This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism may have a negative effect on the willingness of domestic courts to refer to international law. It further argues that although such response is understandable, it is regrettable, since incorporation of international law into domestic court rulings can serve as a counter-populism measure. Maintaining international law as part of the domestic legal discourse is particularly important in a populist setting, for two reasons. First, where constitutionalism is overtaken by populists, international law can serve as an important source on which courts can draw to protect human rights. In addition, referral, analysis and application of international law are means of maintaining pluralism in legal and public debate and, accordingly, of enhancing democracy.
Friday, June 15, 2018
This Companion is a one-stop reference resource on the Phnom Penh based ‘Khmer Rouge tribunal'. It serves as an introduction to the Extraordinary Chambers in the Courts of Cambodia, while also exploring some of the Court’s practical and jurisprudential challenges and outcomes. Written by Nina Jørgensen, who has worked as senior adviser in the tribunal’s Pre-Trial and Supreme Court Chambers, the Companion offers both direct insights and academic analysis organized around six themes: legality, structure, proceedings, jurisprudence, legitimacy and legacy. This comprehensive Companion will provide a platform for interested sectors of domestic and international society, to assess the value of the Extraordinary Chambers, both during the tribunal’s lifespan and after it has closed its doors.
Morrow & Cope: The Limits of Information Revelation in Multilateral Negotiations: A Theory of Treatymaking
We develop the first general model of multilateral treatymaking. The rules by which multilateral treaties are negotiated and take effect differ in crucial ways from those governing other political institutions, such as bilateral treaties, legislatures, and courts. Multilateral treaties usually generate more utility as the number of members increases, but they allow dissatisfied parties to opt-out of the regime. These and other key differences produce a unique, "broader-deeper" tradeoff that affects how states bargain strategically over the formation of multilateral treaties. As a result, existing models of how other political institutions bargain and develop policies do not satisfactorily explain large treaty formation. Using mechanism design, we show how states negotiating multilateral treaties adopt their positions, including to what extent they reveal private information about their preferred policies. Among other things, we find that states that strongly favor a treaty and those that strongly oppose it readily reveal their positions and expected values from the treaty; states that require small concessions to ratify and those that weakly support the status quo request their desired changes. The strategic logic of multilateral negotiations means that imitating another type risks triggering policy changes adverse to a state's true preferences. These findings lay the groundwork for a line of theoretical and empirical research on multilateral cooperation through international law.
Extraterritorial Human Rights Obligations from An African Perspective addresses the often neglected question of whether African regional human rights instruments impose extraterritorial obligations on State parties, and if so, the extent and scope of these obligations.
The prevalence of extraterritorial violations of human and peoples’ rights in the African system, due to the actions or omissions of African as well as non-African states, has not gone unnoticed. Strengthening extraterritorial obligations in Africa is an urgent necessity to ensure a rights-based African regional order that seeks to address, among other issues, challenges stemming from globalisation, accountability for human rights violations in Africa where a third state or entity (as well as an intergovernmental organisation) is involved, and to ensure respect and protection of the human rights of future generations. With the increasing quasi-judicial and judicial scrutiny of the extraterritorial reach of human rights and states’ duties, at both international and regional levels, including from the African Commission, the African region is ripe for extraterritorial analysis.
Individualrechte aus dem EU-Recht müssen gerade gegenüber den Mitgliedstaaten der EU wirksam durchsetzbar sein. Philipp Tamme untersucht, inwieweit der Europäische Gerichtshof für Menschenrechte hierzu beitragen kann. Anhand der in Straßburg bislang entschiedenen Fälle werden die Ursachen für Rechtsschutzdefizite auf nationaler und europäischer Ebene analysiert sowie die formellen und materiellen Voraussetzungen für eine erfolgreiche konventionsrechtliche Sanktionierung von Unionsrechtsverstößen herausgearbeitet. Ausgehend von den allgemeinen Grundlagen wird im Einzelnen die Durchsetzung von Verfahrensrechten, Rechten aus EU-Richtlinien, Freizügigkeitsrechten und politischen Rechten behandelt. Hieran knüpfen jeweils weitergehende Vorschläge an, die auf eine rechtsstaatsorientierte Optimierung des Individualrechtsschutzes im europäischen Mehrebenenverbund abzielen.
