- Kinga Tibori-Szabó & Megan Hirst, Introduction: Victim Participation in International Criminal Justice
- Mélissa Fardel & Nuria Vehils Olarra, The Application Process: Procedure and Players
- Heloise Dumont, Requirements for Victim Participation
- Mariana Pena, The Role of Intermediaries and Third Parties in Victim Participation
- Megan Hirst, Legal Representation of Participating Victims
- Yaiza Alvarez Reyes, The Protection of Victims Participating in International Criminal Justice
- Caroline Walter, Victims’ Rights and Obligations as Regards the Case File: Access, Disclosure and Filing Submissions
- Peter Haynes, Victims’ Lawyers in the Courtroom: Opening and Closing Statements, Questioning Witnesses, Challenging and Presenting Evidence
- Daniella Rudy & Megan Hirst, Victims Appearing in Person Before a Chamber
- Ellie Smith, Victims in the Witness Stand: Socio-Cultural and Psychological Challenges in Eliciting Victim Testimony
- Elizabeth A. Turchi, Victims’ Attendance in the Courtroom to Observe Proceedings
- Kinga Tibori-Szabó, The Rights of Participating Victims to Appeal and Participate in the Appeal Against Interlocutory Decisions and Trial Judgments
- Carla Ferstman, Reparations, Assistance and Support
- Megan Hirst, Termination of Victim Participation
- Kinga Tibori-Szabó, Barbara Bianchini, Anushka Sehmi, & Silke Studzinsky, Communication Between Victims’ Lawyers and Their Clients
- Rianne Letschert, International Criminal Proceedings—An Adequate Tool for Victims’ Justice?
Saturday, July 15, 2017
- Johann Park & Valentina Bali, International Terrorism and the Political Survival of Leaders
- Dennis M. Foster, Inter Arma Silent Leges? Democracy, Domestic Terrorism, and Diversion
- Lindsay Reid, Finding a Peace that Lasts: Mediator Leverage and the Durable Resolution of Civil Wars
- Curtis Bell & Jun Koga Sudduth, The Causes and Outcomes of Coup during Civil War
- Victor Asal, Justin Conrad, & Nathan Toronto, I Want You! The Determinants of Military Conscription
- Jonathan D. Caverley & Yanna Krupnikov, Aiming at Doves: Experimental Evidence of Military Images’ Political Effects
- J. Tyson Chatagnier & Kerim Can Kavaklı, From Economic Competition to Military Combat: Export Similarity and International Conflict
- Vincent Bauer, Keven Ruby, & Robert Pape, Solving the Problem of Unattributed Political Violence
- Kenneth A. Schultz, Mapping Interstate Territorial Conflict: A New Data Set and Applications
Friday, July 14, 2017
Existing theories of WTO law cannot adequately explain the form or content of the GATT exceptions, in particular Article XX(a) Public Morals. Nor, in consequence, can they satisfactorily answer the interpretive questions they raise. This article explains Article XX in terms of self-determination as a political and moral value, and the choices it mandates peoples make for themselves. Drawing on debates in contemporary political philosophy, it distinguishes three categories of argument for self-determination: intrinsic, expressive and instrumental, each having implications for the scope of the choices a self-determining community must make for itself. This account of self-determination in trade regulation is used to reconstruct Article XX, both explaining the individual provisions, and suggesting how these might be developed and interpreted. It concludes by examining Article XX(a) in detail, highlighting the interpretive questions public morals pose, and how understanding Article XX in terms of self-determination suggests these should be answered.
