- Lucy Reed, Ab(use) of due process: sword vs shield
- Edward Torgbor, Courts and the effectiveness of arbitration in Africa
- Mahmoud Reza Firoozmand & Javad Zamani, Force majeure in international contracts: current trends and how international arbitration practice is responding
- Niklas Elofsson, Immediate reimbursement of substituted advance on costs in international commercial arbitration
- Christine Sim, Security for Costs in Investor–State Arbitration
- Recent Developments
- Chinedum Umeche, Arbitrability of tax disputes in Nigeria
- Harisankar K. Sathyapalan, Indian judiciary and international arbitration: a BIT of a control?
Saturday, October 7, 2017
Mandell: Venezuela v. Helmerich & Payne International Drilling Co.: The Supreme Court Makes It Harder to Bring Claims Against Foreign Sovereigns in U.S. Courts
Friday, October 6, 2017
This event is a work-in-progress workshop involving a number of contributors to Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl and Edward Guntrip (eds.) Oxford Handbook of Jurisdiction in International Law (Oxford University Press, forthcoming).
The Handbook is intended as an authoritative guide to the rapidly evolving field of jurisdiction in international law. The principal aim of the book is to interrogate this intricate, but under-analysed, area of law. Responses to global phenomena indicate that established conceptions of jurisdiction are being supplanted by extra-territorial interpretations of authority. This shift has major ramifications for the international legal rules concerning jurisdiction, which have largely functioned on the assumption that States possess exclusive authority within certain areas and that international law merely performs the task of resolving co-ordination problems, when they arise. However, it is becoming apparent that orthodox approaches to State jurisdiction are unable to cope with contemporary conditions and new phenomena are defying categorisation by reference to the traditional doctrine of international law.
Against this background, the Handbook focuses on the ways in which international law responds to the jurisdictional challenges that it currently confronts. It endeavours to do this by examining the topic of jurisdiction in a holistic manner and by examining the cross-over points and interactions between a variety of distinct components which have developed in the jurisprudence (e.g. public international law/private international law, general/special regimes, theory/practice). Accordingly, the Handbook seeks to offer fresh insights into the practical and theoretical function of jurisdiction in modern international law.
Thursday, October 5, 2017
An interdisciplinary work that comparatively studies rule of law practices and the relationship between the rule of law and regional integration, a topic largely explored in European integration. By looking at the function of the rule of law in ASEAN rather than what it 'means' measured on normative conception, the book situates the rule of law in broader institutional and political processes in the member states and in regional relations to show the motivations of member states in adopting a peculiar type of regional architecture. It asks whether forging the rule of law in the region can help build it internally for member states. The book revisits discourses on the 'spill-over' of economic integration, the impact of globalization in reshaping the state and generating new tools of the rule of law. It makes a comprehensive comparison - the European Union, Africa Union and MERCOSUR - showing the uneven pathways to rule of law in various contexts.
Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v. the United Kingdom. While State practice has traditionally played a role in the interpretation of the Convention, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain.
This article develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the ILC’s recent work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna Rules provide a matrix. This perimeter allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38 (1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation. On this basis, subsequent practice can serve as a catalyst for the advancement of human rights.
Wednesday, October 4, 2017
This Article is the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late-fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos — over 350 — in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the right to wage war in ways that would be inconceivable today. In short, the right to intervene militarily could be asserted in any situation where a legal right had been violated and all peaceful channels had been explored and exhausted. The Article begins by describing war manifestos. It then explores their history and evolution over the course of five centuries, explains the purposes they served for sovereigns, shows the many “just causes” they cited for war, and, finally, considers the lessons they hold for modern legal dilemmas. The discovery of war manifestos as a set of legal documents offers lawyers and legal scholars something rare: a new window into the international legal universe of the past. That is not only valuable in itself, but it also casts entirely new light on several long-standing legal debates.
Le mouvement de mondialisation des trois dernières décennies avait mis à mal les frontières géographiques et sectorielles. Le retour aux États et aux souverainetés nationales met, une nouvelle fois, en évidence leurs limites. Les territoires nationaux sont devenus trop étroits pour l’application du droit ; les défis sont globaux à commencer par celui de l’environnement et de sa protection ; les progrès de la science ouvrent de nouveaux espaces, numériques autant qu’extra-atmosphériques.
Le malaise est profond. Ce n’est pas seulement la difficulté d’élaborer de nouvelles règles, mieux adaptées aux temps actuels, c’est la nécessité de renouveler, souvent en profondeur, les concepts, l’approche, la méthodologie du droit.
Le droit international n’y échappe pas, qui révèle régulièrement les limites des traités qui structurent la vie juridique internationale et manifestent, par leurs insuffisances autant que par l’impuissance de nombreuses organisations internationales, l’urgence de changements profonds.
