The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.
Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.
One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.
Saturday, September 22, 2018
The post-Cold War establishment of a series of international criminal tribunals stands as a signal achievement in the recent history of international law. Over time, however, the enthusiasm and optimism that accompanied the establishment of these courts has waned, with tribunals facing fading confidence and, in some cases, backlash from important constituencies. The present chapter provides an overview of historical and more recent examples of opposition to international criminal tribunals, before critically considering recent literature on tribunal backlash and proposing a working definition of this phenomenon. Drawing on the recent pluralist turn in International Relations theory, it then identifies a set of potential drivers/inhibitors of backlash against international criminal tribunals, providing a theoretical taxonomy enabling structured comparison of the dynamics of backlash in the contexts of permanent (the International Criminal Court), ad hoc (the International Criminal Tribunal for the Former Yugoslavia), and hybrid (the Special Tribunal for Lebanon) tribunals. Concluding observations compare the three sets of experiences and identify paths for future research.
Friday, September 21, 2018
- Joost Pauwelyn & Weiwei Zhang, Busier than Ever? A Data-Driven Assessment and Forecast of WTO Caseload
- Menno Broos & Sebastian Grund, The IMF’s Jurisdiction Over The Capital Account—Reviewing the Role of Surveillance in Managing Cross- Border Capital Flows
- Michael Trebilcock & Sally Wong, Trade, Technology, and Transitions: Trampolines or Safety Nets for Displaced Workers?
- Vincent Beyer, Income Tax and Nondiscrimination in the GATT J
- Kyounghwa Kim & Dukgeun Ahn, To Be or Not to Be with Targeted Dumping
- Pierre Sauvé & Marta Soprana, Disciplining Service Sector Subsidies: Where Do We Stand and Where Can We (Realistically) Go?
- Ilaria Espa & Gracia Marín Durán, Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program
- Timothy Meyer & Tae Jung Park, Renegotiating International Investment Law
- Maria Laura Marceddu, Implementing Transparency and Public Participation in FTA Negotiations: Are the Times a-Changin’?
- Rodrigo Polanco Lazo, Valentino Desilvestro, & Azernoosh Bazrafkan, Missing Investment Treaties
The practice of interpretation brings the law to life. It takes part in shaping and making the law. What then is this practice of interpretation? The present chapter distinguishes four different approaches to that question in light of their strategy of critique—whether that critique is formalist, instrumentalist, realist, or immanent. The Chapter first discusses the well-received internal critique in the guise of formalism, followed by external critique in the guise of instrumentalism. These two strategies are united in their focus on what interpreters should do—which interpretation to adopt and how to justify it. A cursory overview of concrete interpretative practice then shows that actors tend to adopt one or the other approach not depending on strong theoretical commitments, but rather strategically with a view of defending certain claims before specific audiences. One may thus well ask what is really going on. Realism, in turn, highlights interpretations as expressions of power and bias. While appealing, realism faces difficulties of its own when it tries to account for the role of reasons and when it commits to strong empiricism. The Chapter finally places emphasis on the strategy of immanent critique. It presents and discusses immanent critique by asking how that strategy of critique thinks about the possibility, direction, and mode of change. In conclusion, the Chapter connects the discussion of different strategies of critique to arguments in the troubled, crisis-prone present.
- Giuliana Ziccardi Capaldo, Getting to a Global Constitution Expanding Human Rights Law: The Application of the No- Impunity Principle to Tax Fraud Offences
- In Memoriam
- Anja Matwijkiw & Bronik Matwijkiw, M. Cherif Bassiouni (1937– 2017)
- Yale H. Ferguson & Richard W. Mansbach, The Decline of the Liberal Global Order and the Revival of Nationalism
- Ramesh Thakur, A Bifurcated Global Nuclear Order: Thou May vs. Thou Shall Not Possess or Use Nuclear Weapons
- Notes and Comments
- Luis A. López Zamora, Normatividad Internacional en Colisión con la Norma Fundamental del Derecho Internacional/ International Normativity in Collision with International Law’s Constitution
- Anja Matwijkiw & Bronik Matwijkiw, Bahrain Anno 2017: Peace or Regime- Change? The Ongoing Human Rights Dilemma and the Ethics Pillar as a Measurement
- In Focus: Global Policies and Law
- Jelena Bäumler, Rise and Shine: The No Harm Principle’s Increasing Relevance for the Global Community
- Nicholas R. Micinski & Thomas G. Weiss, Global Migration Governance: Beyond Coordination and Crises
- Forum - Jurisprudential Cross-Fertilization: An Annual Overview
- Antônio Augusto Cançado Trindade, Contemporary International Tribunals: Jurisprudential Cross- Fertilization in the Case- Law of International Tribunals in Their Common Mission of Realization of Justice
- Juan-Pablo Perez-Leon-Acevedo, International Human Rights Law in the Reparation Practice of the Extraordinary Chambers in the Courts of Cambodia
- Sonja C. Grover, Human Dignity as the Foundation for the Democratic Rule of Law: J.C. Hernandez v. J. Mesa Jr. 582 U.S. _ (2017) as an Illustrative Case
- Yoshifumi Tanaka, Dual Provisional Measures Prescribed by ITLOS and Annex VII Arbitral Tribunal: Reflections on the “Enrica Lexie” Incident Case
- Joseph Massad, Against Self-Determination
- Emma Stone Mackinnon, Promise-Making and the History of Human Rights: Reading Arendt with Danto
- Eva-Maria Muschik, The Art of Chameleon Politics: From Colonial Servant to International Development Expert
- Darcie Fontaine, The Politics of Neutrality: Cimade, Humanitarianism, and State Power in Modern France
- Carlo Invernizzi-Accetti, Catholic Social Doctrine and Human Rights: From Rejection to Endorsement?
