Tuesday, April 25, 2017

Young: Narrative, Metaphor and Human Rights Law: When Rights-Talk Meets Queue-Talk

Katharine Young (Boston College - Law) has posted Narrative, Metaphor and Human Rights Law: When Rights-Talk Meets Queue-Talk (in Narrative, Metaphor and the Law, Mike Hanne & Robert Weisberg eds., forthcoming). Here's the abstract:

Much contemporary legal scholarship on human rights sees the lapses between rhetoric and reality, symbol and substance, and rights-talk and rights-action, as human rights law’s greatest deficiency. That approach, however, fails to acknowledge the power of the human rights vocabulary to change people’s political commitments, and with them, especially in democratic states, the authority, meaning, and ultimately, effectiveness of human rights law. Yet the power of language cuts both way: it is both constitutive and distortive of rights. This chapter, which is part of an edited collection by Mike Hanne and Robert Weisberg, entitled Narrative and Metaphor in Law (forthcoming, 2017), explores how narrative and metaphor provide the literary, cognitive, and cultural frames for events and issues to be understood as part of human rights law. Metaphor, in particular, is understood not simply as an ornament to language, but as a fundamental scheme by which people conceptualize and organize their moral, social, and legal worlds.

With this contribution in mind, this paper examines a metaphor which frequently accompanies rights talk: the metaphor of “the queue”. The queue, or waiting line or wait list, is ubiquitous in modern, especially urban, life. It distributes resources, usually on a first-come, first-served basis, in conditions of scarcity or where simultaneous provision is not possible. For example, surgery wait lists for health care or waiting lines in the emergency room, housing wait lists or the waiting lines for shelters, or visa entry wait lists for immigration, or for deportation, are all pivotal aspects of human rights law configured by a queue. The common experience of participating in other queues, in transport, recreation, or other contexts, helps to explain the metaphor’s resonance.

And yet, the metaphor’s connection with rights provokes disagreement around notions of entitlement. The queue institutionalizes, but also discredits, the political and social reordering compelled by human rights law. By using examples of “queue talk” around the constitutional right to housing in South Africa, the paper examines how the queue metaphor occupies the doctrinal vacuum of the obligation to “progressively realize” certain human rights, particularly economic and social rights, and particularly when positive obligations are at issue. Moreover, it explores how the metaphor exaggerates the state provision of a good or service, rather than the state’s regulatory, or private law, levers of control. In each respect, the queue metaphor reveals severe limits on what human rights law makes possible.

Conference: The United Nations Security Council and the Sea/Le Conseil de sécurité des Nations unies et la mer

On May 4-5, 2017, the Centre de droit international at the Université Jean Moulin Lyon 3 will host a conference on "The United Nations Security Council and the Sea/Le Conseil de sécurité des Nations unies et la mer." The program is here.

Call for Papers: 15° Congresso Brasileiro de Direito Internacional

The Brazilian Academy of International Law / Academia Brasileira de Direito Internacional has issued a call for papers for the 15th Brazilian Congress of International Law / 15° Congresso Brasileiro de Direito Internacional, to be held in Florianópolis, from August 30-September 2, 2017, under the sponsorship of the Universidade Federal de Santa Catarina and the Universidade de São Paulo. The theme is: "International Law and Its Transdisciplinarity." The call is here (English/Português).

Monday, April 24, 2017

Spiro: Citizenship Overreach

Peter J. Spiro (Temple Univ. - Law) has posted Citizenship Overreach (Michigan Journal of International Law, forthcoming). Here's the abstract:

This Article examines international law limitations on the ascription of citizenship in the context of U.S. taxation of non-resident citizens. U.S. citizenship practice is exceptionally generous, extending citizenship to almost all persons in its territory at the moment of birth. At the same time that it is generous at the front end, U.S. citizenship is sticky at the back. Termination of citizenship on the individual’s part involves substantial fees and tax compliance. It is difficult to shed a citizenship one may never have wanted in the first place.

This stickiness would be inconsequential if few costs were associated with the status. But the United States taxes its citizens on a worldwide basis. The 2010 enactment of the Foreign Account Tax Compliance Act has ramped up historically lax enforcement and imposes substantial administrative burdens on even middle-earner citizens abroad.

In this frame, U.S. birthright citizenship and expatriation regimes may violate international norms, especially with respect to those "accidental Americans" who departed the United States as children. Even in the context of extremely relaxed historical constraints on state nationality practice, there were acknowledged nineteenth century limitations on the extension of citizenship to individuals with insufficient connection to a state -- citizenship over-claiming, as it were. The article also describes the historical requirement that naturalization be volitional, a norm now appropriately applied in some cases in the context of birthright citizenship.

To the extent the ascription of U.S. citizenship compromises individual rights, there are tax fixes and there are citizenship fixes. Citizenship fixes include opt-in and opt-out mechanisms for birthright citizenship. The better solution may lie in frictionless exit for those with nominal ties to the national community. Though reform is more likely to be accomplished through the tax regime, the moment highlights the over-inclusiveness of U.S. citizenship and the growing salience of international law to citizenship practices.

Call for Papers: ESIL International Economic Law Interest Group Workshop

The International Economic Law Interest Group of the European Society of International Law has issued a call for papers for a workshop on September 6, 2017, in Naples, immediately prior to the ESIL Annual Conference. The call is here.

Pollack: The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order)

Mark A. Pollack (Temple Univ. - Political Science) has posted The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order). Here's the abstract:
Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the US and the European Union EU toward the rule of international law. Critics have argued that the US had abandoned its post-war role as the champion of the international legal order, being instead characterized by a "new sovereigntism" that seeks to protect the US from unwelcome intrusions of international law into the domestic legal order. By contrast, the EU has been seen as inherently committed to the rule of law and a strong international legal order. The aim of this paper is not to attack, much less to debunk, the conventional dichotomy between a scofflaw America one the one hand and an international law-loving Europe on the other. The more limited aim of this paper, rather, is to suggest that European attitudes towards international law may be changing, and that the EU is developing a European variant of the American new sovereigntism, in which a growing number of critics – concentrated primarily, though not only, among the pro-European left and center-left – have raised fundamental procedural and substantive objections to international rules and norms, which they depict as hostile to European laws and values, and against which they champion a defiant resistance. In a growing number of areas of international law, including international trade, economic regulation, food safety, data privacy, and national security, the European center-left has moved towards a sharply critical view of international law, alternatively resisting consent to unwelcome agreements, compliance with unwelcome international judicial decisions, and internalization of international laws perceived to be in tension with domestic EU rules and rights. These changing attitudes towards international law, in turn, have been magnified and translated into policy outcomes through the EU’s “hyper-consensus” political institutions, which have created multiple veto points empowering European critics to defy and deflect the intrusion of unwelcome international legal norms, rules, and agreements.

Elgebeily: The Rule of Law in the United Nations Security Council Decision-Making Process

Sherif Elgebeily (Centre for the Study of International Peace and Security ) has published The Rule of Law in the United Nations Security Council Decision-Making Process: Turning the Focus Inwards (Routledge 2017). Here's the abstract:

The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council’s agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process.

This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council’s decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions.

Lauterpacht Centre Friday Lunchtime Lecture Series for Easter Term 2017

Here's the schedule for the Lauterpacht Centre for International Law's Easter Term 2017 Friday Lunchtime Lectures:
  • April 28, 2017: Sean Aughey (11KBW), Refracting international law ideas through the prism of the common law: act of state is (almost) dead, long live act of state!
  • May 5, 2017: Ola Mestad (Univ. of Oslo - Law), Global governance on the ground: the development and implementation of the OECD Guidance
  • May 12, 2017: Elies van Sliedregt (Leeds Univ. - Law), The Malabo Protocol and the African Court of Justice and Human Rights: model for the future?

Conference: The Geopolitics of International Law: Contemporary Challenges for the Asia-Pacific

The 2017 International Law Association-American Society of International Law Asia-Pacific Research Forum, hosted by the Chinese (Taiwan) Society of International Law, will take place May 19-20, in Taipei. The theme of the Research Forum is: "The Geopolitics of International Law: Contemporary Challenges for the Asia-Pacific." The program is here.

