Wednesday, July 19, 2017

Kassoti: Trading with Settlements: The International Obligations of the European Union with Regard to Economic Dealings with Occupied Territories

Eva Kassoti (Hague Univ. of Applied Sciences - Law) has posted Trading with Settlements: The International Obligations of the European Union with Regard to Economic Dealings with Occupied Territories. Here's the abstract:
This Policy Brief examines the EU’s practice in relation to trade agreements involving occupied territories by focusing on the case-studies of Palestine and Western Sahara with a view to ascertaining its legality and coherence. It is shown that several aspects of the agreements are highly problematic in the light of the EU’s international law obligations of non-recognition and non-assistance and that the Union has largely adopted an inconsistent approach in its economic dealings with the occupied territories in question. In conclusion, concrete policy recommendations are offered in order to ensure the legality and coherence of the EU’s trade policy in situations of occupation.

Hirsch: The Sociological Dimension of International Arbitration: The Investment Arbitration Culture

Moshe Hirsch (Hebrew Univ. of Jerusalem - Law) has posted The Sociological Dimension of International Arbitration: The Investment Arbitration Culture (in The Oxford Handbook of International Arbitration, Thomas Schultz & Federico Ortino eds., forthcoming). Here's the abstract:

Sociological analysis of international arbitration begins from the premise that individuals’ behaviour and normative choices are significantly affected by socio-cultural factors and processes. Thus, behaviour of actors participating in international arbitration is not isolated from its social context; and is rather deeply embedded in various sociological factors and processes (such as norms, socialization, or social control). This chapter is primarily focused on the investment arbitration community; analysing the interactions between the social features of this community and two significant issues in investment arbitration: (i) the application of human rights law by investment arbitrators, (ii) the constraining nature of norms regarding side arbitrator impartiality. While the first issue focuses on the particular features of the investment arbitration community and its interactions with another social group (the human rights community), the second issue regarding arbitrators' impartiality is explored by employing several theoretical perspectives relating to the structure-agency debate in sociological literature.

Section II briefly sketches out the features of the investment arbitration community. Sections III and IV illustrate the scholarly and practical value of the sociological perspective by analysing two prominent issues in contemporary international investment law. Section III presents a sociological analysis of the socio-cultural interactions between the investment arbitration and human rights communities, and their impacts on the limited application of international human rights law by investment tribunals. Section IV addresses one of the fundamental questions in sociological literature in the (limited) sphere of the investment arbitration community: to what extent and how do cultural patterns influence arbitrators? To answer this question, this Section succinctly employs three sociological theoretical lenses (the structural-functional, symbolic-interactionist and Swidler's approaches) to examine some recent empirical results regarding investment arbitrators' impartiality. Section V briefly recaps the main conclusions drawn from the preceding sections and offers some directions regarding future research work in this field.

Jain: Radical Dissents in International Criminal Trials

Neha Jain (Univ. of Minnesota - Law) has posted Radical Dissents in International Criminal Trials (European Journal of International Law, forthcoming). Here's the abstract:
International criminal law, for much of its history, has been a law characterized by dissents. However, international law scholarship has largely ignored the role of the dissenting opinion in shaping the discourse of international criminal law. This Article critically examines the nature and function of dissents at international criminal tribunals at a particularly crucial moment in the life of these courts, when the project of establishing accountability of mass atrocity through criminal trials is increasingly under attack. The Article argues that the dissenting opinion is a crucial legal device that can have a transformative potential in international criminal adjudication through its creation of a civic space for contestation that paradoxically shores up the legitimacy of the international criminal trial. To this end, it constructs a discrete category of dissenting opinions at international criminal courts: “radical dissents”. The content and rhetorical style of a radical dissent enables actors invested in the project of international criminal justice to use it as a vital dissentient voice both within and outside the courtroom. Agents who operate within the confines of the legal trial, such as defendants, lawyers, appellate chambers, and future judges, may channel its authority to challenge the idiom in which the majority judgment speaks. Likewise, the radical dissent could provide a legal language through which academics, victims, civil society, and other affected communities continue to grapple with constructing and coming to terms with events that defy human understanding.

AJIL Unbound Symposium: Framing Global Migration Law - Part II

AJIL Unbound has posted a symposium on "Framing Global Migration Law - Part II," the second in a three-part symposium that began here. The symposium includes an introduction by Jaya Ramji-Nogales and Peter J. Spiro and contributions by Jacqueline Bhabha, E. Tendayi Achiume, Janie A. Chuang, Ibrahim Awad, Diego Acosta, Loren B. Landau, and Martin Ruhs.

Tuesday, July 18, 2017

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 21, no. 7, 2017) is out. Contents include:
  • Eliza Watt, ‘The right to privacy and the future of mass surveillance’
  • Sarah Combellick-Bidney, Reproductive rights as human rights: stories from advocates in Brazil, India and South Africa
  • Shabnam Moinipour, Refugees against refugees: the Iranian Migrants’ perception of the human rights of Afghans in Iran
  • Louise E. Wise, Social death and the loss of a ‘world’: an anatomy of genocidal harm in Sudan
  • Ron Dudai, Entryism, mimicry and victimhood work: the adoption of human rights discourse by right-wing groups in Israel
  • Julia Chaitin, Shoshana Steinberg & Sharon Steinberg, ‘BDS – it’s complicated’: Israeli, Jewish, and others’ views on the boycott of Israel
  • Mona Paré & Tate Chong, Human rights violations and Canadian mining companies: exploring access to justice in relation to children’s rights
  • Elif Celik, The role of CRPD in rethinking the subject of human rights
  • Paul Gready & Simon Robins, Rethinking civil society and transitional justice: lessons from social movements and ‘new’ civil society
  • Sharifah Rahma Sekalala, Who gets to sit at the table? Interrogating the failure of participatory approaches within a right to health framework
  • Aliraza Javaid, Moving through shadows: police, policing and male rape

New Issue: Journal of International Trade Law and Policy

The latest issue of the Journal of International Trade Law and Policy (Vol. 16, no. 1, 2017) is out. Contents include:
  • Ludo Cuyvers, Ermie Steenkamp, Wilma Viviers, Riaan Rossouw, & Martin Cameron, Identifying Thailand’s high-potential export opportunities in ASEAN+3 countries
  • Ida Madieha Abdul Ghani Azmi & Rokiah Alavi, In search for support for the extension of copyright term under the Trans-Pacific Partnership Agreement: A preliminary study of the Malaysian music industry
  • Antoine Martin & Bryan Mercurio, Doha dead and buried in Nairobi: lessons for the WTO

New Issue: Kokusaihō gaikō zasshi / Journal of International Law and Diplomacy

The latest issue of Kokusaihō gaikō zasshi / Journal of International Law and Diplomacy (Vol. 115, no. 4, January 2017) is out. Contents include:
  • Setsuko Aoki, International Law Applicable to Malicious Cyber Activities against Space Assets
  • Tadashi Mori, Legal Structure of the Right of Collective Self-Defence
  • Tetsuo Morishita, The Relationship of Choice of Law Approach and Recognition Approach in Some International Business Law Issues

New Volume: Anuario Colombiana de Derecho Internacional

The latest volume of the Anuario Colombiana de Derecho Internacional (Vol. 10, 2017) is out. Contents include:
  • Maurice Kamto, Remarques sur l'identification et la preuve d’une pratique ultérieure établissant un accord des États ou des organisations internationales sur l'interprétation d'un traite
  • Ana Gemma López, Aplicación de tratados sucesivos concernientes a la misma materia. Análisis del artículo 30 de la Convención de Viena sobre Derechos de los Tratados
  • María Teresa Infante Caffi, The Pact of Bogotá: cases and legal challenges
  • Juan José Quintana, Cuestiones de procedimiento en los casos Costa Rica c. Nicaragua y Nicaragua c. Costa Rica ante la Corte Internacional de Justicia
  • Lucius Caflisch, Attribution, responsibility and jurisdiction in International Human Rights Law
  • Djamchid Momtaz, L’obligation de ne pas prêter aide ou assistance au maintien d’une situation créée par la violation d’une norme impérative du droit international général
  • Olivier Corten, Faut-il voir le mâle partout ? Les théories féministes à l’épreuve du droit de la paix et de la sécurité internationales
  • Carlos Portales & Diego Rodríguez-Pinzón, Building Prevention to Protect: The Inter-American Human Rights System
  • Carlos Enrique Arévalo Narváez & Paola Andrea Patarroyo, Treaties over time and Human Rights: A Case Law analysis of the Inter-American Court of Human Rights Ramírez
  • Mathias Audit, La coexistence de procédures contentieuses en matière d’investissements étrangers
  • Laurence Boisson de Chazournes, Environmental Protection and Investment Arbitration
  • Soledad Torrecuadrada García-Lozano, Las obras de arte del Estado y su inmunidad