Le Colloque organisé par l’IDETCOM, laboratoire spécialisé de la Faculté de droit de l’Université Toulouse Capitole, a pour objectif de dresser un état des lieux des insuffisances du cadre juridique international en vigueur et d’ouvrir quelques perspectives, susceptibles de permettre son évolution. Il ne propose pas d’engager une réflexion générale que l’on illustrerait d’exemples ; il invite à une analyse de difficultés actuelles, sous la forme d’études de cas au sein d’ateliers thématiques, à partir desquels il sera possible de dégager un certain nombre d’enseignements généraux.
Il faut répéter que dans l’exercice de leurs activités, qu’elles soient d’ordre politique, socio-économique ou militaire, les États, acteurs fondateurs et toujours essentiels du droit international, ont été et sont encore les instigateurs de l’organisation des espaces géographiques et physiques. Et si leur souveraineté se heurte aujourd’hui à l’application extraterritoriale de lois nationales, elle doit aussi faire face à des enjeux actuels dont l’ampleur ne cesse de croître. Ces enjeux sont tous liés à l’usage de nouveaux espaces ouverts par la révolution numérique, elle-même intrinsèquement liée au développement d’activités dans l’espace extra-atmosphérique. Le territoire, domaine traditionnel d’application et d’expression de la souveraineté, est au cœur de défis migratoires d’une ampleur jamais rencontrée jusqu’ici (guerre, économie, climat).
La réflexion proposée au cours des deux journées de colloque s’appuie sur une nouvelle approche du ou des « territoire(s) », national (/ux) en liaison avec le ou les « espace(s )» que révèle le progrès des techniques.
The International Criminal Court (ICC) is facing its worst crisis since its creation. At the end of 2016, three States decided to withdraw from the RS. There is a risk that the institution falls entirely apart. But, already in 2014, the Court was qualified as being in trouble as a legitimacy debate arose in the wake of a compliance debacle with respect to the situations in Sudan, Libya and Kenya. In order to achieve effective prosecutions and trials, the Court needs States’ cooperation. I will show that there are three interdependent legitimacy issues that have been raised for non-compliance with the ICC which also relate to the institutional design necessary to effectively provide a global public good. I will demonstrate that the Court’s investigations and prosecution in these three States is affected by source, procedural and outcome legitimacy eroding factors. Due to the entanglement between source and procedural legitimacy we may have to consider tying both. On first glance, a compliance pull could be generated by, when source legitimacy is lacking, strictly sticking to the State’s interest in the exercise of prosecutorial discretion as to who to prosecute. The paper will argue that the latter option would create a global public bad, as it entails negative externalities and excludes some victims from benefiting from the Court. Nonetheless, the paper will show that such calculations are already made with regards to so-called self-referrals, i.e. where source legitimacy is not questioned. With respect to outcome legitimacy, the paper will argue that the ICC is a victim of the SC inability to exercise the responsibility assign to it by the UN Charter and the Rome Statute.
Can international law rise to the challenge? For decades, international law has provided legal solutions to global problems through the development of substantive areas of law, court systems, and a framework for modern international relations. Now we must ask, is this post-WWII regime still relevant? Can it meet the needs of the global community? The rapidly changing global landscape will test the adaptability and dynamism of international law. Unprecedented health crises, massive refugee outflows, climate change, gender inequality and other global challenges require innovative solutions. This is an opportunity for international law to reestablish its strong connection with the global community it serves. Panels at ILW 2017 will examine current global challenges, potential solutions, and a broad range of dynamic issues in both public and private international law.
In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While these insights were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general.
While there have been some behavioral analyses of constitutional and administrative law issues, the impact of behavioral studies on public and international law — with the notable exceptions of regulation techniques and judicial decision-making — has been rather limited compared to other legal spheres. However, recent studies are gradually closing this gap.
In this Chapter (which will part of a forthcoming textbook-treatise on behavioral law and economics), we critically survey the behavioral analysis of public and international law, including studies of governmental institutions and rule-making, citizens’ judgments and choices, human rights (including issues in freedom of speech, the fight against terrorism, and affirmative action), and international law.
This chapter contributes to the debate about the sources of inherent powers in international adjudication. First, it contemplates the broader issue of whether the use of these powers amounts to exercising, or exceeding, an adjudicative body’s proper function. The distinguishing feature of inherent powers, it is asserted, is that they are “necessary” or “essential” judicial powers. There are also basic limitations on what states and private parties can agree to when they create an adjudicative body, thus restricting their ability to take way certain inherent powers in accordance with international law. Second, this chapter emphasizes the primary role that constitutive instruments play in shaping the inherent powers of international courts and tribunals, which should alleviate the concerns about the legitimacy of these powers. While commentators typically favor one of the approaches to the sources of inherent powers, notably the general principles approach and the functional approach, it is argued that these approaches do not conflict. They are rather partly overlapping. Indeed, inherent powers may be expressed, discretionary, implied, and norm-based.
