Since the adoption of the Rome Statute of the International Criminal Court in 1998, international criminal law has rapidly grown in importance. This three-volume treatise on international criminal law presents a foundational, systematic, consistent, and comprehensive analysis of the field. Taking into account the scholarly literature, not only sources written in English but also in French, German, Italian, Portuguese, and Spanish, the book draws on the author's extensive academic and practical work in international criminal law.
This third volume offers a comprehensive analysis of the procedures and implementation of international law by international criminal tribunals and the International Criminal Court. Through analysis of the framework of international criminal procedure, the author considers each stage in the process of proceedings before the ICC, including the role of legal participants, the scope of jurisdiction, and the enforcement of sentences.
The full three-volume treatise addresses the entirety of international criminal law, re-stating and re-examining the fundamental principles upon which it rests, the manner it is enacted, and the key issues that are shaping its future.
Saturday, August 13, 2016
Friday, August 12, 2016
- Zakharov v. Russia (Eur. Ct. H.R.), with introductory note by Lorna Woods
- Opinion 2/13 of the Court (C.J.E.U), with introductory note by Daniel Halberstam
- Yong Vui Kong v. Public Prosecutor (Sing. Ct. App.), with introductory note by Yvonne McDermott
- Agreement on Compensation for Certain Victims of Holocaust-Related Dportation from France Who Are Not Covered by French Programs & Exchange of Notes (Fr.-U.S.), with introductory note by Ronald J. Bettauer
- United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, with introductory note by Liora Lazarus
- Scott J. Shackelford, Scott Russell, & Andreas Kuehn, Unpacking the International Law on Cybersecurity Due Diligence: Lessons from the Public and Private Spheres
- Jocelyn Gergen Kestenbaum, Closing Impunity Gaps for the Crime of Aggression
- Alicia Ely Yamin & Angela Duger, Adjudicating Health-Related Rights: Proposed Considerations for the United Nations Committee on Economic, Social and Cultural Rights, and Other Supra-National Tribunals
- Klaus D. Beiter, Terence Karran, & Kwadwo Appiagyei-Atua, "Measuring" the Erosing of Academic Freedom as an International Human Right: A Report on the Legal Protection of Academic Freedom in Europe
- Jens Dammann, Paradise Lost: Can the European Union Expel Countries from the Eurozone?
- Ryan Mitchell, An International Commission of Inquiry for the South China Sea? Defining the Law of Sovereignty to Determine the Chance for Peace
- Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century
- Pok Yin S. Chow, Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence
- Saïla Ouald Chaib, Procedural Fairness as a Vehicle for Inclusion in the Freedom of Religion Jurisprudence of the Strasbourg Court
- Eleni Polymenopoulou, Does One Swallow Make a Spring? Artistic and Literary Freedom at the European Court of Human Rights
- Andrew Dyer, Irreducible Life Sentences: What Difference have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?
- Nigel D. White, Regulation of the Private Military and Security Sector: Is the UK Fulfilling its Human Rights Duties?
For those following debates on the merits of the investment chapters within the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP), the answer to the titular question is obvious. Investor-State Dispute Settlement (ISDS) is undoubtedly a mechanism to resolve ‘public law’ disputes. This is a major reason why many, from the EU to the UN’s Independent Expert on the Promotion of a Democratic and Equitable International Order, want to replace ISDS with an international investment court, and also why U.S. Senator Elizabeth Warren was able to find one hundred U.S. law professors to sign a public letter in support of the view that ISDS is such a wrongheaded attempt to ‘privatize’ what should stay in the ‘public’ domain that it violates the rule of law. The public nature of the international investment regime, including ISDS, is taken for granted, particularly since there is no doubt that investor-state arbitrators apply public international law and that the international investment regime shares numerous points of intersection with other public international law regimes. This essay critically examines the consensus that ISDS is ‘public’ and what is commonly meant by that characterization. It concludes that, for purposes of description and prescription, ISDS, and the regime of which it is a part, should best be seen as a hybrid between public and private.
Zavoli: Peacekeeping in Eastern Ukraine: The Legitimacy of a Request and the Competence of the United Nations General Assembly
In the last two years, the conflict in Eastern Ukraine has been analysed by legal experts in relation to the possible secession of the eastern territories and its legal and political consequences. Less attention has been given to a peaceful settlement of the dispute through the deployment of UN peacekeeping forces. The ‘peacekeeping solution’ is quite appealing, but it is not straightforward, due to the Russian opposition in the Security Council. In order to adopt it, the international community needs to bypass the Security Council’s deadlock using an alternative process. This article discusses the possibility of having a peacekeeping operation in Eastern Ukraine established by the UN General Assembly. Traditionally, the UN Security Council is considered the organ competent for the deployment of peacekeeping operations. Taking a differentiated approach, and recalling the ‘Uniting for Peace’ Resolution, the author argues that there can be a role of the General Assembly on the matter. The analysis focuses on two points: (i) the legitimacy of a Ukrainian request, giving attention to the factual situation in Eastern Ukraine and to the legal conditions under which a UN peacekeeping mission can lawfully operate; and (ii) the competence of the UN General Assembly in authorizing peacekeeping operations in Eastern Ukraine, considering both its traditional function and the legal basis that supports a different interpretation of its role in maintaining international peace and security.
