al sistema de Ciudad del Cabo
- Luciana Scotti, Jurisdicción competente y ley aplicable en un caso internacional de alimentos
- Derecho Internacional Publico
- Luis F. Castillo Argañarás, Inversiones extranjeras y desarrollo sustentable. Los casos Vattenfall vs Alemania I y II
- María Celia Martínez, Cuba – EE. UU. entre el acercamiento y la distancia
- Derecho de la Integracion
- Daniel Cravacuore, La intermunicipalidad transfronteriza en Argentina
- María Victoria Inostroza, La posibilidad sancionatoria de la Unión de Naciones Suramericanas en el orden democrático. Un análisis comparativo con la Organización de los Estados Americanos
- Alexander Rodrigues de Souza & Renata Alvares Gaspar, A Incorporação da declaração sociolaboral do MERCOSUL no ordenamento jurídico brasileiro como norma Constitucional de Direitos Humanos
- Nadja Meisterhans, The World Health Organization in Crisis—Lessons to be Learned Beyond the Ebola Outbreak
- Michael M. Du, China’s “One Belt, One Road” Initiative: Context, Focus, Institutions, and Implications
- Yana Stoeva, The ‘Uncertainty Hypothesis’ in International Economic Law
- Katherine Tseng Hui-yi, Re-contemplating the South China Sea Issue: Sailing with the Wind of the 21st Century Maritime Silk Road
- He Tiantian, Commentary on Award on Jurisdiction and Admissibility of the Philippines-instituted Arbitration under Annex VII to the UNCLOS: A Discussion on Fact-Finding and Evidence
- Tommy Koh & Hao Duy Phan, The Asian Way to Settle Disputes
- Ian Townsend-Gault, Sustainable and Sound: First Principles for Addressing Maritime Jurisdictional Issues and Disputes
- Clive Schofield & Richard Schofield, Testing the Waters: Charting The Evolution of Claims to and From Low-Tide Elevations and Artificial Islands under the Law of the Sea
- Genevieve Quirk & Quentin Hanich, Ocean Diplomacy: The Pacific Island Countries’ Campaign to the UN for an Ocean Sustainable Development Goal
- Anastasia Telesetsky, State Law of the Sea Practice in Asian Pacific States
- Current Legal Developments
- Lowell Bautista, Philippine Arbitration against China over the South China Sea
- Dustin Kuan-hsiung Wang, Taiwan-Japan Fisheries Agreement: Light at the End of a Dark Tunnel
- David Freestone, International Tribunal for the Law of the Sea, Case 21
- Richard Caddell, Dispute Resolution and Scientific Whaling in the Antarctic
- Lorenzo Schiano di Pepe, International Tribunal for the Law of the Sea, Case 24, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures
Drones are changing the conduct of war. Deployed at presidential discretion, they can be used in regular war zones or to kill people in such countries as Yemen and Somalia, where the United States is not officially at war. Advocates say that drones are more precise than conventional bombers, allowing warfare with minimal civilian deaths while keeping American pilots out of harm’s way. Critics say that drones are cowardly and that they often kill innocent civilians while terrorizing entire villages on the ground. In this book, Hugh Gusterson explores the significance of drone warfare from multiple perspectives, drawing on accounts by drone operators, victims of drone attacks, anti-drone activists, human rights activists, international lawyers, journalists, military thinkers, and academic experts.
Gusterson examines the way drone warfare has created commuter warriors and redefined the space of the battlefield. He looks at the paradoxical mix of closeness and distance involved in remote killing: is it easier than killing someone on the physical battlefield if you have to watch onscreen? He suggests a new way of understanding the debate over civilian casualties of drone attacks. He maps “ethical slippage” over time in the Obama administration’s targeting practices. And he contrasts Obama administration officials’ legal justification of drone attacks with arguments by international lawyers and NGOs.
Thursday, July 14, 2016
The General Agreement on Tariffs and Trade (GATT) was created alongside other towering achievements of the post-World War II era, including the United Nations, the World Bank, and the International Monetary Fund. GATT, the first successful agreement to generate multilateral trade liberalization, became the principal institution to administer international trade for the next six decades. In this book, Petros Mavoidis offers detailed examination of the GATT regime for international trade, discussing the negotiating record, policy background, economic rationale, and case law.