Monday, July 17, 2017

New Issue: Journal of International Organizations Studies

The latest issue of the Journal of International Organizations Studies (Vol. 8, no. 1, Spring 2017) is out. Contents include:
  • Adrian Ratsimbaharison, Regional Integration vs. Globalization: A Social network analysis of the trade within and outside the Southern African Development Community (SADC)
  • Patrick Theiner, Donor Choice in Multilateral Health Aid

New Issue: Transnational Environmental Law

The latest issue of Transnational Environmental Law (Vol. 6, no. 2, July 2017) is out. Contents include:
  • Editorial
    • Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Dan Farber, Bruce Huber, & Josephine van Zeben, The Maturing of Transnational Environmental Law
  • Articles
    • Veerle Heyvaert, The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation
    • Stephen J. Turner, The Use of ‘Macro’ Legal Analysis in the Understanding and Development of Global Environmental Governance
    • Jessica F. Green & Graeme Auld, Unbundling the Regime Complex: The Effects of Private Authority
    • Elena Merino Blanco & Ben Pontin, Litigating Extraterritorial Nuisances under English Common Law and UK Statute
    • Jona Razzaque, Payments for Ecosystem Services in Sustainable Mangrove Forest Management in Bangladesh
    • Celeste M. Black, Taxation of Cross-Border Transfers of Carbon Emission Allowances under Linked Emissions Trading Schemes
    • Ed Couzens, Size Still Matters, Although It Shouldn’t: The Debate on Small Cetaceans, IWC 65, and Monaco’s Resolution on Highly Migratory Cetaceans

New Issue: Asian Journal of International Law

The latest issue of the Asian Journal of International Law (Vol. 7, no. 2, July 2017) is out. Contents include:
  • Amit Kumar Sinha, Non-Precluded Measures Provisions in Bilateral Investment Treaties of South Asian Countries
  • Muhammad A. Sayeed, Revisiting the Regime of Trademark Protection in Bangladesh: TRIPS Compatibility and Ramifications
  • Dilini Pathirana, An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications
  • Yvette Anthony, The Evolution of Indirect Expropriation Clauses: Lessons from Singapore’s BITs/FTAs
  • Michael Ramsden, Uniting for MH17
  • Bryan H. Druzin, Why does Soft Law Have any Power Anyway?

Inaugural Volume: Ethiopian Yearbook of International Law

The inaugural volume of the Ethiopian Yearbook of International Law (2016) is out. Contents include:
  • Zeray Yihdego, Melaku Geboye Desta, & Fikremarkos Merso, Towards Rebalancing the Narrative of International Law
  • Makane Moïse Mbengue & Najib Messihi, The South West Africa Cases: 50 Years Later
  • Jean Allain, Decolonisation as the Source of the Concepts of Jus Cogens and Obligations Erga Omnes
  • Getachew A. Woldemariam, The Place of International Law in the Ethiopian Legal System
  • Derk Bienen, Ethiopia’s WTO Accession at the Crossroads
  • Melaku Geboye Desta, Competition for Natural Resources and International Investment Law: Analysis from the Perspective of Africa
  • Duncan French, The Global Goals: Formalism Foregone, Contested Legality and “Re-imaginings” of International Law
  • Olivia Woolley, Developing Countries Under the International Climate Change Regime: How Does the Paris Agreement Change Their Position?
  • Salman M.A. Salman, The Declaration of Principles on the Grand Ethiopian Renaissance Dam: An Analytical Overview
  • Jasmin Hansohm & Zeray Yihdego, The South Sudan Crisis: Legal Implications and Responses of the International Community

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 16, no. 3, July 2017) is out. Contents include:
  • Erin Hannah, James Scott, & Rorden Wilkinson, Reforming WTO-Civil Society Engagement
  • Gilles Muller, Troubled Relationships under the GATS: Tensions between Market Access (Article XVI), National Treatment (Article XVII), and Domestic Regulation (Article VI)
  • Nicolas Lamp, The ‘Development’ Discourse in Multilateral Trade Lawmaking
  • Silke Trommer, The WTO in an Era of Preferential Trade Agreements: Thick and Thin Institutions in Global Trade Governance
  • Faizel Ismail, The AGOA Extension and Enhancement Act of 2015, the SA–US AGOA negotiations and the Future of AGOA

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 66, no. 3, July 2017) is out. Contents include:
  • Articles
    • Sangeetha Pillai & George Williams, Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations
    • Adamantia Rachovitsa, The Principle of Systemic Integration in Human Rights Law
    • Massimo Lando, Judicial Uncertainties Concerning Territorial Sea Delimitation Under Article 15 of the United Nations Convention on the Law of the Sea
    • Anna Chadwick, Regulating Excessive Speculation: Commodity Derivatives and the Global Food Crisis
    • Jérémie Gilbert, Litigating Indigenous Peoples’ Rights in Africa: Potentials, Challenges and Limitations
    • Tobias Lutzi, Internet Cases in EU Private International Law—Developing a Coherent Approach
  • Shorter Article and Notes
    • Hélène Lambert, Temporary Refuge from War: Customary International Law and the Syrian Conflict
    • Marek Martyniszyn, Japanese Approaches to Extraterritoriality in Competition Law
    • ? Luca Enriques, A Harmonized European Company Law: Are We There Already?

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 15, no. 2, May 2017) is out. Contents include:
  • Current Events: Syria, International Criminal Justice, and the International, Impartial and Independent Mechanism
    • Florian Jeßberger, Foreword
    • Christian Wenaweser & James Cockayne, Justice for Syria?: The International, Impartial and Independent Mechanism and the Emergence of the UN General Assembly in the Realm of International Criminal Justice
    • Alex Whiting, An Investigation Mechanism for Syria: The General Assembly Steps into the Breach
    • Ingrid Elliott, ‘A Meaningful Step towards Accountability’?: A View from the Field on the United Nations International, Impartial and Independent Mechanism for Syria
  • Articles
    • Jennifer DePiazza, Denial of Fair Trial as an International Crime: Precedent for Pleading and Proving it under the Rome Statute
    • Elena Kantorowicz-Reznichenko Misidentification of Victims under International Criminal Law: An Attempted Offence?
    • Marc Schack, ‘Going to The Hague’ as Coercive Leverage: The Palestinian ICC Policy during the 2014 Operation Protective Edge
    • Sandra C. Wisner, The Invisible Hand: International Criminal Responsibility of Business Leaders for Aiding and Abetting the Forcible Transfer of Population in the Occupied Palestinian Territory
  • National Prosecution of International Crimes: Legislation and Cases
    • Max du Plessis & Guénaël Mettraux, South Africa’s Failed Withdrawal from the Rome Statute: Politics, Law, and Judicial Accountability
    • Gennady Esakov International Criminal Law in Russia: Missed Crimes Waiting for a Revival

Sunday, July 16, 2017

Hilpold: Unilateralism in Refugee law—Austria’s Quota Approach Under Scrutiny

Peter Hilpold (Universität Innsbruck - Law) has posted Unilateralism in Refugee law—Austria’s Quota Approach Under Scrutiny (Human Rights Review, forthcoming). Here's the abstract:
In the aftermath of the “Arab Spring” and of crumbling state structures, an exodus of unknown proportion from the Near East and from Northern Africa has set in and was further exacerbated by civil war and ISIS terror rule over large territories in the Near East. As a consequence, thousands of refugees came to Europe. Many of them fulfilled the conditions for non-refoulement according to Article 33 of the Geneva Convention on the Law of Refugees of 1951 or were at least entitled for temporary protection according to the Common European Asylum System. These instruments did not, however, take into consideration situations of mass influx and neither is there an efficient mechanism for burden sharing within the EU in place. Some countries where overwhelmed by these migration flows. In this contribution, particular attention will be given to the reactions to these developments by the Austrian government. In Austria, as a consequence of mounting pressure by considerable parts of the population demanding a halt to this migration, the government adopted or announced a series of measures that, if implemented, will constitute a blatant violation of international law. This holds true, in particular, for the so-called upper limit (“Obergrenze”) for asylum seekers. Legal academia in Austria in part was silent as to these events, in part sustained it after having been engaged for a legal. It is contended here that unilateralism may be effective in a short-time perspective, but the long-term consequences should not be overlooked. It would be better to work on a genuine international burden-sharing mechanism even though this approach is more difficult to sell to national constituencies.

