Saturday, February 2, 2019
Stoyanova & Karageorgiou: The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis
Understanding the realities of protection in a Europe that had failed to manage the crisis in asylum that unfolded in 2015 and 2016 requires a comprehension of how law shapes and distorts refugee protection practices in frontline states. In this collection Vladislava Stoyanova and Eleni Karageorgiou provide an essential cartography of the state of asylum during the crisis. The volume captures four dynamics: the absorption of EU norms in Central and South Eastern Europe; the reaction in this region to the massive movement of asylum seekers in 2015 and 2016; the initiation of normative developments in the area of asylum during and beyond the crisis by the countries in this region; and the question of solidarity.
Friday, February 1, 2019
The chapter compares international investment law (ILL) with the ECHR system of human rights protection. First, analysis identifies key differences in the systemic features of the two regimes. Although they overlap to some extent in the protection they offer to property, they differ significantly. The ECHR system is unitary; unlike IIL, it operates on the basis of one single set of instruments. Mutatis mutandis, unlike IIL arbitration, the ECtHR is a last resort court that cannot be reached unless domestic remedies have been exhausted. IIL is available to foreign investors only; in the ECHR system the applicant’s nationality is irrelevant. The ECHR system is designed to cover a wide range of human rights -not only property/investment rights. Finally, the two systems differ significantly in terms of enforcement. The second step in the analysis focuses on property protection. To draw a parallel between the ECHR and IIL, the chapter discusses first the general framework of property protection under the ECHR and gives examples from the ECtHR practice with respect to foreign direct investment (FDI). Analogies are then drawn between the ECHR and key IIL standards. The chapter identifies similarities and differences regarding expropriation (focusing on indirect expropriation, the sole effects and police powers doctrines, and the function of proportionality), FET (focusing on equity and legitimate expectations the way these are protected by both regimes) and full protection and security, which is associated with due diligence and human rights positive effect. The third step in the analysis concerns limitations to investment/property rights. Occasionally, remedying or preventing human rights violations and the protection of general interest might make it necessary that states interfere with investment rights. Proportionality is crucial in this context as a tool allowing to establish priorities and assess the lawfulness of limitations. In comparison to IIL, the ECHR regime appears to better accommodate the idea of a fair balance between individual rights and general interest. Because the ECHR covers FDI from the perspective of human rights, it does not merely treat it as rights that need to be safeguarded, but also as a goal that can be limited when activities related to its promotion lead to the breach or endangerment of other human rights. Ultimately, even when the two regimes converge or overlap, the “tone”, i.e. the way they safeguard and promote FDI differs. This is the natural consequence of their differing orientation and teleology.
Muir Watt, Bíziková, Brandão de Oliveira, & Fernández Arroyo: Global Private International Law: Adjudication without Frontiers
- Jacco Bomhoff, Agatha Brandão de Oliveira & Lucia Bíziková, Post-war yearning for deparochialisation and the siren of free trade: The Bremen v. Zapata Off-Shore Co.
- Christelle Chalas & Richard Fentiman, Judicial discretion (From Bhopal to Brexit): Owusu v. Jackson
- Diego P. Fernández Arroyo & Laura Carballo Piñeiro, Parallel proceedings: Texaco/Chevron lawsuits (re Ecuador)
- George A. Bermann & Giuditta Cordero-Moss, Free-wheeling judgments/awards: Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.
- Sara Dezalay & Simon Archer, By-passing sovereignty: Trafigura lawsuits (re Côte d’Ivoire)
- Song Mao, Alex Mills, Hisashi Harata & Oona Le Meur, Indigenous norms and judicial anthropology
- Franck Latty, Non-state authority: FIFA
- Ralf Michaels & Ludovic Hennebel, Informal Codes: Nike v Kasky
- François-Xavier Licari, Sandrine Brachotte & Nathalie Najjar, Arbitration and religion: Jivraj v Hashwani
- Darren Rosenblum, Calixto Salomão Filho & Vitor Henrique Pinto Ido, Emerging global giants: the legal infrastructure and structural causes of economic monopoly: Samsung
- Tomaso Ferrando & Samuel Fulli-Lemaire, Global supply chains: Doe v. Nestle
- Jerôme Sgard & Mark Weidemaier, Global market for sovereign debt: Argentina v. NML Capital, Ltd.