Mavroidis offers a substantive first chapter that provides a detailed historical background to GATT that stretches from the 1927 World Economic Conference through Bretton Woods and the Atlantic Charter. Each of the following chapters examines the disciplines agreed to, their negotiating record, their economic rationale, and subsequent practice. Mavroidis focuses on cases that have influenced the prevailing understanding of the norm, as well as on literature that has contributed to its interpretation, and the final outcome. In particular, he examines quantitative restrictions and tariffs; the most favored nation clause (MFN), the cornerstone of the GATT edifice; preferential trade agreements and special treatment for products originating in developing countries; domestic instruments; and exceptions to the obligations assumed under GATT.
The General Agreement on Tariffs and Trade (GATT) has extended its institutional arsenal since the Kennedy round in the early 1960s. The current institutional design is the outcome of the Uruguay round and agreements reached in the ongoing Doha round (begun in 2001). One of the institutional outgrowths of GATT is the World Trade Organization (WT0), created in 1995. In this book, Petros Mavroidis offers a detailed examination of WTO agreements regulating trade in goods, discussing legal context, policy background, economic rationale, and case law.
Each chapter examines a given legal norm and its subsequent practice. In particular, he discusses agreements dealing with customs clearance; “contingent protection” instruments, which allow WTO members unilaterally to add to the negotiated amount of protection when a certain contingency (for example, dumping) has occurred; TBT (Technical Barriers to Trade) and SPS (Sanitary and Phyto-sanitary Measures) agreements, both of which deal with such domestic instruments as environmental, health policy, or consumer information; the agreement on Trade Related Investment Measures (TRIM); sector-specific agreements on agriculture and textiles; plurilateral agreements (binding a subset of WTO membership) on government procurement and civil aviation; and transparency in trade relations. This book’s companion volume examines the GATT regime for international trade.
- Richard S. Mbatu, Linking the global to the national: an application of the international pathways model to examine the influence of international environmental agreements on Cameroon’s forest policy
- Cristina A. Lucier & Brian J. Gareau, Obstacles to preserving precaution and equity in global hazardous waste regulation: an analysis of contested knowledge in the Basel Convention
- Jon Birger Skjærseth, Linking EU climate and energy policies: policy-making, implementation and reform
- José Octavio Velázquez Gomar, Environmental policy integration among multilateral environmental agreements: the case of biodiversity
- David Belis & Bart Kerremans, The socialization potential of the CDM in EU–China climate relations
- Hui Zhang, Towards global green shipping: the development of international regulations on reduction of GHG emissions from ships
- Kristin Rosendal & Steinar Andresen, Realizing access and benefit sharing from use of genetic resources between diverging international regimes: the scope for leadership
- Susanne Schmeier, Andrea K. Gerlak, & Sabine Blumstein, Clearing the muddy waters of shared watercourses governance: conceptualizing international River Basin Organizations
Wednesday, July 13, 2016
- Jens David Ohlin, Introduction: the inescapable collision
- Adil Haque, Laws for war
- David Luban, Human rights thinking and the laws of war
- Marko Milanovic, Rethinking the relationship between IHL and IHRL
- Jens David Ohlin, Acting as a sovereign versus acting as a belligerent
- Jonathan Horowitz, Ending the global war: the power of human rights in a time of unrestrained armed conflict
- Naz K. Modirzadeh, Folk international law
- Kevin Jon Heller, The use and abuse of analogy in IHL
- Janina Dill, Forcible alternatives to war: legitimate violence in twenty-first-century international relations
- John Dehn, Whither international martial law?
- Brian Orend, The next Geneva Convention: filling a post-war legal gap with human rights values
Tuesday, July 12, 2016
- C. Márquez Carrasco & K. Buhmann, Editorial Introduction: The Corporate Responsibility to Respect Human Rights: The Emerging European Union Regime
- R. Chambers & A. Yilmaz-Vastardis, The New EU Rules on Non-Financial Reporting: Potential Impacts on Access to Remedy?
