The latest issue of the International Journal of Transitional Justice (Vol. 10, no. 3, November 2016) is out. Contents include:
Entre instrument de protection des libertés fondamentales et menace à l’égard des mêmes libertés, l’activité pénale est un phénomène cerné de paradoxes. Les règles de protection des droits humains ont notamment pour ambition de contenir ces paradoxes : en encadrant le pouvoir de contrainte que l’autorité répressive est susceptible d’exercer sur les individus, ces normes essentielles doivent permettre de garantir une justice pénale qui demeure fidèle aux principes qu’elle entend défendre.
Mais, dès lors que le droit international des droits humains a été pensé et conçu pour circonscrire l’autorité des États, qu’en reste-t-il lorsqu’on cherche à l’appliquer à la Cour pénale internationale ? Dans quelle mesure et sur la base de quel(s) fondement(s) juridique(s) cet acteur répressif d’un genre nouveau est-il tenu au respect de règles auxquelles il n’a pas expressément souscrit ? Les spécificités de la justice pénale internationale – telles que la gravité des crimes ayant favorisé son émergence – réclament-elles une adaptation du niveau de protection accordé aux suspects et accusés internationaux ?
Cet ouvrage vise à apporter un éclairage sur ces questions et, ainsi, à cerner les contours de l’applicabilité des droits humains à l’action de la Cour pénale internationale.
At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of 'genocide' and 'crimes against humanity' had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany's divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a 'civilised' nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler's rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today's courtrooms from Arusha to The Hague.
Cultural genocide is the systematic destruction of traditions, values, language, and other elements that make one group of people distinct from another. Cultural genocide remains a recurrent topic, appearing not only in the form of wide-ranging claims about the commission of cultural genocide in diverse contexts but also in the legal sphere, as exemplified by the discussions before the International Criminal Tribunal for the Former Yugoslavia and also the drafting of the UN Declaration on the Rights of Indigenous Peoples. These discussions have, however, displayed the lack of a uniform understanding of the concept of cultural genocide and thus of the role that international law is expected to fulfil in this regard.
The Concept of Cultural Genocide: An International Law Perspective details how international law has approached the core idea underlying the concept of cultural genocide and how this framework can be strengthened and fostered. It traces developments from the early conceptualisation of cultural genocide to the contemporary question of its reparation. Through this journey, the book discusses the evolution of various branches of international law in relation to both cultural protection and cultural destruction in light of a number of legal cases in which either the concept of cultural genocide or the idea of cultural destruction has been discussed. Such cases include the destruction of cultural and religious heritage in Bosnia and Herzegovina, the forced removals of Aboriginal children in Australia and Canada, and the case law of the Inter-American Court of Human Rights in relation to Indigenous and tribal groups' cultural destruction.
In recent years States have made more and more extensive use of the International Court of Justice for the judicial settlement of disputes. Despite being declared by the Court's Statute to have no binding force for States other than the parties to the case, its decisions have come to constitute a body of jurisprudence that is frequently invoked in other disputes, in international negotiation, and in academic writing.
This jurisprudence, covering a wide range of aspects of international law, is the subject of considerable ongoing academic examination; it needs however to be seen against the background, and in the light, of the Court's structure, jurisdiction and operation, and the principles applied in these domains. The purpose of this book is thus to provide an accessible and comprehensive study of this aspect of the Court, and in particular of its procedure, written by a scholar who has had unique opportunities of close observation of the Court in action. This distillation of direct experience and expertise makes it essential reading for all those who study, teach or practise international law.
2016 is the year that the political consensus in favor liberalized international trade collapsed. Across the world, voters’ belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains made under existing arrangements. In the United States, both presidential candidates in this fall’s election have denounced the most recent effort to liberalize trade rules, the Trans-Pacific Partnership (TPP). The United Kingdom voted to pull out of the European Union, one of the world’s largest and most important free trade zones. Europe’s top trade negotiator has declared European trade policy “close to death” after Germany and France held up ratification of a free trade agreement with Canada.
In the face of this onslaught, trade’s defenders have run out of ideas. They point out that trade makes nations wealthier; that trade plays a minor role in creating economic inequality when compared with technological innovation; and that domestic policies unconnected to trade rules can more efficiently address economic inequality, and can do so without the need for international obligations that might be construed as limiting national sovereignty in matters of social policy. These views are right as a matter of economics. But politicians make trade rules, not economists. Right or wrong, voters’ belief that liberalizing trade leads to economic inequality creates a political constraint on trade liberalization.
