There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century.
Since the end of the Cold War, however, trade law and policy has become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China.
This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter – and ultimately that it has becoming unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the Presidency, agreements liberalizing trade rules became more viable – but at the cost of the political sustainability that comes with greater congressional involvement.
Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued.
Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox international agreements in the commercial context, and the increasing conflict between trade agreements and state and local authority, which we term “trade federalism.”
Saturday, March 17, 2018
Call for Papers: Contemporary Challenges to International Law and Policy on Sustainable Development, Energy, Climate Change, Environmental Protection, Intellectual Property and Technology Transfer
Friday, March 16, 2018
- Francesco Ducci, Cartel Criminalization in Europe: Addressing Deterrence and Institutional Challenges
- George K. Foster, Community Participation in Development
- Samuli Seppänen, Chinese Legal Development Assistance: Which Rule of Law? Whose Pragmatism?
- Barbara Stark, When Genealogy Matters: Intercountry Adoption, International Human Rights, and Global Neoliberalism
Thursday, March 15, 2018
The practice of rendition — the involuntary transfer of an individual across borders without recourse to extradition or deportation proceedings — is not new. Indeed, the practice of snatching a defendant for trial — “rendition to justice” — has been used by governments for more than a century. Although rendition has been controversial in human rights circles, it has been celebrated by many as crucial in the fight against impunity for grave crimes. Former U.S. President George W. Bush was criticized for the “novel” practice of “extraordinary rendition” — the transfer of suspects to locations known for the systematic use of torture, including secret CIA prisons (this set of practices is hereinafter referred to as the “Extraordinary Rendition Program”). U.S. officials at the time defended the practice, relying on justifications developed to support “rendition to justice” and arguing that the U.S. Extraordinary Rendition Program was legal. Despite these justifications, international human rights bodies and intergovernmental organizations including the Council of Europe, the European Union, and human rights bodies of the United Nations, determined that the extraordinary form of rendition was unlawful under human rights law.
Soon after former President Barack Obama was inaugurated in January 2009, he promised to end the most severe human rights violations carried out by the U.S. government in the name of fighting terrorism, including the use of torture and secret detention facilities. While this move was a positive signal that the United States planned to bring its practice into line with international norms, the Obama Administration in fact retained a number of problematic tools developed by previous Administrations. Although Obama signed executive orders ending the use of torture and secret detention, he did not order the cessation of all informal transfers. Nor did he pursue accountability for those who designed and implemented the Extraordinary Rendition Program. Instead, his Administration continued to quash rendition-related cases with the argument that such cases dangerously threatened to reveal “state secrets.” Although it is impossible to know precisely how many informal transfers were carried out by the Obama administration, the number plainly was significantly smaller than those conducted by the Bush Administration. Instead, President Obama increased the use of drones to target and kill suspected terrorists outside the United States, and continued the use of proxy detention in the name of fighting terrorism.
The Trump Administration presents alarming new risks: in addition to the anti-terrorism tools left in place by the Obama administration, President Trump has promised to use torture and said he would fill Guantánamo Bay with “bad dudes” captured in the fight against al-Qaeda and ISIS. While President Trump’s most disturbing campaign promises have not yet come to fruition, the administration’s lack of transparency surrounding counter-terrorism measures, the on-going U.S. military engagements in Afghanistan, Syria, and Iraq, and the hunt for Al Qaeda in Yemen present opportunities for the U.S. government to return to — or worsen — the abusive practices it pioneered as part of the Extraordinary Rendition Program. With the publication of the National Security Strategy in December 2017, the Trump Administration renewed its commitment to fighting terrorism in aggressive terms with little consideration for human rights.
The threat that counter-terrorism measures will become more abusive is made more stark by the rise in nationalist governments pursuing protectionist policies with weakening regard to human rights guarantees. With governments moving to close borders, deport non-nationals, denaturalize their own citizens, and use informal means to transfer suspects, the mechanisms through which a state may transfer custody of an individual — and the permissible purposes for such handovers — have escaped careful scrutiny. In this era of global realignment, the human rights principles guiding inter-state cooperation in such matters must be reasserted. This chapter examines the legal norms governing informal transfers and detentions in this new era and sets out a minimum standard that must be upheld whenever a state renders an individual, no matter how extraordinary the context.