New Issue: Business and Human Rights Journal

The latest issue of the Business and Human Rights Journal (Vol. 2, no. 1, January 2017) is out. Contents include:
  • Articles
    • Shane Darcy, ‘The Elephant in the Room’: Corporate Tax Avoidance & Business and Human Rights
    • Bonita Meyersfeld, Empty Promises and the Myth of Mining: Does Mining Lead to Pro-Poor Development?
    • Benjamin Thompson, Determining Criteria to Evaluate Outcomes of Businesses’ Provision of Remedy: Applying a Human Rights-Based Approach
    • Nora Götzmann, Human Rights Impact Assessment of Business Activities: Key Criteria for Establishing a Meaningful Practice
    • Andreas Graf & Andrea Iff, Respecting Human Rights in Conflict Regions: How to Avoid the ‘Conflict Spiral’
    • Lucy Amis, Mega-Sporting Events and Human Rights—A Time for More Teamwork?
  • Developments in the Field
    • Hiroshi Ishida & Hiroki Wada, The Implementation of the UN Guiding Principles into Daily Business Operations and the 2020 Tokyo Olympic and Paralympic Games
    • Fréderic Foromo Loua & Jonathan Kaufman, Molmou v Guinea: The ECOWAS Court of Justice at the Service of its Member States
    • Baskut Tuncak, Lessons from the Samarco Disaster1
    • Deanna Kemp & John R Owen, Corporate Readiness and the Human Rights Risks of Applying FPIC in the Global Mining Industry
    • Lívia Menezes Pagotto, Leticia Arthuzo, Aron Belinky, Daniela Gomes Pinto, & Mario Monzoni, Incorporating Children and Adolescents’ Rights in Corporate Management: A Tool Based on Strategic Maps and the Sustainability Balanced Scorecard

New Issue: Global Constitutionalism

The latest issue of Global Constitutionalism (Vol. 6, no. 1, March 2017) is out. Contents include:
  • Editorial
    • Mattias Kumm, Jonathan Havercroft, Jeffrey Dunoff, & Antje Wiener, The end of ‘the West’ and the future of global constitutionalism
  • Special Issue: Constitution-making and political settlements in times of transition
    • Christine Bell, Foreword
    • Christine Bell, Introduction: Bargaining on constitutions – Political settlements and constitutional state-building
    • Charmaine Rodrigues, Letting off steam: Interim constitutions as a safety valve to the pressure-cooker of transitions in conflict-affected states?
    • Silvia Suteu, Eternity clauses in post-conflict and post-authoritarian constitution-making: Promise and limits
    • Tom Gerald Daly, The alchemists: Courts as democracy-builders in contemporary thought
    • Jenna Sapiano, Courting peace: Judicial review and peace jurisprudence

Madsen: Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?

Mikael Rask Madsen (Univ. of Copenhagen - Law) has posted Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe? (Journal of International Dispute Settlement, forthcoming). Here's the abstract:
Has the Brighton Declaration produced a New Deal on European human rights in terms of engendering a new and more central role to national legal and political institutions? A greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), the articles concludes that the ECtHR is indeed providing more subsidiarity following the Brighton Declaration. It does so by a greater use of the terms “margin of appreciation” and “wide(r) margin,” and particularly with regard to two areas of law: Art. 8 on the right to privacy and Art. 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is very uneven across the member states. The old Western member states generally benefit far more from these new directions in the ECtHR’s jurisprudence. But contrary to popular belief, vocal critiques of the system are not given more deference according to this analysis. A final more general conclusion follows from these findings, namely that the ECtHR is receptive to political signals and does not operate in isolation from politics as it is often claimed. Although currently merely soft law documents, the Brighton Declaration and associated Protocols have triggered change at the Court in the direction set out in these documents and events. This has theoretical implications for the understanding of the evolution of international courts.

Warner: The African Union and Article 4(h): Understanding Changing Norms of Sovereignty and Intervention in Africa Through an Integrated Levels-of-Analysis Approach

Jason Warner (U.S. Military Academy - Department of Social Sciences and Combating Terrorism Center) has published The African Union and Article 4(h): Understanding Changing Norms of Sovereignty and Intervention in Africa Through an Integrated Levels-of-Analysis Approach (in Democracy, Constitutionalism, and Politics in Africa: Historical Contexts, Developments, and Dilemmas, Eunice N. Sahle ed., 2017). Here's the abstract:
The emergence of the African Union (AU) in 2002 was notable for a number of reasons, especially its inclusion of Article 4(h)—which explicitly allows for the AU to intervene in member states’ affairs—in its Constitutive Act. What caused the inclusion of the highly progressive Article 4(h), especially given the states’ historical commitments to a norm of non-intervention? This chapter suggests that to understand the normative shifts leading to the inclusion of Article (h) in the AU’s Constitutive Act, one must employ an explicitly multi-causal, integrated levels-of-analysis approach, taking into account inputs that informed Article 4(h)’s development at the systemic, pan-African, regional, statist, and leadership levels of analysis.

New Volume: Australian Year Book of International Law

The latest volume of the Australian Year Book of International Law (Vol. 34) is out. Contents include:
  • Kirby Lecture in International Law — 2016
    • Justin Gleeson, Australia's Increasing Enmeshment in International Law Dispute Resolution: Implications for Sovereignty
  • South China Sea Agora
    • Natalie Klein, Islands and Rocks after the South China Sea Arbitration
    • Imogen Saunders, The South China Sea Award, Artificial Islands and Territory
    • Tim Stephens, The Collateral Damage from China's 'Great Wall of Sand': The Environmental Dimensions of the South China Sea Case
    • David Letts, Rob Mclaughlin & Hitoshi Nasu, Maritime Law Enforcement and the Aggravation of the South China Sea Dispute: Implications for Australia
    • Tara Davenport, Legal Implications of the South China Sea Award for Maritime Southeast Asia
  • Articles
    • Robin M Smith, State Responsibility and Genocidal Intent: A Three Test Approach
    • Thomas Wooden, The 1954 Hague Convention: Aboriginal and Torres Strait Islander Sacred Sites as Cultural Property
    • Alison Pert, The Development of Australia's International Legal Personality

New Volume: Anuario Español de Derecho Internacional

The latest volume of the Anuario Español de Derecho Internacional (Vol. 32, 2016) is out. Contents include:
  • Estudios Doctrinales
    • Cástor Miguel Díaz Barrado, Los objetivos de desarrollo sostenible: un principio de naturaleza incierta y varias dimensiones fragmentadas
    • Carlos R. Fernández Liesa, Transformaciones del Derecho internacional por los objetivos de desarrollo sostenible
    • Antonio Blanc Altemir, La incidencia del «factor ruso» en la seguridad energética europea. Especial referencia al sector del gas
    • Pilar Pozo Serrano, El uso de la fuerza contra el Estado Islámico en Irak y Siria: problemas de fundamentación jurídica
    • Félix Vacas Fernández, La acción concertada de la Comunidad Internacional para la protección del patrimonio cultural en conflictos armados: Mali como paradigma
    • Florabel Quispe Remón, La protección de los derechos humanos en el sistema interamericano: su evolución y una visión actual
    • Juan Jorge Piernas López, 100 años de libre determinación de los pueblos. La evolución del principio
    • Jordi Feo Valero, La respuesta del sistema de Naciones Unidas ante la situación de crisis prolongada en Haití
    • Eimys Ortiz, Unión Europea-Cuba: relación compleja, futuro incierto
    • Dorothy Estrada Tanck, Seguridad Humana y Derecho Internacional Público
  • Notas
    • Miguel Yagües Palazón, La capacidad ofensiva de los interceptores cinéticos exo-atmosféricos en el marco del Derecho espacial y humanitario: usos y restricciones
    • Belén del Río, La gobernanza global de la energía
    • Rafael Pedro Martínez Sánchez, Los instrumentos de gestión de las fronteras exteriores de la Unión Europea ante los flujos migratorios masivos