Sunday, April 23, 2017

Discussion: Supreme Law of the Land? Debating the Contemporary Effects of Treaties Within the United States Legal System

On April 27, 2017, Wilmer Cutler Pickering Hale and Dorr LLP will host a discussion in its London office on "Supreme Law of the Land? Debating the Contemporary Effects of Treaties Within the United States Legal System." The program is here.

Crawford, Koroma, Mahmoudi, & Pellet: Essays in Honour of Djamchid Momtaz

James Crawford (Judge, International Court of Justice), Abdul G. Koroma (Judge, World Bank Administrative Tribunal; formerly, Judge, International Court of Justice), Said Mahmoudi (Stockholm Univ. - Law), & Alain Pellet (Université Paris Nanterre - Law) have published The International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz (Brill | Nijhoff 2017). Contents include:
  • The Editors, Preface
  • Javad Zarif, Foreword
  • Yves Daudet, Brèves remarques sur la contribution de l’Académie de droit international de la Haye au développement du droit international
  • Pierre Michel Eisemann, Quelques remarques sur la place du droit au sein des organisations internationales
  • Said Mahmoudi, The Iran Nuclear Deal: Some International-law Aspects
  • Shinya Murase, Scientific Knowledge and the Progressive Development of International Law: with Reference to the ILC Topic on the Protection of the Atmosphere
  • Sundhya Pahuja & Cait Storr, Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited
  • Anicée Van Engeland, Statehood, Proto States and International Law: New Challenges, Looking at the Case of ISIS
  • Mohamed Bennouna, La Cour internationale de Justice et le traitement du contentieux dans la durée : Le temps retrouvé
  • James Crawford, The Place of the International Court in International Dispute Settlement
  • Jean d’Aspremont, International Lawyers and the International Court of Justice: Between Cult and Contempt
  • Marie-Françoise Labouz, Le règlement des différends investisseur/État (RIDE) : brève revue de doctrine avant réforme
  • W. Michael Reisman & Mahnoush H. Arsanjani, Legal Decisions and Their Implementation in International Law
  • Jamal Seifi, Peremptory Norms and the Jurisdiction of the International Court of Justice
  • Sienho Yee, Some Comments on the Temple (Interpretation) Judgment and the Impact of Possible Mistakes on the Temple Saga
  • Mohsen Abdollahi, Alleged Support of Terrorism as a Ground for Denying State Immunity
  • Hirad Abtahi, Types of Injury in Inter-States Claims: Direct Injury to the State
  • Lucius Caflisch, Réflexions sur l’immunité des États en matière civile
  • Alain Pellet, Responsibility of States in Cases of Human-rights or Humanitarian-law Violations
  • Mariano J. Aznar, Exporting Environmental Standards to Protect Underwater Cultural Heritage in the Area
  • Ida Caracciolo, Migration and the Law of the Sea: Solutions and Limitations of a Fragmentary Regime
  • Rafael Casado Raigón, La dimension internationale de la compétence de l’Union européenne en matière de pêche
  • Emmanuel Dupont & Alexia Solomou, Provisional Measures in Maritime Delimitation Cases Pierre-
  • Víctor L. Gutiérrez Castillo, The Contribution of the States of Central America to the Evolution of the New Law of the Sea
  • Gerhard Hafner, Does the Freedom of the Seas Still Exist?
  • Zalmaï Haquani, Les pays sans littoral et droit de la mer
  • Maurice Kamto, Considérations actuelles sur la méthode de délimitation maritime devant la Cour internationale de Justice. De charybde en scylla ?
  • Mariko Kawano, Compulsory Jurisdiction under the Law of the Sea Convention: Its Achievements and Limits
  • Ahmed Mahiou, L'Algérie et la Méditerranée
  • Bernard H. Oxman, Judicial Application of Environmental Standards under the Law of the Sea Convention
  • Jean-François Pulvenis de Séligny-Maurel, The Future of the High Seas Fisheries Legal and Institutional Framework
  • Natalino Ronzitti, Sunken Warships and Cultural Heritage
  • Emmanuel Roucounas, Users of the Law of the Sea: Some Recent Developments
  • Tullio Scovazzi ,The Relationship between Two Conventions Applicable to Underwater Cultural Heritage
  • Roberto Virzo, The Dispute Concerning the Enrica Lexie Incident and the Role of International Tribunals in Provisional Measure Proceedings Instituted Pursuant to the United Nations Convention on the Law of the Sea
  • Ricardo Abello-Galvis, La jurisprudence de la Cour Interaméricaine des Droits de l’Homme et le jus cogens (2013-fevrier 2016)
  • Ove Bring, The Notion of Human Rights and the Issue of Cultural Relativism
  • Jorge Cardona, Droit a l’éducation et diversité : le droit à une éducation inclusive et équitable de qualité
  • Giuseppe Cataldi, Immunités juridictionnelles des États étrangers et droit de l’homme : quel équilibre entre les valeurs fondamentales de l’ordre national et le droit international coutumier ?
  • Nasrin Mosaffa, Protecting Children in and at War: From Legally Protected Subjects to ‘Others’ in the Conflict
  • Amir Hossein Ranjbarian, A propos de quelques éclaircissements jurisprudentiels dans le ciel gris de la lutte contre la torture
  • Linos-Alexandre Sicilianos, Les relations entre droits de l’homme et droit international humanitaire dans la jurisprudence de la Cour européenne des droits de l’homme
  • Joe Verhoeven, Brèves remarques sur la répression du génocide
  • Michael Bothe, Protection of the Environment in Relation to Armed Conflicts - A Preliminary Comment on the Work of the International Law Commission
  • Zakaria Daboné, Regards sur le contenu des qualifications des principaux acteurs des conflits armés
  • Knut Dörmann & Tilman Rodenhäuser, Contemporary Challenges for International Humanitarian Law
  • Yves Sandoz, Le droit international humanitaire à l’épreuve des conflits contemporains
  • Sandra Szurek, L’espace humanitaire : un passage souhaitable de la pratique au droit ?
  • Paul Tavernier, L’évolution du droit international humanitaire au XXIème siècle : une nécessité ?
  • Abdelwahab Biad, Le droit international au défi de « l’exceptionnalisme nucléaire »
  • Farideh Shaygan, Intervention by Invitation as a Tool of New Colonialism
  • Yvenson St-Fleur, L’intervention par invitation d’un État tiers : le consentement au recours à la force contre des combattants étrangers terroristes

Johns: The Design of Enforcement: Collective Action and the Enforcement of International Law

Leslie Johns (Univ. of California, Los Angeles - Political Science) has posted The Design of Enforcement: Collective Action and the Enforcement of International Law. Here's the abstract:
International organizations (IOs) play a vital role in enforcing international law. Many treaties are built on transnational enforcement, in which private actors challenge and litigate possible legal violations. Others feature international enforcement, in which only states can challenge possible violations. Some feature centralized enforcement, in which an IO has its own authority to challenge possible violations. I argue that collective action problems drive decisions about whether to enforce international law, and hence affect the optimal design of enforcement regimes. When cooperation generates concentrated benefits --- such as compensation for the expropriation of foreign investment --- transnational enforcement can work well because the cost and benefit of enforcement are both fully internalized by the litigant. However, when cooperation generates diffuse benefits --- like a cleaner environment --- individuals and even governments have incentive to free-ride on enforcement, avoiding the cost of litigation in the hopes that another actor will step up. In such circumstances, supranational enforcement is necessary to uphold international law. Finally, hybrid regimes, which contain multiple forms of enforcement, are most needed when an IO has members that vary in their ability to enforce, or regulates issue areas that vary in their diffuseness. I assess my argument by examining litigation in the European Court of Justice, and provide inductive evidence that the European Union is more likely to enforce EU laws that generate diffuse benefits, while private actors and governments are more likely to enforce EU laws that generate concentrated benefits.

