This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.
Saturday, August 12, 2017
Rowen: “We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia
Jamie Rebecca Rowen (Univ. of Massachusetts, Amherst - Political Science and Legal Studies) has published “We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia (Law & Social Inquiry, Vol. 42, no. 3, pp. 622–647, Summer 2017). Here's the abstract:
New Issue: International Review of the Red Cross
- Life in a war-torn city: Residents of Aleppo tell their stories
- Interview with Eyal Weizman: Professor at Goldsmiths, University of London, Director of the Centre for Research Architecture and Director of Forensic Architecture*
- Michael Evans, Future war in cities: Urbanization's challenge to strategic studies in the 21st century
- Mark Zeitoun & Michael Talhami, The impact of explosive weapons on urban services: Direct and reverberating effects across space and time
- Antônio Sampaio, Before and after urban warfare: Conflict prevention and transitions in cities
- ICRC Q&A on the issue of explosive weapons in populated areas
- Isabel Robinson & Ellen Nohle, Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas
- Eric Talbot Jensen, Precautions against the effects of attacks in urban areas
- Nathalie Durhin, Protecting civilians in urban areas: A military perspective on the application of international humanitarian law
- The ICRC's approach to urban services during protracted armed conflict: Q & A with Evaristo de Pinho Oliveira
- Lucy Earle, Addressing urban crises: Bridging the humanitarian–development divide
- Sahr Muhammedally, Minimizing civilian harm in populated areas: Lessons from examining ISAF and AMISOM policies
- Samuel Longuet, Permitted for law enforcement purposes but prohibited in the conduct of hostilities: The case of riot control agents and expanding bullets
- Jeanne Ward, It's not about the gender binary, it's about the gender hierarchy: A reply to “Letting Go of the Gender Binary”
- Christoph Hensch, Twenty years after Novye Atagi: A call to care for the carers
New Issue: Review of International Studies
- Chris Hesketh, Passive revolution: a universal concept with geographical seats
- Matthew S. Weinert, Grounding world society: Spatiality, cultural heritage, and our world as shared geographies
- Ryder McKeown, International law and its discontents: Exploring the dark sides of international law in International Relations
- Stefan Borg, The politics of universal rights claiming: Secular and sacred rights claiming in post-revolutionary Tunisia
- Keith Smith, The realism that did not speak its name: E. H. Carr’s diplomatic histories of the twenty years’ crisis
- Björn Jerdén, Security expertise and international hierarchy: the case of ‘The Asia-Pacific Epistemic Community’
- Mark Beeson, Alternative realities: Explaining security in the Asia-Pacific
- Steven Bernstein & Hamish van der Ven, Best practices in global governance
- Michelle Bentley, The intervention taboo(s): Strategy and normative invalidation
New Issue: Review of European, Comparative & International Environmental Law
- Special Issue: Environmental Crimes
- Lorraine Elliott, Cooperation on Transnational Environmental Crime: Institutional Complexity Matters
- Giovanni Broussard, Building an Effective Criminal Justice Response to Wildlife Trafficking: Experiences from the ASEAN Region
- Gregory Rose, Australian Law to Combat Illegal Logging in Indonesia: A Gossamer Chain for Transnational Enforcement of Environmental Law
- Michael Faure, The Development of Environmental Criminal Law in the EU and its Member States
- Ricardo Pereira, Towards Effective Implementation of the EU Environmental Crime Directive? The Case of Illegal Waste Management and Trafficking Offences
- Regular Article
- Joonas Alaranta & Topi Turunen, Drawing a Line between European Waste and Chemicals Regulation
- Case Note
- Fernando Dias Simões, Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy
Friday, August 11, 2017
Call for Submissions: Business, Human Rights and Security
The Business and Human Rights Journal has issued a call for submissions for a special issue on "Business, Human Rights and Security." The deadline is August 15, 2017. The call is here.
Alter: The Future of International Law
Karen J. Alter (Northwestern Univ. - Political Science) has posted The Future of International Law (in The New Global Agenda, Diana Ayton-Shenker ed., forthcoming). Here's the abstract:
This essay addresses three related questions about international law’s future: Will the world continue to seek multilateral solutions and promote global integration? What is the future of highly contested areas of international law, such as the promotion of human rights and the accountability of states and individuals for atrocities? And will issues that are as yet unregulated or poorly guided by international law – cyber-security, the use of drones, and global climate change – present new frontiers for international law? These questions provide different ways to investigate whether the international liberal order – the political a commitment to multilateralism, human rights and the rule of law – can survive if America turns its back on these values. Invoking John Ruggie’s argument that international regimes fuse power and social purpose, I argue that international law can survive the removal of US support, but it cannot survive if the social purpose of the international liberal order loses support. Based on an analysis of international law’s history, and drawing on numerous social science studies, I argue that the policy positions of President Trump are a neither a major break from past US politics, nor is the Trump Administration likely to meaningfully affect existing or future prospects for international law. The larger threat would be a decline in popular support for the rule of law, which is why global populism more than the policy positions of the current US Administration present the greater threat to the international liberal order.