Geiß, Zimmermann, & Haumer: Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law
- Stefanie Haumer, Robin Geiss & Andreas Zimmermann, Introduction: the international Red Cross and Red Crescent Movement and the development of international humanitarian Law
- Robert Heinsch, The International Committee of the Red Cross and the Geneva Conventions of 1949
- Michael Bothe, The International Committee of the Red Cross and the additional protocols of 1977
- Jean-Marie Henckaerts, The International Committee of the Red Cross and the clarification of customary international humanitarian law
- Robert Cryer, The International Committee of the Red Cross' 'interpretive guidance on the notion of direct participation in hostilities': see a little light
- Kathleen Lawand & Isabel Robinson, Development of treaties limiting or prohibiting the use of certain weapons: the role of the International Committee of the Red Cross
- Carsten Stahn, Between 'constructive engagement', 'collusion' and 'critical distance': the International Committee of the Red Cross and the development of international criminal law
- Robin Geiss & Andreas Zimmermann, The International Committee of the Red Cross – a unique actor in the field of international humanitarian law creation and progressive development
- Editorial Comment
- José E. Alvarez & Benedict Kingsbury, AJIL AT 111
- Steven R. Ratner, Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
- Fleur Johns, Data, Detection, and the Redistribution of the Sensible in International Law
- Notes and Comments
- René Urueña, Prosecutorial Politics: The ICC's Influence in Colombian Peace Processes, 2003–2017
- International Decisions
- Uzma S. Bishop-Burney, Prosecutor v. Ahmad Al Faqi Al Mahdi
- Monica Hakimi, In Re Akhbar Beirut & Al Amin
- Sherzod Shadikhodjaev, India—Certain Measures Relating to Solar Cells and Solar Modules
- Lucas Lixinski, Case of the Kaliña and Lokono Peoples v. Suriname
- Contemporary Practice of the United States Relating to International Law
- Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- Tom Ginsburg, reviewing A World of Struggle: How Power, Law and Expertise Shape Global Political Economy, by David Kennedy
- John R. Crook, reviewing Failings of the International Court of Justice, by A. Mark Weisburd
- Michael P. Scharf, reviewing Custom’s Future: International Law in a Changing World, edited by Curtis A. Bradley
- Anna Spain Bradley, reviewing The Puzzle of Peace: The Evolution of Peace in the International System, by Gary Goertz, Paul F. Diehl, and Alexandru Balas
- Sumudu Atapattu, reviewing International Environmental Law and Governance, edited by Malgosia Fitzmaurice and Duncan French
The MJIEL invites contributions for a special issue to be published in September 2018 on the theme 'ISDS in the era of instability'. Instability is used to describe wholesale regulatory changes brought about by the Trump administration in the USA and Brexit in the UK. The issue will focus on whether rights established by bilateral and multilateral investment treaties, threatened by recent policy shifts, can be defended in arbitral tribunals.
Abstract submissions of up to 300 words to Dr. Ioannis Glinavos (firstname.lastname@example.org) by 01.01.18. Acceptance will be notified by 01.02.18. Full papers in house style due 01.06.18.
Thursday, July 13, 2017
Hayashi: The U.S. Airstrike After the Use of Chemical Weapons in Syria: National Interest, Humanitarian Intervention, or Enforcement Against War Crimes?
Modes of law and governance gain their democratic authority from the quality and effectiveness of participation available to and exercised by the demos within them (Tully 2012). The resulting gap in Global IR which remains to be filled in order to counter injustice and enhance access to contestation, therefore represents distinct normative structures of meaning as the living structures of criss-crossing normative orders. With regard to moral authority, the feature that differentiates agents who merely partake in global governance, and agents who enjoy access to agency, consists in the right to critically engage with the norms of governance based on 'access to regular contestation' about norms. This difference regarding access is substantiated by the conceptual definition of contestation as a reactive practice that expresses objection to norms, and a proactive practice that enables critical engagement with norms. The paper argues that the political importance of agents operating as subjects under conditions of criss-crossing normative orders comes to the fore in relation with the contested implementations of the responsibility norm. The chapter illustrates, how this distinctive feature bears out in the larger context of global society. To that end, it addresses two scenarios where moral authority is contested: the first scenario addresses the Kadi case. In this legal case, the reconstruction of the contested claims for the responsibility to protect fundamental rights of individuals by the UN Security Council and the European Court of Justice (ECJ) demonstrate that effectively the political challenge to moral authority is at stake. The second scenario addresses contestations of the responsibility to protect (R2P). In this case, the contestations are initiated by the BRICS states, and therefore from within the normative structure of the UN.
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
Jacob Katz Cogan
- 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.
Wednesday, July 12, 2017
Nappert: International Arbitration as a Tool of Global Governance: The Use (and Abuse) of Discretion
It has been posited that the international arbitration process, as do other international courts and tribunals, carries with it not only fact-finding and law-making functions, but also a governance function insofar as “arbitrators (…) can and do engage in autonomous normative action while still adhering to the rule of law.”
