In Amoral Communities, Mila Dragojević examines how conditions conducive to atrocities against civilians are created during wartime in some communities. She identifies the exclusion of moderates and the production of borders as the main processes. In these places, political and ethnic identities become linked and targeted violence against civilians becomes both tolerated and justified by the respective authorities as a necessary sacrifice for a greater political goal.
Dragojević augments the literature on genocide and civil wars by demonstrating how violence can be used as a political strategy, and how communities, as well as individuals, remember episodes of violence against civilians. The communities on which she focuses are Croatia in the 1990s and Uganda and Guatemala in the 1980s. In each case Dragojević considers how people who have lived peacefully as neighbors for many years are suddenly transformed into enemies, yet intracommunal violence is not ubiquitous throughout the conflict zone; rather, it is specific to particular regions or villages within those zones. Reporting on the varying wartime experiences of individuals, she adds depth, emotion, and objectivity to the historical and socioeconomic conditions that shaped each conflict.
Furthermore, as Amoral Communities describes, the exclusion of moderates and the production of borders limit individuals' freedom to express their views, work to prevent the possible defection of members of an in-group, and facilitate identification of individuals who are purportedly a threat. Even before mass killings begin, Dragojević finds, these and similar changes will have transformed particular villages or regions into amoral communities, places where the definition of crime changes and violence is justified as a form of self-defense by perpetrators.
Friday, October 25, 2019
- John R. Morss, Description without apology? On structures, signs and subjectivity in international legal scholarship
- Gbenga Oduntan, Access to justice in international courts for indigent states, persons and peoples
- Sanyukta Chowdhury, Investor State dispute settlement provisions in India’s model bilateral investment treaty: a critique
- Divesh Kaul, Evolving trade undercurrents at the regional level: tides of India’s preferential trading in the Indian Ocean and beyond
- Md Tabish Eqbal, International Organizations and reservations to treaties: a critical review of the International Law Commission’s work
- Amritha V. Shenoy, International humanitarian law in ancient India: a multicivilisational perspective
- Imdad Ullah, Comparing Jewish and Islamic laws of war
- Ruchi Lal, Social and economic rights of refugees under international legal framework: An appraisal
- Dickson Ebikabowei Omukoro, Ensuring Environmental Accountability in Nigeria through the Liberalisation of the Locus Standi Rule: Lessons from some Selected Jurisdictions
- Vinesh Basdeo, A Critique of Search and Seizure in Terms of a Search Warrant in South African Criminal Procedure: A Comparative Analysis
- Ifeanyichukwu Azuka Aniyie, Tax Intermediaries Management: A Review of Three Jurisdictions
- Claus Kreβ, Du Déclenchement de la Compétence de la Cour Pénale Internationale à L’égard du Crime D'agression
- Olaniyi Felix Olayinka, Implementing the Socio-economic and Cultural Rights in Nigeria and South Africa: Justiciability of Economic Rights
- Christophe Van der Beken, Balancing Between Empowerment and Inclusion: Multinational Federalism and Citizenship Rights in Ethiopia
- Adekemi Omotubora, Old Wine in New Bottles? Critical and Comparative Perspectives on Identity Crimes under the Nigerian Cybercrime Act 2015
- Valerie Muguoh Chiatoh, Self-Determination and Territorial Integrity: Southern Cameroons and the Republic of Cameroun
- Robert Doya Nanima, The (Non) Enforcement of the Right to a Fair Trial with Regard to the Admissibility of Evidence Obtained through Human Rights Violations: A Comment on Uganda's Human Rights (Enforcement) Act 2019
Thursday, October 24, 2019
The rise of China signals a new chapter in international relations. How China interacts with the international legal order—namely, how China utilizes international law to facilitate and justify its rise and how international law is relied upon to engage a rising China—has invited growing debate among academics and those in policy circles. Two recent events, the South China Sea Arbitration and the US-China trade war, have deepened tensions. This book, for the first time, provides a systematic and critical elaboration of the interplay between a rising China and international law. Several crucial questions are broached. These include: How has China adjusted its international legal policies as China's state identity changes over time, especially as it becomes a formidable power? Which methodologies has China adopted to comply with international law and, in particular, to achieve its new legal strategy of norm entrepreneurship? How does China organize its domestic institutions to engage international law in order to further its ascendance? How does China use international law at a national level (in the Chinese courts) and at an international level (for example, lawfare in international dispute settlement)? And finally, how should "Chinese exceptionalism" be understood? This book contributes significantly to the burgeoning and highly relevant scholarship on China and international law.
