- Devin McDaniels & Marianna Karttunen, Trade, Testing and Toasters: Bringing Conformity Assessment Procedures into the Spotlight
- Farrokh Farrokhnia & Cameron Richards, E-Commerce Products Under the World Trade Organization Agreements: Goods, Services, Both or Neither?
- Gilles Muller, National Treatment and the GATS: Lessons from Jurisprudence
- Kamala Dawar, The 2016 European Union International Procurement Instrument’s Amendments to the 2012 Buy European Proposal: A Retrospective Assessment of Its Prospects
- Sophia Mueller, Mapping the Aftermath of Accession: Which Is China’s Applicable World Trade Organization Anti-Subsidy Law for the Use of Alternative Benchmarks?
- Thitirat Wongkaew, A ‘New Haven’ Look at ASEAN’s Promotion of Transparency in Agri-food Trade
- Máté Hegedűs-Gáspár, Data Exclusivity for Biological Pharmaceuticals: Is New Zealand in Breach of World Trade Organization Law?
Saturday, October 15, 2016
- Dossier spécial: Protecting, making sense and going beyond sovereign limits in contemporary practice
- Pierre d'Argent, Présentation
- Etienne Farnoux, Une apologie des foreign-cubed class actions en matière financière – Forum shopping, régulation, extraterritorialité et compétence déléguée
- Sidney Floss, Non-ingérence et égalité des États : des principes indépendants des concepts de souveraineté
- Markos Karavias, Non-State actors in control of territory as « actors of protection » in international refugee law
- David Roth-Isigkeit, Promises and perils of legal argument – a discursive approach to normative conflict between legal orders
- Antal Berkes, « Remote Areas » in International Human Rights Law
- Eric David, La pratique du pouvoir exécutif et le contrôle des chambres législatives en matière de droit international (2011-2014)
- Olivier Corten & Agatha Verdebout, La position belge sur le régime contemporain du jus contra bellum : un classicisme ambigu
- Eric David & Kristof Gombeer, La loi belge de 2013 sur la lutte contre la piraterie maritime
- Jessie Ingle, Aiding and Abetting by Omission before the International Criminal Tribunals
- Andrea Carcano, Of Fragmentation and Precedents in International Criminal Law: Possible Lessons from Recent Jurisprudence on Aiding and Abetting Liability
- Isabelle Xavier, The Incongruity of the Rome Statute Insanity Defence and International Crime
- Symposium: Srebrenica 1995-2015: The Search for Justice
- Luisa Vierucci, Foreword
- Otto Spijkers, Questions of Legal Responsibility for Srebrenica before the Dutch Courts
- Valentina Spiga, The Response to Srebrenica from States Not Directly Involved in the Atrocities
- Michelle Jarvis & Alan Tieger, Applying the Genocide Convention at the ICTY: The Influence of Paradigms Past
- Pierre-Marie Dupuy, A Crime without Punishment
- Maria Irene Papa, The Mothers of Srebrenica Case before the European Court of Human Rights: United Nations Immunity versus Right of Access to a Court
- Luisa Vierucci & Micaela Frulli, Antonio Cassese and Srebrenica
- Symposium: Third World Approaches to International Criminal Law
- Asad Kiyani, John Reynolds & Sujith Xavier, Foreword
- Michelle Burgis-Kasthala, Scholarship as Dialogue? TWAIL and the Politics of Methodology
- Asad Kiyani, Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity
- John Reynolds & Sujith Xavier, ‘The Dark Corners of the World’: TWAIL and International Criminal Justice
- Vasuki Nesiah, Local Ownership of Global Governance
- Cases before International Courts and Tribunals
- Marco Longobardo, Everything Is Relative, Even Gravity: Remarks on the Assessment of Gravity in ICC Preliminary Examinations, and the Mavi Marmara Affair
Friday, October 14, 2016
Allen: The Scope of Third-Party Responsibility for Serious Human Rights Abuses under the European Convention on Human Rights
This article examines the evolution of third-party responsibility, under the European Convention on Human Rights, for the wrongful acts of foreign officials within a Contracting State’s jurisdiction. It explores the limits of the complicity test endorsed by the European Court of Human Rights in El-Masri, Al Nashiri and Abu Zubaydah—that a Contracting State’s officials connived or acquiesced in such wrongdoing—in this context. It argues that, in accordance with the Convention’s positive obligations, responsibility should be determined by what those officials ought to have known and done as a result of credible reports, alleging that serious human rights abuses were being committed, having entered the public domain by the material time. To this end, the article examines the potential significance of allegations that officials of the United States of America ill-treated and arbitrarily detained individuals, pursuant to its Central Intelligence Agency’s Detention and Interrogation Programme, in the British Indian Ocean Territory.