- O. Outhwaite & O. Martin-Ortega, Human Rights in Global Supply Chains: Corporate Social Responsibility and Public Procurement in the European Union
- M. Requejo Isidro, Business and Human Rights Abuses: Claiming Compensation under the Brussels I Recast
- M. Fasciglione, The Enforcement of Corporate Human Rights Due Diligence: From the UN Guiding Principles on Business and Human Rights to the Legal Systems of EU Countries
- M. Bordignon, State Commitment in Implementing the UNGPs and the Emerging Regime of National Action Plans: A Comparative Analysis
- T. Bloom, Cleaning Dirty Hands? Some Thoughts on Private Companies, Migration and CSR in the European Union
- J. Letnar, Towards a Holistic Approach to Business and Human Rights in the European Union
The Trans-Pacific Partnership (TPP) will have profound implications for small and medium-sized enterprises (SMEs) within and beyond the free trade area. SME issues get more attention in the TPP than previous FTAs. Since there is limited research on the impact of the FTAs on SMEs, it is of great significance to probe into the practical implications of the TPP for SMEs. The key question will be analyzed: what are the challenges and opportunities that the TPP hold for SMEs? It is argued that, first, the support to SMEs, tariff elimination or reduction, and the reduction of non-tariff barriers are major opportunities presented by the TPP. The key benefits to SMEs are enhanced market opening and increased predictability. However, such opportunities may have limited effects in improving market position for certain SMEs. Second, the TPP will pose major challenges such as insufficiency of the opportunities to SMEs, the complexity of rules, difficulties in rule interpretation and implementation, remained regulatory differences, disadvantaged positions of SMEs from developing TPP countries, and the impact on SMEs negatively affected by trade liberalization. There will be more challenges for SMEs from non-TPP parties. Third, if the TPP is properly managed, it should bring more opportunities than challenges to SMEs. The opportunities and challenges deriving from the TPP are intimately connected.
Sofaer: The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication
China has been blamed – and rightly so – for advancing overbroad claims in the South China Sea (SCS), and for unilaterally attempting to enforce those claims through threats and aggressive actions. The United States has properly responded to China’s assertions by exercising its maritime rights through freedom of navigation operations, by assisting States whose claims are threatened by China’s conduct, and by working to create and strengthen alliances to deter China from continuing its policy of using strength to implement its claims to sovereignty and historical rights through unilateral actions. Such measures are essential to convince China to return to its long-held and sound policy of avoiding sovereignty disputes and supporting cooperative development.
It is equally imperative, however, for the US to acknowledge the ineffective foreign policy that continues to exacerbate the ongoing, dangerous confrontation with China over its SCS claims. The 2002 Declaration on the Conduct of Parties in the South China Sea among conflicting SCS claimants provides for the negotiation, rather than unilateral implementation, of conflicting claims; and the Philippine government in particular agreed to resolve its disputes with China through negotiations. The Philippine government gave up on diplomacy, however, and sued China under the United Nations Convention on the Law of the Sea (UNCLOS) in January 2013, contending that bilateral negotiations had led nowhere; that multilateral efforts were bogged down; and that China had repeatedly used its superior power to maintain its claims. The LOS tribunal appointed to hear the case has decided it has jurisdiction over several of the Philippine claims and it has reserved judgment on all the other claims until the merits have been determined. An LOS tribunal decision adverse to China is anticipated on July 12, 2016.
Supporters of the litigation – including the United States – appear to have believed that the action against China: was justified under the Convention’s terms; was necessary because all efforts to resolve the disputes between the two States regarding the SCS had been exhausted; could embarrass China and thereby lead it to moderate its conduct and narrow its claims; could prompt additional LOS suits by other States affected by China’s maritime claims; and would advance the influence and effectiveness of international law and the Law of the Sea in particular.
These hoped-for results have not been realized. To the contrary, the litigation has caused far more harm than good. The US does need firmly to oppose China’s unilateral actions in the SCS. But its strategy must be both realistic and honest, whereas its reliance on this litigation has been ill-considered and insincere given the firm US policy against being artificially forced into international adjudication and its failure to have ratified the Convention.