The arbitral process, though widely chosen as a means of dispute resolution in international business, is not without its critics. Arbitrators are regularly engaged in adjudicating international cases with high financial, and often political, stakes – the USD 50 billion Awards issued in July 2014 in favour of the Yukos shareholders against the Russian Federation, and the 2008 arbitration award ordering the French State to pay Bernard Tapie EUR 405 million, are two well-known such instances. The method and basis for choosing arbitrators, historically by reputation and word-of-mouth, have come under increasing scrutiny in a field often accused of clubbiness and opacity. Questions are being asked on what, if any, quality control and accountability mechanisms apply to the arbitrator function.
This is particularly so regarding the exercise of discretion by arbitrators in rendering their decisions. The procedural rules applying to arbitration proceedings generally endow arbitrators with “the widest discretion” in deciding on matters such as efficiency and fairness of process and the allocation of the costs of the proceedings, with little apparent fetter or guidance.
This contribution explores the role and ambit of the exercise of arbitral discretion and its interplay with the governance function of arbitral tribunals as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether, in light notably of the visible example of the Yukos case, the exercise of arbitral discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, its effective exercise. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.
This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents—on what they say.
In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.
Tuesday, July 11, 2017
GoJIL – Special Call on the One Belt – One Road Initiative
The One Belt – One Road Initiative (OBOR), also known as China’s New Silk Road, includes a large variety of infrastructure programs in numerous Eurasian and African States, proposed by the People’s Republic of China. It aims to enhance connectivity and cooperation across the Eurasian continent mainly through the construction of railways, highways, ports, airports, pipelines, etc., with China in a central role. At its largest extent, the OBOR would include 65 countries, 4.4 billion people, and 40 % of the global GDP. Considering its scale, the project even exceeds the dimensions of the post-war Marshall-Plan. This project could massively increase Chinese influence over Eurasia, as well as provide a chance for developing countries to benefit from its economic impact.
Projects of this magnitude naturally raise multiple legal and political questions.
For instance, could this be a chance to reduce global poverty or will it just intensify the dependence of developing countries on China? Will better infrastructure raise the standard of living, particularly regarding access to food and clean water, for the populations involved? What concerns are there for labor rights and property rights under international law? Who will be accountable for honoring these rights?
Furthermore, to what extent will international cooperation of this kind affect ongoing political conflicts? What are the effects of and on international law? How would the OBOR affect international trade and investment law? What influence will this have on the environment and the cultural heritage along this New Silk Road?
To shed light on the diverse aspects of the One Belt – One Road Initiative, we call for authors to submit papers on this topic. Submissions from an international law background as well as other disciplines such as international relations, economics, geography, etc. are welcome. Papers will be submitted to a double-blind peer review and should not exceed 15,000 words including footnotes. Selected contributions will be published in Issue 2 of Vol. 8. Our article guidelines can be found here and further information, including the submission option can be found here. All articles must be submitted until 15th of January 2018. In case of any questions feel free to contact the editors via email at email@example.com.
- Jurisdiction and Admissibility in Investment Arbitration
- Filippo Fontanelli & Attila Tanzi, Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice
- August Reinisch, Jurisdiction and Admissibility in International Investment Law
- Nicolas Jansen Calamita & Elsa Sardinha, The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration
- Eirik Bjorge, EU Law Constraints on Intra-EU Investment Arbitration?
- Mary E. Footer, Umbrella Clauses and Widely-Formulated Arbitration Clauses: Discerning the Limits of ICSID Jurisdiction
- Giulio Alvaro Cortesi, ICSID Jurisdiction with Regard to State-Owned Enterprises – Moving Toward an Approach Based on General International Law
- Andrea Gattini, Jurisdiction ratione temporis in International Investment Arbitration
- Tarcisio Gazzini & Robert Kolb, Provisional Measures in ICSID Arbitration from “Wonderland’s Jurisprudence” to Informal Modification of Treaties
This volume includes key speeches Legal Adviser Brian J. Egan delivered during 2016. Mr. Egan spoke on the future of international agreements at Yale Law School, where Deputy National Security Adviser Avril Haines also spoke on the importance of treaties. He responded to the work of the International Law Commission on protection of persons in the event of disasters; identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. He also delivered a talk entitled “The Next Fifty Years of the Outer Space Treaty” at a space law symposium; addressed the International Bar Association on the subject of private international law; discussed international law, legal diplomacy, and the counter-ISIS campaign at the annual meeting of the American Society of International Law (“ASIL”); and spoke at Berkeley Law School on international law and stability in cyberspace.