- Symposium: Roughan-Halpin: In Pursuit of Pluralist Jurisprudence
- Victor V. Ramraj, The elusive quest for precision in a messy pluralist reality
- Michael W. Dowdle, Do we really need a ‘pluralist jurisprudence’?
- Kirsty Gover, A fugitive jurisprudence?
- Jason Grant Allen, Encyclopaedia, genealogy and tradition in pursuit of pluralist jurisprudence
- Richard Collins, In pursuit of method in pluralist jurisprudence: what exactly is wrong with ‘non-pluralist jurisprudence’?
- Nicole Roughan & Andrew Halpin, A response
- Lorenzo Cotula, The state of exception and the law of the global economy: a conceptual and empirico-legal inquiry
- Derek McKee, The platform economy: natural, neutral, consensual and efficient?
- Heidrun Bohnet, Fabien Cottier, & Simon Hug, Conflict-induced IDPs and the Spread of Conflict
- Sara Kijewski & Markus Freitag, Civil War and the Formation of Social Trust in Kosovo: Posttraumatic Growth or War-related Distress?
- Karolina Milewicz, James Hollway, Claire Peacock, & Duncan Snidal, Beyond Trade: The Expanding Scope of the Nontrade Agenda in Trade Agreements
- William Spaniel & Peter Bils, Slow to Learn: Bargaining, Uncertainty, and the Calculus of Conquest
- Daniel Balliet, Joshua M. Tybur, Junhui Wu, Christian Antonellis, & Paul A. M. Van Lange, Political Ideology, Trust, and Cooperation: In-group Favoritism among Republicans and Democrats during a US National Election
- Benjamin T. Jones & Shawna K. Metzger, Evaluating Conflict Dynamics: A Novel Empirical Approach to Stage Conceptions
- Laura Sjoberg, Kelly Kadera, & Cameron G. Thies, Reevaluating Gender and IR Scholarship: Moving beyond Reiter’s Dichotomies toward Effective Synergies
- Jana von Stein, Exploring the Universe of UN Human Rights Agreements
Wednesday, March 14, 2018
- Manfred Nowak & Anne Charbord, Key trends in the fight against terrorism and key aspects of international human rights law
- Martin Scheinin, Impact of post 9/11 counter-terrorism measures on all human rights
- Ben Emmerson, New counter-terrorism measures: Continuing challenges for human rights
- Fionnuala Ní Aoláin, The complexity and challenges of addressing the conditions conducive to terrorism
- Lisa Ginsborg, One step forward, two steps back: The Security Council, ‘Foreign Terrorist Fighters’, and human rights
- Richard Barrett & Tom Parker, Acting ethically in the shadows: Intelligence gathering and human rights
- Ulrich Garms, The preventive criminal justice strategy against terrorism and its human rights implications
- Lisa Oldring, Questions of accountability in countering terrorism
In the middle of night on 29 December 1837, Canadian militia commanded by a Royal Navy officer crossed the Niagara River to the United States and sank the Caroline, a steamboat being used by insurgents tied to the 1837 rebellion in Upper Canada. That incident, and the diplomatic understanding that settled it, have become shorthand in international law for the “inherent right to self-defence” exercised by states in far-off places and in different sorts of war. The Caroline is remembered today when drones kill terrorists and state leaders contemplate responses to threatening adversaries through military action.
But it is remembered by chance and not design, and often imperfectly.
This book tells the story of the Caroline affair and the colourful characters who populated it. Along the way, it highlights how the Caroline and claims of self-defence have been used — and misused — in response to modern challenges in international relations. It is the history of how a forgotten conflict on an unruly frontier has redefined the right to war.