New Volume: African Yearbook on International Humanitarian Law
The latest volume of the African Yearbook on International Humanitarian Law (Vol. 2016) is out. Contents include:- Navi Pillay, International Human Rights Law and states’ practice
- Wyne Ken Mutuma, The problem of civilian contractors that directly participate in hostilities
- Marco Nel & Shannon Bosch, Voluntary human shields in International Humanitarian Law : a proposal for suitable future regulation
- Arthur van Coller, The innocent Civilian, the mandated soldier and the unlawful fighter – a re-evaluation of the ‘direct participation in hostilities’ dilemma
- Ben Saul, Many small wars : the classification of armed conflicts in the non- self-governing territory of Western Sahara (Spanish Sahara) in 1974–1976
- Dan Kuwali, Persuasive prevention : ending mass atrocities in Africa
- Mia Swart, The African Union Commission of Inquiry on South Sudan
- Mark A. Drumbl, A Former child soldier in The Hague, as an accused
- Marieke Roos, Nuclear non-proliferation and disarmament
Chen: Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice
Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice, as the name suggests, focuses on the Chinese courts’ application of the ‘public policy’ exception stipulated in Article V of the New York Convention. Whether a foreign arbitral award can be recognised and enforced by the Chinese courts has always been on the top of foreign parties’ list of concerns. As the ‘public policy’ exception is more uncertain than most other legal concepts, it tends to be argued when other points fail. This book – a major contribution to understanding theory and practice related to the public policy exception – provides a comprehensive understanding on how the term ‘public policy’ specified in Article V of the New York Convention has been interpreted and applied by the Chinese courts.
Holthoefer: Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period
Anne Holthoefer (Saint Anselm College - Politics) has published Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period (Law & Social Inquiry, Vol. 42, no. 3, pp. 711–743, Summer 2017). Here's the abstract:
This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.
Calamita: The Challenge of Establishing a Multilateral Investment Tribunal at ICSID
N. Jansen Calamita (National Univ. of Singapore - Centre for International Law) has posted The Challenge of Establishing a Multilateral Investment Tribunal at ICSID (ICSID Review, forthcoming). Here's the abstract:
In its recent treaties with Canada and Vietnam, the European Union has established a new model of investor-state dispute settlement (ISDS). It entails a reworking of existing structures of investor-state arbitration through, inter alia, the replacement of ad hoc arbitral tribunals with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. It further provides for the establishment of a two-tiered system of tribunals, comprising first-instance and appellate bodies, and allows for appellate review as of right on issues of law and fact.
The new EU model of ISDS does not appear to be compatible with the ICSID Convention. The changes made by the EU and its counterparties are simply too fundamental and too many for the awards produced by this new process of ISDS to be classified properly as ICSID Convention arbitral awards. Moreover, it is not within the power of groups of states or disputing parties to modify among themselves fundamental proscriptions of the ICSID Convention, such as the Convention’s express prohibition on the appellate review of ICSID Convention arbitral awards.
This paper proceeds from the premise that a system of ISDS like the EU model is not compatible or compliant with the ICSID Convention and asks whether, nevertheless, a new multilateral system based broadly on that model can be designed to work at ICSID without amending the Convention. Is it possible, in other words, for ICSID to serve as a forum for the negotiation of an instrument that would create a new multilateral ISDS mechanism outside of the ICSID Convention? Or, considered differently, in the event that negotiations for a new mechanism occur in some other forum or in an ad hoc way, can ICSID and its secretariat nevertheless serve as the international organisation onto which the new mechanism might be docked? If so, what limits might there be on the role the Centre could properly play? These questions are of existential importance to ICSID as an institution. For if states agree to establish a multilateral investment tribunal to replace ICSID Convention arbitration (and all other forms of ad hoc investor-state arbitration for that matter), the question must be asked as to what will be left for ICSID as an institution to do, at least with respect to disputes arising under investment treaties.