Although the International Court of Justice is called upon to identify rules of customary international law, the broader effect of these pronouncements has long raised controversial questions. This article opens these queries to further discussion by analysing custom used in the settlement of territorial disputes. The relevant case law is contextualized geopolitically to highlight not only taxonomic, but also practical tensions arising between custom and jurisprudence. Given the links between territorial interests and state sovereignty (and the resulting sensitivity of these disputes), this approach sheds light on a fundamental question: how do courts and tribunals use custom to imbue international relations with greater stability? The author concludes that such bodies must serve this function by developing—rather than merely interpreting or applying—international customary norms.
- Tore Wig & Espen Geelmuyden Rød, Cues to Coup Plotters: Elections as Coup Triggers in Dictatorships
- Benjamin E. Bagozzi, On Malaria and the Duration of Civil War
- Benjamin Fordham & Paul Poast, All Alliances Are Multilateral: Rethinking Alliance Formation
- Brett V. Benson & Joshua D. Clinton, Assessing the Variation of Formal Military Alliances
- Seung-Whan Choi & Patrick James, Why Does the United States Intervene Abroad? Democracy, Human Rights Violations, and Terrorism
- Marko Klašnja & Natalija Novta, Segregation, Polarization, and Ethnic Conflict
- Dan Reiter, Allan C. Stam, & Michael C. Horowitz, A Revised Look at Interstate Wars, 1816–2007
Call for Submissions: EJIL Symposium on "International Commissions of Inquiry: What Difference Do They Make?"
Call for Papers for a Symposium
International Commissions of Inquiry:
What Difference Do They Make?
The proliferation of inquiry bodies in international affairs is a marked phenomenon of the post-Cold War period. Scholarly attention has largely focused on the procedures and methodologies adopted by such bodies, in addition to their findings of fact and conclusions of law. Comparatively little systematic attention has been devoted to the impact of international commissions of inquiry on the specific disputes, incidents or situations that they are created to address.
This symposium sets out to consider what difference various commissions of inquiry have made on the circumstances that provided the impetus for their creation. This question is more complicated than whether an inquiry body’s findings have been accepted or its recommendations implemented (although these may be areas of focus). Nor should a commission of inquiry’s impact be tied up too closely with whether it has conclusively resolved the underlying conflict that prompted its establishment. The more basic questions for consideration may be as follows: How did an inquiry body influence the conduct of the states (or non-state actors) that were the subject of the inquiry? Did the inquiry body serve either to empower or to constrain social actors? What were the inter-institutional effects of an inquiry body’s work? Did the inquiry body fulfil the (public and private) expectations that led to its creation? Has the inquiry body’s legal analysis influenced the content of international law or the practice of international law by lawyers and judges? To what extent is the impact or influence of a commission of inquiry largely or entirely independent from its procedures, methodologies or reasoning?
This Symposium will address these questions through a curated set of articles that focus on a variety of specific commissions of inquiry and their interactions with each other, other actors and other institutions. We are looking for articles that will both generate empirical data on individual inquiry bodies and assess that data through a particular theoretical lens, which may originate in socio-legal theory, international relations, political economy, global governance, personal experience, or other approaches. Whatever theoretical approach a contributor plans to take, we ask that special attention be given in the proposals to the anticipated methodology that will be used in the analysis. For example, if a contributor intends to use ideas from socio-legal theory to analyze the influence of a commission of inquiry, it is necessary to address the particular methodological tools that such an approach will require.
Given the demands of generating new empirical data and employing methodologies from fields beyond law, co-authorship is particularly encouraged.
1. Those interested in contributing are encouraged to send a provisional abstract of no more than 800 words that identifies the specific inquiry body that will be the focus of the research, the applicable theoretical lens and the methodology, to:
The deadline for proposals is 19 September 2016.
2. The editors of the Symposium will engage in a discussion with potential contributors about their work to ensure maximum coherence.
3. A workshop on outlines of papers is planned for Cambridge, UK, in January 2017.
4. Full articles will be due by 1 June 2017. Articles will then submitted for peer review. Those accepted will be submitted to EJIL by September 2017.
Final submissions will probably be limited to 10,000 words including footnotes.