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the U.S. ratified the UN Charter, which obligates nations to promote human rights "for all without distinction as to race." In 1950, a California court applied the Charter's human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The exception permits state governments to violate NSE treaties without authorization from the federal political branches. The death of treaty supremacy has significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations.
The European Court of Human Rights has long abandoned the view that human rights merely impose obligations of restraint on State authorities (so-called negative obligations). In addition, States are under positive obligations to take steps to actively protect and ensure the rights and freedoms guaranteed by the European Convention on Human Rights. While the concept of positive obligations has become increasingly important in the jurisprudence of the European Court, it remains relatively underexplored in the literature. This book goes beyond the existing scholarship by analytically, critically and normatively engaging with the Court’s positive obligations case law in a comprehensive and in-depth manner.
The book begins by providing an overview of the Court’s jurisprudence in this area. Building upon this overview, it brings to the fore the legal methodological consequences attached by the Court to the labels of positive and negative obligations. It moreover critically examines how the Court constructs the distinction between positive and negative obligations, building upon the underlying distinctions between public authorities and private entities, on the one hand, and State action and inaction, on the other. The central argument made in this volume is that in a positive State, in which the authorities have affirmatively intervened in so many areas, it has become increasingly difficult to draw a baseline to properly distinguish between action and inaction. Finally, the author makes suggestions for legal methodological change. This book will prove to be highly valuable for any pract
This chapter examines the interaction between international trade law and international investment law on the one hand with the right to health as a human right on the other. It considers the United Nations treatment of this relationship as well as the right to health and human rights in WTO agreements, preferential trade agreements, bilateral investment treaties, and international disputes associated with these treaties. Using tobacco control as a case study, the chapter concludes that international economic law has the capacity to balance health interests, such that the objectives of health, trade and investment can be aligned.
Thursday, October 13, 2016
- Sara Poli, Setting the Scene
- Ilaria Vianello, Guaranteeing Respect for Human Rights in the EU’s External Relations: What Role for Administrative Law?
- Francesca Martines, Human Rights Clauses in EU Agreements
- Jan Wouters and Marta Hermez, EU Guidelines on Human Rights as a Foreign Policy Instrument: An Assessment
- Samantha Velluti, The Promotion of Social Rights and Labour Standards in the EU’s External Trade Relations
- Sara Poli, The Promotion of Good Governance as an Autonomous Objective of the EU’s External Relations
- Efthymios Papastavridis, EUNAVFORMED Operation Sophia: Fighting Smuggling of Migrants or Protecting Human Rights?
- Emanuele Sommario, Attribution of Conduct in the Framework of CSDP Missions: Reflections on a Recent Judgment by the Higher Administrative Court of Nordrhein-Westfalen
As the biggest Chinese free trade agreement (FTA) to the date of its signature, the China-Korea FTA provides an amazing case study for the development of China’s recent FTAs. This paper analyzes major challenges in its rule development, implementation, and interpretation. The author argues, first, that rule development encounters market liberalization, regulatory cooperation and coherence, as well as sectoral challenges. Second, the fundamental issue for rule implementation and interpretation is the lack of a ‘systemic’ response to the relationship among FTA chapters, and to the relationship among the China-Korea FTA, domestic law, and international law. Finally, the relationship between the China-Korea FTA and World Trade Organization (WTO) law deserves special attention, which consists of five categories of circumstances. A number of questions are analyzed: which WTO rules apply to the China-Korea FTA? Do WTO rules apply to WTO-plus obligations? Can WTO jurisprudence be applied to the China-Korea FTA? The issue of the applicability of WTO rules and jurisprudence to FTA obligations including WTO-plus obligations remains open. These challenges are not unique to the China-Korea FTA and are likely to exist in other Chinese FTAs.
This article aims to highlight the relevance of judicial trust in international courts, focusing on national judges' trust in the Court of Justice of the European Union (CJEU). EU scholars have put a great deal of effort into explaining how legal and political factors affect the use of preliminary references by national courts. However, there is still a gap in the literature on the development of trust as a functional principle encouraging co-operation between national and international courts. This article explores the nature, causes and potentials of judicial trust for the EU judicial system. A theory is offered in the article, which links national judges' trust in the CJEU to their corporatist identification and profile, to their attitudes towards the EU, and to their beliefs about the CJEU's ability to provide decisions that: 1) offer a clear guidance on European Union law, and 2) will not undermine Member States' legal order.