Trade in services can take many forms (or ‘modes’), such as cross-border delivery, or delivery by a commercial presence in a foreign country. Unlike tariffs or quantitative restrictions on goods, which are imposed at the border, barriers to trade in services are more commonly found ‘behind the border’, through domestic regulation of services industries. This article reviews Australia’s obligations to liberalise trade in services under its preferential trade agreements, against the background of its obligations under the World Trade Organization’s General Agreement on Trade in Services (GATS). Australia has an evident desire to liberalise trade in services as well as sensibilities about domestic regulatory autonomy in the services context. The tension between these different interests is reflected in the ongoing development of Australia’s treaty practice in this field. The article summarises core obligations and exceptions under Australia’s treaties, highlighting the need for progressive liberalisation and the possibility and desirability of reducing some exceptions over time. The article distinguishes ‘positive’ and ‘negative’ list obligations and Australia’s approach thereto, while also raising questions as to the consistency of Australia’s preferential trade agreements with the GATS, particularly as regards ‘GATS-minus’ provisions.
- Carl Landauer, Passage from India: Nagendra Singh’s India and international law
- Pasha L. Hsieh, Wellington Koo, International law and Modern China
- Kalana Senaratne, Judge C.G. Weeramantry: an alternative reading
- Francesco Montanaro, The persistent dissenter in international law: reading Professor Sornarajah
- Pemmaraju Sreenivasa Rao, The Jadhav case (2017): India and Pakistan before the International Court of Justice
- B.C. Nirmal, A critique of juvenile justice law in India: an international perspective
- Aniruddha Rajput, The myth of a multilateral framework in international investment law
- Benoît Mayer, Less-than-full reparations in international law
- Abhimanyu George Jain, Indian practice relating to international law
This chapter (Chapter 1) of the book "Is International Law International?" (OUP, 2017) explores three concepts—difference, dominance, and disruption—that play a central role in comparative international law. In examining the extent to which international law is international in the academies and textbooks of the five permanent members of the UN Security Council, the author makes three arguments. First, international law academics are often subject to differences in their incoming influences and outgoing spheres of influence in ways that reflect and reinforce differences in how they understand and approach international law. Second, actors, materials, and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately influential in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changing geopolitical power that will make it increasingly important for international lawyers to understand the perspectives and approaches of those coming from unlike-minded states.
This chapter (Chapter 3 from the book "Is International Law International?" (OUP, 2017)) identifies and explores some of the nationalizing, denationalizing, and westernizing influences that reflect and reinforce the divisible college of international lawyers. Part I focuses on transnational flows of student and materials, which provide a template for understanding some of the asymmetries that characterize the field. Students are more likely to move from peripheral and semiperipheral states toward core states, and from non-Western states to Western ones, than the reverse. Legal concepts and materials, like textbooks and case law, are more likely to move from core states to peripheral and semiperipheral ones, and from Western states to non-Western ones, than vice versa. Parts II, III, and IV then look at how the educational profiles of international law academics in different states, their publication placements, and their connections to practice reflect and reinforce certain forms of difference and dominance that help to structure international law as a transnational legal field.
- Eliana Cusato, Back to the Future? Confronting the Role(s) of Natural Resources in Armed Conflict Through the Lenses of Truth and Reconciliation Commissions
- Antonius R. Hippolyte, ICSID’S Neoliberal Approach to Environmental Regulation in Developing Countries
- Gaetano Pentassuglia, Self-Determination, Human Rights, and the Nation-State
- Themistoklis Tzimas, Examination of the ‘Assad Must Go’ Doctrine
- Phani Dascalopoulou-Livada & Alexandros Kolliopoulos, The Kiev Civil Liability Protocol and the Interaction between Civil and Administrative Liability Regimes
Nationality plays a vital role in the field of investor-state arbitration. Most investment treaties require that, to benefit from treaty protection, an investor must be a national of the home state. Yet, the determination of nationality for investment treaty purposes can be particularly complex, raising a number of unresolved questions of considerable practical importance. One of these questions is whether investors who hold the nationality of both state parties to an investment treaty (i.e., dual nationals) are entitled to sue their own home state where the treaty is silent on the issue of dual nationality. This contribution contends that, when faced with a claim of this nature, arbitral tribunals should apply the well-established customary rule of dominant and effective nationality, and uphold jurisdiction only if the investor maintains a stronger connection with its home state.