In addition to Mr. Egan’s speeches, other representatives of the U.S. government explained U.S. international legal views on current world events in 2016. Secretary of State John Kerry announced that, in his judgment, ISIS is responsible for genocide in Iraq against groups in areas under its control, including Yezidis, Christians, and Shia Muslims, and for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities. The United States responded to papers China circulated after the decision in the arbitration between the Philippines and China on the South China Sea with a diplomatic note identifying contradictions between China’s claims and the international law of the sea. The United States also sent a diplomatic note to the Republic of the Marshall Islands regarding U.S. sovereignty over Wake Island. And the Obama administration issued its Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations. All of these enunciations of U.S. legal views contributed to efforts to promote understanding of and compliance with international law.
There were numerous developments in 2016 relating to U.S. international agreements and treaties at all stages, from negotiation to entry into force. The President transmitted eleven treaties to the U.S. Senate for its advice and consent to ratification in 2016, including extradition treaties, two intellectual property treaties, several private international law treaties, maritime boundary treaties, and the Arms Trade Treaty. The Senate provided its advice and consent to ratification of seven treaties in 2016, including extradition treaties, mutual legal assistance treaties, the International Treaty on Plant Genetic Resources for Food an Agriculture, and the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Securities Convention”). The United States ratified and joined the Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing, and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in 2016. And on January 16, 2016, the 2015 Joint Comprehensive Plan of Action with Iran (“JCPOA”) reached its “Implementation Day,” when the International Atomic Energy Agency confirmed that Iran had satisfied the required nuclear commitments and the United States and European Union took steps to lift nuclear-related sanctions against Iran. The United States signed new extradition treaties with Kosovo and Serbia; an agreement “On the Protection of Personal Information Relating to the Prevention, Investigation, Detention, and Prosecution of Criminal Offenses” (“DPPA”) with the European Union; an asset sharing agreement with Colombia; several air transport agreements; and agreements pursuant to the 1970 UNESCO Convention on cultural property. The United States successfully led the way to renegotiate the South Pacific Tuna Treaty and amend the Montreal Protocol to phase down the production and consumption of hydrofluorocarbons (“HFCs”). And, the President also submitted to Congress for its review an Agreement for Cooperation with Norway Concerning Peaceful Uses of Nuclear Energy.
In the area of diplomatic relations, the United States engaged with Cuba in claims talks, conclusion of an aviation arrangement, and amendments to the Cuban Assets Control Regulations, among other initiatives. As a reflection of Burma’s democratic transition, the United States terminated the national emergency with respect to Burma, which had provided the basis for economic and financial sanctions. Also in 2016, the President terminated the national emergency with respect to Côte d’Ivoire. And in 2016, the United States swore in its first ambassador to Somalia in a quarter century after recognizing the government of Somalia in 2013. The United States took several steps in response to Russian interference in the 2016 U.S. election and increasing Russian harassment of U.S. diplomats overseas.
Burniske, Modirzadeh, & Lewis: Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and the U.N. General Assembly
Two interrelated trajectories are exerting pressure on a fundamental premise that has long undergirded international human rights law (IHRL). That premise — that the state is the primary entity that bears international-legal responsibility for respecting, protecting, and fulfilling human rights — stems in part from the (largely exclusive) competence of states to make, adjudicate, and enforce rules within their respective jurisdictions. The first trajectory is that, in a number of key respects, certain entities and scholars are increasingly recognizing the possibility of non-state entities bearing de-jure or de-facto human-rights obligations or related responsibilities. And the second trajectory is that, seemingly increasingly, ANSAs control access to territory and exercise control over civilian populations.
Several significant legal, policy, and practical concerns are at issue in whether armed non-state actors (ANSAs) will ultimately be recognized — by all relevant institutions and actors — as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states. In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL. This June 2017 Briefing Report with Annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment — or, at least, the non-abuse — of human rights.
While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law.