- Horatia Muir Watt, Autotomizing financial markets: Lehman Brothers v. BNY Corporate Trustee
- Hannah Buxbaum & Jean d’Aspremont, Mysteries of extraterritoriality: RJR Nabisco, Inc. v European Community
- Patrick Kinsch, Chris Thomale & Fabien Marchadier, Beyond the State: How far can Rights Reach?: Kiobel v. Royal Dutch Petroleum Co
- Hayk Kupelyants & Sylvain Bollée, Interpretation at cross-purposes: Dallah v. Pakistan
- Katja Langenbucher & Toni Marzal, Economic transplants : Lafonta v. Autorité des marchés financiers
- Filipe Antunes Madeira da Silva, Fabio Costa Morosini & Michelle Sanchez Badin, Mestizo International Law: Petrobras saga Paul Schiff Berman & Jennifer Daskal, Legal challenges of data dominance: Yahoo! v. LICRA and Microssoft - Ireland Cases
- David Restrepo-Amariles & Gregory Lewkowicz, Global contract governance: Selden v. Airbnb
- Jeremy Heymann & Regis Bismuth, Free movement of corporations: Centros Ltd. v. Erhvervs-og Selskabsstyrelsen
- Catalina Avasilencei & Gilles Cuniberti, Financial markets: Banco Santander v Transport Companies
- Ugljesa Grusic & Etienne Pataut, Global labour market: Laval
- Kellen Trilha & Dagmar Coester-Waltjen, Surrogacy issues: Mennesson v. France
- Elsa Supiot & Michael Wells-Greco, Blind spots (persons and family): Blood
- Hans Van Loon & David Sindres, Cultural identities: Wagner v. Luxembourg
- Sabine Corneloup & Jinske Verhellen,. Privatisation of international migration flows: Manus Island class action
- The Advisory Opinion of The International Court of Justice on the Chagos Archipelago: An Anticipatory Analysis (Part III)
- Introduced by Thomas Burri, Lucas Carlos Lima, Loris Marotti, Irini Papanicolopulu, & Peter Sand
- Thomas Burri, Two points for the International Court of Justice in Chagos: Take the case, all of it – It is a human rights case
- Johannes Hebdrik Fahner, Déjà Vu in The Hague – the relevance of the Chagos arbitral award to the proceedings before the ICJ
- Ursa Demsar et al., The concept of duress in the world of decolonization
- Antoni Pingrau, Reflections on the effectiveness of peremptory norms and erga omnes obligations before international tribunals, regarding the request for an advisory opinion from the International Court of Justice on the Chagos Islands
- James Summers, Decolonisation revisited and the obligation not to divide a Non-Self-Governing Territory
- Julia Wagner, The Chagos request and the role of the consent principle in the ICJ’s advisory jurisdiction, or: What to do when opportunity knocks
Thursday, January 31, 2019
- J. De Codt, Justice et algorithme : danger pour le procès équitable et la démocratie ?
- J. Pétin, Les obligations des États membres de l’Union européenne dans l’accueil des demandeurs d’asile : l’opportunité d’un rappel bien nécessaire
- C. Gauthier, L’entrée en vigueur du Protocole no 16 à la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, entre espérances et questionnements…
- T. Besse, La généralisation des box vitrés dans les juridictions pénales confrontée aux droits fondamentaux des mis en cause : une affaire de compromis
- Y. Lécuyer, La réclusion à perpétuité révélatrice des incohérences du contentieux antidiscrimination
- M. Leroy, Le pape de Ploërmel
- É. Lemmens & R. Demeuse, Les droits fondamentaux des agents de la fonction publique à l’épreuve des réseaux sociaux
- J-P. Marguénaud, Les contrôles antidopage inopinés devant la Cour européenne des droits de l’homme ou le lancement de la course à la réification des sportifs de haut niveau
- L. Milano, Le principe non bis in idem devant la Cour de Luxembourg, vers un abaissement de la protection accordée au principe
- G. Gonzalez & C. Vial, La Cour de justice, l’animal assommé et l’homme pieux
- J-Y. Carlier, Vers un ordre public européen des droits fondamentaux - L’exemple de la reconnaissance des mariages de personnes de même sexe dans l’arrêt Coman
- Martin B. Carstensen & Vivien A. Schmidt, Ideational power and pathways to legitimation in the euro crisis
- Linda Weiss & Elizabeth Thurbon, Power paradox: how the extension of US infrastructural power abroad diminishes state capacity at home
- Aron Buzogány & Mihai Varga, The ideational foundations of the illiberal backlash in Central and Eastern Europe: the case of Hungary
- Reinhard Wolf, Debt, dignity, and defiance: why Greece went to the brink
- David A. Steinberg, Stephen C. Nelson & Christoph Nguyen, Does democracy promote capital account liberalization?
