The conclusion of the Trade Facilitation Agreement in 2013 and the Paris Agreement in 2015 represent significant breakthroughs for the multilateral trade and climate regimes, respectively. The chapter explores the innovations in lawmaking principles and techniques that made the conclusion of these agreements possible. To this end, the chapter develops a framework for the comparative analysis of multilateral lawmaking along five dimensions: the principles pursuant to which the participants in lawmaking assume commitments, the techniques that the participants employ to generate legal obligations, the modalities that they use to establish the form and scope of each individual participant’s commitments, the legal form of these commitments, and their potential effects. The chapter discusses the recent experience of the trade and climate regimes to shed light on the benefits and drawbacks of competing approaches to multilateral lawmaking along each of these dimensions.
Saturday, December 23, 2017
- John Mathiason, The United Nations at the Country Level: Reassessing Operational Activities for Development
- Patrick J. Tiefenbacher, The “Amazon Moment”—A New Business Model for the United Nations at the Country Level
- Annett Richter, The Norm Life Cycle of UN Reform: “Delivering as One and UN System-Wide Coherence”
- Luciana Campos, The “Delivering as One” UN Initiative: Reforming the United Nations System at the Country Level
- Ray Murphy, The United Nations Mission in South Sudan and the Protection of Civilians
- Harry Aitken, The Security Council and International Law Enforcement: A Kelsenian Perspective on Civilian Protection Peacekeeping Mandates
- Shavana Musa, The Saudi-Led Coalition in Yemen, Arms Exports and Human Rights: Prevention Is Better Than Cure
- Catherine Connolly, ‘Necessity Knows no Law’: The Resurrection of Kriegsraison through the US Targeted Killing Programme
- Lenneke Sprik, Command Responsibility in Peacekeeping Missions: Normative Obligations of Protection in a Criminal Law Environment
- Clive Walker, The War of Words with Terrorism: An Assessment of Three Approaches to Pursue and Prevent
Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation.
The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions.
Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.
Friday, December 22, 2017
- Lucas Lixinski & Vassilis Tzevelekos, The Strained, Elusive and Wide-Ranging Relationship between International Cultural Heritage Law and the Law of State Responsibility: From Collective Enforcement to Concurrent Responsibility
- Wenke Brückner, “Cultural Genocide” and the International Criminal Court. The Possibilities and Limits of the Protection of Cultural Heritage
- Sabine von Schorlemer, The Usefulness of the “Responsibility To Protect” as Applied to the Protection of Cultural Heritage in Armed Conflict
- Gareth Fletcher, “Scores on the Doors”: Establishing a Certificate of Virtue Framework for Future Art Market Regulation
- Sophie Vigneron, Codes of Conduct and the Regulation of the Art Trade in England: Between Hard and Soft Law
This paper proposes five arguments about major aspects of artificial intelligence and their implications for international law. The aspects are: automation, personhood, weapons systems, control, and standardization.
Thursday, December 21, 2017
Call for Papers: The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law
The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law
The Interest Group on the History of International Law seeks abstracts for an Agora Proposal to be submitted to the European Society of International Law for its 2018 Conference on ‘International Law and Universality’ to be held 13–15 September 2018 in Manchester.
Universality’s flip side is the local and the particular. Locations are inescapable parts of any idea of universality. People are positioned in time, place, class, gender, race, ethnicity, indigeneity, and sexuality. These particulars formed familiar coordinates for locating different peoples within ideas of the universal; at the bottom of hierarchies — subsumed, excluded, ignored, erased.
The beginning of international legal history’s recent renaissance lay in exploring one assertion of universality — the liberal-democratic progressive narrative — and Europe as its location, and white male jurists as its particular. Later advances began to unpack the imperial, racial and class aspects of international law’s pasts, to understand how that universal spread to many localities. Some of the most recent and exciting historical projects have begun to draw our attention to the everyday, to materiality, objects, and archives beyond the legal, to tell personal, hidden and revealing histories of international law.
And yet, international legal history has so far been largely resistant to more radical forms of history that spurred so many of the main innovations in twentieth century historiography: social histories, women’s histories, labour histories, and histories of resistance and radicalism. Other themes at the 2018 ESIL Conference invite papers on universality and particularism’s histories at the juridical, conceptual and theoretical levels. This Agora seeks to expand that universe in the direction of something more local, personal and radical — to uncover histories that have been hidden within these longues durées and big trends.
