The post-Cold War establishment of a series of international criminal tribunals stands as a signal achievement in the recent history of international law. Over time, however, the enthusiasm and optimism that accompanied the establishment of these courts has waned, with tribunals facing fading confidence and, in some cases, backlash from important constituencies. The present chapter provides an overview of historical and more recent examples of opposition to international criminal tribunals, before critically considering recent literature on tribunal backlash and proposing a working definition of this phenomenon. Drawing on the recent pluralist turn in International Relations theory, it then identifies a set of potential drivers/inhibitors of backlash against international criminal tribunals, providing a theoretical taxonomy enabling structured comparison of the dynamics of backlash in the contexts of permanent (the International Criminal Court), ad hoc (the International Criminal Tribunal for the Former Yugoslavia), and hybrid (the Special Tribunal for Lebanon) tribunals. Concluding observations compare the three sets of experiences and identify paths for future research.
Saturday, September 22, 2018
Friday, September 21, 2018
- Joost Pauwelyn & Weiwei Zhang, Busier than Ever? A Data-Driven Assessment and Forecast of WTO Caseload
- Menno Broos & Sebastian Grund, The IMF’s Jurisdiction Over The Capital Account—Reviewing the Role of Surveillance in Managing Cross- Border Capital Flows
- Michael Trebilcock & Sally Wong, Trade, Technology, and Transitions: Trampolines or Safety Nets for Displaced Workers?
- Vincent Beyer, Income Tax and Nondiscrimination in the GATT J
- Kyounghwa Kim & Dukgeun Ahn, To Be or Not to Be with Targeted Dumping
- Pierre Sauvé & Marta Soprana, Disciplining Service Sector Subsidies: Where Do We Stand and Where Can We (Realistically) Go?
- Ilaria Espa & Gracia Marín Durán, Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program
- Timothy Meyer & Tae Jung Park, Renegotiating International Investment Law
- Maria Laura Marceddu, Implementing Transparency and Public Participation in FTA Negotiations: Are the Times a-Changin’?
- Rodrigo Polanco Lazo, Valentino Desilvestro, & Azernoosh Bazrafkan, Missing Investment Treaties
The practice of interpretation brings the law to life. It takes part in shaping and making the law. What then is this practice of interpretation? The present chapter distinguishes four different approaches to that question in light of their strategy of critique—whether that critique is formalist, instrumentalist, realist, or immanent. The Chapter first discusses the well-received internal critique in the guise of formalism, followed by external critique in the guise of instrumentalism. These two strategies are united in their focus on what interpreters should do—which interpretation to adopt and how to justify it. A cursory overview of concrete interpretative practice then shows that actors tend to adopt one or the other approach not depending on strong theoretical commitments, but rather strategically with a view of defending certain claims before specific audiences. One may thus well ask what is really going on. Realism, in turn, highlights interpretations as expressions of power and bias. While appealing, realism faces difficulties of its own when it tries to account for the role of reasons and when it commits to strong empiricism. The Chapter finally places emphasis on the strategy of immanent critique. It presents and discusses immanent critique by asking how that strategy of critique thinks about the possibility, direction, and mode of change. In conclusion, the Chapter connects the discussion of different strategies of critique to arguments in the troubled, crisis-prone present.
- Giuliana Ziccardi Capaldo, Getting to a Global Constitution Expanding Human Rights Law: The Application of the No- Impunity Principle to Tax Fraud Offences
- In Memoriam
- Anja Matwijkiw & Bronik Matwijkiw, M. Cherif Bassiouni (1937– 2017)
- Yale H. Ferguson & Richard W. Mansbach, The Decline of the Liberal Global Order and the Revival of Nationalism
- Ramesh Thakur, A Bifurcated Global Nuclear Order: Thou May vs. Thou Shall Not Possess or Use Nuclear Weapons
- Notes and Comments
- Luis A. López Zamora, Normatividad Internacional en Colisión con la Norma Fundamental del Derecho Internacional/ International Normativity in Collision with International Law’s Constitution
- Anja Matwijkiw & Bronik Matwijkiw, Bahrain Anno 2017: Peace or Regime- Change? The Ongoing Human Rights Dilemma and the Ethics Pillar as a Measurement
- In Focus: Global Policies and Law
- Jelena Bäumler, Rise and Shine: The No Harm Principle’s Increasing Relevance for the Global Community
- Nicholas R. Micinski & Thomas G. Weiss, Global Migration Governance: Beyond Coordination and Crises
- Forum - Jurisprudential Cross-Fertilization: An Annual Overview
- Antônio Augusto Cançado Trindade, Contemporary International Tribunals: Jurisprudential Cross- Fertilization in the Case- Law of International Tribunals in Their Common Mission of Realization of Justice
- Juan-Pablo Perez-Leon-Acevedo, International Human Rights Law in the Reparation Practice of the Extraordinary Chambers in the Courts of Cambodia
- Sonja C. Grover, Human Dignity as the Foundation for the Democratic Rule of Law: J.C. Hernandez v. J. Mesa Jr. 582 U.S. _ (2017) as an Illustrative Case
- Yoshifumi Tanaka, Dual Provisional Measures Prescribed by ITLOS and Annex VII Arbitral Tribunal: Reflections on the “Enrica Lexie” Incident Case
- Joseph Massad, Against Self-Determination
- Emma Stone Mackinnon, Promise-Making and the History of Human Rights: Reading Arendt with Danto
- Eva-Maria Muschik, The Art of Chameleon Politics: From Colonial Servant to International Development Expert
- Darcie Fontaine, The Politics of Neutrality: Cimade, Humanitarianism, and State Power in Modern France
- Carlo Invernizzi-Accetti, Catholic Social Doctrine and Human Rights: From Rejection to Endorsement?