The relationship between public and private international law is a topic which has long been debated, and which remains highly controversial. Despite an increasing range of scholarship looking at connections between the two fields, some modern public and private international lawyers would doubt that any deep relationship exists between the two subjects. This Chapter addresses these doubts by examining a link between public and private international law which arises in the context of sources, and exploring six connections between public and private international law – connections of (1) principle, (2) history, (3) functional commonality, (4) policy incorporation, (5) shared objectives, and (6) methodology.
- Anthony McKeown & John Glenn, The rise of resilience after the financial crises: a case of neoliberalism rebooted?
- Jan Stöckmann, Women, wars, and world affairs: Recovering feminist International Relations, 1915–39
- Lorenzo Cello, Taking history seriously in IR: Towards a historicist approach
- Eren Duzgun, Capitalism, Jacobinism and International Relations: Re-interpreting the Ottoman path to modernity
- Catherine Owen, John Heathershaw, & Igor Savin, How postcolonial is post-Western IR? Mimicry and mētis in the international politics of Russia and Central Asia
- Jonathan Luke Austin & Philippe Beaulieu-Brossard, (De)securitisation dilemmas: Theorising the simultaneous enaction of securitisation and desecuritisation
- Matt Sleat, Just cyber war?: Casus belli, information ethics, and the human perspective
- Monika Heupel, Gisela Hirschmann, & Michael Zürn, International organisations and human rights: What direct authority needs for its legitimation
- Marcel Hanegraaff & Arlo Poletti, The stakeholder model paradox: How the globalisation of politics fuels domestic advocacy
Seibert-Fohr: From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?
Globalisation creates multiple challenges for the rule of law. States liaise in multiple ways and unfortunately not always for the common good. While the conventional rules of state responsibility are largely informed by an international order of coexistence where an internationally wrongful act is traced to a single state or a principal wrongdoer, realities look different today. There are many instances, in which more than one state is involved. If fundamental legal interests of the international community, such as the prohibition of genocide, other fundamental human rights and humanitarian standards, or the prohibition of the use of force are at stake, not only the main actors, accessories and bystanders incur responsibility for serious violations but other forms of involvement need to be addressed, too. Therefore, the article considers different modes of state involvement in serious violations of international law and the legal criteria for unlawful contributions. Giving special attention to participation below the level of complicity – when a State contributes to such serious violations without the respective positive knowledge – the author considers primary rules of international law that prohibit indirect participation, such as the duty to respect and ensure fundamental human rights. The focus on primary norms allows her to locate state responsibility for participation within the existing scheme of state responsibility without departing from the ILC rules on state responsibility (ARSIWA). The article argues in favour of a risk-based ex ante responsibility in order to prevent co-operation between States which violate fundamental legal norms of the international community. Accordingly, States incur responsibility for indirect participation if they do not exercise the necessary diligence to prevent such violations. Though due diligence is usually referred to when States fail to intervene in third party abuses it applies a fortiori in cases of active contributions. While the article concentrates on serious human rights violations it also refers to other fields of international law, including breaches of international humanitarian law. By specifying the legal parameters of due diligence as a general principle it also contributes to the scholarly debate on the content of due diligence in international law more generally.
The paper looks at community interests in international law from the perspective of the International Law Commission. As the topics of the Commission are diverse, the outcome of its work is often seen as providing a sense of direction regarding general aspects of international law. After defining what he understands by “community interests”, the author looks at both secondary and primary rules of international law, as they have been articulated by the Commission, as well as their relevance for the recognition and implementation of community interests. The picture which emerges only partly fits the widespread narrative of “from self-interest to community interest”. Whereas the Commission has recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules of international law, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional State-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push towards the recognition of more and thicker community interests.