Thursday, August 11, 2016
Beham & Janik: A ‘Responsibility to Democratise’? The ‘Responsibility to Protect’ in Light of Regime Change and the ‘Pro-Democratic’ Intervention Discourse
We argue that R2P has transformed the discourse on Libya and Syria by clothing a democratic agenda with humanitarian wording. What is referred to as R2P plays out in practice as what could be called a ‘responsibility to democratise’. Regime change is the underlying tenor. Thereby, these cases should be viewed as not only standing within the tradition of humanitarian intervention but also as part of ‘pro-democratic’ intervention discourse. However, rather than synthesising the two in common perception, the concept of R2P has somewhat claimed both cases for itself and cloaked the idea of democratisation, a notion that might be perceived as ‘Western’ imperialism.
The United Nations Convention on the Law of the Sea (UNCLOS) now has nearly 170 States parties and is still attracting new ones. Often described as the "Constitution of the Sea", it sets the legal framework for all matters concerning the world's oceans. This book provides original thinking on a broad range of issues relating to maritime delimitation, exploiting the outer continental shelf, emerging international energy issues at sea, the relationship between climate change and law of the sea, protecting human security and the marine environment, China's approach to UNCLOS, and the settlement of disputes for States and the European Union.
The book analyses the fundamental nature of UNCLOS and concludes that it may now be characterised as a "living treaty" due to its capacity to adapt to new realities. It goes on to assess just how alive UNCLOS is, in the sense of its quality of life or vitality, and how well equipped it is to meet the challenges of the future.
- Allen S. Weiner, Ending Wars, Doing Justice: Colombia, Transitional Justice, and the International Criminal Court
- Brian Wilson, Human Rights and Maritime Law Enforcement
While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its 'inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions.
- Scott L. Kastner, Buying Influence? Assessing the Political Effects of China’s International Trade
- Seung-Whan Choi & James A. Piazza, Internally Displaced Populations and Suicide Terrorism
- Jared Bowden Kenworthy, Alberto Voci, Ananthi Al Ramiah, Nicole Tausch, Joanne Hughes, & Miles Hewstone, Building Trust in a Postconflict Society: An Integrative Model of Cross-group Friendship and Intergroup Emotions
- Alexander Ovodenko, Regional Water Cooperation: Creating Incentives for Integrated Management
- Muhammet A. Bas & Robert J. Schub, How Uncertainty about War Outcomes Affects War Onset
- Daniel W. Hill, Jr., Avoiding Obligation: Reservations to Human Rights Treaties
When does a government’s provision of assistance to foreign armed groups cross the line from legitimate foreign policy to criminal aiding and abetting of those who use the aid to commit atrocities? The question presents one of the most difficult dilemmas in criminal justice, one that has deep normative implications and has provoked sharp splits among the U.S. federal courts and international tribunals that have faced it.
In 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) sent shockwaves through international legal circles when it acquitted former Yugoslav Army chief Momčilo Perišić of aiding and abetting atrocities in Bosnia and Herzegovina during the early 1990s. Influenced perhaps by contemporary examples such as U.S. support for Syrian rebels, the Tribunal ruled that “neutral” support to armed groups engaged in combat activities could not give rise to criminal responsibility absent evidence that the support was “specifically directed” toward the group’s unlawful activities. The aftermath of the ruling has produced widespread criticism, but little clarity on how the law should draw the line between legitimate foreign assistance on the one hand and criminal complicity on the other. Domestic legal systems take different approaches to complicity, and even at the international level the law depends very much on which tribunal — and even which particular judge — happens to be deciding a case.
In this Article, I contribute to the debate over the foreign assistance cases by questioning two of its key premises. First, I challenge the pervasive assumption that the resolution of these cases can and should be determined by recourse to the kind of precedential analysis that has dominated judicial consideration of international aiding and abetting cases. As a descriptive matter, the case law is mistaken to maintain that the historical precedents reveal a consistent approach to aiding and abetting that evidences settled principles of customary international law. As a prescriptive matter, international tribunals’ reliance on precedent — however well-founded — is no substitute for the kind of normative analysis that is necessary to secure adequate protections against injustice.
Second, I contest the assumption that the resolution of individual foreign assistance cases turns on the particular doctrinal choices that have divided judges and commentators. Analysis of the competing approaches to aiding and abetting reveals that there is less at stake in the choice of elements than is commonly supposed, because each approach leaves room for substantial flexibility in interpretation and application. Moreover, the most plausible understandings are also the least determinate, suggesting that the resolution of the foreign assistance cases must inevitably rely on complex moral judgments that resist easy encapsulation in the legal elements that have traditionally served to police the boundaries of criminal responsibility.