- Betsy Konefal, Memory Offensives Where Impunity Reigns
What role do reparations play in international law today? What is the theory behind reparations in different areas/systems of international law? Do reparations play a different role in different areas of international law (human rights, investment law)? How are reparations chosen by judges and arbitrators and how are damages calculated? What is the link between efficiency and reparations? How can reparations be made more efficient? How do judges/arbitrators understand their role in relation to reparations? These questions will be at the centre of an ESIL-sponsored workshop held at the Lauterpacht Centre, University of Cambridge in November 2018. The workshop will seek to address the recent developments and scholarship in the area of reparations (remedies) in international law. It will bring together scholars writing on theory of reparations, those conducting empirical or comparative research, as well as practitioners, judges and arbitrators. The aim is to provide a platform for discussion of new ideas about efficiency of reparations in international law.
Thursday, September 20, 2018
The concluding paper of the volume on the legal framework of the OSCE brings together some of the main empirical and theoretical insights of the research project which has been conducted by lawyers and political scientists, scholars and practitioners, politicians and international civil servants. The variety of contributions results in a diversified yet nuanced analysis of the legal status of the OSCE, a prime example of an informal international organisation. The paper examines their contrasting results as well as their common features and structures along three themes. First, the paper contrasts different roles that the authors ascribe to the OSCE, ranging from a Cold War instrument over an informal mode of governance to a global governance actor in its own right. Second, it analyses the transformation of relevant interests of different actors (states, the OSCE bodies themselves, and governed individuals) which took place since the inception of the Conference/Organization. Third, the paper demonstrates that the competing reform proposals for strengthening the OSCE legal framework manifest divergent underlying ideas about the role and functioning of international organisations, both in the political and the legal dimension. The paper concludes that the debate on the reform of the OSCE’s legal framework should acknowledge the interdependence of effectiveness and legitimacy of the OSCE as a global governance actor and that an OSCE ‘constitution’ would not only empower the OSCE but also render it more accountable.
In armed conflicts around the world, children are being killed, raped, abducted and recruited to fight at a shocking scale. In light of this continuing general failure to protect children in conflict, it is questionable whether existing international law norms and institutions provide sufficient protection and accountability. Consideration needs to be given to whether international law can do more – practically and effectively – when moral lines are crossed.
That is the purpose of this book. It reviews the position of children in armed conflict by reference to the 'six grave violations' as identified by the UN Security Council. It analyses the protection offered by international humanitarian law, international criminal law and international human rights law, and also assesses the related adjudicative accountability mechanisms. The analysis concludes with a number of recommendations and proposals for reform, with a view to enhancing accountability and deterring future violations.
- Irene Watson, Aboriginal relationships to the natural world: colonial ‘protection’ of human rights and the environment
- Louisa Parks, Spaces for local voices? A discourse analysis of the decisions of the Convention on Biological Diversity
- Miriam Cullen, ‘Eaten by the sea’: human rights claims for the impacts of climate change upon remote subnational communities
- Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper & Sandra H Lustig, KlimaSeniorinnen: lessons from the Swiss senior women's case for future climate litigation
Northeast Asia is one of the most important regions of the world both economically and in terms of its historical heritage. The region poses significant challenges for international law whilst international law can unleash cooperative endeavours which can place the region in a formidable location in the new multi-polar world order. This work sets out a contextual regional approach to international law focusing on the relations as between China, South Korea and Japan. In particular the author deliberates on the historical development of international law in the region, the relationship of international law with the Chinese, Korean and Japanese legal systems; historical disputes as between the three States; and the respective practices in the sphere of monetary and trade relations. This work will be of interest to international law scholars, practitioners and policy makers.
Once the exclusive prerogative of domaine réservé, landscape has gained increasing importance in international law in recent years. Since the introduction of cultural landscapes within the UNESCO World Heritage Convention, and particularly since the adoption of the European Landscape Convention (ELC), emphasis has shifted beyond a scenic, preservationist approach towards a more dynamic, human-centred one. The focus is not only on outstanding landscapes, but also on the everyday and degraded landscapes where most people live and work. Landscape is land shaped by people, after all, and its protection, management and planning have a number of implications for democracy, human rights and spatial justice. Despite these links, however, there has been little legal scholarship on the topic.
How does international law, which deals for the most part with universality, deal with something so region-specific and particular as landscape? What is the legal conception of landscape and what are the various roles played by international law in its protection? Amy Strecker assesses the institutional framework for landscape protection, analyses the interplay between landscape and human rights, and links the etymology and theory of landscape with its articulation in law.
Goodale: The Myth of Universality: The UNESCO “Philosophers’ Committee” and the Making of Human Rights
This article reexamines one of the most enduring questions in the history of human rights: the question of human rights universality. By the end of the first decade after the end of the Cold War, debates around the legitimacy and origins of human rights took on new urgency, as human rights emerged as an increasingly influential rubric in international law, transnational development policy, social activism, and ethical discourse. At stake in these debates was the fundamental status of human rights. Based in part on new archival research, this article offers an alternative interpretation of the rediscovery by scholars in the late 1990s of a 1947 UNESCO survey that purported to demonstrate the universality of human rights through empirical evidence. The article argues that this contested intellectual history reflects the enduring importance of the “myth of universality”—a key cultural narrative that we continue to use to find meaning across the long, dark night of history.