- Jeanette Schade & Dimitra Manou, Editorial: Climate, justice and displacement: reflections on law, policy and the future of human rights in the climate crisis
- Elizabeth Ferris & Jonas Bergmann, Soft law, migration and climate change governance
- Dayna Nadine Scott & Adrian A Smith, The abstract subject of the climate migrant: displaced by the rising tides of the green energy economy
- Wolfgang Obergassel, Lauri Peterson, Florian Mersmann, Jeanette Schade, Jane Alice Hofbauer & Monika Mayrhofer, Human rights and the clean development mechanism: lessons learned from three case studies
- Jeanette Schade, EU accountability for the due diligence failures of the European Investment Bank: climate finance and involuntary resettlement in Olkaria, Kenya
- Jane A Hofbauer, Operationalizing extraterritorial obligations in the context of climate project finance – the Barro Blanco case
- Sam Adelman, Geoengineering: rights, risks and ethics
- Joe Alizzi, The logic of industrial capitalism versus the logic of Inuit thinking – denied interconnectedness and how it inhibits broad-based action in the human rights and environmental spaces
- JHHW, On My Way Out – Advice to Young Scholars V: Writing References; In this Issue
- Niels Petersen, The International Court of Justice and the Judicial Politics of Identifying Customary International Law
- Bernard Hoekman & Petros C. Mavroidis, MFN Clubs and Scheduling Additional Commitments in the GATT: Learning from the GATS
- Janis Grzybowski, To Be or Not to Be: The Ontological Predicament of State Creation in International Law
- Noëlle Quénivet, Does and Should International Law Prohibit the Prosecution of Children for War Crimes?
- Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control
- Focus: International Legal Histories – A Look Back to the Twentieth Century
- Giovanni Mantilla, Conforming Instrumentalists: Why the United States and the United Kingdom Joined the 1949 Geneva Conventions
- Narrelle Morris & Aden Knaap, When Institutional Design is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943-1948
- Felix Lange, Between Systematization and Expertise for Foreign Policy: The Practice-Oriented Approach in Germany’s International Legal Scholarship (1920–1980)
- Roaming Charges
- Viorica Vita, Selling Love Locks in Rome
- EJIL: Debate!
- Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct
- Ilias Plakokefalos, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: A Reply to Vladyslav Lanovoy
- Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: Rejoinder
- Critical Review of International Governance
- Moria Paz, The Law of Walls
- Review Essay
- Outi Korhonen, Within and Beyond Interdisciplinarity in International Law and Human Rights. Review of Moshe Hirsch, Invitation to the Sociology of International Law and Pamela Slotte and Miia Halme-Tuomisaari (eds), Revisiting the Origins of Human Rights
Monday, July 10, 2017
The dispute settlement system (DSS) of the World Trade Organization (WTO), which is considered as the 'Jewel in the Crown' of the WTO, is also the busiest of its kind. While this no doubt reflects its success, the system is far from perfect, and has drawn criticism both from within and without the ranks of its users. This paper presents a statistical analysis of over twenty years of WTO DSS, with a particular emphasis on questions of effectiveness. Questions examined include: Who are the member states using the WTO DSS? Is it used equally by developed, developing and least developed countries? Are poor countries more likely than rich ones to settle cases? Is there a correlation between the Gross Domestic Product (GDP) or GDP per capita of WTO members and the extent to which they use the system? What is the extent of compliance with binding recommendations of the DSB by member states? Are compliance disputes bona fide disputes about the meaning of a DSB ruling, or are they part of delaying tactics? Who are the members that do comply and who are the ones that do not? How long do DSS procedures take on the average, from consultations request to adoption of recommendations? Has this time changed over time, from when the system began until today? Finally, the paper will address the problem of the Appellate Body’s inability to remand the case to the original panel for reconsideration and determination of relevant facts. It will examine how often this lack of authority frustrates the system’s ability to conclude the DSS procedures with a clear ruling on all the disputed issues.
- Michael A Becker, The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice
- Letizia Lo Giacco, Swinging between finding and justification: judicial citation and international law-making
- Andreas Dimopoulos, The representation of disability in the media in the UK and France: implications for free speech and diversity in light of Article 8 of the Convention on the Rights of Persons with Disabilities
- Helin M Laufer, War, weapons and watchdogs: an assessment of the legality of new weapons under international human rights law
- Fenghua Li, The Yukos cases and the provisional application of the Energy Charter Treaty
- Yen Hoang Tran, The South China Sea Arbitral Award: legal implications for fisheries management and cooperation in the South China Sea
The paper seeks to identify, within the broader genus of international courts and tribunal, a typology of courts which can be defined as supranational constitutional courts. To this end, it suggests six criteria that ought to be used in order to differentiate within the broader family of international courts the species of courts which present a constitutional character. Specifically, the paper suggests that jurisdiction, powers of judicial review, subjectivization, constitutional hermeneutics, constitutional doctrines and effectiveness are conditions to define an international court as a supranational constitutional court. The paper examines the case of the European Court of Justice as a paradigmatic example of a supranational constitutional court and considers to what extent analogous features are emerging in other tribunals, including the European Court of Human Rights.
