Friday, August 4, 2017
AJIL Unbound Symposium: On Johns's "Data, Detection, and the Redistribution of the Sensible in International Law"
Thursday, August 3, 2017
- Global Turn to Greenhouse Gas Emissions Trading? Experiments, Actors, and Diffusion
- Katja Biedenkopf, Patrick Müller, Peter Slominski, & Jørgen Wettestad, Introduction
- Guri Bang, David G. Victor, & Steinar Andresen, California’s Cap-and-Trade System: Diffusion and Lessons
- Tor Håkon Jackson Inderberg, Ian Bailey, & Nichola Harmer, Designing New Zealand’s Emissions Trading Scheme
- Patrick Müller & Peter Slominski, The Politics of Learning: Developing an Emissions Trading Scheme in Australia
- Mattijs Smits, The New (Fragmented) Geography of Carbon Market Mechanisms: Governance Challenges from Thailand and Vietnam
- Katja Biedenkopf, Sarah Van Eynde, & Hayley Walker, Policy Infusion Through Capacity Building and Project Interaction: Greenhouse Gas Emissions Trading in China
- Lars H. Gulbrandsen, François Sammut, & Jørgen Wettestad, Emissions Trading and Policy Diffusion: Complex EU ETS Emulation in Kazakhstan Markus Lederer, Carbon Trading: Who Gets What, When, and How?
- Book Review Essay
- J. Samuel Barkin, Complicating Carbon Markets
Despite clear legal rules and political commitments, no significant progress has been made in nuclear disarmament for two decades. Moreover, not even the use of these weapons has been banned to date. New ideas and strategies are therefore necessary. The author explores an alternative approach to arms control focusing on the human dimension rather than on States’ security: "humanization" of arms control!
The book explores the preparatory work on arms control treaties and in particular the role of civil society. It analyzes the positive experiences of the movements against chemical weapons, anti-personnel mines, and cluster munitions, as well as the recent conclusion of the Arms Trade Treaty. The author examines the question of whether civil society will be able to replicate the success strategies that have been used, in particular, in the field of anti-personnel mines (Ottawa Convention) and cluster munitions (Oslo Convention) in the nuclear weapons field. Is there any reason why the most destructive weapons should not be outlawed by a legally binding instrument?
The book also explains the effects of weapons, especially nuclear weapons, on human beings, the environment, and global development, thereby focusing on vulnerable groups, such as indigenous peoples, women, and children. It takes a broad approach to human rights, including economic, social, and cultural rights. The author concludes that the use of nuclear weapons is illegal under international humanitarian and human rights law and, moreover, constitutes international crimes under the Rome Statute of the International Criminal Court.
In his general conclusions, the author makes concrete proposals for the progress toward a world without nuclear weapons.
Wednesday, August 2, 2017
- Roman Kwiecień, International Law as Legal System: Legality, Legitimacy, and Legal Position of States
- Alessandro Rosanò, The Need For Proportionality: Assessing the Clash Between National Criminal Provisions and the Four Fundamental Freedoms in the Case Law of the European Court of Justice
- Marcin Kałduński, Principle of Clean Hands and Protection of Human Rights in International Investment Arbitration
In international relations (IR), some states often deny the legal status of others, stigmatising their practices or even their culture. Such acts of deliberate humiliation at the diplomatic level are common occurrences in modern diplomacy. In the period following the breakup of the famous 'Concert of Europe', many kinds of club-based diplomacy have been tried, all falling short of anything like inclusive multilateralism. Examples of this effort include the G7, G8, G20 and even the P5. Such 'contact groups' are put forward as if they were actual ruling institutions, endowed with the power to exclude and marginalise.
Today, the effect of such acts of humiliation is to reveal the international system's limits and its lack of diplomatic effectiveness. The use of humiliation as a regular diplomatic action steadily erodes the power of the international system. These actions appear to be the result of a botched mixture of a colonial past, a failed decolonisation, a mistaken vision of globalisation and a very dangerous post-bipolar reconstruction.
Although this book primarily takes a social psychology approach to IR, it also mobilizes the resources of the French sociological tradition, mainly inspired by Emile Durkheim. It is translated from Le temps des humiliés. Pathologie des relations internationales (Paris, Odile Jacob, 2014).