Tuesday, March 13, 2018
- Shahar Hameiri & Fabio Scarpello, International development aid and the politics of scale
- Regine A. Spector, A regional production network in a predatory state: export-oriented manufacturing at the margins of the law
- Philip Schleifer & Yixian Sun, Emerging markets and private governance: the political economy of sustainable palm oil in China and India
- Andreas Jungherr, Matthias Mader, Harald Schoen & Alexander Wuttke, Context-driven attitude formation: the difference between supporting free trade in the abstract and supporting specific trade agreements
- Shawn Nichols, Expanding property rights under investor-state dispute settlement (ISDS): class struggle in the era of transnational capital
- Colin M. Barry, Peace and conflict at different stages of the FDI lifecycle
Kenya's 2010 Constitution marks the first time that treaty law has been constitutionally declared part of Kenya's domestic law. However, the laconic drafting of the relevant provision leaves unanswered questions about the role of treaties. This article seeks to answer some of those questions, addresses conflicts between treaties and other laws, and concludes that treaties can be directly enforceable in domestic law unless they are expressly non-self-executing. Furthermore, domestic courts must apply treaties in accordance with the constitution, although the article also addresses the problems that this causes with article 103 of the UN Charter and the East African Community Treaty. Treaties that are applied directly domestically should be considered at a par with statutes enacted by the national Parliament and prevail over county laws. Human rights treaties should carry greater weight than conflicting statutes. Where a treaty is implemented into domestic legislation, the “parent” treaty should prevail where there is a conflict.
- Stephan W. Schill, Investor-State Dispute Settlement Reform at UNCITRAL: A Looming Constitutional Moment?
- Nicolás M. Perrone, UNCTAD’s World Investment Reports 1991–2015: 25 Years of Narratives Justifying and Balancing Foreign Investor Rights
- Arie Reich, Israel’s Foreign Investment Protection Regime in View of Developments in Its Energy Sector
- Matthew Happold & Relja Radović, The ECOWAS Court of Justice as an Investment Tribunal
- Tuğba Karagöz, The Influence of Investor-Centered Values in the Operation of Political Risk Insurance
Monday, March 12, 2018
- Astrid H. M. Nordin & Mikael Weissmann, Will Trump make China great again? The belt and road initiative and international order
- David H. Ucko, Preventing violent extremism through the United Nations: the rise and fall of a good idea
- Rebecca Sanders, Norm spoiling: undermining the international women's rights agenda
- Peacebuilding in an Era of Pragmatism
- Louise Wiuff Moe & Finn Stepputat, Introduction: Peacebuilding in an era of pragmatism
- Cedric de Coning, Adaptive peacebuilding
- Louise Wiuff Moe, Counter-insurgency in the Somali territories: the ‘grey zone’ between peace and pacification
- Louise Riis Andersen, The HIPPO in the room: the pragmatic push-back from the UN peace bureaucracy against the militarization of UN peacekeeping
- Katja Lindskov Jacobse & Troels Gauslå Engell, Conflict prevention as pragmatic response to a twofold crisis: liberal interventionism and Burundi
- Jan Bachmann & Peer Schouten, Concrete approaches to peace: infrastructure as peacebuilding
- Finn Stepputat, Pragmatic peace in emerging governscapes
- Special Feature: Contemporary Slavery
- Rebecca J. Scott, International Law and Contemporary Slavery: The Long View
- Vladislava Stoyanova, United Nations Against Slavery: Unravelling Concepts, Institutions and Obligations
- Bénédicte Bourgeois, Statutory Progress and Obstacles to Achieving an Effective Criminal Legislation Against the Modern Day Forms of Slavery: The Case of France
- Carlos H. B. Haddad, The Definition of Slave Labor for Criminal Enforcement and the Experience of Adjudication: The Case of Brazil
From enforcement of an arbitration agreement to enforcement of provisional measures and final awards, parties and tribunals have to rely on domestic authorities.
In addition to difficult issues common to any arbitration proceedings, such as enforcement against non-signatories to the arbitration agreement, tracing the assets of reluctant debtors, and stay of enforcement, investor-State disputes add other complex issues.