- Jochen Bung, Naturrecht – Völkerrecht – Weltrecht – Der Code des Hugo Grotius
- Patricia Wiater, Der Staat als Investor. Staatsfonds und die süße Frucht der Staatenimmunität
- Beiträge und Berichte
- Otto Luchterhandt, Der Krieg Aserbaidschans gegen Berg-Karabach im April 2016 aus völkerrechtlicher Sicht
- Sebastian tho Pesch, Deutsch-polnische Seegrenzen in der Oderbucht: der seevölkerrechtliche Status der sog. Nordansteuerung und des Ankerplatzes Nr. 3
Sunday, July 9, 2017
- Charles F. Parker & Christer Karlsson, The European Union as a global climate leader: confronting aspiration with evidence
- Joanes Odiwuor Atela, Claire Hellen Quinn, Albert A. Arhin, Lalisa Duguma & Kennedy Liti Mbeva, Exploring the agency of Africa in climate change negotiations: the case of REDD+
- Kate Dooley & Aarti Gupta, Governing by expertise: the contested politics of (accounting for) land-based mitigation in a new climate agreement
- Yoshiki Yamagata, Jue Yang & Joseph Galaskiewicz, State power and diffusion processes in the ratification of global environmental treaties, 1981–2008
- Dan-Bi Um & Jung-Sup Um, Informed consent utilizing satellite imagery in forestry carbon trading with North Korea
- Tobias Schulz, Marc Hufty & Maurice Tschopp, Small and smart: the role of Switzerland in the Cartagena and Nagoya protocols negotiations
- Mark Axelrod, Blocking change: facing the drag of status quo fisheries institutions
- Mairon G. Bastos Lima, Gabrielle Kissinger, Ingrid J. Visseren-Hamakers, Josefina Braña-Varela & Aarti Gupta, The Sustainable Development Goals and REDD+: assessing institutional interactions and the pursuit of synergies
- Danae Azaria, The Scope and Content of Sovereign Rights in Relation to Non-Living Resources in the Continental Shelf and the Exclusive Economic Zone
- Ioannis Konstantinidis, Between Villa Schroder (ITLOS) and the Peace Palace (ICJ): Diverging Approaches to Continental Shelf Delimitation Beyond 200 Nautical Miles
- Hwang Junshik, Challenges on the Ocean and the Future of the Law of the Sea: Environment, Security, and Human Rights
- Chung-min Tsai, Sino-Japanese Relations Over the East China Sea: The Case of Oil and Gas Fields
- Stefan Talmon, Objections Not Possessing an "Exclusively Preliminary Character" in the South China Sea Arbitration
Mitchell: Sovereignty and Normative Conflict: International Legal Realism as a Theory of Uncertainty
“Realist” critical views on international law discount the idea that external norms determine the behavior and objectives of states. However, they risk replicating the very positions they criticize as a result of two common errors. First, they frequently assume that legal norms have clear and uncontested meanings that all observers will agree upon. Second, they assume the preexistence of the state as a rational, self-interested actor. The uncertain content of norms, and the uncertainty and fragility of the state’s stability, power, and rationality thus go unrecognized.
This Article proposes an agenda for further International Legal Realist theory premised on pragmatic analysis of the concept of state sovereignty. To this end, it develops the thought of the legal and political philosopher Carl Schmitt, arguably the most thorough and influential Realist critic of modern international law. For Schmitt, drawing on Thomas Hobbes, the sovereign power of the state is itself justified by the essential epistemic uncertainty of all disputes over norms and values. Only conscious institution of the sovereign authority could solve the conflict resulting when there is no agreement as to “who decides” how to define and apply contested norms — as is still the case today in many disputes among states.
Reemphasizing this centrality of epistemic uncertainty to the institution of sovereignty helps to set a new agenda for Realist international law theory. Neither states nor international norms and their interpreters should be taken as unproblematic elements of a unified order: rather both are heuristic tools that can be evaluated on the basis of their utility in procuring certain judgments on normative conflicts. From the North Korean nuclear weapons issue to the UK’s Brexit decision, this approach can potentially help legal scholars and practitioners to make more accurate determinations of the stakes and possible outcomes of many of today’s most pressing international legal disputes—and even help in conceiving alternatives to the current status quo.
