This article is the first to identify and analyze the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law (IHL), also known as the Law of Armed Conflict (LOAC). While there was minimal direct state involvement in IHL-making initiatives in the first decade of the 21st century, in recent years states have taken an active part in IHL making. This article analyzes the policies of two states that stand in the middle of this debate – the U.S. and Israel – to provide a detailed account of contemporary state-led IHL-making. It argues that these new initiatives are an attempt by states to regain their influence over IHL from non-state actors. This suggests three broad implications for international lawmaking. First, unilateral lawmaking documents might be adopted more often as an alternative to traditional lawmaking and soft law initiatives when contracting costs are high. Second, the new lawmaking initiatives tend to adopt non-state actors' strategies to influence the debate, as an expression of states’ internalization of the horizontal nature of contemporary international lawmaking. Third, states often cooperate with non-state actors that share their interpretive positions in the international lawmaking process.
Saturday, December 22, 2018
- Business and Human Rights Research Methods
- Aurora Voiculescu, Intersecting Spheres of Analysis in Business and Human Rights: Developing a New Socio-Legal Research Agenda and Methodology for UN Guiding Principle No 9
- Liliana Lizarazo-Rodríguez, The UN ‘Guiding Principles on Business and Human Rights’: Methodological Challenges to Assessing the Third Pillar: Access to Effective Remedy
- Başak Bağlayan, Searching for Human Rights Norms for Corporate Conduct in Domestic Jurisprudence: A Bottom-Up Approach to International Law
- Karin Buhmann, Analysing OECD National Contact Point Statements for Guidance on Human Rights Due Diligence: Method, Findings and Outlook
- Kendyl Salcito & Mark Wielga, Corporate Human Rights Risk Assessment: Aligning what is Measured and Managed
Conference: La Convention de Vienne sur le droit des traités : bilan et perspectives cinquante ans après son adoption
Call for Papers: Exit! Il recesso dai trattati multilaterali Crisi e nuovi slanci nella cooperazione internazionale ed europea
The Inter-American Court of Human Rights continues to build justiciability to determine the social rights of marginalised individuals and groups in the Americas. In this engaging book, Isaac de Paz González unveils the abilities, and the practices of the Inter-American Court’s contribution to human rights policy in the Global South.
This innovative book offers a thorough and complete examination of the Inter-American Court’s jurisprudence over its forty years of existence, within the framework of Economic and Social Rights (ESR). The author offers a concise discussion of both the historic and landmark cases in regards to ESR, and its theoretical basis, as well as giving insight into how to further improve and protect the lives of the most vulnerable people in the Americas. This book also exposes the possibility of enforcing legal remedies for poverty and structural discrimination in order to seek social justice.
- John Harrington, “We can’t wait for the bugs to spread” rhetorics of time, space and biosecurity in global health law
- Dana Burchardt, The twilight of legal order? On the current challenges faced by the concept of a legal system
- Martine Beijerman, Conceptual confusions in debating the role of NGOs for the democratic legitimacy of international law
- Brian McGarry, The Global Pact for the Environment: Freshwater and Economic Law Synergies
- Aaditya Mattoo & Joshua P Meltzer, International Data Flows and Privacy: The Conflict and Its Resolution
- Gabrielle Marceau, Evolutive Interpretation by the WTO Adjudicator
- Devin McDaniels, Ana Cristina Molina, & Erik N Wijkström, A Closer Look At WTO’s Third Pillar: How WTO Committees Influence Regional Trade Agreements
- Federico Ortino, The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?