The combined effect of these insights reveals an indeterminacy that is both inevitable and familiar to criminal law. I conclude by considering how courts might manage this indeterminacy in a way that renders the assignment of criminal responsibility sufficiently predictable while also maintaining a normatively meaningful distinction between guilt and innocence.
Shany: Sources and the Enforcement of International Law: What Norms International Law-Enforcement Bodies Actually Invoke?
The paper explores the sources of law used by international law-enforcing bodies, thus informing our prophecies about their output. It discusses the practice of international and domestic bodies, who claim to enforce international law, or can be plausibly described as doing just so, and juxtaposes the sources of international law norms on which such bodies rely with the list of international law sources found in article 38(1) of the ICJ Statute. It offers in this connection two inter-related surveys: A categorization of the main bodies that engage in international law-enforcement, and an overview of the process of law-enforcement pertaining to two sets of norms that appear to enjoy exceptional prominence in the world of law-enforcement – international judgments and resolutions of international organizations (IGOs). These surveys underlie the contention that article 38 – the standard reference point for studying the sources of international law – does not necessarily predict well which international law norms are likely to be invoked in practice by law-enforcement-bodies. The paper concludes with a discussion of some of the explanations for the differences between the general list of sources of international law and the sources actually relied upon by international law-enforcement bodies.
Wednesday, August 10, 2016
This chapter focuses on the project for a “New International Economic Order” (“NIEO”), launched in the early 1970s with the hope of restructuring the world economy through legal means and effectively defunct with the consolidation of neoliberalism in the early 1980s. It does so with a view to complicating [Duncan] Kennedy’s avowedly tentative sketch of “contemporary legal consciousness.” My contention is straightforward: even if one does not subscribe to Kennedy’s particular brand of legal structuralism, or has certain reservations about our ability to speak meaningfully about overarching langues for large chunks of time, closer attention to the NIEO is useful for developing a sharper understanding of the legal thinking that has been made available for mass consumption during the past several decades. An outgrowth of the commitment to Third World solidarity that typified the Group of 77 and Non-Aligned Movement, the NIEO constituted a sustained attempt to craft a new international law that would facilitate resource redistribution in a world economy whose regulatory architecture had revealed itself to be fragile, if not obsolete. It fell short of socialism, cleaving instead to a modified form of state capitalism. However, it was also fed by suspicion of the neoliberalism that had emerged during the interwar period, suffered defeat at the hands of the Keynesians after 1945, and begun to reassert itself in the wake of the collapse of the Bretton Woods monetary system in 1971. Insofar as it represented the Third World’s most concerted response to the dissolution of the “global New Deal” inaugurated by the 1941 Atlantic Charter and realized partly through the establishment of the United Nations, its failure is best explained by reference to the contemporaneous resuscitation of neoclassical economics in the form of an increasingly assertive mode of neoliberal capitalism that prioritized private property, freedom of contract, anti-union “fiscal discipline,” state retreat from social services, and across-the-board liberalization of trade in goods and services. Stymied by the intransigence of Northern states, not to mention its own conceptual inconsistencies, the NIEO was unable to counter this development, providing useful fodder for neoliberals—who, it bears reminding, were occasionally given to framing their arguments in legal terms—to make their case.
Christopher Tomlins has argued that neoliberalism may offer the economic (or, perhaps, economic-cum-juridical) logic in reaction to which a variety of different legal responses have been crafted during the course of the past half century. The NIEO’s failure may well be the single most significant and illuminating confirmation of this thesis, providing evidence that the real anchor of Kennedy’s murky “contemporary legal consciousness”—what Mark Mazower has justifiably termed “the real new international economic order”—is none other than neoliberalism, the central, if not always spoken or visible, point of reference for nearly all attempts to theorize law since the early 1970s. Neoliberalism may not amount to a comprehensive langue, stitching together the disparate paroles of today’s legal landscape. But there is certainly much to be said for the view that it operates as a source of inspiration and (far less frequently and successfully) opposition for a range of different legal projects. Re-examining the NIEO—neoliberalism’s most direct opponent on the international legal plane—is particularly instructive in this regard.
- General articles
- Peter Tomka, Jessica Howley, & Vincent-Joel Proulx, International and Municipal Law before the World Court: One or Two Legal Orders?
- Daniel Costelloe & Malgosia Fitzmaurice, Interpretation of Secondary Instruments in International Law
- Barbara Mikołajczyk, International Law and Ageism
- Marco Longobardo, Some Developments in the Prosecution of International Crimes Committed in Palestine: Any Real News?
