New Issue: Transnational Dispute Management

The latest issue of Transnational Dispute Management (2020, no. 4) is out. This is a special issue on "International Arbitration in Times of Economic Nationalism." The table of contents is here.

Beckers: From Corporate Personality to Corporate Governance: The Transformation of International Human Rights Protection in Corporate Governance Structures

Anna Beckers (Maastricht Univ. - Law) has posted From Corporate Personality to Corporate Governance: The Transformation of International Human Rights Protection in Corporate Governance Structures (in Human Rights and Global Governance, Nehal Bhuta & Rodrigo Vallejo eds., forthcoming). Here's the abstract:

This article is concerned with the role of corporate governance systems in the global governance of human rights protection. It departs from the observation that corporations have been more strongly integrated into the system of international human rights protection, but differently than initially anticipated by international lawyers. Rather than moving towards acceptance of corporations as subjects that can or should have international legal personality, corporations become accepted as actors that should instrumentalize their own private governance systems for international human rights protection. To that end, this article develops two interlinked arguments: First, it shows doctrinally how the recent developments in the global governance of business and human rights, notably the UNGP, have led to corporate governance structures becoming instrumentalised as the core and central means for corporate human rights protection at the expense of state-based human rights protection. Second, it is shown how this use of corporate governance for international human rights protection is likely to change the very nature of the international human rights that are supposed to be protected. By means of reviewing recent empirical studies on how corporations incorporate human rights within their governance structure and comparing this to the related understanding in international human rights law, it is revealed how the origin, justification and content of human rights as well as the required processes and remedies to ensure their protection changes in the translation from a state-centric to a corporate-centric understanding. In corporate governance structures, human rights become de-formalized and re-modelled in their meaning and enforcement. This result poses new questions, most importantly whether such a development is to be welcomed or criticised, i.e. whether this ‘corporate understanding’ of human rights should be accepted or whether it is necessary to ‘go back to the starting point’ of a state-centric understanding. The contribution concludes tentatively in a twofold direction. It argues for an inevitably stronger role of private law in this ‘new reality’ of human rights protection, as private law is ultimately the law that may regulate corporations as private actors. Simultaneously, it outlines and highlights the tensions that lawyers –both human rights lawyers as well as private and corporate lawyers – will face when attempting to realise this goal.

Peters: Menschenrechtsschutz in der internationalen Gesellschaft: Extraterritoriale Staatenpflichten und Responsibility to Protect

Daniel Peters has published Menschenrechtsschutz in der internationalen Gesellschaft: Extraterritoriale Staatenpflichten und Responsibility to Protect (Nomos 2020). Here's the abstract:

Die Idee einer internationalen Schutzverantwortung, wonach die Staatengemeinschaft oder einzelne Staaten gestufte Verantwortungen zum Schutz grundlegender Menschenrechte wahrnehmen sollen, wird in der gegenwärtigen internationalen Gesellschaft kontrovers diskutiert. Anhand einer Analyse der Debatten über den Schutz vor Massenverbrechen und Menschenrechtsverletzungen in einer globalisierten Weltwirtschaft problematisiert dieser Band das Faktum eines fragmentierten Menschenrechtsschutzregimes. Um die isolierte Anwendung verschiedener Schutzagenden zu überwinden, werden die Konzepte der Zuschreibung extraterritorialer Schutzpflichten und der Responsibility to Protect miteinander verknüpft. Zugleich wird durch die Integration neuer Primärinstitutionen ein Beitrag zur Weiterentwicklung der Englischen Schule geleistet.

Hobér: The Energy Charter Treaty: A Commentary

Kaj Hobér (3 Verulam Buildings) has published The Energy Charter Treaty: A Commentary (Oxford Univ. Press 2020). Here's the abstract:

The Energy Charter Treaty (ECT) is unique under international law, providing a multilateral framework for energy cooperation through the operation of more open and competitive energy markets, while respecting the principles of sustainable development and sovereignty over energy resources. This is an in-depth, article-by-article commentary on all aspects of the Treaty and is essential for the large number of investors who are resorting to the protection of the ECT. It provides clear and comprehensive discussion of all provisions, analysing them against the background of other relevant writings such as case law and academic papers. It provides clear and comprehensive discussion of all provisions, analysing them against the background of other relevant materials such as case law, arbitral awards, and academic scholarship.

It also offers insightful coverage and analysis of the history and background, as well as discussion of its relationships with other treaties. As energy investors and the legal community become more aware of the Treaty, the number of disputes relating to it is rapidly increasing, and the book considers the growing volume of case law concerning the interpretation or application of the provisions of the treaty.