This Essay proposes a way to save the political consensus in favor of free trade. In order to preserve and extend the international trade regime and the extraordinary gains it has produced since the end of World War II, the next generation of preferential trade agreements should include international obligations binding on developed countries to address domestic economic inequality. In other words, trade agreements must include obligations to redistribute the gains from trade within countries. This approach differs dramatically from that taken in existing trade agreements. Since the North America Free Trade Agreement (NAFTA), trade agreements have tried to protect those who stand to lose from free trade – principally labor interests – by including labor provisions in trade agreements. These provisions are outward-looking, however. They seek to raise labor and environmental standards in developing countries (e.g., Mexico) in order to limit the loss of jobs in developed countries (e.g., the United States). Critics of trade agreements have inadvertently bought into this orientation. They argue for removing investor-state dispute settlement (ISDS) from trade agreements. But removing ISDS does nothing to help those suffering economically in developed countries, and it hurts developed countries’ businesses’ when they operate overseas. The removal of ISDS thus would be both a major concession to trade’s critics and yet not one that advances their core objective of ensuring that trade agreements advance economic equality.
To be sure, governments do have domestic programs to help those negatively impacted by liberalized trade rules. Trade adjustment assistance (TAA) programs offer financial assistance to those who lose their jobs due to international trade. But recent studies in the United States suggest that TAA is ineffective. Moreover, unlike trade agreements, which are in force indefinitely, TAA expires every few years unless Congress reauthorizes it – a fight each time.
To put it bluntly, these approaches have failed. They have failed to staunch the loss of jobs and they have failed to persuade voters in developed countries that international trade is not a primary cause of economic inequality. An “Economic Development” chapter in future preferential trade agreements would commit developed countries to addressing their own economic inequality problems at home. An Economic Development chapter would create international obligations for member states to establish fiscal programs, such as educational and infrastructure spending, designed to boost economic opportunity for those left behind by growing inequality. These spending obligations would be indexed, so that they would rise and fall with the economic losses attributable to trade agreements. If such losses do not occur or taper off, nations’ spending commitments would naturally sunset.
These obligations would be enforced through reporting and monitoring requirements, similar to human rights treaties, and dispute settlement provisions that could lead to a loss of market access, the norm in trade agreements. Tying measures designed to address economic inequality directly into trade agreements would create political coalitions in favor of continuing efforts to liberalize trade. Those who do not benefit from trade agreements could still support them as a way to obtain greater domestic benefits. And those who benefit most from the liberalized trade rules could support redistribution as the price of further globalization. Trade agreements would create a commitment device allowing those who gain from trade to commit in advance to provide those who do not with a share of the spoils.
Si d’importants travaux ont été consacrés à l’exécution des arrêts et jugements d’une juridiction internationale particulière, au premier chef la Cour internationale de Justice, aucune étude de la question de l’exécution de leurs décisions n’a jusqu’à aujourd’hui été entreprise pour l’ensemble de ces juridictions, alors même que leur multiplication dans les domaines les plus variés du droit international en renouvelle considérablement l’importance et l’intérêt, tant dans l’ordre juridique international que dans les ordres juridiques nationaux. C’est à cet aspect délaissé du droit du contentieux international que s’attache le présent colloque de l’IHEI, qui réunit universitaires et praticiens, français et étrangers, pour en décliner les différentes facettes dans la matière du contentieux international général et dans celles de la protection des droits de l’homme, des échanges et de la concurrence, et de l’arbitrage transnational.
Der Internationale Pakt für politische und bürgerliche Rechte ist der wichtigste völkerrechtliche Vertrag zur Garantie universeller Menschenrechte und damit für die politische Betätigungsfreiheit. Politische Parteien nehmen für die Verwirklichung dieser Freiheit eine entscheidende Rolle ein, da sie individuelle Meinungen in staatliche Entscheidungen hineintragen können. Unter Bezugnahme auf die Vereinigungsfreiheit, das Wahlrecht, das Selbstbestimmungsrecht der Völker und den Minderheitenschutz zeigt Julian Rössler, dass die Parteienfreiheit auf universeller Ebene umfassend gewährleistet wird. Die völkerrechtliche Parteienfreiheit ist als Garant für eine Pluralität von Parteien und damit auch für politische Meinungsvielfalt in den Vertragsstaaten zu verstehen. Der Zivilpakt ist Grundlage für eine internationale Gemeinschaft von pluralistisch demokratischen Staaten.