Carrillo-Santarelli: Direct International Human Rights Obligations of non-State Actors

Nicolás Carrillo-Santarelli (Universidad de La Sabana - Law) has published Direct International Human Rights Obligations of non-State Actors: A Legal and Ethical Necessity (Wolf Legal Publishers 2017). Here's the abstract:
In this book, addressing the reality that non-state actors do violate human rights in practice, which cannot be overlooked, Prof. Nicolás Carrillo-Santarelli argues that the foundations and main principles of international human rights law call for the regulation of direct nonstate obligations and responsibilities, given the potential failure of domestic actions and the limits of voluntary strategies. In part I, the author presents his ideas on why non-state abuses should be regarded as human rights violations and wrongful acts. In this sense, Chapter 1 explores why the protection of human dignity, being non-conditional, cannot depend on the presence of a State abuser. Chapter 2 explores the idea that every conduct contrary to human rights has legal relevance and requires a correlative appropriate legal response. Chapter 3 reinforces the previous ideas in light of the peremptory principle of non-discrimination; with Chapter 4 providing suggestions on when direct international action should take place. Part II, afterwards, studies why direct protection from non-state violations is possible and what legal mechanisms and institutions permit to make it effective. In Chapter 5, the author argues that the notion of international legal personality is not an obstacle since regarding addressees as subjects highlights the possibility of there being direct non-state international duties, which would not weaken existing human rights protections. Chapter 6 presents the argument that there are already implied human rights obligations of non-state actors, and that complementary obligations should be created. Chapter 7 explores the idea that non-state responsibility can coexist with that of other participants in violations, and that non-state responsibility is often a precondition of full reparations. The fi nal Chapter turns to the examination of the mechanisms that can be used to respond to or prevent non-state violations of human rights law. The book is based on the idea that the protagonists of human rights law are individuals, who deserve protection from all abusers, be them States, armed groups, international organizations, or other actors.

Kolb: Good Faith in International Law

Robert Kolb (Univ. of Geneva - Law) has published Good Faith in International Law (Hart Publishing 2017). Here's the abstract:
There is a great degree of controversy on the proper complexion and role of general principles of law in the international legal order. Opinions range from total rejection of some types of principles to the most enthusiastic endorsement of principles as the necessary oil for the many complex wheels of the legal order. In this book one of the leading public lawyers of his generation explores the concept of good faith and its role in international law. Rather than offer a detailed, comprehensive examination, Kolb aims to map the true points of gravity of the principle of good faith in the international legal order. In so doing, he illustrates how the various legal institutions who operate in the sphere of public international law allow the principle of good faith to unfold.

Saturday, July 15, 2017

Tibori-Szabó & Hirst: Victim Participation in International Criminal Justice: Practitioners’ Guide

Kinga Tibori-Szabó (Kosovo Specialist Chambers) & Megan Hirst (Doughty Street Chambers) have published Victim Participation in International Criminal Justice: Practitioners’ Guide (Asser Press 2017). Contents include:
  • Kinga Tibori-Szabó & Megan Hirst, Introduction: Victim Participation in International Criminal Justice
  • Mélissa Fardel & Nuria Vehils Olarra, The Application Process: Procedure and Players
  • Heloise Dumont, Requirements for Victim Participation
  • Mariana Pena, The Role of Intermediaries and Third Parties in Victim Participation
  • Megan Hirst, Legal Representation of Participating Victims
  • Yaiza Alvarez Reyes, The Protection of Victims Participating in International Criminal Justice
  • Caroline Walter, Victims’ Rights and Obligations as Regards the Case File: Access, Disclosure and Filing Submissions
  • Peter Haynes, Victims’ Lawyers in the Courtroom: Opening and Closing Statements, Questioning Witnesses, Challenging and Presenting Evidence
  • Daniella Rudy & Megan Hirst, Victims Appearing in Person Before a Chamber
  • Ellie Smith, Victims in the Witness Stand: Socio-Cultural and Psychological Challenges in Eliciting Victim Testimony
  • Elizabeth A. Turchi, Victims’ Attendance in the Courtroom to Observe Proceedings
  • Kinga Tibori-Szabó, The Rights of Participating Victims to Appeal and Participate in the Appeal Against Interlocutory Decisions and Trial Judgments
  • Carla Ferstman, Reparations, Assistance and Support
  • Megan Hirst, Termination of Victim Participation
  • Kinga Tibori-Szabó, Barbara Bianchini, Anushka Sehmi, & Silke Studzinsky, Communication Between Victims’ Lawyers and Their Clients
  • Rianne Letschert, International Criminal Proceedings—An Adequate Tool for Victims’ Justice?

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 61, no. 7, August 2017) is out. Contents include:
  • Johann Park & Valentina Bali, International Terrorism and the Political Survival of Leaders
  • Dennis M. Foster, Inter Arma Silent Leges? Democracy, Domestic Terrorism, and Diversion
  • Lindsay Reid, Finding a Peace that Lasts: Mediator Leverage and the Durable Resolution of Civil Wars
  • Curtis Bell & Jun Koga Sudduth, The Causes and Outcomes of Coup during Civil War
  • Victor Asal, Justin Conrad, & Nathan Toronto, I Want You! The Determinants of Military Conscription
  • Jonathan D. Caverley & Yanna Krupnikov, Aiming at Doves: Experimental Evidence of Military Images’ Political Effects
  • J. Tyson Chatagnier & Kerim Can Kavaklı, From Economic Competition to Military Combat: Export Similarity and International Conflict
  • Vincent Bauer, Keven Ruby, & Robert Pape, Solving the Problem of Unattributed Political Violence
  • Kenneth A. Schultz, Mapping Interstate Territorial Conflict: A New Data Set and Applications

Friday, July 14, 2017

Suttle: What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article XX GATT

Oisin Suttle (Univ. of Sheffield - Law) has published What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article XX GATT (Modern Law Review, Vol. 80, no. 4, pp. 569–599, July 2017). Here's the abstract:
Existing theories of WTO law cannot adequately explain the form or content of the GATT exceptions, in particular Article XX(a) Public Morals. Nor, in consequence, can they satisfactorily answer the interpretive questions they raise. This article explains Article XX in terms of self-determination as a political and moral value, and the choices it mandates peoples make for themselves. Drawing on debates in contemporary political philosophy, it distinguishes three categories of argument for self-determination: intrinsic, expressive and instrumental, each having implications for the scope of the choices a self-determining community must make for itself. This account of self-determination in trade regulation is used to reconstruct Article XX, both explaining the individual provisions, and suggesting how these might be developed and interpreted. It concludes by examining Article XX(a) in detail, highlighting the interpretive questions public morals pose, and how understanding Article XX in terms of self-determination suggests these should be answered.