- Anthony C. Sinclair & Epaminontas E. Triantafilou, Specific Performance Under Commercial Contracts with Sovereign States
- Marte Knigge & Pauline Ribbers, Waiver of the Right to Set-Aside Proceedings in Light of Article 6 ECHR: Party-Autonomy on Top?
- Nathan Yaffe, Transnational Arbitral Res Judicata
- Silke Noa Kumpf, Equity-Based Discretion and the Anatomy of Damages Assessment in Investment Treaty Law
- Boris Kasolowsky, Eric Leikin, Eli Lilly v. Canada: A Patently Clear-Cut Dismissal on the Facts, but Opening the Door for Future Claimants on the Law
- Amr Omran, The Appearance of Foreign Counsel in International Arbitration: The Case of Egypt
- October 12, 2017: David Freestone (George Washington Univ.), International Law and Sea Level Rise: the work of the ILA Committee
- October 19, 2017: Ziv Bohrer (Bar-Ilan Univ.), Transnational Conflicts: A New Kind of War?
- October 26, 2017: Christine Chinkin (London School of Economics), Women, Peace and Security: What Does It Mean in the Contemporary World?
- November 2, 2017: Markus Gehring (Univ. of Cambridge), International Law and the Sustainable Development Goals – shaping the rules for our common future
- November 9, 2017: Steven Haines (Univ. of Greenwich), The Rule of Law and the Protection of Human Rights at Sea: A Work in Progress?
- November 16, 2017: Kimberly Prost (International Criminal Court), Advancing the Rule of Law as part of the International Landscape
- November 23, 2017: James Green (Univ. of Reading), Planetary Defence: Asteroids, Nuclear Weapons and International Law
- November 30, 2017: Emanuela-Chiara Gillard (Univ. of Oxford) & Dapo Akande (Univ. of Oxford), The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Armed Conflict
- October 6, 2017: Georg Nolte (Humboldt-Universität zu Berlin), Recent developments in international law and in the ILC: in sync?
- October 13, 2017: Dino Kritsiotis (Univ. of Nottingham), A Return to the Caroline Correspondence, 1838-1842
- October 20, 2017: Andrea Bianchi (Graduate Institute of International and Development Studies), International adjudication, rhetoric and storytelling
- November 3, 2017: Helmut Aust (Freie Universität Berlin), Cities and climate change in the populist post-Paris world: an international law perspective
- November 10, 2017: Phoebe Okowa (Queen Mary, Univ. of London), Contested authority: public power and the exploitation of natural resources
- November 17, 2017: Robert McCorquodale (British Institute of International and Comparative Law), Business and human rights: due diligence in law and practice
- October 25, 2017: Randall Lesaffer (Univ. of Tilburg), Aggression before Versailles
- November 14, 2017: Marco Duranti (Univ. of Sydney), Global History of Human Rights
- February 28, 2018: Maartje Abbenhuis (Univ. of Auckland), Hague-iography? Historicising the Hague peace conferences of 1899 and 1907
- March 6, 2018: Dave De ruysscher (Univ. of Tilburg), Lex Mercatoria Traditions
- April 16, 2018: Ziv Bohrer (Bar-Ilan Univ.), Nuremberg Was Not the First International Criminal Tribunal — by a Longshot
- June 3, 2018: Inge Van Hulle (Univ. of Tilburg), Colonial Wars and the History of International Humanitarian Law
Tuesday, October 3, 2017
This book demonstrates how, after many years of inactivity after the World War II tribunals, judges at the Yugoslav, Rwanda and Sierra Leone tribunals, and to a lesser extent the International Criminal Court, have seized the opportunity to develop international law on war crimes, crimes against humanity and genocide. Meernik and Aloisi argue that judges are motivated by a concern for human rights protection and the legacy of international criminal justice. They have progressively expanded the reach of international law to protect human rights and have used the power of their own words to condemn human rights atrocities. Judges have sentenced the guilty to lengthy and predictable terms in prison to provide justice, deterrence of future violations and even to advance peace and reconciliation. On judgment day, we show that judges have sought to enhance the power of international justice.
This conference, which is being organized by Duke Law School and being hosted by the University of Pretoria in South Africa, brings together leading experts from around the world to compare and contrast how nations structure their decision-making about foreign affairs and how they incorporate international law within their domestic legal systems. The topics to be discussed include the making and application of treaties and other international agreements; decisions to withdraw from international commitments; the domestic incorporation and application of customary International law and jus cogens norms, including with respect to issues relating to sovereign and foreign official immunity; and decisions to use military force and participate in collective security. The conference will utilize a roundtable discussion format, and participants will also visit South Africa’s Constitutional Court. To facilitate the discussion, each participant is preparing a draft chapter that will be circulated prior to the conference. These chapters will ultimately be included in The Oxford Handbook of Comparative Foreign Relations Law.