Over recent decades, the responsibility for the past actions of the European colonial powers in relation to their former colonies has been subject to a lively debate. In this book, the question of the responsibility under international law of former colonial States is addressed. Such a legal responsibility would presuppose the violation of the international law that was applicable at the time of colonization. In the ‘Scramble for Africa’ during the Age of New Imperialism (1870-1914), European States and non-State actors mainly used cession and protectorate treaties to acquire territorial sovereignty (imperium) and property rights over land (dominium). The question is raised whether Europeans did or did not on a systematic scale breach these treaties in the context of the acquisition of territory and the expansion of empire, mainly through extending sovereignty rights and, subsequently, intervening in the internal affairs of African political entities.
Call for Papers
2017 ILA-ASIL ASIA-PACIFIC RESEARCH FORUM
The Geopolitics of International Law:
Contemporary Challenges for the Asia-PacificMay 19-20, 2017
Taipei, Taiwan, Republic of China
Hosted by:
Chinese (Taiwan) Society of International Law – Chinese (Taiwan) Branch of the International Law Association (ILA), in partnership with the Law in the Pacific Rim Region Interest Group of the American Society of International Law (ASIL) and the Research Center for International Legal Studies, National Chengchi University
I. Theme
The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 19-20, 2017 at Howard Civil Service International House in Taipei, Taiwan, ROC. The theme of the Research Forum is “The Geopolitics of International Law: Contemporary Challenges for the Asia-Pacific.” The Research Forum aims to provide a forum for academics, private practitioners and government attorneys to present works-in-progress across the spectrum of international and transnational law issues related to the Asia-Pacific. The tentative schedule for the Research Forum is as follows:
Friday, May 19, 2017: Registration and Welcome Reception
Saturday, May 20, 2017: Opening Ceremony and Forum SessionsII. Submission of Paper Proposals
The organizing committee welcomes proposals on any topic relating to international law with a focus on the Asia-Pacific. Subject areas include, but are not limited to, the following:
1. Law of the Sea (e.g., The South China Sea Arbitration)
2. International Economic Law (e.g., The development of the TPP, the RCEP and the AEC; the WTO and the Paris Agreement)
3. International Human Rights (e.g., The protection of the rights of women, LGBT and Aboriginal people)
4. Recognition/Non-recognition in International Law (e.g., Recognition policies of Asian states; recognition and sovereign immunity in domestic courts)
Paper proposals must be submitted to ila@nccu.edu.tw by January 10, 2017. A proposal of no more than 500 words should include the author’s name and full contact information. Please also provide a 1-2 page CV, including a list of recent publications in English.
The organizing committee welcomes proposal submissions from ILA and ASIL members, as well as from non-members. Junior faculty members are particularly welcome. The organizing committee will select proposals and announce the results in early February 2017. Paper presenters are required to submit complete, unpublished papers of no more than 15,000 words, inclusive of footnotes, by May 1, 2017.
Selected papers will be published in the Chinese (Taiwan) Yearbook of International Law and Affairs (Brill | Nijhoff). Articles of the Yearbook will also be made available on Westlaw and HeinOnline.
III. Other Information
Participants of the Research Forum are responsible for their own travel and accommodation expenses. The organizing committee is not in the position to provide financial support. However, registration fees will be waived for paper presenters. Registration details will be announced in March 2017. Other inquiries can be directed to the organizing committee (Professors Chun-i Chen, Yuka Fukunaga, Pasha Hsieh, Nigel Li, Torsten Stein, and Timothy Webster) by e-mail at ila@nccu.edu.tw.
The host institution of the Research Forum is the Chinese (Taiwan) Society of International Law, which was founded in 1958 with the purpose of promoting research on international law and crossstraits legal issues. As an ILA branch, the Society held the ILA’s 68th Taipei Biennial Conference in 1998, the ILA’s Asia-Pacific Regional Conferences in 1995 and 2011, and the ILA-ASIL Asia-Pacific Research Forum in 2013 and 2015. This Research Forum will reinforce the ILA-ASIL collaboration on international and transnational law research in the Asia-Pacific.
The latest issue of the Rivista di Diritto Internazionale (Vol. 99, no. 3, 2016) is out. Contents include:
The latest issue of Global Trade and Customs Journal (Vol. 11, no. 10, 2016) is out. Contents include:
The latest issue of Ocean Development & International Law (Vol. 47, no. 4, 2016) is out. Contents include:
The latest issue of the International Community Law Review (Vol. 18, nos. 3-4, 2016) is out. Contents include:
The Journal of International Criminal Justice has issued a call for submissions for a symposium on "The International Criminal Court’s Policies and
Strategies," to be published in 2017. Here's the call:
To mark 15 years since the coming into force of the Statute of the International Criminal Court (ICC) on 1 July 2002, the Journal of International Criminal Justice is pleased to announce a forthcoming symposium on ‘The International Criminal Court’s Policies and Strategies’ to be published in July 2017.