Geiß, Zimmermann, & Haumer: Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law

Robin Geiß (University of Glasgow), Andreas Zimmermann (Universität Potsdam), & Stefanie Haumer (German Red Cross) have published Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge Univ. Press 2017). Contents include:
  • Stefanie Haumer, Robin Geiss & Andreas Zimmermann, Introduction: the international Red Cross and Red Crescent Movement and the development of international humanitarian Law
  • Robert Heinsch, The International Committee of the Red Cross and the Geneva Conventions of 1949
  • Michael Bothe, The International Committee of the Red Cross and the additional protocols of 1977
  • Jean-Marie Henckaerts, The International Committee of the Red Cross and the clarification of customary international humanitarian law
  • Robert Cryer, The International Committee of the Red Cross' 'interpretive guidance on the notion of direct participation in hostilities': see a little light
  • Kathleen Lawand & Isabel Robinson, Development of treaties limiting or prohibiting the use of certain weapons: the role of the International Committee of the Red Cross
  • Carsten Stahn, Between 'constructive engagement', 'collusion' and 'critical distance': the International Committee of the Red Cross and the development of international criminal law
  • Robin Geiss & Andreas Zimmermann, The International Committee of the Red Cross – a unique actor in the field of international humanitarian law creation and progressive development

New Issue: American Journal of International Law

The latest issue of the American Journal of International Law (Vol. 111, no. 1, January 2017) is out. Contents include:
  • Editorial Comment
    • José E. Alvarez & Benedict Kingsbury, AJIL AT 111
  • Articles
    • Steven R. Ratner, Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
    • Fleur Johns, Data, Detection, and the Redistribution of the Sensible in International Law
  • Notes and Comments
    • René Urueña, Prosecutorial Politics: The ICC's Influence in Colombian Peace Processes, 2003–2017
  • International Decisions
    • Uzma S. Bishop-Burney, Prosecutor v. Ahmad Al Faqi Al Mahdi
    • Monica Hakimi, In Re Akhbar Beirut & Al Amin
    • Sherzod Shadikhodjaev, India—Certain Measures Relating to Solar Cells and Solar Modules
    • Lucas Lixinski, Case of the Kaliña and Lokono Peoples v. Suriname
  • Contemporary Practice of the United States Relating to International Law
    • Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States Relating to International Law
  • Recent Books on International Law
    • Tom Ginsburg, reviewing A World of Struggle: How Power, Law and Expertise Shape Global Political Economy, by David Kennedy
    • John R. Crook, reviewing Failings of the International Court of Justice, by A. Mark Weisburd
    • Michael P. Scharf, reviewing Custom’s Future: International Law in a Changing World, edited by Curtis A. Bradley
    • Anna Spain Bradley, reviewing The Puzzle of Peace: The Evolution of Peace in the International System, by Gary Goertz, Paul F. Diehl, and Alexandru Balas
    • Sumudu Atapattu, reviewing International Environmental Law and Governance, edited by Malgosia Fitzmaurice and Duncan French

Call for Submissions: Investor State Dispute Settlement (MJIEL)

The Manchester Journal of International Economic Law has issued a call for submissions for a special issue on "Investor State Dispute Settlement." Here's the call:

The MJIEL invites contributions for a special issue to be published in September 2018 on the theme 'ISDS in the era of instability'. Instability is used to describe wholesale regulatory changes brought about by the Trump administration in the USA and Brexit in the UK. The issue will focus on whether rights established by bilateral and multilateral investment treaties, threatened by recent policy shifts, can be defended in arbitral tribunals.

Abstract submissions of up to 300 words to Dr. Ioannis Glinavos (i.glinavos@westminster.ac.uk) by 01.01.18. Acceptance will be notified by 01.02.18. Full papers in house style due 01.06.18.

Thursday, July 13, 2017

Hayashi: The U.S. Airstrike After the Use of Chemical Weapons in Syria: National Interest, Humanitarian Intervention, or Enforcement Against War Crimes?

Mika Hayashi (Kobe Univ. - Graduate School of International Cooperation Studies) has posted an ASIL Insight on The U.S. Airstrike After the Use of Chemical Weapons in Syria: National Interest, Humanitarian Intervention, or Enforcement Against War Crimes?

Wiener: Responsibility Contestations, A Challenge to the Moral Authority of the UN Security Council

Antje Wiener (Universität Hamburg - Political Science) has posted Responsibility Contestations, A Challenge to the Moral Authority of the UN Security Council (in Moral Agency and the Politics of Responsibility, Tobias Debiel, Peter Finkenbusch, Elena Sondermann, & Cornelia Ulbert eds., forthcoming). Here's the abstract:
Modes of law and governance gain their democratic authority from the quality and effectiveness of participation available to and exercised by the demos within them (Tully 2012). The resulting gap in Global IR which remains to be filled in order to counter injustice and enhance access to contestation, therefore represents distinct normative structures of meaning as the living structures of criss-crossing normative orders. With regard to moral authority, the feature that differentiates agents who merely partake in global governance, and agents who enjoy access to agency, consists in the right to critically engage with the norms of governance based on 'access to regular contestation' about norms. This difference regarding access is substantiated by the conceptual definition of contestation as a reactive practice that expresses objection to norms, and a proactive practice that enables critical engagement with norms. The paper argues that the political importance of agents operating as subjects under conditions of criss-crossing normative orders comes to the fore in relation with the contested implementations of the responsibility norm. The chapter illustrates, how this distinctive feature bears out in the larger context of global society. To that end, it addresses two scenarios where moral authority is contested: the first scenario addresses the Kadi case. In this legal case, the reconstruction of the contested claims for the responsibility to protect fundamental rights of individuals by the UN Security Council and the European Court of Justice (ECJ) demonstrate that effectively the political challenge to moral authority is at stake. The second scenario addresses contestations of the responsibility to protect (R2P). In this case, the contestations are initiated by the BRICS states, and therefore from within the normative structure of the UN.

Call for Session Proposals: 2018 ASIL Annual Meeting (Reminder)

The American Society of International Law has issued a call for session proposals for its 112th Annual Meeting, which will take place April 4-7, 2018, in Washington, DC. The conference theme is: "International Law in Practice." As one of the co-chairs, I encourage everyone to submit a proposal! The deadline is July 18, 2017. Here's the call:

International Law in Practice

Practice reifies and animates international law, shaping what it means, how it is applied, and how effectively it achieves the diverse goals of those who invoke it. Practice is constitutive and contentious. It looks both backward and forward.

The 2018 Annual Meeting will focus on international law in action: how and by whom international law is made, shaped, and carried out, both formally and informally; how it is taught; how the practices of international institutions, law firms, companies, not-for-profit organizations, government offices, and militaries generate international rules; how and in what ways states and other actors interact; and how participants deploy international legal arguments. The meeting will consider how international legal practice has changed and is continuing to change in response to geopolitical shifts and contemporary challenges, including demands for greater transparency, accountability, legitimacy, and inclusion.

At its 112th Annual Meeting, the American Society of International Law invites policymakers, practitioners, academics across the disciplinary spectrum, and students to reflect on the broad manifestations, sources, and implications of international legal practice.

2018 ASIL Annual Meeting Committee Co-Chairs

Kathleen Claussen
Jacob Katz Cogan
Tafadzwa Pasipanodya

Thematic Tracks:

  • International Dispute Resolution
  • Criminal Law, Human Rights, Migration
  • International Law & Domestic Law
  • Armed Conflict, Use of Force, and Terrorism
  • Environment, Territory, Sea, and Space
  • International Business
  • Global Governance and International Organizations

Call for Session Proposals

To suggest a session to the Committee, please complete the form below by no later than July 18, 2017.

Click to Access Proposal Form

Call for Papers: The Role of Non-Arctic States/Actors in the Arctic Legal Order-making

The Polar Cooperation Research Centre has issued a call for papers for its third symposium, to be held December 7–9, 2017, at Kobe University. The topic is: "The Role of Non-Arctic States/Actors in the Arctic Legal Order-making." The call is here and the application form is here.

Wednesday, July 12, 2017

Nappert: International Arbitration as a Tool of Global Governance: The Use (and Abuse) of Discretion

Sophie Nappert (Three Verulam Buildings) has posted International Arbitration as a Tool of Global Governance: The Use (and Abuse) of Discretion (in The Oxford Handbook on International Governance, forthcoming). Here's the abstract:

It has been posited that the international arbitration process, as do other international courts and tribunals, carries with it not only fact-finding and law-making functions, but also a governance function insofar as “arbitrators (…) can and do engage in autonomous normative action while still adhering to the rule of law.”

The arbitral process, though widely chosen as a means of dispute resolution in international business, is not without its critics. Arbitrators are regularly engaged in adjudicating international cases with high financial, and often political, stakes – the USD 50 billion Awards issued in July 2014 in favour of the Yukos shareholders against the Russian Federation, and the 2008 arbitration award ordering the French State to pay Bernard Tapie EUR 405 million, are two well-known such instances. The method and basis for choosing arbitrators, historically by reputation and word-of-mouth, have come under increasing scrutiny in a field often accused of clubbiness and opacity. Questions are being asked on what, if any, quality control and accountability mechanisms apply to the arbitrator function.

This is particularly so regarding the exercise of discretion by arbitrators in rendering their decisions. The procedural rules applying to arbitration proceedings generally endow arbitrators with “the widest discretion” in deciding on matters such as efficiency and fairness of process and the allocation of the costs of the proceedings, with little apparent fetter or guidance.