After the end of the Cold War, the once utopian dream of an international criminal court gained momentum. In July 1998, civil society, scholars, and practitioners welcomed the establishment of a permanent international criminal tribunal with great enthusiasm.
The Court was greeted as a fundamental step in the evolution of the universal system of human rights protection, and in the fight against impunity for core crimes.
When the Court resumed its work and reality hit, it soon became apparent that International criminal justice is time-consuming, costly, and very complicated. It seems that after the initial euphoria, scholars became aware that the ICC could not achieve the expectations, which had been put on the Court. State parties became more and more impatient with a Court, which needed ten years to render its first judgment. Both intergovernmental and non-governmental organizations started to criticise the effectiveness of the first permanent international criminal tribunal.
Today the ICC faces accusations of asymmetrical implementation of international criminal justice with some African states withdrawing from the Rome Statute. In addition, it is difficult to impart the importance of international criminal justice when a humanitarian catastrophe is taking place in Syria, while the ICC is condemned to inaction. With recurring nationalism all over, it seems hardly imaginable that an international criminal court, with universalistic aspirations, would be created again today.
With the participation of ICC judges, international scholars and practitioners, the Conference aims to facilitate exchange of ideas on the role and limits of the ICC. This interdisciplinary Conference brings together international judges, prominent scholars, including criminologists, criminal and international lawyers, experts in the fields of international relations, and senior officers from International Criminal Tribunals in order to address the following key research questions: Can proceedings be made more effective thereby improving the Court’s reputation, and if so how? What are the Court’s real goals and functions? How do they relate to the selection of situations to investigate and cases to prosecute? And how to unfold the rather complicated triangle relationship between the Court, the Security Council and the state parties?
Au milieu du XXe siècle, le paradigme de la sécularisation annonçait, sinon la disparition totale, au moins la perte de toute influence du religieux sur le politique. Quelques décennies après, un brusque virement de la perception dominante s’était produit. Le (re)surgissement des fondamentalismes dans les principaux courants religieux de la planète demandait alors une révision de la réconfortante vision d’un monde libre de virulences religieuses et marchant droitement vers un avenir de progrès. Le paradigme du choc des civilisations s’est donc substitué à celui de la sécularisation.
Scrutant de manière critique ces deux paradigmes, cet ouvrage propose une analyse de la place des groupes religieux en droit international. De la liberté collective de religion aux persécutions religieuses, et de la protection des groupes religieux minoritaires à la poursuite pénale des responsables des crimes contre ces groupes, les différentes formes d’encastrement du religieux à l’intérieur du discours juridique international sont abordées. L’ouvrage met en exergue les subtils compromis politiques sous-jacents à la construction de ce discours, les formes juridiques n’étant qu’une des manifestations d’un équilibre toujours instable entre le religieux et le séculier.
Thursday, June 14, 2018
Call for Papers: The Judicial Power of Africa’s Supranational Courts / Le pouvoir judiciaire des Cours supranationales d’Afrique
In the field of supranational adjudication, the African continent presents a puzzling paradox. Africa boasts a high number of supranational courts, but at the same time there appears to be a lack of willingness among Member States to comply with rulings issued by these courts. On 21 September 2018, the University of Luxembourg will host a conference on this issue. It will discuss which forms of judicial power are being favoured by African States on the one hand and by African supranational courts on the other. It will analyse to what extent approaches of activism or, conversely, restraint, are being considered as legitimate and effective by these actors. The conference will be bilingual (English and French).
The organizers look forward to receive abstracts from junior scholars who will discuss the conference theme on the basis of a specific judicial decision from an African supranational jurisdiction, such as the African Court of Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States (ECOWAS), the Common Court of Justice and Arbitration of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA) and the Court of Justice of the Union Economique et Monétaire Ouest Africaine (UEMOA). The University of Luxembourg will cover travel expenses and accommodation for one week.