Fitting with and interrogating the theme of universality, we seek papers that look for the local in the universal and the legal, from across the globe and from any period of historical inquiry. We are looking to share the hidden stories, archival gems, and accounts of everyday lives and movements that illuminate and contest the universal in new and powerful ways. It is particularly fitting that we do this in Manchester, a city that was one major birthplace of the industrial revolution, the labour movement, and the suffragette movement.Issues arising within this theme might include, but are not limited to:
- The role of women and women’s movements in constructing, challenging and critiquing the ideas of universality in international law.
- Labour and international law: competing universals of solidarity and capitalism.
- Race, ethnicity, indigeneity, intersectionality and the stories of challenging, rethinking and repurposing the universal.
- Rebellions, radicalism and resistance: histories of popular debate, protests and discord over universality in law.
- Shifting the ‘turn to biography’ in international legal histories: introducing the field to new lives and new, untold stories.
- The significance of rural areas, cities, communities, migration and labour flows for rethinking law, the international, and the universal.
- Submit an abstract of no more than 800 words, submitted by email to email@example.com by 17 January 2018. No late submissions will be considered.
- An interest group subcommittee will then blind review the abstracts and finalise the proposed format. The likely format will be a panel of 4 papers, but this may change depending on abstracts received.
- Selected abstracts will be sent, with the Agora theme, to the ESIL 2018 Conference organisers for their consideration by 31 January 2018. If the proposal is successful, full papers (minimum 3000 words) will need to be submitted by 15 July 2018 for circulation to other Agora participants.
- We encourage proposals from scholars in any discipline — legal or not — and at any stage of career. Selection will be based on scholarly merit and with regard to producing an engaging workshop, without prejudice to gender, seniority, language or geographical location
- Please circulate this call to anyone you think may be interested.
- Please direct any questions to Martin Clark (firstname.lastname@example.org) or Markus Beham (email@example.com).
- Michael Byers, Crises and international cooperation: an Arctic case study
- Brian Christopher Rathbun, Subvert the dominant paradigm: a critical analysis of rationalism’s status as a paradigm of International Relations
- Benjamin R Banta, Leveraging the idea of ‘Humanitarian War’
- Arash Heydarian Pashakhanlou, Fully integrated content analysis in International Relations
- Ali Balci, Writing the world into counter-hegemony: identity, power, and ‘foreign policy’ in ethnic movements
- Seo-Hyun Park, Rhetorical entrapment and the politics of alliance cooperation: explaining divergent outcomes in Japan and South Korea during the Iraq War
- James Turner Johnson, Three perspectives on just war
This is the manuscript of a paper given at the Frankfurt Investment Law Workshop 2016, which discusses the interrelationship between the general rules governing State succession on the one hand, and the particular approach to state succession adopted by investment lawyers. The paper proceeds from recent, high-profile cases such as SANUM or WORLD WIDE MINERALS and situates these in an analytical framework.
The present analysis will consider first the basic principles of the international water law discourse as consolidated by the two Conventions, and then their respective scope ratione materiae and ratione personae. The ensuing assessments will be made within the framework of both treaty and customary law with a view to maximizing the practical guideline function of the two instruments for the conduct of co-riparian States in their mutual relations, and in relation to a transboundary watercourse. Such a function is dual in nature: the regulatory framework of the two Conventions requires both the adoption of domestic legislative and administrative measures on the use, protection and conservation of watercourses, and the negotiation of new watercourse agreements with a view to further cooperation on specific international watercourses.
Appointing authorities wield tremendous power in international arbitration. This Chapter examines three phenomena concerning appointing authorities that have occurred in recent arbitrations: self-appointment (where the appointing authority appoints him or herself to the tribunal); party appointment (where one or both parties appoint the appointing authority to the tribunal); and non-appointment (where the appointing authority refuses to appoint an arbitrator). The Chapter concludes that, in light of the significant powers granted to appointing authorities, greater attention should be directed towards regulating their conduct.