Wednesday, October 23, 2019
On Thursday 7 November 2019, the ASIL International Organizations Interest Group (IOIG) will launch an initiative to engage legal staff of international organizations with the Society. As an inaugural event, the IOIG is convening a lunchtime panel (1.15-2.245pm) entitled “IO Law Roundtable: Perspectives on UN Partnerships”. Staff from the legal offices of UNICEF and UNDP, as well as panellists from the UN Office for Partnerships and the Academic Council on the United Nations System (ACUNS) will discuss various legal aspects of partnering with the private sector, financial institutions and academia to attain UN goals. The panel will be moderated by Prof. Sean Murphy, ASIL President and member of the International Law Commission. It will be kindly hosted by the Permanent Mission of the Kingdom of the Netherlands to the United Nations, located at 666 Third Ave, New York NY. The event is free but space is limited and registration is required: please RSVP here. For more information and future events, join the ASIL IOIG at www.asil.org.
- Or Cohen‐Sasson, A hidden technological assumption in patent law: The case of gene patents and the disclosure requirement
- Marion Briatta, Building a “Fortress Europe” in the air: A critical review of the European customs enforcement of IPRs
- Jóna N. Mays, The art we wear
- Seemantani Sharma, RCEP and Trans‐Pacific Intellectual Property Norms: Implications for India
- Courage Besah‐Adanu, Aske S. Bosselmann, Lise Hansted, & Peter K. Kwapong, Food origin labels in Ghana: Finding inspiration in the European geographical indications system on honey
- Ayoyemi Lawal‐Arowolo, Geographical indications and cultural artworks in Nigeria: A cue from other jurisdictions
- Adam R. Tanielian & Pakinee Kampan, Saving online copyright: Virtual markets need real intervention
- David J. Jefferson & Kamalesh Adhikari, Reimagining the relationship between food sovereignty and intellectual property for plants: Lessons from Ecuador and Nepal
- Bzhar Abdullah Ahmed & Kameran Hussein Al‐Salihi, Proliferation of the problem of orphan works across the world
International trade law is under siege. We face imminent stasis in WTO dispute settlement. Substantively too, the rapid outbreak of unilateral deployment of tariffs by the U.S (and then retaliation by China) is putatively WTO-illegal. These developments have shocked the community of practitioners and scholars of the WTO. Against this backdrop, it is tempting to position the current trade wars as a unique threat to both globalization and its institutional manifestations, like the WTO. To my mind, that claim deserves, at the very least, serious assessment. This is not the first time in its modern history that the system of international trade law has been subject to escalating resort to unilateral protectionism by its dominant power. There are important lessons from past trade conflicts that can guide our prescriptions on productive (and even likely) future outcomes, while bearing in mind differences in degree and orientation. A logical comparator here is the dramatic rise of Japan as an economic competitor to the U.S through the 1970s and 1980s (in a period that both preceded and tracked the Uruguay Round negotiations) and the shift in unilateral and multilateral strategies employed by the U.S to manage trade conflict with Japan. This comparator is routinely dismissed by most commentators, largely because of the role of the U.S as a guarantor of Japanese security. While that security umbrella is an important difference when considering the fractious relationship between the U.S and China, there are thick undercurrents in commonality (both substantively and sociologically) that transcend points of variance.
Lamp: At the Vanishing Point of Law: Rebalancing, Non-Violation Claims, and the Role of the Multilateral Trade Regime in the Trade Wars
What role does the multilateral trade regime have to play in the trade wars triggered by the United States under the Trump administration? This article argues that the traditional goal of dispute settlement in the WTO – the positive resolution of disputes – has become largely unattainable in the circumstances of the trade wars, but that the regime can still play a valuable role by providing a framework for the rebalancing of obligations among the participants. Using the regime in this way would defuse tensions among the participants, would ensure that the new equilibrium among them is integrated into the legal structure of the trade regime, and would provide the participants the opportunity to use the trade regime’s tools for solving disagreements at the margins, lowering the risk that the trade wars will spiral out of control. The article uses the example of non-violation claims in the context of national security measures to illustrate the potential for and benefits of re-integrating the trade wars into the multilateral trade regime. The article provides a detailed discussion of the legal justification for non-violation complaints in response to national security measures and shows how such claims provide an alternative to violation complaints that is both less confrontational and faster to adjudicate.
