Friday, August 31, 2018
Erie: The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”
This book explores the prosecution of wartime sexual violence in international criminal law and asks what the juridicalisation of gender-based violence signifies for women. The book explores the portrayal of the various gendered identities that surface in armed conflict and it asks whether the law is capable of reflecting these in subsequent judgements. Focusing on the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda as well as subsequent developments in the International Criminal Court, the book shows how the tribunals have delivered landmark jurisprudence in the area of sexual violence against women and provided a legacy for how gender justice is incorporated into international law. However, Daniela Nadj argues that in the relevant cases there is a tendency to depict women in monolithic fashion with little agency or sense of identity beyond their ethnicity. By bringing to the surface the complexity and multi-faceted gendered identities in wartime, the book calls for a reconceptualisation of notions of femininity in armed conflict.
Dothan: The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights
The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights (ECHR) has developed its own version of these rules of interpretation—a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.
The Military Law and the Law of War Review
Call for Papers
The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. Published since 1962, it is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world.
The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch.
For its coming issue, the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)).
The deadline for submission is 31 October 2018.
Submissions should be sent by e-mail to firstname.lastname@example.org and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address.
Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue will appear in the course of 2019.
de la Rasilla del Moral: Playing Hide and Seek with ‘Vergangenheit, Die Nicht Vergehenwill’ (‘A Past that Will Not Pass’) in the History of International Law
The first part of the chapter reviews the enactment of the Spanish Historical Memory Act (HMA) and examines three of its most polemical areas of implementation in the light of the concerns several United Nations human rights bodies charged with overseeing the conflictual politics of historical memory in Spain have raised. The second part of the chapter builds on Spanish experience in examining some of the most common hurdles, including methodological ones, that an incoming democratic generation of international lawyers may face when attempting a balanced exploration of the history of international law after a long period of authoritarian rule in their home country.
- Special Issue: Experts in the International Adjudicative Process
- Laurence Boisson de Chazournes, Hélène Ruiz Fabri, Makane Moïse Mbengue, Rukmini Das, & Guillaume Gros, The Expert in the International Adjudicative Process: Introduction to the Special Issue
- Mohamed Bennouna, Experts before the International Court of Justice: What for?
- James Flett, When is an Expert not an Expert?
- Geoffrey Senogles, Some Views from the Crucible: The Perspective of an Expert Witness on the Adversarial Principle
- Cherise Valles, Different Forms of Expert Involvement in WTO Dispute Settlement Proceedings
- Joan E Donoghue, Expert Scientific Evidence in a Broader Context
- Kate Cook, Judging ‘Best Available Science’: Emerging Issues and the Role of Experts
- Isabelle Van Damme, The Assessment of Expert Evidence in International Adjudication
- José E Alvarez, The Search for Objectivity: The Use of Experts in Philip Morris v Uruguay
- Marisa Goldstein, Legal Basis and Procedures for Consulting with Experts and International Organizations in WTO Dispute Settlement
- Philippe Gautier, Experts before ITLOS: An Overview of the Tribunal’s Practice
- Kate Parlett, Parties’ Engagement with Experts in International Litigation
- Mélida Hodgson & Melissa Stewart, Experts in Investor-State Arbitration: The Tribunal as Gatekeeper
- Brendan Plant, Expert Evidence and the Challenge of Procedural Reform in International Dispute Settlement
- Jean-Marc Sorel, Symposium—The Expert in the International Adjudicative Process: Concluding Observations
- Laurence Boisson de Chazournes, Makane Moise Mbengue, Rukmini Das, & Guillaume Gros, One Size does not Fit All—Uses of Experts before International Courts and Tribunals: An Insight into the Practice
- Current Developments
- Patrick Dumberry, Requiem for Crimea: Why Tribunals Should Have Declined Jurisdiction over the Claims of Ukrainian Investors against Russian under the Ukraine–Russia BIT
- Guy Fiti Sinclair, A ‘Civilizing Task’: The International Labour Organization, Social Reform, and the Genealogy of Development
- Melissa H. Loja, A Critical Legal Approach to the South China Sea Territorial Dispute
- Ivar Alvik, Protection of Private Property in the Early Law of Nations
Thursday, August 30, 2018
- Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law
- Anthea Roberts, Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration
- Editorial Comment
- In Memoriam
- International Decisions
- Angeliki Papantoniou, Advisory Opinion on the Environment and Human Rights
- Björn Arp, Slowakische Republik (Slovak Republic) v. Achmea B.V.
- Jonas Nilsson, Prosecutor v. Bemba et al.