- Claire Vergerio, Alberico Gentili’s De iure belli: An Absolutist’s Attempt to Reconcile the jus gentium and the Reason of State Tradition
- Jeffrey T. Tirshfield, The Socio-Historical Case for the Existence of a Nexus Requirement in the Application of Universal Jurisdiction to Maritime Piracy
- Robert Schütze, From the “Closed” to the “Open” Commercial State: A Very Brief History of International Economic Law
Wednesday, December 20, 2017
Meguro: Customary International Law and Non-State Actors: Between Anthropomorphism and Artificial Unity
This chapter seeks to shed light on the role of non-state actors in custom-making processes. It does so by repudiating the dominant understanding of opinio juris and practice within the two-element variant of the doctrine of customary law that has informed practice and scholarship since the 1920s. It shows that dominant approaches to opinio juris and practice are indifferent to the role of non-state actors by virtue of constructions that are highly questionable. Section 1 sketches the dominant understanding of two elements of customary international law. Section 2 discusses the limitations of the dominant understanding of opinio juris by showing the extent to which the anthropomorphic concept of opinio juris fails to perform the functions assigned to it. In section 3, the attention turns to practice which contains a greater variety of approaches. This section particularly emphasizes the role of domestic non-state actors in the creation of international norms that shapes State practice, and increasing role of international organizations to strengthen the grips of the domestic actors in creating international customary norms through the member states. This chapter ends with a few concluding remarks about the general implications of the approach promoted here for the doctrine of customary law as a whole.
Eslava, Fakhri, & Nesiah: Bandung, Global History, and International Law: Critical Pasts and Pending Futures
- Luis Eslava, Michael Fakhri, & Vasuki Nesiah, The Spirit of Bandung
- B.S. Chimni, Anti-Imperialism: Then and Now
- Rose Sydney Parfitt, Newer Is Truer: Time, Space, and Subjectivity at the Bandung Conference
- Fredrik Petersson, From Versailles to Bandung: The Interwar Origins of Anticolonialism
- Samera Esmeir, Bandung: Reflections on the Sea, the World, and Colonialism 81
- Mohammad Shahabuddin, Nationalism, Imperialism, and Bandung: Nineteenth-Century Japan as a Prelude
- Adil Hasan Khan, Ghostly Visitations: “Questioning Heirs” and the Tragic Tasks of Narrating Bandung Futures
- Ibrahim J. Gassama, Bandung 1955: The Deceit and the Conceit
- Vik Kanwar, Not a Place, but a Project: Bandung, TWAIL, and the Aesthetics of Thirdness
- Katharine McGregor & Vannessa Hearman, Challenging the Lifeline of Imperialism: Reassessing Afro-Asian Solidarity and Related Activism in the Decade 1955–1965
- Chen Yifeng, Bandung, China, and the Making of World Order in East Asia
- Boris N. Mamlyuk, Decolonization as a Cold War Imperative: Bandung and the Soviets
- Akbar Rasulov, Central Asia as an Object of Orientalist Narratives in the Age of Bandung
- Liliana Obregón, Latin America during the Bandung Era: Anti-Imperialist Movements vs. Anti-Communist States
- John Reynolds, Peripheral Parallels? Europe’s Edges and the World of Bandung 247
- Germán Medardo Sandoval Trigo, The Bandung Conference and Latin America: A Decolonial Dialogue with Oscar Correas
- Zoran Oklopcic, A Triple Struggle: Nonalignment, Yugoslavia, and National, Social, and Geopolitical Emancipation
- Umut Özsu, “Let Us First of All Have Unity among Us”: Bandung, International Law, and the Empty Politics of Solidarity
- Ratna Kapur, The Colonial Debris of Bandung: Equality and Facilitating the Rise of the Hindu Right in India
- Cyra Akila Choudhury, From Bandung 1955 to Bangladesh 1971: Postcolonial SelfDetermination and Third World Failures in South Asia
- Mai Taha, Reimagining Bandung for Women at Work in Egypt: Law and the Woman between the Factory and the “Social Factory”
- Luwam Dirar, Rethinking the Concept of Colonialism in Bandung and Its African Union Aftermath
- Sylvia Wairimu Kang’ara, China and Africa: Development, Land, and the Colonial Legacy
- Noha Aboueldahab, Bandung’s Legacy for the Arab Spring
- Rebecca LaForgia, Applying the Memory of Bandung: Lessons from Australia’s Negative Case Study
- Fabia Fernandes Carvalho Veçoso, Bandung in the Shadow: The Brazilian Experience
- Hani Sayed, The Humanization of the Third World 431
- Aziza Ahmed, Bandung’s Legacy: Solidarity and Contestation in Global Women’s Rights
- Karin Mickelson & Usha Natarajan, Reflections on Rhetoric and Rage: Bandung and Environmental Injustice
- Priya S. Gupta, From Statesmen to Technocrats to Financiers: Development Agents in the Third World
- Julio Faundez, Between Bandung and Doha: International Economic Law and Developing Countries
- Obiora Chinedu Okafor, The Bandung Ethic and International Human Rights Praxis: Yesterday, Today, and Tomorrow
- Antony Anghie, Bandung and the Origins of Third World Sovereignty
- Sundhya Pahuja, Letters from Bandung: Encounters with Another International Law
- Charlotte Peevers, Altering International Law: Nasser, Bandung, and the Suez Crisis
- Nahed Samour, Palestine at Bandung: The Longwinded Start of a Reimagined International Law
- Anthony Paul Farley, “Must Have Been Love”: The Nonaligned Future of A Warm December
- Arif Havas Oegroseno, The Bandung Declaration in the Twenty-First Century: Are We There Yet?