- Oleksandr Zadorozhnii, To Justify against All Odds: The Annexation of Crimea in 2014 and the Russian Legal Scholarship
- Stefania Ninatti & Maurizio Arcari, Patterns of Democracy in the Case Law of the EU Court of Justice and the European Court of Human Rights
- Aleksandra Kustra, The Polish Constitutional Tribunal and the Judicial Europeanization of the Constitution
- Elena Carpanelli, Can States Withhold Information about Alleged Human Rights Abuses on National Security Grounds? Some Remarks on the ECtHR Judgments of Al-Nashiri v. Poland and Husayn (Abu-Zubaydah) v. Poland
- Cedric Vanleenhove, The Current European Perspective on the Exequatur of U.S. Punitive Damages: Opening the Gate but Keeping a Guard
- Michał Konig, Non-State Law in International Commercial Arbitration
- Konrad Czech, The Distinctive Characteristics of Commercial and Investment Arbitration Proceedings: Lex multiplex, universa curiositas, ius unum?
- Polish practice in international law
- Agata Kleczkowska, Decision of the Supreme Court – Criminal Chamber, dated 14 October 2015
- Book reviews
- Marcin Kałduński, Przemysław Saganek, Unilateral Acts of States in Public International Law
- Maria Issaeva, Lauri Malksoo, Russian Approaches to International Law
- Maria Eduarda Goncalves, Patrycja Dąbrowska-Kłosińska (ed.), Essays on Global Safety Governance: Challenges and Solutions
- Polish Bibliography of international and European Law 2015
- Yvonne Donders, Protecting the Home and Adequate Housing
- Alessandro Chechi, Migrants’ Cultural Rights at the Confluence of International Human Rights Law and International Cultural Heritage Law
- Tara L. Van Ho, Is it Already Too Late for Colombia’s Land Restitution Process?
- Patricia Hobbs, The Right to a Fair Trial and Judicial Economy at the International Criminal Court
- Jessika Eichler, Indigenous Peoples’ Land Rights in the Bolivian Lowlands
- Jónína Einarsdóttir & Hamadou Boiro, Becoming somebody: Bissau-Guinean talibés in Senegal
- Sofia Cavandoli, The unresolved dilemma of self-determination: Crimea, Donetsk and Luhansk
- Alexei Anisin, Violence begets violence: Why states should not lethally repress popular protest
- Cynthia Banham, The torture of citizens after 9/11: liberal democracies, civil society and the domestic context
- Vincent Charles Keating, The anti-torture norm and cooperation in the CIA black site programme
- Danièle Joly & Adel Bakawan, Women in Kurdistan-Iraq: issues, obstacles and enablers
- Po-Han Lee, LGBT rights versus Asian values: de/re-constructing the universality of human rights
- Azadeh Chalabi, Australia’s National Human Rights Action Plans: traditional or modern model of planning?
- Amy Nethery & Rosa Holman, Secrecy and human rights abuse in Australia’s offshore immigration detention centres
- Ryan Essex, Healthcare and clinical ethics in Australian offshore immigration detention
Tuesday, August 9, 2016
The Sussex Centre for Human Rights Research at the University of Sussex will be hosting a conference on Friday 27 January 2017: Challenging Human Rights Disenchantment 50 Years on from the ICCPR and ICESCR
The Centre invites proposals for presentations that consider different forms (political, legal, social) of disenchantment with the state of human rights 50 years after the adoption of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Proposals should address a thematic human rights issue to consider how the issue is being, or might be, challenged. The closing date for proposals is Tuesday 6th September 2016.
On the basis of proposals received in response to this call, the conference steering group will decide on the thematic focus for each of up to six thematic sessions. Each thematic session will involve 10-15 minute presentations by three (or possibly four) panellists. The conference steering group aims to ensure that panellists comprise a mixture of senior and early career researchers, as well as postgraduate researchers, from different disciplines and from both within and outside the University of Sussex.
In 1885, Germany and Portugal became neighbours in Africa. The newly founded colony of German Southwest Africa prevented the southwards expansion of the ancient colony of Angola. The border along the Cunene and Kavango Rivers remained under dispute. After the outbreak of World War I in Europe, Portugal’s neutrality was questioned in German Southwest Africa, and when a group of German officials waiting near the border of Angola for food transports were shot in the Angolan fortress Naulila, a state of war between both colonies seemed inevitable. German troops launched several military reprisals against fortresses in southern Angola, most significantly against Naulila in December 1914. After their victory at Naulila, the Germans retreated to GSWA. However, African powers, most notably Kwanyama forces led by King Mandume, used the weakness of the defeated Portuguese army to expel the colonial troops from southern Angola. In 1915, a counter-offensive was launched with troops from Portugal that ended with the complete occupation of Kwanyama territories. After the war, a Luso-German arbitration procedure according to the Treaty of Versailles (1919) assessed the damages in Angola and Germany’s responsibility to pay reparations. The arbitration award of 1928 that established Germany’s responsibility for the violation of international law when attacking Naulila became a landmark case. It still holds relevance for modern international law. The final part of this book analyses the memorial culture that developed in Angola, Namibia, Germany and Portugal around the war in 1914/15.
