Thursday, October 11, 2018

Verdier & Versteeg: Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey

Pierre-Hugues Verdier (Univ. of Virginia - Law) & Mila Versteeg (Univ. of Virginia - Law) have posted Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey (in The Oxford Handbook of Comparative Foreign Relations Law, Curtis A. Bradley ed., forthcoming). Here's the abstract:
This chapter examines from a comparative perspective the national legal regimes that govern treaty-making and treaty withdrawal, functions that in many countries were traditionally vested in the executive. Drawing from an original dataset that covers 101 countries for the period 1815-2013, the chapter identifies several large-scale trends. First, it confirms a sustained trend towards greater parliamentary involvement in treaty-making. Second, it shows that many countries recognize executive agreements and other alternative procedures through which the executive can conclude internationally binding agreements without parliamentary approval, but that these “work-arounds” are typically subject to significant constraints affecting the executive’s discretion and the domestic legal status of the resulting agreements. Third, it shows that in recent years several countries have introduced constraints on the executive’s ability to withdraw from treaties without parliamentary approval. Finally, it draws attention to the little-noticed role of national judiciaries in treaty-making, by showing that in many legal systems treaties are subject to constitutional review prior to ratification. The chapter discusses the implications of these four trends, all of which represent moves away from the executive-dominated world of traditional treaty relations. It hypothesizes that these trends respond to growing separation of powers concerns as treaties increasingly shape domestic law.

Wednesday, October 10, 2018

Lectures: Upcoming ESIL Lectures (Tams, Distefano)

The ESIL Lecture Series continues this fall with lectures by Christian Tams (Univ. of Glasgow - Law) on "The Centenary of a « Great Experiment » : The League of Nations and its Legacy," October 23, 2018, at the University of Geneva, and by Giovanni Distefano (Univ. of Neuchâtel - Law) on "Le pacte Briand-Kellog à l’heure de ses 90 ans – La consécration d’une idée révolutionnaire," November 27, 2018, at the University of Geneva. Video of previous lectures can be found here.

New Issue: Journal on the Use of Force and International Law

The latest issue of the Journal on the Use of Force and International Law (Vol. 5, no. 2, 2018) is out. Contents include:
  • Articles
    • Dennis R. Schmidt & Luca Trenta, Changes in the law of self-defence? Drones, imminence, and international norm dynamics
    • Anne Peters, Between military deployment and democracy: use of force under the German constitution
    • Yasmine Nahlawi, The legality of NATO's pursuit of regime change in Libya

Davidson: Process-Tracing the Meaning of International Human Rights Law

Natalie Davidson (Tel Aviv Univ. - Law) has posted Process-Tracing the Meaning of International Human Rights Law (in Handbook on Research Methods in International Law, Rossana Deplano & Nicholas Tsagourias eds., forthcoming). Here's the abstract:
This chapter argues that process-tracing, a qualitative methodology for conducting case studies, has much to contribute to the socio-legal study of international law. Process-tracing is the meticulous tracing of links between possible causes and outcomes based on a large amount of data from a variety of sources. Drawing examples from two studies conducted by the author in the field of international human rights law, the chapter illustrates how this methodology can shed light on the social forces shaping international norms and the social impact of international legal mechanisms. Moreover, the chapter argues that process-tracing is particularly useful in those inter-disciplinary projects that seek to account for the social meaning of legal doctrine, procedure and institutional structure. This is because the high resolution it provides, together with the rich contextualization of case-studies, allow the researcher to pinpoint the part played by legal form in the studied phenomenon.

Tuesday, October 9, 2018

Goldmann: Hopes of Progress: European Integration in the History of International Law

Matthias Goldmann (Goethe-Universität Frankfurt am Main - Law) has posted Hopes of Progress: European Integration in the History of International Law. Here's the abstract:
This paper argues that the Treaties of Rome and the process of European integration they heralded had a lasting impact on the development of international law. However, their significance is usually misattributed. While European law has had little impact on international legal doctrine, and while European integration has remained unique as a political project, European law and the process of European integration have served international law as an important progress narrative. In this respect, they have had an influence on important background understandings characterizing international law since the postwar era, including on the perception of international law as universal, autonomous, pluralistic, and economically liberal. The progress narrative culminates in the view that international law is in a normatively ambitious process of constitutionalization, an idea imported from European law. This progress narrative is now under threat as European integration faces existential difficulties.The crisis of European integration might therefore anticipate a crisis of international law.