Haslam: The Slave Trade, Abolition and the Long History of International Criminal Law: The Recaptive and the Victim
Modern international criminal law typically traces its origins to the twentieth-century Nuremberg and Tokyo trials, excluding the slave trade and abolition. Yet, as this book shows, the slave trade and abolition resound in international criminal law in multiple ways. Its central focus lies in a close examination of the often-controversial litigation, in the first part of the nineteenth century, arising from British efforts to capture slave ships, much of it before Mixed Commissions. With archival-based research into this litigation, it explores the legal construction of so-called ‘recaptives’ (slaves found on board captured slave ships). The book argues that, notwithstanding its promise of freedom, the law actually constructed recaptives restrictively. In particular, it focused on questions of intervention rather than recaptives’ rights. At the same time it shows how a critical reading of the archive reveals that recaptives contributed to litigation in important, but hitherto largely unrecognized, ways. The book is, however, not simply a contribution to the history of international law. Efforts to deliver justice through international criminal law continue to face considerable challenges and raise testing questions about the construction – and alternative construction – of victims.
By inscribing the recaptive in international criminal legal history, the book offers an original contribution to these contentious issues and a reflection on critical international criminal legal history writing and its accompanying methodological and political choices.
Shirlow & Caron: The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits
This Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, whilst also considering their objectives and consequences. The analysis indicates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration. Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. An agenda that seeks to identify and enact effective reforms to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, then, it is vital that States, arbitral institutions, and other stakeholders confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives. The contours of the discussion in this Chapter hold importance for reform agendas in other fields of international arbitration. It highlights the importance of clarifying what is being proposed, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.
As the glow that accompanied the kinetic judicialisation of the field of international criminal justice has faded over time, scholars have increasingly turned to expressivist strands of thought to justify, assess, and critique the practices of international criminal courts. This expressive turn has been characterised by a heightened concern for the pedagogical value and legitimating qualities of international criminal courts.
This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts.
Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which examines whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.
The United States’ recognition of Israeli sovereignty over the Syrian Golan has been widely considered a flagrant breach of international law. This illegal act gives reason to examine the relationship between the United States under President Trump and international law more generally. Unlike its predecessors, the Trump administration has not just violated international law whenever U.S. economic, political, or strategic interests demanded it to do so, it has rather challenged international law and its institutions as such, and has actively undermined them. The attitude of the Trump administration towards international law and its institutions is marked by an unparalleled contempt or disdain. This article delivers a powerful “J’accuse” against this international law nihilism.
- Part I Populism and International Law
- Janne E. Nijman & Wouter G. Werner, Populism and International Law: What Backlash and Which Rubicon?
- Lukasz Gruszczynski & Jessica Lawrence, Trump, International Trade and Populism
- Aaron Fichtelberg, Populist Paranoia and International Law
- Alejandro Rodiles, Is There a ‘Populist’ International Law (in Latin America)?
- Christine Schwöbel-Patel, Populism, International Law and the End of Keep Calm and Carry on Lawyering
- Edwin Bikundo, People, Politics and Populismin International Criminal Law: The Mungiki as Kenyan Ethnos and Kenyan Demos
- Veronika Bílková, Populism and Human Rights
- Rene Urueña, Reclaiming the Keys to the Kingdom (of the World): Evangelicals and Human Rights in Latin America
- Lys Kulamadayil, Addressing Economic Populism Through Law – A Case Study of the World Development Report 2017
- Part II Dutch Practice
- Laura Burgers & Tim Staal, Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands
- Marieke de Hoon, Pursuing Justice for MH17: The Role of the Netherlands
- Mistale Taylor, What a Drag(net): Dutch Surveillance Laws in the Light of European Union Data Protection Law
This article explores whether it is possible to apply the law of occupation beyond land territory, to maritime areas characterized here as “maritime territory.” The article argues that the definition of territory under Article 42 of the 1907 Hague Regulations comprises internal waters, territorial sea, and archipelagic waters, whereas other areas such as the continental shelf, the exclusive economic zone, and high seas fall outside the scope of Article 42. Accordingly, internal waters, the territorial sea, and archipelagic waters may be placed under occupation if a hostile force exercises actual authority over them without valid legal title. The article describes how the actual authority test embodied in Article 43 of the 1907 Hague Regulations applies to maritime territory and maintains that maritime territory may be occupied only in connection to an occupation of land territory. The article then addresses why applying the law of occupation to maritime territory may solve some of the current problems regarding the duties and rights of occupying powers in relation to the sea off the coasts of the areas they occupy. In particular, the application of the law of occupation can affect the exploitation of natural resources at sea and the regulation of the use of armed force. Finally, the article explores how the rules embodied in the law of occupation interact with the rules on naval warfare in the occupied maritime territory.