In the United States many of the doctrines that mediate the relationships between different legal systems are viewed as manifestations of international comity. Continental European states have similar doctrines but do not see them through a comity lens. This chapter explains the difference in approach through the influence of Joseph Story in the United States and Friedrich Carl von Savigny in Europe. While explaining that international comity does not preclude the adoption of rules or the codification of doctrines, the chapter suggests that international comity highlights the distinction between domestic law and international law, emphasizes the freedom of each state to shape these doctrines as it sees fit, and makes it easier to see interrelationships among the doctrines.
Bignami & Resta: Human Rights Extraterritoriality: The Right to Privacy and National Security Surveillance
This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign access to EU personal data. The four EU-U.S. agreements in place that govern the U.S. intelligence community’s use of EU personal data follow the logic of bilateralism, and protect only personal data originating in the EU and, in some cases, only EU persons. As for the ECtHR, which has jurisdiction internally over European spy agencies, its jurisprudence on extraterritoriality strongly suggests that, once squarely confronted with the issue, the ECtHR will find that European spy agencies have a duty to respect privacy rights whenever they exercise control over personal data.
Call for Papers – 2018 ASIL Annual Meeting New Voices
From April 4-7, 2018, the American Society of International Law will convene its 112th Annual Meeting. The theme of the 2018 Meeting is "International Law in Practice." As in the past, the Annual Meeting will include at least one "New Voices" session that will provide a platform for junior scholars and practitioners to present their work.
ASIL invites submissions from non-tenured scholars and junior practitioners on any topic of international law in connection with the Meeting's theme. Those who submitted an abstract as part of the call for session proposals need not re-submit; those abstracts remain under consideration. Abstracts should be well-developed and reflect advanced progress on a paper that will be presented at the Meeting. Final papers will be due by March 26, 2018. Send your abstract to email@example.com by no later than Monday, October 9, 2017, with the subject line "New Voices Proposal." Please send the abstract as a Microsoft Word attachment, including your name and contact information (email address & affiliation). Abstracts should be no longer than 1000 words. Notifications will be made by the end of October.
Conventionally understood as a set of limits on state behavior, the “rule of law” in world politics is widely assumed to serve as a progressive contribution to a just, stable, and predictable world. In How to Do Things with International Law, Ian Hurd challenges this received wisdom. Bringing the study of law and legality together with power, politics, and legitimation, he illustrates the complex politics of the international rule of law.
Hurd draws on a series of timely case studies involving recent legal arguments over war, torture, and drones to demonstrate that international law not only domesticates state power but also serves as a permissive and even empowering source of legitimation for state action—including violence and torture. Rather than a civilizing force that holds the promise of universal peace, international law is a deeply politicized set of practices driven by the pursuit of particular interests and desires. The disputes so common in world politics over what law permits and what it forbids are, therefore, fights over the legitimating effect of legality.
A reconsideration of the rule of law in world politics and its relationship to state power, How to Do Things with International Law examines how and why governments use and manipulate international law in foreign policy.
Monday, October 2, 2017
Not long ago, globalization seemed to have a veneer of inexorable progress. Despite long-simmering controversies and moments of backlash, economic integration and its institutionalization was on the rise – in trade in goods, services, data, finance, and investment alike. By the early 2000s, multilateral organizations, ever-proliferating regional institutions, bilateral arrangements, and informal networks were struggling to keep the pace and mark their space in a globalized economy. But the picture looks very different today. After the financial crisis of 2008, and, more recently, the nationalist waves cresting in Europe and the U.S. since 2016, the future of economic integration is subject to considerable doubt. This conference will consider the shape of integration to come, focusing on the varying strategies and instruments by which States might pursue (or resist) global economic integration – at the multilateral, regional, bilateral, and even national levels – and what political and distributional effects these choices may entail.
The moment provides a rare opportunity to reconsider our path. Most abstractly, the time is ripe to revisit the normative case for ever-deepening globalization. Who have been the winners and losers of integration processes to date, and what do we know about how novel solutions might lead to different distributional results? Is there new reason to question whether aspects of integration have gone too far – e.g. in finance, regulatory standards, or foreign investment? Or has integration not gone far enough? Can supplementing deep economic integration with mechanisms for deeper political integration and social solidarity alleviate concerns? And what ought be the locus (or loci) of new integration projects? What are the implications, trade-offs, and political realities of multilateral, regional, or even bilateral strategies? On the one hand, the Trump administration has withdrawn the United States from its signature mega-regional arrangement (the Trans-Pacific Partnership (TPP)), and placed negotiations on another on hold (the Trans-Atlantic Trade and Investment Partnership (TTIP)) – all supposedly in favor of a nationalistic bilateral approach. On the other hand, the European Union, Canada, China, Japan, and others have signaled a willingness to pursue regional and mega-regional integration strategies with or without the United States. What are the prospects for such national, bilateral, and regional strategies? And whither multilateralism?