Saturday, April 22, 2017

Rossi: Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood

Christopher R. Rossi (Univ. of Iowa - Law) has posted Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood (Texas International Law Journal, Vol. 52, no. 1, pp. 45-70, 2017). Here's the abstract:
For more than two decades, the Minsk Group, co-chaired by Russia, the United States, and France, has served as a steward over the dispute resolution process involving Nagorno-Karabakh, a tiny enclave of ethnic Armenians belonging to Azerbaijan. Although described as a frozen conflict, the conflict is fluid, dangerous, and increasingly complicated by overlapping interests and spheres of influence. This Article concentrates on the power-shifting attempts to facilitate a solution via use of the soft law forum of the Minsk Group, problematizing the perceived theoretical advantages found in the literature that instantiate soft law's superior potential for solutions. That powerful countries may utilize informal processes and forums to pursue parochial interests while forestalling peaceful settlement suggests a need to examine critically efforts to use soft law as an expedient to norm development.

Ratner: Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction

Steven R. Ratner (Univ. of Michigan - Law) has posted Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction (American Journal of International Law, forthcoming). Here's the abstract:
When a state expropriates a foreign investment in violation of a bilateral or other treaty on investment protection and a foreign investor sues, where should a tribunal look for the standard of compensation -- to the amount specified in the treaty, to an external standard for violations of internationally law generally, or elsewhere? Investor-state tribunals have offered wildly different answers to this question, trapped in a paradigm set by the Permanent Court of International Justice ninety years ago that distinguishes between so-called lawful and unlawful expropriations. This article evaluates and criticizes the caselaw of tribunals and proposes a new framework for compensation grounded in five key purposes of a remedy in the context of contemporary investor-state relations. It also clarifies the economic and legal significance of valuing expropriated investments using information available at the date of expropriation as opposed to the date of the award. The article proposes that, instead of the current lawful/unlawful distinction, compensation take account of specific aspects of the expropriatory act, including whether the state's failure to pay was based on a bona fide disagreement with the investor and whether the state violated the procedural criteria spelled out in an investment treaty. It concludes with a consideration of the implications of this approach for violations of other provisions of investment treaties.

Friday, April 21, 2017

Oxford Public International Law Discussion Group - Trinity Term 2017

Here's the schedule for the Oxford Public International Law Discussion Group for Trinity Term 2017:
  • April 27, 2017: Anne van Aaken (Univ. of St. Gallen), Behavioral Economics and Global Public Goods and Global Commons
  • May 4, 2017: Marie Jacobsson (Legal Admiser, Ministry of Foreign Affairs, Sweden), Protecting the Environment in Relation to Armed Conflict: Are Legal Measures Possible? Some Reflections on the Work of the ILC
  • May 11, 2017: Matthew Happold (Univ. of Luxembourg), Immunity from Execution of Military and Cultural Goods
  • May 18, 2017: James Harrison (Univ. of Edinburgh), “Judicial Review” of Coastal State Enforcement Action by International Courts and Tribunals: The Emergence of Dynamic and Expansive Interpretations of UNCLOS Safeguards

Special Issue: Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement

The latest issue of Revue internationale de droit économique (Vol. 30, no. 4, 2016) focuses on "Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement." Contents include:
  • Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement
    • Clotilde Jourdain-Fortier, Le TTIP : Fenêtre sur rue
    • Hanns Ullrich, The Transatlantic Trade and Investment Partnership (TTIP) : Extending Trade Policy to Domestic Markets
    • Ernst-Ulrich Petersmann, Transatlantic Free Trade Agreements : Lack of EU Leadership for Reforming Trade and Investment Law ?
    • Pierre Defraigne, Trois objections fondamentales contre le TTIP (Traité commercial transatlantique)
    • Vassilis Hatzopoulos, Les techniques de libéralisation de la prestation de services sous le TTIP
    • Clotilde Jourdain-Fortier, Vers un marché transatlantique de la santé ou les enjeux de la coopération réglementaire du projet de Partenariat transatlantique de commerce et d’investissement (TTIP) dans le domaine pharmaceutique

Symposium: Crises, Schisms, and the Way Forward for International Law

Today, April 21, 2017, the Harvard International Law Journal will hold its spring symposium. The theme is: "Crises, Schisms, and the Way Forward for International Law." The program is here.

Murphy: The Conceptual Foundations of Transitional Justice

Colleen Murphy (Univ. of Illinois, Urbana-Champaign - Philosophy) has published The Conceptual Foundations of Transitional Justice (Cambridge Univ. Press 2017). Here's the abstract:
Many countries have attempted to transition to democracy following conflict or repression, but the basic meaning of transitional justice remains hotly contested. In this book, Colleen Murphy analyses transitional justice - showing how it is distinguished from retributive, corrective, and distributive justice - and outlines the ethical standards which societies attempting to democratize should follow. She argues that transitional justice involves the just pursuit of societal transformation. Such transformation requires political reconciliation, which in turn has a complex set of institutional and interpersonal requirements including the rule of law. She shows how societal transformation is also influenced by the moral claims of victims and the demands of perpetrators, and how justice processes can fail to be just by failing to foster this transformation or by not treating victims and perpetrators fairly. Her book will be accessible and enlightening for philosophers, political and social scientists, policy analysts, and legal and human rights scholars and activists.

New Issue: International Organizations Law Review

The latest issue of the International Organizations Law Review (Vol. 13, no. 2, 2016) is out. Contents include:
  • Ramses A. Wessel, You Can Check out Any Time You like, but Can You Really Leave?
  • Daniël M. Grütters, NATO, International Organizations and Functional Immunity
  • Yaraslau Kryvoi, Procedural Fairness as a Precondition for Immunity of International Organizations
  • Hao Duy Phan, The Association of Southeast Asian Nations: International Legal Personality and Its Treaty-Making Power
  • Gloria Fernández Arribas, The Institutionalization of a Process: The Development of the Kimberley Process towards an International Organization
  • Zsuzsanna Deen-Racsmány, The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ARIO

Thursday, April 20, 2017

Wills: Contesting World Order? Socioeconomic Rights and Global Justice Movements

Joe Wills (Univ. of Leicester - Law) has published Contesting World Order? Socioeconomic Rights and Global Justice Movements (Cambridge Univ. Press 2017). Here's the abstract:
What do equality, dignity and rights mean in a world where eight men own as much wealth as half the world's population? Contesting World Order? Socioeconomic Rights and Global Justice Movements examines how global justice movements have engaged the language of socioeconomic rights to contest global institutional structures and rules responsible for contributing to the persistence of severe poverty. Drawing upon perspectives from critical international relations studies and the activities of global justice movements, this book evaluates the 'counter-hegemonic' potential of socioeconomic rights discourse and its capacity to contribute towards an alternative to the prevailing neo-liberal 'common sense' of global governance.

Dunoff & Pollack: The Judicial Trilemma

Jeffrey L. Dunoff (Temple Univ. - Law) & Mark A. Pollack (Temple Univ. - Political Science) have posted The Judicial Trilemma (American Journal of International Law, forthcoming). Here's the abstract:
International tribunals confront a “Judicial Trilemma”: specifically the states that design, and the judges that serve on, international courts face an interlocking series of trade-offs among three core values: (i) judicial independence, the freedom of judges to decide cases on the facts and the law; (ii) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (iii) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this paper unpacks the logic driving the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization’s Appellate Body. The Trilemma introduces a new set of perspectives that enables us to conceptualize the limits of judicial independence at international courts, and identify strategies to enhance this independence.

Scarfi: The Hidden History of International Law in the Americas: Empire and Legal Networks

Juan Pablo Scarfi (Universidad Nacional de San Martin - School of Politics and Government) has published The Hidden History of International Law in the Americas: Empire and Legal Networks (Oxford Univ. Press 2017). Here's the abstract:
International law has played a crucial role in the construction of imperial projects. Yet within the growing field of studies about the history of international law and empire, scholars have seldom considered this complicit relationship in the Americas. The Hidden History of International Law in the Americas offers the first exploration of the deployment of international law for the legitimization of U.S. ascendancy as an informal empire in Latin America. This book explores the intellectual history of a distinctive idea of American international law in the Americas, focusing principally on the evolution of the American Institute of International Law (AIIL). This organization was created by U.S. and Chilean jurists James Brown Scott and Alejandro Alvarez in Washington D.C. for the construction, development, and codification of international law across the Americas. Juan Pablo Scarfi examines the debates sparked by the AIIL over American international law, intervention and non-intervention, Pan-Americanism, the codification of public and private international law and the nature and scope of the Monroe Doctrine, as well as the international legal thought of Scott, Alvarez, and a number of jurists, diplomats, politicians, and intellectuals from the Americas. Professor Scarfi argues that American international law, as advanced primarily by the AIIL, was driven by a U.S.-led imperial aspiration of civilizing Latin America through the promotion of the international rule of law. By providing a convincing critical account of the legal and historical foundations of the Inter-American System, this book will stimulate debate among international lawyers, IR scholars, political scientists, and intellectual historians.