- Nicolás Carrillo-Santarelli, Gender Identity, and Equality and Non-discrimination of Same Sex Couples
- Contemporary Practice of the United States Relating to International Law
- Jean Galbraith, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- John R. Crook, reviewing The Role of Legal Advisers in International Law, edited by Andraž Zidar and Jean-Pierre Gauci
- Saikrishna Bangalore Prakash, reviewing Waging War: The Clash Between Presidents and Congress 1776 to ISIS, by David J. Barron
- Teemu Ruskola, reviewing Queering International Law: Possibilities, Alliances, Complicities, Risks, edited by Dianne Otto
- Yutaka Arai-Takahashi, reviewing The Writing on the Wall: Rethinking the International Law of Occupation, by Aeyal Gross
- Theodor Meron,
Closing the Accountability Gap: Concrete Steps Toward Ending Impunity for Atrocity Crimes
- Charles N. Brower,
In Memoriam David D. Caron (1952–2018)
- Martins Paparinskis, We Will Always Have International Law: Editorial Note
- Enrico Milano, Territorial Conflicts and Disputes in Europe: What Role for International Law in the 21st Century?
- Przemyslaw Tacik, Attribution of Responsibility after the EU Accession to the ECHR and the “Co-Respondent Mechanism”
- Geir Ulfstein & Andreas Zimmermann, Certiorari through the Back Door? The Judgment by the European Court of Human Rights in Burmych and Others v. Ukraine in Perspective
- Millicent McCreath & Zoe Scanlon, Prospects for the Future Use of ITLOS Ad Hoc Special Chambers after the Ghana/Côte d’Ivoire Case
- Yateesh Begoore, Uniting for Enforcement: Resolving the World Court’s Enforcement Gap
- Patrick Dumberry, Terra Incognita: What Happens When a Problem of State Succession Occurs during Arbitration Proceedings?
- Arnaud de Nanteuil, Counterclaims in Investment Arbitration: Old Questions, New Answers?
- José M. Cortés-Martín, The Long Walk to Strasbourg: About the Insufficient Judicial Protection in Some Areas of the Common Foreign and Security Policy before the European Union’s Accession to the ECHR
Wednesday, August 29, 2018
- Harry Barnes-Dabban & Sylvia Karlsson-Vinkhuyzen, The influence of the Regional Coordinating Unit of the Abidjan Convention: implementing multilateral environmental agreements to prevent shipping pollution in West and Central Africa
- Andreas Kokkvoll Tveit, Can the management school explain noncompliance with international environmental agreements?
- Steinar Andresen, G. Kristin Rosendal, & Jon Birger Skjærseth, Regulating the invisible: interaction between the EU and Norway in managing nano-risks
- Elen Akopova, Assiya Nursapa, & Ilyas Kuderin, Current environmental problems in member states of the Eurasian Economic Union
- Fran Humphries, Sharing aquatic genetic resources across jurisdictions: playing ‘chicken’ in the sea
- Jen Iris Allan, David Downie, & Jessica Templeton, Experimenting with TripleCOPs: Productive innovation or counterproductive complexity?
- Jing Wu & Jean-Claude Thill, Climate change coalition formation and equilibrium strategies in mitigation games in the post-Kyoto Era
- Janina Heim, Max Krott, & Michael Böcher, Nomination and inscription of the “Ancient Beech Forests of Germany” as natural World Heritage: multi-level governance between science and politics
- Anne-Kathrin Weber, The revival of the Honourable Merchant? Analysing private forest governance at firm level
Summers & Gough: Non-State Actors and International Obligations: Creation, Evolution and Enforcement
- James Summers, Introduction
- Klara Polackova Van der Ploeg, Treaty Obligations of Collective Non-State Entities: The Case of the Deep Seabed Regime
- Michael Mulligan, The East India Company: Non-State Actor as Treaty-Maker
- Agata Kleczkowska, Armed Non- State Actors and Customary International Law
- Eva Kassoti, Ad Hoc Commitments by Non-State Armed Actors: The Continuing Relevance of State Consent
- Valentina Vadi, Exploring the Borderlands: The Role of Private Actors in International Cultural Law
- Federica Cittadino, Shaping the Convention on Biological Diversity: The Rising Importance of Indigenous Peoples within the Nagoya Protocol on Access and Benefit-Sharing
- Ekaterina Yahyaoui Krivenko, Exploring the Future of Individuals as Subjects of International Law: The Example of the Canadian Private Sponsorship of Refugees Programme
- Javier García Olmedo, Redefining the Position of the Investor in the International Legal Order and the Nature of Investment Treaty Rights: A Closer Look at the Relationship between Diplomatic Protection and Investor-State Arbitration
- Simone F. van den Driest, Tracing the Human Rights Obligations of UN Peacekeeping Operations
- Gintarė Pažereckaitė, An Elephant in the Room: the Scrutiny of the United Nations in the Practice of the European Court of Human Rights
- Ioana Cismas and Sarah Macrory, The Business and Human Rights Regime under International Law: Remedy without Law?