This contribution explores the role and ambit of the exercise of arbitral discretion and its interplay with the governance function of arbitral tribunals as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether, in light notably of the visible example of the Yukos case, the exercise of arbitral discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, its effective exercise. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

Hollis: China and the U.S. Strategic Construction of Cybernorms: The Process is the Product

Duncan B. Hollis (Temple Univ. - Law) has posted China and the U.S. Strategic Construction of Cybernorms: The Process is the Product. Here's the abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents—on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

Tuesday, July 11, 2017

Call for Papers: ASIL International Law in Domestic Courts IG Works-in-Progress Workshop

The International Law in Domestic Courts Interest Group of the American Society of International Law has issued a call for papers for its annual works-in-progress workshop, to take place December 8, 2017, at UCLA School of Law. If you have a work-in-progress that you would like to present, please send an abstract (or more if you prefer) to interest group co-chairs Kristina Daugirdas and Jean Galbraith (kdaugir[at]umich.edu, jgalbraith[at]law.upenn.edu) by Friday, September 15, 2017. Five or six papers will be selected. Preference will be given to papers that focus on U.S. courts, but all proposals are welcome. Please note that those whose papers are selected will need to submit a workshop-ready draft by November 17, 2017, for circulation to the other workshop participants.

Call for Submissions: The One Belt – One Road Initiative (GoJIL)

The Goettingen Journal of International Law has issued a call for submissions on the topic "The One Belt - One Road Initiative," for its forthcoming volume 8, issue 2. Here's the call:

GoJIL – Special Call on the One Belt – One Road Initiative

The One Belt – One Road Initiative (OBOR), also known as China’s New Silk Road, includes a large variety of infrastructure programs in numerous Eurasian and African States, proposed by the People’s Republic of China. It aims to enhance connectivity and cooperation across the Eurasian continent mainly through the construction of railways, highways, ports, airports, pipelines, etc., with China in a central role. At its largest extent, the OBOR would include 65 countries, 4.4 billion people, and 40 % of the global GDP. Considering its scale, the project even exceeds the dimensions of the post-war Marshall-Plan. This project could massively increase Chinese influence over Eurasia, as well as provide a chance for developing countries to benefit from its economic impact.

Projects of this magnitude naturally raise multiple legal and political questions.

For instance, could this be a chance to reduce global poverty or will it just intensify the dependence of developing countries on China? Will better infrastructure raise the standard of living, particularly regarding access to food and clean water, for the populations involved? What concerns are there for labor rights and property rights under international law? Who will be accountable for honoring these rights?

Furthermore, to what extent will international cooperation of this kind affect ongoing political conflicts? What are the effects of and on international law? How would the OBOR affect international trade and investment law? What influence will this have on the environment and the cultural heritage along this New Silk Road?

To shed light on the diverse aspects of the One Belt – One Road Initiative, we call for authors to submit papers on this topic. Submissions from an international law background as well as other disciplines such as international relations, economics, geography, etc. are welcome. Papers will be submitted to a double-blind peer review and should not exceed 15,000 words including footnotes. Selected contributions will be published in Issue 2 of Vol. 8. Our article guidelines can be found here and further information, including the submission option can be found here. All articles must be submitted until 15th of January 2018. In case of any questions feel free to contact the editors via email at info@gojil.eu.

New Issue: The Law and Practice of International Courts and Tribunals

The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 16, no. 1, 2017) is out. Contents include:
  • Jurisdiction and Admissibility in Investment Arbitration
    • Filippo Fontanelli & Attila Tanzi, Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice
    • August Reinisch, Jurisdiction and Admissibility in International Investment Law
    • Nicolas Jansen Calamita & Elsa Sardinha, The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration
    • Eirik Bjorge, EU Law Constraints on Intra-EU Investment Arbitration?
    • Mary E. Footer, Umbrella Clauses and Widely-Formulated Arbitration Clauses: Discerning the Limits of ICSID Jurisdiction
    • Giulio Alvaro Cortesi, ICSID Jurisdiction with Regard to State-Owned Enterprises – Moving Toward an Approach Based on General International Law
    • Andrea Gattini, Jurisdiction ratione temporis in International Investment Arbitration
    • Tarcisio Gazzini & Robert Kolb, Provisional Measures in ICSID Arbitration from “Wonderland’s Jurisprudence” to Informal Modification of Treaties

Guymon: Digest of United States Practice in International Law, 2016

CarrieLyn D. Guymon (Office of the Legal Adviser, U.S. Department of State) has published Digest of United States Practice in International Law, 2016. Here's a summary of the contents:

This volume includes key speeches Legal Adviser Brian J. Egan delivered during 2016. Mr. Egan spoke on the future of international agreements at Yale Law School, where Deputy National Security Adviser Avril Haines also spoke on the importance of treaties. He responded to the work of the International Law Commission on protection of persons in the event of disasters; identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. He also delivered a talk entitled “The Next Fifty Years of the Outer Space Treaty” at a space law symposium; addressed the International Bar Association on the subject of private international law; discussed international law, legal diplomacy, and the counter-ISIS campaign at the annual meeting of the American Society of International Law (“ASIL”); and spoke at Berkeley Law School on international law and stability in cyberspace.

In addition to Mr. Egan’s speeches, other representatives of the U.S. government explained U.S. international legal views on current world events in 2016. Secretary of State John Kerry announced that, in his judgment, ISIS is responsible for genocide in Iraq against groups in areas under its control, including Yezidis, Christians, and Shia Muslims, and for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities. The United States responded to papers China circulated after the decision in the arbitration between the Philippines and China on the South China Sea with a diplomatic note identifying contradictions between China’s claims and the international law of the sea. The United States also sent a diplomatic note to the Republic of the Marshall Islands regarding U.S. sovereignty over Wake Island. And the Obama administration issued its Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations. All of these enunciations of U.S. legal views contributed to efforts to promote understanding of and compliance with international law.

There were numerous developments in 2016 relating to U.S. international agreements and treaties at all stages, from negotiation to entry into force. The President transmitted eleven treaties to the U.S. Senate for its advice and consent to ratification in 2016, including extradition treaties, two intellectual property treaties, several private international law treaties, maritime boundary treaties, and the Arms Trade Treaty. The Senate provided its advice and consent to ratification of seven treaties in 2016, including extradition treaties, mutual legal assistance treaties, the International Treaty on Plant Genetic Resources for Food an Agriculture, and the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Securities Convention”). The United States ratified and joined the Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing, and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in 2016. And on January 16, 2016, the 2015 Joint Comprehensive Plan of Action with Iran (“JCPOA”) reached its “Implementation Day,” when the International Atomic Energy Agency confirmed that Iran had satisfied the required nuclear commitments and the United States and European Union took steps to lift nuclear-related sanctions against Iran. The United States signed new extradition treaties with Kosovo and Serbia; an agreement “On the Protection of Personal Information Relating to the Prevention, Investigation, Detention, and Prosecution of Criminal Offenses” (“DPPA”) with the European Union; an asset sharing agreement with Colombia; several air transport agreements; and agreements pursuant to the 1970 UNESCO Convention on cultural property. The United States successfully led the way to renegotiate the South Pacific Tuna Treaty and amend the Montreal Protocol to phase down the production and consumption of hydrofluorocarbons (“HFCs”). And, the President also submitted to Congress for its review an Agreement for Cooperation with Norway Concerning Peaceful Uses of Nuclear Energy.

In the area of diplomatic relations, the United States engaged with Cuba in claims talks, conclusion of an aviation arrangement, and amendments to the Cuban Assets Control Regulations, among other initiatives. As a reflection of Burma’s democratic transition, the United States terminated the national emergency with respect to Burma, which had provided the basis for economic and financial sanctions. Also in 2016, the President terminated the national emergency with respect to Côte d’Ivoire. And in 2016, the United States swore in its first ambassador to Somalia in a quarter century after recognizing the government of Somalia in 2013. The United States took several steps in response to Russian interference in the 2016 U.S. election and increasing Russian harassment of U.S. diplomats overseas.