Conference: Universal Civil Jurisdiction – Which Way Forward?

On May 5, 2017 the Department of Law of the University of Ferrara will host a conference on "Universal Civil Jurisdiction – Which Way Forward?," in cooperation with the Interest Groups on International and European Human Rights Law and Private International Law of the Italian Society of International and European Union Law. Further information may be found here. Here's the idea:

Il Dipartimento di Giurisprudenza dell’Università di Ferrara organizza un seminario dal titolo Universal Civil Jurisdiction – Which Way Forward?, in cooperazione con i Gruppi di interesse sul Diritto internazionale ed europeo dei diritti umani e sul Diritto internazionale privato e processuale della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI). L’iniziativa intende proporre un’analisi a tutto tondo dei problemi legati all’esercizio della giurisdizione universale civile – una questione attualmente pendente di fronte alla Grande Camera della Corte europea dei diritti umani nell’affare Nait-Liman c. Svizzera.

The seminar aims at an all-round reassessment of the problems related to the exercise of universal civil jurisdiction. The challenge of providing appropriate venues for enforcing the right to reparation of victims of serious human rights violations raises a number of complex issues in the perspective of public and private international law. The interaction between specialists of both fields will provide the opportunity for an in-depth analysis of these open problems, which are currently under scrutiny by the Grand Chamber of the European Court of Human Rights in the case of Nait-Liman v. Switzerland.

Wednesday, April 19, 2017

New Issue: Global Responsibility to Protect

The latest issue of Global Responsibility to Protect (Vol. 9, no. 2, 2017) is out. Contents include:
  • Lisa Hultman & Karin Johansson, Responding to Wartime Sexual Violence: UN Peacekeeping and the Protection Agenda
  • Stacey Henderson, The Arms Trade Treaty: Responsibility to Protect in Action?
  • Jawoon Kim & Alan Bloomfield, Argumentation, Impact, and Normative Change: Responsibility to Protect after the Commission of Inquiry Report into Human Rights in North Korea
  • Ian Hall, Perilous Interventions and the Responsibility to Protect
  • Kudrat Virk, Perilous Interventions and the Indian Debate on R2P: A Case of Limited Engagement and Missed Opportunity
  • James Pattison, Perilous Noninterventions? The Counterfactual Assessment of Libya and the Need to be a Responsible Power
  • Sandra Destradi, India’s Reluctant Approach to R2P: Lessons from Perilous Interventions

White: Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia

Cheryl S. White has published Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia (Intersentia 2017). Here's the abstract:

The backdrop to Bridging Divides in Transitional Justice is Cambodia’s history of radical Communist revolution (1975–1979) under the brutal Khmer Rouge regime, and the culture of impunity and silence imposed on the society by successive national governments for close to three decades. Dialogue on the suppressed past began in 2006 as key figures of the regime were brought before the in situ internationalised criminal court, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC forms part of the panoply of international criminal courts of the post-Cold War era. The book engages with the dissonance between the expressivism of idealised international criminal trials and their communicative or discursive value within the societies most affected by their operation. An alternative view of the transitional trial is posited as the author elucidates the limits of expressivism and explores the communicative dynamics of ECCC trial procedure which have precipitated unprecedented local debate and reflection on the Khmer Rouge era.

The book provides a timely and nuanced analysis of the ECCC’s politically contentious and frequently criticised proceedings by examination of the trial dialogue in the Court’s first two cases. From transcripts of the proceedings, exchanges between trial participants including witnesses, civil parties and the accused, are examined to show how, at times, the retributive proceedings assumed the character of restorative justice and encompassed significant dialogue on current social issues, such as the victim/perpetrator equation and the nature of ongoing post-traumatic stress disorder flowing from the events that took place under this violent regime The Court’s capacity for representative and discursive proceedings is attributed to the substantive inclusion of the voice of the victim in proceedings, a modified inquisitorial procedure, narrative testimony and role-sharing between national and international court actors.

Woodward: The Ideology of Failed States: Why Intervention Fails

Susan L. Woodward (City Univ. of New York, Graduate Center - Political Science) has published The Ideology of Failed States: Why Intervention Fails (Cambridge Univ. Press 2017). Here's the abstract:
What do we mean when we use the term 'failed states'? This book presents the origins of the term, how it shaped the conceptual framework for international development and security in the post-Cold War era, and why. The book also questions how specific international interventions on both aid and security fronts - greatly varied by actor - based on these outsiders' perceptions of state failure create conditions that fit their characterizations of failed states. Susan L. Woodward offers details of international interventions in peacebuilding, statebuilding, development assistance, and armed conflict by all these specific actors. The book analyzes the failure to re-order the international system after 1991 that the conceptual debate in the early 1990s sought - to the serious detriment of the countries labelled failed or fragile and the concept's packaging of the entire 'third world', despite its growing diversity since the mid-1980s, as one.

Antkowiak & Gonza: The American Convention on Human Rights: Essential Rights

Thomas M. Antkowiak (Seattle Univ. - Law) & Alejandra Gonza (Univ. of Washington - Law) have published The American Convention on Human Rights: Essential Rights (Oxford Univ. Press 2017). Here's the abstract:
This book offers a thorough, critical, and accessible analysis of the American Convention on Human Rights which is the main human rights treaty of the Americas. The authors closely review the jurisprudence and the binding judgments of the two institutions charged with interpreting the Convention: The Inter-American Court of Human Rights and The Inter-American Commission on Human Rights.They focus on the rights most developed by the Court and Commission, namely the rights to equality, life, humane treatment, personal liberty, property, due process and judicial protection, as well as the freedom of expression and reparations. They examine the case law with a victim-centered lens while identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches.

New Issue: Global Summitry

The latest issue of Global Summitry (Vol. 2, no. 2, Winter 2016) is out. Contents include:
  • William Tobey, Peering down from the Summit: The Path to Nuclear Security 2010–2016 and beyond
  • Christopher Kobrak, Interwar Financial Summits: The Economic Consequences and Lessons of Attempts to Repair a Broken World
  • Selcuk Colakoglu & Mehmet Hecan, Turkey in Global Governance: An Evaluation of Turkey’s G20 Presidency and the Antalya Summit 2015
  • Jonathan Luckhurst, The G20’s Growing Political and Economic Challenges

Tuesday, April 18, 2017

New Issue: Review of International Political Economy

The latest issue of the Review of International Political Economy (Vol. 24, no. 2, 2017) is out. Contents include:
  • Commentaries
    • Erica Owen & Stefanie Walter, Open economy politics and Brexit: insights, puzzles, and ways forward
    • Mark Blyth & Matthias Matthijs, Black Swans, Lame Ducks, and the mystery of IPE's missing macroeconomy
    • Henry Farrell & Abraham Newman, BREXIT, voice and loyalty: rethinking electoral politics in an age of interdependence
    • Vivien A. Schmidt, Britain-out and Trump-in: a discursive institutionalist analysis of the British referendum on the EU and the US presidential election
    • Aida A. Hozić & Jacqui True, Brexit as a scandal: gender and global trumpism
  • Original Articles
    • Leonard Seabrooke & Kevin L. Young, The networks and niches of international political economy
    • Heike Döring, Rodrigo Salles Pereira dos Santos & Eva Pocher, New developmentalism in Brazil? The need for sectoral analysis