Wednesday, September 19, 2018
Schneiderman: ‘Writing the Rules of the Global Economy’: How America Defines the Contours of International Investment Law
Some characterize the standards of protection promoted by investment treaty law as a form of denationalized law. International investment law, it is said, is comprised of generic rules, representing norms of global good governance, and not those of any particular state. This paper argues that investment treaty standards exemplify, in Bourdieu’s terms, the fictitious universalization of the particular case. This is revealed in debates over conferring upon President Obama trade promotion authority to negotiate new mega-regional treaties, like the Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). Disagreement turned, in large part, on the degree to which commitments to foreign investors corresponded to rights found in the US Bill of Rights. Both sides were preoccupied with the question of whether standards for investor protection in mega-regionals looked sufficiently like US constitutional law. By evaluating the strictures of investment treaty protections and US constitutional rights, the paper generates evidence that investor protections, while resembling those rights, surpass them by a considerable distance. So long as the origins of the content of investment treaty commitments remain misrecognized, US political actors will continue hold a monopoly in determining the content of the universal.
Recent years have seen a blossoming of scholarship on the philosophical concept of human rights, and the related notion of human rights law, with contributions from authors as diverse as Allen Buchanan, Charles Beitz, Costas Douzinas, James Griffin, and Gunther Teubner. The objective of this roundtable is to consider the distinctive offering from systems theory to the debate, including the closed systems theory of autopoiesis and open theory of complexity.
Tuesday, September 18, 2018
State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary sovereignty fit this pattern. All others are de facto more like private entities, which by definition cannot manipulate their own survival constraint. States can surrender their monetary sovereignty directly by adopting another currency or by issuing their own debt in foreign currency and under foreign law. They also compromise their sovereignty by permitting unlimited capital inflows denominated in currencies other than their own. This is because in times of crisis they will not be able to rescue the domestic financial system from its tendency to self-destruct without subjecting itself to a sovereign debt crisis and the implied need to rely on a lifeline from other states or supranational entities.
Sexual exploitation and abuse by United Nations (UN) peacekeepers is not an isolated or recent problem, but it has been present in almost every peacekeeping operation. A culture of sexual exploitation and abuse is contrary to the UN’s zero-tolerance policy and has been the target of institutional reforms since 2005. Despite this, allegations of sexual abuse continue to emerge, and the reforms have not solved the problem. This book is a response to the continued lack of accountability of UN peacekeepers for sexual exploitation and abuse. Focusing on military contingent members, this book aims to analyse ways in which the UN can fill the accountability gap while taking a feminist perspective and emphasising the needs of victims, their communities, and the host state.
This book directly challenges the status quo of relying on troop-contributing countries (TCCs) to hold their peacekeepers to account. It proposes first, the establishment of a series of hybrid courts, and second, a mechanism for dealing with victim rehabilitation and reparation. It addresses these topics by considering international and human rights law and will be of interest to researchers, academics, policymakers, and students with an interest in international criminal law, United Nations peacekeeping, and peace studies.
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Monday, September 17, 2018
Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American states accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of states and the individual, creating a kind of inter-American constitutionalism.
Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts, in particular, have become less receptive, and at times even opposed to what they perceive as a too aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.
In an effort to balance investment protection with other policy concerns states are increasingly inserting general public policy exceptions into their international investment agreements. A first wave of cases has recently interpreted and applied these exceptions putting the effectiveness of this state-led treaty design reform to the test. In this article, we introduce the different types of general public policy exceptions found in investment treaties and systematically analyze the case law rendered thereunder. We find that although public policy exceptions are becoming more prominent in treaty practice, in 2016 every third newly concluded treaty contained such a clause, they are largely missing in action. Respondents fail to raise them appropriately and tribunals pay little attention to them. As a result, the numerous and complex interpretive issues raised by these exceptions remain unresolved and their impact on investment jurisprudence remains modest at best. We conclude by recommending that responding states and tribunals should engage with general public policy exceptions more thoroughly.
- Ian Yuying Liu, The Chinese Dream, Neoliberalism, and International Legal Ideology
- Dilini Pathirana, Rising China and Global Investment Governance: An Overview of Prospects and Challenges
- Hongling Ning and Tong Qi, Multilateral Investment Court: The Gap Between the EU and China
- Shreya Atrey, The Intersectional Case of Poverty in Discrimination Law
- Stephanie E Berry, Aligning Interculturalism with International Human Rights Law: ‘Living Together’ without Assimilation
- Robert Spano, The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law
- Janneke Gerards, Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights
- Silvia Favalli, The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’
- Tom Ruys & Emre Turkut, Turkey’s Post-Coup ‘Purification Process’: Collective Dismissals of Public Servants under the European Convention on Human Rights
- Fabrice Langrognet, The Best Interests of the Child in French Deportation Case Law
- Daniel Augenstein, Torture as Tort? Transnational Tort Litigation for Corporate-Related Human Rights Violations and the Human Right to a Remedy
This article responds to the arguments made by Dani Rodrik in his book Straight Talk on Trade: Ideas for a Sane World Economy. It does so from the perspectives of international economic law and international law theory. The book calls for striking a different, better balance between economic globalization and the nation-state. It interweaves theory, empirics, and proposals in the tradition of economic pragmatism. Its focus on institutions, social context, and the importance of innovative, adaptive practice reflects new legal realism in legal scholarship. Part I assesses the book in light of transnational legal theory, analyzing the recursive relation of international and domestic law in an interconnected world. Part II views the book in terms of its lessons for international law theory from a new legal realist perspective. Part III concludes regarding what should be done and avoided in response to current crises. Decrying the risks to the “liberal international order” is not enough. We must also address the mistakes made so as to enhance policy space for nation-states. Otherwise economic integration could catalyze further social disintegration. Building inclusive, democratic societies at home will better ensure inter-state cooperation through international economic law. Their relationship is transnationally enmeshed.
Sunday, September 16, 2018
World Trade Organisation (WTO) trade remedies (antidumping, anti-subsidy and safeguard agreements) are instruments used by WTO members to counter the economic injury caused by dumping, subsidies and the sudden and unforeseen increased imports. They are exceptions to the WTO principle of free trade and to the prohibition for States to react unilaterally to protect their own rights and interests, and as a result they have been accused by some as being the new tools of protectionism.