Nouwen: The International Criminal Court
Sarah M.H. Nouwen (Univ. of Cambridge - Law) has posted The International Criminal Court (Oxford Bibliographies). Here's the introduction:
The International Criminal Court (ICC or “the Court”) is the world’s first permanent international court enforcing international criminal law. The ICC has attracted enormous scholarly attention from both lawyers and non-lawyers. Entire journals have been filled with commentaries on its legal framework—primarily the Rome Statute by which it was created—and the case-law developing that framework. But as the breadth of research on the ICC in non-legal disciplines demonstrates, the Court’s relevance goes far beyond the application and development of international criminal law; even without much judicial activity, it produces wide-ranging consequences in the world. Much material on the ICC is subsumed in literature on international criminal tribunals or international criminal law generally. This entry focuses on literature that is ICC-specific. Even though the Rome Statute’s provisions and its case law on substantive international criminal law are in some instances ICC-specific, this article leaves substantive criminal law (for instance genocide, modes of liability, or defenses) for Oxford Bibliographies entries on those topics.
Rao: The Jadhav case (2017): India and Pakistan before the International Court of Justice
Pemmaraju Sreenivasa Rao has posted The Jadhav case (2017): India and Pakistan before the International Court of Justice (Indian Journal of International Law, forthcoming). Here's the abstract:
This paper examines the Jadhav case filed by India before the ICJ. Kulbhushan Jadhav, an Indian national, was arrested by Pakistan on charges of espionage, sabotage and terrorism. Pakistan denied several requests from India seeking consular access to Jadhav after his arrest preventing it from rendering him necessary assistance. A military court of Pakistan sentenced him to death. Under the circumstances, India filed a case before the ICJ seeking its jurisdiction under Article 36(1) of its Statute to assert its right of consular access. Pakistan contested the jurisdiction of the ICJ. The ICJ stayed the death sentence and called for memorials to be filed by the Parties to decide first on issues of jurisdiction and later concerning merits as appropriate. This case also offers an opportunity to take an overview of India’s policy and practice concerning peaceful settlement of disputes through judicial means.
Thursday, August 10, 2017
New Issue: European Journal of International Security
- Richard Caplan & Anke Hoeffler, Why peace endures: an analysis of post-conflict stabilisation
- John Gledhill, When state capacity dissolves: Explaining variation in violent conflict and conflict moderation
- Andrew Judge & Tomas Maltby, European Energy Union? Caught between securitisation and ‘riskification’
- Robert J. Downes & Christopher Hobbs, Nuclear terrorism and virtual risk: Implications for prediction and the utility of models
- Campbell Craig, When the whip comes down: Marxism, the Soviet experience, and the nuclear revolution
- Benoît Pelopidas, The unbearable lightness of luck: Three sources of overconfidence in the manageability of nuclear crises
New Issue: Global Constitutionalism
The latest issue of Global Constitutionalism (Vol. 6, no. 2, July 2017) is out. Contents include:- Special Issue: Independence in a World of Intersecting Legal and Political Regimes
- K.M. Fierke, Introduction: Independence, global entanglement and the co-production of sovereignty
- Silvia Suteu, The Scottish independence referendum and the participatory turn in UK constitution-making: The move towards a constitutional convention
- Luis Moreno, Europeanisation and Catalonia’s in(ter)dependence
- Alexander Orakhelashvili, Kosovo and intersecting legal regimes: An interdisciplinary analysis
- Pablo Rueda-Saiz, Indigenous autonomy in Colombia: State-building processes and multiculturalism
- Hung-Jen Wang, Traditional empire–modern state hybridity: Chinese tianxia and Westphalian anarchy
- Noé Cornago, Beyond self-determination: norms contestation, constituent diplomacies and the co-production of sovereignty
New Issue: Journal of World Investment & Trade
- N. Jansen Calamita, The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime
- Thomas Cottier, Roberto Echandi, Rachel Liechti-McKee, Tetyana Payosova & Charlotte Sieber, The Principle of Proportionality in International Law: Foundations and Variations
- Gonzalo Villalta Puig & Sabrina Leung Tsam Tai, China (Shanghai) Pilot Free Trade Zone Investor-State Dispute Settlement: An Uncertain Experiment
- Ori Pomson, The Clean Hands Doctrine in the Yukos Awards: A Response to Patrick Dumberry
- Jan Ole Voss & Barbara von Gayling-Westphal, A Swiss Perspective on Contract Claims vs. Treaty Claims
- Joshua Paine, Failure to Take Reasonable Environmental Measures as a Breach of Investment Treaty?
New Additions to the UN Audiovisual Library of International Law
The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law. They were given by Olivier Corten on “La légitime défense préventive : un oxymore?” and by Vaios Koutroulis on “The Beginning and End of Occupation” and “Le début et la fin de l'application du droit de l'occupation.”