Historians are the embalmers of our political and moral convictions. As soon as historiography begins to take an interest in an issue, we can be certain that it no longer possesses a self-evident presence in our society. Some questions and problems only become objects of history after society has become historically conscious of them. The history of workers boomed in the 1970s, for example, when industrial labour was in the process of disappearing, just as memory and its sites became a mode of inquiry for historians in the 1980s precisely at the moment when lived memory of ‘the age of extremes’ (Eric Hobsbawm) was disappearing together with its last generation.
The issue of human rights has by no means come so far, even if a certain historicizing sobriety has now set in among activists. On the contrary, as I have argued elsewhere, human rights are still something like the doxa of our times: those ideas and sentiments that are tacitly presumed to be self-evident truths and not in need of any justification. Who is opposed to human rights today? And who of those born before the late twentieth century would like to be reminded that earlier he or she had had little use for the concept of human rights? At least in the Euro-Atlantic world today the resonance of human rights is so universal and unassailable that in principle the only thing still debated is how they can best be realized on a global scale. We feel distressed and melancholic about the continued violation of human rights in our time but do not wish to abandon the concept altogether.
And yet it is remarkable that historians have begun to concern themselves with human rights only recently — essentially only since the late 1990s. Still, in the major historical syntheses of the past two decades, for instance in the interpretations of the twentieth century by Eric Hobsbawm and Tony Judt or of the nineteenth century by Jürgen Osterhammel and Chris Bayly, or of the rise and fall of empires by Jane Burbank and Fred Cooper, human rights have appeared only at the margins, if at all. Most historians of genocide, refugees, nationalism, slavery or humanitarianism (including Pamela Ballinger, since 2011 the first professor of the history of human rights in the United States) do not consider themselves to be part of the new field of human rights history. This is about to change, so much can be said already. In recent years we have apparently arrived at a new present, an era of ‘global governance’, ‘cosmopolitan ethics’, ‘transnational law’ and ‘humanitarian interventions’, for which we seek anchoring points in history, but which begins at the same time to historicize itself. As times change, so does the past.
The new historiography of human rights can be divided into these two tendencies: one that searches for stabilizing points for the present and finds them in the longue durée evolution of human rights (deep history) and one that seeks to demonstrate in revisionist fashion the instability of such universalist narratives and thereby the historicity, that is, the transience, of our political and moral convictions (recent history). Conveniently, these two tendencies are grouped around two path-breaking books: Lynn Hunt’s Inventing Human Rights and, as a counterpoint, Samuel Moyn’s Last Utopia.
Put briefly, Lynn Hunt argues that in the eighteenth century human rights gained in currency because they were based on new experiences and cultural practices, a new emotional regime, the core of which was ‘imagined empathy’. From this new emotional regime, which is evident, for example, in sentimental, epistolary novels as well as in the moral campaign for the abolition of torture beginning in the 1760s, a new legal regime emerged during the French Revolution that in turn followed its own cascading logic: once human rights had acquired self-evidence, they could no longer be removed from the world, and unfolded their revolutionary potential during the nineteenth and twentieth centuries. Reading epistolary novels or accounts of torture had physical effects that translated into ‘brain changes’ and ‘came back out’ as new concepts of individual human rights. Hunt acknowledges the paradoxes of human rights as politics, that rights claims emerged in tandem with revolutionary violence, but insists that their self-evidence ultimately transcends these historical mutations: ‘You know the meaning of human rights because you feel distressed when they are violated’.
Samuel Moyn, in contrast, objects in Last Utopia that we can speak of human rights in their current form, as individual rights granted to every person even beyond the nation state, only since the late 1970s — since Jimmy Carter and disco, as one unhappy reviewer summarized. Prior to this, human rights were tied to the nation state and were thus essentially citizenship rights. As the title suggests, human rights became, according to Moyn, the last utopia, especially for activists in the recently established human rights non-governmental organizations such as Amnesty International, following the failure of other global emancipation ideologies such as socialism and anti-colonialism. With this brilliant polemic, Moyn provides an interpretative framework for a series of more recent studies and ongoing research projects of a new generation of historians investigating the ‘breakthrough’ of human rights to a global morality in the 1970s.
This essay is intended as a historiographical intervention in this debate and develops three interconnected arguments that seek to determine the place of human rights in the crises and conflicts of the recent past. First of all, I shall push the historiographical revisionism of Moyn and others even further and argue that we can first speak of individual human rights as a basic concept (Grundbegriff), that is, a contested, irreplaceable and consequential concept of global politics, only in the 1990s, after the end of the Cold War. In the 1970s and 1980s ‘human rights’ coexisted and overlapped with other moral and political idioms like ‘solidarity’ and included competing notions of rights, which were in many ways still indebted to the legacies of socialism and anti-colonialism, as in, for example, the transnational movement against apartheid. It was only after the end of the Cold War that ‘human rights’ emerged as an explanatory framework for understanding what had just happened. Human rights idealism, I shall argue, is not the cause but the consequence of the epochal ruptures of the late twentieth century.