- Matthew S. Winters & Jaclyn D. Streitfeld, Splitting the check: explaining patterns of counterpart commitments in World Bank projects
- Hortense Jongen, The authority of peer reviews among states in the global governance of corruption
- Panos Koutrakos, Institutional Balance and Sincere Cooperation in Treaty-Making Under EU Law
- Andrew Sanger, Review of Executive Action Abroad: The UK Supreme Court In The International Legal Order
- Tom Ruys, The Role of State Immunity and Act of State in the NM Cherry Blossom Case and the Western Sahara Dispute
- Thomas Kleinlein, The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution
- Adrienne Anderson, Michelle Foster, Hélène Lambert, & Jane McAdam, Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection
- Gauthier de Beco, The Indivisibility of Human Rights and the Convention on the Rights of Persons with Disabilities
- Shorter Articles
- Máire Ní Shúilleabháin, Private International Law Implications of ‘Equal Civil Partnerships’
- Jorge E. Viñuales, The Protocol on Water and Health as a Strategy for Global Water Governance Integration
- Amber Marks, Defining ‘Personal Consumption’ in Drug Legislation and Spanish Cannabis Clubs
- Bartłomiej Sierzputowski, The Data Embassy Under Public International Law
This Commentary offers detailed background and analysis of the Treaty on the Prohibition of Nuclear Weapons, which was adopted at the UN Headquarters in New York in July 2017. The Treaty comprehensively prohibits the use, development, export, and possession of nuclear weapons. Stuart Casey-Maslen, a leading expert in the field who served as legal adviser to the Austrian Delegation during the negotiations of this Treaty, works through article by article, describing how each provision was negotiated and what it implies for states that join the Treaty. As the Treaty provisions cut across various branches of international law, the Commentary goes beyond a discussion of disarmament to consider the law of armed conflict, human rights, and the law on inter-state use of force. The Commentary examines the relationship with other treaties addressing nuclear weapons, in particular the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Background on the development and possession of nuclear weapons and theories of nuclear deterrence is provided. Particular attention is paid to controversial issues such as assistance for prohibited activities, the meaning of 'threaten to use', and the definition of nuclear explosive devices. Casey-Maslen also considers whether a member of NATO or other nuclear alliance can lawfully become a state party to the Treaty.
- Justin M. Conrad, Kevin T. Greene, James Igoe Walsh, & Beth Elise Whitaker, Rebel Natural Resource Exploitation and Conflict Duration
- Jori Breslawski & Brandon Ives, Killing for God? Factional Violence on the Transnational Stage
- Bryan Rooney, Emergency Powers in Democracies and International Conflict
- Wakako Maekawa, External Supporters and Negotiated Settlement: Political Bargaining in Solving Governmental Incompatibility
- Heather Sullivan Sticks, Stones, and Broken Bones: Protest Violence and the State
- Michael Albertus, The Fate of Former Authoritarian Elites Under Democracy
- Kyosuke Kikuta, Postdisaster Reconstruction as a Cause of Intrastate Violence: An Instrumental Variable Analysis with Application to the 2004 Tsunami in Sri Lanka
- William Spaniel, Rational Overreaction to Terrorism
- Data Set Feature
- Zeev Maoz, Paul L. Johnson, Jasper Kaplan, Fiona Ogunkoya, & Aaron P. Shreve, The Dyadic Militarized Interstate Disputes (MIDs) Dataset Version 3.0: Logic, Characteristics, and Comparisons to Alternative Datasets
In the past decade, a sense of feminist 'success' has developed within the United Nations and international law, recognized in the Security Council resolution 1325 on women, peace and security, the increased jurisprudence on gender based crimes in armed conflict from the ICTR/Y and the ICC, the creation of UN Women, and Security Council sanctions against perpetrators of sexual violence in armed conflict. Contributing to the development of feminist and gender scholarship on international law, Gina Heathcote provides a feminist analysis of the central pillars of international law, noting the advances and limitations of feminist approaches.