Bellia & Clark: The Law of Nations and the United States Constitution

Anthony J. Bellia Jr. (Univ. of Notre Dame - Law) & Bradford R. Clark (George Washington Univ. - Law) have published The Law of Nations and the United States Constitution (Oxford Univ. Press 2017). Here's the abstract:
The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 66, no. 2, April 2017) is out. Contents include:
  • Articles
    • Onder Bakircioglu & Brice Dickson, The European Convention in Conflicted Societies: The Experience of Northern Ireland and Turkey
    • Natalie L. Dobson & Cedric Ryngaert, Provocative Climate Protection: EU ‘Extraterritorial’ Regulation of Maritime Emissions
    • Pok Yin S. Chow, Reservations as Unilateral Acts? Examining the International Law Commission's Approach to Reservations
    • Bjørn Kunoy, Assertions of Entitlement to the Outer Continental Shelf in the Central Arctic Ocean
    • Alan Greene, Defining Terrorism: One Size Fits All?
    • Chris O'Meara, Should International Law Recognize a Right of Humanitarian Intervention?
    • Fiona de Londras & Kanstantsin Dzehtsiarou, Mission Impossible? Addressing Non-Execution Through Infringement Proceedings in the European Court of Human Rights
  • Shorter Article and Notes
    • Jed Odermatt, The Development of Customary International Law by International Organizations

Brockman-Hawe: Accountability for 'Crimes Against the Laws of Humanity' in Boxer China

Ben Brockman-Hawe has posted Accountability for 'Crimes Against the Laws of Humanity' in Boxer China: An Experiment with International Justice at Paoting-Fu (University of Pennsylvania Journal of International Law, Vol. 38, no. 2, pp. 627-713, 2016). Here's the abstract:

The birth of international criminal law is typically traced to the post-war prosecutions of Nazi and Japanese war criminals by the Allied powers, when in fact the Great Powers frequently turned to internationalized criminal or quasi criminal forums, as well as the rhetoric of ‘humanity’ and ‘civilization,’ to project power, establish narratives, manage public opinion, express dissatisfaction, and defend humanitarian values in the century after the Napoleonic wars. That these stories have been relegated to a narrative hinterland belies the important role each played in establishing vocabulary for international criminal law and shaping expectations of accountability. The purpose of this paper is to restore one such significant but unexplored caesure; the trial of four Chinese officials before an ‘International Commission’ by the Great Powers in the wake of the inter-religious violence that characterized the Boxer Uprising.

Although the Commission has recently received some attention by a few dedicated historians, it has so far escaped close scrutiny within the international criminal law community. Accordingly, a number of questions about the trial have remained unanswered. What actually happened at Paoting-Fu? Was it fair? Why did this operation, unlike others, result in an international criminal trial? What meaning did the trial have for the belligerents and the communities they represented? What consequences did the trial have for the development of international criminal law?

Drawing on previously unexplored material from state archives, published and unpublished missionary correspondence and military memoirs, and contemporaneous press reports, this paper addresses these questions in four parts. Part 2 of this article first sets the scene by briefly describing the state of the armed conflict in October 1900, then recounts the story of the Commission’s day-to-day operation, culminating in the execution of three Chinese officials. Part 3 sets the trial in its legal, cultural and strategic context, positioning it as an event framed by, among other factors, the concomitant coherence of international criminal law and a shift in thinking about the role of collective punishment in war. Part 4 highlights how the relevant constituencies viewed the trials, and traces the influence of this seminal experiment with individual accountability for international crimes on later efforts to create an international jurisdiction to try the Kaiser in the wake of the First World War. Finally, Part 5 explores the judicial character and fairness of the Commission.

de Mestral: Second Thoughts: Investor State Arbitration between Developed Democracies

Armand de Mestral (McGill Univ.) has published Second Thoughts: Investor State Arbitration between Developed Democracies (CIGI Press 2017). Contents include:
  • Armand de Mestral, Introduction
  • Armand de Mestral, Investor-State Arbitration between Developed Democratic Countries
  • Céline Lévesque, The European Commission Proposal for an Investment Court System: Out with the Old, In with the New?
  • Charles-Emmanuel Côté, An Experienced, Developed Democracy: Canada and Investor-State Arbitration
  • David Schneiderman, Listening to Investors (and Others): Audi Alteram Partem and the Future of International Investment Law
  • Armand de Mestral & Robin Morgan, Does Canadian Law Provide Remedies Equivalent to NAFTA Chapter 11 Arbitration?
  • Armand de Mestral & Lukas Vanhonnaeker, The Impact of the NAFTA Experience on Canadian Policy Concerning Investor-State Arbitration
  • David A. Gantz, Investor-State Dispute Settlement in US Law, Politics and Practice: The Debate Continues
  • Marc Bungenberg, A History of Investment Arbitration and Investor-State Dispute Settlement in Germany
  • Carmen Otero García-Castrillón, Spain and Investment Arbitration: The Renewable Energy Explosion
  • Csongor István Nagy, Central European Perspectives on Investor-State Arbitration: Practical Experiences and Theoretical Concerns
  • August Reinisch, The European Union and Investor-State Dispute Settlement: From Investor-State Arbitration to a Permanent Investment Court
  • Luke Nottage, Investor-State Arbitration Policy and Practice in Australia
  • Shotaro Hamamoto, Debates in Japan Over Investor-State Arbitration with Developed States
  • Younsik Kim, Investor-State Arbitration in South Korean International Trade Policies: An Uncertain Future, Trapped by the Past
  • Hugo Perezcano, Risks of a Selective Approach to Investor-State Arbitration
  • Ucheora Onwuamaegbu, Limiting the Participation of Developed States: Impacts on Investor-State Arbitration
  • Armand de Mestral, Investor-State Arbitration and Its Discontents: Options for the Government of Canada

Monday, April 17, 2017

Rossi: The Transboundary Dispute Over the Waters of the Silala/Siloli

Christopher R. Rossi (Univ. of Iowa - Law) has posted The Transboundary Dispute Over the Waters of the Silala/Siloli: Legal Vandalism and Goffmanian Metaphor (Stanford Journal of International Law, Vol. 53, no. 1, pp. 55-87, 2017). Here's the abstract:
The waters of the Silala/Siloli, located in the hyper-arid Atacama Desert dividing Bolivia and Chile, originate in Bolivia, flow for a mere four kilometers before entering Chile, and flow for four more kilometers before commingling with the San Pedro tributary and debouching into the Pacific Ocean. And yet this tiny basin, located in one of the most remote and inhospitable places on earth, forms what the United Nations calls one of the most hydropolitically vulnerable basins in the world. Bolivia claims that a Chilean concessionaire artificially diverted the waters in 1908 and Chile now illegally draws from the waters, long after Bolivia terminated the concession agreement. Chile claims the waters form a natural transboundary watercourse that would flow as a servitude into Chile even if the waters never had been augmented or directed by the canals. Questions of law and fact blur the legal status of these waters, their possible relationship to a transboundary aquifer, and the customary application of equitable and reasonable use standards regarding a river, if indeed the Silala/Siloli is a river. As the case heads toward The Hague for consideration by the International Court of Justice, this Article concentrates on the evolving relationship between these historically troubled riparians, borrowing from the sociological framework analysis of Erving Goffman to investigate how international dispute settlement mechanisms may indeed be challenged by ceremonial forms of dramaturgy that play more to domestic audiences than pacific settlement outcomes. In the Anthropocene age, acute concerns about fresh water and non-navigable watercourses now have the potential to erupt into major conflicts between states. These conflicts draw critical attention to the evolving relationship between groundwater and surface water regimes, certainly in the great hydrographic basins of the world and, as this case details, in one of the smallest and most remote catchments on earth.

Kleinlein: Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control

Thomas Kleinlein (Goethe-Universität Frankfurt am Main - Law) has posted Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control (European Journal of International Law, forthcoming). Here's the abstract:
This article fathoms the contestability of a European Consensus and its significance for the legitimacy of the European Court of Human Rights (ECtHR). A ‘combined legitimation strategy’ of the ECtHR, comprising European Consensus and the new procedural approach to the margin of appreciation indicated by several judgments of the ECtHR, opens up spaces for democratic contestation and deliberation. Progressive, rights-friendly judgments that take a mere trend in ‘vanguard’ State Parties for a European Consensus will probably provoke domestic contestation in ‘laggard’ states. This potential backlash can be productive because it can subsequently impart additional legitimation on the ECtHR’s judgment. Procedural rationality control, in turn, ensures that this avenue of democratic legitimation is kept open and that there are institutional structures and processes to consider and balance human rights adequately in domestic debates. Combining consensus-based arguments with a procedural approach to the margin of appreciation reconciles the impact of a European Consensus and the need for democratic deliberation. High standards in domestic procedures can possibly rebut the presumption in favour of the solution adopted by the majority of Convention States. Potentially, this approach also allows democratic domestic law-making institutions to react to judgments of the ECtHR based on a European Consensus.