These include State immunity, different regimes under the New York Convention, the International Centre for Settlement of Investment Disputes (ICSID) Convention and other regional conventions, as well as in States non-signatories to such conventions. Additional difficulties arise with the enforcement of non-pecuniary provisional measures and cost awards.
The recent decision of the European Court of Justice in Achmea v Slovakia poses serious questions related to the enforceability of intra-EU investment treaties and awards.
These issues require a good understanding of the interplay between public international and domestic law.
To discuss these issues the Thirtieth ITF Public Conference will convene in London on 11 May 2018. The Forum will bring together leading arbitrators, judges, practitioners and academics, drawn primarily from ITF members, to debate issues related to enforcement in international investment law.
The Conference will also mark the sixtieth anniversary of the 1958 New York Convention, which continues to play an important role in international investment disputes.
- Daniel Augenstein, Mark Dawson, & Pierre Thielbörger, The UNGPs in the European Union: The Open Coordination of Business and Human Rights?
- Karin Buhmann, Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action
- Claire Methven O’Brien, The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal
- Olga Martin-Ortega, Public Procurement as a Tool for the Protection and Promotion of Human Rights: a Study of Collaboration, Due Diligence and Leverage in the Electronics Industry
- Developments in the Field
- Michael Ineichen, Protecting Human Rights Defenders: A Critical Step Towards a More Holistic Implementation of the UNGPs
- Maria Anne van Dijk, Marijn de Haas, & Ruben Zandvliet, Banks and Human Trafficking: Rethinking Human Rights Due Diligence
- Kendyl Salcito & Mark Wielga, What does Human Rights Due Diligence for Business Relationships Really Look Like on the Ground?
- Namit Agarwal, Measuring Business Responsibility Disclosures of Indian Companies: A Data-Driven Approach to Influence Action
- Rasmus Kløcker Larsen & Sandra Atler, Applying the First Pillar of the UN Guiding Principles to Development Cooperation: The Performance of Swedish Agencies and State-owned Enterprises
- Dorothée Baumann-Pauly, Bridging Theory and Practice through Immersion: Innovations for Teaching Business and Human Rights at Business Schools
- Martine Beijerman, Practice what you Preach? Limitations to Imposing Democratic Norms on NGOs
- Eghosa Osa Ekhator, Regulating the Activities of Multinational Corporations in Nigeria: A Case for the African Union?
- Marie-Aure Perreaut, Editorial: Legal Issues of the Białowieża Forest
- Maciej Perkowski, Wioleta Hryniewicka-Filipkowska & Izabela Dąbrowska, Protection of the Bialowieza Forest as a Challenge to Cross-border Cooperation
- Maciej Perkowski & Wojciech Zoń, The Protection of Invaluable Natural Resources: Illustrating the Example of the Bialowieza Forest
- Pontian N. Okoli & Chinedum I. Umeche, Jurisdictional conflicts and individual liberty – the encroaching burden of technicality in Nigeria
- Francesca Mussi, Countering migrant smuggling in the Mediterranean Sea under the mandate of the UN Security Council: what protection for the fundamental rights of migrants?
- Paul Chaney, Civil society, human rights and religious freedom in the People’s Republic of China: analysis of CSOs’ Universal Periodic Review discourse
- Tim Lindgren, Ecocide, genocide and the disregard of alternative life-systems
- Alexander Dunlap, The ‘solution’ is now the ‘problem:’ wind energy, colonisation and the ‘genocide-ecocide nexus’ in the Isthmus of Tehuantepec, Oaxaca
- Ross W. Bellaby, Extraordinary rendition: expanding the circle of blame in international politics
- Jing Xu, International environmental agreements with agenda and interaction between pollutants
- Jasper N. Meya, Ulrike Kornek, & Kai Lessmann, How empirical uncertainties influence the stability of climate coalitions
- Duncan Weaver, The Aarhus convention and process cosmopolitanism
- Michael B. Schwebel, Gathering at the AOSIS: perceived cooperation among Pacific Small Island States
- Anita Talberg, Peter Christoff, Sebastian Thomas, & David Karoly, Geoengineering governance-by-default: an earth system governance perspective
- Jing Liu & Michael Faure, Risk-sharing agreements to cover environmental damage: theory and practice
- Jacob D. Petersen-Perlman & Itay Fischhendler, The weakness of the strong: re-examining power in transboundary water dynamics
- Simon Marsden, Protecting wild land from wind farms in a post-EU Scotland
- Ori Pomson, The Obligations concerning Negotiations Cases and the “Dispute” Requirement in the International Court of Justice
- Andres Sarmiento Lamus & Walter Arévalo Ramírez, Non-appearance before the International Court of Justice and the Role and Function of Judges ad hoc
- Ravindra Pratap, Provisional Measures in the “Enrica Lexie” Case
- María Carmelina Londoño-Lázaro, Ulf Thoene & Catherine Pereira-Villa, The Inter-American Court of Human Rights and Multinational Enterprises: Towards Business and Human Rights in the Americas?