This book analyses of the role and principles of WTO trade remedies in international law. In particular, it focuses on their aims, their structure, and their position within the WTO and more in general, the international legal system. The book considers trade remedies in light of fragmentation theories of international law and addresses the question how, and to what extent WTO law reflects and influences public international law.
The Hidden Hands of Justice: NGOs, Human Rights, and International Courts is the first comprehensive analysis of non-governmental organization (NGO) participation at international criminal and human rights courts. Drawing on original data, Heidi Nichols Haddad maps and explains the differences in NGO participatory roles, frequency, and impact at three judicial institutions: the European Court of Human Rights, the Inter-American Human Rights System, and the International Criminal Court. The Hidden Hands of Justice demonstrates that courts can strategically choose to enhance their functionality by allowing NGOs to provide needed information, expertise, and services as well as shame states for non-cooperation. Through participation, NGOs can profoundly shape the character of international human rights justice, but in doing so, may consolidate civil society representation and relinquish their roles as external monitors.
Saturday, September 15, 2018
This book conducts a gendered critique of the ‘principle of distinction’ in international humanitarian law (IHL), with a focus on recent conflicts in Africa. The ‘principle of distinction’ is core to IHL, and regulates who can and cannot be targeted in armed conflict. It states that civilians may not be targeted in attack, while combatants and those civilians directly participating in hostilities can be. The law defines what it means to be a combatant and a civilian, and sets out what behaviour constitutes direct participation. Close examination of the origins of the principle reveals that IHL was based on a gendered view of conflict, which envisages men as fighters and women as victims of war. Problematically, this view often does not accord with the reality in ‘new wars’ today in which women are playing increasingly active roles, often forming the backbone of fighting groups, and performing functions on which armed groups are highly reliant. Using women’s participation in ‘new wars’ in Africa as a study, this volume critically examines the principle through a gendered lens, questioning the extent to which the principle serves to protect women in modern conflicts and how it fails them. By doing so, it questions whether the principle of distinction is suitable to effectively regulate the conduct of hostilities in new wars.
- Matt James & Jordan Stanger-Ross, Impermanent Apologies: on the Dynamics of Timing and Public Knowledge in Political Apology
- Paweł Łuków, A Difficult Legacy: Human Dignity as the Founding Value of Human Rights
- Kristi Giselsson, Rethinking Dignity
- Jeremy Sarkin, Redesigning the Definition a Truth Commission, but Also Designing a Forward-Looking Non-Prescriptive Definition to Make Them Potentially More Successful
- Jana Krause, Werner Krause & Piia Bränfors, Women’s Participation in Peace Negotiations and the Durability of Peace
- Vito D’Orazio & Idean Salehyan, Who is a Terrorist? Ethnicity, Group Affiliation, and Understandings of Political Violence
- Mi Hwa Hong & Gary Uzonyi, Deeper Commitment to Human Rights Treaties: Signaling and Investment Risk Perception
- Research Note
- R. Urbatsch, Immigrant Out-Groups and Voting against Free Trade
- Mauro Barelli, Preventing and Responding to Atrocity Crimes: China, Sovereignty and the Responsibility to Protect
- Dana Burchardt & Rishi Gulati, International Counter-terrorism Regulation and Citizenship-stripping Laws—Reinforcing Legal Exceptionalism
- Patrick M Butchard, Back to San Francisco: Explaining the Inherent Contradictions of Article 2(4) of the UN Charter
- Alejandro Rodiles, Law and Violence in the Global South: The Legal Framing of Mexico’s ‘NARCO WAR’
- Maurice Cotter, Military Necessity, Proportionality and Dual-Use Objects at the ICTY: A Close Reading of the Prlić et al. Proceedings on the Destruction of the Old Bridge of Mostar
Friday, September 14, 2018
Call for Papers: Literature and International Law at the Edge
New York City, December 14/15, 2018
Abstracts/proposals due by October 31, 2018
The past decade has seen a steady increase in interdisciplinary scholarship interested in the relationships between literature and international law. Much of this scholarship has remained deeply rooted in the home disciplines of the scholars, who not only operate with the prevailing assumptions and methodologies of those disciplines, but also tend to treat the other disciplines as stable and unproblematic. Moreover, while claiming to tell a global history, that scholarship largely repeats the Eurocentric bias that has historically characterized the fields of comparative literature and international law. In fact, much of the new scholarship on comparative literature and international law not only fails to take account of imperialism and its histories in the formation of disciplinary knowledge, it also tends to marginalize events and thinkers at the colonial and global edges, ignoring their roles as actors and agents of literary and legal world-making. In doing so, this new scholarship seems to be replicating the traditional prejudices of its contributing disciplines.
Through a series of events to be held in 2018 and 2019 (in, amongst other places, New York, London and Nairobi) this project aims to explore the imbrications of literature and international law at the edges. The project seeks to challenge many of the basic disciplinary blindnesses and Eurocentric assumptions that have characterized the emerging conversation by putting the Global South at the center of our interdisciplinary inquiry.
For a day-long workshop/conference, to be held in New York City on December 14/15, 2018, we are seeking contributions that:
– Explore interdisciplinary interfaces among literary, historical, and legal studies, and from positions of geo-historical marginalization across the Global South.
– Address the intersections between particular texts of “world literature” and Third World Approaches to International Law.
– Map the theoretical and historical relationships between comparative literature and international law as world-making, world-imagining, and world-governing regimes.
– Trace the historical global flows of knowledge at the “margins” of world literary and legal space that have been overlooked in the canonical and narrow focus of the separate disciplines, as well as new flows of global knowledge among the disciplines and across (and about) the Global South.