Allen: Determining the Legal Status of Unmanned Maritime Vehicles: Formalism vs Functionalism

Craig H. Allen (Univ. of Washington - Law) has posted Determining the Legal Status of Unmanned Maritime Vehicles: Formalism vs Functionalism. Here's the abstract:
The introduction of unmanned maritime vehicles (UMV) raises a number of international law issues. In its 1951 decision in the Anglo-Norwegian Fisheries case the International Court of Justice set out the formal, two-step approach for analyzing such international law questions. For most maritime nations, the legal status of UMV is governed principally by the 1982 UN Convention on the Law of the Sea. To the extent the status question requires interpretation of that Convention, the 1969 Vienna Convention on the Law of Treaties prescribes the method. In their rush to accommodate the introduction of UMV into the world’s waterways, some UMV advocates appear ready to circumvent established methods for making, amending, and interpreting treaties. This article argues that respect for the global rules-based order argues against such expediencies.

Sullo: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda

Pietro Sullo (Univ. of Kent - Brussels School of International Studies) has published Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda - The Search for Truth, Justice and Reconciliation (Asser Press 2018). Here's the abstract:

Combining both legal and empirical research, this book explores the statutory aspects andpractice of gacaca courts (inkiko gacaca), the centrepiece of Rwanda’s post-genocide transitionaljustice system, assessing their contribution to truth, justice and reconciliation. Thevolume expands the knowledge regarding these courts, assessing not only their performancein terms of formal justice and compliance with human rights standards, but also their actualmodus operandi.

Scholars and practitioners have progressively challenged the idea that genocide should beaddressed exclusively through ‘westernised’ criminal law, arguing that the uniqueness ofeach genocidal setting requires specific context-sensitive solutions. Rwanda’s experience withgacaca courts has emerged as a valuable opportunity for testing this approach, offering newhome-grown solutions for dealing with the violence experienced in 1994 and beyond that werenever previously tried. Due to their unique features, gacaca courts have attracted the attentionof researchers from different disciplines and triggered dichotomous reactions and appraisals.

Anchoring the assessment of gacaca courts in a comprehensive legal analysis in conjunctionwith field research, this book addresses the tensions existing within the literature. Throughthe direct observation of gacaca trials, interviews and informal talks with genocide survivors,defendants, ordinary Rwandans, academics and practitioners, a purely legalistic perspectiveis overcome, offering instead an innovative bottom-up approach to meta-legal concepts suchas justice, fairness, truth and reconciliation. Outlining their strengths and shortcomings, thisbook highlights what aspects of gacaca courts can be useful in other post-genocide contexts,and provides crucial lessons learned in the realm of transitional justice.

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 18, no. 5, October 2018) is out. Contents include:
  • Joana Carlos Bezerra, Jan Sindt, & Lukas Giessen, The rational design of regional regimes: contrasting Amazonian, Central African and Pan-European Forest Governance
  • Daniel Puig, James Arthur Haselip, & Fatemeh Bakhtiari, The mismatch between the in-country determinants of technology transfer, and the scope of technology transfer initiatives under the United Nations Framework Convention on Climate Change
  • Maria Schultz, Thomas Hahn, Claudia Ituarte-Lima, & Niclas Hällström, Deliberative multi-actor dialogues as opportunities for transformative social learning and conflict resolution in international environmental negotiations
  • Federico Galán-Valdivieso, Elena Villar-Rubio, & María-Dolores Huete-Morales, The erratic behaviour of the EU ETS on the path towards consolidation and price stability
  • Maryam Jafroudi, Enhancing climate resilience of transboundary water allocation agreements: the impact of shortening the agreement’s lifetime on cooperation stability
  • A. Jiménez-Madrid, S. Gómez, G. Gémar, & C. Martínez, A proposed methodology for assessing the economic needs of safeguard zones protecting groundwater intended for human consumption within the context of the European Water Framework Directive

Bell: The UNCITRAL Model Law and Asian Arbitration Laws: Implementation and Comparisons

Gary F. Bell (National Univ. of Singapore - Law) has published The UNCITRAL Model Law and Asian Arbitration Laws: Implementation and Comparisons (Cambridge Univ. Press 2018). The table of contents is here. Here's the abstract:
In the Asia-Pacific, thirty-eight jurisdictions have adopted the UNCITRAL Model Law on International Commercial Arbitration. This book looks at how the text and the principles of the Model Law have been implemented (or not) in key Asian jurisdictions. Most of the jurisdictions covered in this book have declared that they have adopted the Model Law but often with significant modifications. Even when jurisdictions adopt some provisions of the Model Law verbatim, their courts may have interpreted these provisions in a manner inconsistent with their goals and with how they are interpreted internationally. When a jurisdiction has not adopted the Model Law, the chapter compares its legislation to the Model Law to determine whether it is consistent with its principles. Each chapter follows the structure of the Model Law allowing the reader to easily compare the arbitration laws of different jurisdictions on each topic.

Call for Papers: ANZSIL International Economic Law Interest Group 2019 Workshop

The International Economic Law Interest Group of the Australian and New Zealand Society of International Law has issued a call for papers for its 2019 workshop, which will take place February 15, 2019, at the University of Canterbury. The call is here.

