When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it was never well designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its scope of application so that, when the time is right, it may be fully interred.
Saturday, July 8, 2017
Gardner: Retiring Forum Non Conveniens
Maggie Gardner (Harvard Univ. - Law) has published Retiring Forum Non Conveniens (New York University Law Review, Vol. 92, no. 2, p. 390, May 2017). Here's the abstract:
Diel-Gligor: Towards Consistency in International Investment Jurisprudence
Investor-State arbitration is currently a much-debated topic, both within the legal community and in the public at large. In Towards Consistency in International Investment Jurisprudence, Katharina Diel-Gligor addresses the alleged proliferation of inconsistent decision-making in this field – one of the main points of concern raised in the ongoing discussions. After exploring whether such criticism is appropriate at all, she goes on to examine the different causes, forms, and manifestations of the inconsistencies that exist through a detailed analysis of ICSID arbitration. The author then canvasses possible approaches to reform and concludes that an ICSID preliminary ruling system – the practicalities of which are set out in the study – is a suitable means for enhancing consistency in investment arbitration and moving towards a jurisprudence constante.
Plesch: Human Rights After Hitler: The Lost History of Prosecuting Axis War Crimes
Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.
From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC's files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including "water treatment," wartime sexual assault, and crimes by foot soldiers who were "just following orders." Plesch's book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.
Gfeller: The Authenticity of Heritage: Global Norm-Making at the Crossroads of Cultures
Aurélie Élisa Gfeller (Graduate Institute of International and Development Studies) has published The Authenticity of Heritage: Global Norm-Making at the Crossroads of Cultures (American Historical Review, Vol. 122, no. 3, pp. 758-791, June 2017). Here's the abstract:
This article analyzes the global debate on the authenticity of cultural heritage as a lens through which to view the process of elaborating and reshaping global cultural norms. Drawing on interviews and mostly untapped archival records across several countries, it reveals that the groundbreaking Nara Document on Authenticity resulted from a surprising coalition of actors from diverse locations in the Northern Hemisphere. At Nara, Japan, in November 1994, Canadians, Japanese, and Norwegians came together at a Conference on Authenticity in Relation to the World Heritage Convention to challenge the prevailing Eurocentric definition of authenticity based on distinct yet partially overlapping interests. While adding a new focus on the arts and culture to the literature on twentieth-century international institutions as loci of transnational experiences, this article also offers a methodological illustration of how historical analysis can combine macro- and micro-perspectives, retaining primary materials as sources of evidence. It shows that the focus on entrepreneurial actors across geographical scales can lead to the discovery of archival troves highlighting seemingly unexpected connections such as those between Canada, Japan, and Norway. By illuminating these historical dynamics, this article further suggests that global norms not only bear the imprint of geographically and temporally anchored values but also result from alliances that straddle the traditional West/non-West or North/South divide. This research thus points to the importance of tracking global cultural connections outside a center-periphery framework and, more broadly, any preconceived geographical framework.
May & Fyfe: International Criminal Tribunals: A Normative Defense
In the last two decades there has been a meteoric rise of international criminal tribunals and courts and also a strengthening chorus of critics against them. Today it is hard to find strong defenders of international criminal tribunals and courts. This book attempts such a defense against an array of critics. It offers a nuanced defense, accepting many criticisms but arguing that the idea of international criminal tribunals can be defended as providing the fairest way to deal with mass atrocity crimes in a global arena. Fairness and moral legitimacy will be at the heart of this defense. The authors take up the economic and political arguments that have been powerfully expressed, as well as arguments about sovereignty, punishment, responsibility, and evidence; but in the end they show that these arguments do not defeat the idea of international criminal courts and tribunals.
Friday, July 7, 2017
New Issue: Journal of World Intellectual Property
The latest issue of the Journal of World Intellectual Property (Vol. 20, nos. 3-4, July 2017) is out. Contents include:- Lisa F. Clark & William A. Kerr, Climate change and terroir: The challenge of adapting geographical indications
- Nefissa Chakroun, Using technology transfer offices to foster technological development: A proposal based on a combination of articles 66.2 and 67 of the TRIPS agreement
- Soumya Vinayan, Geographical indications in India: Issues and challenges—An overview
- Jerry Jie Hua, Copyright infringement and protection in holographic performances: From the Chinese perspective
New Issue: Chicago Journal of International Law
- Scott J. Shackelford, The Law of Cyber Peace
- Sungjoon Cho, Jacob Radecki, & Cecilia Suh, Communitizing Transnational Regulatory Concerns
- Shiri Krebs, The Legalization of Truth in International Fact-Finding
- Adam S. Chilton, Experimentally Testing the Effectiveness of Human Rights Treaties
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 PasipanodyaThematic 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.
Knop & Riles: Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the “Comfort Women” Agreement
Karen Knop (Univ. of Toronto - Law) & Annelise Riles (Cornell Univ. - Law & Anthropology) have published Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the “Comfort Women” Agreement (Cornell Law Review, Vol. 102, no. 4, p. 853, 2017). Here's the abstract:
After more than twenty years of worldwide feminist activism, transnational litigation, and diplomatic stalemate, on December 28, 2015, Japan and South Korea announced a historic agreement intended to provide closure to the so-called “Comfort Women issue”—the issue of what Japan must do to atone for the sexual enslavement of up to 200,000 women from throughout Asia in service to the Japanese troops before and during World War II. Reactions to this landmark agreement continue to be mixed, and the question for many is whether it will hold. One challenge is how to respect the scale and systematicity of the crimes without imposing a single narrative, or without projecting an overdetermined understanding of the gendered past onto the future. We offer an analysis of this question in a wider lens: how to address grave historical injustices when legal claims and advocacy goals spread and metamorphose not only over time, but also across jurisdictions.