Burniske, Modirzadeh, & Lewis: Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and the U.N. General Assembly

Jessica Burniske (Harvard Univ. - Program on International Law and Armed Conflict), Naz K. Modirzadeh (Harvard Univ. - Program on International Law and Armed Conflict), & Dustin A. Lewis (Harvard Univ. - Program on International Law and Armed Conflict) have posted Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and the U.N. General Assembly. Here's the abstract:

Two interrelated trajectories are exerting pressure on a fundamental premise that has long undergirded international human rights law (IHRL). That premise — that the state is the primary entity that bears international-legal responsibility for respecting, protecting, and fulfilling human rights — stems in part from the (largely exclusive) competence of states to make, adjudicate, and enforce rules within their respective jurisdictions. The first trajectory is that, in a number of key respects, certain entities and scholars are increasingly recognizing the possibility of non-state entities bearing de-jure or de-facto human-rights obligations or related responsibilities. And the second trajectory is that, seemingly increasingly, ANSAs control access to territory and exercise control over civilian populations.

Several significant legal, policy, and practical concerns are at issue in whether armed non-state actors (ANSAs) will ultimately be recognized — by all relevant institutions and actors — as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states. In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL. This June 2017 Briefing Report with Annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment — or, at least, the non-abuse — of human rights.

While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law.

New Issue: Journal of Human Rights and the Environment

The latest issue of the Journal of Human Rights and the Environment (Vol. 8, no. 1, March 2017) is out. Contents include:
  • Jeanette Schade & Dimitra Manou, Editorial: Climate, justice and displacement: reflections on law, policy and the future of human rights in the climate crisis
  • Elizabeth Ferris & Jonas Bergmann, Soft law, migration and climate change governance
  • Dayna Nadine Scott & Adrian A Smith, The abstract subject of the climate migrant: displaced by the rising tides of the green energy economy
  • Wolfgang Obergassel, Lauri Peterson, Florian Mersmann, Jeanette Schade, Jane Alice Hofbauer & Monika Mayrhofer, Human rights and the clean development mechanism: lessons learned from three case studies
  • Jeanette Schade, EU accountability for the due diligence failures of the European Investment Bank: climate finance and involuntary resettlement in Olkaria, Kenya
  • Jane A Hofbauer, Operationalizing extraterritorial obligations in the context of climate project finance – the Barro Blanco case
  • Sam Adelman, Geoengineering: rights, risks and ethics
  • Joe Alizzi, The logic of industrial capitalism versus the logic of Inuit thinking – denied interconnectedness and how it inhibits broad-based action in the human rights and environmental spaces

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 28, no. 2, May 2017) is out. Contents include:
  • Editorial
    • JHHW, On My Way Out – Advice to Young Scholars V: Writing References; In this Issue
  • Articles
    • Niels Petersen, The International Court of Justice and the Judicial Politics of Identifying Customary International Law
    • Bernard Hoekman & Petros C. Mavroidis, MFN Clubs and Scheduling Additional Commitments in the GATT: Learning from the GATS
    • Janis Grzybowski, To Be or Not to Be: The Ontological Predicament of State Creation in International Law
    • Noëlle Quénivet, Does and Should International Law Prohibit the Prosecution of Children for War Crimes?
    • Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control
  • Focus: International Legal Histories – A Look Back to the Twentieth Century
    • Giovanni Mantilla, Conforming Instrumentalists: Why the United States and the United Kingdom Joined the 1949 Geneva Conventions
    • Narrelle Morris & Aden Knaap, When Institutional Design is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943-1948
    • Felix Lange, Between Systematization and Expertise for Foreign Policy: The Practice-Oriented Approach in Germany’s International Legal Scholarship (1920–1980)
  • Roaming Charges
    • Viorica Vita, Selling Love Locks in Rome
  • EJIL: Debate!
    • Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct
    • Ilias Plakokefalos, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: A Reply to Vladyslav Lanovoy
    • Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: Rejoinder
  • Critical Review of International Governance
    • Moria Paz, The Law of Walls
  • Review Essay
    • Outi Korhonen, Within and Beyond Interdisciplinarity in International Law and Human Rights. Review of Moshe Hirsch, Invitation to the Sociology of International Law and Pamela Slotte and Miia Halme-Tuomisaari (eds), Revisiting the Origins of Human Rights

Monday, July 10, 2017

Reich: The Effectiveness of the WTO Dispute Settlement System: A Statistical Analysis

Arie Reich (Bar-Ilan Univ. - Law) has posted The Effectiveness of the WTO Dispute Settlement System: A Statistical Analysis. Here's the abstract:
The dispute settlement system (DSS) of the World Trade Organization (WTO), which is considered as the 'Jewel in the Crown' of the WTO, is also the busiest of its kind. While this no doubt reflects its success, the system is far from perfect, and has drawn criticism both from within and without the ranks of its users. This paper presents a statistical analysis of over twenty years of WTO DSS, with a particular emphasis on questions of effectiveness. Questions examined include: Who are the member states using the WTO DSS? Is it used equally by developed, developing and least developed countries? Are poor countries more likely than rich ones to settle cases? Is there a correlation between the Gross Domestic Product (GDP) or GDP per capita of WTO members and the extent to which they use the system? What is the extent of compliance with binding recommendations of the DSB by member states? Are compliance disputes bona fide disputes about the meaning of a DSB ruling, or are they part of delaying tactics? Who are the members that do comply and who are the ones that do not? How long do DSS procedures take on the average, from consultations request to adoption of recommendations? Has this time changed over time, from when the system began until today? Finally, the paper will address the problem of the Appellate Body’s inability to remand the case to the original panel for reconsideration and determination of relevant facts. It will examine how often this lack of authority frustrates the system’s ability to conclude the DSS procedures with a clear ruling on all the disputed issues.

New Issue: Cambridge International Law Journal

The latest issue of the Cambridge International Law Journal (Vol. 6, no. 1, June 2017) (formerly, the Cambridge Journal of International and Comparative Law) is out. Contents include:
  • Michael A Becker, The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice
  • Letizia Lo Giacco, Swinging between finding and justification: judicial citation and international law-making
  • Andreas Dimopoulos, The representation of disability in the media in the UK and France: implications for free speech and diversity in light of Article 8 of the Convention on the Rights of Persons with Disabilities
  • Helin M Laufer, War, weapons and watchdogs: an assessment of the legality of new weapons under international human rights law
  • Fenghua Li, The Yukos cases and the provisional application of the Energy Charter Treaty
  • Yen Hoang Tran, The South China Sea Arbitral Award: legal implications for fisheries management and cooperation in the South China Sea

Fabbrini & Maduro: Supranational Constitutional Courts

Federico Fabbrini (Dublin City Univ. - School of Law and Government) & Miguel Poiares Maduro (European Univ. Institute) have posted Supranational Constitutional Courts (Max Planck Encyclopedia of Comparative Constitutional Law, forthcoming). Here's the abstract:
The paper seeks to identify, within the broader genus of international courts and tribunal, a typology of courts which can be defined as supranational constitutional courts. To this end, it suggests six criteria that ought to be used in order to differentiate within the broader family of international courts the species of courts which present a constitutional character. Specifically, the paper suggests that jurisdiction, powers of judicial review, subjectivization, constitutional hermeneutics, constitutional doctrines and effectiveness are conditions to define an international court as a supranational constitutional court. The paper examines the case of the European Court of Justice as a paradigmatic example of a supranational constitutional court and considers to what extent analogous features are emerging in other tribunals, including the European Court of Human Rights.