Through incorporating into mainstream international legal studies specific critical and feminist narratives, this book considers the manner in which feminist thinking has changed international law, and the manner in which international law has remained impervious to key feminist dialogues. It argues for a return to structural bias feminism that engages the foundations of international law and uses gender as a method for challenging post-millennium narratives on fragmentation, the role of international institutions, the nature of legal authority, sovereignty, and the role of international legal experts.
Wednesday, January 30, 2019
The UN’s capacity as an administrative decision-maker that affects the rights of individuals is a largely overlooked aspect of its role in international affairs. Administrative Justice in the UN explores the potential for a model of administrative justice that might act as a benchmark to which global decision-makers could develop procedural standards. Niamh Kinchin adeptly explores accountability in the context of decision-making within the UN and examines whether its administrative decisions, affecting the rights and obligations of individuals and groups, contain sufficient procedural protections. It is suggested that ’global administrative justice’ requires two fundamental elements; administrative decisions made according to law, and to values communities accept as just, which are identified as rationality, fairness, transparency and participation. This model is applied to the UN’s Investigations Divisions of the Office of Internal Oversight Services, the UN High Commissioner for Refugees, the UN Security Council and the Internal Formal Justice System in order to measure procedural protections, identify gaps and make recommendations for reform.
Trade Agreements, Investment Protection and Dispute Settlement in Latin America analyses the evolution and current landscape of dispute settlement in trade and investment agreements in the Americas. In recent years many Latin American countries have liberalized their trade and investment regimes, opening their markets to free international trade. At the same time, regional economic integration has boomed. This book is the first systematic analysis in any language of these globally significant developments, and the first comprehensive legal study of dispute settlement relating to foreign direct investment and trade in the region. The book looks beyond focusing on formalized dispute settlement mechanisms to underline other techniques such as alternative dispute resolution channels, including dispute prevention practices. In proposing solutions to the current challenges, the book taps into the precedents and practice, stressing the relevant domestic and international case law on dispute resolution applicable to these treaties.
- Annette Magnusson, Foreword: The Story of the Stockholm Treaty Lab
- Martin Dietrich Brauch, Yanick Touchette, Aaron Cosbey, Ivetta Gerasimchuk, Lourdes Sanchez, Nathalie Bernasconi-Osterwalder, Maria Bisila Torao Garcia, Temur Potaskaevi, & Erica Petrofsky, Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: Aligning International Investment Law with the Urgent Need for Climate Change Action
- Paula Henin, Jessica Howley, Amelia Keene, & Nicola Peart, Innovating International Investment Agreements: A Proposed Green Investment Protocol for Climate Change Mitigation and Adaptation
- Silke Noa Elrifai, Simon R. Sinsel, Maya Hennerkes, & Hans Rusinek, A Model Multilateral Treaty for the Encouragement of Investment in Climate Change Mitigation and Adaptation
- Daniel Magraw, Leila Chennoufi, Krycia Cowling, Charles Di Leva, Jonathan Drimmer, Chiara Giorgetti, Young Hee Lee, Jan Low, Kendra Magraw, Steve Mccaffrey, Grace Menck Figueroa, Sergio Puig, & Anabella Rosemberg, Model Green Investment Treaty: International Investment and Climate Change
- Christopher Campbell & Coimbra Trigo Ana, A Vision for Green Foreign Direct Investment: Proposals for an Investor-State Collaborative Effort
- José Rafael Mata Dona, Stockholm Convention on the Use of Blockchain to Boost Climate Action
- Barbara F. Walter, Explaining the number of rebel groups in civil wars
- David H. Bearce & Andrew F. Hart, Labor migration numbers and rights: do they trade off or advance together?