New Issue: Business and Human Rights Journal
- Articles
- Robert McCorquodale, Lise Smit, Stuart Neely, & Robin Brooks, Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises
- Björn Fasterling, Human Rights Due Diligence as Risk Management: Social Risk Versus Human Rights Risk
- Louise J Obara, ‘What Does This Mean?’: How UK Companies Make Sense of Human Rights
- Tomaso Ferrando, Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and ‘Legal Chokeholds’
- Nien-hê Hsieh, Business Responsibilities for Human Rights: A Commentary on Arnold
- Denis G. Arnold, On the Division of Moral Labour for Human Rights Between States and Corporations: A Reply to Hsieh
- Developments in the Field
- Sandra Cossart, Jérôme Chaplier, & Tiphaine Beau de Lomenie, The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All
- Mahdev Mohan, A Domestic Solution for Transboundary Harm: Singapore’s Haze Pollution Law
- Samentha Goethals, Joe Bardwell, Mariam Bhacker, & Bahaa Ezzelarab, Business Human Rights Responsibility for Refugees and Migrant Workers: Turning Policies into Practice in the Middle East
- Stéphane Brabant & Elsa Savourey, From Global Toolbox to Local Implementation: The IBA Practical Guide on Business and Human Rights for Business Lawyers
- Stefanie Lemke, The UN Guiding Principles and the Legal Profession: Quo Vadis?
- Joanne Bauer, Equipping Professionals for the Next Challenges: The Design and Results of a Multidisciplinary Business and Human Rights Clinic
- Carlos Lopez, Struggling to Take Off?: The Second Session of Intergovernmental Negotiations on a Treaty on Business and Human Rights
- Irit Tamir & Sarah Zoen, Human Rights Impact Assessments in a Brazil Land Conflict: Towards a Hybrid Approach
New Issue: Journal du Droit International
The latest issue of the Journal du Droit International ("Clunet") (Vol. 144, no. 3, Juillet-Août-Septembre 2017) is out. Contents include:- Doctrine
- Nathalie Ros, La gouvernance des mers et océans, entre mythes et réalités juridiques
- Hélène Peroz, Les lois applicables au régime primaire, Incidences du règlement (UE) 2016/1103 sur le droit applicable au régime primaire en droit international privé français
- Lucie Lorenzini, Gestation pour autrui : entre ordre public et intérêt supérieur de l’enfant. – Analyse de droit comparé (droit français et droit italien) au regard de la position de la CEDH
- Variétés
- Mahutodji Jimmy Vital Kodo, Sur un conflit inédit de juridictions entre la Cour commune de justice et d’arbitrage de l’OHADA et la Cour suprême du Congo
Berlin & Dancy: The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions
Mark S. Berlin (Marquette Univ.) & Geoff Dancy (Tulane Univ.) have posted The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions (Law & Society Review, forthcoming). Here's the abstract:
This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in postauthoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.
New Issue: Global Governance: A Review of Multilateralism and International Institutions
The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 23, no. 3, July-September 2017) is out. Contents include:- John W. Holmes Memorial Lecture
- Margaret P. Karns, A Pivotal Moment in Global Governance? Looking Back to Look Forward
- The Global Forum
- Ben Majekodunmi, Prevention Crisis: The Need for New Consensus at the United Nations
- Articles
- Chung-in Moon & Chae-Kwang You, The ASEAN Regional Forum’s Experts and Eminent Persons Group: Achievements, Limitations, Prospects
- Lisa MacLeod, China’s Security Council Engagement: The Impact of Normative and Causal Beliefs
- Oleg Korneev, International Organizations as Global Migration Governors: The World Bank in Central Asia
- Andrea M. Collins, Goal Setting and Governance: Examining the G8 New Alliance for Food Security and Nutrition with a Gender Lens
- Ellen Jenny Ravndal, “A Force for Peace”: Expanding the Role of the UN Secretary-General Under Trygve Lie, 1946-1953
- Carolina Milhorance & Folashade Soule-Kohndou, South-South Cooperation and Change in International Organizations
- Matthew D. Stephen, Emerging Powers and Emerging Trends in Global Governance
- Markus Fraundorfer, Brazil’s Organization of the NETmundial Meeting: Moving Forward in Global Internet Governance
New Issue: International Legal Materials
- Vasiliauskas v. Lithuania (Eur. Ct. H.R.), with introductory note by Robert Cryer
- Actions pour la Protection des Droits de l'Homme (APDH) v. Republic of Côte d'Ivoire (Afr. Ct. H.P.R.), with introductory note by Marie Joseph Ayissi
- Suresh v. Canada (Inter-Am. Comm'n H.R.), with introductory note by Christina M. Cerna
- United Nations Security Council Resolution 2270, with introductory note by Victoria Sutton
- United Nations Security Council Resolution 2334, with introductory note by Brian McGarry
Wednesday, August 9, 2017
Bodansky: The Role of the International Court of Justice in Addressing Climate Change
Daniel Bodansky (Arizona State Univ. - Law) has posted The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections (Arizona State Law Journal, forthcoming). Here's the abstract:
What role might international adjudication play in addressing climate change? Thus far, the international climate change regime has developed primarily through negotiations, marked most recently by the adoption of the Paris Agreement and decisions by the Montreal Protocol parties and the International Civil Aviation Organization to address hydrofluorocarbons (HFCs) and aviation emissions respectively, two very rapidly growing sources of greenhouse gas emissions. Despite the Trump Administration's repudiation of the Paris Agreement, it remains our best hope of addressing climate change internationally. But adjudication could also play a constructive role, not as a substitute for the negotiations but as a complement. The essay explores the relationship between adjudication and negotiation, and how an ICJ advisory opinion could work with rather than against the grain of the negotiations.