Symposium: Non-UN Sanctions and International Law

The Institute of International Relations and the Nottingham International Law and Security Centre at the University of Nottingham will hold the first of a two-part symposium on May 5, 2017, in Prague. The overall topic of the symposium is "Non-UN Sanctions and International Law." The program for the first event is here.

Seminar: Finance and Human Rights: Crisis of Accountability and Legitimacy

On April 21, 2017, the Interest Group on Business and Human Rights of the European Society of International Law and the Transnational Law Institute at King’s College London will hold a joint seminar on "Finance and Human Rights: Crisis of Accountability and Legitimacy." Here's the idea:

The economic turmoil of the past years has drawn attention to the role of financial institutions play vis-à-vis human rights. This seminar seeks to go beyond the ubiquitous tripartite “protect, respect, remedy” business & human rights frame; special emphasis will be placed on the generation of accountability and legitimacy within private law-making processes in financial markets. We will discuss the processes and actors of developing self-regulatory norms.

This workshop provides a platform for experienced and early-stage academics as well as PhD and research students to share, discuss, and develop their work on critical issues. The objective is to optimise research impact of our participants by engaging the different communities of practice in law, political science, management studies, or accounting in this interdisciplinary field of business and human rights.

Symposium: The Expert in the International Adjudicative Process

On April 27-28, 2017, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law will host a symposium on "The Expert in the International Adjudicative Process." The program is here. Here's the idea:
The symposium intends to provide a platform for the exchange of ideas on a topic of considerable debate and divergent views. It will highlight and confront, among other issues, the appointment of experts, their roles and obligations, the modes of using experts within the framework of the proceedings, and the means of assessing expert evidence available to the judge. The interaction of highly experienced and specialised participants will provide for an in-depth practical and theoretical analysis of the topic, addressing current and emerging trends in relation to expert involvement in international dispute, as well as the scope for reform in this field.

Kadelbach, Kleinlein, & Roth-Isigkeit: System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel

Stefan Kadelbach (Goethe-Universität Frankfurt am Main - Law), Thomas Kleinlein (Goethe-Universität Frankfurt am Main - Law), & David Roth-Isigkeit (Goethe-Universität Frankfurt am Main - Law) have published System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford Univ. Press 2017). Contents include:
  • Stefan Kadelbach, Thomas Kleinlein & David Roth-Isigkeit, Introduction
  • David Roth-Isigkeit, Niccolò Machiavelli's International Legal Thought: Culture, Contingency, and Construction
  • Kirstin Bunge, Francisco de Vitoria: A Redesign of Global Order on the Threshold of the Middle Ages to Modern Times
  • Tobias Schaffner, Francisco Suárez S. J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship
  • Merio Scattola, Jean Bodin on International Law
  • Andreas Wagner, Alberico Gentili: Sovereignty, Natural Law, and the System of Roman Civil Law
  • Thomas Hüglin, Althusius: Back to the Future
  • Stefan Kadelbach, Hugo Grotius on the Conquest of Utopia by Systematic Reasoning
  • Jonas Heller, Orders in disorder: The Question of a Sovereign State of Nature in Hobbes and Rousseau
  • Tilman Altwicker, The International Legal Argument in Spinoza
  • Vanda Fiorillo, States as Ethico-Political Subjects of International Law: The Relationship between Theory and Practice in the International Politics of Samuel Pufendorf
  • Thomas Kleinlein, Christian Wolff: System as an Episode?
  • Christian Volk, The Law of the Nations as the Civil Law of the World: On Montesquieu's Political Cosmopolitanism
  • Simone Zurbuchen, Emer de Vattel on the Society of Nations and the Political System of Europe
  • Bastian Ronge, Towards a System of Sympathetic Law: Envisioning Adam Smith's Theory of Jurisprudence
  • Benedict Vischer, Systematicity to Excess Kant's Conception of the International Legal Order
  • Carla De Pascale, Fichte and the Echo of his Internationalist Thinking in Romanticism
  • Sergio Dellavalle, The Plurality of States and the World Order of Reason: On Hegel's Understanding of International Law and Relations
  • Martti Koskenniemi, What should the History of the Law of Nations Become?
  • Nehal Bhuta, State Theory, State Order, State System: Ius Gentium and the constitution of Public Power
  • Thomas Duve, Spatial Perceptions, Juridical Practices, and Early International Legal Thought around 1500: From Tordesillas to Saragossa
  • Mónica García-Salmones, The Disorder of Economy? The first Relectio de Indis in a Theological Perspective
  • Gunther Hellmann, Power and Law as Ordering Devices in the System of International Relations
  • Armin von Bogdandy & Sergio Dellavalle, Universalism and Particularism: A Dichotomy to Read Theories on International Order

Sunday, April 16, 2017

Dothan: A Virtual Wall of Shame: The New Way of Imposing Reputational Sanctions on Defiant States

Shai Dothan (Univ. of Copenhagen - Law) has published A Virtual Wall of Shame: The New Way of Imposing Reputational Sanctions on Defiant States (Duke Journal of Comparative & International Law, Vol. 27, no. 2, pp. 141-189, 2017). Here's the abstract:
What happens after an international court finds a state has violated international law? Many realize today that states often fail to comply with such judgments. International courts like the European Court of Human Rights (“ECHR”) have to rely on the help of Non-Governmental Organizations (“NGOs”) to shame states into compliance. In 2011, the body charged with enforcing judgments of the ECHR launched a new website dedicated to publishing reports by NGOs that criticize states for noncompliance with ECHR judgments. This website published hundreds of reports, as well as the responses of some accused states. The Article analyzes all the reports published in the first four years since the website was created. This analysis, together with interviews with many of the NGO lawyers involved, sheds light on the way reputational sanctions work in international law. It reveals that NGOs focus most of their attention on legally important cases and on cases that address severe violations. It also shows that NGOs focus on states that usually comply with their international obligations instead of on states that regularly fail to comply with international law.

Brockman-Hawe: Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War

Ben Brockman-Hawe has posted Punishing Warmongers for Their 'Mad and Criminal Projects' - Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War (Tulsa Law Review, forthcoming). Here's the abstract:

The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870.

The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.

Conference: Transnational Criminal Law in the Americas

On May 4-5, 2017, the Transnational Law and Justice Network at the University of Windsor Faculty of Law will hold a conference on "Transnational Criminal Law in the Americas." Registration and additional information can be found here.

Trachtman: Integrating Lawfare and Warfare

Joel P. Trachtman (Tufts Univ. - Fletcher School of Law and Diplomacy) has posted Integrating Lawfare and Warfare (Boston College International and Comparative Law Review, Vol. 39, no. 2, 2016). Here's the abstract:
Current military campaigns are not waged solely on the physical battlefield, but in multiple other arenas. One such arena is lawfare: legal activity that supports, undermines, or substitutes for other types of warfare. In today’s law-rich environment, with an abundance of legal rules and legal fora, strategists must evaluate the full scope of possible legal argumentation. Lawfare can substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective. As a result, lawfare can be strategically integrated into military command structures to bring about desired outcomes.