GPIL – German Practice in International Law publishes case studies on German State practice in the field of public international law. Each case study presents the German position on a particular question of public international law and puts that position in its wider factual and political context. Where applicable, it also records the reactions of other States and provides a legal assessment of the German position. Case studies are based on decisions by German courts, diplomatic notes, official government statements, answers to parliamentary questions, government reports, or statement before international organizations. All documents or extracts thereof not otherwise available in English are translated into English. In this manner it hopes to provide non-German speaking scholars and practitioners with a ready source of current information on the views and practice of the Government of the Federal Republic of Germany in the field of public international law.
GPIL covers the full spectrum of public international law ranging from air and space law to the use of force. The material is arranged in 35 broad subject categories. A Search facility allows for a full-text search of all records. The material is presented without hyperlinks or references as many of the original documents will be in German. A fully referenced version of all entries will be published annually in book form.
If you are interested in State practice, please check out GPIL and subscribe to the newsletter.
Tuesday, October 22, 2019
Since the end of the Cold War, international law has increasingly been challenged by states and other actors. Specific norms have also been challenged in their application by new realities and obstacles. This article focuses on these challenges as they arise from the development of cyberspace and cyber operations, and offers an overview of the main questions arising with regard to the application of international law to cyber operations. By analysing the application of the existing norms of international law to cyber operations as well as identifying their limits, the article offers an accurate lens through which to study the contestation or process of reinterpretation of some norms of international law. The objective of the article is not to deliver a comprehensive analysis of how the norms of international law apply to cyber operations but to provide an overview of the key points and issues linked to the applicability and application of the norms as well as elements of contextualisation, notably after the failure of the 2016–17 United Nations Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security. The article comprises three parts. The first part focuses on the applicability of international law to cyber operations. The second part identifies challenges that affect the applicability and application of international law in general, while the third part analyses challenges that affect specific norms of international law, highlighting their limits in dealing with cyber threats.
Jodoin: Transnational Legal Process and Discourse in Environmental Governance: The Case of REDD+ in Tanzania
Governments in developing countries have adopted policies, laws, and programs to reduce carbon emissions from deforestation and forest degradation (REDD+), with the funding and rules provided by global institutions and transnational actors. The transnational legal process for REDD+, entailing the construction and diffusion of legal norms that govern the pursuit of REDD+, has been driven by discursive struggles over the purposes and requirements of REDD+. At the global level, the development of legal norms for REDD+ has been primarily influenced by coalitions committed to the discourses of ecological modernization, civic environmentalism, and to a lesser extent, climate justice. Through discourse analysis of the transnational legal process for REDD+ in Tanzania, I show how domestic efforts to operationalize REDD+ have been dominated by a government coalition that has emphasized green governmentality, made few concessions to the discourse of civic environmentalism, and completely neglected the climate justice claims of Indigenous Peoples. This case study reveals how discourse analysis may enhance the study of transnational legal phenomena by drawing attention to the complex interplay of global and domestic discourses and its role in shaping legal norms and reinforcing or challenging structures of power and knowledge within and across legal systems.
Monday, October 21, 2019
Il diritto internazionale visto nella sua circolarità, ossia come espressione di un ordinamento in cui le norme che lo disciplinano vengono poste, mutano o si estinguono per effetto della volontà degli stessi soggetti a cui quelle norme sono rivolte, in primo luogo gli Stati. Una introduzione chiara, agile e originale alle categorie e agli istituti fondamentali del diritto internazionale.
International law seen in its circular dynamics, i.e. as a manifestation of a legal order whose norms are produced, modified and rescinded by the same subjects to which those norms are addressed, first of all by the States. A clear, concise and original introduction to the fundamental concepts and institutions of international law.
