New Issue: Journal of International Dispute Settlement

The latest issue of the Journal of International Dispute Settlement (Vol. 9, no. 1, March 2018) is out. Contents include:

• Special Issue: Shakespeare and International Dispute Settlement
• Thomas Schultz & François Ost, Shakespearean Legal Thought in International Dispute Settlement
• Andrea Bianchi, International Adjudication, Rhetoric and Storytelling
• Barbara Lauriat, Literary and Dramatic Disputes in Shakespeare’s Time
• Gary Watt, Sovereigns, Sterling and ‘Some Bastards too!’: Brexit Seen from Shakespeare’s King John
• Ian Ward, The ‘Great Matter’ of King Henry VIII
• Maria Aristodemou, To Be or Not to Be a (Dead) Father
• Lorenzo Zucca & Lord Judge, Measure for Measure on Trial—A Shakespearean Mock Trial

Langford: International Courts and Public Opinion

Malcolm Langford (Univ. of Oslo - Law) has posted International Courts and Public Opinion. Here's the abstract:

Can international courts impact public opinion? There are many reasons to think not. The growing prominence of international courts in the domestic public sphere requires though reconsideration of this presumption. This experimental study takes the existing US-centric research on the effects of courts on public opinion a step further by testing whether the level of a court matters, whether domestic, international or even foreign. A panel of respondents in Norway were tested as to their views on prostitution laws and family rights to asylum after the random informational ‘treatments’ based on the decisions and reasoning of different courts. The overall shift in opinion was statistically significant but only when respondents received a double treatment of reasoning and judicial authority. Surprisingly, respondents receiving this information moderated their opinions regardless of the identity of the court. Similar impacts were generated when courts were replaced with non-judicial but authoritative actors such as the United Nations or Amnesty International. Nonetheless, the results, for at least Norway, lend support to a transpositional theory of international courts while casting doubt on ideas of credible commitment. It is the endorsement by a court not the type of a court that it is critical for inflecting public opinion.

Deplano: Building Pragmatic Utopias: The 'Other' Security Council, International Law and the United Nations Dream

Rossana Deplano (Univ. of Leicester - Law) has posted Building Pragmatic Utopias: The 'Other' Security Council, International Law and the United Nations Dream (German Yearbook of International Law, forthcoming). Here's the abstract:

This article revisits certain aspects of the foundational idea of international cooperation within the framework of the United Nations. By providing an empirically-grounded analysis of the use of international law by the Security Council, the article aims at redesigning the breadth, scope and limits of the United Nations utopian mission of creating a world without war. An argument is made that despite significant legal and political limitations, the United Nations is delivering an increasingly humanized type of international cooperation. Hence, after seven decades it is still on track eventually to deliver a pragmatic utopia.

Drahozal: Parties and Affected Others: Signatories and Nonsignatories to International Arbitration Agreements

Christopher R. Drahozal (Univ. of Kansas - Law) has posted Parties and Affected Others: Signatories and Nonsignatories to International Arbitration Agreements (in Cambridge Compendium on International Commercial and Investment Arbitration, forthcoming). Here's the abstract:

This chapter discusses the parties to international arbitration agreements. Part I addresses the treatment of ‘parties’ in the New York Convention and national arbitration laws governing international commercial arbitration, and the ICSID Convention governing (many) investor-State arbitrations. Part II examines the theories under which affected others — that is, nonsignatories to an international arbitration agreement — might nonetheless be bound, likewise first in international commercial arbitration and then in investor-State arbitration. Finally, Part III discusses the available empirical evidence on the parties to international commercial arbitration and investor-State arbitration proceedings.

Puig: Network Analysis and the Sociology of International Law

Sergio Puig (Univ. of Arizona - Law) has posted Network Analysis and the Sociology of International Law (in Research Handbook on the Sociology of International Law, A. Lang & M. Hirsch eds., forthcoming). Here's the abstract:

Social scientists, including economists, sociologists, and anthropologists, have relied for decades on tools derived from network analysis. These tools, and key findings obtained through their application, are only beginning to be applied to the study of law and legal institutions, including international law. In this contribution, I briefly explain the origins, basic premises, and operation of network analysis, as well as its possible application to specific international legal fields. I briefly revisit its application to international arbitration and discuss the main limitations of this methodological approach to understanding the role of social dynamics in international law’s making, interpretation, and enforcement. While optimistic about the growing use of this research strategy for uncovering the sociology of international law, I argue that we should also be cautious of the normative and explanatory conclusions derived from the application of network analysis. In particular, network analysis’s application may be problematic if detached from careful understanding of the specific contexts in which legal institutions operate.

