This contribution considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored – creating legal uncertainty. This article reviews how pandemics as biological and social events, end, considers how international bodies have approached the end of emergencies, and assesses what this might mean for adjudicators deciding on the end of the SARS-Cov-2 pandemic and related public health emergency.
Saturday, August 1, 2020
Paddeu & Waibel: The Final Act: Exploring the End of Pandemics
Federica Paddeu (Univ. of Cambridge) & Michael Waibel (Univ. of Vienna - Law) have posted The Final Act: Exploring the End of Pandemics (American Journal of International Law, forthcoming). Here's the abstract:
Friday, July 31, 2020
New Issue: Vanderbilt Journal of Transnational Law
The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 53, no. 3, May 2020) is out. Contents include:- Comparative Corporate Law and Governance: Asian and Global Perspectives
- Kyung-Hoon Chun, Management Succession in Korea: Tunneling, Semi-Tunneling, and the Reaction of Corporate Law
- Martin Gelter & Aurelio Gurrea-Martinez, Addressing the Auditor Independence Puzzle: Regulatory Models and Proposal for Reform
- Gen Goto, Alan K. Koh, & Dan W. Puchniak, Diversity of Shareholder Stewardship in Asia: Faux Convergence
- Jennifer G. Hill, The Conundrum of Common Ownership
- Robin Hui Huang & Randall S. Thomas, The Law and Practice of Shareholder Inspection Rights: A Comparative Analysis of China and the United States
- Lin Lin & Umakanth Varottil, Venture Capital in China and India: Does Business Form Matter?
- Dan W. Puchniak & Samantha S. Tang, Singapore's Puzzling Embrace of Shareholder Stewardship: A Successful Secret
- Morgan Ricks, Deal Breakage in Domestic and Cross-Border Mergers and Acquisitions: New Data and Avenues for Research
- Jiangyu Wang & Tan Cheng-Han, Mixed Ownership Reform and Corporate Governance in China's State-Owned Enterprises
- Yesha Yadav, Fintech and International Financial Regulation
Cohen: Metaphors of International Law
Harlan Grant Cohen (Univ. of Georgia - Law) has posted Metaphors of International Law (in International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes, Andrea Bianchi & Moshe Hirsch eds., forthcoming). Here's the abstract:
This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.
International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at each of these levels, this chapter describes the ways metaphors allow international lawyers to build a shared, tangible universe of legal meaning. But it also reveals how metaphors simultaneously help hide international law’s dark side, blind international lawyers to alternative ways of organizing the world, and prejudge legal outcomes. Metaphors, a key building block of the international law we know, become key also to its demolition, restoration, or remodeling.
Lovat: Negotiating Civil War: The Politics of International Regime Design
Civil war has been a fact of political life throughout recorded history. However, unlike inter-state wars, international law has not traditionally regulated such conflicts. How then can we explain the post-1945 emergence and evolution of international treaty rules regulating the conduct of internal armed conflict: the 'Civil War Regime'? Negotiating Civil War combines insights derived from Realist, Rationalist, Liberal, and Constructivist approaches to International Relations to answer this question, revisiting the negotiation of the 1949 Geneva Conventions, the 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court. This study provides a rigorous, critical account of the making of the Civil War Regime. Sophisticated and persuasive, it illustrates the complex interplay of material, ideational, social, and strategic factors in shaping these rules with important lessons for the making and unmaking of international law in a rapidly shifting international political, economic, and security environment.
van Dijk: Internationalizing Colonial War: On the Unintended Consequences of the Interventions of the International Committee of the Red Cross in South-East Asia, 1945–1949
Boyd van Dijk (Univ. of Melbourne) has posted Internationalizing Colonial War: On the Unintended Consequences of the Interventions of the International Committee of the Red Cross in South-East Asia, 1945–1949 (Past & Present, forthcoming). Here's the abstract:
What is the relationship between decolonization and international law? Most historians agree that empires framed their colonial wars as emergencies in order to escape international scrutiny. After 1945, however, those same imperial powers invited the International Committee of the Red Cross (ICRC) to intervene in their wars of decolonization while resisting an official state of war. This article seeks to solve this puzzle by drawing attention to the ICRC’s critical part in reshaping the international legal system regarding colonial war in the critical years before the Algerian War of Independence (1954–62) and the Bandung Conference (1955). In this formative period, the organization, together with anti-colonial activists, played a transformative role in contesting accepted ideas of global governance and international law while providing a new stage for anti-colonial resistance, with far-reaching consequences, not just for the ICRC’s own institutional future, but also for the legitimization of (post-)colonial sovereignty in the twentieth century.