- Betsy Konefal, Memory Offensives Where Impunity Reigns
What role do reparations play in international law today? What is the theory behind reparations in different areas/systems of international law? Do reparations play a different role in different areas of international law (human rights, investment law)? How are reparations chosen by judges and arbitrators and how are damages calculated? What is the link between efficiency and reparations? How can reparations be made more efficient? How do judges/arbitrators understand their role in relation to reparations? These questions will be at the centre of an ESIL-sponsored workshop held at the Lauterpacht Centre, University of Cambridge in November 2018. The workshop will seek to address the recent developments and scholarship in the area of reparations (remedies) in international law. It will bring together scholars writing on theory of reparations, those conducting empirical or comparative research, as well as practitioners, judges and arbitrators. The aim is to provide a platform for discussion of new ideas about efficiency of reparations in international law.
Thursday, September 20, 2018
The concluding paper of the volume on the legal framework of the OSCE brings together some of the main empirical and theoretical insights of the research project which has been conducted by lawyers and political scientists, scholars and practitioners, politicians and international civil servants. The variety of contributions results in a diversified yet nuanced analysis of the legal status of the OSCE, a prime example of an informal international organisation. The paper examines their contrasting results as well as their common features and structures along three themes. First, the paper contrasts different roles that the authors ascribe to the OSCE, ranging from a Cold War instrument over an informal mode of governance to a global governance actor in its own right. Second, it analyses the transformation of relevant interests of different actors (states, the OSCE bodies themselves, and governed individuals) which took place since the inception of the Conference/Organization. Third, the paper demonstrates that the competing reform proposals for strengthening the OSCE legal framework manifest divergent underlying ideas about the role and functioning of international organisations, both in the political and the legal dimension. The paper concludes that the debate on the reform of the OSCE’s legal framework should acknowledge the interdependence of effectiveness and legitimacy of the OSCE as a global governance actor and that an OSCE ‘constitution’ would not only empower the OSCE but also render it more accountable.
In armed conflicts around the world, children are being killed, raped, abducted and recruited to fight at a shocking scale. In light of this continuing general failure to protect children in conflict, it is questionable whether existing international law norms and institutions provide sufficient protection and accountability. Consideration needs to be given to whether international law can do more – practically and effectively – when moral lines are crossed.
That is the purpose of this book. It reviews the position of children in armed conflict by reference to the 'six grave violations' as identified by the UN Security Council. It analyses the protection offered by international humanitarian law, international criminal law and international human rights law, and also assesses the related adjudicative accountability mechanisms. The analysis concludes with a number of recommendations and proposals for reform, with a view to enhancing accountability and deterring future violations.
- Irene Watson, Aboriginal relationships to the natural world: colonial ‘protection’ of human rights and the environment
- Louisa Parks, Spaces for local voices? A discourse analysis of the decisions of the Convention on Biological Diversity
- Miriam Cullen, ‘Eaten by the sea’: human rights claims for the impacts of climate change upon remote subnational communities
- Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper & Sandra H Lustig, KlimaSeniorinnen: lessons from the Swiss senior women's case for future climate litigation
Northeast Asia is one of the most important regions of the world both economically and in terms of its historical heritage. The region poses significant challenges for international law whilst international law can unleash cooperative endeavours which can place the region in a formidable location in the new multi-polar world order. This work sets out a contextual regional approach to international law focusing on the relations as between China, South Korea and Japan. In particular the author deliberates on the historical development of international law in the region, the relationship of international law with the Chinese, Korean and Japanese legal systems; historical disputes as between the three States; and the respective practices in the sphere of monetary and trade relations. This work will be of interest to international law scholars, practitioners and policy makers.