– Consider how the basic assumptions and doctrines of international law and comparative literature (e.g., sovereignty, self-determination, territoriality, equality of states, ethno-cultural nationalism, national languages, and rights to natural and cultural resources) were worked out historically in the Global South.
Please email short proposals/abstracts/inquires by 31 October 2018 to: iL.Lit.firstname.lastname@example.org
Thursday, September 13, 2018
In a context of neoliberal globalization, have the processes of elaboration and implementation of foreign investors' responsibilities by intergovernmental organizations reached the realm of legality? Using an analytical framework and a methodology that combines international law with international relations, this book provides a twofold answer to this question. First, it demonstrates that the normative integration of foreign investors' responsibilities in international investment law is fragmented and consistent with the interests of the most powerful actors. Second, while using the interactional theory of international law to assess the normative character of several international instruments elaborated and implemented by intergovernmental organizations, it highlights the sense of obligation that each instrument generates. The analysis demonstrates that such a codification process is marked by relations of power and has resulted in several social norms, with relatively few legal norms.
- Marlene Wind, Introduction
- Lisa Conant, Missing in action? The rare voice of international courts in domestic politics
- Krzysztof Pelc & Jeffrey Kucik, What can financial markets tell us about international courts and deterrence?
- David Kosar, The Strasbourg Court and domestic judicial politics
- Steven Freeland, It's a good idea … isn't it? The impact of complementarity at the international criminal court on domestic law, politics and perceptions of sovereignty
- Benjamin Perryman, Rights-protecting iCourts: the curious case of the OP-ICESCR
- Mikael Rask Madsen, Re-assembling the French state via human rights: between human rights internationalism and political sovereignism
- Juan A. Mayoral, Impact through trust: the CJEU as a trust-enhancing institution
- Katarína Šipulová, Jozef Janovský & Hubert Smekal, Ideology and international human rights commitments in post-communist regimes: the cases of the Czech Republic and Slovakia
- Philippa Webb, Escalation and interaction: international courts and domestic politics in the law of state immunity
- Jasper Krommendijk, National parliaments: obstacles or aid to the impact of international human rights bodies?
- Odile Ammann, The European Court of Human Rights and Swiss politics: how does the Swiss judge fit in?
- Yaël Ronen, The use of international jurisprudence by Israel's Supreme Court
- Marlene Wind, Laggards or pioneers? When Scandinavian avant-garde judges don't cite international case law: a methodological framework
The Editorial Board of the Cambridge International Law Journal (CILJ) is pleased to invite submissions for its eighth volume (Issues to be published in June and December 2019). The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law. All submissions are subject to double-blind peer review by the Journal’s Editorial Board. In addition, all long articles are sent to the Academic Review Board, which consists of distinguished international law scholars and practitioners.
Submissions can be made at any time. Articles submitted by 1 October 2018 will be considered for Volume 8 Issue 1. Any articles submitted after this date will be considered for the following issues.
For full submission instructions, please visit www.elgaronline.com/cilj.
Submissions can be made for Volume 8(1) here (please be aware the review process will begin in November 2018).
Alternatively, blog articles can be submitted here.
Further information can be obtained from the Editors-in-Chief at email@example.com
The right to self-determination has played a crucial role in the process of assisting oppressed people to put an end to colonial domination. Outside of the decolonization context, however, its relevance and application has constantly been challenged and debated. This book examines the role played by self-determination in international law with regard to post-conflict state building. It discusses the question of whether self-determination protects local populations from the intervention of international state-builders in domestic affairs. With a focus on the right as it applies to the people of an independent state, it explores how self-determination concerns that arise in the post-conflict period play out in relation to the reconstruction process. The book analyses the situation in Somalia as a means of drawing out the impact and significance of the legal principle of self-determination in the process of rebuilding post-conflict institutions. In so doing, it seeks to highlight how the relevance of self-determination is often overlooked in this context.
- Patrick Jiang & Gonzalo Villalta Puig, Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union
- Michael N. Scmitt, "Virtual" Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law
International investment law goes further in disciplining States’ internal policy space than is commonly understood. This Article argues that investment treaties subtly constrain how nations organize and balance their internal systems of private law – including laws of property, contract, corporations, and IP. Problematically, they do so on a one-size-fits-all model, without regard for the wide variation in values undergirding these discrete legal institutions. Moreover, ISDS case-law exacerbates these constraints, unjustifiably distorting national private law arrangements. This hidden aspect of the system produces distinct problems of efficiency, fairness, and equitable distribution that have eluded critics and apologists alike.
Rodiles: Coalitions of the Willing and International Law: The Interplay between Formality and Informality
Global action and regulation is increasingly the result of the interplay between formality and informality. From the management of State conduct in international security to the coordination of national policies in climate change, international organizations work ever closer with coalitions of the willing. This book carefully describes this dynamic game, showing that it consists of transformative orchestration strategies and quasi-formalization processes. On the institutional plane, coalitions of the willing turn into 'durable efforts', while international organizations perform as 'platforms' within broader regime complexes. On the normative level, informal standards are framed in legal language and bestowed with the force of law, while legal norms are attached to multilayered schemes of implementation, characterized by pragmatic correspondences, persuasion tactics, and conceptual framing. Understanding how this interplay alters the notion of 'international legality' is crucial for the necessary recalibrations of the political ideals that will inform the rule of law in global governance.