Applications including an abstract of the presentation (max 400 words, in English or French) as well as a CV should be sent to firstname.lastname@example.org. The deadline is 30 June 2018.
Les juridictions supranationales du continent africain présentent un paradoxe étonnant. En effet, alors que l’Afrique compte un grand nombre de tribunaux supranationaux, il semblerait y avoir un manque de volonté parmi les États Membres à se conformer aux jugements rendus par ceux-ci. Le 21 septembre 2018, une conférence se tiendra à l’Université du Luxembourg concernant cette problématique. Il s’agira de souligner quelles formes de pouvoir judiciaire sont favorisées par les États africains, d’une part, et, par les Cours africaines supranationales, d’autre part. Ce sera par ailleurs l’occasion d’analyser dans quelle mesure ces acteurs considèrent l’activisme ou, au contraire, l’autolimitation judiciaire, comme étant des approches légitimes et effectives. La conférence sera bilingue (anglais et français).
Les organisateurs espèrent recevoir des propositions de communication de la part de jeunes chercheurs qui aborderont la thématique de la conférence sous la perspective d’une décision judiciaire spécifique émanant d’une Cour supranationale africaine, telle que la Cour africaine des droits et des peuples, la Cour de justice de la Communauté économique des États de l’Afrique de l’Ouest (CEDEAO), la Cour Commune de Justice et d’arbitrage de l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA), et la Cour de Justice de l’Union économique et monétaire ouest-africaine (UEMOA). Les frais de voyage et d’hébergement d’une durée d’une semaine seront pris en charge par l’Université du Luxembourg.
Les propositions, incluant un résumé de la communication envisagée, en anglais ou en français (400 mots maximum), ainsi qu’un curriculum vitae, doivent être transmises par courriel à email@example.com au plus tard le 30 juin 2018.
Membership in the United Nations has almost quadrupled since its founding in 1945, with the vast majority of new states admitted over this period resulting from the collapse of European imperial regimes. The process of decolonization and the expansion of international organizations are among the most momentous developments in modern global history, yet their impact on one another has more often been posited than examined. The symposium asks what roles international organizations – both inter-governmental and non-governmental – have played in the process of decolonization and how the dissolution of European empires has in turn affected the development of international organizations. It questions the colonial-postcolonial divide in historical scholarship by examining continuities in personnel, expertise, and inequalities and inquires about the ways in which colonial frameworks and the legacies of decolonization continue to inform doctrines and practices of international organizations – for example in the fields of humanitarian relief or development assistance.
The goal is not so much comprehensiveness, but to showcase a variety of methodological approaches, subjects, historical dynamics, and timeframes. While the twentieth century has received the majority of scholarly attention, the symposium seeks to expand the chronology by also paying attention to earlier instances of international organizations affecting decolonization and vice versa, for example in the Latin American context. It further aims to move beyond the examination of more prominent bodies such as the League of Nations and the UN as well as their affiliated agencies in order to showcase other organizations of global reach, such as the Arab League or the International Organization for Migration. It seeks to learn about a variety of actors – colonial subjects, citizens of new states and (former) metropoles, government representatives, experts and volunteers – and examine not only political and economic but also social, cultural, legal, and environmental history. By providing a common focus on the global history of decolonization and international organizations, the proposed conference aims to bring together scholars from diverse regional and thematic subfields.
The conference invites proposals for papers that explore the role of international organizations as
- agents in the process decolonization;
- as hubs for the formation of both inter-imperial and anti-imperial alliances;
- as forums for negotiating the meaning and unfolding of decolonization.