Pearlstein: Armed Conflict at the Threshold?

Deborah N. Pearlstein (Yeshiva Univ. - Cardozo School of Law) has posted Armed Conflict at the Threshold? (Virginia Journal of International Law, forthcoming). Here's the abstract:

Sixteen years into the United States’ engagement in what it has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting, without regard to particular self-defensive need or immediacy of threat, is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the wisdom of this categorical switch, critics raise a range of concerns: the line dividing which circumstances count as “armed conflict” and which do not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. This Essay contends that while the criticisms are important, they fail on their own terms to justify the abandonment of “armed conflict” as a proxy determinant of first-resort killing. More fundamentally, while classification critics recognize acutely the many changes in the nature of conflict since World War II, they attend far less to systemic changes in the development of international law during that time. Taking the “armed conflict” classification debate as a case study, this Essay highlights how critiques of international law’s substance may continue to embrace increasingly outmoded, World War-II era assumptions about the inadequacy of the international legal system to address problems inherent in all law: interpretive uncertainty, law violation, and social change.

Beard: The Principle of Proportionality in an Era of High Technology

Jack M. Beard (Univ. of Nebraska - Law) has posted The Principle of Proportionality in an Era of High Technology (in Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, Christopher M. Ford & Winston S. Williams eds., forthcoming). Here's the abstract:

This chapter, in the forthcoming book Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare (published by Oxford University Press) explores the application of a key principle of the law of armed conflict – proportionality – in the context of new and emerging weapon systems and methods of warfare. The relentless pursuit of new military technologies by states continues to yield expanding lists of technology-related issues for lawyers to consider in applying the law of armed conflict in complex battlespaces on land, sea, air, space, and in cyberspace. Foremost among these issues is the challenge presented by the principle of proportionality, requiring military forces to refrain from causing excessive damage to civilians and civilian objects when attacking military objectives. New weapon systems in complex battlespaces continue to increasingly force lawyers and decision makers to revisit, reevaluate and struggle in new contexts with the “equitable balance between humanitarian requirements and the sad necessities of war.” Some technological developments may, however, also present opportunities for the principle of proportionality to achieve greater relevance to the conduct of armed conflicts and even contribute to improved compliance by states. To illustrate these challenges and opportunities, this chapter examines the application of the principle of proportionality in modern armed conflicts with respect to several critical yet still evolving military technologies: unmanned aerial vehicles, autonomous weapon systems, cyber capabilities, and outer space technologies.

Böse, Bohlander, Klip, & Lagodny: Essays in Honour of Wolfgang Schomburg

Martin Böse (Universität Bonn - Law), Michael Bohlander (Durham Univ. - Law), André Klip (Maastricht Univ. - Law) & Otto Lagodny (Universität Salzburg - Law) have published Justice Without Borders: Essays in Honour of Wolfgang Schomburg (Brill | Nijhoff 2018). Contents include:

• Kai Ambos, European Criminal Law and Brexit
• David Baragwanath, Energising the Law’s Response to Terrorism: The Decision of the Appeals Chamber of the Special Tribunal of Lebanon and the Need for Further Action
• Martin Böse, The Transnational Dimension of the ne bis in idem Principle and the Notion of res iudicata in the European Union
• Michael Bohlander, “The Global Panopticon”: Mass Surveillance and Data Privacy Intrusion as a Crime against Humanity?
• Helen Brady & David Re, Environmental and Cultural Heritage Crimes: The Possibilities under the Rome Statute
• Albin Eser, The Role of Comparative Law in Transnational Criminal Justice
• Sabine Gless, Protecting Human Rights through Exclusionary Rules? Highlights on a Conflict in Criminal Proceedings from a Comparative Perspective
• Florian Jeßberger, Implementing Kampala: The New Crime of Aggression under the German Code of Crimes against International Law
• Michael G. Karnavas, The Serendipitous Nature of the ICC Trial Proceedings Risks the ICC’s Credibility
• Stefan Kirsch, Vom eingeschränkten Nutzen strafrechtlicher Urteile für die Historiographie: Ein Beitrag zum Zustandekommen des ersten deutschen Urteils wegen Völkermordes in Ruanda
• André Klip, Fundamentally Dissenting Judge Schomburg
• Otto Lagodny, Combatting Terrorism without Secret Services?
• Howard Morrison, Judging in International Criminal Cases: Challenges, Aspirations and Duties
• Jan Christoph Nemitz, 25 Years of International Criminal Justice: Ebb and Flow or Rise and Fall?
• Ines Peterson, International Criminal Liability for Incitement and Hate Speech
• Herwig Roggemann, Die Konfliktregion Südosteuropa und das internationale und nationale Strafrecht
• William A. Schabas, International Prosecution of Sexual and Gender-Based Crimes Perpetrated during the First World War
• Matthias Schuster, The ICTY’s Šešelj Trial: Taking Stock of a Disaster