- Qiang Cai & Pengfei Zhang, A Theoretical Reflection on the OECD’s New Statistics Reporting Framework for the Mutual Agreement Procedure: Isolating, Measuring, and Monitoring
- Sherzod Shadikhodjaev, Non-Market Economies, Significant Market Distortions, and the 2017 EU Anti-Dumping Amendment
- Yannick Radi, Introduction: Taking stock of the societal and legal interplay between human rights and investment
- Ursula Kriebaum, Human rights and international investment arbitration
- Rodrigo Polanco & Rodrigo Mella, Investment arbitration and human rights cases in Latin America
- Maria Fanou & Vassilis Tzevelekos, The shared territory of the ECHR and international investment law
- Laurence Boisson de Chazournes & Rukia Baruti, Human rights, international investment law and transparency
- Valentina Vadi, Human rights and investments at the WTO
- Gwen Lehane, Human Rights at the World Bank group
- Eric De Brabandere & Maryse Hazelzet, Corporate responsibility and human rights – Navigating between international, domestic and self-regulation
- Gilles Lhuilier, MNCs obligations in their 'sphere of influence'
- Joanna Kyriakakis, International criminal responsibilities for MNCs violations of human rights
- Antal Berkes, Extraterritorial responsibility of the home States for MNCs violations of human rights
- Jacky Mandelbaum & Jennifer Loutit, Extractive industry investments and human rights
- Kaitlin Cordes, Investments and human rights in the agricultural sector
- Dorothée Baumann-Pauly & Sarah Margaretha Jastram, Assessing human rights issues in the fashion industry – Challenges for investors
- Mara Tignino, Private investments and the human right to water
- Delphia Lim, Investments and human rights in Asia
Friday, December 21, 2018
- Klaus Peter Berger, Institutional arbitration: harmony, disharmony and the ‘Party Autonomy Paradox’
- A conversation with Professor William W. (Rusty) Park—as interviewed by Professor Catherine A. Rogers: Institute for Transnational Arbitration Houston, Texas, 13 January 2017
- Julio César Betancourt, Damages for breach of an international arbitration agreement under English arbitration law
- Daniel Kalderimis, International arbitration in a brave new world
- Alexey Vyalkov, Hypothetical release damages: a ‘one-size-fits-all’ way to establish a loss in international investment disputes?
- Susanna Hoe, Pope Gregory the Great and the Disputes of Sardinian Women 591–604
- Recent Developments
- Peng Hou, Financing arbitration in mainland China: Hong Kong’s legislation as a model
- James A.R. Nafziger, Some Personal Reflections about Getting Started as an International Lawyer
- Michael Hwang S.C. & Lim Si Cheng, Breaking the Silence of the Executive: The Residual Role of the Common Law Courts in the Determination of Statehood
- Hyun-jin Park, Sovereignty Over Dokdo as Interpreted and Evaluated from the Korean-Japanese Exchanges of Notes Verbales (1952–1965)
- Yasue Mochizuki, Roles and Functions of Transitional Justice Mechanisms in the Asia-Pacific Region in the Development of International Law
- Brian McGarry, Third Parties and Insular Features After the South China Sea Arbitration
- Agata Kleczkowska, “Recognition” of Governments by International Organizations – The Example of the UN General Assembly and Asian States
Thursday, December 20, 2018
- Misrecognition in World Politics: Revisiting Hegel
- Charlotte Epstein, Thomas Lindemann, & Ole Jacob Sending, Frustrated sovereigns: the agency that makes the world go around
- Charlotte Epstein, The productive force of the negative and the desire for recognition: Lessons from Hegel and Lacan
- Minda Holm & Ole Jacob Sending, States before relations: On misrecognition and the bifurcated regime of sovereignty
- Ayşe Zarakol, Sovereign equality as misrecognition
- Tanja Aalberts, Misrecognition in legal practice: the aporia of the Family of Nations
- Julia Gallagher, Misrecognition in the making of a state: Ghana’s international relations under Kwame Nkrumah
- Catarina Kinnvall & Ted Svensson, Misrecognition and the Indian state: the desire for sovereign agency
- Thomas Lindemann, Agency (mis)recognition in international violence: the case of French jihadism
Wednesday, December 19, 2018
Dimitrakos: Greece’s Ratification Procedure of the Final Settlement Agreement Between Greece and FYROM
Guariglia, Batros, Gallmetzer, & Mugwanya: The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence
A comprehensive source of the most authoritative statements of the International Criminal Court's appellate jurisprudence. Its clear format includes commentaries followed by excerpts of the decisions and judgments, carefully selected by lawyers based on their relevance and grouped by topic. It provides a practical background to the International Criminal Court's appellate jurisprudence from experienced current and former Appeals Counsel of the Office of the Prosecutor of the Court, highlighting pertinent issues. In doing so, readers are given the tools to discern the meaning of the case law themselves, while attention is drawn to the most important developments in the jurisprudence. This text presents an authoritative and comprehensive digest of the Appeals Chamber's jurisprudence, bringing the relevant case extracts together for the first time with clear and informative commentary.