Focusing on one high profile and particularly contentious provision of the agreement, concerning a privately erected statue honoring the Comfort Women outside the Japanese embassy in Seoul, we first show that the usual questions about settlements for historical injustices—whether they will achieve closure and what kind—can productively be traded for attention to where and when closure and reopening occur.
Borrowing our analytical lens from conflict of laws, we refine the problem as a manifestation of a pervasive issue for feminist justice in a globalized world that we call “spatio-temporal diffusion.” We argue that a novel response to this diffusion of historical injustices can be grounded in conflict-of-laws techniques. Using the hypothetical of a case brought by Korean Comfort Women in California, we redescribe the field’s techniques for dealing with time across space as a matter of what we term the “sequencing” of different spatio-temporal horizons. This approach resonates with, but also goes a step beyond, the arguments of certain feminist social theorists that feminist politics must be polytemporal. In the mode of an interdisciplinary experiment, we deploy the conflicts technique of sequencing spatio-temporal horizons as a more specified and hopeful approach to a feminist future.
New Issue: International Legal Materials
- Mellet v. Ireland (H.R. Comm.), with introductory note by Fiona de Londras
- Schrems v. Data Protection Commissioner (C.J.E.U.), with introductory note by Tobias J. Schulz
- Baka v. Hungary (Eur. Ct. H.R.), with introductory note by Sandor Szemesi
- Khlaifia and Others v. Italy (Eur. Ct. H.R.), with introductory note by Duygu Çiçek
- Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa (Afr. Comm'n Hum. & Peoples’ Rts.), with introductory note by Cecilia M. Bailliet
New Additions to the UN Audiovisual Library of International Law
The Codification Division of the UN Office of Legal Affairs recently added three lectures to the UN Audiovisual Library of International Law. They were given by Antony Anghie on “History and International Law” and “Third World Approaches to International Law” and by Fabio Morosini on “The Promotion of Health and Environmental Policies in the Jurisprudence of the WTO.”
Thursday, July 6, 2017
Galbraith: Cooperative and Uncooperative Foreign Affairs Federalism
Jean Galbraith (Univ. of Pennsylvania - Law) has published Cooperative and Uncooperative Foreign Affairs Federalism (Harvard Law Review, Vol. 130, no. 8, p. 2131, June 2017). Here's the introduction (footnotes omitted):
Foreign affairs are a matter for our national government. On this there was agreement from the beginning, with even the Jeffersonians accepting that the nation should be “one as to all foreign concerns,” albeit “several as to all merely domestic.” The text of the Constitution bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states. The received wisdom was that, as Alexis de Tocqueville wrote, “[n]ations in relation to each other are but single units” and “[a] nation needs a single government above all to give it the advantage when dealing with foreigners.”
But are foreign affairs exclusively a matter for our national government? And if not, then what can states and local governments do with regard to foreign affairs? Like other separation of powers issues, these questions have been with us throughout our constitutional history, sometimes salient and sometimes muted, expressed through the continued practice of various layers of government and the sporadic interventions of courts. From early on, states have engaged with issues involving both local and transnational dimensions, including immigration, the treatment of foreign nationals, and the use of foreign law.
Today the shared space between what is local and what is transnational is far greater. Just as issues once viewed as local matters increasingly came to be seen as national, so now they are increasingly taken to have transnational significance. Globalization presses on practically every front: trade, environment, security, health, human rights, investment, migration, and more. One prominent effect of this shift has been the rise of transnational regulation through treaties and other forms of international cooperation. The counterpart is the growing extent to which state and local governments act in this shared space. This is the focus of Professors Michael Glennon and Robert Sloane’s thoughtful recent book, Foreign Affairs Federalism: The Myth of National Exclusivity.
Glennon and Sloane frame their project as an attempt to debunk “three pervasive myths about foreign affairs federalism” (p. xv). One of these myths is conceptual, another constitutional, and the third political. The conceptual myth is that there is a “neat distinction” between domestic and foreign affairs (p. xvii). The constitutional myth is “that foreign policy is or should be, with a few minor and inconsequential exceptions, exclusively federal” (p. xviii). The political myth is “that state control equates with conservative — and federal [control] with liberal — political causes” (p. xvi). When put in their strongest form, the three read more like straw men than myths, but Glennon and Sloane use them effectively as foils for their own nuanced claims. Broadly speaking, Glennon and Sloane argue that states and cities constantly engage in activities with transnational implications and that constitutional law should be capacious in permitting these activities.
Central to Glennon and Sloane’s account is a description of the kinds of transnational work that states and cities are doing in practice (pp. 55–76). For the most part, the authors see states and cities as seeking to fill voids left by federal inaction in the transnational space (pp. 45–55). Their account should cheer liberal hearts. States and cities are not just trying to look after their citizens abroad, ensure security at home, and bring in more foreign investment. They are also working to slow climate change, promote human rights, and push back against oppressive foreign regimes. Of course, this is only some states and cities. Others are pursuing policies at the other end of the spectrum, such as laws seeking to crack down on undocumented immigrants. Nonetheless, Glennon and Sloane’s celebration of states, and especially cities, as potential guardians of liberal values feels eerily prescient in the wake of the 2016 election.