Wang: Building Towards the RCEP? Reflections on the ASEAN-China FTA

Heng Wang (Univ. of New South Wales - Law) has posted Building Towards the RCEP? Reflections on the ASEAN-China FTA (in ASEAN Law in the New Regional Economic Order: Global Trends and Shifting Paradigms, Pasha L. Hsieh & Bryan Mercurio eds., forthcoming). Here's the abstract:
Among the ASEAN’s external FTAs, the ASEAN-China Free Trade Agreement (ACFTA) is of great significance to both the ASEAN and China. The ACFTA was one of the earliest trade pacts concluded by China. It is also part of the ASEAN’s broader push toward concluding FTAs outside the multilateral trading system, in line with the proliferation of regional trade pacts. This chapter will analyze the following questions: what is the approach of the ACFTA? What are the implications of the ACFTA for the the Regional Comprehensive Economic Partnership (RCEP)? What national implementation issues are involved with the ASEAN? The potential implications of the AHKFTA will be explored. The ACFTA does reflect a more flexible approach than other Chinese FTAs, and its implementation faces a number of challenges. It may contribute to the shaping of the RCEP.

Brückner: Minderheitenschutz im Völkerstrafrecht

Wenke Brückner has published Minderheitenschutz im Völkerstrafrecht (Nomos 2018). Here's the abstract:
Minderheiten sind als Opfer von Völkerstraftaten unfreiwillige Akteure des Völkerstrafrechts, jedoch nur bedingt durch die relevanten Tatbestände des Völkermords, der Menschlichkeitsverbrechen und Kriegsverbrechen geschützt. Das allgemeine Völkerrecht gewährt Minderheiten im Rahmen der Menschenrechte aus verschiedenen Gründen eigene Rechtspositionen und schützt so deren eigenständige Identität. Demgegenüber komplementiert das Völkerstrafrecht diesen Schutz durch die Sanktionierung massiver Menschenrechtsverletzungen nur in einem eingeschränkten Umfang. Um diesen Schutzumfang und Art und Weise des Schutzes von Minderheiten zu bestimmen, vergleicht die vorliegende Untersuchung allgemeines Völkerrecht und Völkerstrafrecht. Dabei ist maßgeblich, inwieweit das Völkerstrafrecht Minderheiten spezifisch in ihrer Identität berücksichtigt und welche anerkannten Rechtspositionen von Minderheiten es unmittelbar oder mittelbar schützt.

Monday, October 8, 2018

Grzebyk: The Status of Police in Armed Conflicts

Patrycja Grzebyk (Univ. of Warsaw - Institute of International Relations) has published The Status of Police in Armed Conflicts (Israel Yearbook on Human Rights, Vol. 48, 2018). Here's the abstract:

Police members as well as police stations are often a key target during armed conflicts, as confirmed by fatalities statistics. They are attacked by non-State armed groups and by State forces as well. The chapter evaluates from the perspective of the law of targeting the status of police members and police property such as stations, weapons, vehicles, and materials, in international armed conflicts and non-international armed conflicts. It also assesses police conduct in light of definition of direct participation in hostilities.

The chapter argues that police agents are, in principle, civilians whose routine activities are not hostile. Therefore, they are afforded protection – unless they engage in hostilities. In international armed conflicts, States may incorporate law enforcement agencies into their armed forces, which gives their agents the status of combatants. However, broad interpretation of exceptions from the lack of immunity should be applied. In non-international armed conflicts in which State forces are engaged, the police in principle are part of the broad notion of armed forces. This is reinforced by their engagement in fighting with non-State armed groups often described as criminals. However, because there is no combatant status in NIACs, the attacks against police can be assessed as lawful only if they are based on the conduct of particular units and/or persons, namely on their direct participation in hostilities or, in other words, their combat function. In reference to police stations, vehicles, weapons, etc., the chapter argues that they are not military objectives purely because of their nature; they can be used for civilian purposes as well. Rather, police property can become a military objective because of its location and use (either current or future, if the future use is nearly certain). The likelihood of a police station being classified as a military objective is greater in NIACs because law enforcement agencies typically play a part in combating non-State armed groups and their routine actions, such as confiscation of illegal weapons, checking identity documents, and transmission of information to headquarters that might be considered as an engagement in hostilities.

Call for Submissions: Is Customary International Law a Dancefloor?

The International Community Law Review has issued a call for submissions for a special issue on "Is Customary International Law a Dancefloor?" Here's the call:

Call for Papers: Is Customary International Law a Dancefloor?

International Community Law Review Journal

In 2014 Jean D’Aspremont in two blogs on EJIL Talk! commented on and analysed a phenomenon which he termed as ‘ Customary International Law as a Dance Floor: here (part I) and here (part II).