New Issue: Global Responsibility to Protect
The latest issue of Global Responsibility to Protect (Vol. 9, no. 3, 2017) is out. Contents include:- Responsibility to Protect and the International Human Rights Agenda: Tensions and Opportunities
- Sara E. Davies, Responsibility to Protect and the International Human Rights Agenda: Tensions and Opportunities
- Kirsten Ainley, From Atrocity Crimes to Human Rights: Expanding the Focus of the Responsibility to Protect
- Amanda Murdie, R2P, Human Rights, and the Perils of a Bad Human Rights Intervention
- Brooke Coe, Regional Human Rights Institutions and R2P: The Role of State Monitoring in Atrocity Prevention
- Veronika Haász, R2P and National Human Rights Institutions
Happold: Who Benefits from Human Rights Treaties?
Matthew Happold (Université du Luxembourg - Law) has posted Who Benefits from Human Rights Treaties? (in Liber Amicorum Rusen Ergeç, Isabelle Riassetto, Luc Heuschling, & Georges Ravarani eds., 2017). Here's the abstract:
This chapter examines how the question of whether legal persons (in particular corporations) enjoy human rights has been answered under a number of human rights treaties. Most human rights treaties have been interpreted as conferring rights upon natural, but not on legal, persons. And most international human rights bodies will only entertain complaints from individuals and not from corporations. But the European Court of Human Rights and the Court of Justice of the European Union have taken a quite different approach from that of other regional and sub-regional courts and the UN Human Rights Committee, viewing corporations as rights-holders under the treaties they administer. They have done so, however, largely on the basis not of any expressed philosophical disagreements but by reference to the relevant treaty texts. Grander arguments have tended to be supportive, even when extensive. This is unsurprising. If such an important distinction is to be made, it should be undertaken by the treaty drafters.
But saying that legal persons can be rights-holders under human rights treaties is only a beginning. Corporations are not individuals, even though they can be analogised as such. Which leads back to the original question: when should they benefit from the same rights as individuals? Two issues arise here. The first concerns what rights corporations should enjoy: the second the extent to which they should enjoy them. In contrast to the initial question, these two issues have been left to the judges alone to determine.
The justification given by the European Court of Human Rights for precluding governmental bodies or entities from bringing claims is to prevent States parties to the Convention from acting both as applicants and respondents, because it is the State itself which is obliged to guarantee respect for fundamental rights within its territory. Drilling down further, one might say that different categories of entity are holders of rights and bearers of obligations under human rights treaties. Increasingly, given the decline of the State and the rise of the corporation, we are told that human rights should serve directly to regulate corporate behaviour. Might not the same consideration lead to a need to reconsider the circumstances in which it is appropriate for corporations themselves to enjoy such rights?
Messenger: The Development of International Law, Perception, and the Problem of Time
Gregory Messenger (Univ. of Liverpool - Law) has posted The Development of International Law, Perception, and the Problem of Time (in International Law and Time: Narratives and Techniques, L. Pasquet, K. Polackova Van der Ploeg, & L. Castellanos Jankiewicz eds., forthcoming). Here's the abstract:
‘International law develops over time’ – an uncontroversial statement. Yet the mechanism of this development is not entirely clear. This paper suggests that the conceptual foundations of both rule-identification and rule-interpretation in international law are problematic, specifically due to ignoring the temporal dimension as we experience it. The argument set out here is as follows: discussions over the development of international law are necessarily related to the concept of change; that the concept of change necessarily contains a temporal element; and the principal tools for rule-identification and rule-interpretation in international law fail to acknowledge this temporal element and thus distort the findings of the aforementioned exercises.
