De Pooter: The Snow Crab Dispute in Svalbard

Hélène De Pooter has posted an ASIL Insight on The Snow Crab Dispute in Svalbard.

Irving: Multi-Actor Human Rights Protection at the International Criminal Court

Emma Irving (Leiden Univ. - Law) has published Multi-Actor Human Rights Protection at the International Criminal Court (Cambridge Univ. Press 2020). Here's the abstract:

Conversations about the involvement of States in the workings of the International Criminal Court often focus on the role of State cooperation in enabling the ICC to carry out criminal trials. However, there is a dimension to this cooperation that is underexplored. Whenever the ICC relies on the assistance of States, or States otherwise become involved in its functioning, the human rights of accused and witnesses involved in proceedings may be adversely affected. The simultaneous involvement of the ICC, ICC States Parties, and the ICC host State - whilst essential and unavoidable - can insert ambiguity and uncertainty into the protection of individuals, leaving the door open for human rights violations. This book explores this phenomenon of multi-actor human rights protection at the ICC. By setting out the relevant obligations of the different actors, the book highlights potential problems in human rights protection and proposes ways to mitigate them.

Koh: Building a New Legal Order for the Oceans

Tommy Koh has published Building a New Legal Order for the Oceans (NUS Press 2019). Here's the abstract:

The most important of Tommy Koh’s writings on the Law of the Sea are brought together in Building a New Legal Order for the Oceans. As President of the Third United Nations Conference on the Law of the Sea, Koh shares his perspective on the history of the United Nations Convention on the Law of the Sea (UNCLOS), the concepts, tensions and intentions that underlie many of the new legal concepts, and the unique negotiating process of the UNCLOS.

The UNCLOS has been called a constitution for the oceans and is critically important today in a world rocked by climate change and biodiversity loss, and where deep seabed resources are potentially of vital strategic importance. It is absolutely crucial to find new ways to manage the common heritage of mankind, while navigating the priorities and expectations of those who depend on the oceans. Equally, peace at sea is made possible by the UNCLOS. Koh discusses current threats to maritime security. He explains the intricacies of the disputes in the South China Sea and the success of maritime boundary conciliation between Australia and Timor-Leste.

What can be learned from the success of UNCLOS? How can we build on that success, and manage the new tensions that arise in the Law of the Sea?

Sparks: The Place of the Environment in State of Nature Discourses: Reassessing Nature, Property and Sovereignty in the Anthropocene

Tom Sparks (Max Planck Institute for Comparative Public Law and International Law) has posted The Place of the Environment in State of Nature Discourses: Reassessing Nature, Property and Sovereignty in the Anthropocene. Here's the abstract:

International environmental law, and in particular climate change law, are topics of keen interest in modern international law. Yet even in their modern forms, they depend upon and are governed by principles which derive from much earlier periods of international law and political thought. This chapter identifies sovereignty, as it has been interpreted and applied, as a key obstacle to achieving substantive environmental protection through the means of law, and traces that concept back to the roots of sovereignty in State of Nature theory. It analyses three prominent State of Nature theories, those of Thomas Hobbes, John Locke, and David Hume, in order to show that although their understandings of nature differ, each treats the natural world primarily as a resource. It then turns to modern international environmental law, taking as its case study the whaling regime, and argues that through the continued use of concepts drawn from the State of Nature tradition, an understanding of the environment as a resource to be maximally exploited is continuously re-entrenched. These conceptual foundations continue to restrain progress and development in modern environmental law.

Orentlicher: 'Worth the Effort'? Assessing the Khmer Rouge Tribunal

Diane Orentlicher (American Univ. - Law) has posted 'Worth the Effort'? Assessing the Khmer Rouge Tribunal. Here's the abstract:

Every international war crimes court has attracted controversy, but none more than the Extraordinary Chambers in the Courts of Cambodia (ECCC). Now in its twilight years, the ECCC has sparked robust debate since the late 1990s, before it was even launched. During negotiations aimed at creating a tribunal to address crimes of the Khmer Rouge, United Nations (UN) officials and others debated whether a court acceptable to Cambodia would be worthy of UN support. Today, the fulcrum of debate is whether the ECCC was ‘worth the effort’ it has required.

While myriad aspects of the ECCC’s performance are crucial to its legacy, this Article explores one question of overarching importance: whether the court’s performance has justified a central risk the UN assumed when it agreed to support the court — that case selection would be improperly influenced by the Cambodian government. More particularly, it assesses performance against two criteria: How well have safeguards against such interference worked? Are survivors of Khmer Rouge atrocities and other Cambodian citizens satisfied with ECCC justice?

Grey: Reproductive Crimes in International Criminal Law

Rosemary Grey (Univ. of Sydney - Law) has posted Reproductive Crimes in International Criminal Law (in Gender and International Criminal Law, I. Rosenthal, V. Oosterveld, & S. SáCouto eds., forthcoming). Here's the abstract:

This chapter seeks to incentivize greater attention to reproductive violence in international criminal law. The author recognizes that reproductive autonomy is a controversial issue, and has seldom been high on the international community’s agenda. As a result, there is no prospect of an international instrument that expressly criminalizes further reproductive crimes in the foreseeable future. The more practical route is to make creative use of existing legal frameworks, which as this chapter shows, have untapped potential when it comes to reproductive crimes. To illustrate this argument, the chapter examines the crimes of genocide, forced pregnancy, enslavement, sexual violence, persecution, outrages on personal dignity, torture, and inhumane acts.