The Introduction describes the term “community interests” for the purpose of exploring the extent to which states owe duties toward those who are affected by their actions and omissions. It argues that the relevant “communities” which are envisaged by the book extend beyond the “international community of states” to cover individuals and groups, even when their interests were not taken into account at the negotiation table or in policymaking bodies. The community can also be humanity at large, as reflected in the concept of crimes against humanity. As far as “community interests” are concerned, the Introduction explores questions related to the identification of these interests, the prioritization among them and their achievement. The Introduction outlines a typology of duties states might have toward others.
- Volume 384
- Symeon C. Symeonides, Idealism, Pragmatism, Eclecticism, General Course on Private International Law
- Scientific Articles
- Daniele Fabris, Crimes Committed On The High Seas, Piracy And Criminal Jurisdiction: Current Issues Of International Law Of The Sea Awaiting The 'Enrica Lexie' Decision
- Joanna Diane Caytas, Sanctions, Real And Imaginary: Experiences With Russia In The Ukraine Crisis
- JanWillem Sap, The Role of Human Rights in Setting the Boundaries Of Sovereignty and the Autonomy of the EU Legal Order
- Sangeetha Yogendran, Did The ICC Fail Child Victims In The Lubanga Reparations Order?
- Ana Martin, Intersectionality: A Tool for the Gender Analysis of Sexual Violence at the ICC
- Michael Addaney & Azubike Onuora-Oguno, Education as a Contrivance to Ending Child Marriage in Africa: Perspectives from Nigeria and Uganda
- Opinion Articles
- Shadi Sakran, The Creation of the Non-Member Observer State of Palestine: A Legal Analysis of UN General Assembly Resolution 67/19
- Nicola Perugini & Neve Gordon, Human Rights and Domination
- Anja Eleveld, Performing Human Rights in the Context of the Israeli-Palestinian Conflict
- Helena de Sousa-Falcao Montull, A Commentary On the Book Discussion 'The Human Right to Dominate'
- Adina Nistor, The 'Extracurricular International Law' - A Seminar With Mark Drumbl
In most post-conflict countries nongovernmental organizations are everywhere, but their presence is misunderstood. In The NGO Game Patrice McMahon investigates the unintended outcomes of what she calls the NGO boom in Bosnia and Kosovo. Using her years of fieldwork and interviews, McMahon argues that when international actors try to rebuild and reconstruct post-conflict countries, they often rely on and look to NGOs. Although policymakers and scholars tend to accept and even celebrate NGO involvement in post-conflict and transitioning countries, they rarely examine why NGOs have become so popular, what NGOs do, or how they affect everyday life.
After a conflict, international NGOs descend on a country, local NGOs pop up everywhere, and money and energy flow into strengthening the organizations. In time, the frenzy of activity slows, the internationals go home, local groups disappear from sight, and the NGO boom goes bust. Instead of peace and stability, the embrace of NGOs and the enthusiasm for international peacebuilding turns to disappointment, if not cynicism. For many in the Balkans and other post-conflict environments, NGOs are not an aid to building a lasting peace but are part of the problem because of the turmoil they foster during their life cycles in a given country. The NGO Game will be useful to practitioners and policymakers interested in improving peacebuilding, the role of NGOs in peace and development, and the sustainability of local initiatives in post-conflict countries.
- Special Issue: New frontiers in empirical legal research: Text-as-data and network analysis of international economic law
- Wolfgang Alschner, Joost Pauwelyn, & Sergio Puig, The Data-Driven Future of International Economic Law
- Mark Daku & Krzysztof J. Pelc, WHO Holds Influence over WTO Jurisprudence?
- Mattias Derlén & Johan Lindholm, Is it Good Law? Network Analysis and the CJEU’s Internal Market Jurisprudence
- Damien Charlotin, The Place of Investment Awards and WTO Decisions in International Law: A Citation Analysis
- Malcolm Langford, Daniel Behn, & Runar Hilleren Lie, The Revolving Door in International Investment Arbitration
- Todd Allee, Manfred Elsig, & Andrew Lugg, The Ties between the World Trade Organization and Preferential Trade Agreements: A Textual Analysis
- Jean Frédéric Morin, Joost Pauwelyn, & James Hollway, The Trade Regime as a Complex Adaptive System: Exploration and Exploitation of Environmental Norms in Trade Agreements
- Tomer Broude, Yoram Z. Haftel, & Alexander Thompson, The Trans-Pacific Partnership and Regulatory Space: A Comparison of Treaty Texts