This article analyses the various ways in which investment law raises questions of change. It distinguishes between changes in international investment norms, and changes in a host state’s regulatory system which is subject to the control of such norms, and explains how these different manifestations of change relate to the distinct yet interrelated issues of interpretation and application. The article explains why, given features of the contemporary investment regime, on questions of interpretation, concerning the content of international investment norms, arbitrators operate within wider processes of law-development over which states, as treaty masters, also exercise significant influence. In contrast, arbitrators dominate the process of applying international investment norms to particular investor-state disputes to determine whether changes in a host state’s regulatory system breach applicable investment norms. This claim is demonstrated in relation to the two most prominent investment treaty standards: fair and equitable treatment, and the protection against indirect expropriation.
Tuesday, August 1, 2017
- Christopher R. Seppälä, Why Finland Should Adopt the UNCITRAL Model Law on International Commercial Arbitration
- Monica Feria-Tinta, Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay
- Juan Pablo Moyano, Impecuniosity and Validity of Arbitration Agreements
- Giovanni Zarra, Orderliness and Coherence in International Investment Law and Arbitration: An Analysis Through the Lens of State of Necessity
- Nelson Goh, Court-Ordered Interim Relief Against States in Aid of Arbitration: Sovereign Immunity, Waiver and Comity
- Will Sheng Wilson Koh, Think Quality Not Quantity: Repeat Appointments and Arbitrator Challenges
- Monica Hakimi, The Work of International Law
- Nancy Amoury Combs, Grave Crimes and Weak Evidence: A Fact-finding Evolution in International Criminal Law
- Jeswald W. Salacuse, Of Handcuffs and Signals: Investment Treaties and Capital Flows to Developing Countries
- Gary B. Born & Adam Raviv, The Abyei Arbitration and the Rule of Law
- Laura Fraedrich & Chase D. Kaniecki, The American Agenda on Trade: What’s Happened and What’s Next?
- Qingjiang Kong, Trade Rows Between China and the US: Are They Manageable?
- Sanjay Notani & Rishab Raturi, A Plurilateral E-Commerce Agreement: Skirting the ‘Doha’ Impasse
- Ognjen Alagic, Customs Valuation in Bosnia and Herzegovina: Challenges and Obstacles
- Khuong-Duy Dinh, ‘Mode 5’ Services and Some Implications for Rules of Origin
- Lin Zhang, Insurance and Consumer Protection in WTO Law: A Chinese Perspective
- Akhil Raina, Multicoloured in a Monochrome World: WTO and Conflicting Regulatory Purposes
- Hammer and Nail. Megaregionals, CETA and the Law of Treaties
- Introduced by Jan Klabbers
- Federica Violi, Formal and informal modification of treaties before their entry into force: What scope for amending CETA?
- Alessandra Arcuri, Is CETA keeping up with the promise? Interpreting certain provisions relating to Biotechnology
- Luca Pantaleo, The provisional application of CETA: Selected issues
Monday, July 31, 2017
- Larissa van den Herik, The individualization and formalization of UN sanctions
- Tom Ruys, Sanctions, retorsions and countermeasures: concepts and international legal framework
- Sue Eckert, The evolution and effectiveness of UN targeted sanctions
- Lisa Ginsborg, UN sanctions and counter-terrorism strategies: moving towards thematic sanctions against individuals?
- Dan Joyner, UN counter-proliferation sanctions and international law
- Matthew Happold, UN sanctions as human rights and humanitarian law devices
- Daniëlla Dam-de Jong, UN natural resources sanctions regimes: incorporating market-based responses to address market- driven problems
- Alejandro Rodiles, The design of UN sanctions through the interplay with informal arrangements
- Devika Hovell, Glasnost in the Security Council: the value of transparency
- Kimberly Prost, Security Council sanctions and fair process
- Kristen Boon, Timing matters: termination policies for UN sanctions
- Pierre-Emmanuel Dupont, UN sanctions and international financial institutions
- Andrew Mitchell, Sanctions and the World Trade Organization
- Eric De Brabandere & David Holloway, Sanctions and international arbitration
- Mercédeh Azeredoh da Silveira, Economic sanctions and contractual disputes between private operators
- Ward Ferdinandusse & Pieter Rademakers, The prosecution of sanctions busters
- Mirko Sossai, UN sanctions and regional organizations: an analytical framework
- Penelope Nevill, Interpretation and review of UN sanctions by European courts: comity & conflict
- Machiko Kanetake & Congyan Cai, Chinese and Japanese perspectives on UN sanctions
- Amelia Broodryk & Anton du Plessis, African perceptions of UN sanctions
- Jeremy Levitt, UN sanctions and peace construction in West Africa
The contemporary international law discourse about imperialism is built around four narratives. Each of these narratives presupposes its own, fairly distinct concept of imperialism and thus orientates the course of accompanying theoretical reflections towards a fundamentally different set of issues, events, and legal and historical phenomena. Drawing on the methodologies of critical narratology and critical legal studies, I trace the general contours of these four narratives and explore their underlying theoretical logics and conceptual architectures.