- Sondre Torp Helmersen, Scholarly-Judicial Dialogue in International Law
- Guillaume Le Floch, Marie Lemey & Lucie Paiola, Procedural Developments at the International Criminal Court (2016)
- Jadhav Case (India v. Pakistan): Order on Provisional Measures (I.C.J.), with introduction note by Surabhi Ranganathan
- Prosecutor v. Ahmad Al Faqi Al Mahdi: Judgment and Sentence & Reparations Order (Int'l Crim. Ct.), with introductory note by Ana Filipa Vrdoljak
- Bărbulescu v. Romania (Eur. Ct. H.R.), with introductory note by Nichole L. Sterling and Emily R. Fedeles
- Tele2 Sverige AB v. Post-Och Telestyrelsen and Secretary of State for the Home Department v. Tom Watson, Peter Brice, and Geoffrey Lewis (C.J.E.U.), with introductory note by Michelle Marie F. Villarica
- United Nations Security Council Resolution 2347, with introductory note by Patty Gerstenblith
- United Nations Security Council Resolutions 2240, 2312 & 2380, with introductory note by Andreas Schloenhardt
- United Nations Security Council Resolution 2354 & Comprehensive International Framework to Counter Terrorist Narratives, with introductory note by Andreas Motzfeldt Kravik
- Natacha Estèves, Open models for patents: Giving patents a new lease on life?
- Verity Dawkins, Combating biopiracy in Australia: Will a disclosure requirement in the Patents Act 1990 be more effective than the current regulations?
- Muhammad Z. Abbas & Shamreeza Riaz, WTO “Paragraph 6” system for affordable access to medicines: Relief or regulatory ritualism?
- Ruchi Sharma, Audhesh K. Paswan, Sunil K. Ambrammal & Madan Dhanora, Impact of patent policy changes on R&D expenditure by industries in India
- Hembadoon Iyortyer Oguanobi, Broadening the conversation on the TRIPS agreement: Access to medicines includes addressing access to medical devices
- Belinda Townsend, Deborah Gleeson & Ruth Lopert, Japan's emerging role in the global pharmaceutical intellectual property regime: A tale of two trade agreements
Transitional justice is the dominant lens through which the world grapples with legacies of mass atrocity, and yet it has rarely reflected the diversity of peace and justice traditions around the world. Hewing to a largely western and legalist script, truth commissions and war crimes tribunals have become the default means of 'doing justice'. Re-Thinking Transitional Justice for the Twenty-First Century puts the blind spots and assumptions of transitional justice under the microscope, and asks whether the field might be re-imagined to better suit the diversity and realities of the twenty-first century. At the core of this re-imagining is an examination of the broader field of post-conflict peace building and associated critical theory, from which both caution and inspiration can be drawn. By using this lens, Dustin N. Sharp shows how we might begin to generate a more cosmopolitan and mosaic theory and imagine more creative and context-sensitive approaches to building peace with justice.