Ntovas: Interpreting the Dispute Settlement Limitation on Fisheries after the Chagos Marine Protected Area Arbitration

Alexandros Ntovas (Queen Mary, Univ. of London - Centre for Commercial Law Studies) has posted Interpreting the Dispute Settlement Limitation on Fisheries after the Chagos Marine Protected Area Arbitration. Here's the abstract:

The present chapter places its focus on the jurisdictional aspects of the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18th March 2015, by examining the interpretation of the fishery limitation under article 297(3)(a) of the 1982 UN Convention on the Law of the Sea, in the context of the fourth submission made by Mauritius, and the manner in which the UK subsequently objected thereto. The chapter views that in relation to the 1995 UN Fish Stocks Agreement article 32, incorporating by reference the fishery limitation, the pronouncements of the Tribunal’s majority on this matter have provided a rather dubious legal authority that may only be seen as an inconsistent obiter dictum for future reference.

Madsen, Cebulak, & Wiebusch: Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts

Mikael Madsen (Univ. of Copenhagen - Law), Pola Cebulak (Univ. of Copenhagen - iCourts), & Micha Wiebusch (Univ. of Antwerp - Institute of Development Policy and Management) have posted Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts (International Journal of Law in Context, forthcoming). Here's the abstract:

The article investigates and theorises different forms and patterns of resistance to international courts and develops an analytical framework for explaining their variability. In order to make intelligible the resistance that many international courts are currently facing, the article first unpacks the concept of resistance. It then introduces a key distinction between mere pushback from individual member states or other actors, seeking to influence the future direction of a court’s case law, and actual backlash – a critique triggering significant institutional reform or even the dismantling of tribunals. On the basis on the proposed theoretical framework, the article provides a roadmap for empirical studies of resistance to ICs, considering the key contextual factors necessary to take into account in such studies.

Call for Papers: Access to International Adjudication

The Interest Group on International Courts and Tribunals of the European Society of International Law has issued a call for papers for a workshop immediately prior to the 2018 ESIL Annual Conference in Manchester. The theme is: "Access to International Adjudication." Here's the call:

The Interest Group on International Courts and Tribunals is organizing a Workshop on Access to International Adjudication, as a side-event to the ESIL 2018 Annual Conference in Manchester. The Workshop will take place at the University of Manchester on 13th September 2018, 9-12.30 am.

The topic: International courts and tribunals operate on the basis of separate constituent instruments, displaying significant differences specifically as regards the rules governing jurisdiction and access to court. Moreover, this aspect of international adjudication and arbitration is possibly the one that least reflects the fair trial model developed with reference to domestic courts, as neither States nor non-State actors enjoy in principle a right of access to international adjudication. The workshop intends to explore if and in which respect this traditional assumption based on the principle of consent still holds true, including as regards the possibility for relevant stakeholders to present their views in proceedings pending between different parties. It also aims at discussing accessibility of international courts and tribunals in different perspectives: notably with reference to the actual possibility for potential parties to exercise their right of access to a court; to be proactively involved in the proceedings and in a position to understand their outcome; as well as the possibility for individuals and entities that are not involved in international proceedings to be aware of their existence and to obtain information about them. A specific focus will be on the use of languages in international adjudication; abstracts may concern also other topics including (but not limited to) transparency, financial support to the parties and the statement of reasons on which decisions are grounded. Proposals addressing such issues with reference to specific judicial or arbitral institutions or engaging in a comparative analysis between different institutions are welcome. All Members of the Interest Group are invited to submit abstracts of up to 500 words.