Margariti: Defining International Terrorism: Between State Sovereignty and Cosmopolitanism
This book is an attempt to approach the issue of defining international terrorism, proposing that the most workable way to do so is to achieve due balance between the two principal driving forces of international law developments: State sovereignty interests and cosmopolitan ideals. All those who aspire to the promotion of international criminal justice and the fight against impunity agree that the formulation of a universal definition of international terrorism will further enhance the fight against terrorism and offer a universally acceptable legal framework within which this fight can be conducted. Discussed in an in-depth manner are, for instance, the UN Charter Provisions, the Rome Statute and the principle of complementarity, the Kampala amendments on the crime of aggression, the paradigms of aggression and terrorism, and prominent anti-terrorist Security Council Resolutions such as Resolution 1368 and Resolution 1373. The volume broadens the reader’s understanding on how State sovereignty interests and priorities as well as ideals of cosmopolitanism have influenced the development of international law in general and international criminal law in particular. Furthermore, it simplifies the complicated picture of defining international crimes by expla ining how the ‘State sovereignty’ and ‘Cosmopolitanism’ dynamics have also been of relevance throughout the drafting process of the definition of the crime of aggression for the purposes of the Rome Statute for the International Criminal Court. In addition, it equips the reader with an understanding of the reasons behind the lack of an international definition for terrorism and suggests an appropriate context within which such a definition can take shape.
Stoyanova: Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR
Vladislava Stoyanova (Lund Univ. - Law) has posted Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR (Human Rights Law Review, forthcoming). Here's the abstract:
The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.
Shikhelman: Diversity and Decision-Making in International Judicial Institutions
Vera Shikhelman (Univ. of Chicago - Law) has posted Diversity and Decision-Making in International Judicial Institutions: The United Nations Human Rights Committee as a Case Study (Berkeley Journal of International Law, forthcoming). Here's the abstract:
The lack of diversity in the background of the decision-makers in international judicial and quasi-judicial institutions has been widely criticized in recent years. It has been argued that the background of the decision-makers is too homogeneous and not representative of the international community as a whole. However, there is little empirical evidence on whether the background of the decision-makers actually influences their decision-making processes in the international context. This article uses the United Nations Human Rights Committee as a case study for testing empirically the influence on decisions of geographical origin, gender, domestic legal system and professional background.
The article finds certain voting patterns that are associated with geographical origin, domestic legal systems, professional background and possibly gender. This is especially true in cases where the Committee Members (CMs) want to protect the interests of their states, since the most significant voting pattern was found for CMs from Western states voting in favor of states from their regions in immigration cases. However, it is safe to say that on most issues the article did not find that the background of the CMs had significant influence on their voting patterns. The article also uses the United Nations Human Rights Committee as a case study to demonstrate the importance of diversity to the legitimacy of international institutions, beyond the practical implications of diversity on the decision-making process.
Call for Papers: Conference on Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology
Conference Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology
Call for Papers: Deadline 1 September 2017
The language and logic of humanitarianism occupy an increasingly central place in international law. Humanitarian reason has shaped the ideology, practice, and technologies of international law over the past century, including through the redescription of the laws of war as international humanitarian law, the framing of mass displacement and armed conflict as ‘humanitarian’ crises, the use of humanitarian justifications for intervention, occupation, and detention, and the representation of international law as an expression of the conscience of humanity.
For some, this trend is clearly positive – international law is reimagined as humanity’s law, humanity as the alpha and omega of international law. Yet critics have pointed to the dark side of these developments and of the humanitarian logic operating within international law, arguing that consolidation of the laws of war has served the interests of powerful groups and states at key moments of potential challenge to existing systems of rule, humanitarianism has been taken up as a language to rationalise the violence of certain forms of occupation, intervention, and warfare, international humanitarian law has displaced other more constraining forms of law as the world becomes imagined as a global battlefield, humanitarian NGOs have served as a fifth column that has enabled particular forms of social transformation and constrained others, and a supposedly impartial humanitarianism has displaced politics.
This conference will bring together scholars working in law, history, international relations, and political theory to think critically about the ideology, institutions, practices, and technologies that condition modern humanitarianism and its relation to international law. Confirmed speakers include Amanda Alexander, Leila Brännström, Markus Gunneflo, Helen Kinsella, Martti Koskenniemi, Dino Kritsiotis, Frédéric Mégret, Naz Modirzadeh, Gregor Noll, Rose Parfitt, Hani Sayed, Ntina Tzouvala, Boyd van Dijk, and Fabia Veçoso. Selected papers will be published in an edited collection by a leading publisher.