Grigorescu: The Ebb and Flow of Global Governance: Intergovernmentalism versus Nongovernmentalism in World Politics

Alexandru Grigorescu (Loyola Univ., Chicago - Political Science) has published The Ebb and Flow of Global Governance: Intergovernmentalism versus Nongovernmentalism in World Politics (Cambridge Univ. Press 2020). Here's the abstract:

The Ebb and Flow of Global Governance challenges the traditionally dichotomous distinction between international intergovernmental organizations and international nongovernmental organizations. Alexandru Grigorescu argues that international organizations are best understood as falling on an 'intergovernmental-nongovernmental continuum'. The placement of organizations on this continuum is determined by how much government involvement factors into their decision-making, financing, and deliberations. Using this fine-grained conceptualization, Grigorescu uncovers numerous changes in the intergovernmental versus nongovernmental nature of global governance over the past century and a half. These changes are due primarily to ideological and institutional domestic shifts in powerful states. The Ebb and Flow of Global Governance assesses the plausibility of these arguments through archival research on a dozen organizations from the global health, labor, and technical standards realms. Grigorescu concludes that there has been a continuous ebb and flow in world politics, rather than an inexorable movement towards greater roles for nongovernmental actors, as existing literature argues.

Kjeldgaard-Pedersen: Is the Quality of the ICC’s Legal Reasoning an Obstacle to Its Ability to Deter International Crimes?

Astrid Kjeldgaard-Pedersen (Univ. of Copenhagen - Law) has posted Is the Quality of the ICC’s Legal Reasoning an Obstacle to Its Ability to Deter International Crimes? (Journal of International Criminal Justice, forthcoming). Here's the abstract:

Given that the Rome Statute is only binding upon its Member States, there is a certain element of judicial megalomania in the International Criminal Court’s recurrent claim that it acts ‘on behalf of the international community as a whole’ in its endeavor to end impunity for international crimes.Focusing on recent ICC rulings concerning the nature and function of the Court, this article queries whether the quality of the Court’s legal reasoning may have an impact its long-term deterrence potential. The article suggests that while making self-aggrandizing statements and stretching the boundaries of its legal mandate might, in principle, increase the short-term deterrent effect of the ICC, the Court risks sacrificing a greater good, i.e. its long-term status as a legitimate authority within the field international criminal law. Inconsistent rulings without a solid basis in sound legal analysis may indeed prove to be devastating for the ICC, which is still in the process of establishing itself as a credible institution that commands respect.

Rachovitsa: Designing for the Best Composition of International Courts: The Value of Diverse and Specialised International Law Expertise on the Bench

Adamantia Rachovitsa (Univ. of Groningen - Law) has posted Designing for the Best Composition of International Courts: The Value of Diverse and Specialised International Law Expertise on the Bench (in International Procedure in Interstate Litigation: A Comparative Approach, Eric de Brabandere ed., forthcoming). Here’s the abstract:

The book chapter discusses the appropriate types of expertise that should be available in the composition of international courts. The main argument is that the international bench needs to include judges with diverse and specialised expertise. For this reason, the concept ‘competence in international law’ as a statutory requirement for nomination and election of judges, can be construed broadly seeking out individuals who not only have recognised competence in international law stricto sensu but also strong complementary knowledge in specialised area(s) of international law relevant to a given court’s judicial work. Judges who are conversant with both general and special aspects and areas of international law are well placed to navigate the complexity and density of international law entrenched in disputes submitted for international adjudication. The first part of the discussion engages with the idea that general international courts value expertise of judges in specialised areas of international law and that specialised international courts value judges with competence in international law. Existing statutory election requirements can accommodate this suggestion. The second part of the discussion explores the detailed expertise requirements incorporated in the statutes of certain, new international courts. Novel developments suggest a turn towards favouring and quantifying required expertise in different areas of international law when deciding the overall composition of a court.

New Issue: European Journal of International Relations

The latest issue of the European Journal of International Relations (Vol. 26, no. 2, June 2020) is out. Contents include:

• Seán Molloy, Realism and reflexivity: Morgenthau, academic freedom and dissent
• Michael D Cohen & Aaron Rapport, Strategic surprise, nuclear proliferation and US foreign policy
• Maja Spanu, The hierarchical society: the politics of self-determination and the constitution of new states after 1919
• Freya Irani, Beyond de jure and de facto boundaries: tracing the imperial geographies of US law
• Christopher Murray, Imperial dialectics and epistemic mapping: From decolonisation to anti-Eurocentric IR
• Giovanni Mantilla, Social pressure and the making of wartime civilian protection rules
• Pablo de Orellana, Retrieving how diplomacy writes subjects, space and time: a methodological contribution
• Ivan Bakalov, Setting soft power in motion: towards a dynamic conceptual framework
• Terry Macdonald & Kate Macdonald, Towards a ‘pluralist’ world order: creative agency and legitimacy in global institutions
• Sidra Hamidi, Law as discursive resource: the politics of the nuclear/non-nuclear distinction in the Non-Proliferation Treaty
• Sean Yom, Roles, identity, and security: foreign policy contestation in monarchical Kuwait
• Miguel Otero-Iglesias & Manuel Weissenegger, Motivations, security threats and geopolitical implications of Chinese investment in the EU energy sector: the case of CDP Reti