Deadline for submitting abstracts: April 15, 2018.

Abstracts should be sent to esil.igict@mpi.lu

The following information must be provided with each abstract:

• The author’s name and affiliation
• The author’s CV, including a list of relevant publications
• The author’s contact details, including email address and phone number

Authors of selected abstracts will be notified by April 30, 2018.

Please note: unfortunately the Interest Group can’t provide financial support to selected speakers, who will participate in the workshop at their own cost.

We are looking forward to receiving your abstracts,

Kind regards,
Serena Forlati, Holger Hestermeyer and Hélène Ruiz Fabri

________________________________________

Le Groupe de réflexion sur les cours et tribunaux internationaux organise un atelier sur l'accès au règlement international des différends, en marge de la conférence annuelle de l'ESIL 2018 à Manchester. L'atelier se tiendra à l'Université de Manchester le 13 septembre 2018, de 9 h à 12 h 30.

Le sujet: Les cours et tribunaux internationaux fonctionnent sur la base d'instruments constitutifs distincts, présentant des différences significatives en ce qui concerne spécifiquement les règles régissant la compétence et l'accès aux tribunaux. En outre, cet aspect du règlement international des différends et de l'arbitrage international est peut-être celui qui reflète le moins le modèle de procès équitable développé en référence aux tribunaux nationaux, car ni les États ni les acteurs non étatiques ne jouissent en principe d'un droit d'accès au juge international. L'atelier vise à explorer si et dans quelle mesure cette hypothèse traditionnelle fondée sur le principe du consentement reste vraie, y compris en ce qui concerne la possibilité pour les parties prenantes concernées de présenter leurs points de vue dans des procédures pendantes entre différentes parties. Il vise également à débattre de l'accessibilité aux cours et tribunaux internationaux sous différents angles: notamment en ce qui concerne la possibilité pour les parties potentielles d'exercer leur droit d'accès à un tribunal; d'être impliqué de manière pro-active dans le déroulement de la procédure et en mesure de comprendre leurs résultats; ainsi que la possibilité pour les personnes et les entités qui ne sont pas impliquées dans des procédures internationales d'être au courant de leur existence et d'obtenir des informations à leur sujet. Une attention particulière sera accordée à l'utilisation des langues dans le processus de règlement international des différends; les propositions de contribution peuvent également porter sur d'autres sujets, y compris (mais sans s'y limiter) à la transparence, au soutien financier aux parties et l'exposé des motifs sur lesquels les décisions sont fondées. Les propositions traitant de ces questions en référence à des institutions juridictionnelles ou arbitrales spécifiques ou se livrant à une analyse comparative entre différentes institutions sont les bienvenues.

Tous les membres du groupe de réflexion sont invités à soumettre des résumés de 500 mots maximum.

Date limite de soumission des résumés: le 15 avril 2018.

Les résumés doivent être envoyés à l'adresse esil.igict@mpi.lu Les informations suivantes doivent être fournies avec chaque résumé:

• Le nom et l'affiliation de l'auteur(e)
• Le CV de l'auteur(e), y compris une liste des publications pertinentes
• Les coordonnées de l'auteur(e), y compris l'adresse e-mail et le numéro de téléphone

Les auteurs des résumés sélectionnés seront informés le 30 avril 2018.

Veuillez noter: le groupe de réflexion ne peut malheureusement pas fournir un soutien financier aux conférenciers sélectionnés, qui devront participer à l'atelier à leurs frais.

Nous sommes impatients de recevoir vos propositions,

Cordialement,
Serena Forlati, Holger Hestermeyer et Hélène Ruiz Fabri

Bar-Gill & Blum: Defenses

Oren Bar-Gill (Harvard Univ. - Law) & Gabriella Blum (Harvard Univ. - Law) have posted Defenses (Texas Law Review, forthcoming). Here's the abstract:

Effective defenses that are designed to protect civilians in war have significant implications for policy planning, military strategy, international relations, domestic politics and economics. Defenses can increase or decrease overall humanitarian welfare.

Surprisingly, existing legal scholarship has focused almost exclusively on offensive action, failing to consider the effects of defenses on the strategic interactions between armed rivals or the humanitarian consequences of defenses. The implications of defenses for the interpretation and application of the international legal rules on the use of force have also gone largely unexplored. We set out to fill this significant gap.