Once the exclusive prerogative of domaine réservé, landscape has gained increasing importance in international law in recent years. Since the introduction of cultural landscapes within the UNESCO World Heritage Convention, and particularly since the adoption of the European Landscape Convention (ELC), emphasis has shifted beyond a scenic, preservationist approach towards a more dynamic, human-centred one. The focus is not only on outstanding landscapes, but also on the everyday and degraded landscapes where most people live and work. Landscape is land shaped by people, after all, and its protection, management and planning have a number of implications for democracy, human rights and spatial justice. Despite these links, however, there has been little legal scholarship on the topic.
How does international law, which deals for the most part with universality, deal with something so region-specific and particular as landscape? What is the legal conception of landscape and what are the various roles played by international law in its protection? Amy Strecker assesses the institutional framework for landscape protection, analyses the interplay between landscape and human rights, and links the etymology and theory of landscape with its articulation in law.
Goodale: The Myth of Universality: The UNESCO “Philosophers’ Committee” and the Making of Human Rights
This article reexamines one of the most enduring questions in the history of human rights: the question of human rights universality. By the end of the first decade after the end of the Cold War, debates around the legitimacy and origins of human rights took on new urgency, as human rights emerged as an increasingly influential rubric in international law, transnational development policy, social activism, and ethical discourse. At stake in these debates was the fundamental status of human rights. Based in part on new archival research, this article offers an alternative interpretation of the rediscovery by scholars in the late 1990s of a 1947 UNESCO survey that purported to demonstrate the universality of human rights through empirical evidence. The article argues that this contested intellectual history reflects the enduring importance of the “myth of universality”—a key cultural narrative that we continue to use to find meaning across the long, dark night of history.
Wednesday, September 19, 2018
Schneiderman: ‘Writing the Rules of the Global Economy’: How America Defines the Contours of International Investment Law
Some characterize the standards of protection promoted by investment treaty law as a form of denationalized law. International investment law, it is said, is comprised of generic rules, representing norms of global good governance, and not those of any particular state. This paper argues that investment treaty standards exemplify, in Bourdieu’s terms, the fictitious universalization of the particular case. This is revealed in debates over conferring upon President Obama trade promotion authority to negotiate new mega-regional treaties, like the Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). Disagreement turned, in large part, on the degree to which commitments to foreign investors corresponded to rights found in the US Bill of Rights. Both sides were preoccupied with the question of whether standards for investor protection in mega-regionals looked sufficiently like US constitutional law. By evaluating the strictures of investment treaty protections and US constitutional rights, the paper generates evidence that investor protections, while resembling those rights, surpass them by a considerable distance. So long as the origins of the content of investment treaty commitments remain misrecognized, US political actors will continue hold a monopoly in determining the content of the universal.
Recent years have seen a blossoming of scholarship on the philosophical concept of human rights, and the related notion of human rights law, with contributions from authors as diverse as Allen Buchanan, Charles Beitz, Costas Douzinas, James Griffin, and Gunther Teubner. The objective of this roundtable is to consider the distinctive offering from systems theory to the debate, including the closed systems theory of autopoiesis and open theory of complexity.
Tuesday, September 18, 2018
State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary sovereignty fit this pattern. All others are de facto more like private entities, which by definition cannot manipulate their own survival constraint. States can surrender their monetary sovereignty directly by adopting another currency or by issuing their own debt in foreign currency and under foreign law. They also compromise their sovereignty by permitting unlimited capital inflows denominated in currencies other than their own. This is because in times of crisis they will not be able to rescue the domestic financial system from its tendency to self-destruct without subjecting itself to a sovereign debt crisis and the implied need to rely on a lifeline from other states or supranational entities.
Sexual exploitation and abuse by United Nations (UN) peacekeepers is not an isolated or recent problem, but it has been present in almost every peacekeeping operation. A culture of sexual exploitation and abuse is contrary to the UN’s zero-tolerance policy and has been the target of institutional reforms since 2005. Despite this, allegations of sexual abuse continue to emerge, and the reforms have not solved the problem. This book is a response to the continued lack of accountability of UN peacekeepers for sexual exploitation and abuse. Focusing on military contingent members, this book aims to analyse ways in which the UN can fill the accountability gap while taking a feminist perspective and emphasising the needs of victims, their communities, and the host state.