However, this does not mean, secondly, that ‘human rights’ have no deeper history; here I agree with Hunt and others. On the contrary, in many respects the human rights idealism of the 1990s appears as a strange return of the enlightened liberalism of the late eighteenth and the nineteenth century and its critics (of Immanuel Kant and Carl Schmitt, the two sources of inspiration and antipodes of the political and moral discourse of the 1990s), as does the enthusiasm for cosmopolitanism, civil society, free trade, humanitarian interventions and moral justifications of war within the new world (dis)order. I shall suggest, therefore, that we should bring the long nineteenth century back into human rights history, especially the histories of social and economic rights, women’s rights, humanitarianism and international law, to assess more precisely what is new about the human rights idealism of the late twentieth century. Conversely, I shall discuss which previous notions of international human rights were replaced or bypassed in the 1990s, especially collective rights claims that were of particular importance for the so-called Third World UN from the 1950s to the early 1990s. The unrecognized irony is that human rights have become not less but more Eurocentric in recent years.
Human rights are not a new (and certainly not the last) utopia. Rather, the question is whether the human rights idealism of the Euro-Atlantic world at the end of the twentieth century can be seen as utopian at all. It is other motifs that appear to be new: the self-evidence of individual human rights, which stand above the rights of states; the evocation of present and past suffering as a mobilizing source; and, finally, the global claims connected to human rights as well as the media presentism of their failed realization, that is, the ubiquity of crises and the state of emergency as a matter of course. The ‘endtimes of human rights’ (Steven Hopgood) are the global here and now, not a utopian ‘elsewhere’. From this follows, thirdly, my concluding suggestion that the rise of human rights as the crisis semantics of a new fin de siècle can be understood in part as a result of the fracturing of the modern time regime, that is, the ways in which past, present and future are reflected in our experience of time. Not the future (or an idealized past) serves as the vanishing point, but rather the present, which appropriates past and future to validate the immediate. The new historiography of human rights also belongs, I think, in this context. It invents for our times a history of human rights conceived as individual and pre-state rights which are read into the past and future as if without alternatives.
In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.
- Giorgio Gaja, Interpreting Articles Adopted by the International Law Commission
- Mamadou Hébié, The Role of the Agreements Concluded with Local Political Entities in the Course of French Colonial Expansion in West Africa
- Federica I. Paddeu, Self-Defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles on State Responsibility
- Deborah Russo, Addressing the Relation Between Treaties by Means of ‘Saving Clauses’
Monday, August 8, 2016
- Upendra Baxi, Towards a climate change justice theory?
- Sam Adelman, Climate justice, loss and damage and compensation for small island developing states
- Silja Klepp & Johannes Herbeck, The politics of environmental migration and climate justice in the Pacific region
- Christopher Jeffords, On the temporal effects of static constitutional environmental rights provisions on access to improved sanitation facilities and water sources
- Kristian Cedervall Lauta & Jens Elo Rytter, A landslide on a mudslide? Natural hazards and the right to life under the European Convention on Human Rights
- Gabriel Blouin Genest & Sylvie Paquerot, Environmental human rights as a battlefield: a grammar of political confrontation
- Luc Reydams, NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide
- Martha C. Nussbaum, Women’s Progress and Women’s Human Rights
- Kathleen Cavanaugh & Edel Hughes, Rethinking What is Necessary in a Democratic Society: Militant Democracy and the Turkish State
- David S. Weissbrodt & Brittany Mitchell, The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence
- Jennifer A. Orange, Translating Law into Practice: Museums and a Human Rights Community of Practice
- Nehaluddin Ahmad, Ahmad Masum, & Abdul Mohaimin Ayus, Freedom of Religion and Apostasy: The Malaysian Experience
- David E. Guinn, Human Rights as Peacemaker: An Integrative Theory of International Human Rights
- Tine Destrooper, Linking Discourse and Practice: The Human Rights-Based Approach to Development in the Village Assaini Program in the Kongo Central
- Children and International Criminal Justice
- Diane Marie Amann, Convening Experts on Children and International Criminal Justice
- Fatou Bensouda, Children and International Criminal Justice
- Linda A. Malone, Maturing Justice: Integrating the Convention on the Rights of the Child into the Judgments and Processes of the International Criminal Court
- Mark Drumbl, Children, Armed Violence and Transition: Challenges for International Law & Policy
- Kerry L. Neal, Child Protection in Times of Conflict and Children and International Criminal Justice
- Ashley Ferrelli, Eric Heath, Eulen Jang, & Cory Takeuchi, Expert Workshop Session: Regulatory Framework
- Chelsea Swanson, Elizabeth Devos, Chloe Ricke, & Andy Shin, Expert Workshop Session: Child Witnesses: Testimony, Evidence, and Witness Protection
- Haley Chafin, Jena Emory, Meredith Head, & Elizabeth Verner, Expert Workshop Session: The Global Child
The European system of human rights protection faces institutional and political pressures which threaten its very survival. These institional pressures stem from the backlog of applications before the European Court of Human Rights, the large number of its judgments that remain unimplemented, and the political pressures that arise from sustained attacks on the Court's legitimacy and authority, notably from politicians and jurists in the United Kingdom.