Wednesday, September 12, 2018
- Tori Loven Kirkebø & Malcolm Langford, The Commitment Curve: Global Regulation of Business and Human Rights
- Valentina Azarova, Business and Human Rights in Occupied Territory: The UN Database of Business Active in Israel’s Settlements
- Alejo José G Sison, Virtue Ethics and Natural Law Responses to Human Rights Quandaries in Business
- Stephen Kim Park, Social Bonds for Sustainable Development: A Human Rights Perspective on Impact Investing
- Developments in the Field
- Daniel Iglesias Márquez & Maria Prandi, How the Business Debate Influenced (or not) the Conflict Between Catalonia and Spain
- Arvind Ganesan, Business and Human Rights during the Trump Era
- Dan Bross, Fabrice Houdart, & Salil Tripathi, None of their Business? How the United Nations is Calling on Global Companies to Lead the Way on Human Rights of LGBTI people
- Doug Cassel, The Third Session of the UN Intergovernmental Working Group on a Business and Human Rights Treaty
- Sanyu Awori, Felogene Anumo, Denisse Cordova Montes, & Layla Hughes, A Feminist Approach to the Binding Instrument on Transnational Corporations and other Business Enterprises
- Michel Yoboué & Jonathan Kaufman, Inside the Dirty Fuels Campaign: Lessons for Business and Human Rights
In the face of recent challenges to international law and its institutions, a sense of despair and resignation pervades some parts of international legal scholarship – a mindset which may work to close off the ability to think, feel, and imagine alternatives. As a counterpoint to such despair, this paper explores the potential of utopianism as a framework for rethinking international law which provides grounds for hope. Building on the articles contained in the Special Section "Towards Utopia – Rethinking International Law" which it introduces, the paper discusses three topoi of utopianism in relation to international law: first, the diversity of utopian approaches, ranging from grand blueprints to everyday utopias; second, the relation of utopianism to critique, and specifically to critical approaches to international law; and third, the complicated role of international law in relation to social change.
- September 26, 2018: Ziv Bohrer (Bar-Ilan Univ.), Nuremberg Was Not the First International Criminal Tribunal — by a Longshot
- November 21, 2018: Ilya Kotlyar (UvT), The International Legal Issues of the Dissolution of the Soviet Union
- December 12, 2018: Randall Lesaffer (UvT), The Persian Gulf Conflict and the Reinvention of Collective Security: A Historical Perspective
- January TBD, 2019: Emiliano Buis (Univ. of San Andrés, Buenos Aires) Feeling the Empire: Power, Emotions, and Interpolity Legal Rhetoric in the Classical Greek World
- March 27, 2019: Yuko Nishitani (Kyoto Univ.), The Rise and Fall of Nations State in Private International Law
- April 24, 2019: Ana Delic (UvT), Uniformity and Choice of Law in the Private International Law of Contracts
Tuesday, September 11, 2018
Das Buch nimmt eine völkerrechtliche Analyse des Spannungsverhältnisses zwischen Kultur und Handel vor. Staatliche Maßnahmen zum Schutz und zur Förderung der Vielfalt von Kulturprodukten, die deren grenzüberschreitenden Austausch beeinflussen, fallen in den Anwendungsbereich zweier völkerrechtlicher Verträge: Zum einen beziehen sie sich auf kulturelle Ausdrucksformen, weshalb der Anwendungsbereich der CCD eröffnet ist. Zum anderen betreffen sie den Handel mit Waren, Dienstleistungen sowie Daten und fallen daher in den Anwendungsbereich des Welthandelsrechts. Dies kann zu Überschneidungen und Konflikten zwischen den CCD und den WTO-Abkommen sowie zwischen verschiedenen Vorschriften dieser Verträge führen.Das Buch arbeitet diese Überschneidungen und Konfliktpotenziale heraus und widmet sich möglichen Lösungsmodellen. Der Bereich der audiovisuellen Medien findet dabei besondere Berücksichtigung, da sich das Konzept der kulturellen Vielfalt vornehmlich in Bezug auf audiovisuellen Medien entwickelt hat. Das Werk zeigt, dass zwar Konfliktpotenzial zwischen den CC-Vorschriften und den WTO-Vorschriften besteht und auch weiterhin bestehen bleibt, dessen Abschwächung aber möglich ist, indem eine die Vielfalt kultureller Ausdrucksformen begünstigende Umgebung geschaffen wird, in der sich kulturelle Ausdrucksformen entfalten und entwickeln können, ohne dass dabei der freie Handel übermäßig beschränkt würde.
Conference: The Accountability of ‘Major Powers’ for Alleged Serious Violations of Human Rights and Humanitarian Law
The world has entered a critical moment for international economic policy. International investment is widely recognized as essential to global sustainable development, facilitating the transfer of technology, skills, capital, and jobs across borders, providing access to environmentally sound practices and offering livelihoods supported by the global economy. But mobility of capital can lead, among other things, to economic volatility, job insecurity, races to the bottom in terms of environmental, social, and fiscal policies, and governance gaps making it difficult for individuals or entities harmed by multinational enterprises to effectively secure remedies. The stakes are high, and the outcomes uncertain.
Public discontent with international investment treaties has produced a fundamental shift in policy in some contexts, and various discussions of reform in international and regional fora. This presents a crucial, and potentially fleeting, opportunity to advance a progressive vision of international investment that will govern this complex and nuanced field going forward.
This Conference seeks to elaborate principles for a progressive investment agenda. It will reflect on the current investment regime – of the network of over 3,000 investment agreements – and the extent to which the regime aligns with or undermines those principles. We will then re-imagine investment governance, and consider the role that international cooperation could play to advance sustainable, development-oriented investment.
The rationalist approach to international law mostly stands on two pillars: the rational choice assumption and, following the traditional international law assumptions in the aftermath of the Westphalian peace, the nation-state has mostly been analyzed as a unitary actor. Rational choice analysis has been used to conceptualize or reframe international law generally, including its sources, or particular institutions. The rational choice paradigm as used in economics has been thoroughly challenged, however, since the 1970s by psychological and economic experimental research that has revolutionized huge parts of economics itself as well as the economic analysis of law. Experiments show systematic deviations from the rationalist assumptions. This chapter analyzes the potential and the limits of the explanatory power of rationalist and behavioral approaches for international legal theory, in particular for the putative crisis in international law, in both variants – the unitary actor model as well as breaking up of the “black box” state.