Each of these narratives follows a certain template. Though the role which these templates play seems at first sight to be limited only to helping articulate some general idea about international law’s relationship with imperialism, in the broader discursive economy of the attendant debates they also perform a number of other important functions. Not least crucial among them is the organizing and structuring of the wider theoretical vision that underpins the collective disciplinary consciousness of the international law profession – that layer of largely unarticulated, diffuse commonsensical understandings about the ultimate meaning and purpose of international law, its cultural and ideological raison d’etre as a social project and a mode of governance, its power, and its general place in human history that gives the international law community its sense of a disciplinary unity.
If only because of this, I would like to argue, the concept of imperialism can be recognized today as one of the most significant nodal points in the broader structure of the contemporary international law discourse, a marker of one of the most dynamic discursive spaces for the practical actualization of international law's intra-disciplinary politics and ideological struggles. How we construct the concept of imperialism, how we narrate the relationship between it and the rest of the ideational landscape of international law, in the final analysis, always acts as a statement about where exactly within the discipline’s internal political space we prefer to make our ideological home.
International organizations (IOs) today contribute to international and transnational law-making in ways that were not anticipated by their constituent charters. The paper analyses this phenomenon of competence creep with regards to the expansion of the World Bank’s (the Bank) mandate to the field of Rule of Law (RoL) and governance reform. Two innovative and intertwined conclusions are formulated. First of all, on a general level, the paper argues that the constitutionalization of RoL reform in the Bank exemplifies the path-dependency generated by the constituent charter with regards to the substantive expansion of operational practices in IOs. The legal memorandum by which General Counsel (GC) Ibrahim Shihata introduced and legitimized the expansion of the Bank’s mandate to the field of RoL reform, the paper shows, employs a specific constitutional hermeneutic, grounded in the balancing of institutional teleology with charter constraints. Secondly, and most importantly, the paper exposes how Shihata’s reliance on the constituent charter shaped his RoL concept, thereby delineating the substantive expansion of the Bank’s mandate and operational practice. In light of the inclusion of the RoL as a distinct Sustainable Development Goal, this substantive inquiry into the nature of the Bank’s RoL concept is most needed. The paper develops the innovative argument that Shihata’s constitutional hermeneutic resulted in a sui generis Bank-specific RoL concept, which cannot – despite persistent attempts in literature – be tied to any legal doctrinal position. The analysis highlights two important features of Shihata’s RoL concept: (1) its substantive roots in statistical regression analysis and (2) its dual functionality across the public-private divide. Combined, the two conclusions ameliorate the understanding of constitutional change in IOs and the substantive orientation of RoL reform in the Bank.
Sunday, July 30, 2017
The UN human rights agenda has reached the mature age of 70 years and many UN mechanisms created to implement this agenda are themselves in their middle-age, yet human rights violations are still a daily occurrence around the globe. The scorecard of the UN human rights mechanisms appears impressive in terms of the promotion, spreading of education and engaging States in a dialogue to promote human rights, but when it comes to holding governments to account for violations of these rights, the picture is much more dismal.
This book examines the effectiveness of UN mechanisms and suggests measures to reform them in order to create a system that is robust and fit to serve the 21st century. This book casts a critical eye on the rationale and effectiveness of each of the major UN human rights mechanisms, including the Human Rights Council, the human rights treaty bodies, the UN High Commissioner for Human Rights, the UN Special Rapporteurs and other Charter-based bodies. Surya P. Subedi argues most of the UN human rights mechanisms have remained toothless entities and proposes measures to reform and strengthen it by depoliticising the workings of UN human rights mechanisms and judicialising human rights at the international level.