This book addresses the theme which lies at the heart of these pressures: the role of national parliaments in the implementation of judgments of the Court. It combines theoretical and empirical insights into the role of parliaments in securing domestic compliance with the Court's decisions, and provides detailed investigation of five European states with differing records of human rights compliance and parliamentary mobilisation: Ukraine, Romania, the United Kingdom, Germany, and the Netherlands.
How far are parliaments engaged in implementation, and how far should they be? Do parliaments advance or hinder human rights compliance? Is it ever justifiable for parliaments to defy judgments of the Court? And how significant is the role played by the Parliamentary Assembly of the Council of Europe? Drawing on the fields of international law, international relations, political science, and political philosophy, the book argues that adverse human rights judgments not only confer obligations on parliamentarians but also create opportunities for them to develop influential interpretations of human rights and enhance their own democratic legitimacy. It makes an authoritative contribution to debate about the future of the European and other supranational human rights mechanisms and the broader relationship between democracy, human rights, and legitimate authority.
- Australian and Canadian Oceans Research Network (ACORN) Workshop
- Julia Jabour, Tim Stephens & David L. VanderZwaag, Introduction
- Frederick Whoriskey & Mark Hindell, Developments in Tagging Technology and Their Contributions to the Protection of Marine Species at Risk
- Jeffrey A. Hutchings, Tim Stephens & David L. VanderZwaag, Marine Species at Risk Protection in Australia and Canada: Paper Promises, Paltry Progressions
- Julia Jabour, Mary-Anne Lea, Simon D. Goldsworthy, Graeme Melcher, Katie Sykes & Mark A. Hindell, Marine Telemetry and the Conservation and Management of Risk to Seal Species in Canada and Australia
- Jianjun Gao, The Obligation to Negotiate in the Philippines v. China Case: A Critique of the Award on Jurisdiction
- Karen N. Scott, Evolving MPA Management in New Zealand: Between Principle and Pragmatism
- Moonhawk Kim, Enduring trade disputes: Disguised protectionism and duration and recurrence of international trade disputes
- Asif Efrat, Promoting trade through private law: Explaining international legal harmonization
- Margit Bussmann & Gerald Schneider, A porous humanitarian shield: The laws of war, the red cross, and the killing of civilians
- Sarah Sunn Bush, When and why is civil society support “made-in-America”? Delegation to non-state actors in American democracy promotion
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. 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, European human rights treaties and other areas of international law related to environmental, social and economic concerns.
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.
Sunday, August 7, 2016
- Rolando E. Gialdino, El Proceso de Constitucionalización del Derecho Internacional de los Derechos Humanos: Efectos y Proyecciones
- Luciano Pezzano, La República Argentina Frente al Crimen de Agresión
- Amalia Uriondo de Martinoli, Consolidación del Principio de la Autonomía de la Voluntad
TDM Call for Papers: TDM Special Issue on the Trans-Pacific Partnership Agreement
Elizabeth Whitsitt, Devin Bray, Julien Chaisse, Tomoko Ishikawa, Joongi Kim, Stephanie Mullen, Donald Robertson and Frédéric Sourgens will be editing a Special Issue of Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) on the Trans-Pacific Partnership Agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.
The Trans-Pacific Partnership (TPP) Agreement is one of three mega-regional agreements that will change the landscape of the international economic order in the coming years. The origins of the historic deal can be traced to the Trans-Pacific Strategic Economic Partnership (TPSEP) Agreement concluded by Brunei, Chile, New Zealand and Singapore in the fall of 2005. Three years later, eight other Pacific-Rim countries began discussions with the members of TPSEP in hopes of concluding a broader deal on trade and investment in the region. After some delay, the 12 participating nations reached agreement on October 5, 2015 resulting in the historic and wide-ranging TPP, subject to national ratification procedures.
Similar to other mega-regional trade deals, state parties to the TPP have pledged to reduce or eliminate tariffs on a wide range of goods and services. The ambitious pact also attempts to establish closer relationships between the Pacific-Rim parties by promoting regulatory coherence and the reduction of non-tariff barriers to trade and investment. TPP chapters on competitiveness, customs administration and trade facilitation, services, investment, regulatory coherence and e-commerce attempt to reduce the burdens placed on businesses operating within the agreement. But, facilitating free trade of goods and services is not the only aim of the TPP. The presence of chapters such as those related to investment, capacity building, development, labour, and the environment underscore the intention of the state parties to balance economic goals with other objectives.