Alter: National Perspectives on International Constitutional Review: Diverging Optics

Karen J. Alter (Northwestern Univ. - Political Science) has posted National Perspectives on International Constitutional Review: Diverging Optics (in Comparative Judicial Review, Erin Delaney & Rosalind Dixon eds., forthcoming). Here's the abstract:
Why might national judges facilitate or tacitly undermine state respect for international law and IC legal rulings? I discuss two diverging optics – the luxury optic and the fail-safe optic – through which national judges approach international law and IC review of state actions. The luxury optic suggests that although ICs may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm. The fail-safe optic, by contrast, insists that IC rulings must guide and perhaps even bind national legal review. I argue that political motives, rather than legal constraints, help to define and shape national judicial optics. Using illustrations of national judicial responses to decisions of a diverse array of international courts, the chapter explains how these optics end up shaping national legal and political cultures of constitutional obedience to international law. Finally, I discuss and illustrate an intermediate position where national supreme courts defend the supremacy of the national constitution while using their constitutional authority to support national adherence to international law as interpreted by ICs.

Saturday, April 15, 2017

Conference: The Law Applicable to International Investment Disputes

The ICC Young Arbitrators Forum, together with Department of Law of LUISS Guido Carli, will hold a conference on May 12, 2017, in Rome. The theme is: "The Law Applicable to International Investment Disputes." The program is here. Here's the idea:
The outcome of a dispute may greatly depend on the rules determined to be applicable. International investment arbitration does not differ from other arbitral procedures: the principle of party autonomy is the primary rule governing the arbitration. Only in the absence of a choice of law, arbitrators are entitled to exercise a certain degree of discretion in the determination of the applicable law. But, what are the solutions adopted in the absence of such choice? What are the interactions between the different legal systems involved (i.e., domestic and international law)? Moreover, given the new European Union competence over foreign investments, can EU law be deemed applicable to the resolution of a dispute?

New Volume: Japanese Yearbook of International Law

The latest volume of the Japanese Yearbook of International Law (Vol. 59, 2016) is out. Contents include:
  • Half a Century with the International Covenants on Human Rights: Long-Term Impacts on the World: Part One
    • Kaoru Obata, Overview of a Half-Century of International Covenants on Human Rights; Inter-State Cooperation as the Original Infrastructure and Autonomous Institutionalization
    • Andrew Byrnes, Whose International Law Is It? Some Reflections on the Contributions of Non-State Actors to the Development and Implementation of International Human Rights Law
    • Shin Hae-Bong, Toward a Holistic Understanding and Implementation of Human Rights: Development of Norms and Practice under the International Covenant on Economic, Social and Cultural Rights
    • Antoine Buyse, Echoes of Strasbourg in Geneva — The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee —
    • Yasuzo Kitamura, The Influence of the International Covenant on Civil and Political Rights on Prisoners’ Rights and Criminal Justice in Contemporary Japan
    • Teraya Koji, The Impact of the International Covenants on Human Rights on the Rights of Foreigners in Japan
  • Unilateralism and Multilateralism in Regulating Cross-Border Business Transactions: Part One
    • Ralf Michaels, Towards a Private International Law for Regulatory Conflicts?
    • Tadashi Shiraishi, Customer Location and the International Reach of National Competition Laws
    • Keigo Fuchi, Unilateralism, Bilateralism, and Multilateralism in International Taxation
  • Note
    • Takashi Kubota, Financial Stability Concern of the Extraterritorial Impacts Caused by the Recent US Financial Sanctions on Foreign Banks
  • Party Autonomy in Contemporary Private International Law: Part Two
    • Stéphanie Francq, Party Autonomy and Regulation — Public Interests in Private International Law —
    • Yuko Nishitani, Party Autonomy in Contemporary Private International Law — The Hague Principles on Choice of Law and East Asia —
  • ICJ Judgment on Whaling in the Antarctic: Its Significance and Implications: Part Two
    • Shotaro Hamamoto, Paradoxical Role of Experts in the Whaling in the Antarctic Case
  • Japanese Digest of International Law
    • Tomohiro Mikanagi & Hirohito Ogi, The Japanese Views on Legal Issues Related to Security
    • Masahiko Asada, The Destruction of Japanese Abandoned Chemical Weapons in China under the Chemical Weapons Convention
  • Cases and Issues in Japanese Private International Law
    • Béligh Elbalti, The Jurisdiction of Foreign Courts and the Recognition of Foreign Judgments Ordering Injunction: The Supreme Court Judgment of April 24, 2014

Messenger: The Practice of Litigation at the ICJ: The Role of Counsel in the Development of International Law

Gregory Messenger (Univ. of Liverpool - Law) has posted The Practice of Litigation at the ICJ: The Role of Counsel in the Development of International Law (in Research Handbook on the Sociology of International Law, Moshe Hirsch & Andrew Lang eds., forthcoming). Here's the abstract:

International law is the law of States. They are the principal actors in international law, and it is primarily upon their consent that the international legal system is built. This is the customary starting point, upon which additional complexities are added: the role of international organizations (‘IOs’), multinational corporations or other non-state actors, and the importance of transnational networks of regulators.

This contribution seeks to identify the role of another set of actors involved in international law-making – international legal counsel – those individuals involved in providing legal advice and litigating at international tribunals. In particular, the focus will be on the most traditional of international law’s judicial institutions: the International Court of Justice (‘ICJ’). The argument is the following: beyond the orthodox accounts of law-making as dominated by States or IOs and guided by international tribunals such as the ICJ, there exists a cooperative process of law-making exercised by international legal counsel, technical assistants, and diplomats in concert with judges and secretariats of international tribunals. Together, they form a social space in which their competition is based on (implicitly) agreed rules, most of which are non-legal in nature. Such a process is to the benefit of a number of actors involved, though States are not necessarily principal among these.

New Issue: Revue trimestrielle des droits de l'homme

The latest issue of the Revue trimestrielle des droits de l'homme (No. 110, Avril 2017) is out. Contents include:
  • Christian Charrière-Bournazel, Libres propos sur la Turquie et l’Europe
  • Béatrice Pastre-Belda, La femme dans la jurisprudence de la Cour européenne des droits de l’homme
  • Charlotte Crucifix & Alice Gilot, Grève dans les prisons : pour l’instauration d’un service minimum en Belgique
  • Mihaela Ailincai, Julie Arroyo, Stéphane Gerry-Vernières, Sabine Lavorel, Delphine Mardon, & Sandrine Turgis, La soft law dans le domaine des droits fondamentaux (juin 2015 – octobre 2016)
  • Aurélia Schahmaneche & Mustapha Afroukh, Les demandes d’asile fondées sur la religion devant la Cour européenne des droits de l’homme : une protection à éclipses (obs/s. Cour eur. dr. h., Gde Ch., F.G. c. Suède, 23 mars 2016)
  • Antoine Chopplet, Une nouvelle contribution au concept de « journalisme responsable » par la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., Gde Ch., Bédat c. Suisse, 29 mars 2016)
  • Florence Benoît-Rohmer, Les cours européennes face au défi de la confiance mutuelle (obs/s. Cour eur. dr. h., Gde Ch., Avotinš c. Lettonie, 23 mai 2016)
  • Stéphanie Wattier, Le Conseil d’État français suspend l’interdiction du port du « burkini » (obs/s. Cons. Etat (fr.), Ligue des droits de l’homme e.a., 26 août 2016)
  • Christelle Macq, Accès différé à l’assistance d’un avocat : la Cour confirme et précise sa jurisprudence (obs/s. Cour eur. dr. h., Gde Ch., Ibrahim e.a. c. Royaume-Uni, 13 septembre 2016)
  • Frédéric Krenc, À propos de la radiation de la requête V.M. par la Grande Chambre et de l’autorité du précédent arrêt de chambre constatant la violation de la Convention (obs/s. Cour eur. dr. h., Gde Ch., V.M. e.a. c. Belgique, 17 novembre 2016)

Friday, April 14, 2017

Murphy: Third Report on Crimes Against Humanity

Sean D. Murphy (Member, International Law Commission; George Washington Univ. - Law) has posted Third Report on Crimes Against Humanity (UN Doc. A/CN.4/704 (2017)). Here's the abstract:

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In 2016, based on the Special Rapporteur’s Second Report, the Commission provisionally adopted an addition six draft articles with commentary. In this Third Report, which will be debated by the Commission during the summer of 2017, the Special Rapporteur proposes a draft preamble and seven additional draft articles, which are focused on various obligations of States with respect to the prosecution of crimes against humanity within national law. Specifically, the seven proposed draft articles address: extradition (draft article 11); non-refoulement (draft article 12); mutual legal assistance (draft article 13); treatment of victims, witnesses and others (draft article 14); relationship to competent international criminal tribunals (draft article 15); federal State obligations (draft article 16); and inter-State dispute resolution in the event of non-compliance (draft article 17).