Glennon and Sloane draw a contrast between the dynamic state and local practice that they document and the contours of current Supreme Court doctrine. For Glennon and Sloane, the Court gets most issues of federalism and foreign affairs at least a bit wrong, and some quite wrong. They explore numerous aspects of the doctrine — dormant preemption, statutory preemption, the relationship between state law and federal common law, the treaty power, and the ability of states to enter into agreements with foreign governments. It is only in the last of these areas that they are unqualifiedly approving of the current law, and this is because the Supreme Court has not developed doctrine but has instead left untouched an increasingly permissive practice (p. 277). In the other areas, Glennon and Sloane offer careful analysis and thoughtful critiques of existing doctrine. One need not agree with each of their characterizations and preferred solutions to find their book to be an informative and valuable contribution to the literature on federalism and foreign affairs.
Yet Glennon and Sloane’s doctrinal focus does not adequately excavate the ways in which states and local governments engage in foreign affairs and how these ways relate to federal law and practice. It brings to mind a scene in Huckleberry Finn, in which Tom Sawyer insists that he and Huck must dig a tunnel with case-knives rather than pickaxes because he has “read all the books that gives any information about these things [and t]hey always dig out with a case-knife.” After hours of fruitless labor, Tom then sets down his case-knife and says, “Gimme a case-knife.”
Glennon and Sloane’s focus on the constitutional aspects of foreign affairs federalism as determined by the Supreme Court has some kinship with a case-knife. It works very well for some things, but not so well for understanding how various branches and levels of government are empowered or constrained with respect to foreign affairs. One reason for this, which Glennon and Sloane acknowledge, is simply that Supreme Court doctrine is not always a reliable guide to practice in foreign relations law, because the Court’s interventions are sporadic, discrete, and heavily limited by justiciability doctrines. More fundamentally, Glennon and Sloane pay relatively little heed to how actions by the federal political branches may affect the behavior of state and local governments. Instead, they largely assume that state and local governments are engaging against a backdrop of federal inaction. This leads them to pay particular attention to the doctrine of dormant foreign affairs preemption and to emphasize the virtues of states and cities as laboratories of democracy. Where they do consider how action by the federal political branches might affect state and local engagement in foreign affairs, they look almost exclusively at issues of preemption.
But the increasingly transnational nature of our society has done much more than raise the likelihood of state and local involvement in transnational issues. It has also made it much more likely that the federal political branches and state or local governments will find themselves interacting with respect to these issues. Such interactions have long been a mainstay of domestic federalism. The phrase “cooperative federalism” speaks to how the federal political branches can encourage state and local governments to pursue federal policies, including through the use of federal funding. More recently, Professors Jessica Bulman-Pozen and Heather Gerken have used the phrase “uncooperative federalism” to describe the ways in which state and local governments can in turn shape or resist these federal policies. Much of foreign affairs federalism — indeed, I suspect most of foreign affairs federalism — is now cooperative or uncooperative.
Climate policy provides a good example. Glennon and Sloane portray progressive state and local governments as having stepped up to act on climate change mitigation, including by embracing international standards, “despite the federal government’s failure to ratify the Kyoto Protocol” (p. 62). They identify efforts undertaken by California as a leading example (pp. 62–63). Reading their description, one might think that state and local governments are standing alone against climate change and that their legal ability to do so turns on their power to regulate against a backdrop of federal silence. In practice, however, the most important developments with respect to climate regulation have involved interactions between the federal and state political branches. During the George W. Bush Administration, the biggest impact that liberal states had with respect to climate change was likely their distinctly uncooperative decision to sue the Environmental Protection Agency for failing to regulate greenhouse gases under the Clean Air Act. Their victory in that case in turn provided California and other states with some authority to regulate greenhouse gas emissions under the cooperative federalism scheme set forth in the Clean Air Act. At least since that time, debate in the courts around the legality of California’s actions has centered on the scope of the Clean Air Act and administrative law principles, not on dormant foreign affairs preemption.
The interactive nature of foreign affairs federalism means that different tools — pickaxes, perhaps — are needed to understand and evaluate it. As to doctrine, while preemption remains an important issue, cooperative and uncooperative foreign affairs federalism implicates other strands of law as well. Among these are constitutional doctrines that relate to justiciability, like standing, and substantive ones aimed at commandeering and coercive conditions, which manage the extent to which the federal government can encourage or effectively force state and local governments to take certain actions. Looking outside of constitutional law, how state and local governments interact with the federal government in the foreign affairs space is further affected by international law, administrative law, particular statutory schemes, and sometimes even state law. As to practice, the fact that so much of foreign affairs federalism is cooperative or uncooperative has implications for the federal distribution of powers. Congress and the President can each try to enlist state and local governments in ways that enhance their own power at the expense of the other branch.
In what follows, I argue for reorienting the focus of foreign affairs federalism toward its cooperative and uncooperative aspects. In Part I, I situate Glennon and Sloane’s contribution within the broader literature on foreign affairs federalism and describe some of their contributions. In Part II, I briefly examine four of the examples of foreign affairs federalism given by Glennon and Sloane: the sister-cities program, trade sanctions and related measures, the regulation of undocumented immigrants, and climate change mitigation actions. I argue that both the political choices made by state and local governments and the legal consequences of these choices interact closely with a backdrop of federal statutes and executive branch action, while background constitutional principles about state power in the face of federal silence play a distinctly smaller role. In Part III, I draw on scholarly work engaging with cooperative and uncooperative federalism and consider what implications it offers for the foreign affairs context. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to the foreign affairs context. But because of the added complexity of the foreign affairs context — including its ties to international law and its increased reliance on strong executive power — the specifics cannot simply be imported wholesale. I therefore close by suggesting three sets of ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.
Symposium: Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations
The latest issue of the Texas Law Review (Vol. 95, no. 7, June 2017) contains a symposium on "Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations." Contents include:
- Symposium: Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations
- William Banks, State Responsibility and Attribution of Cyber Intrusions After Tallinn 2.0
- Robert E. Barnsby & Shane R. Reeves, Give Them an Inch, They'll Take a Terabyte: How States May Interpret Tallinn Manual 2.0's International Human Rights Chapter
- Rebecca Ingber, Interpretation Catalysts in Cyberspace
- Eric Talbot Jensen & Sean Watts, A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer?
- Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?
- Dinah PoKempner, Squinting Through the Pinhole: A Dim View of Human Rights from Tallinn 2.0
- Chistian Schaller, Beyond Self-Defense and Countermeasures: A Critical Assessment of the Tallinn Manual's Conception of Necessity
- Michael N. Schmitt & Liis Vihul, Respect from Sovereignty in Cyberspace
De Vido: States’ Positive Obligations to Eradicate Domestic Violence
Sara De Vido (Università Ca' Foscari Venezia - Law) has posted an ESIL Reflection on States’ Positive Obligations to Eradicate Domestic Violence: The Politics of Relevance in the Interpretation of the European Convention on Human Rights.
New Issue: International Organizations Law Review
The latest issue of the International Organizations Law Review (Vol. 14, no. 1, 2017) is out. Contents include:- Niels Blokker, International Organizations and Customary International Law
- Daniel Moeckli & Raffael N. Fasel, A Duty to Give Reasons in the Security Council: Making Voting Transparent
- Lorenzo Gasbarri, The Dual Legality of the Rules of International Organizations
- Dotse A. Tsikata, The International Public Corporation: A Concept More Relevant than Ever?
- Alex Ansong, Democracy in the World Trade Organization: Are some members more equal than others?
- Hans Peter Kunz-Hallstein, Views from Practice: Paralysing the Functioning of International Organisations’ Internal Appeals Boards
New Volume: Recueil des Cours
Volume 383 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:- Volume 383
- Mohamed Bennouna, Le droit international entre la lettre et l’esprit. Cours général de droit international public (2016)
- Massimo Israël Iovane, L’influence de la multiplication des juridictions internationales sur l’application du droit international
Wednesday, July 5, 2017
Cleis: The Independence and Impartiality of ICSID Arbitrators
The legitimacy of investor-State arbitration is a much-debated topic, with arbitrators’ independence and impartiality being one of the core concerns. In The Independence and Impartiality of ICSID Arbitrators, Maria Nicole Cleis explores how unbiased decision-making is ensured under the ICSID Convention. Juxtaposing existing disqualification decisions in the ICSID system against corresponding requirements in related dispute settlement systems, the book convincingly argues that the current approach to disqualification requests against ICSID arbitrators is too exacting in light of the high stakes of investor-State disputes. The author’s nuanced analysis of the status quo is followed by novel suggestions for reforms (including a proposal for ICSID-specific guidelines on conflict of interest), making the book a valuable source of ideas on constructive paths forward.
Tuesday, July 4, 2017
Inaugural Issue: Thailand Journal of International Law
- Speech
- Vitit Muntarbhorn, One Hundred Years (1914) Retrospect - A Hundred Days (2014) Prospect - Hundred Years (2114) Prospects: Public International Law
- Invited Articles
- Adriana Dreyzin de Klor, Private International Law and Law of Integration
- Kaku Shun, Law's Legitimacy in Distress: The Changing Structure of International Law-Making and Its Impact on the Domestic Legal Order
- Akawat Laowonsiri, Making ASEAN a Rule-Based Community: Revisiting the Legal Fundamentals
- Prasit Pivavatnapanich, Foreign Affairs in Thai Constitutional Provisions: A Comparative and International Study
- Aschara Chinniyompanich, Thai NGO as a Watchdog: Is It Barking Loud in Thailand's Environmental Litigation? A Comparative Perspective
- Thailand Features
- Jayavadh Bunnag, Cancellation of a Foreign Arbitral Award
- Tanongsak Mahakusol, Keeping Law and Order Thailand Modern Day Slavery: Towards International Recognition
- Panthip Pruksacholavit, Incentives and Obstacles to the Implementation of ILO Convention No. 87: Labor Relations Provisions in the Thai Public Sector
- Sinee Sang-Aroonsiri, Corporate Social Responsibility Guidelines and Mandatory Information Disclosures in Thai Listed Companies: A Struggle to Comply with International Standards?
- Case Review
- Phattharaphong Saengkrai, Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) ICJ Judgement of 31 March 2014
- Notes
- Jompon Pitaksantayothin, The Right to Freedom of Expression under Article 10 of the European Convention on Human Rights
- Pawarit Lertdhamtewe, Developing Country's Sui Generis Options: Thailand's Sui Generis System of Plant Variety Protection
New Issue: Journal du Droit International
The latest issue of the Journal du Droit International ("Clunet") (Vol. 144, no. 2, Avril-Mai-Juin 2017) is out. Contents include:- Doctrine
- Syméon Karagiannis, La peine de mort en temps de guerre, Aspects de droit international
- Isabelle Barrière-Brousse, Le patrimoine des couples internationaux dans l’espace judiciaire européen. Les règlements européens du 24 juin 2016 relatifs aux régimes matrimoniaux et aux effets patrimoniaux des partenariats enregistrés
- Emmanuelle Bonifay, La circulation des citoyens européens entre États membres au lendemain de l’adoption du règlement « documents publics »
- Variétés
- Emmanuel Gaillard, L’apport de la pensée juridique française à l’arbitrage international
- Ghislain Poissonnier, Des clarifications juridiques importantes pour les litiges en mer de Chine méridionale
Monday, July 3, 2017
Online Symposium: Doing Justice to Truth in International Criminal Courts and Tribunals
Beginning today, the journal Humanity is hosting an online symposium on "Doing Justice to Truth in International Criminal Courts and Tribunals," edited by Barrie Sander and Jakob v. H. Holtermann. The initial post is here; all symposium contributions will appear here.