- Tilmann Altwicker, International Legal Scholarship and the Challenge of Digitalization
- Peter Hilpold, How to Construe a Myth: Neutrality Within the United Nations System Under Special Consideration of the Austrian Case
- Xuexia Liao, The Timor Sea Conciliation under Article 298 and Annex V of UNCLOS: A Critique
- Balingene Kahombo, The Western Sahara Cases before the Court of Justice of the European Union and International Law
- Daley J Birkett, Twenty Years of the Rome Statute of the International Criminal Court: Appraising the State of National Implementing Legislation in Asia
- Xiao Mao, The Function of Amicus Curiae Participation by Legal Scholars: The Al-Bashir Appeal Case at the International Criminal Court as an Illustration
- Letters to the Journal
- Patrick C R Terry, Unilateral Economic Sanctions and Their Extraterritorial Impact: One Foreign Policy For All?
- G Le Moli & J E Viñuales, Today as Yesterday? Unilateral Coercive Measures and Human Dignity
- Geneviève Dufour & Nataliya Veremko, Unilateral Economic Sanctions Adopted to React to An Erga Omnes Obligation: Basis for Legality and Legitimacy Analysis?— A Partial Response to Alexandra Hofer’s Article
- Sufian Jusoh & Tamat Sarmidi, Unilateral Economic Sanctions: Constructive Engagement as an Alternative?
Rist: Implementing the Genocide Convention at the Domestic Level: The Elie Wiesel Genocide and Atrocity Prevention Act 2018
- Tom Harper, China’s Eurasia: the Belt and Road Initiative and the Creation of a New Eurasian Power
- Joshua Andresen, China’s Military and the Belt and Road Initiative: a View from the Outside
- Mala Sharma, India’s Approach to China’s Belt and Road Initiative—Opportunities and Concerns
- Lu Xu, The Changing Perspectives of Chinese Law: Socialist Rule of Law, Emerging Case Law and the Belt and Road Initiative
- Bryane Michael & Say Goo, Do Corporate Governance Practices in One Jurisdiction Affect Another One? Lessons from the Panama Papers
- Stacey Henderson, The Evolution of the Principle of Non-intervention? R2P and Overt Assistance to Opposition Groups
- Melinda Rankin, The ‘Responsibility to Prosecute’ Core International Crimes? The Case of German Universal Jurisdiction and the Syrian Government
- Ramesh Thakur, Global Justice and National Interests: How R2P Reconciles the Two Agendas on Atrocity Crimes
- Simon Adams, The Responsibility to Protect and the Fate of the Rohingya
- Jacqueline Peel & Jolene Lin, Transnational Climate Litigation: The Contribution of the Global South
- Ryan Liss, Crimes Against the Sovereign Order: Rethinking International Criminal Justice
- Current Developments
- David P. Stewart, The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
- International Decisions
- Diane Marie Amann, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965
- Ginevra Le Moli, President of the Republic et al. v. Ali Ayyoub et al.
- Danae Azaria, Wightman et al. v. Secretary of State for Exiting the European Union
- Chimène I. Keitner & Scott Dodson, Jam v. International Finance Corp.
- Contemporary Practice of the United States Relating to International Law
- Jean Galbraith, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- Allen S. Weiner, reviewing The Use of Force and International Law, by Christian Henderson
- Tom Dannenbaum, reviewing Destroying the Caroline: The Frontier Raid that Reshaped the Right to War, by Craig Forcese
- Nienke Grossman, reviewing Provisional Measures Before International Courts and Tribunals, by Cameron A. Miles
- Christina G. Hioureas & Shrutih Tewarie Chemburkar, reviewing Oppenheim's International Law: United Nations, Volumes I and II, by Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, and James Sloan
Sunday, October 20, 2019
Hajjar: The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”
Since 2001, we have witnessed the development of a counterterrorism war paradigm built to advance claims about the post-9/11 scope and discretion of US executive power and to articulate specific interpretations of national security interests and strategic objectives in the “war on terror.” What makes this a paradigm rather than merely a conglomeration of evolving policies is the cohesiveness and mutual reinforcement of its underlying rationales about the rights of the US government to prosecute a territorially unbounded war against an evolving cast of enemies. Drawing on Bourdieu’s concept of a juridical field, the article focuses on how officials who constructed a legal framework for this paradigm, rather than disregarding international law wholesale, have engaged in interpretations and crafted rationales to evade some international humanitarian law (IHL) rules and norms while rejecting the underlying logic or applicability of others. This article traces the counterterrorism war paradigm’s development and explains how it now competes with and threatens to supersede the customary law principles enshrined in IHL.