Annex I to the report contains the ten draft articles provisionally adopted by the Commission to date. Annex II contains the draft preamble and seven draft articles proposed in this report.

Conference: 26th Annual SLS-BIICL Conference on Theory and International Law (Update)

On May 3, 2017, the Society of Legal Scholars and the British Institute of International and Comparative Law will hold the 26th Annual SLS-BIICL Conference on Theory and International Law, at the BIICL. The theme is: "Inside the Mind of International Decision-Makers." The program is now available here. Here's the idea:

The 2017 Conference on Theory and International Law seeks to understand better the behaviour of those who shape international law - international and domestic judges, arbitrators, and state officials. Inspired by ground-breaking research that opens the "black box" of international decision-making, this Conference invites participants to theorise, experiment and speculate.

Some of the questions we will explore are: Do decision-makers behave rationally? Do they behave predictably?What factors may influence their decision-making? What are the roles of cognitive skills, intuition, and background, including education and political persuasion? What are the implications of these insights for choosing a method of dispute settlement for a particular case or designing a dispute settlement mechanism for future disputes? What are the implications for the conduct and procedures of international negotiations?

Mitchell & Munro: Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Andrew D. Mitchell (Univ. of Melbourne - Law) & James Munro (Univ. of Melbourne - Law) have posted Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements (European Journal of International Law, forthcoming). Here's the abstract:
This article considers whether an international investment agreement (IIA) between two States parties can be interpreted in the light of a ‘third-party IIA’ (defined as a party’s IIA with a third State, a party’s model IIA, or an IIA between other States parties). A significant number of tribunals have been willing to interpret the IIA before them with reference to third-party IIAs, drawing inferences from differences or similarities in their texts. However, the use of third-party IIAs in this manner often reflects an erroneous application of the customary rules of treaty interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. These conclusions have significant implications for international investment law and State practice. If investment tribunals continue to look to third-party IIAs beyond the parameters of the Vienna Convention, beyond consent of the disputing parties, and beyond the common intention of treaty parties, contemporary developments in treaty drafting may have unintended or even perverse consequences.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 21, no. 4, 2017) is out. Contents include:
  • Social-Environmental Conflicts, Extractivism and Human Rights in Latin America
    • Malayna Raftopoulos, Contemporary debates on social-environmental conflicts, extractivism and human rights in Latin America
    • Joanna Morley, ‘ … Beggars sitting on a sack of gold’: Oil exploration in the Ecuadorian Amazon as buen vivir and sustainable development
    • Radosław Powęska, State-led extractivism and the frustration of indigenous self-determined development: lessons from Bolivia
    • Rickard Lalander, Ethnic rights and the dilemma of extractive development in plurinational Bolivia
    • Marieke Riethof, The international human rights discourse as a strategic focus in socio-environmental conflicts: the case of hydro-electric dams in Brazil
    • John-Andrew McNeish, Extracting justice? Colombia’s commitment to mining and energy as a foundation for peace

Nouwen: The International Criminal Court and Conflict Prevention in Africa

Sarah Nouwen (Univ. of Cambridge - Law) has posted The International Criminal Court and Conflict Prevention in Africa (in Towards a New Pax Africana: Making, Keeping, and Building Peace in the Post-Cold War Era, Tony Karbo & Kudrat Virk eds., forthcoming). Here's the abstract:
This chapter examines the role of the International Criminal Court in conflict prevention. To that end, it explores three sub-questions. First, what does the ICC have to do with prevention? Second, what does the Court have to do with the prevention of conflict in particular? And finally, even more specifically, what does it have to do with the prevention of conflict in Africa? In reflecting upon these questions, the chapter highlights some of the most frequent assumptions underpinning claims about the ICC and conflict prevention on the continent.

Call for Papers: Business and Human Rights Workshop

A call for papers has been issued for a workshop on business and human rights at Aarhus University, on October 2-3, 2017. The theme is: "The Responsibility of Home States, the European Union, and International Organizations in the area of Business and Human Rights and Testimonies from Communities and Individuals Impacted by Business Activities." The call is here.

Thursday, April 13, 2017

Bado: Der Gerichtshof der Westafrikanischen Wirtschaftsgemeinschaft (ECOWAS) als Verfassungsgericht

Kangnikoé Bado (Max-Planck-Institut für Sozialrecht und Sozialpolitik) has published Der Gerichtshof der Westafrikanischen Wirtschaftsgemeinschaft (ECOWAS) als Verfassungsgericht (Mohr Siebeck 2017). Here's the abstract:

Der Gerichtshof der Westafrikanischen Wirtschaftsgemeinschaft (ECOWAS) ist befugt, menschenrechtswidrige Urteile innerstaatlicher Gerichte zu überprüfen. Bürgerinnen und Bürger der ECOWAS-Mitgliedstaaten können den Gerichtshof anrufen und genießen dadurch Individualrechtsschutz, auch wenn nach den innerstaatlichen Rechtsordnungen mancher Mitgliedstaaten Individualbeschwerden vor den Verfassungsgerichten unzulässig sind. Kangnikoé Bado setzt sich mit den hieraus resultierenden Konflikten zwischen regionaler und nationaler Ebene auseinander.

Although originally established to address matters of regional integration only, the Court of the Economic Community of West African States has been tasked to rule on human rights violations since 2005. This has led to jurisdictional conflicts between national (constitutional) courts of ECOWAS member states and the court itself. The author analyses the relationship between the national and regional level, and develops proposals on how to overcome such legal variances.

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 61, no. 5, May 2017) is out. Contents include:
  • Austin M. Strange, Axel Dreher, Andreas Fuchs, Bradley Parks, & Michael J. Tierney, Tracking Underreported Financial Flows: China’s Development Finance and the Aid–Conflict Nexus Revisited
  • Brett A. Casper, IMF Programs and the Risk of a Coup d’état
  • Gustavo A. Flores-Macías & Sarah E. Kreps, Borrowing Support for War: The Effect of War Finance on Public Attitudes toward Conflict
  • Eric Keels, Oil Wealth, Post-conflict Elections, and Postwar Peace Failure
  • Ulrich Petersohn, Private Military and Security Companies (PMSCs), Military Effectiveness, and Conflict Severity in Weak States, 1990–2007
  • Amy Pond, Economic Sanctions and Demand for Protection
  • Bradley E. Holland & Viridiana Rios, Informally Governing Information: How Criminal Rivalry Leads to Violence against the Press in Mexico
  • Kristian S. Gleditsch & Mauricio Rivera, The Diffusion of Nonviolent Campaigns

New Issue: Review of European, Comparative & International Environmental Law

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 26, no. 1, April 2017) is out. Contents include:
  • Articles
    • Renske A. Giljam, Better BAT to Bolster Ecosystem Resilience: Operationalizing Ecological Governance through the Concept of Best Available Techniques
    • Yaffa Epstein, Killing Wolves to Save Them? Legal Responses to ‘Tolerance Hunting’ in the European Union and United States
    • Elena Fasoli, The Possibilities for Nongovernmental Organizations Promoting Environmental Protection to Claim Damages in Relation to the Environment in France, Italy, the Netherlands and Portugal
    • Juliana Zuluaga Madrid, Access to Environmental Information from Private Entities: A Rights-Based Approach
    • Amy Maguire & Jeffrey McGee, A Universal Human Right to Shape Responses to a Global Problem? The Role of Self-Determination in Guiding the International Legal Response to Climate Change
    • Thoko Kaime, Countering Abuse in EU Environmental Markets: The Case for Integrated Operational Safeguards
    • Nicolas Bremer, Post-environmental Impact Assessment Monitoring of Measures or Activities with Significant Transboundary Impact: An Assessment of Customary International Law
  • Case Note
    • Yoshifumi Tanaka, Costa Rica v. Nicaragua and Nicaragua v. Costa Rica: Some Reflections on the Obligation to Conduct an Environmental Impact Assessment