Call for Submissions: Thailand Journal of International Law

The Thailand Journal of International Law has issued a call for submissions. The call is here.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 55, no. 2, June 2017) is out. Contents include:
  • Abhandlungen
    • Jochen Bung, Naturrecht – Völkerrecht – Weltrecht – Der Code des Hugo Grotius
    • Patricia Wiater, Der Staat als Investor. Staatsfonds und die süße Frucht der Staatenimmunität
  • Beiträge und Berichte
    • Otto Luchterhandt, Der Krieg Aserbaidschans gegen Berg-Karabach im April 2016 aus völkerrechtlicher Sicht
    • Sebastian tho Pesch, Deutsch-polnische Seegrenzen in der Oderbucht: der seevölkerrechtliche Status der sog. Nordansteuerung und des Ankerplatzes Nr. 3

Sunday, July 9, 2017

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 17, no. 4, August 2017) is out. Contents include:
  • Charles F. Parker & Christer Karlsson, The European Union as a global climate leader: confronting aspiration with evidence
  • Joanes Odiwuor Atela, Claire Hellen Quinn, Albert A. Arhin, Lalisa Duguma & Kennedy Liti Mbeva, Exploring the agency of Africa in climate change negotiations: the case of REDD+
  • Kate Dooley & Aarti Gupta, Governing by expertise: the contested politics of (accounting for) land-based mitigation in a new climate agreement
  • Yoshiki Yamagata, Jue Yang & Joseph Galaskiewicz, State power and diffusion processes in the ratification of global environmental treaties, 1981–2008
  • Dan-Bi Um & Jung-Sup Um, Informed consent utilizing satellite imagery in forestry carbon trading with North Korea
  • Tobias Schulz, Marc Hufty & Maurice Tschopp, Small and smart: the role of Switzerland in the Cartagena and Nagoya protocols negotiations
  • Mark Axelrod, Blocking change: facing the drag of status quo fisheries institutions
  • Mairon G. Bastos Lima, Gabrielle Kissinger, Ingrid J. Visseren-Hamakers, Josefina Braña-Varela & Aarti Gupta, The Sustainable Development Goals and REDD+: assessing institutional interactions and the pursuit of synergies

New Issue: Journal of Territorial and Maritime Studies

The latest issue of the Journal of Territorial and Maritime Studies (Vol. 3, no. 2, 2016) is out. Contents include:
  • Danae Azaria, The Scope and Content of Sovereign Rights in Relation to Non-Living Resources in the Continental Shelf and the Exclusive Economic Zone
  • Ioannis Konstantinidis, Between Villa Schroder (ITLOS) and the Peace Palace (ICJ): Diverging Approaches to Continental Shelf Delimitation Beyond 200 Nautical Miles
  • Hwang Junshik, Challenges on the Ocean and the Future of the Law of the Sea: Environment, Security, and Human Rights
  • Chung-min Tsai, Sino-Japanese Relations Over the East China Sea: The Case of Oil and Gas Fields
  • Stefan Talmon, Objections Not Possessing an "Exclusively Preliminary Character" in the South China Sea Arbitration

Mitchell: Sovereignty and Normative Conflict: International Legal Realism as a Theory of Uncertainty

Ryan Mitchell (Chinese Univ. of Hong Kong - Law) has posted Sovereignty and Normative Conflict: International Legal Realism as a Theory of Uncertainty (Harvard International Law Journal, forthcoming). Here's the abstract:

“Realist” critical views on international law discount the idea that external norms determine the behavior and objectives of states. However, they risk replicating the very positions they criticize as a result of two common errors. First, they frequently assume that legal norms have clear and uncontested meanings that all observers will agree upon. Second, they assume the preexistence of the state as a rational, self-interested actor. The uncertain content of norms, and the uncertainty and fragility of the state’s stability, power, and rationality thus go unrecognized.

This Article proposes an agenda for further International Legal Realist theory premised on pragmatic analysis of the concept of state sovereignty. To this end, it develops the thought of the legal and political philosopher Carl Schmitt, arguably the most thorough and influential Realist critic of modern international law. For Schmitt, drawing on Thomas Hobbes, the sovereign power of the state is itself justified by the essential epistemic uncertainty of all disputes over norms and values. Only conscious institution of the sovereign authority could solve the conflict resulting when there is no agreement as to “who decides” how to define and apply contested norms — as is still the case today in many disputes among states.

Reemphasizing this centrality of epistemic uncertainty to the institution of sovereignty helps to set a new agenda for Realist international law theory. Neither states nor international norms and their interpreters should be taken as unproblematic elements of a unified order: rather both are heuristic tools that can be evaluated on the basis of their utility in procuring certain judgments on normative conflicts. From the North Korean nuclear weapons issue to the UK’s Brexit decision, this approach can potentially help legal scholars and practitioners to make more accurate determinations of the stakes and possible outcomes of many of today’s most pressing international legal disputes—and even help in conceiving alternatives to the current status quo.

Benvenisti & Nolte: Community Interests Across International Law: Introduction

Eyal Benvenisti (Univ. of Cambridge - Law) & Georg Nolte (Humboldt-Universität zu Berlin - Law) have posted Community Interests Across International Law: Introduction (in Community Interests Across International Law, Eyal Benvenisti & Georg Nolte eds., forthcoming). Here's the abstract:
The Introduction describes the term “community interests” for the purpose of exploring the extent to which states owe duties toward those who are affected by their actions and omissions. It argues that the relevant “communities” which are envisaged by the book extend beyond the “international community of states” to cover individuals and groups, even when their interests were not taken into account at the negotiation table or in policymaking bodies. The community can also be humanity at large, as reflected in the concept of crimes against humanity. As far as “community interests” are concerned, the Introduction explores questions related to the identification of these interests, the prioritization among them and their achievement. The Introduction outlines a typology of duties states might have toward others.

New Volume: Recueil des Cours

Volume 384 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 384
    • Symeon C. Symeonides, Idealism, Pragmatism, Eclecticism, General Course on Private International Law

New Issue: Amsterdam Law Forum

The latest issue of the Amsterdam Law Forum (Vol. 9, no. 2, Spring 2017) is out. Contents include:
  • Scientific Articles
    • Daniele Fabris, Crimes Committed On The High Seas, Piracy And Criminal Jurisdiction: Current Issues Of International Law Of The Sea Awaiting The 'Enrica Lexie' Decision
    • Joanna Diane Caytas, Sanctions, Real And Imaginary: Experiences With Russia In The Ukraine Crisis
    • JanWillem Sap, The Role of Human Rights in Setting the Boundaries Of Sovereignty and the Autonomy of the EU Legal Order
    • Sangeetha Yogendran, Did The ICC Fail Child Victims In The Lubanga Reparations Order?
    • Ana Martin, Intersectionality: A Tool for the Gender Analysis of Sexual Violence at the ICC
    • Michael Addaney & Azubike Onuora-Oguno, Education as a Contrivance to Ending Child Marriage in Africa: Perspectives from Nigeria and Uganda
  • Opinion Articles
    • Shadi Sakran, The Creation of the Non-Member Observer State of Palestine: A Legal Analysis of UN General Assembly Resolution 67/19
    • Nicola Perugini & Neve Gordon, Human Rights and Domination
    • Anja Eleveld, Performing Human Rights in the Context of the Israeli-Palestinian Conflict
  • Commentaries
    • Helena de Sousa-Falcao Montull, A Commentary On the Book Discussion 'The Human Right to Dominate'
    • Adina Nistor, The 'Extracurricular International Law' - A Seminar With Mark Drumbl

McMahon: The NGO Game: Post-Conflict Peacebuilding in the Balkans and Beyond

Patrice C. McMahon (Univ. of Nebraska - Political Science) has published The NGO Game: Post-Conflict Peacebuilding in the Balkans and Beyond (Cornell Univ. Press 2017). Here's the abstract:

In most post-conflict countries nongovernmental organizations are everywhere, but their presence is misunderstood. In The NGO Game Patrice McMahon investigates the unintended outcomes of what she calls the NGO boom in Bosnia and Kosovo. Using her years of fieldwork and interviews, McMahon argues that when international actors try to rebuild and reconstruct post-conflict countries, they often rely on and look to NGOs. Although policymakers and scholars tend to accept and even celebrate NGO involvement in post-conflict and transitioning countries, they rarely examine why NGOs have become so popular, what NGOs do, or how they affect everyday life.

After a conflict, international NGOs descend on a country, local NGOs pop up everywhere, and money and energy flow into strengthening the organizations. In time, the frenzy of activity slows, the internationals go home, local groups disappear from sight, and the NGO boom goes bust. Instead of peace and stability, the embrace of NGOs and the enthusiasm for international peacebuilding turns to disappointment, if not cynicism. For many in the Balkans and other post-conflict environments, NGOs are not an aid to building a lasting peace but are part of the problem because of the turmoil they foster during their life cycles in a given country. The NGO Game will be useful to practitioners and policymakers interested in improving peacebuilding, the role of NGOs in peace and development, and the sustainability of local initiatives in post-conflict countries.