New Issue: Global Responsibility to Protect

The latest issue of Global Responsibility to Protect (Vol. 12, no. 2, 2020) is out. Contents include:

• Ray Acheson, Gender-Based Violence and the Arms Trade
• Allison Pytlak, Are Arms Trade Treaty Meetings Being Used to Their Full Potential?
• Sam Perlo-Freeman, The ATT and War Profiteering: the Case of the UK
• Deepayan Basu Ray, Commentary: Making Sense of the World that the ATT and the SDGS Are Designed to ‘Fix’
• Jenna B. Russo, R2P in Syria and Myanmar: Norm Violation and Advancement

Ramsundar: State Responsibility for Support of Armed Groups in the Commission of International Crime

Narissa Ramsundar (Canterbury Christ Church Univ.) has published State Responsibility for Support of Armed Groups in the Commission of International Crime (Brill | Nijhoff 2020). Here's the abstract:

State Responsibility for the Support of Armed Groups in the Commission of International Crimes examines the law on attribution of conduct of individuals to states. Under established principles of international law, State responsibility only arises where armed groups act under the direction or control of the State, or are completely dependent on the State. These tests are under inclusive as they do not consider the different ways states can exert control over armed groups in the commission of international crimes. Ramsundar presents an interesting examination into the possibility of liberalization of the rules of State responsibility. The examination considers subtle ways states can exert control over armed groups in the commission of international crimes. Her proposal presents a compelling argument for widening the scope of responsibility to states through useful modifications to interpretation of the tests of control and dependence.

New Issue: Humanity

The latest issue of Humanity (Vol. 11, no. 1, Spring 2020) is out. Contents include:

• Dossier: Technologies of Stateness
• Nehal Bhuta & Guy Fiti Sinclair, Introduction: Technologies of Stateness
• Megan Donaldson, The League of Nations, Ethiopia, and the Making of States
• Stephen Legg, Imperial Internationalism: The Round Table Conference and the Making of India in London, 1930–1932
• Guy Fiti Sinclair, Forging Modern States with Imperfect Tools: United Nations Technical Assistance for Public Administration in Decolonized States
• Corinna R. Unger, Development Projections: The World Bank in Calcutta in the 1970s
• Sara Kendall, Inscribing the State: Constitution Drafting Manuals as Textual Technologies
• Luis Eslava & Sundhya Pahuja, The State and International Law: A Reading from the Global South
• Ole Jacob Sending, Afterword: International Organizations and Technologies of Statehood

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 20, no. 2, 2020) is out. Contents include:

• Martha M. Bradley & Aniel de Beer, “All Necessary and Reasonable Measures” – The Bemba Case and the Threshold for Command Responsibility
• Luke Moffett, A Bridge Too Far? Attacks against Cultural Property used as Military Objectives as War Crimes: The Prlić et al. Case and the Mostar Bridge
• Gabriel M. Lentner, The Lasting Legacy of Double Standards: The International Criminal Court and the UN Security Council Referral Mechanism
• Kritika Sharma, The Curious Case of Rule 165 of the Rules of Procedure and Evidence: The Effect of Control Exercised by the Assembly of States Parties over the International Criminal Court
• Kirsten J. Fisher, Messages from the Expressive Nature of icc Reparations: Complex-victims in Complex Contexts and the Trust Fund for Victims
• Dimitris Liakopoulos, Mutual Cooperation and Criminal Efficiency under Regulation (EU) 2018/1805 for the Mutual Recognition of Freezing and Confiscation Measures
• Michelle Coleman, The Tension between the Presumption of Innocence and Victims’ Participation Rights at the International Criminal Court

Fikfak: Non-Pecuniary Damages Before the European Court of Human Rights: Forget the Victim; It’s All About the State

Veronika Fikfak (Univ. of Copenhagen - iCourts) has posted Non-Pecuniary Damages Before the European Court of Human Rights: Forget the Victim; It’s All About the State (Leiden Journal of International Law, forthcoming). Here's the abstract:

This paper studies how the European Court of Human Rights adjusts damages for human rights violations. The paper empirically analyses 13 years of ECtHR’s case-law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment) and 5 (arbitrary detention) of the Convention. The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the paper quantitatively analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.

Call for Submissions: Trade, Law and Development

The journal Trade, Law and Development has issued a call for submissions for its Winter 2020 issue (Vol. 12, no. 2). The call is here.

