States are free, yet everywhere live under international courts and tribunals (ICs). As they proliferate and gain power across ever more domains, ICs become targets of resistance and criticism that they are illegitimate authorities. What reasons might a state have to defer to an IC’s judgment or interpretation, even when the state regards it as mistaken, and even when it conflicts with the interests and objectives of government? Section I sketches the multiple tasks of ICs, in complex interdependence with other actors. Their core task is to adjudicate disputes through interpretation and application of international law by legal methods. This may also contribute indirectly to a range of further tasks. Section II addresses some aspects of the relation between normative legitimacy of ICs and descriptive legitimacy - actors’ beliefs therein. Section III shows how a wide range of legitimacy challenges concern ways ICs fail to carry out their tasks. This account does not seek to provide substantive arguments or seek to show that all such criticisms are correct. The aims are rather to make many such criticisms comprehensible as legitimacy concerns, to provide a rationale for popular taxonomies of legitimacy criticisms, and to indicate which premises and arguments are required for such criticisms to be sound.
Saturday, January 25, 2020
Can violations of jus ad bellum also violate the right to life under international human rights law (IHRL), even in cases where the laws of armed conflict are otherwise followed? In 2018's General Comment 36 (GC 36) the Human Rights Committee (HRC) answered this question, for the first time, in the affirmative. This article uses the HRC's position as a platform for a long needed discussion on the theoretical underpinnings, and implications, of a possible human rights law on the resort to force.
This article identifies three pillars in GC 36’s position, which subject traditional questions of jus ad bellum to IHRL considerations: First, the view that aggression is not only a violation of jus ad bellum, but also an ipso facto violation of the right to life; second, that states bear the "responsibility" to oppose aggression; and third, that failing to reasonably attempt to resolve disputes peacefully could amount to a violation of the duty to ensure the right to life.
The article analyzes these pillars doctrinally, and then moves to discuss the theoretical commitments required to accept each of them, as well as their costs. Namely, they all require breaking with the traditional view that jus ad bellum is strictly an inter-state issue. Although, as the paper argues, this development is a welcomed one, the humanization of jus ad bellum through human rights law carries risks that should not be overlooked: chiefly, the securitization of human rights and the depoliticization of war. The prospects and perils of the humanization of jus ad bellum, as this article demonstrates, open a new area of theoretical inquiry and legal possibilities.
International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within particular legal arrangements, and (2) conflicts that cut across legal arrangements. For each kind of conflict, the skeptical claim is directed at the pluralist structure itself. The stated problem -- the thing that is thought to disintegrate the association -- is that competing legal positions are not reconciled or resolved but allowed to coexist, fester, and repeatedly reappear.
This book chapter challenges that skeptical claim. Although other scholars have already argued that it is overdrawn, I aim to contest its central premise. I argue that ineradicable governance conflicts are not necessarily dissociative for the people who partake in them. Creating space for these people to have their conflicts in relatively constructive ways can instead by productive for the group. It is a way for them to engage together and invest in a joint governance project, despite their many disagreements, and thus to preserve the project as a going concern that binds them.
Thursday, January 23, 2020
Beinlich: Drones, Discretion, and the Duty to Protect the Right to Life: Germany and its Role in the US Drone Programme before the Higher Administrative Court of Münster
In 2014, three Yemeni claimants filed an administrative complaint against the German government addressing Germany’s role in the US drone programme. Relying on the right to life under the German Basic Law, the claimants argued that German authorities must prevent the US from using its air base in Ramstein, Germany, for purposes of conducting drone strikes that might unlawfully harm the claimants. On 19th March 2019, the Higher Administrative Court of Münster overruled the court of first instance and partly decided in favour of the claimants. In what is a highly interesting and thought-provoking judgment, the Court not only finds strong reasons to suspect that US drone strikes in Yemen, at least partially, violate international law. Even more, it orders the German government to ‘ascertain’ that the US drone strikes conducted via Ramstein Air Base are compatible with international law and, ‘if necessary’, to ‘work towards’ compliance with international law. Remarkable enough, this outcome is not the only reason why the judgment is worth being discussed: It furthermore raises interesting and difficult questions as to the material and territorial reach of fundamental rights under the German Basic Law, their inter-relation with international law, as well as the scope – and limits – of judicial review in matters of international law and foreign affairs.