Paper proposals related to the conference theme are now invited. Possible topics for papers include:
- laws of war and the social question
- international humanitarian law and revolution
- decolonisation and the remaking of international humanitarian law
- humanitarian intervention and occupation in international law and history
- humanitarian and securitisation responses to dispossession, displacement, and refugees
- international humanitarian law and the framing of civil war
- international humanitarian law and national liberation movements
- incidents and events in the history of international humanitarian law-making
- humanitarian law and human rights law in the 'global' battle space
- humanitarian organisations and the politics of intervention
- the relation of humanitarianism and counter-terrorism in international law
- knowledge production and international humanitarian law
- humanitarian law and visual culture
- international humanitarian law and practices of distinction
- the technologies of humanitarian law and war
- humanitarian law and algorithmic warfare
- humanitarianism and the penal turn in international law
- the meanings of humanitarian law across time and space
- the political economy of international humanitarianism
- critical geographies of international humanitarian law
- international law after humanity
Those proposing papers for presentation at the Conference should submit a one page abstract and brief bio by email to Professor Anne Orford at laureate-intlaw@unimelb.edu.au by 1 September 2017.
Tuesday, August 8, 2017
Su: The Rise and Fall of Universal Civil Jurisdiction
Anna Su (Univ. of Toronto - Law) has posted The Rise and Fall of Universal Civil Jurisdiction. Here's the abstract:
The paper asks the question why universal civil jurisdiction declined relative to its criminal counterpart. For a long time, universal jurisdiction is largely understood only in the criminal context and to the extent that its civil version is separately recognized, it is argued that it likewise suffered the same misfortune as the Alien Tort Statute in the wake of the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum in 2013. The aim would be to explain how and why universal civil jurisdiction took the historical trajectory it did and in doing so, confer it an existence separate from universal criminal jurisdiction. In the past two decades, universal aspirations to global justice have become almost synonymous with the pursuit of international criminal accountability. This preoccupation with and the privileging of international criminal law has mistakenly subsumed certain historical events as within the progressive history of ICL and it obscures the distinctive and complementary role that international civil liability can play in addressing human rights violations. It argues that the fall of universal civil jurisdiction is rooted in the reluctance of domestic courts to challenge the position of their national governments in view of the increasing number of complex human rights claims.
New Issue: European Journal of International Relations
The latest issue of the European Journal of International Relations (Vol. 23, no. 3, September 2017) is out. Contents include:- Luca Mavelli, Governing the resilience of neoliberalism through biopolitics
- Vicki Squire, Governing migration through death in Europe and the US: Identification, burial and the crisis of modern humanism
- Adrian Little & Nick Vaughan-Williams, Stopping boats, saving lives, securing subjects: Humanitarian borders in Europe and Australia
- Sandy Brian Hager, A global bond: Explaining the safe-haven status of US Treasury securities
- Lene Hansen, Reading comics for the field of International Relations: Theory, method and the Bosnian War
- Felix Rösch & Atsuko Watanabe, Approaching the unsynthesizable in international politics: Giving substance to security discourses through basso ostinato?
- Jason Ralph & Jess Gifkins, The purpose of United Nations Security Council practice: Contesting competence claims in the normative context created by the Responsibility to Protect
- Tobias Lenz & Alexandr Burilkov, Institutional pioneers in world politics: Regional institution building and the influence of the European Union
- Laura Considine, The ‘standardization of catastrophe’: Nuclear disarmament, the Humanitarian Initiative and the politics of the unthinkable
- Jamie M. Johnson, Beyond a politics of recrimination: Scandal, ethics and the rehabilitation of violence
Benvenisti & Shlomo Agon: The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication
Eyal Benvenisti (Univ. of Cambridge - Law) & Sivan Shlomo Agon (Bar-Ilan Univ. - Law) have posted The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication. Here's the abstract:
The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third-states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account, and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps towards globally affected others by (1) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies, and (2) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.
Monday, August 7, 2017
Xu: Beyond US Hegemony in International Development: The Contest for Influence at the World Bank
China's initiative to establish the Asian Infrastructure Investment Bank (AIIB), attracting membership from G7 countries against the vocal opposition of the United States, has been recognised as a significant moment in an ongoing hegemonic transition. This book examines how power transitions have played out in the World Bank over the last five decades, offering the first authentic account of the international diplomacy behind donor financing of the World Bank's International Development Association (IDA). Jiajun Xu decodes how the United States amplified its influence at the World Bank despite its flagging financial contributions to IDA. She further demonstrates that the widening influence-to-contribution disparity provoked other donors into taking 'exit/voice' measures, contesting the hegemon's legitimacy. A rising China initially decided to become an IDA donor, seeking influence from within. However, the entrenched hegemonic position of the United States in World Bank governance drove China to initiate the AIIB and New Development Bank, putting competitive pressures on the US-centred multilateral institutions to adapt.
Hepburn & Kabra: India's New Model Investment Treaty: Fit for Purpose?