Andreassen, Sano, & McInerney-Lankford: Research Methods in Human Rights: A Handbook
- Bård A. Andreassen, Hans-Otto Sano & Siobhán McInerney-Lankford, Human rights research method
- Martin Scheinin, The art and science of interpretation in human rights law
- Siobhán McInerney-Lankford, Legal methodologies and human rights research: Challenges and opportunities
- Hilde Bondevik & Inga Bostad, Core principles in argumentation and understanding: Hermeneutics and human rights
- Edward Anderson, Economics and human rights
- Steven L. B. Jensen & Roland Burke, From the normative to the transnational: Methods in the study of human rights history
- Sally Engle Merry, The potential of ethnographic methods for human rights research
- Malcolm Langford, Interdisciplinarity and multimethod research
- George Ulrich, Research ethics for human rights researchers
- Bård A. Andreassen, Comparative analyses of human rights performance
- Hans-Otto Sano & Tomas Max Martin, Inside the organization. Methods of researching human rights and organizational dynamics
- Margaret Satterthwaite & Daniel Kacinski, Quantitative methods in advocacy oriented human rights research
- Simon Walker, Challenges of Human Rights Measurement
- Kirsteen Shields, Methods of monitoring the right to food
- Anna-Luise Chané & Arjun Sharma, Social network analysis in human rights research
- Dimitrina Petrova, Researching discrimination
- Laura Ferguson, Assessing work at the intersection of health and human rights: why? how? and who?
- Anne Hellum, Studying how to study human rights in plural legal contexts: An exploration of plural water laws in Zimbabwe
Call for Papers: International Investment Treaties and National Governance
The Centre for International Law at the National University of Singapore has issued a call for papers for a workshop on “International Investment Treaties and National Governance,” to take place November 16-17, 2017, in Singapore. Here's the call:
CALL FOR PAPERS
INTERNATIONAL INVESTMENT TREATIES AND NATIONAL GOVERNANCE
ASIA FOCUS
The Centre for International Law at the National University of Singapore is pleased to announce a call for papers for a workshop, entitled “International Investment Treaties and National Governance”, which shall take place on 16 -17 November 2017 in Singapore.
Workshop Context
International investment treaties establish a preferential system for the protection of the property of foreign investors. Under these treaties, covered investors are granted substantive rights, which are independent (and often stronger) than those provided in domestic law. In addition, covered investors are given the option of enforcing these rights outside of the host state’s courts through international arbitration. Investment treaties are often said to have two principal effects for the states which enter into them. First, it is asserted that investment treaties act to increase levels of foreign investment in host states. Second, it is said that investment treaties have a positive effect on governance. Out of their desire to avoid liability for breaches of investment treaties, the argument is made, states will internalize their international legal obligations, reform their governmental decision-making processes, and thereby improve the rule of law.
Although there is a significant amount of research examining the relationship between investment treaties and foreign investment flows, there is a lack of empirical research on the effects of investment treaties on domestic governance. Moreover, the premise regarding changes in governance rests on questionable assumptions about state behavior, especially in the developing world, where regulatory capacity is often limited. Indeed, the few studies which have examined this question suggest that developing states’ awareness of international investment treaty obligations may be very low, and at times non-existent.
Workshop Focus
Against this background, this workshop is concerned with examining the effects of international investment treaties on national governance. The workshop focuses on Asian countries, including (but not necessarily limited to) Indonesia, Malaysia, Myanmar, Philippines, Singapore, South Korea, Sri Lanka and Vietnam. In particular, we are interested in the following questions:
a) Descriptive:
(1) How/to what extent are investment treaties internalized and taken into account in governmental (legislative, executive, regulatory, courts) decision-making?
(2) What are the formal laws, regulations and policies through which governments internalize investment treaties in their activities and decision-making?
(3) What are the informal measures/practices through which governments internalize investment treaties in their activities and decision-making?
(4) What effect, if at all, has the conclusion of investment treaties had on good governance reforms?b) Explanatory:
(5) What explains the level of internationalization of investment treaty obligations found in individual states?
(6) What explains the spillover (if such spillover has occurred) from international investment obligations to good governance reforms?c) Normative, going forward:
(7) How, if at all, should governments address internalization challenges?
(8) How, if at all, should future investment treaties be drafted/amended to account for these challenges?Call for Abstracts
We welcome submissions addressing one or several of the above questions, focusing on Asian countries, including (but not necessarily limited to) Indonesia, Malaysia, Myanmar, Philippines, Singapore, South Korea, Sri Lanka and Vietnam. We welcome papers from the field of law and the social sciences (political science, public policy, sociology, anthropology, public administration, history etc.). We in particular welcome empirical studies.
How to Participate
Please submit a 1-page abstract (no more than 500 words) of the paper you plan to present to cilayel@nus.edu.sg, no later than 31 July 2017. We expect to be able to announce the result of the paper selection in early August. The deadline for the submission of selected papers of approximately 8,000 words will be 31 October 2017.
The workshop will take place on 16-17 November 2017 at the Centre for International Law at the National University of Singapore. Travel and accommodation will be provided for selected presenters travelling to Singapore. For colleagues wishing to attend the workshop without presenting a paper, registration is open too.
For further inquiries, please contact Dr. Ayelet Berman (cilayel@nus.edu.sg).