Sunday, March 11, 2018
Judicial acts of states are becoming increasingly subjected to international investment claims. This book focuses on distinctive particularities of these claims. Although there are no special responsibility regimes for different functions of the state, the application of investment treaty standards and the threshold for their breach may vary depending on the function involved. Accordingly, in order for the state to incur responsibility for a wrongful act committed in the exercise of its judicial function, there are some specific conditions that should be met: the investor must establish that the state is responsible for a breach attributable to the state; the investment tribunal has jurisdiction over the particular dispute; and the damage that the investor has suffered is a result of the particular breach. Berk Demirkol addresses questions in relation to the substance, jurisdiction, admissibility, and remedies in cases where state responsibility arises from a wrongful judicial act.
Scholarship on the links between business and human rights is widespread. However, the specific ways in which globalization accommodates the economically marginalized and those who are likely most vulnerable to its negative effects has received scant attention. The increasingly obvious manifestations of discontent over the effects of globalization — from Brexit, to the election of President Trump — combined with the evidence that confirms the very uneven distribution of its benefits, indicate that this is an important scholarly gap.
To bridge it, this Article explores the extent to which the main fields of international law that are tasked with promoting economic interdependence — international finance, investment, trade, and intellectual property — address the rights and interests of indigenous peoples, an expressly protected category of marginalized and/or vulnerable people under international law.
Relying on recent legal practice and four case studies, the Article compares these fields and explains the different ways indigenous peoples’ interests are accommodated by international economic law. More broadly, the intersection between international economic law and indigenous rights — what I call international indigenous economic law — provides important lessons to current demands to address the negative effects of globalization. In particular, the Article argues that international economic law must recognize the need to more seriously incorporate the struggle for social and economic justice espoused by human rights law. At the same time, human rights advocates should utilize the growing set of possibilities from instruments that promote economic interdependence to create or renew strategies that advance human rights values and goals. This complex line has been at the core of indigenous rights advocacy, the relative success of which provides some hope for the future of international law at a challenging time.
Though an extensive body of work addresses the substantive content of the jus ad bellum, little attention has been paid to its regulatory form — meaning the modes for expressing its content as concrete directives that structure legal arguments and decisions. By most accounts, its content takes the form of a blanket prohibition and a small handful of exceptions. The same general standards are thought to govern all situations involving cross-border force and to determine whether any particular operation is lawful.
This Article argues that an alternative form of regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions confer authority on the operations at issue; they make the operations easier to justify and harder to challenge in law. They do so even when they go beyond what the general standards permit. Recognizing that they are both part of the jus ad bellum and different in kind from regulation through the general standards should change how we think about and assess this body of law.
On October 1, 2002, Magnus Gäfgen was taken into custody by the Frankfurt police in connection with the kidnapping of a young boy held for ransom. The police threatened Gäfgen with various forms of torture unless he divulged the location of the boy. Gäfgen quickly relented and led the police to the boy, who was already dead. Gäfgen was convicted of murder and the police were convicted of coercion. However, the district court concluded that the police, though culpable, were not appropriate subjects of punishment. Gäfgen, unhappy that his torturers were not punished, filed a case against Germany at the European Court of Human Rights (ECHR), arguing that Germany's failure to punish his torturers violated his human rights. The ECHR concluded that Gäfgen was right--the German government was obligated to punish perpetrators of torture, and by failing to do so adequately, Germany violated Gäfgen's human rights.
The goal of this chapter is to show that the argument in Gäfgen is generalizable to other contexts. Although the case arose from a particular procedural posture, there is little reason to suspect that the arguments in Gäfgen will not hold for other crimes as well. At the very least, these arguments can be extended, without logical disruption, to other international crimes that states are under a legal obligation to criminalize, such as war crimes, crimes against humanity, and genocide. Moreover, if the structure of these arguments is conceptually sound, in theory they should apply outside of the European context, unless the argument is based on a particular right that is only protected by the European Convention and not by international law.