Potential papers might ask how employees of international organizations – international civil servants, experts and volunteers – understood the process of decolonization and how they conceived of their own roles in that process. What role, if any, did people in dependent territories and metropoles assign to international organizations? And how did such conceptions change over time? Aside from exploring the different imaginaries of decolonization, the conference presents an opportunity to learn more about the actual functions performed by international organizations in both (former) colonies and metropoles leading up to, during, and after the formal transfer of political sovereignty – and how these interventions from abroad were affected or conditioned by developments on the ground. At the same time, the conference welcomes contributions that examine how the emergence of new states and non-state actors – such as national liberation movements – altered the work and shape of international organizations themselves.
Prof. Susan G. Pedersen (Department of History at Columbia University) is the keynote speaker at the symposium.
Scholars interested in presenting a paper at the symposium are invited to send a brief abstract of 250-300 words as well as a CV by June 15, 2018, to Eva-Maria Muschik at firstname.lastname@example.org. While limited travel and accommodation support is available, presenters will be encouraged to explore their own funding opportunities.
Tuesday, June 12, 2018
This chapter considers whether China has embarked on a path to WTO leadership since its historic accession in 2001. I argue that China is increasingly displaying the will to lead, an essential prerequisite for state leadership. China has become progressively more proactive, making independent proposals, joining undertakings initiated by other members, submitting numerous notifications, and regularly filing formal dispute settlement complaints despite its historical aversion to international adjudication.
But does its growing participation signal leadership? China's trajectory towards WTO leadership is analyzed by identifying signs of its will to lead in the WTO--in its rhetoric, its participation and its initiatives. I maintain that indications of China's will to lead are evident, for example, in its strong support of globalization and the multilateral trading system (not trivial given US policy since the advent of Trump), China's continuing endorsement of the Doha Round negotiations (in contrast to other members that have declared the talks dead), and its initiation of talks on investment facilitation and active participation in talks on electronic commerce, among other things. At the same time, other factors are holding it back. For one, it is still learning how to lead in the WTO, despite moving considerably up the learning curve. More significantly, evidence of the willingness of other members to follow is presently limited. The essay aims at offering insight into China's behavior as a leader in the WTO, and the future leadership role China may play in the changing international trade environment, in which China paradoxically is taking over as the champion of an open global trading system, and possibly replacing US leadership in global economic governance.
Monday, June 11, 2018
This Article applies the theory of comparative institutional analysis to evaluate the tradeoffs associated with alternative institutional processes for resolving investment disputes in terms of their relative biases. We assess the trade-offs in light of the principle of accountability under the rule of law, which underpins other goals attributed to investment law. The Article makes two recommendations: first, reforms should address complementarity between domestic and international institutions; second, institutional choice should vary in light of the different contexts that States face.
This paper constitutes the introduction of the volume 'Concepts for International Law'. It is accompanied by the table of contents as well as the chapter abstracts. This introduction - a standalone piece - grapples with the relation between legal concepts, life and living in international law. First, we briefly explore the contemporary malaise in international law’s disciplinary life, in and for which this book emerges. We urge a sensibility that sees working on international law’s concepts as opening up a range of possibilities in how we may act, live, know, see and understand within and towards the discipline. Second, we offer an overview into how legal thought has, in its diversity, approached legal concepts. We aim to draw out those sensibilities that remain prevalent in today’s legal writings on concepts, whilst also pointing to the limits, nuances and fractures of these sensibilities. In this regard we offer detailed readings, criticisms and extensions of texts by Jhering, Hohfeld, Ross, Cohen, Kennedy, Koskenniemi, and Marks to name but a few. These readings primarily point to the intricate and intractable difficulties of reconciling concepts with social life. They also point to a series of shifting and entwined aesthetic, ethical and political presuppositions that dominate the various ways in which we approach legal concepts today. In showing the diversity of legal sensibilities towards legal concepts, we hope to not only open up the various possibilities and limits of these sensibilities, but to point towards the intellectual cultural resources at the modern scholar’s disposal. Third, and finally, we offer an introduction to the volume itself. Here we outline how we chose its concepts, the types of concepts contained therein, and how we see the complex relations between different concepts.