- Natalia Cwicinskaja, International Human Rights Law and Territorial Non-State Actors: Cases of the Council of Europe Region
- Emily Choo, The Impact of Non-State Actors’ Intervention in Investor-State Arbitration: A Further Study
- Tomas Vail, The Brčko Arbitration: A Process for Lasting Peace between Non-State Actors
- Adamantia Rachovitsa, International Law and the Global Public Interest: ICANN’s Independent Objector as a Mechanism of Responsive Global Governance
- Katharine Fortin, The Relevance of Article 9 of the Articles on State Responsibility for the Internationally Wrongful Acts of Armed Groups
- Tatyana Eatwell, State Responsibility, ‘Successful’ Insurrectional Movements and Governments of National Reconciliation
- Paloma Blázquez Rodríguez, Does an Armed Group have an Obligation to Provide Reparations to Its Victims? Construing an Obligation to Provide Reparations for Violations of International Humanitarian Law
- Anna Marie Brennan, Prosecuting Members of Transnational Terrorist Groups under Article 25 of the Rome Statute: A Network Theory Approach to Accountability
- Jeffrey Davis, NGO s in Terrorism Cases: Diffusing Norms of International Human Rights Law
- Zia Akhtar, Naxalite Rebellion: Domestic Law and Order, and Humanitarian Law in a Non International Armed Conflict
- Matthew Bywater, Classical and Political Humanitarianisms in an Era of Military Interventionism and the War on Terror
- Grant Dawson & Rachel Laut, Human Mobility and Climate Change
- Michael John-Hopkins, Mapping War, Peace and Terrorism in the Global Information Environment
- Artem Sergeev, Applying Additional Protocol II of the Geneva Conventions to the United Nations Forces
The 2018 conference will take a hard and unflinching look at the multitude of roles and functions played by universality in international legal discourses as well as its associated narratives of progress and virtues. In doing so, it will provide a critical appraisal of the mechanisms of inclusion and exclusion that come with international law and its universalist discursive strategies. This will require that universality is not reduced to the question of the geographical outreach of international law, but instead, is understood in terms of boundaries. This will also entail examining how the idea of universality – which does not lend itself to a translation in all languages – was developed in some of the dominant vernaculars of international law – primarily English and French – before being universalised and imposed upon international lawyers from all traditions. This will simultaneously offer an opportunity to revisit the ideologies that constitute the identity of international lawyers today, as well as the socialisation, reproduction and legal educational processes which they undergo to become international lawyers. Special attention will be paid to the place which Europe has secured for itself by virtue of the progress and historical narratives built around the idea of universality.
In recent decades, however, the virtues and ostensible progress commonly associated with universality have been contested. As is illustrated by the several generations of Third World Approaches to International Law, international lawyers have argued that universality can function as an ideology as well as an instrument of domination and exclusion. They have come to realise that the way in which universality is deployed in international legal discourses constantly creates a periphery and an otherness which suppresses memory and struggle. Just as the use of the idea of humanity fuelled scepticism in the middle of the 20th century (see e.g. Schmitt), the invocation of universality has come to arouse suspicion among international lawyers. For many TWAIL and post-colonialist theorists, “whoever invokes universality wants to cheat”.
Tuesday, August 28, 2018
- Alex G. Oude Elferink, Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC
- Youna Lyons; Denise Cheong; Mei Lin Neo & Hiu Fung Wong, Managing Giant Clams in the South China Sea
- Hyun Jung Kim, Governing Fishing Stocks in Northeast Asia’s Disputed Waters: Preventing a ‘Tragedy of the Commons’?
- M.M. Losier, The Conflict between Sovereign Immunity and the Cargo of Sunken Colonial Vessels
- Camille Goodman, Rights, Obligations, Prohibitions: A Practical Guide to Understanding Judicial Decisions on Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone
- Said Mahmoudi, Use of Armed Force against Suspected Foreign Submarines in the Swedish Internal Waters and Territorial Sea
Monday, August 27, 2018
The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of the federal common law of foreign relations–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional basis for the federal common law of foreign relations have eroded. In an important new book, The Law of Nations and the United States Constitution, Anthony J. Bellia, Jr. and Bradford R. Clark argue that the Constitution itself requires courts to apply customary international law in these two areas. Their argument fails to convince. A better alternative is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy.
This chapter argues that the very first situation before the International Criminal Court is illustrative of how the globalisation of international criminal justice amplifies some voices while silencing others. The chapter shows how in northern Uganda the globalisation of criminal justice offered a site for what Martti Koskenniemi has called ‘the politics of re-description’ and we give four examples: (1) the struggle between a military approach and reconciliation efforts in the period prior to ICC intervention; (2) the ICC referral as a way to re-describe the conflict and to continue a military approach; (3) the Juba peace process as a negotiation between legal and other approaches and (4) the post-Juba period, in which a political agreement is approached legalistically.