AMERICAN SOCIETY OF INTERNATIONAL LAW
INTERNATIONAL LEGAL THEORY INTEREST GROUP
ANNUAL SYMPOSIUM DECEMBER 8, 2016
9:00 AM – 6:00 PM
TILLAR HOUSE, WASHINGTON DC
CALL FOR PAPERS
THEME: THE FUTURE OF THE STATE
International lawyers and jurists usually take the modern state for granted because international law is grounded on its existence. However, the state’s dominant position in international law, and even its own continuity, might be more fragile and vulnerable than we dare to admit.
The accelerated rate of social and political changes that are occurring, and will continue to occur, will entail significant challenges for the state as political entity. If unable to rise to them, the state might face, in the next decades or centuries, the decline of its leading and dominant position in international law, as well as the appearance of new systems of governance that might compete with it, coexist with it and even, eventually, replace it.
This symposium will provide a forum of discussion around the question of how the accelerated rate of social changes, the dynamics of an irrevocable globalization, international crisis (in a broad sense) and the state’s behaviors and failures are likely to affect the state’s relevance and continuity in the future.
We welcome papers addressing issues related, but not limited, to the following questions:
- Is the modern state the best we can do for human political organization and governance? In face of the challenges of the 21st century and beyond, is the emergence of new models of governance desirable? Or, on the contrary, does it become even more imperative to save and preserve the modern state?
- How is the accelerated rate of social changes inciting the appearance of new political theories, as well as making some old libertarian ones more appealing? In face of these changes, will the state’s relevance and continuity require new theoretical frameworks? Or, on the contrary, will it become even more necessary to reinforce the existing ones?
- Are the state’s actions and failures, both individually and through the work of international organizations, likely to contribute to the state’s decline?
- Does the increasing delegation to the private sector of activities traditionally performed by the states, from basic services to warfare, carry with it long term risks to the state’s continuity?
- Is International Law an obstacle to the appearance of new forms of political organization and governance?
- What can we learn from the history and demise of governance systems that preceded the modern state?
- What could, or should, states do in order to maintain their relevance and legitimately prolong their existence for the next centuries?
Those interested in participating in the symposium should send an abstract (length of their choice) and a description of their institutional affiliation to Elizabeth Rodríguez-Santiago at email@example.com, firstname.lastname@example.org (please copy both addresses).
The deadline for the submission of abstracts is October 22, 2016. Abstracts will be peer reviewed and decisions will be notified no later than October 27, 2016. The deadline for the submission of the papers drafts, for purposes of publication, will be March 1, 2017.
For those selected, all lodging and meals will be provided. It will be the presenter’s responsibility to arrange for travel to and from Washington DC.
Simon: Genocide, Torture, and Terrorism: Ranking International Crimes and Justifying Humanitarian Intervention
We are understandably reluctant to "rank" moral atrocities. What is worse, genocide or terrorism? In this book, Thomas W. Simon argues that politicians use this to manipulate our sense of injustice by exaggerating terrorism and minimizing torture. He advocates for an international criminal code that encourages humanitarian intervention.
Wednesday, October 12, 2016
- Stephanie Blackenburg & Richard Kozul Wright, Preface
- Juan Pablo Bohoslavsky & Matthias Goldmann, Guest Editors’ Foreword
- Juan Pablo Bohoslavsky & Matthias Goldmann, An Incremental Approach to Sovereign Debt Restructuring: Sovereign Debt
- Anna Gelpern, Sovereign Debt: Now What?