- John Bell, External Dimensions of the French Constitution
- Eyal Benvenisti & Mila Versteeg, The External Dimensions of Constitutions
- Melissa Carlson, Laura Jakli, & Katerina Linos, Refugees Misdirected: How Information, Misinformation, and Rumors Shape Refugees’ Access to Fundamental Rights
- Adam Chilton & Eric Posner, Country-Specific Investments and the Rights of Non-Citizens
- Rosalind Dixon & Brigid McManus, Detaining Non-Citizens: Political Competition and Weak v. Strong Judicial Review
- David Golove, The American Founding and Global Justice: Hamiltonian and Jeffersonian Approaches
- Heinz Klug, Constitution in the World: The External Dimensions of South Africa’s Post-Apartheid Constitution
- David Landau, Vulnerable Insiders: Constitutional Design, International Law, and the Victims of Internal Armed Conflict in Colombia
- George Rutherglen, The Rights of Aliens under the United States Constitution: At the Border and Beyond
- Adam Shinar, Israel’s External Constitution: Friends, Enemies, and the Constitutional/Administrative Law Distinction
- Ozan Varol, Alien Citizens: Kurds and Citizenship in the Turkish Constitution
- Neil Walker, Sovereignty and Beyond: The Double Edge of External Constitutionalism
- M. Tavassoli Naini, Le mariage international et la question de la nationalité de la femme mariée à un étranger : une étude comparative du droit iranien, français et allemand
- T. Ojong, Un aperçu des lignes directrices de résolution des conflits de hiérarchie des normes et de juridictions dans le statut de Rome de la C.P.I.
This chapter considers the development of international humanitarian law by states from the Asia-Pacific region. It explores the contribution of individual states from the region to the drafting of the 1949 Geneva Conventions and the 1977 Additional Protocols. It examines the extent to which state practice and opinio juris from states from the region are used in the formation of customary international humanitarian law rules, using as case studies the ICRC Customary International Humanitarian Law study and jurisprudence of the ICTY. The role of national judicial decisions from the region is analysed. The chapter then turns to the use of materials from Asia-Pacific states in leading teachings of publicists, such as the ICRC Commentaries on the Geneva Conventions and Additional Protocols and the work of expert groups.
Burnay: Chinese Perspectives on the International Rule of Law: Law and Politics in the One-Party State
Building upon an understanding of the rule of law as an ‘essentially contested concept’, this insightful book investigates the historical, political, and legal foundations of the Chinese perspectives on the rule of law at both a national and international level. In particular, chapters focus on China’s impact on global trade and security governance. These case studies enable conclusions to be drawn regarding China’s more general perspectives on the international rule of law as a concept. Offering a thorough analysis of EU-China relationships, the book highlights the prospects and challenges for a meaningful dialogue on the rule of law and the international rule of law. In doing so, it illustrates the merits of the rule of law as a concept to engage in meaningful dialogues across a myriad of legal and political systems.
Monday, September 10, 2018
- Yevgeniy Golovchenko, Mareike Hartmann, & Rebecca Adler-Nissen, State, media and civil society in the information warfare over Ukraine: citizen curators of digital disinformation
- Wu Xinbo, China in search of a liberal partnership international order
- Xiaoyu Pu & Chengli Wang, Rethinking China's rise: Chinese scholars debate strategic overstretch
- Alexander Libman & Anastassia V. Obydenkova, Regional international organizations as a strategy of autocracy: the Eurasian Economic Union and Russian foreign policy
- Sonia Le Gouriellec, Regional power and contested hierarchy: Ethiopia, an ‘imperfect hegemon’ in the Horn of Africa
- Kristof Titeca, Understanding the illegal ivory trade and traders: evidence from Uganda
- Philipp Schulz, Displacement from gendered personhood: sexual violence and masculinities in northern Uganda
- Aarie Glas, African Union security culture in practice: African problems and African solutions
- Paul Michael Brannagan & Richard Giulianotti, The soft power–soft disempowerment nexus: the case of Qatar
Sunday, September 9, 2018
Das Buch befasst sich mit der Fragestellung nach einer Konstitutionalisierung des Völkerrechts und beleuchtet diese aus einer systemtheoretischen Sichtweise. Das Werk setzt sich zunächst intensiv mit der Systemtheorie von Niklas Luhmann auseinander und analysiert anschließend sowohl vorherrschende Konstitutionalisierungs- als auch Fragmentierungstendenzen. Ausführlich wird dabei auf den Ansatz des sog. Societal Constitutionalism eingegangen und die Hauptthese der Vertreter dieses Ansatzes kritisch gewürdigt. Schließlich beleuchtet das Werk die Konstitutionalisierung des Völkerrechts unter systemtheoretischen Gesichtspunkten und untersucht, inwieweit ein autonomes oder sogar autopoietisches Rechts- und Politiksystem auf internationaler Ebene existieren und ob diese beiden Systeme analog zur nationalstaatlichen Ebene durch eine Art strukturelle Kopplung verbunden sind. Im Kern bejaht das Werk ein Vorliegen einer strukturellen Kopplung und dadurch auch eine Konstitutionalisierung zumindest in einem abgeschwächten Maß.