New Issue: Nordic Journal of Human Rights

The latest issue of the Nordic Journal of Human Rights (Vol. 37, no. 4, 2019) is out. Contents include:

• Luca Bonadiman & Ukri Soirila, Human Rights, Populism, and the Political Economy of the World
• Hanna Buer Haddeland, The Right to Health Care for Irregular Migrants in Norway: Interpretation, Accessibility, and Gaps Between Needs and Rights

New Issue: International Organization

The latest issue of International Organization (Vol. 74, no. 2, Spring 2020) is out. Contents include:

• Articles
• Amanda Kennard, The Enemy of My Enemy: When Firms Support Climate Change Regulation
• Julia Costa Lopez, Political Authority in International Relations: Revisiting the Medieval Debate
• Adam G. Lichtenheld, Explaining Population Displacement Strategies in Civil Wars: A Cross-National Analysis
• Allard Duursma, African Solutions to African Challenges: The Role of Legitimacy in Mediating Civil Wars in Africa
• Barry Hashimoto, Autocratic Consent to International Law: The Case of the International Criminal Court's Jurisdiction, 1998–2017
• Review Esssay
• Susan D. Hyde & Elizabeth N. Saunders, Recapturing Regime Type in International Relations: Leaders, Institutions, and Agency Space
• Research Note
• Joseph M. Brown, Correlates of Warning: Territory, Democracy, and Casualty Aversion in Terrorist Tactics

New Issue: Legal Issues of Economic Integration

The latest issue of Legal Issues of Economic Integration (Vol. 47, no. 2, 2020) is out. Contents include:

• From the Board: The EU–UK Future Relationship: A Trade or Governance Agreement?
• Ilaria Espa & Gracia Marín Durán, Promoting Green Energy Through EU Preferential Trade Agreements: Potential and Limitations
• Marja-Liisa Öberg, Internal Market Acquis as a Tool in EU External Relations: From Integration to Disintegration
• Arwel Davies, Technology Transfer Contracts and the TRIPS: Interpreting High and Low Consensus Norms

Florou: Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties

Aikaterini Florou has published Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties (Brill | Nijhoff 2020). Here's the abstract:

In Contractual Renegotiations and International Investment Arbitration, Aikaterini Florou explores the sensitive issues of renegotiating state contracts and the relationship between those contracts and the overarching international investment treaties. By introducing novel insights from economics, the author deconstructs the contract-treaty interaction, demonstrating that it is not only treaties that impact the underlying contracts, but also that those contracts have an effect on the way the open-textured treaty standards are interpreted. The originality of the argument is combined with an innovative interpretative methodology based on relational contract theory and transaction cost economics. Departing from the traditional emphasis of international lawyers on the text of investment contracts, Florou shows instead that such contracts are first and foremost “economic animals” and the theory of obsolescing bargaining does not paint a full picture of the contract-treaty interaction.

Karttunen: Transparency in the WTO SPS and TBT Agreements: The Real Jewel in the Crown

Marianna B. Karttunen (OECD) has published Transparency in the WTO SPS and TBT Agreements: The Real Jewel in the Crown (Cambridge Univ. Press 2020). Here's the abstract:

Transparency of trade regulations by all WTO Members is essential for open, fair and predictable trade relations. A myriad of different regulations apply in all WTO Members and have the potential for affecting international trade. The Agreements on the Application of Sanitary and Phytosanitary measures and on Technical Barriers to Trade provide the most comprehensive frameworks in the WTO to address the costs arising from such regulatory diversity, through obligations on regulatory transparency and co-operation. This book gives a detailed account of the legal disciplines of the two Agreements, an in-depth presentation of discussions between WTO Members, and an overview of the few cases that end up in formal dispute settlement. It shows that the strength of the WTO legal and institutional system goes well beyond its dispute settlement system, with transparency enabling implementation of WTO obligations through better information sharing and co-operation among Members themselves, through non-judicial means.

New Issue: Revue trimestrielle des droits de l'homme

The latest issue of the Revue trimestrielle des droits de l'homme (No. 122, 2020) is out. Contents include:

• E. Lambert & A. Stepanova, Les décisions et arrêts de la Cour européenne des droits de l’homme prenant acte d’un règlement amiable ou d’une déclaration unilatérale : un modèle d’homologation judiciaire approfondie
• B. Pastre-Belda, La notion de réinsertion des personnes détenues dans la jurisprudence de la Cour européenne des droits de l’homme
• C. Ruet, Quelle autonomie pour les personnes atteintes de troubles mentaux ? Réflexions relatives à quelques arrêts récents de la Cour européenne des droits de l’homme
• P. Gilliaux, La force obligatoire de la Charte des droits fondamentaux de l’Union européenne
• G. Gonzalez, La liberté de religion à l’épreuve de la jurisprudence de la Cour de justice de l’Union européenne
• A. Gouttenoire, Le Comité des droits de l’enfant des Nations Unies, acteur majeur de la protection effective des droits de l’enfant
• J-P. Marguenaud, L’appréhension du principe de proportionnalité par les juridictions françaises
• C. Rizcallah & V. Davio, L’article 19 du Traité sur l’Union européenne : sésame de l’Union de droit
• O. Nederlandt & L. Descamps, Considérations relatives au service minimum garanti dans les prisons belges en temps de grève des agents pénitentiaires

Hubbard & Mrózek: New Developments in Seeking United States Discovery for Foreign Proceedings and International Arbitration

Jared Hubbard (Fitch Law Partners, LLP) & Malgorzata Mrózek (Fitch Law Partners, LLP) have posted an ASIL Insight on New Developments in Seeking United States Discovery for Foreign Proceedings and International Arbitration.

Ostřanský: From a Fortuitous Transplant to a Fundamental Principle of Law?: The Doctrine of Legitimate Expectations and the Possibilities of a Different Law

Josef Ostřanský (FGV Direito Rio; PUC-Rio Law) has posted From a Fortuitous Transplant to a Fundamental Principle of Law?: The Doctrine of Legitimate Expectations and the Possibilities of a Different Law (in Contingency in the Course of International Law, Ingo Venzke & Keven Jon Heller eds., forthcoming). Here's the abstract:

The doctrine of legitimate expectations (LEs) is now considered a backbone principle of international investment law (IIL), particularly of the fair and equitable treatment standard (FET). Investors argue virtually all investment claims by reference to this notion, and many tribunals refer to it as the most important principle under FET. The mainstream IIL literature has spilled a lot of ink on doctrinally justifying its pride of place in IIL. Open any recent textbook of IIL and you will find discussion on LEs as one of the core principles. However, if one takes a step back, one may see that the notion of legitimate expectations simply appeared in early investment cases ’out of thin air.’ After that, it was picked up and rationalised by later arbitral tribunals and scholarship. In this contribution, I adopt this perspective on the emergence of LEs; not as logical and necessary, but rather as a contingent event.

This contribution will argue that, while LEs’ appearance in IIL practice may be viewed as contingent, its ascendance into the principal doctrine of substantive IIL with specific parameters is neither entirely accidental nor random. The use and parameters of the doctrine have been allowed and facilitated by a specific historical context in which the notion became prominent. In this specific historical context it is: first, the indeterminate and semantically ambiguous legal form of IIL obligations which allows for a multiplicity of legal contents ascribed to those obligations; second, it is a particular political economy that the important actors project at the given historical period through the IIL practice, which fosters a particular version of substantive IIL.

The consequence of this argument can be appreciated at two levels. First, it can be argued that even without the contingent ascendance of the notion of LEs, the field of IIL would likely have taken up a similar substantive trajectory. Second, this argument sheds light on questions about how a more substantial change in the regime might be effected, instead of merely reforming certain aspects of the regime without affecting its current premises, structure, substance, and teleology.

By looking at the micro-level of a technical legal doctrine, this contribution seeks to explain the contingent emergence of the doctrine of LEs without siding with either the formalist accounts stressing the legal necessity and correctness of the turn to LEs or the anti-formalist realist accounts reducing the law to the projection of extra-legal power relations. By doing so, the contribution underlines the difficulties in articulating plausibly what would have made a difference in a particular legal regime. It questions whether some of the current reform initiatives will bear fruit in substantially changing the regime. The efforts must be equally directed at the change of the prevailing political economy and its ideational and material structures and practices. This is, of course, no small feat, but other reform attempts will most likely merely accommodate the critique and reproduce the existing underlying politico-economic arrangements.

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 19, no. 2, April 2020) is out. Contents include:

• Chad P. Bown & Petros C. Mavroidis, It Ain't Over ‘Til It's Over: The WTO Case Law of 2018
• Thomas J. Prusa & Edwin A. Vermulst, Indonesia – Safeguard on Certain Iron or Steel Products: If it looks like a duck, swims like a duck, and quacks like a duck, then it is not a duck
• Dukgeun Ahn & Philip I. Levy, US–OCTG (Korea): Legal Boundary of ‘Political’ Remedy
• Rodney Ludema & Mark Wu, What is Price Suppression in Abnormal Economic Times? Reflections in Light of the Russia–Commercial Vehicles Ruling
• Elisa Baroncini & Claire Brunel, A WTO Safe Harbour for the Dolphins: The Second Compliance Proceedings in the US–Tuna II (Mexico) case
• Eugene Beaulieu & Denise Prévost, Subsidy Determination, Benchmarks, and Adverse Inferences: Assessing ‘Benefit' in US–Coated Paper (Indonesia)
• Arevik Gnutzmann-Mkrtchyan & Isabelle Van Damme, Expired Measures, Excess Duty Drawbacks and Causation: The Appellate Body Report in EU–PET (Pakistan)
• Emanuel Ornelas & Laura Puccio, Reopening Pandora's Box in Search of a WTO-Compatible Industrial Policy? The Brazil–Taxation Dispute
• Kristy Buzard & Tania Voon, How Trade-Restrictive Is Standardized Packaging? Economic and Legal Implications of the WTO Panel Reports in Australia–Tobacco Plain Packaging
• Maria Alcover & Meredith Crowley, China–Broiler Products (Article 21.5 – United States) – can the sum of the parts be less than the whole?
• Carolyn Fischer & Timothy Meyer, Baptists and Bootleggers in the Biodiesel Trade: EU–Biodiesel (Indonesia)
• Pramila Crivelli & Luca Rubini, ‘Flying High in a Plane’ Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 69, 2020) is out. Contents include:

• WTO security exceptions: A landmark Panel report in times of crisis
• Introduced by Loris Marotti and Giovanna Adinolfi
• Viktoriia Lapa, The WTO Panel Report in Russia – Traffic in Transit: Cutting the Gordian Knot of the GATT Security Exception?
• Laura Magi, The effect of the WTO dispute settlement crisis on the development of case law on national security exceptions: A critical scenario

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 27, no. 3, 2020) is out. Contents include:

• Corinne Bara & Lisa Hultman, Just Different Hats? Comparing UN and Non-UN Peacekeeping
• Monalisa Adhikari, Breaking the Balance? The Impact of Peacekeeping Deployments on Civil–Military Relations
• Metin Ersoy & Leon Monroe Miller, Peace Journalism Strategy for Creating a Public Value Sphere
• Jung Jae Kwon,Red under Blue: Chinese Humanitarian Action in UN Peacekeeping Missions
• B. K. Greener, Championing the WPS Agenda?
• Abdulaziz G. Almuslem, Post Conflict Justice, Peacekeeping, and Civil Conflict Recurrence

Cai & Chen: The BRICS in the New International Legal Order on Investment: Reformers or Disruptors

Congyan Cai (Fudan Univ. - Law) & Huiping Chen (Xiamen Univ. - Law) have published The BRICS in the New International Legal Order on Investment: Reformers or Disruptors (Brill | Nijhoff 2020). Contents include:

• Congyan Cai & Yifei Wang, Introduction
• Felipe Hees & Henrique Choer Moraes, Investment Facilitation and the Contribution of the Brazilian Approach to the Reform of the Investment Treaties Regime
• Dmitry K. Labin & Alena V. Soloveva, Russia’s Foreign Investment Policy: Recent Developments and Future Trends in Terra (In)Cognita
• Xiaoxia Lin, India’s Investment Treaties: How an Emerging Economic Giant Makes International Commitments
• Huiping Chen, The “Belt & Road” Initiative and the New Landscape of China’s ISDS Policy and Practice
• Engela C. Schlemmer, Investor Protection in South Africa – Eroded Bit by Bit?
• Andreas Buser, Recalibrating Policy Space in Bilateral Investment Treaties: Is There a Common B(R)ICS Approach?
• Xiuyan Fei, Investment Barriers, Investment Facilitation and the BRICS Countries’ Investment Treaty Policies and Practice
• Congyan Cai, Conclusion

Neuman: Human Rights in a Time of Populism: Challenges and Responses

Gerald L. Neuman (Harvard Univ. - Law) has published Human Rights in a Time of Populism: Challenges and Responses (Cambridge Univ. Press 2020). Contents include:

• Gerald L. Neuman, Populist Threats to the International Human Rights System
• Stephen Pomper & Daniel Levine-Spound, U.S. Human Rights Policy and the Trump Administration
• Jeremy Waldron, Rule-of-Law Rights and Populist Impatience
• Wojciech Sadurski, Populism and Human Rights in Poland
• Jamie O'Connell, Representation, Paternalism, and Exclusion: The Divergent Impacts of the AKP's Populism on Human Rights in Turkey
• Helena Alviar García, The Legal Architecture of Populism: Exploring Antagonists in Venezuela and Colombia
• Richard Javad Heydarian, Penal Populism in Emerging Markets: Human Rights and Democracy in the Age of Strongmen
• Yee Htun, The Populist Threat to Democracy in Myanmar
• Douglas A. Johnson, In Defense of Democratic Populism
• Laurence R. Helfer, Populism and International Human Rights Law Institutions: A Survival Guide
• Gerald L. Neuman, Human Rights Responses to the Populist Challenge

Support the Work of ILR with Your Donation

The International Law Reporter is a free service but that doesn't mean there aren't costs associated with its production. A few times a year I ask that you show your support by making a donation to help defray these costs. Today would be a particularly appropriate day, as it marks thirteen years since ILR's first post. Those able and so inclined can donate by clicking on the "Donate" button to the right. Any amount is appreciated. Thanks.