This chapter is certainly not the place to revisit the legacy of previous (re)turns to the question of authority of international law. More interesting for the sake of this book is the discussion of the very constraints from which international lawyers seek to escape when they venture into questions of authority. In other words, what is it precisely that drives the above mentioned international lawyers’ therapeutic turn to authority? It is argued in this chapter that inquiries into the authority of international rules, international rule-making processes, and international institutions are commonly meant to battle a specific construction that represses questions of authority, namely the self-referentiality of the main doctrines of international law. Focusing on the main doctrines of international law around which international legal arguments about the making, unmaking and functioning of international obligations are articulated (sources, interpretation, responsibility, personality, statehood, succession, jurisdiction, territory, etc), this chapter shows that the liberal structure inherited from the Enlightenment stifles the question of authority by virtue of a system of self-referentiality. According to the argument made here, the question of authority is more specifically bypassed by virtue of a self-referential construction according to which fundamental doctrines of international law invent their own origin and regulate their own functioning. It is because the foundational question of authority is ironed out by such liberal self-referentiality that international lawyers recurrently feel a cyclic need to embrace questions of authority and venture — albeit temporarily — outside their daily dichotomic world.
After sketching out the self-referentiality at the heart of international lawyers’ understanding of the formation and functioning of fundamental doctrines (1), this paper shows how the self-referentiality around which international lawyers’ understanding of the formation and functioning of fundamental doctrines is articulated produces the experience of a sense of constraint towards these fundamentals doctrines and allows a bypass of questions of authority (2). This paper then argues that the bypass of authority by virtue of self-referentiality constitutes a modern construction inherited from the Enlightenment (3). A concluding section discusses the possibility and adequacy of doing away with self-referentiality through questions of authority (4).
Using case studies ranging from cross-border bank resolution to sovereign debt, the author analyzes the role of international law in protecting financial sovereignty, and the risks for the global financial system posed by the lack of international cooperation. Despite the post-crisis reforms, the global financial system is still mainly based on a logic of financial nationalism. International financial law plays a major role in this regard as it still focuses more on the protection of national interests rather than the promotion of global objectives. This is an inefficient approach because it encourages bad domestic governance and reduces capital mobility. In this analysis, Lupo-Pasini discusses some of the alternatives (such as the European Banking Union, Regulatory Passports, and international financial courts), and offers a new vision for the role of international law in maintaining and fostering global financial stability. In doing so, he fills a void in the law and economics literature, and puts forward a solution to tackle the problems of international cooperation in finance based on the use of international law.
The paper discusses United Nations (UN) Security Council resolution 2240 (2015). The Resolution was adopted under Chapter VII of the UN Charter and authorises for a certain period of time UN member states to inspect and seize vessels on the high seas off the coast of Libya when they reasonably suspect that these are being used for migrant smuggling or human trafficking. The paper sees in resolution 2240 an example of how the UN Security Council may empower states to take action against transnational social phenomena that raise serious concerns from the perspective of human rights – regarding especially the right to life. The idea that transpires from this resolution is that transnational phenomena, such as smuggling of migrants and human trafficking, require (coordinated, as the study argues) action by all involved states and, more generally, international actors (although the focus in the study is on states). Because of their transnational nature, such situations involve a plurality of duty bearers, each one of which is partially connected to the situation and has an obligation to be pro-actively engaged – to the extent that its individual connection with the situation at issue justifies and requires it. This leads to a situation of multiple duty bearers who exercise parallel and, possibly, also overlapping jurisdiction as a means to fulfill their duties under international law – especially regarding the so-called positive dimension of human rights, i.e. the duty to protect. This implies that concurrent state responsibility (in the sense of liability) may arise, if more than one of these duty bearers break their duties. With its resolution, the UNSC contributes to the idea of shared responsibility by multiple states to react against transnational social phenomena that raise concerns from the perspective of human rights and human security. Because human trafficking and smuggling raise issues of human security, the idea of multiple duty bearers and concurrent state responsibility advanced in the study can be associated with the UN human security policy framework. The paper argues that this framework ought to be attuned to fully meet the particular needs, nature and features of transnational phenomena, such as trafficking and smuggling, that threaten the security and well-being of people. For human security to be successful in its goals, it needs to be adjusted to the transnational nature of these phenomena. What is required when a situation necessitating protection exceeds or transcends the borders of a state, is establishing frameworks of cooperation and coordination between the various involved parties. This is an essential precondition for human security to deliver effective results and prosper in the era of inter-connection and globalisation.