This subtle change in emphasis -- moving from punishment as a license to punishment as a legal requirement -- has profound consequences for the operation of international criminal justice. States and international tribunals are required to punish perpetrators as a matter of human rights law, and their failure to follow through on this obligation violates not just some vague or inchoate ergo omnes obligation, it also violates an obligation owed directly to the victims of that particular atrocity. This applies not just when the perpetrators are not punished at all but also when the perpetrators, like in Gäfgen's case, are not punished severely enough.
Çalı: Coping with Crisis: Whither the Variable Geomety in the Jurisprudence of the European Court of Human Rights
This article offers a new take on the diagnosis of the crisis of the European human rights system by focusing on the diversification of the attitudes towards the European Court of Human Rights by the national compliance audiences, namely domestic executives, parliaments and judiciaries. This diagnosis holds that national compliance audiences of the European Court of Human Rights can no longer be characterized as lending an overall support to the human rights acquis of Europe, that centers around the European Court of Human Rights as the ultimate authoritative interpreter of the Convention. Instead, alongside states that continue to lend overall support to the Court’s authority over the interpretation of the Convention, two types of new attitudes have developed towards the Convention across the Council of Europe in recent decades. First, there are now national compliance audiences that demand co- sharing of the interpretation task of the Convention with the European Court of Human Rights. Second, there are national compliance audiences that flout the well-established Convention standards, not merely by error, or lack of knowledge of adequate application, but with suspect grounds of intentionality and lack of respect for the overall Convention acquis. Following this diagnosis, I argue that instead of holding on to a business as usual attitude, the Court has also developed coping strategies in order to handle the fragmentation of the attitudes of its audiences by investing more in a human rights jurisprudence of a variable geometry, recognizing differentiation in the individual circumstances of states as a basis for human rights review.
Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. At the same time new domestic cases test the boundaries of the law (e.g., Jesner v. Arab Bank, Lafarge Cement). This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less ‘romanticism’ and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.
Collective memories are significant for both individuals and societies, as they play an important role in the construction of collective identities. This article focuses on the role of non-criminal international tribunals in the development of collective memories, asking whether it is desirable for such international tribunals to be involved in the construction of historical narratives. International tribunals have not adopted a consistent approach concerning the presentation of the case’s historical background in their judgments. The question of whether it is desirable for non-criminal tribunals to assume an active role in this sphere is analysed using three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach.
The conclusions of this article emphasize that international adjudicators are embedded in socio-historical environments and are influenced by historical narratives prevailing their respective groups (regardless of whether they present an historical narrative or not). International tribunals interact with additional agents of memory (e.g., governmental bodies and the mass media); and though they are more constrained than other agents of memory (e.g., regarding evidentiary rules), they do hold some significant advantages in this sphere. Each agent of memory possesses some advantages and limits and they often cross-fertilize each other. Where reasonable available evidence permits, international tribunals (and particularly regional ones) may legitimately play a role in the construction of historical narratives. The participation of international tribunals in this sphere is particularly vital where national judicial or semi-judicial bodies deliberately conceal a significant historical event generating extensive harm to a disadvantaged group. In such cases, it is desirable that international tribunals undertake an inclusive approach and make reasonable efforts to take into account historical findings produced by other agents of memory (such as historians and experts), while acknowledging the possible bias of each actor. Informed by the symbolic-interactionist approach, we are of the view that judicial-historical narratives are important not only for the social integration of a particular group; but mainly as a meaningful remedy for individuals and smaller communities whose rights have been violated. In light of the valuable socio-cultural qualities of local institutions in this sphere, it is generally legitimate for regional tribunals (rather than global ones) to take an active part in the development of regional historical heritage; particularly where such judicial-historical pronouncements are significant for small communities or individuals who suffered a violation of their legal rights. The benefits of constructing collective memories in a bottom-up process indicate that where national tribunals (or local quasi-judicial bodies) function effectively and reliably, international tribunals should generally refrain from interfering with the development of local historical narratives. Where international tribunals encounter considerable asymmetric settings, it is desirable to apply adequate rules of evidence to mitigate the parties' unbalanced capacities in proving historical events.