Butchard: The Responsibility to Protect and the Failures of the United Nations Security Council

P M Butchard (Edge Hill Univ. - Law) has published The Responsibility to Protect and the Failures of the United Nations Security Council (Hart Publishing 2020). Here's the abstract:

What can be done if the United Nations Security Council fails to protect people from mass atrocities? At a time of inaction and political paralysis at the United Nations, this book explains the legality of alternative action beyond the Security Council.

This book takes a fresh look at the responsibility to protect and offers new and compelling insights into the powers and limits of the UN Security Council. It argues that the Security Council's responsibility to maintain international peace and security, and its responsibility to protect, do not die with its own failures. Other actors can and must take up responsibility to save those in need. In a persuasive and detailed examination of the legal framework, this research identifies options for coercive measures to be taken beyond the Council that could be used to break the deadlock, including through the General Assembly and regional organisations.

Call for Submissions: International Law and the Internet

The Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law has issued a call for submissions for a special issue on "International Law and the Internet." The call is here.

AJIL Unbound Symposium: Art, Aesthetics, and International Justice

AJIL Unbound has posted a symposium on "Art, Aesthetics, and International Justice." The symposium includes an introduction by Marina Aksenova and contributions by Karima Bennoune, Mark A. Drumbl, Tanja Aalberts and Sofia Stolk, Rachel Kerr, Maria Elander, and Emiliano J. Buis.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 67, 2020) is out. Contents include:

• Testing the legitimacy, consistency and credibility of the International Criminal Court
• Introduced by Béatrice Bonafé & Micaela Frulli
• Andrea Carcano, On the exercise of the judicial function at the International Criminal Court: Issues of credibility and structural design
• Gabrielle McIntyre, The impact of a lack of consistency and coherence: How key decisions of the International Criminal Court have undermined the Court’s legitimacy

Renz: State Responsibility and New Trends in the Privatization of Warfare

Frauke Renz has published State Responsibility and New Trends in the Privatization of Warfare (Edward Elgar Publishing 2020). Here's the abstract:

Contracts with private military and security companies are a reality of modern conflicts. This discerning book provides nuanced insights into the international legal implications of these contracts, and establishes an in-depth understanding of the impacts for contracting states, home states and territorial states under the current state responsibility regime.

Focussing on the Articles on State Responsibility (ASR) the author considers under which conditions states are, or should be, responsible for the acts of private contractors given new trends towards remote warfare involving drones and increasingly autonomous weapon systems. Rigorous academic research and case studies, combined with insights from numerous interviews with practitioners, serve to highlight the challenges to applying the ASR. These challenges range from the relativity of key concepts of attribution to the issue of when reliance on private contractors becomes a violation of the principle of distinction under International Humanitarian Law and also illustrate where the current state responsibility regime needs to be modified to adequately address evolutions in warfare.

Goldmann: Contesting Austerity: Genealogies of Human Rights Discourse

Matthias Goldmann (Goethe-Universität Frankfurt am Main - Law) has posted Contesting Austerity: Genealogies of Human Rights Discourse. Here's the abstract:

The dominant understanding of the role of human rights in the context of austerity induced by sovereign debt crises has shifted markedly over time. It reflects, and may have influenced, the genealogies of human rights law in the postwar era. Four different paradigms emerge. During the 1970s, the decade preceding the debt crisis of the 1980s, the idea of austerity as a response to debt crises was contested by the basic (human) needs approach and by the proposal of a New International Economic Order. Both strands of thought showed some affinity with human rights law, although not without ambiguity, understanding self-determination as a structural requirement for ESC rights enjoyment. Counterintuitively, though, the debt crisis beginning in the 1980s silenced, rather than provoked, any form of human rights-based critique. The IMF managed to shift the focus of the debate from human needs to human capital, in line with the emerging Washington Consensus. When the Iron Curtain fell, sovereign debt restructuring became more generous, but debtor states had to pay with ever more intrusive forms of austerity, including structural conditions such as respect for civil and political rights. This “governance paradigm” of human rights was countered by a transformative paradigm of human rights in which civil society articulated its critique of austerity. The IFIs avoided the issue of human rights, but reacted by adding “social” components to austerity that aligned with their focus on efficiency and growth and further entrenched sufficiency. The impact of austerity on the European periphery led to lots of human rights litigation, but a number of structural obstacles prevented its success. Instead, the crisis aftermath saw enormous progress in the political recognition of human rights as a relevant standard for austerity. This has given rise to a new political paradigm of human rights. While this genealogy shows the contingency of human rights discourse in relation to austerity, it reveals their potential for challenging economic expertise and empowering progressive views. The limits of human rights discourse are the limits of our imagination.

Shirlow & Waibel: The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration

Esme Shirlow (Australian National Univ. - Law) & Michael Waibel (Univ. of Vienna - Law) have posted The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration (British Yearbook of International Law, forthcoming). Here's the abstract:

How investment arbitral tribunals use preparatory materials varies significantly. In particular, they have differed in defining the rationale for referring to travaux; when to have recourse to travaux; how to use these materials; and even more fundamentally, what materials to classify as travaux. This article examines each of these issues to consider the opportunities and risks associated with the growing transparency of investment treaty negotiations for arbitral interpretations of investment treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the potential advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby a treaty interpreter casts a wide net but differentiates the weight given to materials depending on their propensity to shed light on the joint intention of the States parties. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production. Section V concludes.