We study the operation of defensive systems in both asymmetric rivalries and symmetric rivalries, and consider the interplay between defenses and offensive measures. We analyze how defensive systems are likely to affect parties’ wartime conduct and the potential consequences for the welfare of civilians on both sides of the conflict. A central motivating observation is that defenses have the potential of safeguarding not only the lives of the defending party’s civilians but also those on the opposing side. Our analysis further considers how international law, and especially the principle of proportionality, might affect parties’ choices with regard to investments in defenses. Counter-intuitively, we caution that under some circumstances, an overly-restrictive application of the principle of proportionality might deter investment in defenses, thereby decreasing overall humanitarian welfare.

To make our theoretical models more concrete, we draw on several real-world examples: the Israeli anti-ballistic missile system, Iron Dome; the deployment of anti-missile defenses by Japan and the United States to meet the threat from North Korea; and the race between the two Cold War protagonists to develop superior inter-continental anti-ballistic missiles systems, which eventually lead to the 1972 ABM Treaty.

Job Opening: Manchester (Fellowship)

The University of Manchester is seeking to appoint a Presidential Fellowship in International Law. Here's the announcement:

The University of Manchester wishes to appoint a Presidential Fellowship in International Law. The successful candidate must have the ability to make a significant contribution to, and actively participate in, the work of the Manchester International Law Centre. Applications are sought from early-career academics who can deliver world-leading research and teaching. They should have a high academic standing, a growing reputation in research, and the specialist knowledge needed to develop cutting-edge research programmes. This is currently envisaged as a four-year appointment. The Presidential Fellow will do no or only minimal teaching in the first year and minimal teaching in the second year. In subsequent years, teaching commitments shall increase. Following a four-year probationary period, and subject to satisfactory performance, the Fellow will transfer to an appropriate academic contract.

Successful candidates must have a relevant PhD (or equivalent) awarded prior to commencing the appointment. and this must not have been awarded more than five years before 3 April 2018, which is the closing date for applications. Further details may be found here. Inquiries may be directed to Professors Jean d’Aspremont and Iain Scobbie at (milc[at]manchester.ac.uk) with the title “presidential fellowship”.

Alston: The Populist Challenge to Human Rights

Philip Alston (New York Univ. - Law) has posted The Populist Challenge to Human Rights (Journal of Human Rights Practice, Vol. 9, no. 1, pp. 1–15, 2017). Here's the abstract:

The nationalistic, xenophobic, misogynistic, and explicitly anti-human rights agenda of many populist political leaders requires human rights proponents to rethink many longstanding assumptions. There is a need to re-evaluate strategies and broaden outreach, while reaffirming the basic principles on which the human rights movement is founded. Amongst the challenges are the need to achieve more effective synergies between international and local human rights movements and to embrace and assert economic and social rights as human rights rather than as welfare or development objectives. It will be crucial to engage with issues of resources and redistribution, including budgets, tax policy, and fiscal policies. There is a need for collaboration with a broader range of actors, to be more persuasive and less didactic, and to be prepared to break with some of the old certainties. Academics should pay attention to the unintended consequences of their scholarship, and everyone in the human rights movement needs to reflect on the contributions each can make.

Jaremba & Mayoral: The Europeanization of national judiciaries: definitions, indicators and mechanisms

Urszula Jaremba (Utrecht Univ. - Law) & Juan A. Mayoral (Univ. of Copenhagen - iCourts) have posted The Europeanization of national judiciaries: definitions, indicators and mechanisms (Journal of European Public Policy, forthcoming). Here's the abstract:

The article is underpinned by the idea that the national courts/judges are expected to act as decentralized European Union (EU) judges. This is motivated by the fact that the general knowledge concerning the impact of EU law on the functioning of national courts as EU judges and the process of Europeanization of national judiciaries is still somewhat scattered and fragmented. The central ambition of this article is to provide a theoretical framework that would contribute to the understanding of Europeanization of judiciaries by: (1) offering a definition and theoretical developments useful for the study of Europeanization and its dynamics; (2) exploring the diverse indicators to operate the concept; and (3) providing explanations on how Europeanization might happen by identifying the distinct mechanisms potentially in play. By and large, the article proposes theoretical and empirical developments, which will facilitate embracing the project of constructing a composite framework for the socio-legal study and measurement of the Europeanization of national courts.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 47, 2018) is out. Contents include:

• ‘No Man is an Island’, but… what is an Island?
• Introduced by Andrea Caligiuri and Enrico Milano
• Warwick Gullet, The South China Sea Arbitration’s contribution to the concept of juridical islands
• Irini Papanicolopulu, The land dominates the sea (dominates the land dominates the sea)

Call for Papers: Consumers or Producers of international law? Non-European experiences with the law of nations in comparative perspective

The Interest Group on the History of International Law of the European Society of International Law has issued a call for papers for a workshop on "Consumers or Producers of international law? Non-European experiences with the law of nations in comparative perspective," to take place immediately prior to the 2018 ESIL Annual Conference in Manchester. Here's the call:

The path from the European law of nations to a universal system of international law has attracted wide scholarly attention in the past decade. A variety of approaches have challenged the narrative of a European system that simply expands and covers most of the planet in the late 19th century. For example, scholars identifying with the TWAIL movement (Third world approaches to international law) have criticized modern international law as a product of western imperialism and colonialism. Building from this critique, other scholars have begun to ask how non-European conceptions and influences shaped and re-formed the European law of nations on its path towards becoming a global system. How can we read non-European jurists, lawyers, state leaders and peoples as producers, not just consumers, of international law?

Politicians, lawyers and activists from non-European countries are now seen as more than mere vessels through which the tradition of the European law of nations was stamped into new contexts. Rather, scholars now explore the impact of local elites in shaping the way international law was received into their regions. But to what extent were they successful in shaping international law as a whole? We need a stronger analytical framework to explore the broader picture and a more precise understanding of how each region’s or nation’s encounter with international law shaped both their own experience and aspects of the international system.

The Interest Group for the History of International Law wants to support this emerging interest in contrasting and comparing regional experiences and invites scholars at every stage of their career to share insights on any angle of these developments, without geographic or temporal limitation.

Possible questions include:

• What were the legacies of those regions and civilisations that had their own systems and traditions of law prior to the imperial encounter with Europe and its law of nations? Are there common patterns in how regional or imperial systems responded to their encounter with European international law, perhaps shaped by shared history, culture or religion, or was each experience specific and unique?
• If elements of Roman law or the European feudal order are recognized as precursors to features of modern international law, should extra-European legal systems be looked at in a similar way?
• Can we detect a difference between international legal doctrine and state practice in analyzing these encounters?
• What were the roles of specific fields of law, be it the acquisition or transfer of territory, the settlement of international disputes, the norms and expectations regarding the conduct of war and the conclusion of peace agreements, the legal status and experiences of foreign merchants, officials or travelers or the process of entering the emerging universal system of public and secret diplomacy?

Abstracts must be submitted no later than 15 March 2018 to esilighil@gmail.com on behalf of the Steering Committee of the Interest Group, which shall collectively supervise the blind peer-review process of the abstracts. Applicants will be notified on the outcome of the selection process by 30 March 2018.

Alschner, Panford-Walsh, & Skougarevskiy: What Can the Negotiations of NAFTA 1.0 Teach Us About the Fate of NAFTA 2.0?

Wolfgang Alschner (Univ. of Ottawa - Law), Rama Panford-Walsh (Univ. of Ottawa), & Dmitriy Skougarevskiy (European Univ. at St. Petersburg) have posted What Can the Negotiations of NAFTA 1.0 Teach Us About the Fate of NAFTA 2.0? Here's the abstract:

To inform current efforts to renegotiate the North American Free Trade Agreement (NAFTA), this paper compiles a digital negotiation history of 42 NAFTA Chapter 11 drafts – the only NAFTA preparatory texts publicly available. Using text-as-data techniques, we distill four lessons learned from these negotiations. First, no country “won” the initial NAFTA negotiation. Instead, in a give-and-take process, each NAFTA party had to let go of some of its original preferences. Second, no alliances were formed during the initial NAFTA negotiations. Rather, each country championed its own interests. Third, distances between initial country positions did not determine how quickly consensus was reached. Political will to close the deal thus mattered more than initial disagreement. Finally, countries tackled Chapter 11 substance (Section A) first building trust before moving on to the more controversial investor-state arbitration provisions (Section B). Applying these lessons to current renegotiations, parties should stay away from a “winner-takes-it-all” mentality, avoid alliance-building, recognize that political will matters more than poison pills, and start negotiations with low-hanging fruits before tackling controversial issues.