New Issue: International Journal of Transitional Justice
The latest issue of the International Journal of Transitional Justice (Vol. 11, no. 2, July 2017) is out. Contents include:- Editorial Note
- Elizabeth Lira, The Chilean Human Rights Archives and Moral Resistance to Dictatorship
- Articles
- Padraig McAuliffe, Dividing the Spoils: The Impact of Power Sharing on Possibilities for Socioeconomic Transformation in Postconflict States
- Meghan M. DeTommaso, Mario Schulz, & Steve B. Lem, Choices of Justice: Effects of Civil War Termination on Postconflict Justice Mechanisms Implemented by the State
- Kristin C. Doughty, Language and International Criminal Justice in Africa: Interpretation at the ICTR
- Natalie R. Davidson, Alien Tort Statute Litigation and Transitional Justice: Bringing the Marcos Case back to the Philippines
- Janine Ubink & Anna Rea, Community Justice or Ethnojustice? Engaging with Customary Mechanisms to Reintegrate Ex-Combatants in Somalia
- Klaus Bachmann & Igor Lyubashenko, The Puzzle of Transitional Justice in Ukraine
- Pamina Firchow, Do Reparations Repair Relationships? Setting the Stage for Reconciliation in Colombia
- Andrea Purdeková, Displacements of Memory: Struggles against the Erosion and Dislocation of the Material Record of Violence in Burundi
- Review Essay
- Sophie Rigney, The Hopes and Discontents of Indigenous–Settler Reconciliation
Sharp: Pragmatism and Multidimensionality in Human Rights Advocacy
Dustin N. Sharp (Univ. of San Diego - School of Peace Studies) has posted Pragmatism and Multidimensionality in Human Rights Advocacy. Here's the abstract:
Human rights appear to be in a state of existential crisis, with academics proclaiming the “endtimes” or “twilight” of the field and a growing sense of human rights pessimism among many commentators. As an adaptation to the challenging contemporary climate for human rights, some critics have asserted that the field needs to become more pragmatic and flexible, and less legalistic. Unfortunately, these calls for reform are rarely accompanied by details, and the literature on the nature of human rights pragmatism is fairly thin. This article will explore what such a pivot might entail. My central contention is that while more flexible and less law-centered approaches can play a useful role in advocacy, they also come with risks and tradeoffs that need to be assessed. The concept of human rights is fundamentally multidimensional, oscillating between moral, legal and political domains, drawing power from each one of them. A truly pragmatic turn in human rights will not involve categorical sensibilities about the value of law-centered approaches in all times and places, but will instead emphasize the opportunities and advocacy hooks available in a particular context, whether moral, legal, political, or otherwise.
Sunday, July 2, 2017
Sari: Hybrid Law, Complex Battlespaces: What's the Use of a Law of War Manual?
Aurel Sari (Univ. of Exeter - Law) has posted Hybrid Law, Complex Battlespaces: What's the Use of a Law of War Manual? (in The United States Department of Defense Law of War Manual: Commentary & Critique, Michael A. Newton ed., forthcoming). Here's the abstract:
The purpose of this chapter is to assess how the Department of Defense Law of War Manual approaches the relationship between the law of war and international human rights law, as seen against the broader context of the changing legal framework of warfare and military operations.
National military manuals are widely understood to serve two main functions. They are an instrument for disseminating the law of war and for expressing a nation’s understanding of its own legal obligations. The first function is essentially passive. Manuals convey the rules to their readers, even if this means translating the black letter of the law into a different format. The second function is dynamic. As Professor Charles Garraway notes, the aim of national manuals “is not to reach a consensus agreement, but to reflect the position adopted by the State concerned.” In doing so, national manuals shape the law by applying, reaffirming and developing it. These two functions pull the DoD Manual in different directions. Promoting a better understanding of the challenges posed by international human rights law requires a nuanced approach that acknowledges the multifaceted relationship between the law of war and human rights. However, such subtlety is difficult to reconcile with the certainty that the application of the law on the battlefield and the effective promotion of the United States’ national position on these matters demands. In its response to the changing legal framework of warfare, the Law of War Manual is thus torn between enlightenment and advocacy.
I develop these arguments in three steps. The first section of the chapter will trace the evolving character of the legal framework of warfare, including the impact of international human rights law. The second section will explore the Manual’s response to these developments. The third section will assess the Manual’s approach against the two traditional functions of military manuals, the law-disseminating and the law-shaping function.
Call for Papers: Effectiveness, Impact and Monitoring of Non-UN Sanctions
The European Society of International Law has issued a call for papers for the second session in a two-part symposium on "Non-UN Sanctions and International Law." The theme of the second session is: "Effectiveness, Impact and Monitoring of Non-UN Sanctions." Here's the call:
EUROPEAN SOCIETY OF INTERNATIONAL LAW
PRAGUE-NOTTINGHAM SYMPOSIUM:
NON-UN SANCTIONS AND INTERNATIONAL LAW
5 May 2017: Institute of International Relations, Prague
10 November 2017: Nottingham International Law and Security Centre, University of Nottingham
CALL FOR PAPERS FOR THE NOTTINGHAM EVENT:
EFFECTIVENESS, IMPACT AND MONITORING OF NON-UN SANCTIONSOn 5 May 2017, the first part of an ESIL symposium co-organized by the Institute of International Relations in Prague and the Nottingham International Law and Security Centre, University of Nottingham, was held in Prague. At this event 12 papers were presented and discussed by experts in the very productive environment of the Cernin Palace, Ministry of Foreign Affairs of the Czech Republic, in Prague.
The second part of the symposium will be held at the Nottingham International Law and Security Centre in the School of Law at the University of Nottingham on Friday 10 November 2017. The overall topic of the symposium is ‘Non-UN Sanctions and International Law’. The idea is to consider various aspects of sanctions adopted outside the UN context, by individual States, groups of States, regional organizations or other actors.