This book directly challenges the status quo of relying on troop-contributing countries (TCCs) to hold their peacekeepers to account. It proposes first, the establishment of a series of hybrid courts, and second, a mechanism for dealing with victim rehabilitation and reparation. It addresses these topics by considering international and human rights law and will be of interest to researchers, academics, policymakers, and students with an interest in international criminal law, United Nations peacekeeping, and peace studies.
Re-posting this in the hope of garnering greater support for ILR.
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Monday, September 17, 2018
Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American states accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of states and the individual, creating a kind of inter-American constitutionalism.
Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts, in particular, have become less receptive, and at times even opposed to what they perceive as a too aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.
In an effort to balance investment protection with other policy concerns states are increasingly inserting general public policy exceptions into their international investment agreements. A first wave of cases has recently interpreted and applied these exceptions putting the effectiveness of this state-led treaty design reform to the test. In this article, we introduce the different types of general public policy exceptions found in investment treaties and systematically analyze the case law rendered thereunder. We find that although public policy exceptions are becoming more prominent in treaty practice, in 2016 every third newly concluded treaty contained such a clause, they are largely missing in action. Respondents fail to raise them appropriately and tribunals pay little attention to them. As a result, the numerous and complex interpretive issues raised by these exceptions remain unresolved and their impact on investment jurisprudence remains modest at best. We conclude by recommending that responding states and tribunals should engage with general public policy exceptions more thoroughly.
- Ian Yuying Liu, The Chinese Dream, Neoliberalism, and International Legal Ideology
- Dilini Pathirana, Rising China and Global Investment Governance: An Overview of Prospects and Challenges
- Hongling Ning and Tong Qi, Multilateral Investment Court: The Gap Between the EU and China
- Shreya Atrey, The Intersectional Case of Poverty in Discrimination Law
- Stephanie E Berry, Aligning Interculturalism with International Human Rights Law: ‘Living Together’ without Assimilation
- Robert Spano, The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law
- Janneke Gerards, Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights
- Silvia Favalli, The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’
- Tom Ruys & Emre Turkut, Turkey’s Post-Coup ‘Purification Process’: Collective Dismissals of Public Servants under the European Convention on Human Rights
- Fabrice Langrognet, The Best Interests of the Child in French Deportation Case Law
- Daniel Augenstein, Torture as Tort? Transnational Tort Litigation for Corporate-Related Human Rights Violations and the Human Right to a Remedy
This article responds to the arguments made by Dani Rodrik in his book Straight Talk on Trade: Ideas for a Sane World Economy. It does so from the perspectives of international economic law and international law theory. The book calls for striking a different, better balance between economic globalization and the nation-state. It interweaves theory, empirics, and proposals in the tradition of economic pragmatism. Its focus on institutions, social context, and the importance of innovative, adaptive practice reflects new legal realism in legal scholarship. Part I assesses the book in light of transnational legal theory, analyzing the recursive relation of international and domestic law in an interconnected world. Part II views the book in terms of its lessons for international law theory from a new legal realist perspective. Part III concludes regarding what should be done and avoided in response to current crises. Decrying the risks to the “liberal international order” is not enough. We must also address the mistakes made so as to enhance policy space for nation-states. Otherwise economic integration could catalyze further social disintegration. Building inclusive, democratic societies at home will better ensure inter-state cooperation through international economic law. Their relationship is transnationally enmeshed.
Sunday, September 16, 2018
World Trade Organisation (WTO) trade remedies (antidumping, anti-subsidy and safeguard agreements) are instruments used by WTO members to counter the economic injury caused by dumping, subsidies and the sudden and unforeseen increased imports. They are exceptions to the WTO principle of free trade and to the prohibition for States to react unilaterally to protect their own rights and interests, and as a result they have been accused by some as being the new tools of protectionism.
This book analyses of the role and principles of WTO trade remedies in international law. In particular, it focuses on their aims, their structure, and their position within the WTO and more in general, the international legal system. The book considers trade remedies in light of fragmentation theories of international law and addresses the question how, and to what extent WTO law reflects and influences public international law.
The Hidden Hands of Justice: NGOs, Human Rights, and International Courts is the first comprehensive analysis of non-governmental organization (NGO) participation at international criminal and human rights courts. Drawing on original data, Heidi Nichols Haddad maps and explains the differences in NGO participatory roles, frequency, and impact at three judicial institutions: the European Court of Human Rights, the Inter-American Human Rights System, and the International Criminal Court. The Hidden Hands of Justice demonstrates that courts can strategically choose to enhance their functionality by allowing NGOs to provide needed information, expertise, and services as well as shame states for non-cooperation. Through participation, NGOs can profoundly shape the character of international human rights justice, but in doing so, may consolidate civil society representation and relinquish their roles as external monitors.