Upcher: Neutrality in Contemporary International Law

James Upcher (Newcastle Univ. - Law) has published Neutrality in Contemporary International Law (Oxford Univ. Press 2020). Here's the abstract:

The law of neutrality - the corpus of legal rules regulating the relationship between belligerents and States taking no part in hostilities - assumed its modern form in a world in which the waging of war was unconstrained. The neutral State enjoyed territorial inviolability to the extent that it adhered to the obligations attaching to its neutral status and thus the law of neutrality provided spatial parameters for the conduct of hostilities. Yet the basis on which the law of neutrality developed - the extra-legal character of war - no longer exists. Does the law of neutrality continue to survive in the modern era? If so, how has it been modified by the profound changes in the law on the use of force and the law of armed conflict?

This book argues that neutrality endures as a key concept of the law of armed conflict. The interaction between belligerent and nonbelligerent States continues to require legal regulation, as demonstrated by a number of recent conflicts, including the Iraq War of 2003 and the Mavi Marmara incident of 2010. By detailing the rights and duties of neutral states and demonstrating how the rules of neutrality continue to apply in modern day conflicts, this restatement of law of neutrality will be a useful guide to legal academics working on the law of armed conflict, the law on the use of force, and the history of international law, as well as for government and military lawyers seeking comprehensive guidance in this difficult area of the law.

Zou: The Belt and Road Initiative and the Law of the Sea

Keyuan Zou (Univ. of Central Lancashire - Law) has published The Belt and Road Initiative and the Law of the Sea (Brill | Nijhoff 2020). The table of contents is here. Here's the abstract:

The Belt and Road Initiative and the Law of the Sea offers insightful discussions on the use of oceans in the context of the Belt and Road Initiative covering navigational safety, marine energy and sea ports, maritime law enforcement and access of landlocked states to the sea.

New Issue: World Politics

The latest issue of World Politics (Vol. 72, no. 2, April 2020) is out. Contents include:

• Katrina Kosec & Tewodaj Mogues, Decentralization Without Democracy
• Tom Long, Historical Antecedents and Post-World War II Regionalism in the Americas
• Mads Andreas Elkjær & Torben Iversen, The Political Representation of Economic Interests: Subversion of Democracy or Middle-Class Supremacy?
• Elizabeth R. Nugent, The Psychology of Repression and Polarization

New Issue: International Security

The latest issue of International Security (Vol. 44, no. 4, Spring 2020) is out. Contents include:

• Risa Brooks, Paradoxes of Professionalism: Rethinking Civil-Military Relations in the United States
• Iain D. Henry, What Allies Want: Reconsidering Loyalty, Reliability, and Alliance Interdependence
• Wu Riqiang, Living with Uncertainty: Modeling China's Nuclear Survivability
• Assaf Moghadam, The Political Power of Proxies: Why Nonstate Actors Use Local Surrogates
• Arman Grigoryan, Selective Wilsonianism: Material Interests and the West's Support for Democracy

New Volume: Recueil des Cours

Volume 405 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:

• Volume 405
• Jan Paulsson, Issues arising from Findings of Denial of Justice
• Jutta Brunnée, Procedure and Substance in International Environmental Law

Payne, Pereira, & Bernal-Bermúdez: Transitional Justice and Corporate Accountability from Below: Deploying Archimedes' Lever

Leigh A. Payne (Univ. of Oxford - Sociology), Gabriel Pereira (Consejo Nacional de Investigaciones Científicas Técnicas of Argentina), & Laura Bernal-Bermúdez (Pontificia Universidad Javeriana - Law) have published Transitional Justice and Corporate Accountability from Below: Deploying Archimedes' Lever (Cambridge Univ. Press 2020). Here's the abstract:

Bruno Tesch was tried and executed for his company's Zyklon B gas used in Nazi Germany's extermination camps. This book examines this trial and the more than 300 other economic actors who faced prosecution for the Holocaust's crimes against humanity. It further tracks and analyses similar transitional justice mechanisms for holding economic actors accountable for human rights violations in dictatorships and armed conflict: international, foreign, and domestic trials and truth commissions from the 1970s to the present in every region of the world. This book probes what these accountability efforts are, why they take place, and when, where, and how they unfold. Analysis of the authors' original database leads them to conclude that 'corporate accountability from below' is underway, particularly in Latin America. A kind of Archimedes' lever places the right tools in weak local actors' hands to lift weighty international human rights claims, overcoming the near absence of international pressure and the powerful veto power of business.