- Akisato Suzuki, Ethnicity, political survival, and the exchange of nationalist foreign policy
- Hannes Weber, Age structure and political violence: a re-assessment of the “youth bulge” hypothesis
- Gina Lei Miller, Ryan M. Welch & Andrew J. Vonasch, The psychological effects of state socialization: IGO membership loss and respect for human rights
- “Any press is good press?” Rebel political wings, media freedom, and terrorism in civil wars Eric Keels & Justin Kinney
- Ore Koren, Food, state power, and rebellion: The case of maize
- Research Note
- J. Tyson Chatagnier, Civil war mediation and integration into global value chains
Klingler, Parkhomenko, & Salonidis: Between the Lines of the Vienna Convention?: Canons and Other Principles of Interpretation in Public International Law
- Alain Pellet, Canons of Interpretation under the Vienna Convention
- Sean D. Murphy, The Utility and Limits of Canons and Other Interpretive Principles in Public International Law
- Michael Waibel, The Origins of Interpretive Canons in Domestic Legal Systems
- Céline Braumann & August Reinisch, Effet Utile
- Joseph Klingler, Expressio Unius Est Exclusio Alterius
- Alison Macdonald, Ex Abundante Cautela
- Freya Baetens, Ejusdem Generis and Noscitur a Sociis
- Dirk Pulkowski, Lex Specialis Derogat Legi Generali/Generalia Specialibus Non Derogant
- Alina Miron, Per Argumentum a Fortiori
- Paula F. Henin, In Pari Materia Interpretation in Treaty Law
- Pierre d’Argent, Contra Proferentem
- Panos Merkouris, In Dubio Mitius
- Rumiana Yotova, Compliance with Domestic Law: An Implied Condition in Treaties Conferring Rights and Protections on Foreign Nationals and Their Property?
- Andrew D. Mitchell & Tania Voon, The Rule of Necessary Implication
- Alexia Solomou, Exceptions to a Rule Must Be Narrowly Construed
- Peter Tzeng, The Principles of Contemporaneous and Evolutionary Interpretation
Tuesday, January 29, 2019
Call for Papers: Protecting Community Interests under International Law: Challenges and Prospects for the 21st Century
Monday, January 28, 2019
This book aims to create a user-friendly, accessible guide to the complex area of sanctions law. In particular, the book will examine how sanctions restrictions work in practice, and what the implications are for multinational businesses operating across numerous sanctions regimes. To this extent, the book considers the interrelationship between sanctions at the supranational and national levels, including the impact of the far-reaching US sanctions regime. The book's aim is not to provide an exhaustive list of sanctions regulations, but rather a framework for engaging with the relevant legislation and the main issues arising therefrom. Reinforcing this practical and commercially-focused approach, each chapter is written in a format that enables easy reading and rapid assimilation. Where there are relevant materials, be they legislative or case-law, these are outlined at the start of each chapter. In addition, the chapters dealing with challenges to sanctions designations each include a section with key principles, providing the clearest possible treatment of the subject.
Call for Papers: International Law in Times of Trade Wars and Global Environmental Problems: Protection or Protectionism?