Epidemics are the result of the actions of multiple actors, which necessitates a comprehensive allocation of responsibility. However, the traditional framework for responsibility, as well as the emerging norm of the responsibility to protect, are inadequate for addressing epidemics. Both perpetuate the fallacy that states can, on their own, cope with the increased incidence of epidemics and fail to adequately allocate responsibility.
Given these limitations, this Article argues for a new vision of responsibility. It develops the theory underlying the norm of common but differentiated responsibility and makes the case for expansion of this framework to the challenges posed by highly-infectious diseases. This Article articulates the distinctive normative bases for differentiating responsibilities based on need, culpability, and capacity. The framework developed herein better distributes responsibility and is less state-centric than rival norms. It accounts for structural inequality in ways that other frameworks do not. Further, it does not reify the false hierarchy between civil and political rights and economic and social rights that exists in other frameworks. It recognizes and accounts for the significant role of non-state actors and provides a basis for holding such actors responsible, as opposed to the non-attribution of responsibility that exists.
There is reason for cautious optimism about the prospects of success of this framework. First, it is consistent with theoretical and existing foundations of law where responsibility is tethered to an actor’s conduct and relationship to the harm through culpability. However, the framework does not treat the culpability model as a legal straitjacket and envisions a broad understanding of causation—direct, indirect, and historical. Additionally, the framework differentiates based on capacity, which is derived from human rights and global public health law. It also draws on extralegal incentives, building on moral and political conceptualizations of responsibility towards those in need. The common but differentiated responsibility framework is likely to gain approval and assist rapidly with the battle against epidemics. In fact, elements of it are already reflected in state practice. In sum, the theoretical framework developed in this Article serves not only to provide useful guidance to actors in the face of epidemics but also to shift extant conceptualizations of responsibility in significant ways.
- Liu Nengye & Xu Qi, How Might the European Union Engage Constructively with China in the South China Sea?
- Suk Kyoon Kim, The Expansion of and Changes to the National Coast Guards in East Asia
- Timothy Perry, The PSI as a Shared Good: How the Proliferation Security Initiative Both Challenges and Reinforces a Prevailingly Mare Liberum Regime
- Finn Mørk, Classification of Seafloor Highs in Accordance With Article 76 of UNCLOS—Consequences of the Commission on the Limits of the Continental Shelf Recent Modifications of Its Interpretations
Tuesday, December 18, 2018
Call for Papers: EU Law, Trade Agreements, and Dispute Resolution Mechanisms: Contemporary Challenges
- E. Guntrip, International Investment Law in an Isolationist World: A Human Rights Perspective
- C. Sim, Strategies for Addressing Human Rights Violations in Investment Arbitration. Substantive Principles and Procedural Solutions
- F. Capone, A Reflection on the Transformative Potential of Reparations. The Approach of the Regional Human Rights Courts
- L. Lyra Jubilut & A. Sanctis, Human Rights at the International Court of Justice: The Construction of a Conversation from Judges’ Individual Opinions
The Boundaries of Investment Arbitration analyses references to European human rights and WTO law in investor-state rulings, advances reasons for these resorts to “non-investment” law, and puts these “boundary crossings” in broader context. It enumerates the legal gateways for these “public law” references and considers what engagement with human rights and trade law tells us about the motivations of investor-state arbitrators, scholars, and civil society. Exploring when and how arbitrators or litigants reach into other international law regimes to interpret the content of international investment law says a great deal about what that law is—and is not.