While commending the self-restraint of the ILC Special Rapporteur on the identification of customary international law, he argued that the work of the ILC:

‘…on the identification of customary international law has laid bare the prodigious emancipatory fervour at work outside the Palais des Nations. Particularly remarkable is the widespread presupposition that, in order to allow customary international law to serve the various agendas of ambitious 21st century international lawyers, one can simply toss out some of the elementary constraints around which the 20th century modern theory of customary international law had been shaped.

‘… the emancipation from the traditional theory of customary international law at play in international legal scholarship, and unveiled by the current work of the ILC, is perplexing. This is certainly not because the traditional and modern theory of customary law should be redeemed. The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. What is perplexing is that international lawyers may currently be replacing the duplicitous prison of customary international law with a dance floor where (almost) anything goes while still believing that this uncomplicated discourse-production technique can serve all their – sometimes extravagant – ambitions. It is contended in the following observations that this argumentative freedom is not only bound to be short-lived but may also end up depriving international lawyers of what has so far been a surprisingly useful discursive technique to create authority and make demands of the world’.

We are inviting articles commenting on this statement for the Special Issue of the International Community Law Review Journal, taking into consideration practice of states, judicial decisions and scholarly views.

The Journal calls for submission of abstracts not exceeding 500 words on the issues described above, or related areas of interest, no later than 15 December 2018. After the abstracts are reviewed, in early January the Editorial Committee will invite a number of contributors to submit full papers of no more than 15, 000 words (including an abstract and footnotes) by 31 March 2019. All papers submitted to the Journal are subject to its double-blind peer-review policy.

It is expected that the special issue will be published in the Journal in its third issue of the year in August 2019. For questions and further information, including on the Journal ’s style requirements, please contact the Managing Editor at:

Niv: The Immunity of Judge Akay in Turkey: A Test Case for International Judges' Immunity and Independence

Ady Niv has posted an ASIL Insight on The Immunity of Judge Akay in Turkey: A Test Case for International Judges' Immunity and Independence.

Keller-Kemmerer: Die Mimikry des Völkerrechts: Andrés Bellos 'Principios de Derecho Internacional'

Nina Keller-Kemmerer has published Die Mimikry des Völkerrechts: Andrés Bellos 'Principios de Derecho Internacional' (Nomos 2018). Here's the abstract:
Die Völkerrechtsgeschichte wird bis heute dominiert von einer eurozentrischen Historiographie, in der außereuropäische Welten – wenn überhaupt – eine rein passive Rolle spielen. Nicht als Akteure, sondern lediglich als Rezipienten werden sie im Zuge der sogenannten Universalisierungsprozesse im 19. Jahrhundert Teil dieser Meistererzählung. Diese transdisziplinäre Studie versucht anhand der ersten Völkerrechtslehre Hispanoamerikas dieses Narrativ der Passivität neu zu denken. Der chilenische Universalgelehrte Andrés Bello übersetzte in diesem Kompendium von 1833 die europäischen Lehren für die „Neue Welt“. Aufbauend auf einer postkolonialen Perspektive wird gezeigt, dass die Nachahmung des europäischen Völkerrechtsdiskurses mehr ist als ein rein passives und unterwürfiges Verhalten. Vielmehr eröffnet sich in diesem grundlegend ambivalenten Prozess ein Widerstandsraum, in dem Bedeutung zu jedem Zeitpunkt neu verhandelt wird und der an Homi K. Bhabhas Konzept der Mimikry erinnert.

Aust: The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective

Helmut Aust (Freie Universität Berlin - Law) has posted The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective (in The Double-Facing Constitution: Legal Externalities and the Reshaping of the Constitutional Order, David Dyzenhaus, Jacco Bomhoff & Thomas Poole eds., forthcoming). Here's the abstract:
Foreign relations law as a field was traditionally characterised by a distinction between the inside and the outside of the state. Typically, executives enjoyed greater leeway for cooperation on the international law. To that effect, ordinary constitutional law principles would not apply in the realm of foreign relations law to the same extent as they did internally. This contribution analyses shifting paradims in foreign relations law in two jurisdictions, i.e. Germany and the United States of America. Based on the identification of two different conceptions of foreign relations, one open and aiming at the facilitation of international cooperation, one closed which strives for a protection of domestic constitutional arrangements, the contribution makes the argument that the foreign relations law debate in Germany is increasingly moving from an open to a closed conception. This shift is taking place in the name of democracy. A more reserved position towards international law is meant to bolster the democratic legitimacy of international cooperation. This risks undermining the capacity of governments to engage in the traditional forms of international law. An unintended consequence of this development might be a further shift towards informal ways of cooperation which are even more difficult to control from a democratic perspective.