Monday, July 11, 2016
- Jaakko Kuosmanen, Worlds Apart: Bridging the Gap between Human Rights and Fiscal Transparency
- Andrew Fagan & Hans Fridlund, Relative Universality, Harmful Cultural Practices and the United Nations' Human Rights Council
- Gauthier de Beco, Transition to Inclusive Education Systems According to the Convention on the Rights of Persons with Disabilities
- Tarek Meguid, (Re)Humanising Health Care – Placing Dignity and Agency of the Patient at the Centre
The United Nations human rights treaty bodies, such as the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Discrimination Against Women, oversee national implementation of international human rights obligations. This chapter discusses the legitimacy of the human rights treaty bodies’ court-like function of deciding cases on individual complaints.
von Bernstorff: Drone Strikes, Terrorism and the Zombie: On the Construction of an Administrative Law of Transnational Executions
There is a vacuum of philosophy to make sense of a world dominated by a disorderly global economy, by science and engineering, by ideologies, and by popular culture. There is a vacuum of law to bring order to relations between states that are more threatening than they have ever been. Thomas More’s Utopia (1516) re-thought everything in another difficult new world. Philip Allott’s Eutopia (2016) reclaims the best of human thought to empower us in making a better human world.
- Roy Goode, Private Commercial Law Conventions and Public and Private International Law: The Radical Approach of the Cape Town Convention 2001 and Its Protocols
- Alex Mills, Private International Law and EU External Relations: Think Local Act Global, Or Think Global Act Local?
- Uglješa Grušić, Contractual Networks in European Private International Law
- David McGrogan, The Problem of Causality in International Human Rights Law
- Louise Mallinder, The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws
- Renato Nazzini, The Law Applicable to the Arbitration Agreement: Towards Transnational Principles
- David Ramos, Javier Solana, Ross P Buckley & Jonathan Greenacre, Protecting Mobile Money Customer Funds in Civil Law Jurisdictions
- Shorter Article and Notes
- Matthew Kennedy, Overseas Territories in the WTO
The Responsibility to Protect (R2P) is intended to provide an effective framework for responding to crimes of genocide, ethnic cleansing, war crimes, and crimes against humanity. It is a response to the many conscious-shocking cases where atrocities - on the worst scale - have occurred even during the post 1945 period when the United Nations was built to save us all from the scourge of genocide. The R2P concept accords to sovereign states and international institutions a responsibility to assist peoples who are at risk - or experiencing - the worst atrocities. R2P maintains that collective action should be taken by members of the United Nations to prevent or halt such gross violations of basic human rights. This Handbook, containing contributions from leading theorists, and practitioners (including former foreign ministers and special advisors), examines the progress that has been made in the last 10 years; it also looks forward to likely developments in the next decade.
Sunday, July 10, 2016
Biniaz: Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime
International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreements. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries. This compendium of textual examples focuses on smaller, language-based tools negotiators have used to resolve differences. Presented in roughly chronological order, these examples are drawn from my personal involvement in international climate negotiations ― and are by no means exhaustive. It is hoped that the examples may be of interest to those who follow climate change in particular, as well as of potential use to those who work in other international fields.
Im Gefüge des internationalen Investitionsschutzrechts spannt das justizielle Unrecht einen weitreichenden Bogen, der von klassischen Problemen des gewohnheitsrechtlichen Fremdenrechts bis hin zu Auslegungsfragen moderner Investitionsschutzstandards reicht. Dazu zählen etwa die Auswirkungen der sog. „finality rule“ auf die völkerrechtliche Verantwortlichkeit des Staates für das Handeln untergeordneter Gerichte; die Frage nach der Definition des gewohnheitsrechtlichen Rechtsverweigerungsverbots; das Zusammenspiel zwischen fremdenrechtlichen Rechtsverweigerungsbegriff und völkervertraglicher Schutzstandards; das Spannungsverhältnis zwischen nationalen Gerichten und Investitionsschiedsgerichten; und die sich aus justiziellem Unrecht ergebende Wiedergutmachungspflicht des Staates.
Diese Monographie widmet sich somit Fragestellungen, die nicht nur von wissenschaftlichem Interesse sind, sondern im Rahmen internationaler Schiedsverfahren zunehmend auch an praktischer Relevanz gewonnen haben.