Over the years, the substantive content of international investment agreements (IIAs) has shifted to reflect political change and to respond to lessons learnt in investor-state dispute settlement (ISDS). With a focus on eight IIAs, selected with a view to geographical representativeness, this think piece explores substantive standards in recent treaty practice. It finds that new IIAs converge to a large extent with respect to their substantive standards. Old generation IIAs will probably remain dominant for some time as they represent the bulk of existing agreements. But there is a clear trend towards displacing them with the conclusion of new generation IIAs.
- Sandra Liebenberg, Participatory Justice in Social Rights Adjudication
- Kay Wilson, The Call for the Abolition of Mental Health Law: The Challenges of Suicide, Accidental Death and the Equal Enjoyment of the Right to Life
- Andrea Nicholson, Minh Dang & Zoe Trodd, A Full Freedom: Contemporary Survivors’ Definitions of Slavery
- Laurens Lavrysen, Causation and Positive Obligations Under the ECHR: A Reply to Vladislava Stoyanova
- Charilaos Nikolaidis, Unravelling the Knot of Equality and Privacy in the European Court of Human Rights and the US Supreme Court: From Isonomia to Isotimia
- Mark Simpson, Assessing the Compliance of the United Kingdom’s Social Security System with its Obligations under the European Social Charter
- Andrew Novak, The ‘Judicial Dialogue’ in Transnational Human Rights Litigation: Muruatetu & Anor v Republic and the Abolition of the Mandatory Death Penalty in Kenya
- The Global Forum
- Sung-Mi Kim, Sebastian Haug & Susan Harris Rimmer, Minilateralism Revisited: MIKTA as Slender Diplomacy in a Multiplex World
- Conor Seyle & Roberta Spivak, Complexity Theory and Global Governance: Is More Different?
- Marianne Beisheim & Nils Simon, Multistakeholder Partnerships for the SDGs: Actors’ Views on UN Metagovernance
- Joseph G. Bock & Ziaul Haque, Getting a Sharper View of the Humanitarian Marketplace: Introducing Conduit Engagement Theory
- Nicholas Chan, “Large Ocean States”: Sovereignty, Small Islands, and Marine Protected Areas in Global Oceans Governance
- Joel E. Oestreich, The World Bank and the “Equity Agenda”: An Assessment After Ten (or So) Years
- Jami Nelson-Nuñez & Elise Pizzi, Governance and Water Progress for the Rural Poor
- Theresa Squatrito, The Democratizing Effects of Transnational Actors’ Access to International Courts
- Valentina Carraro & Hortense Jongen, Leaving the Doors Open or Keeping Them Closed? The Impact of Transparency on the Authority of Peer Reviews in International Organizations
This chapter examines the role of resolutions in the International Law Commission (ILC) Conclusions on Identification of Customary International Law. The analysis unfolds along three lines of inquiry. The first one critically analyses the methodology devised by the ILC to ascertain the existence of a customary rule with a view to understanding how it works in the institutional setting of international organizations. The second one examines the definition of resolution contained in the Conclusions and compares it with the mainstream literature on the concept of resolution. The third one evaluates the practical implications of the ILC conclusions by using the resolutions of the United Nations General Assembly as a case study. An argument is made that the ILC Conclusions do not add either certainty or sophistication to the process of ascertaining customary rules, thus failing to provide authoritative guidance to practitioners in the field of international organizations’ practice.
- Patrick Dumberry, State Succession to Multilateral Investment Treaties and the ICSID Convention
- Christine Sim, Attributing Responsibility to International Organisations: Lessons from the EU–Singapore Investment Protection Agreement
- Régis Bismuth, Screening the Commission’s Regulation Proposal Establishing a Framework for Screening FDI into the EU
- Facundo Calvo, The Most Feasible Way Towards a Multilateral Investment Treaty
- Matej Kosalko, (In)Genuinely Foreign Investment: A Survey of Nationality Requirements in Investment Disputes
- Victoria Barausova, Slovak Republic v. Achmea from a Public International Law Perspective: Is State Consent to Arbitrate Under Intra-EU BITS Still Valid?