- Odette Lienau, Legitimacy and Impartiality as Basic Principles for Sovereign Debt Restructuring
- Matthias Goldmann, Putting Your Faith in Good Faith: A Principled Strategy for Smoother Debt Workouts
- Michael Riegner, Legal Frameworks and General Principles for Indicators in Sovereign Debt Restructuring
- Juan Pablo Bohoslavsky, Economic Inequality, Debt Crises and Human Rights
- Daniel D. Bradlow, Can Parallel Lines Ever Meet? The Strange Case of the International Standards on Sovereign Debt and Business and Human Rights
- Jan Klabbers, On Functions and Finance: Sovereign Debt Workouts and Equality in International Organizations Law
Tuesday, October 11, 2016
Motoc & Ziemele: The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives
- Dean Spielmann, Foreword
- Iulia Motoc, Introduction
- Luzius Wildhaber, Comments on the early years and conclusions
- Ledi Bianku, Albania: Albania's long path towards European human rights standards
- Alvina Gyulumyan & Davit Melkonyan, Armenia: the supremacy of the European Convention on Human Rights: Armenia's path
- Khanlar Hajyev, Azerbaijan: the directions of influence of the case law of the European Court of Human Rights in Azerbaijan
- Faris Vehabovic, Bosnia and Herzegovina: impact of the case law of the European Court of Human Rights on post-conflict society of Bosnia and Herzegovina
- Ksenija Turkovic & Jasna Omejec, Croatia: commitment to reform: assessing the impact of the ECtHR's Case Law on Reinforcing Democratization Efforts in Croatian Legal Order
- Aleš Pejchal, Czech Republic: democratic tradition, legitimacy of confiscation, translation of the case law of the ECtHR in the light of the Convention in the Czech Republic
- Julia Laffranque, Estonia: impact of the European Court of Human Rights' (Case Law) on Democracy and Rule of Law: some reflections from the Estonian perspective
- Károly Bárd, Hungary: the Legal Order of Hungary and the European Convention on Human Rights
- Mārtiņš Mits, Latvia: consolidating democratic changes in Latvia: the various roles of the European Convention on Human Rights
- Danutė Jočienė, Lithuania: the European Convention on Human Rights in the Lithuanian legal system
- Mirjana Lazarova-Trajkovska & Ilo Trajkovski, Macedonia: the impact of the European Convention on Human Rights and the case law on the Republic of Macedonia
- Nebojša B. Vučinić, Montenegro: the effect of the European Convention on Human Rights on the legal system of Montenegro
- Lech Garlicki & Ireneusz Kondak, Poland: human rights between international and constitutional law
- Iulia Motoc & Crina Kaufmann, Romania: Romania and the European Convention on Human Rights: a dialogue of judges
- Anatoly I. Kovler, Russia: European Convention on Human Rights in Russia: fifteen years after
- Dragoljub Popović & Tanasie Marinković, Serbia: the emergence of the human rights protection in Serbia under the European Convention on Human Rights: the experience of the first ten years
- Milan Blaško & Mihal Kučera, Slovakia: how the Convention has helped Slovakia in its transition to a consolidated democracy
- Jan Zobec, Slovenia: just a glass bead game?
- Ganna Yudkivska, Ukraine: Ukraine on the way to democracy: role and achievements of the European Court of Human Rights
- Ineta Ziemele, Conclusions
Monday, October 10, 2016
Post-Conflict Justice in Ukraine
A Joint Conference of the European Society of International Law, the Ukrainian Helsinki Human Rights Union, and the Ukrainian Association of International Law
Friday 26 and Saturday 27 May 2017
CALL FOR PAPERS
The general topic of the conference is post-conflict justice and the relevant strategies for securing justice in the context of the Ukrainian conflict. The conference will bring together leading international scholars, judges, and lawyers. It will address different aspects and models of post-conflict justice, and help determine key elements of post-conflict justice which would be the most adequate to the circumstances in Ukraine.
All interested scholars and practitioners are invited to submit a paper to the conference on one of the following topics:
- Accountability standards under international human rights law and international humanitarian law and their application during and after an armed conflict;
- Post-conflict justice for a “mixed” [“hybrid”] armed conflict;
- Transitional justice and post-conflict justice: two sides of the same coin?
- Establishing post-conflict justice mechanisms as a positive obligation of the state under international criminal law;
- The role of the European Court of Human Rights and other human rights bodies during the Ukrainian conflict, its eventual settlement and aftermath;
- The role of the International Criminal Court and other institutions of international criminal justice during and after the conflict;
- Truth commissions: establishing the historical truth and countering propaganda?
- Amnesties: conditio sine qua non for a lasting peace solution or ticking timebombs for peacebuilding?
- Post-conflict reconciliation processes;
- Reparation for victims of armed conflicts.
The conference organizers will consider papers dealing with these topics from a more general perspective and those with a specific focus on Ukraine. The overall aim of the conference is to help to find appropriate theoretical and practical solutions for these problems in the Ukrainian context.
Proposals are equally welcome from both senior and junior scholars and practitioners. The programme will also include a number of prominent international legal scholars and judges as invited speakers.
The working language of the conference will be English. Interpretation into Ukrainian may also be available.