Almost 15 years into its existence - and notwithstanding almost continuous and at times justified criticism - the ICC continues to consolidate its role in the international community and expand the scope of its activities. Considering the significance and growing number of types of criminal conduct under scrutiny, and the possible repercussions of its activities on ongoing conflicts as well as on post-conflict and transitional processes of justice, the ICC has, from its inception, understood the necessity for a scrupulous, transparent and coherent planning of its activities. To this end, the Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future.
Of these, particular relevance attaches to the strategic plans and policy papers released by the Office of the Prosecutor (OTP),1 especially in an environment where prosecutorial choices are by nature discretionary and not dictated by the ICC Statute or any external actors. These documents have, on the one hand, touched upon themes such as the interests of justice, gender-based violence or crimes against children and, on the other, clarified procedural issues such as case selection and prioritization, preliminary examinations and victims’ participation.
The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at ICC OTP policies and strategies, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies.
Key questions or topics that could be examined include, but are not limited to:
- the need for clear and transparent policies available to the general public and to state parties, also in light of the complementarity system;
- who are the target audiences of such policies once published and what is their nature (binding or not);
- the methodology of drafting and then ensuring implementation of policies concerning such highly complex and contentious issues;
- the overall coherence of policies and strategic plans adopted so far by the OTP;
- the propriety and effectiveness of one (or more) of those policies currently available and suggestions for amendment or improvement; and
- gaps/areas where planning or transparency is most needed, possibly in the form of a policy paper, including concrete proposals for the content of such policies and strategies.
The Journal calls for submission of abstracts not exceeding 500 words on the questions described above, or related areas of interest, no later than 15 November 2016. After the abstracts are reviewed, in early December, the Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2017.
All papers submitted to the Journal are subject to its double-blind peer-review policy.
It is expected that the symposium will be published in the Journal in its third issue of the year in July 2017, in time to celebrate the anniversary of the entry into force of the ICC Statute on 1 July 2002.
For questions and further information, including on the Journal’s style requirements, please contact the Executive Editor at jicj@geneva-academy.ch.
1 Available online.
The American Branch of the International Law Association and the International Law Students Association will host International Law Weekend 2016, October 27-29, 2016, in New York City. The conference theme is "International Law 5.0." The program is here.
The latest issue of Climate Law (Vol. 6, nos. 3-4, 2016) is out. Contents include:
Stephen Porter's Benevolent Empire examines political-refugee aid initiatives and related humanitarian endeavors led by American people and institutions from World War I through the Cold War, opening an important window onto the "short American century." Chronicling both international relief efforts and domestic resettlement programs aimed at dispossessed people from Europe, Latin America, and East Asia, Porter asks how, why, and with what effects American actors took responsibility for millions of victims of war, persecution, and political upheaval during these decades. Diverse forces within the American state and civil society directed these endeavors through public-private governing arrangements, a dynamic yielding both benefits and liabilities. Motivated by a variety of geopolitical, ethical, and cultural reasons, these advocates for humanitarian action typically shared a desire to portray the United States, to the American people and international audiences, as an exceptional, benevolent world power whose objects of concern might potentially include any vulnerable people across the globe. And though reality almost always fell short of that idealized vision, Porter argues that this omnivorous philanthropic energy helped propel and steer the ascendance of the United States to its position of elite global power.
The messaging and administration of refugee aid initiatives informed key dimensions of American and international history during this period, including U.S. foreign relations, international humanitarianism and human rights, global migration and citizenship, and American political development and social relations at home. Benevolent Empire is thus simultaneously a history of the United States and the world beyond.
A striking development in climate governance is the emergence of systems for non-state actors to make voluntary commitments alongside state undertakings. Because these commitments involve diverse actors carrying out diverse activities in diverse settings, they provide unprecedented opportunities for experimentation and learning. Yet voluntary commitment systems (VCS) rarely promote experimentation and provide few systematic learning mechanisms. I argue, based on work with Duncan Snidal, for a more strongly experimental approach. First, VCS should encourage designed, controlled policy experiments consistent with scientific standards. Second, even where formal experiments are infeasible, VCS should treat commitments as informal experiments, orchestrating them to promote innovation, comparability, analysis and systematic learning. Collaborative initiatives and other actors can act as orchestrators, encouraging and supporting formal and informal experimentation through persuasion, technical and material assistance, recognition, third-party assistance and other incentives.