The editorial team of the EtYIL is delighted to invite you to contribute a manuscript to be considered for the 2018 volume of the Yearbook. The subject matter should be within your area of legal expertise and in harmony with the scope and focus of the yearbook (details available here). All submissions will be subject to anonymous peer-review to maintain quality of scholarship. The deadline for manuscript submission is the end of July 2018. For detailed submission guidelines including referencing style please refer to the yearbook home page shown above. We would like to hear your potential ideas and topics at firstname.lastname@example.org.
Call for Papers: Historical Capitalism and International Law/Historischer Kapitalismus und internationales Recht/Capitalisme historique et droit international
« HISTORICAL CAPITALISM AND INTERNATIONAL LAW »
CALL FOR CONTRIBUTIONS TO YOUNG SCHOLARS’ CONFERENCE
Sciences Po Law School, Paris, 18 and 19 January 2018
From the refugee crisis to climate change, from international terrorism to the ascent of extreme right governments, from increasing inequalities to new identity-based conflicts: the promises of liberal economic globalisation seem to be under attack all over. As a result, reflections on the relations between economy and society are increasingly present in the public debate, notably from the perspective of a more radical critique of the very basis of the capitalist system. This renewed interest is echoed for example in (yet another) return to Karl Marx’s writings, particularly in the German, French and Anglo-American press, in response to the now famous critiques of economic inequalities in liberal-democratic and market-driven societies, such as those raised by Thomas Piketty.
In the academic debate, although an increasing number of international lawyers have recently made historical interventions in their discipline in search of new possible futures, from a legal perspective in-depth analyses of the origins and functioning of the capitalist system remain limited. On the contrary, many historians have been focusing on the subject of capitalism and have developed analytical tools to critically analyse it, without however giving full importance to the constitutive role of law in the functioning of the capitalist system.
The young scholars’ conference which will take place on 18 and 19 of January 2018 at Sciences Po Law School, Paris, as part of CIERA’s programme colloques juniors will explore the topic “Historical Capitalism and International Law” and try to fill some of these gaps. We borrow the notion of historical capitalism from Immanuel Wallerstein (Le Capitalisme historique, La Découverte, 2011) who points towards an analysis of the capitalist system as a specific historical process based on the principle of the continuous accumulation of capital. Originally historical, this definition underlines the particularities of capitalism as a social construction embedding several economic, social, political and cultural dimensions, all of which can be further articulated through analysing the legal dimension. Hence, this kind of analysis allows the elaboration of interdisciplinary perspectives, which depart from the material reality of capitalism to analyse its origins, functioning, current challenges and the prospect of its potential future developments. This conference will focus on the nature and evolution of economic and social institutions, their role in the exchanges and movement of peoples, ideas and commodities, as well as the way through which encounters, confrontations and interactions have shaped them in turn.
An interest in this particular dialogue lies principally in the perception of law as a social product which enjoys a relative autonomy in relation to other economic, social and cultural disciplines. Since law itself produces its own concrete realities and at the same time is an instrument around which various social actors struggle, it should not be analysed in complete isolation from other social processes. The interplay of voices coming from different disciplines is therefore central to grasping the specificity of law in the production of historical capitalism; particularly if one wants to avoid falling into analytical traps, such as the tendency to reduce law to a superstructure or on the other hand the reduction of histories and analysis of law to elements separated from the functioning of society. The conference will hence gather lawyers and historians, as well as social science scholars, appealing to the diverse and complementary approaches of each discipline in order to understand the forms of organisation which capitalism has taken in different times, in different places and at different scales. Each session will involve discussions between lawyers and historians working on related topics.
Contributions to the conference should explore one of the three following subject areas: 1) international law and the histories of capitalist expansion; 2) the history of international law and political conflicts in capitalism; 3) histories of international law and narratives of capitalist modernity. The publication of a special issue of the Journal of History of International Law is also being considered and would incorporate certain contributions from the conference.
Abstracts from 300 to 500 words shall be submitted indicating the subject area of the proposed contribution, along with a CV by 15 October 2017 to email@example.com. Successful applicants will be notified by 5 November 2017 at the latest. English will be the main working language during the conference.
We encourage applications from the members of the HeiParisMax network, of the Collège doctoral franco-allemand en droit public comparé européen and of scholars affiliated to history centres connected to CIERA. There will be an equal number of contributions from both men and women, participants from French and German institutions, and those proposing historical or legal approaches. Applications from other areas of the world are also accepted and encouraged. A portion of the travel and accommodation expenses of selected participants will be covered by the conference.