- Hengameh Saberi, Virtue Pedagogy and International Law Teaching
- Partha Chatterjee, The Legacy of Bandung
Tuesday, December 19, 2017
The UN Human Rights Committee, which is recognized for its legal expertise in human rights law, belongs to the most prominent institutions for the oversight of international human rights. The Committee was the first universal body with a mandate to examine individual communications. Among the international treaty bodies it continues to receive the highest number of individual petitions. Through the course of its four decades of existence, the Committee has developed a considerable body of jurisprudence affecting the interpretation of human rights by domestic and international institutions, including the International Court of Justice.
The present book chapter introduces readers to the work of this quasi-judicial expert body from the perspective of a Committee member. It locates the Committee’s institutional place in the overall structure of the human rights system and describes current challenges and developments. The author offers an in-depth assessment of the Committee’s legacy and makes proposals on how the Committee can refine its procedures and methodology. In times of increasing challenges for international human rights, the Committee’s principal task is to defend the integrity of the Covenant, maintain a norm-based dialogue with the States parties and render the Covenant’s interpretation truly universal. In absence of an international human rights court, the Committee needs to preserve its legacy as a central legal player in universal human rights protection, reinforce the legitimacy of its decisions and exercise its functions in accordance with its mandate as a body composed of legally experienced and independent experts. This process also requires the involvement of other stakeholders and States parties who carry the responsibility for the Committee’s composition, independence and structural capacity. The author reminds States parties of their role as trustees of the universal protection of human rights and calls for an active complementarity approach in line with their erga omnes partes obligations. States parties are required to increase their commitments towards treaty implementation and enforcement both domestically and internationally. The author makes proposals on how to procedurally link the international and the domestic level and how States can play a more active role in the international enforcement of human rights.
- Michael G. Findley, Adam S. Harris, Helen V. Milner, & Daniel L. Nielson, Who Controls Foreign Aid? Elite versus Public Perceptions of Donor Influence in Aid-Dependent Uganda
- Erica Owen & Noel P. Johnston, Occupation and the Political Economy of Trade: Job Routineness, Offshorability, and Protectionist Sentiment
- Roseanne W. McManus & Keren Yarhi-Milo, The Logic of “Offstage” Signaling: Domestic Politics, Regime Type, and Major Power-Protégé Relations
- Sarah Blodgett Bermeo, Aid Allocation and Targeted Development in an Increasingly Connected World
- Bernhard Reinsberg, Katharina Michaelowa, & Stephen Knack, Which Donors, Which Funds? Bilateral Donors' Choice of Multilateral Funds at the World Bank
- Research Notes
- Jeffrey A. Friedman, Jennifer S. Lerner, Richard Zeckhauser, Behavioral Consequences of Probabilistic Precision: Experimental Evidence from National Security Professionals
- Diana C. Mutz, Eunji Kim, The Impact of In-group Favoritism on Trade Preferences
- Review Essay
- Christian Reus-Smit, Cultural Diversity and International Order
- J.F.R. Boddens Hosang, The Effects of Paradigm Shifts on the Rules on the Use of Force in Military Operations
- Martha M. Bradley, Expanding the Borders of Common Article 3 in Non-International Armed Conflicts: Amending Its Geographical Application Through Subsequent Practice?