Jarrod Hepburn (Univ. of Melbourne - Law) & Ridhi Kabra (Univ. of Cambridge) have posted India's New Model Investment Treaty: Fit for Purpose? (Indian Law Review, forthcoming). Here's the abstract:
In December 2015, India released a new model bilateral investment treaty. The development of such models typically serves four purposes: facilitating negotiations with partner states; constituting state practice which may contribute to the formation of customary international law; providing interpretive guidance to tribunals; and promoting uniformity in international law. However, despite some innovative provisions, the new Indian model displays a lack of drafting clarity in some respects, and a degree of redundancy in other respects. These deficiencies make it doubtful whether the model can achieve any of its purposes. India appears to remain committed to (a reformed version of) the investment treaty system, not least on behalf of the burgeoning numbers of outward Indian investors. The model’s failings are therefore all the more acute, and pose challenges for India’s ambitions to play a greater role in the system, while also potentially representing a missed opportunity for India’s broader role in the ‘Asian century’.
Special Issue: The Transformation of Targeted Killing and International Order
- Special Issue: The Transformation of Targeted Killing and International Order
- Martin Senn & Jodok Troy, Introduction
- Thomas Gregory, Targeted killings: Drones, noncombatant immunity, and the politics of killing
- Betcy Jose, Not completely the new normal: How Human Rights Watch tried to suppress the targeted killing norm
- Mathias Großklaus, Friction, not erosion: Assassination norms at the fault line between sovereignty and liberal values
- Michael Carl Haas & Sophie-Charlotte Fischer, The evolution of targeted killing practices: Autonomous weapons, future conflict, and the international order
- Ian Hurd, Targeted killing in international relations theory: Recursive politics of technology, law, and practice
New Issue: Human Rights Quarterly
The latest issue of the Human Rights Quarterly (Vol. 39, no. 3, August 2017) is out. Contents include:- Paul Hunt, Configuring the UN Human Rights System in the "Era of Implementation": Mainland and Archipelago
- Isabel Marcus, Compensatory Women's Rights Legal Education in Eastern Europe: The Women's Human Rights Training Institute
- Christof Heyns & Willem Gravett, "To Save Succeeding Generations from the Scourge of War": Jan Smuts and the Ideological Foundations of the United Nations
- Ahmed Khanani, Decentering the Human: Moroccan Islamism and Rights
- Lorenza B. Fontana & Jean Grugel, Deviant and Over-Compliance: The Domestic Politics of Child Labor in Bolivia and Argentina
- Abby Kendrick, Measuring Compliance: Social Rights and the Maximum Available Resources Dilemma
- Paloma Soria Montañez, Viviana Waisman, & Keina Yoshida, The Prosecution of Sexual and Gender Crimes in the National Courts of Argentina
- Catherine Renshaw, Global or Regional?: Realizing Women's Rights in Southeast Asia
New Issue: Review of International Organizations
The latest issue of the Review of International Organizations (Vol. 12, no. 3, September 2017) is out. Contents include:- David Bulman, Walter Kolkma & Aart Kraay, Good countries or good projects? Comparing macro and micro correlates of World Bank and Asian Development Bank project performance
- Catherine Z. Worsnop, Domestic politics and the WHO’s International Health Regulations: Explaining the use of trade and travel barriers during disease outbreaks
- George E. Mitchell & Sarah S. Stroup, The reputations of NGOs: Peer evaluations of effectiveness
- A. Burcu Bayram & Erin R. Graham, Financing the United Nations: Explaining variation in how donors provide funding to the UN
- Jan Beyers & Marcel Hanegraaff, Balancing friends and foes: Explaining advocacy styles at global diplomatic conferences
Steinbach: EU Liability and International Economic Law
The book provides both a legal and economic assessment of an increasingly important issue for the EU: the question of whether individuals can hold the European Union liable for damages they suffer due to its infringement of international economic law. However, liability regimes vary depending on the issue concerned. In international trade law the individual holds a weak position, being deprived of both legal remedies to seek annulment and damages. This is due to the constant refusal of the direct effect of WTO law. By contrast, international investment law has been designed in an 'individualistic' manner from the outset – states agree reciprocally to grant certain procedural and substantial individual rights, which they invoke to claim damages before international tribunals rather than domestic courts. The divergent role of the individual in the respective area of international economic law leads to a different set of research questions related to liability. In international trade law, the doctrinal exercise of de-coupling the notion of direct effect from liability is at the core of establishing liability. In international investment law, liability is connected to a number of issues emerging from the recent transfer of competence pertaining to investment issues from Member States to the EU and the nature of investment agreements as mixed agreements. Against this backdrop, exploring liability issues in the area of international economic law reveals a heterogeneous set of questions depending on the area of law concerned, thus offering different perspectives for studying liability issues.
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