Sunday, January 27, 2019
- Noam Lubell, Fragmented Wars: Multi-Territorial Military Operations against Armed Groups
- Marko Milanovic, Accounting for Complexity of the Law Applicable to Modern Armed Conflicts
- Gloria Gaggioli, The Use of Force in Armed Conflics: Conduct of Hostilities, Law Enforcement, and Self-Defense
- Christopher Ford, Personal Self-Defense and the Standing Rules of Engagement
- Chris Borgen, Conflict Management and the Political Economy of Recognition
- Aurel Sari, Hybrid Warfare, Law and the Fulda Gap
- Jeff Kahn, Hybrid Conflict and Prisoners of War: The Case of Ukraine
- Thomas Ayres & Jeffrey Thurnher, Legitimacy: The Linchpin of Military Success in Complex Battlespaces
- Jack Beard, The Principle of Proportionality in an Era of High Technology
- Michael Meier, Lethal Autonomous Weapons Systems - Is It the End of the World as We Know It... Or Will We Be Just Fine
- Laurie Blank, New Technologies and the Interplay between Certainty and Reasonableness
- Gary Corn, Cyber National Security: Navigating Gray Zone Challenges In and Through Cyberspace
- Geoff Corn, Be Careful What You Ask For: The Unintended Consequences of New Restrictions on Fires in Urban Areas
- Beth Van Schaack, The Law & Policy of Human Shielding
de Wet: Entrenching International Values Through Positive Law: The (Limited) Effect of Peremptory Norms
Underpinning a legal system with certain values and helping to resolve norm conflicts is in domestic legal systems usually achieved through hierarchical superiority of certain norms of a constitutional nature. The present paper examines the question whether jus cogens can discharge this function within the traditionally horizontal and decentralized international legal order. In so doing, it commences with an overview of the historical origins of peremptory norms in legal scholarship, followed by its endorsement by positive law and courts and tribunals. This analysis illustrates that there are lingering uncertainties pertaining to the process of identification of peremptory norms. Even so, the concept has been invoked in State executive practice (although infrequently) and has been endorsed by various courts. However, such invocation thus far has had a limited impact from a legal perspective. It was mainly confined to a strengthened moral appeal and did in particular not facilitate the resolution of norm conflicts. The contribution further suggests that this limited impact results from the fact that the content of peremptory obligations is either very narrow or very vague. This, in turn, implies a lack of consensus amongst States regarding the content (scope) of jus cogens, including the values underlying these norms. As a result, it is questionable whether the construct of jus cogens is able to provide meaningful legal protection against the erosion of legal norms. It is too rudimentary in character to entrench and stabilize core human rights values as the moral foundation of the international legal order.
- Nehal Bhuta, What Should Freedom of Religion Become?
- Rajeev Bhargava, Reimagining Secularism: Respect, Domination and Principled Distance
- Nathan J. Brown, Citizenship, Religious Rights, and State Identity in Arab Constitutions: Who is Free and What Are They Free to Do?
- Carolyn Evans & Timnah Rachel Baker, Communal Religious Rights or Majoritarian Oppression: Conversion and Proselytism Laws in Malaysia and India
- Samuel Moyn, Too Much Secularism? Religious Freedom in European History and the European Court of Human Rights
- Winnifred Fallers Sullivan, US Exceptionalism in the Regulation of Religion
- Lorenzo Zucca, Rethinking Secularism in Europe
The international system has entered a period of increased competition, accompanied by a steady retreat from multilateralism and international institutions. The purpose of this article is to place these developments within the context of three concepts that have risen to prominence in recent years: lawfare, hybrid warfare and gray zone conflicts. In doing so, the article makes three arguments. The instrumental use of international law for strategic purposes forms an integral feature of the international system. Although the notions of lawfare, hybrid warfare and gray zone conflict all contribute towards a better understanding of the instrumentalization of international law, neither offers a complete framework for analysis and policy action. The challenges posed by the use of international law for strategic ends are therefore best countered by adopting a legal resilience perspective and fostering an operational mindset.
International criminal trials are normally very complex and burdened with vast amounts of evidence. Even though such trials may face distinct challenges as compared to trials in domestic settings, the challenges and process of evaluating evidence have still much in common regardless if the trial is before a domestic or international court. Many old debates on evidence that have taken place in domestic settings - and in some cases been settled - have made a comeback in the practice and scholarship on international criminal justice together with new debates. This chapter gives an account of current controversies in evaluating evidence in international criminal trials, including whether the evaluation of evidence should be subject to an intuitive holistic approach or deconstruction? Is the standard of proof for conviction subjective or objective? Is it possible and/or desirable to use mathematical methods in evaluating evidence? The chapter also covers the criticism against the “beyond reasonable doubt” standard and whether fact-finding at the international level is possible at all.