Lisa Herzog (Institut für Sozialforschung der Johann Wolfgang Goethe-Universitat)
Claire Lemercier (Centre de Sociologie des Organisations de Sciences Po)
Anne Peters (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht)
Emmanuelle Tourme-Jouannet (Ecole de droit de Sciences Po)
Filipe Antunes Madeira da Silva (Ecole de droit de Sciences Po)
Robin Caballero (Humboldt Universität zu Berlin/ Université Paris 1 Panthéon-Sorbonne)
Alberto Rinaldi (Ecole de droit de Sciences Po)
Milan Tahraoui (Université Paris 1 Panthéon-Sorbonne/ Max Planck Institut für ausländisches Recht und Völkerrecht)
Leonie Johanna Vierck (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht)
With the Support of:
Centre interdisciplinaire d’études et de recherches sur l’Allemagne (CIERA)
Collège doctoral franco-allemand en droit public comparé européen
Ecole doctorale de Sciences Po
Ecole de droit de Sciences Po
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
HeiParisMax – Partenariat académique franco-allemand
Sunday, October 1, 2017
- Gabriel Gari, The Negotiation of a UK - EU Trade Agreement: Objectives, Process and Possible Outcomes
- Kevin Crow, The Concept of ‘Development’ in International Economic Law: Three Definitions and an Inquiry into Origin
- Collins C. Ajibo & Ndubisi Nwafor, Jurisdictional Competence and Deferential Standard of Review in Investor-State Dispute Settlement: A Case for Balance of Prerogatives
- Elaine Kellman, Water Trade and the WTO: An Analysis of Slovakia’s Constitutional Ban on the Export of Water
- Emily Smithman, Rethinking Regulatory Laws for African Commodity Exchanges
- Gerard J. Sanders, Financing of Investment Projects at the Asian Infrastructure Investment Bank: Institutional Set-up and First Experiences
- Environmental Impact Assessment after the International Court of Justice decision in Costa Rica-Nicaragua and Nicaragua-Costa Rica: Looking backward, looking forward
- Introduced by Annalisa Savaresi
- Simon Marsden, Determining significance for EIA in International Environmental Law
- Justine Bendel & James Harrison, Determining the legal nature and content of EIAs in International Envi-ronmental Law: What does the ICJ decision in the joined Costa Rica v Nicaragua/Nicaragua v Costa Rica cases tell us?
- Symposium: Taxation and Citizenship
- Reuven S. Avi-Yonah, Tax Symposium: Introduction
- Peter J. Spiro, Citizenship Overreach
- Allison Christians, A Global Perspective on Citizenship-Based Taxation
- Wei Cui, Minimalism About Residence and Source
- Edward A. Zelinsky, Defining Residence for Income Tax Purposes: Domicile as Gap-Filler, Citizenship as Proxy and Gap-Filler
- Matthew W. Swinehart, Reliability of Expert Evidence in International Disputes
Im vorliegenden Werk wird das Verhältnis von Investitions- und Menschenrechtsschutz umfassend dargestellt und eine Methode entwickelt, anhand derer die menschenrechtlichen Bezüge einer Investitionsstreitigkeit systematisch erfasst und argumentativ fruchtbar gemacht werden können. Die Analyse der Schiedspraxis zeigt, dass das Verhältnis von Investitions- und Menschenrechtsschutz im Schiedsverfahren anhand von drei (als Gleichlauf, Konflikt und Missbrauch bezeichneten) Grundmustern systematisch beschrieben werden kann. Die sich anschließende Untersuchung des schiedsrichterlichen Mandats macht deutlich, dass Schiedsgerichte zur Berücksichtigung von Menschenrechten verpflichtet sind. Art und Umfang der Berücksichtigung hängen jedoch davon ab, welche der drei Grundkonstellationen vorliegt. Diese systematische Berücksichtigung erhöht nicht nur die Rechtssicherheit, sondern leistet zudem einen Beitrag zur Durchsetzung von Menschenrechten im Kontext ausländischer Direktinvestitionen.
The present contribution sets out a conceptual framework for taking human rights considerations into account in international investment arbitration. Users are enabled to systematically evaluate the human rights dimension of an investment dispute and to develop their legal arguments accordingly. Considering arbitral practice, it becomes apparent that three types of human rights arguments – referred to as ‘reinforcement’, ‘conflict’ and ‘abuse’ - can be raised in international investment arbitration. On the one hand, human rights are raised by investors to reinforce their claim. On the other hand, host States rely on human rights as a defense. Either because investment protection conflicts with the State’s obligation to protect human rights or because an abusive investment claim is brought in the context of corporate human rights violations. In light of the arbitral mandate, the author concludes that tribunals have a duty to consider all three types human rights arguments.