- Danny Cullenward, California’s Foreign Climate Policy
- Yves Tiberghien, Fostering Bold and Innovative Ideas for Urgent Global Challenges: The V20 Contribution to the G20 during the China–German Transition
- Jeannette Money & Sarah P Lockhart, The Paucity of International Protections: Global Migration Governance in the Contemporary Era
- Dawisson Belém Lopes & João Paulo Ferraz Oliveira, Latin American Secretaries-General of International Organizations: A Typical Case of “Diplomacy of Prestige” or Just Another Side Effect of Growing Cosmopolitanism?
- Trey Herr, Governing Proliferation in Cybersecurity
Attribution in International Investment Law is the first in-depth book on attribution in international investment law analysing the treatment of attribution in applicable legal instruments and investment arbitration jurisprudence worldwide. The term ‘attribution’ refers to the means by which it is ascertained whether the State is involved in a dispute governed by international law. The notion of attribution is primarily used to determine if the State is responsible for the wrongful conduct of persons or entities with links to the State. In the context of international investment law, the exponentially growing arbitration jurisprudence arising from international investment agreements, especially bilateral investment treaties, reflects the extent and risk of attribution determined in investment relationships that often involve State enterprises. This book provides an extensive review of the application of special or customary rules of attribution for the purposes of State responsibility in investor-State disputes.
La sanction internationale de la violation des droits de l’homme peine à atteindre les objectifs qui lui sont assignés. Les sanctions non juridictionnelles mises en place au sein du système de la Charte des Nations unies sont le régime de droit commun, mais leur efficacité reste limitée pour la victime. Les Comités créés pour veiller à l’application des conventions relatives aux droits de l’homme prennent de simples recommandations à l’issue de l’examen des communications individuelles et sont incompétents pour connaître des violations graves. À défaut de mécanisme de sanction des violations graves, le Conseil de sécurité a étendu l’application des mesures collectives aux droits de l’homme. Le recours ainsi fait au Chapitre VII est confronté aux difficultés opérationnelles qui en limitent la portée. Face à ces difficultés, le Conseil de sécurité a diversifié ses sanctions. Toutefois, qu’elles soient des sanctions ciblées ou des mesures juridictionnelles comme la création de juridictions pénales ou la saisine de la Cour pénale internationale, les mesures collectives sont axées sur l’individu et non l’État. Bien que ce dernier soit le titulaire des obligations internationales en la matière, il est à l’abri de toute sanction contraignante, collective ou pénale. L’absence de sanction efficace à l’encontre de l’État et la garantie insuffisante des droits de la victime impose une réforme du contentieux international des droits de l’homme, à l’aune de la protection régionale des droits de l’homme qui se distingue par sa juridictionnalisation et par les garanties des droits de la victime. Au-delà du renforcement des mécanismes des organes de traités, la création d’une juridiction universelle chargée de sanctionner la violation des droits de l’homme au sein du système des Nations unies doit être envisagée.
- Jonathan Pass, Gramsci meets emergentist materialism: Towards a neo neo-gramscian perspective on world order
- Margarita H. Petrova, Weapons prohibitions through immanent critique: NGOs as emancipatory and (de)securitising actors in security governance
- Maria Tanyag, Depleting fragile bodies: the political economy of sexual and reproductive health in crisis situations
- Maria Martin de Almagro, Lost boomerangs, the rebound effect and transnational advocacy networks: a discursive approach to norm diffusion
- Jeppe Mulich, Transformation at the margins: Imperial expansion and systemic change in world politics
- Alex Hoseason, Between philosophy and social science: Harm and its object in International Relations
- Richard J. Aldrich & Lewis Herrington, Secrets, hostages, and ransoms: British kidnap policy in historical perspective
- Edward Newman & Gëzim Visoka, The European Union’s practice of state recognition: Between norms and interests
Coady, Dobos, & Sanyal: Challenges for Humanitarian Intervention: Ethical Demand and Political Reality
- C.A.J. Coady, Morality, Reality and Humanitarian Intervention: An Introduction to the Debate
- Stephen Zunes, Complicating the Moral Case of Responsibility to Protect: Kosovo and Libya
- Richard W. Miller, Why Sovereignty Matters Despite Injustice: the Ethics of Intervention
- Janna Thompson, Women and Humanitarian Intervention
- Ramon Das, Humanitarian Intervention and Non-Ideal Theory
- Marco Meyer, The Leeriness Objection to the Responsibility to Protect
- Ned Dobos, On the Uses and "Abuses" of R2P
- Chrisantha Hermanson, Scrutinizing Intentions
- Aidan Hehir, "Words lying on the table"? Norm Contestation and the Diminution of the Responsibility to Protect
- Robert W. Murray and Tom Keating, Responsibility to Protect, Polarity and Society: R2P's Political Realities in the International Order
- Sagar Sanyal, Closing the R2P Chapter; Opening a Dissident Current within Philosophy of War
- The Invisible Core of Values in the European Integration Project
- Arnoud R. Willems & Matilda J. Brolin, The Unhappy Marriage of Customs and Anti-Dumping Legislation: Tensions Relating to Product Description and Origin
- Láncos Petra Lea, Soft Structure vs. Soft Measure: Fleshing Out the Tension in EU Education Policy
- Pablo Lizarreta Barrios, Halal Certification and Labelling Requirements and the TBT Regime: A Case Study of the Indonesian Halal Act 33/2014
- İlke Göçmen, Revealing the Potential of the EU – Turkey Customs Union: Case C-65/16, Istanbul Lojistik, 19 October 2017, ECLI:EU: C:2017:770
- Isidora Maletić, A Very Specific and Exhaustive Harmonization of Energy from Renewable Sources: C-549/15, E.ON Biofor Sverige AB v. Statens Energimyndighet  ECLI:EU:C:2017:490
- Benjamin Jan, Mutual Recognition’s Failure in the Light of Free Movement of Food Supplements: Judgment of the CJEU, 27 April 2017, Noria Distribution SARL (Case C-672/15)