While the Prague event focused on the legality and legitimacy of non-UN sanctions, the Nottingham event will concentrate on the effectiveness and impact of non-UN sanctions and the monitoring of such sanctions by States or non-State actors.
The ESIL symposium is a scholarly event that promotes an intensive and targeted discussion of a selected topic of international law. Approximately 8-12 papers will be selected from among the submissions. The most original papers may be considered for publication in a special issue of the Journal of Conflict and Security Law (published by Oxford University Press) in 2018.
Call for Papers for the Nottingham event: Effectiveness, Impact and Monitoring of Non-UN Sanctions
Papers discussing any dimension of the topic of effectiveness, impact and monitoring of nonUN Sanctions, taking a theoretical, doctrinal or empirical approach, will be given serious consideration.
The organizers particularly welcome papers addressing one or more of the following issues:
- The effectiveness of unilateral or multilateral targeted or general non-UN sanctions in terms of changing the ‘targets’ behaviour;
- The effectiveness of unilateral or multilateral non-UN sanctions in achieving goals of peace and security, human rights compliance, or other goals;
- The impact of unilateral or multilateral non-UN sanctions taken outside the UN context in terms of health, development, governance, self-determination and human rights;
- Monitoring of the effectiveness and impact of non-UN sanctions by those States or other actors imposing such measures, and by other bodies and organisations such as human rights bodies or NGOs;
- The role of the private sector and other non-state actors, e.g. banks, financial institutions and law firms, in giving effect to non-UN sanctions;
- The responsiveness of non-UN sanctions regimes to criticisms and concerns regarding effectiveness and impact;
- The relationship between the legality and legitimacy of non-UN sanctions and their effectiveness and impact.
Abstracts (of not more than 750 words) should be submitted to kobie.neita@nottingham.ac.uk by 31 July 2017. Please include your name, email address, and a one-page curriculum vitae with your abstract.
Successful applicants will be notified by email by 25 August 2017. Drafts of papers (of not more than 10,000 words) will be required by 10 October 2017.
Successful applicants will be expected to bear the costs of their own travel and accommodation. However, ESIL travel grants will be made available to offer partial financial support to speakers. Speakers and participants in the symposium will be informed of hotels that offer preferential rates. Lunch and coffee breaks will be provided.
Alshiabani: La démocratie en droit international
En droit international, la démocratie était jusqu'à très récemment absente. Malgré les appels lancés au début du 20e siècle, celui-ci a toujours considéré la démocratie comme une idéologie dans laquelle il ne doit s'impliquer. Après la fin de Guerre froide et la victoire de la démocratie libérale, la démocratie s'est renforcée au plan international. Elle a exercé une pression considérable sur le droit international pour qu'il s'adapte aux nouvelles exigences des réalités politiques. Cet ouvrage traite de ce sujet et montre le contexte dans lequel se sont développés la démocratie et le concept d'ingérence démocratique.
Wang: International Law on Antarctic Mineral Resource Exploitation
This book analyzes the legal regime of the exploitation of the mineral resources in the Antarctic. Therefore, it elaborates on the development of the Antarctic Treaty and the Antarctic Treaty System (ATS). The author examines the history and influence of the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which purpose it is to prohibit unregulated mineral resource activities in Antarctica, and its provisions are extremely strict with the aim of environmental protection. Through analyzing and comparing the CRAMRA and the 1991 Environmental Protocol, the book concludes that it is not beyond credulity to imagine that a new round of discussion on Antarctic mineral exploration will be held in the near future.
Conference: Courts, Power, and Public Law
New Issue: Nordic Journal of International Law
The latest issue of the Nordic Journal of International Law (Vol. 86, no. 2, 2017) is out. Contents include:- Special Issue: Language and International Law
- Ulf Linderfalk, Introduction: Language and International Law
- Jörg Kammerhofer, Taking the Rules of Interpretation Seriously, but Not Literally? A Theoretical Reconstruction of Orthodox Dogma
- Wouter Werner, Recall it again, Sam. Practices of Repetition in the Security Council
- Maks Del Mar, Metaphor in International Law: Language, Imagination and Normative Inquiry
- Christian Tomuschat, The (Hegemonic?) Role of the English Language
- Benedikt Pirker & Jennifer Smolka, Making Interpretation More Explicit: International Law and Pragmatics
Sivakumaran: Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International Law
Sandesh Sivakumaran (Univ. of Nottingham - Law) has posted Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International Law (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:
Traditionally, the actors in the international legal system are divided into States and non-state actors; and States are considered to be the ones that make and shape international law. By contrast, this Article argues that there is a third category of actors, namely state-empowered entities, which have been empowered by States to make and shape international law. These entities are not States, but due to their empowerment by States, they are also not non-state actors. Accordingly, they constitute a category in and of themselves. Entities of this type include the International Law Commission, the United Nations Human Rights Committee, and the International Committee of the Red Cross. The making and shaping of international law includes the interpretation, application, and development of the law. States continue to play a role in the making and shaping of international law, for example, through establishing the mandate of the state-empowered entity, feeding their views into the work product of the entity, and assessing the final output of the entity. However, in practice, States rarely engage with the work-product of state-empowered entities and, in failing so to engage, have ceded some of their influence in lawmaking. This silence on the part of States has been treated as acquiescence to the work-product of state-empowered entities and the gap left by the lack of engagement has been filled by other members of the community of international lawyers. The day-to-day making and shaping of international law is thus being done less by States and more by state-empowered entities.