- Arnoud Willems & Jenya Grigorova, Determination of Customs Value and Warranties: Lessons from the Recent Case Law of the European Court of Justice
- Alejandro García Heredia, The Concept of ‘Good Faith’ in the Particular Case of Preferential Arrangements
- Tadashi Yasui, The Unreliability of Merchandise Trade Statistics
- Enea Fochesato, Origin Marking in the European Union: Mandatory or Voluntary?
Venzke: The International Court of Justice During the Battle for International Law (1955-1975)—Colonial Imprints and Possibilities for Change
The present chapter investigates the role of the International Court of Justice (ICJ) during the battle for international law, roughly between the years of 1955-1975. It first draws attention to the sceptical voices from newly independent states that saw the Court in its role of reinforcing international law’s colonial imprints. The chapter then zooms in on the Court’s captivating highpoint during the battle for international law: the 1962 and 1966 Judgments in South West Africa. Whatever hope there was that the Court could work towards progressive change, it was dashed with the Court’s jarring 1966 decision which, in the eyes of many states, presented the ICJ as a ‘white man’s court’ in a white man’s world. Through archival material the chapter then shows the ripples of the 1966 decision in judicial elections and in the quest to change the composition of the bench. In later years, the Court regained an ambivalence in its judicial practice that it had lost in 1966. The chapter argues in conclusion that, not the least, the present inquiry serves as a vivid reminder that international law and its institutions are the product of a veritable struggle, then as now.
We want to question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: "If there is a sense of reality, there must also be a sense of possibility.” The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.
Conference: The Universal Declaration of Human Rights at Seventy: A Review of Successes and Challenges
- Andrea Gattini, Attila Tanzi & Filippo Fontanelli, Under the Hood of Investment Arbitration: General Principles of Law
- Federico Lenci, General Principles of Law on the Legal Force of Provisional Measures in International Investment Arbitration
- Maria Beatrice Deli, Transparency in the Arbitral Procedure
- Zeno Crespi Reghizzi, General Rules and Principles on State Responsibility and Damages in Investment Arbitration: Some Critical Issues
- Francesco Munari & Chiara Cellerino, Investment Arbitration and EU General Principles of Law: Current Developments
- Andrea Gattini, Jurisdiction ratione temporis in International Investment Arbitration
- August Reinisch, Jurisdiction and Admissibility in International Investment Law
- Christoph Schreuer, Multiple Proceedings
- Piero Bernardini, Annulment of Awards
- Attila Tanzi, The Relevance of the Foreign Investor’s Good Faith
- Vivian Kube & E.U. Petersmann, Human Rights Law in International Investment Arbitration
- Christina Binder, Unjust Enrichment as a General Principle of Law in Investment Arbitration
- Pia Acconci, Sustainable Development and Investment: Trends in Law-Making and Arbitration
- Catharine Titi, Police Powers Doctrine and International Investment Law
- Josef Ostřanský, An Exercise in Equivocation: A Critique of Legitimate Expectations as a General Principle of Law under the Fair and Equitable Treatment Standard
- Matteo Sarzo, The National Treatment Obligation
- N. Jansen Calamita & Ewa Zelazna, Most-Favoured-Nation Clauses and the Centrality and Limits of General Principles
- Ursula Kriebaum, Indirect Expropriation: A Comparative Approach
Sunday, June 10, 2018
- Lea Ypi, Borders of Class: Migration and Citizenship in the Capitalist State
- Jennifer L. Tobin, The Social Cost of International Investment Agreements: The Case of Cigarette Packaging
- Cristina Cielo & Lisset Coba, Extractivism, Gender, and Disease: An Intersectional Approach to Inequalities
- Gregory M. Reichberg & Henrik Syse, Threats and Coercive Diplomacy: An Ethical Analysis
- Alasia Nuti, Temporary Labor Migration within the EU as Structural Injustice
- Review Essays
- Cian O'Driscoll, The Irony of Just War
- Emma S. Norman, Toward a Global Water Ethic: Learning from Indigenous Communities