Baccini & Chow: The Politics of Preferential Trade Liberalization in Authoritarian Countries

Leonardo Baccini (McGill Univ.) & Wilfred M. Chow (Univ. of Hong Kong) have published The Politics of Preferential Trade Liberalization in Authoritarian Countries (International Interactions, Vol. 44, no. 2, pp. 189-216, 2018). Here's the abstract:

While autocracies constitute a third of all signatories of preferential trade agreements (PTAs), very little research has explained why some autocrats join PTAs while others do not. We argue that this variation reflects the leader’s degree of vulnerability to elite-led coups during leadership change–whether a leader enters power legally or extralegally. New extralegal leaders are more vulnerable than new legal leaders, which encourages extralegal leaders to use PTAs to both build support from exporters and pressure disloyal importers. We test our hypotheses using a dyadic data set of 120 autocracies from 1960 to 2014. Our results show that extralegal leaders sign more and deeper PTAs than legal leaders. Moreover, we find that extralegal leaders with a high risk of coups are more likely to form deep PTAs than extralegal leaders with a low risk of coups. In line with our argument, we also provide evidence that extralegal leaders sign trade agreements that are likely to be enforced. Our article has implications for the political economy of trade and for development studies.

Aust: The Good Urban Citizen

Helmut Aust (Freie Universität Berlin - Law) has posted The Good Urban Citizen (in International Law's Objects, Jessie Hohmann & Daniel Joyce eds., forthcoming). Here's the abstract:

This chapter assesses how the global sphere is connected to the local level through a reflection of a poster on the streets of Atlanta. This poster indicates what it means to be a “good urban citizen”. The contribution argues that this poster with its call to behave reasonably and sustainably is an example of how global norms of good urban governance filter through to the local level. The poster is thus an artefact of the implications of international law on the ground. At the same time, it is connected with the growing importance of cities as global actors. Through networks such as the “C40 – Climate Leadership Group” cities aspire to shape the global norms which are determining what global urban governance means today.

Call for Papers: Postgraduate Colloquium in Critical International Law

The Centre for the Study of Colonialism, Empire and International Law at SOAS University of London and Durham Law School’s Law and Global Justice research cluster have issued a call for papers for a Postgraduate Colloquium in Critical International Law, to be held at SOAS in London on September 20, 2018. Here's the call:

Postgraduate Colloquium in Critical International Law

SOAS University of London

20th September 2018

Call for Papers

The Centre for the Study of Colonialism, Empire and International Law at SOAS University of London and Durham Law School’s Law and Global Justice research centre are delighted to launch the Postgraduate Colloquium in Critical International Law to be held at SOAS in London on 20th September 2018.

The colloquium will focus on postgraduate research in international law that takes a critical approach (broadly understood). The organisers are keen to hear from anyone taking an innovative or in some sense alternative approach to the study of international law. Relevant approaches might include, for example: feminism/gender studies, queer theory, critical race theory, Marxism, TWAIL/(post-)colonial approaches, international legal history/history and international law, psychoanalysis, structuralism and post-structuralism, post-modernism, law and literature, law and art, realism, law and science, and/or empirical approaches.  

The aim of the colloquium is to draw together junior scholars undertaking research in these fields and to provide a supportive and collaborative environment for the exchange of cutting-edge, heterodox, ideas in the realm of public international law. Attendees will present their research and receive feedback and commentary from a more established scholar in the field. Attendees should be registered on a University MPhil/PhD programme (or other research degree) but need not be based within law faculties. In particular, students researching public international law in related disciplines such as international relations, politics, philosophy, history, gender studies, sociology or other areas are encouraged to apply.

Application Procedure

Please submit the following by email to both Dr. Matthew Nicholson (Durham Law School) at matthew.c.nicholson@durham.ac.uk and Dr. Kate Grady (SOAS University of London) at kate.grady@soas.ac.uk:

• Abstract of the research paper to be presented at the colloquium (no more than one page of A4)
• Short CV (no more than one page of A4) focussing on key research achievements to date (conference presentations, publications etc).

The deadline for receipt of applications is 15th April 2018.