It is widely accepted that a state cannot treat a struggle with an organized non-state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations; President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple — not every riot or civil disturbance should be treated like a war.
But what if President Obama had invited Canada to bomb the protestors — once the United States consented, would all bets be off? Can an intervening state use force that would be illegal for the host state to use itself? The silence on this issue is dangerous, in no small part because these once-rare conflicts are now commonplace. States are increasingly using force against organized non-state actors outside of the states’ own territories — usually, though not always, with the consent of the host state. What constrains the scope of the host state’s consent? And can the intervening state always presume that consent is valid?
This Article argues that a host state’s authority to consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent-based interventions, the logic and foundational norms of the international legal order require both consent-giving and consent-receiving states to independently evaluate what legal regime governs — this will often turn on whether the intensity threshold has been met. If a non-international armed conflict exists, the actions of the intervening state are governed by international humanitarian law; if not, its actions are governed instead by its own and the host state’s human rights obligations.
Call for Papers: The 4th Annual Conference of the International Network on Transnational Legal and Political Theory
Bar-Ilan University Law Faculty, Israel, 7-8 May, 2017
http://www.transnationaltheorynetwork.com
The field of transnational and political theory is undergoing major changes. As trends of globalization intensify, cross-border legal, political, economic, social (and other) links increase, scholarship in the field is rapidly expanding and diversifying. Such times invite a reflection on the state of the field – mapping the main topics of discussion, assessing its major contributions thus far, identifying existing gaps, and critically thinking about possible trajectories to be pursued in the future.
The conference aims to provide scholars with an opportunity to present and discuss work in progress on key questions faced by transnational legal and political theory. Possible topics may include (but are not limited to):
- The role of formal and informal networks in transnational law
- The intersection/clash between different bodies of law in the transnational legal context (e.g., international human rights law/international humanitarian law, national/international law etc.)
- Private ordering in the transnational domain
- Political obligation in the global context
- The rule of law in the transnational arena
- The “glocal” effects of international and national institutions
- The rights, duties and accountability of non-state actors at the global level
- Community autonomy and quality of relations between political communities
- Social justice in transnational and international law
- Global governance and questions of legitimacy
We welcome dialogue across philosophical, historical, political, socio-economic and legal disciplines.
The conference will be hosted by Bar-Ilan Faculty of Law on 7-8 May 2017.
Prospective participants are invited to submit their applications by 15 November 2016, by email, to the conference conveners:
Prof. Oren Perez: oren.perez@biu.ac.il
Dr. Sivan Shlomo Agon: sivan.shlomo-agon@biu.ac.il
Dr. Ziv Bohrer: ziv.bohrer@biu.ac.ilThe Conference Academic Committee: Oren Perez, Sivan Shlomo Agon, Ziv Bohrer, Maks Del Mar and Nicole Roughan.
Please include in your submission:
- An abstract of 500 – 750 words (in English)
- Your name(s), affiliation(s) and contact information
- A brief bio
The conference will be held in English. Lunch and dinner will be covered for the conference participants. Participants are kindly requested to make their own travel arrangements. The organizers will provide a list of recommended hotels.
Any questions about the conference may be directed by email to the conference conveners in the email addresses indicated above.
This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using the ICTY’s judgments in Hadžihasanović as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.
Governments impose prudential regulations to ensure the stability of the financial sector and protect depositors and investors. However, these regulations may also restrict trade in financial services. The Annex on Financial Services of the World Trade Organization’s (‘WTO’) General Agreement on Trade in Services (‘GATS’) contains an exception allowing countries to take measures for ‘prudential reasons’ to protect the ‘integrity and stability of the financial system’ or to ‘protect investors, depositors, policy holders or persons to whom a fiduciary duty is owed by financial service suppliers’. Corresponding provisions appear in numerous other trade and investment agreements. The WTO has now issued its first ruling on the prudential exception in Argentina — Financial Services. The ruling of the Panel recognizes the policy space necessary for countries to determine their own prudential reasons for taking measures. As disputes regarding prudential exceptions are likely to increase in the coming years, two key challenges remain in applying such exceptions: adopting an integrated international approach to prudential regulation, given the diverse views held amongst countries; and identifying effective measures in preventing risks to the financial sector.