- Nicole J. Siller, Human Trafficking in International Law Before the Palermo Protocol
Practice reifies and animates international law, shaping what it means, how it is applied, and how effectively it achieves the diverse goals of those who invoke it. Practice is constitutive and contentious. It looks both backward and forward.
The 2018 Annual Meeting will focus on international law in action: how and by whom international law is made, shaped, and carried out, both formally and informally; how it is taught; how the practices of international institutions, law firms, companies, not-for-profit organizations, government offices, and militaries generate international rules; how and in what ways states and other actors interact; and how participants deploy international legal arguments. The meeting will consider how international legal practice has changed and is continuing to change in response to geopolitical shifts and contemporary challenges, including demands for greater transparency, accountability, legitimacy, and inclusion.
At its 112th Annual Meeting, the American Society of International Law invites policymakers, practitioners, academics across the disciplinary spectrum, and students to reflect on the broad manifestations, sources, and implications of international legal practice.
Monday, December 18, 2017
- Forum: Paris Climate Agreement
- Jorge E. Viñuales, The Paris Agreement on Climate Change: Less is More
- Focus: Frozen Conflicts: How Does PIL Deal with Them?
- Thomas D. Grant, Three Years After Annexation: Of ›Frozen Conflicts‹ and How to Characterise Crimea
- Milena Sterio, Self-Determination and Secession Under International Law: Nagorno-Karabakh
- Christopher J. Borgen, Moldova: Law and Complex Crises in a Systemic Borderland
- Enrico Milano, Unfreezing and Settling the Conflict over Kosovo
- Juan Soroeta, The Conflict in Western Sahara After Forty Years of Occupation: International Law versus Realpolitik
- Nikos Skoutaris, The Paradox of the Europeanisation of Intrastate Conflicts
- General Articles
- Andreas Kulick, From Problem to Opportunity?: An Analytical Framework for Vagueness and Ambiguity in International Law
- Lando Kirchmair, What Came First: The Obligation or the Belief? A Renaissance of Consensus Theory to Make the Normative Foundations of Customary International Law More Tangible
- Paul Behrens, The Crime of Genocide and the Problem of Subjective Substantiality
- Philipp Janig & Sarah Mansour Fallah, Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment
- Christoph Schewe, Clearing Up? Transparency in the Dispute Settlement of International Trade Agreements
- Lilian Richieri Hanania, The Social Dimension of Sustainable Development in EU Trade Agreements: Strengthening International Labour Standards
- German Practice
- Thomas Giegerich, In Germany International Law may be Honoured in the Breach: The Federal Constitutional Court Gives the Legislature Carte Blanche to Override Treaties
- Felix Telschow, »Gliding O'er All«: Human Dignity and Constitutional Identity in the Federal Constitutional Court's Recent
- Mareike Nürnberg & David Schenk, Deployment of Soldiers for the Protection of Nationals Abroad and Inner-State Justification: The German Federal Constitutional Court's Decision on the Operation of German Military in Libya
- Berenike Schriewer, The German Federal Constitutional Court's First Reference for a Preliminary Ruling to the European Court of Justice: A 2016 Follow-Up
- Isabell Böhm, Genocide in Rwanda: The Judgment of Frankfurt's Higher Regional Court Against a Former Rwandan Mayor of 29 December 2015
- Jens Kaiser, German Chairmanship of the Organization for Security and Cooperation in Europe in 2016
- Avril Rushe & Joschka Peters-Wunnenberg, Are the Maghreb States ›Safe‹?
- Sebastian Tho Pesch, Finding a Solution Without Addressing the Problem: The 2014 Ems-Dollard Treaty
- Marcus Schladebach, The Germanwings Disaster: Legal Debates and Consequences
- Thomas Hoppe, The German Federal Court of Justice Marks a Possible Way for the CJEU's Preliminary Ruling: The Compatibility of Investment Arbitration Clauses in Intra-EU Bilateral Investment Treaties with European Union Law
Sunday, December 17, 2017
The paper comments on Decision 238/2014 of the Italian Constitutional Court, in which the Italian Constitutional Court addressed the tension between human rights and State immunity. Its focus is on the reasoning adopted by the Italian Constitutional Court, which relied on Italian 'foreign relations law' to avoid giving effect to the international legal rules on State immunity.