The TPP contains 30 chapters covering topics such as:
- Cooperation and Capacity Building
- Customs Administration and Trade Facilitation
- Dispute Settlement
- Financial Services
- Government Procurement
- Intellectual Property
- National Treatment & Market Access for Goods
- Regulatory Coherence
- Rules of Origin
- SPS Measures
- State-Owned Enterprises and Designated Monopolies
- TBT Measures
- Textile and Apparel Goods
- Trade in Services
Also similar to other mega-regional trade deals, the TPP has been - and remains - controversial within the polities of its 12 state parties. While the concerns across the trans-pacific region, including those within the automobile, agriculture and technology sectors, typically reflect their own specific economic interests, what remains are passionate and compelling arguments both against and for the TPP. For example, Nobel Prize-winning economist and professor at Columbia University Joseph Stiglitz is reported to consider the TPP may be the worst trade agreement ever negotiated for Canada and has noted its potential to reduce workers' rights and interfere with the ability of governments to regulate business or to move toward a low-carbon economy (www.cbc.ca/news/business/joseph-stiglitz-tpp-1.3515452). On the other hand, Google supports the TPP as a positive force and an important counterweight to restrictive Internet policies around the world (publicpolicy.googleblog.com/2016/06/the-trans-pacific-partnership-step.html).
The co-editors invite you to explore the legal aspect of the controversy surrounding the TPP by contributing to this special edition with unpublished or previously published articles, conference papers, research papers and case studies addressing the TPP and corresponding issues raised by any of its chapters. For example the following topics raise interesting points for discussion:
- The convergence or divergence of international trade and/or investment law trends in the TPP.
- The balance struck within a TPP chapter between measures designed to facilitate international trade and/or investment and a host state's sovereign right to regulate as a means of achieving legitimate policy objectives, including the protection of human rights, health, the environment, public morals, cultural institutions, the financial sector or intellectual property.
- Intended and unintended legal consequences of the TPP's "rules of origin" provisions on local labour markets.
- The facilitation or impairment of market access for trade in services under the TPP.
- The treatment of technical barriers to trade, such as labeling and manufacturing standards, or food safety measures under the TPP versus WTO agreements and other mega-regional trade treaties.
- Supply chain risks and opportunities created by the TPP for multi-national organizations and/or member states and state-owned enterprises.
- The impact of the TPP on transformative/disruptive technologies or business models and related domestic law.
- Reconciling member states' rights and obligations under the TPP with their other international trade and/or investment law treaty obligations.
- Changes made to various aspects of the investment chapter, including the definition of investment and investor and the scope and application of non-discrimination provisions.
- Procedural and remedial advantages and disadvantages of the TPP's dispute resolution provisions as compared to other international trade and/or investment law treaties.
Feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.
Proposals or papers should be submitted directly to the co-editors:
Faculty of Law, University of Calgary
Wöss & Partners
Professor Julien Chaisse
Faculty of Law, The Chinese University of Hong Kong
Professor Tomoko Ishikawa
Professor Joongi Kim
Yonsei Law School
Herbert Smith Freehills LLP
Professor Frédéric Sourgens
Washburn University School of Law
Proposals should be received by September 31, 2016. Publication is expected in 2017.
Indigenous Peoples and Human Rights explores how general human rights standards have enabled, empowered and constrained indigenous peoples in claiming and defending their essential economic, social, cultural, civil and political interests. The book examines the jurisprudence of United Nations treaty committees and regional human rights bodies (in Africa, the Americas and Europe) that have interpreted and applied human rights standards to the special circumstances and experiences of indigenous peoples. It focuses particularly on how human rights laws since the 1960s have been drawn upon by indigenous activists and victims to protect their interests in ancestral lands, natural resources, culture and language. It further explores the right to indigenous self-determination; civil and political rights; economic, social and cultural rights (including labour rights); family and children's rights; violence and discrimination against indigenous peoples; and access to justice and remedies for violations. The book also discusses international and regional efforts to define who is 'indigenous' and who is a 'minority', and the legal relationship between indigenous individuals and their communities. The jurisprudence considered in this book significantly shaped the UN Declaration on the Rights of Indigenous Peoples 2007, which particularises and adapts general human rights standards for indigenous peoples. The book concludes by exploring future normative and implementation challenges in the light of the standard setting and consolidation, and political momentum, surrounding the UN Declaration and associated UN human rights mechanisms. - See more at: http://www.bloomsbury.com/au/indigenous-peoples-and-human-rights-9781901362404/#sthash.RKMfj4f8.dpuf
- EUNAVFOR MED Operation Sophia one year after: An effective measure to tackle human trafficking and migrant smuggling networks?
- Introduced by Francesca De Vittor and Francesca Mussi
- Matilde Ventrella, The impact of Operation Sophia on the exercise of criminal jurisdiction against migrant smugglers and human traffickers
- Efthymios Papastavridis, EUNAVFOR MED Operation Sophia and the question of jurisdiction over transnational organized crime at sea