Abstracts of proposed papers (between 1,000 and 1,500 words) should be submitted to email@example.com by 15 December 2016. Please include your name, email address and a one-page curriculum vitae with your abstract. We will inform authors of our decision by 15 January 2017.
The possibility of a post-conference publication will be discussed at the conference.
Limited funds may be available to offer travel grants to speakers selected through the call for papers, provided they are ESIL members.
Murphy: Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission
The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completed on second reading a full set of eighteen draft articles with commentary on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.
Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentary, for two topics: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. As such, both topics might be completed by the Commission on second reading in 2018.
Progress was also made in developing draft articles on crimes against humanity; draft guidelines on protection of the atmosphere; draft conclusions on jus cogens; and draft principles on protection of the environment in relation to armed conflicts. The Commission commenced a debate on a proposed draft article on “limitations and exceptions” to the immunity of state officials from foreign criminal jurisdiction, but, due to insufficient time, the debate will continue in 2017. Furthermore, an additional proposed guideline on the provisional application of treaties was sent to the drafting committee. The Commission decided to add two new topics to its long-term work program: the settlement of international disputes to which international organizations are parties; and succession of states in respect of state responsibility.
Au XXIe siècle, le respect des droits de l'Homme et du droit humanitaire constitue une exigence universelle. Cela procède du caractère objectif des droits consacrés par les instruments internationaux afférents aux droits de l'Homme et au droit humanitaire. En termes de protection des droits fondamentaux, il existe un ensemble de dispositions liant la quasi-totalité des États. Néanmoins, ces dispositions ne possèdent ni la même effectivité ni la même efficacité en raison de plusieurs facteurs limitatifs ou dérogatoires. Ces derniers entraînent souvent des lacunes dans le respect des exigences des droits fondamentaux. Ces lacunes peuvent résulter de l'absence d'application concomitante des droits de l'Homme et du droit humanitaire, dans les circonstances de violations massives des droits fondamentaux.
Cette situation a interpellé la communauté internationale, notamment depuis 1968 durant la Conférence de Téhéran célébrant le 20e anniversaire de la DUDH du 10 décembre 1948. Pendant cette Conférence, les Nations Unies ont consacré le principe de complémentarité entre les droits de l'Homme et le droit humanitaire. Depuis lors, cette dynamique de complémentarité se renforce constamment. Elle a été accentuée par le développement fulgurant de la justice pénale internationale depuis les années 1990. Cette justice pénale internationale s'appuie à la fois sur les dispositions des droits de l'Homme et celles du droit humanitaire pour aboutir à une meilleure efficacité. Ce constat a incité la doctrine et la jurisprudence à déployer davantage d'efforts pour vulgariser et rendre plus effective la complémentarité entre les droits de l'Homme et le droit humanitaire.
Dans cette perspective, cette étude se propose de réfléchir au principe de complémentarité susmentionné à travers la doctrine et la jurisprudence.
- JHHW, Continent in Crisis; There is Chutzpah and Then There is David Cameron; On My Way Out – Advice to Young Scholars III: Edited Books; From the Editor’s Mailbag; Conflicts of Interest in the Editorial Process; In this Issue
- Turkuler Isiksel, European Exceptionalism and the EU’s Accession to the ECHR
- Nora Markard, The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries
- Michal Saliternik, Perpetuating Democratic Peace: Procedural Justice in Peace Negotiations
- Armin Steinbach, The Trend towards Non-Consensualism in Public International Law: A (Behavioural) Law and Economics Perspective
- Daniel Augenstein, Paradise Lost: Sovereign State Interest, Global Resource Exploitation and the Politics of Human Rights
- New Voices: A Selection from the Fourth Annual Junior Faculty Forum for International Law
- Surabhi Ranganathan, Global Commons
- Deborah Whitehall, A Rival History of Self-Determination
- Philippa Webb, The Immunity of States, Diplomats and International Organizations in Employment Disputes: The New Human Rights Dilemma?
- Maria Varaki, Introducing a Fairness-Based Theory of Prosecutorial Legitimacy before the International Criminal Court
- Arman Sarvarian, Codifying the Law of State Succession: A Futile Endeavour?
- Roaming Charges: Places of Strife: The Graffiti Wall by Tahrir Square, Cairo
- Critical Review of International Jurisprudence
- Miles Jackson, Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction
- Review Essay
- Ingo Venzke, Cracking the Frame? On the Prospects of Change in a World of Struggle
- Alexandra Kemmerer, Editing Rosa: Luxemburg, the Revolution, and the Politics of Infantilization