Mallory: Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights

Conall Mallory (Newcastle Univ. - Law) has published Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights (Hart Publishing 2020). Here's the abstract:

To what extent do a state's obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state's obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention's extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those 'imperialists' who have interpreted European human rights law to extend beyond a state's borders, as it is with them that any lasting solution to the challenge will be found.

d'Aspremont: Comparativism and Colonizing Thinking in International Law

Jean d'Aspremont (Sciences Po - Law; Univ. of Manchester - Law) has posted Comparativism and Colonizing Thinking in International Law. Here's the abstract:

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called Comparative International Law (‘the comparativist project’). The comparativist project has attracted enormous attention and enthusiasm in the international legal literature. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a dangerous thought-colonizing enterprise. The article ends with some observations on the need to promote counter-comparability thinking as a guarantee against colonizing thinking in international legal studies.

Saul & Akande: The Oxford Guide to International Humanitarian Law

Ben Saul (Univ. of Sydney - Law) & Dapo Akande (Univ. of Oxford - Law) have published The Oxford Guide to International Humanitarian Law (Oxford Univ. Press 2020). Here's the abstract:

International humanitarian law is the law that governs the conduct of participants during armed conflict. This branch of law aims to regulate the means and methods of warfare as well as to provide protections to those who do not, or who no longer, take part in the hostilities. It is one of the oldest branches of international law and one of enduring relevance today.

The Oxford Guide to International Humanitarian Law provides a practical yet sophisticated overview of this important area of law. Written by a stellar line up of contributors, drawn from those who not only have extensive practical experience but who are also regarded as leading scholars of the subject, the text offers a comprehensive and authoritative exposition of the field. The Guide provides professionals and advanced students with information and analysis of sufficient depth to enable them to perform their tasks with understanding and confidence. Each chapter illuminates how the law applies in practice, but does not shy away from the important conceptual issues that underpin how the law has developed. It will serve as a first port of call and a regular reference work for those interested in international humanitarian law.

Conference: Virtual 114th ASIL Annual Meeting (Program/Registration)

The program for the American Society of International Law's postponed 114th Annual Meeting, now a virtual event on June 25-26, is available here. The Society has reduced all registration fees by 25 percent and has eliminated the fee for students altogether. Current registrants may request a refund of 25 percent of the fee they paid, but the Society hopes that those who are able will choose to donate that amount as a charitable contribution to help defray the costs the Society has incurred in creating the Virtual Annual Meeting.

Lahmann: Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution

Henning Lahmann (ESMT Berlin - Digital Society Institute) has published Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution (Cambridge Univ. Press 2020). Here's the abstract:

Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 96, no. 3, May 2020) is out. Contents include:

• Violence, Visuality and World Politics
• Helen Berents & Constance Duncombe, Introduction: violence, visuality and world politics
• Manni Crone, It's a man's world: carnal spectatorship and dissonant masculinities in Islamic State videos
• Helen Berents, Politics, policy-making and the presence of images of suffering children
• Constance Duncombe, Social media and the visibility of horrific violence
• Tim Aistrope & Stefanie Fishel, Horror, apocalypse and world politics
• Helle Malmvig, Soundscapes of war: the audio-visual performance of war by Shi'a militias in Iraq and Syria
• George Karavas, How images frame China's role in African development
• Original Articles
• Ruth Blakeley & Sam Raphael, Accountability, denial and the future-proofing of British torture
• Lesley Pruitt, Rethinking youth bulge theory in policy and scholarship: incorporating critical gender analysis
• Galia Press-Barnathan & Naama Lutz, The multilevel identity politics of the 2019 Eurovision Song Contest
• André Barrinha & Thomas Renard, Power and diplomacy in the post-liberal cyberspace
• Milan Babic, Let's talk about the interregnum: Gramsci and the crisis of the liberal world order
• Zheng Chen & Hang Yin, China and Russia in R2P debates at the UN Security Council

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 36, no. 1, March 2020) is out. Contents include:

• Articles
• Saar A Pauker, Substance and procedure in international arbitration
• Mushegh Manukyan, Hidden in the curtain of Article 44: formation rules of arbitration agreements and ICSID Arbitration Rules
• Case Notes
• Jonathan J Tompkins, There is no impending crisis: a look beyond the Sixth Circuit’s decision to permit Section 1782 discovery for use in international commercial arbitration
• Jay Tseng, Fiona Trust in context: interpreting arbitration clauses following Rinehart v Hancock
• Recent Developments
• Marcel Carvalho Engholm Cardoso, Impecunious parties in international commercial arbitration
• Morten Broberg & Niels Fenger, Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’