We aim to notify successful applicants by the end of May 2018. Attendees will be required to provide a summary of the argument they wish to present at the colloquium (no more than 2,500 words) by 20th August 2018 to give the commentators time to prepare. The colloquium will take place at SOAS University of London on 20th September 2018. There will be no charge to attend the colloquium but we regret we are unable to provide financial assistance with transport and accommodation.

Lixinski: Confederate Monuments and International Law

Lucas Lixinski (Univ. of New South Wales - Law) has posted Confederate Monuments and International Law (Wisconsin International Law Journal, forthcoming). Here's the abstract:

This article engages with the controversy around the removal of Confederate Monuments in the US, from the perspective of international law. While the issue is prima facie domestic, international law offers a laboratory to consider the multiple tensions a step removed from their current charged and emotional environment. The article argues that, for the most part, international law supports maintaining the status quo with respect to the monuments, particularly through its preference for all-or-nothing responses. However, read from the perspective of transitional justice, greater nuance and pragmatism is added to the debate, leading to more constructive responses that can actually live up to international law's promises with respect to the fields affected by the Confederate Monuments controversy.

New Issue: Transnational Environmental Law

The latest issue of Transnational Environmental Law (Vol. 7, no. 1, March 2018) is out. Contents include:

• Editorial
• Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Dan Farber, Bruce Huber, & Josephine van Zeben, New Challenges for Transnational Environmental Law: Brexit and Beyond
• Symposium: Rights-Based Approaches to Climate Change
• Sam Adelman & Bridget Lewis, Symposium Foreword: Rights-Based Approaches to Climate Change
• Sam Adelman, Human Rights in the Paris Agreement: Too Little, Too Late?
• Jacqueline Peel & Hari M. Osofsky, A Rights Turn in Climate Change Litigation?
• Bridget Lewis, The Rights of Future Generations within the Post-Paris Climate Regime
• Articles
• Chris Hilson, The Impact of Brexit on the Environment: Exploring the Dynamics of a Complex Relationship
• Benoit Mayer, Construing International Climate Change Law as a Compliance Regime
• Barış Soyer, George Leloudas, & Dana Miller, Tackling IUU Fishing: Developing a Holistic Legal Response
• Markos Karavias, Interactions between International Law and Private Fisheries Certification

Aust: "The System Only Dreams in Total Darkness": The Future of Human Rights Law in the Light of Algorithmic Authority

Helmut Aust (Freie Universität Berlin - Law) has posted "The System Only Dreams in Total Darkness": The Future of Human Rights Law in the Light of Algorithmic Authority (German Yearbook of International Law, forthcoming). Here's the abstract:

The increasing use of big data and machine learning algorithms raises several legal issues. Automated decision-making potentially undermines the very concept of human agency which is central to human rights law. Human agency enables a communication process between those bound by human rights and the rights-holders. To the extent that decision-making processes become fully automatic and autonomous, a form of algorithmic authority would arise. While human rights law is not silent with respect to such processes, doctrinal attempts to come to terms with this development are not very promising. Instead, a political process is required in order to establish a legal framework for the exercise of algorithmic authority.

Berner: Subsequent Agreements and Subsequent Practice in Domestic Courts

Katharina Berner has published Subsequent Agreements and Subsequent Practice in Domestic Courts (Springer 2017). Here's the abstract:

The book analyses how subsequent agreements and subsequent practice as defined in articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties have been applied in interpretative reality. Based on the jurisprudence of domestic courts, it elucidates the distribution of power between the parties to a treaty and other actors. To start with, the book traces the origins of subsequent agreements and subsequent practice and places them in their broader legal context. Next, it explores the legal status and effects of subsequent agreements and subsequent practice, explains why such agreements are only rarely used, and defines the relevance of non-party practice in the interpretative process. In closing, it critically examines how domestic courts have approached the normative heart of subsequent practice, i.e. the notion of ‘agreement’. Thus, this book ultimately challenges the traditional assumption that the parties are the joint masters of the treaty.

Hamilton: User-Generated Evidence

Rebecca J. Hamilton (American Univ. - Law) has posted User-Generated Evidence. Here's the abstract:

Around the world, people are using their smartphones to document atrocities. Smartphone apps designed to allow Users to record material that will meet evidentiary standards are now freely available. User-Generated Evidence is the first Article to address this important development in international criminal law. It identifies three categories of concern: (i) User security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones, and/or shifting existing problems from traditional actors, who have institutional backing, to individual Users without such protections.