- Giammarco Rao, The Withdrawal of a European State from the ECT in Light of the Achmea Case
- Aesa Dey, Fábrica de Vidrios Los Andes, C.A. & Owens-Illinois de Venezuela, c.a. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/21, Award, 13 November 2017
- Cees Verburg & Nikos Lavranos, Recent Awards in Spanish Renewable Energy Cases and the Potential Consequences of the Achmea Judgment for Intra-EU ECT Arbitrations
- Antonia Cavedon & Simon Weber, Digging Deeper: Summary of the Hearing before the CJEU in the Achmea Case
- Dorieke Overduin, Turning Tides: The Landmark Decision in the Achmea Case – The Ecosystem of EU Law Means the End of Intra-EU BITS
- Anna Bilanová & Jaroslav Kudrna, Achmea: The End of Investment Arbitration as We Know It?
- Anastasios Gourgourinis, After Achmea: Maintaining the EU Law Compatibility of Intra-EU BITS Through Treaty Interpretation
- Charles N. Brower, Doomed to Failure: Why the EU Investment Court System is Destined to Fail Both Foreign Investors and Host States – 3rd Annual EFILA Conference Keynote
- Katariina Särkänne, Report on the 3rd Annual EFILA Conference on Parallel States’ Obligations in Investor-State Arbitration
- Christopher Greenwood, Most Favoured Nations Clauses in BITS – What is Their Real Purpose (and Their Real Effect)? – 3rd Annual EFILA Lecture
Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves, which raises important issues as to how such States must conduct themselves prior to resolution of their dispute. This chapter advances eight basic rules that every State is expected to follow in such a situation. Inevitably, such rules are general in nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding their overall duty to resolve disputes peacefully.
Monday, December 17, 2018
- Ignacio Tredici & Renaud Galand, Holding to Account the Commission of International Crimes in the Central African Republic: The Establishment of the Special Criminal Court
- Loris Marotti, Determining the Scope of the Local Remedies Rule in UNCLOS Disputes
- Chie Sato, The UN and Its Agencies in the Development of Regulations on Management and Conservation of Fisheries: A Plurality of Initiatives but Questionable Coherence
- Federica I. Paddeu, To Convene or Not to Convene? The Future Status of the Articles on State Responsibility: Recent Developments
- Petra Minnerop, Taking the Paris Agreement Forward: Continuous Strategic Decision-making on Climate Action by the Meeting of the Parties
- Stephanie Schlickewei, The Revision of the General Comment No. 1 on the Implementation of Art. 3 UNCAT’s Non-Refoulement Obligation in Light of the Use of Diplomatic Assurances
- Rishi Gulati, An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?
- Stephan F.H. Ollick, The European Union in the Mediterranean Sea: Navigating the Political-Legal Shallows
- Nneka A. Okechukwu, Self-Determination and Democracy in Post-Conflict Africa: Moving from Procedure to Substance
- Benjamin Baak Deng, Traditional Justice Methods and Their Possible Impact on Transitional Justice Models in South Sudan
- Odysseas G. Repousis, State Succession and Devolution Agreements Revisited: A Note on Sanum v. Laos
- Gaiane Nuridzhanian, Crimea in International Courts and Tribunals: Matters of Jurisdiction
- Fozia Nazir Lone, The ‘One Country, Two Systems’ Model and Political Reform in Hong Kong: A TWAIL Approach
- Till Patrik Holterhus, The History of the Rule of Law
- Inga Witte, Interactions between International Investment Law and Constitutional Law: Promoting the Dialogue. A European Perspective on Judicial Cooperation and Deference
- Romain Chuffart, Speaking of Rights: Indigenous Linguistic Rights in the Arctic
- Mikael Lundmark, The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights
- Monica Burman & Eva-Maria Svensson, Women’s Human Rights in the Governance of the Arctic – Gender Equality and Violence against Indigenous Women
- Ayo Næsborg-Andersen & Bassah Khalaf, The Right of Indigenous Peoples to Education in Their Own Language – Greenlanders in Denmark and in Greenland
- Tanja Joona, Safeguarding Cultural Rights of Sámi Children and Youth in Finland, with Special Emphasis on the Linguistic Part of Cultural Identity – Current Challenges
- Ekaterina Britcyna, Soili Nystén-Haarala & Minna Pappila, Extractive Industries and Public Participation in Russia: The Case of the Oil Industry in Izhemskii District, Komi Republic
- Karin Buhmann, International Law and Corporate Social Responsibility: The Potential of OECD’s MNE Guidelines for Advancing Social Benefits in the Context of Natural Resource Exploitation in the Arctic, with Particular Regard to Greenland
- Ulrike Barten & Bent Ole Gram Mortensen, Uranium in Greenland: Questions of Resources and Security in a Self-Government Setting
- Yuanyuan Ren & Dan Liu, A Rule Follower, a Challenger, or a Learner? Recasting China’s Engagement in the Arctic
- Andrew Jackson, Politics, Diplomacy, and the Creation of Antarctic Consensus
- Sune Tamm, Julia Jabour & Rachael Lorna Johnstone, Iceland’s Accession to the Antarctic Treaty
- Clive R. Symmons, Problems in the Law of the Sea Relating to Insular Formations in Ice-bound Seas and Polar Regions of the Arctic, with Particular Reference to Judicial Dicta in US v Alaska (1996) and to Recent Discoveries of New Arctic Islands (such as ‘Yaya’) due to Glacial Melt
- Daniela Tommasini & Shenghan Zhou, Images and Expectations of Chinese Tourists Visiting an Arctic Destination: Rovaniemi, Finnish Lapland
Sunday, December 16, 2018
- Oceans and Space: New Frontiers in Investment Protection?
- Stephan W. Schill, Christian J. Tams & Rainer Hofmann, Oceans and Space: New Frontiers in Investment Protection? An Introduction
- Christopher Greenwood, Oceans and Space: Some New Frontiers for International Investment Law
- Seline Trevisanut & Nikolaos Giannopoulos, Investment Protection in Offshore Energy Production: Bright Sides of Regime Interaction
- Peter Tzeng, Investment Protection in Disputed Maritime Areas
- Markos Karavias, Submarine Cables and Pipelines: The Protection of Investors Under International Law
- Joanna Dingwall, International Investment Protection in Deep Seabed Mining Beyond National Jurisdiction
- Ingo Baumann, Hussaine El Bajjati & Erik Pellander, NewSpace: A Wave of Private Investment in Commercial Space Activities and Potential Issues Under International Investment Law
- Peter Malanczuk, Investment Protection of Commercial Activities in Space: Treaties, Contracts, Licenses, Insurance, Arbitration
- Mahulena Hofmann & P.J. Blount, Emerging Commercial Uses of Space: Regulation Reducing Risks
- Stephan Hobe, Rada Popova, Hussaine El Bajjati & Julian Scheu, The Protection of Satellite Telecommunications Activities Under Bilateral Investment Treaties
- Robin Warner, Oceans of Opportunity and Challenge: Towards a Stronger Governance Framework for Conservation and Sustainable Use of Biodiversity in Marine Areas beyond National Jurisdiction
- Michael Batty & Vivian Fernandes, Management of Tuna Fisheries for Sustainable Development in the Pacific Islands: Regional Cooperation in a Shared Fishery as a Means of Achieving the Sustainable Development Goals
- Joanna Mossop, Can the South China Sea Tribunal’s Conclusions on Traditional Fishing Rights Lead to Cooperative Fishing Arrangements in the Region?
- Christine Sim, Maritime Boundary Disputes and Article 298 of UNCLOS: A Safety Net of Peaceful Dispute Settlement Options
- Lyle J. Morris, Crossing Interagency Lines: Enhancing Navy-Coast Guard Cooperation to Combat Gray Zone Conflicts of East Asia