Wednesday, January 22, 2020
Deplano: Pluralising International Legal Scholarship: The Promise and Perils of Non-Doctrinal Research Methods
- Rossana Deplano, Introduction
- Marija Đorđeska, General Principles of Law Recognized by Civilized Nations: Method, Inductive-Empirical Analysis and (More) ‘Scientific’ Results
- Sarina Landefeld, The Evolution of Norms and Concepts in International Law: A Social Constructivist Approach
- Josef Ostřanský, A Case for Ethnography of International Investment Law
- Alice Margaria, Going beyond judgements: Exploring the Jurisprudence of the European Court of Human Rights
- Elizabeth A. Faulkner, The development of child trafficking within international law: a socio-legal and archival analysis
- Giulia Gentile & Luigi Lonardo, Appeals in the field of EU sanctions before the European Court of Justice after Lisbon: A quantitative study
- Gabriel M. Lentner, The Perils of Quantitative Research in International Law
- Huaxia Lai, The Unfulfilled Promises of the Data-Driven Approach to International Economic Law
- Rossana Deplano, Conclusions
Attribution in International Law and Arbitration clarifies and critically discusses the international rules of attribution of conduct, particularly regarding their application to states under international investment law.
It examines the key question of how and to what extent breaches of State obligations, particularly in respect of States' commitments to foreign investors under international investment agreements (IIAs) and bilateral investment treaties (BITs), can be attributed.
Of special interest within this context is the responsibility of States when the alleged breach has been committed by separate legal entities, rather than the state itself. Under domestic law, entities such as state-owned enterprises (SOEs) are considered legally distinct, however the State may still be considered responsible for their actions under international law.
The book addresses the relevant issues systematically, beginning with direct reference to the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International law Commission (ILC) in 2001. It then elaborates on the specifics of international investment law, based on a detailed examination of practice and case law, whilst giving due consideration to the academic debate. The result is a full, innovative take on one of the most difficult questions in investment arbitration.
Tuesday, January 21, 2020
- Cosette D. Creamer & Beth A. Simmons, The Proof Is in the Process: Self-Reporting Under International Human Rights Treaties
- Cecily Rose, The Creation of a Review Mechanism for the UN Convention Against Transnational Organized Crime and Its Protocols
- Current Developments
- Sean D. Murphy, Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission
- Editorial Comment
- Richard B. Bilder, On the Search for Extraterrestrial Intelligence (SETI)
- International Decisions
- Tania Voon, Russia—Measures Concerning Traffic in Transit
- Angela Mudukuti, Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal
- Tara Van Ho, Vedanta Resources Plc and Another v. Lungowe and Others
- Cameron Miles, The MV “Norstar” Case (Panama v. Italy)
- 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
- Cesare P.R. Romano, Legitimacy, Authority, and Performance: Contemporary Anxieties of International Courts and Tribunals
- Chiara Giorgetti, reviewing Comparative International Law, edited by Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg
- Rita Guerreiro Teixeira & Jan Wouters, reviewing Research Handbook on the Theory and Practice of International Lawmaking, edited by Catherine Brölmann and Yannick Radi
- Charlotte Ku, reviewing The Changing Practices of International Law, edited by Tanja Aalberts and Thomas Gammeltoft-Hansen
- Andrea Harrison, reviewing Underground Warfare, by Daphné Richemond-Barak
Monday, January 20, 2020
- Unpacking the Strategic Dynamics of the Indo-Pacific
- Kai He & Mingjiang Li, Understanding the dynamics of the Indo-Pacific: US–China strategic competition, regional actors, and beyond
- Feng Liu, The recalibration of Chinese assertiveness: China's responses to the Indo-Pacific challenge
- Xue Gong, Non-traditional security cooperation between China and south-east Asia: implications for Indo-Pacific geopolitics
- Kei Koga, Japan's ‘Indo-Pacific’ question: countering China or shaping a new regional order?
- Rajesh Rajagopalan, Evasive balancing: India's unviable Indo-Pacific strategy
- Brendan Taylor, Is Australia's Indo-Pacific strategy an illusion?
- Dewi Fortuna Anwar, Indonesia and the ASEAN outlook on the Indo-Pacific
- See Seng Tan, Consigned to hedge: south-east Asia and America's ‘free and open Indo-Pacific’ strategy
- Kai He & Huiyun Feng, The institutionalization of the Indo-Pacific: problems and prospects
- Mingjiang Li, The Belt and Road Initiative: geo-economics and Indo-Pacific security competition
- Ling Wei, Developmental peace in east Asia and its implications for the Indo-Pacific
- Literature Review
- Dahlia Simangan, Where is the Anthropocene? IR in a new geological epoch