New Issue: International Journal of Marine and Coastal Law
The latest issue of the International Journal of Marine and Coastal Law (Vol. 32, no. 2, 2017) is out. Contents include:
- Special Issue: The South China Sea: An International Law Perspective
- Erik Franckx & Marco Benatar, Introduction: The South China Sea: An International Law Perspective
- John W. McManus, Offshore Coral Reef Damage, Overfishing, and Paths to Peace in the South China Sea
- Giuseppe Cataldi, Navigation in the South China Sea: Introductory Remarks
- Zou Keyuan, Navigation in the South China Sea:Why Still an Issue?
- James Kraska, Maritime Confidence-building Measures for Navigation in the South China Sea
- Ted L McDorman, An International Law Perspective on Insular Features (Islands) and Low-tide Elevations in the South China Sea
- David Anderson, Some Aspects of the Regime of Islands in the Law of the Sea
- Natalie Klein, The Vicissitudes of Dispute Settlement under the Law of the Sea Convention
- Arif Havas Oegroseno, State Practices in Southeast Asia: Possible Collaboration amongst Claimants in the South China Sea Dispute
Del Vecchio & Severino: Tutela degli investimenti tra integrazione dei mercati e concorrenza di ordinamenti
- Angela Del Vecchio, Cenni Introduttivi Sulla Tutela Degli Investimenti Stranieri Nel Diritto Internazionale E Nel Diritto Dell’unione Europea
- Maria Rosaria Mauro, Conflitti Di Competenza E Coordinamento Tra Fori Nel Diritto Internazionale Degli Investimenti: Contract Claims v. Treaty Claims
- Domenico Pauciulo, Il Diritto Applicabile Dai Tribunali Arbitrali Icsid Nella Soluzione Delle Controversie Tra Stato E Investitore Privato
- Giuseppe Stuppia, L’esecuzione Delle Sentenze ICSID
- Giulia Nicchia, Tutela Degli Investimenti Pubblici E Integrazione Dei Mercati: La Normativa Internazionale In Tema Di Contrasto Alla Corruzione Nel Settore Degli Appalti
- Roberto Virzo, Il Regolamento Delle Controversie Nei Contratti In Materia Di Prospezione, Esplorazione O Sfruttamento Di Risorse Minerarie Dell’area Dei Fondi Marini Internazionali
- Daniele Gallo, Il Nuovo Sistema Di Risoluzione Delle Controversie In Materia D’investimenti Nei Recenti Accordi Sul Libero Commercio Dell’unione Europea: Una Rivoluzione È In Atto?
- Francesca Delfino, La Tutela Degli Investimenti Nel Capitolo 11 Del North American Free Trade Agreement (Nafta)
- Bernardo Giorgio Mattarella, I Princìpi Costituzionali E Il Diritto Europeo
- Francesco Bertolini, Tutela Internazionale Degli Investimenti E Disciplina Costituzionale Della Libertà Di Iniziativa Economica
- Giulia Bertezzolo, La Regolazione Dei Rapporti Tra Banche E Shadow Banks In Prospettiva Globale
- Marco Macchia, Tutela Del Risparmio E Tutela Degli Investimenti Nell’unione Bancaria
- Maurizia De Bellis, Unione Bancaria Europea E Assicurazione Dei Depositi
- Paola Severino, Il Diritto Penale Quale Strumento Di Tutela E Incentivo Agli Investimenti
- Maurizio Bellacosa, La Riforma Dei Reati Tributari Nella Prospettiva Europea
- Elisa Scaroina, Tutela Degli Investimenti E Prevedibilità Delle Decisioni Giudiziarie. Il Lobbying Tra Right Of Petition E Traffico Di Influenze Illecite
- Antonio Gullo, Il Delitto Di Autoriciclaggio: Lacuna Colmata O Occasione Mancata?
- Rossella Sabia & Ilaria Salvemme, Costi E Funzioni Dei Modelli Di Organizzazione E Gestione Ai Sensi Del D.Lgs. N. 231/2001
- Paolo Moscarini, Il Concetto Europeo Di “Infrazione Penale” E La Concorrenza Fra I Sistemi Punitivi Interni
- Maria Lucia Di Bitonto, Il Ne Bis In Idem Nei Rapporti Tra Infrazioni Finanziarie E Reati
- Alessandro Vitale, La Raccolta Di Dichiarazioni Nell’accertamento Delle Violazioni Finanziarie
- Matteo Tullio Maria Rubera, Le Indagini Della Consob E La Loro Valenza Nel Procedimento Penale
- Chiara Fanuele, Le Garanzie Nell’accertamento Degli Illeciti Concernenti Il Mercato Finanziario
- Barbara De Donno, Le Nuove Forme Associative E Organizzative Per L’impresa E La Tutela Degli Investimenti Nella Prospettiva Internazionale E Comparata
- Federico Pernazza, Cluster E Reti Di Impresa Nella Prospettiva Internazionale E Comparata
- Livia Ventura, Benefit Corporation E Tutela Degli Investimenti “Socialmente Responsabili”: Le “Società Benefit”, Un Trapianto Necessario?
- Danilo Borges Dos Santos Gomes De Araujo, A Tutela Do Investimento Acionário Na Disciplina Dos Grupos De Sociedades: Elementos De Comparação Entre Itália E Brasil
- Simona Sardelli, La Tutela Dell’investitore Alla Luce Della Direttiva Mifid Ii, Del Regolamento Mifir E Dell’action Plan Sulla Capital Markets Union
- Roberto Formisani, La Nuova Disciplina Europea Della Revisione Legale Dei Conti
- Paolo Tullio, Poteri Speciali Ed Investimenti Esteri Diretti Nell’unione Europea
- Arianna Paoletti, Le Special Purpose Acquisition Companies (SPAC)
Subscribe to:
Posts (Atom)