Massingham & McConnachie: Ensuring Respect for International Humanitarian Law
This book explores the nature and scope of the provision requiring States to ‘ensure respect’ for international humanitarian law (IHL) contained within Common Article 1 of the 1949 Geneva Conventions. It examines the interpretation and application of this provision in a range of contexts, both thematic and country-specific. Accepting the clearly articulated notion of ‘respect’ for IHL, it builds on the existing literature studying the meaning of ‘ensure respect’ and outlines an understanding of the concept in situations such as enacting implementing legislation, diplomatic interactions, regulating private actors, targeting, detaining persons under IHL in non-international armed conflict, protecting civilians (including internally displaced populations) and prosecuting war crimes. It also considers topical issues such as counter-terrorism and foreign fighting.
O'Rourke: Women's Rights in Armed Conflict under International Law
Laws and norms that focus on women's lives in conflict have proliferated across the regimes of international humanitarian law, international criminal law, international human rights law and the United Nations Security Council. While separate institutions, with differing powers of monitoring and enforcement, implement these laws and norms, the activities of regimes overlap. Women's Rights in Armed Conflict under International Law is the first book to account for this pluralism and institutional diversity. This book identifies key aspects of how different regimes regulate women's rights in conflict, and how they interact. Using country case studies to reveal the practical implications of the fragmented protection of women's rights in conflict, this book offers a dynamic account of how regimes and institutions interact, the extent to which they reinforce each other, and the tensions and gaps in regulation that emerge.
Mason-Case & Dehm: Redressing Historical Responsibility for the Precarities of Climate Change in the Present
Sarah Mason-Case (Univ. of Toronto - Law) & Julia Dehm (La Trobe Univ. - Law) have posted Redressing Historical Responsibility for the Precarities of Climate Change in the Present (in Debating Climate Law, Benoît Meyer & Alexander Zahar eds., forthcoming). Here's the abstract:
This chapter is part of a volume on debating the law of climate change and thus assumes the style of legal debate. We argue that industrialized countries of the Global North are responsible for historical emissions that contribute to the unjust precarities of climate change in the present for states in the Global South, the poor, and Black, Indigenous and other marginalized peoples in settler colonial states. First, relying on international legal doctrine, we show how the 'no harm' rule of customary international law provides one avenue of recourse. Nevertheless, we also argue that this avenue is limited because international law reflects social reality and states, companies and institutions of the Global North have power to shape the law to the detriment of others. We therefore undertake an immanent critique of international legal doctrines drawing on critical traditions, including critical race theories and Third World Approaches to International Law (TWAIL). We expose the internal contradictions in the law that preclude full repair for historical injustices. We also expose that international law's inability to redress the problem at hand stems from climate change's imbrication with broader histories of dispossession, including colonialism and its reincarnations in the global political economy. We therefore argue for alternatives to obtain redress. We call for "reparations" that would look to marginalized peoples for means and ends to fully decolonize the international legal order and to re-envision social relations among peoples that could also address climate harms.
Thursday, July 30, 2020
Ochoa Espejo: On Borders: Territories, Legitimacy, and the Rights of Place
When are borders justified? Who has a right to control them? Where should they be drawn?
Today people think of borders as an island's shores. Just as beaches delimit a castaway's realm, so borders define the edges of a territory, occupied by a unified people, to whom the land legitimately belongs. Hence a territory is legitimate only if it belongs to a people unified by a civic identity. Sadly, this Desert Island Model of territorial politics forces us to choose. If we want territories, then we can either have democratic legitimacy, or inclusion of different civic identities--but not both. The resulting politics creates mass xenophobia, migrant-bashing, hoarding of natural resources, and border walls.
To escape all this, On Borders presents an alternative model. Drawing on an intellectual tradition concerned with how land and climate shape institutions, it argues that we should not see territories as pieces of property owned by identity groups. Instead, we should see them as watersheds: as interconnected systems where institutions, people, the biota, and the land together create overlapping civic duties and relations, what the book calls place-specific duties.
This Watershed Model argues that borders are justified when they allow us to fulfill those duties; that border-control rights spring from internationally-agreed conventions--not from internal legitimacy; that borders should be governed cooperatively by the neighboring states and the states system; and that border redrawing should be done with environmental conservation in mind. The book explores how this model undoes the exclusionary politics of desert islands.
Tadros: To Do, To Die, To Reason Why: Individual Ethics in War
To Do, To Die, To Reason Why offers a new account of the ethics of war and the legal regulation of war. It is especially concerned with the conduct of individuals, including whether they are required to follow orders to go to war, what moral constraints there are on killing in war, what makes people liable to be killed in war, and the extent to which the laws of war ought to reflect the morality of war. Victor Tadros defends a largely anti-authority view about the morality of war, and notable moral constraints on killing in war, such as the Doctrine of Doing and Allowing and a version of the Doctrine of Double Effect. However, he argues that a much wider range of people are liable to be harmed or killed in war than is normally thought to be the case, on grounds of both causal involvement and fairness. And it argues that the laws of war should converge much more closely with the morality of war than is currently the case.
McKenzie: GATT and Global Order in the Postwar Era
After the Second World War, the General Agreement on Tariffs and Trade (GATT) promoted trade liberalization to help make the world prosperous and peaceful. Francine McKenzie uses case studies of the Cold War, the creation of the EEC and other regional trade agreements, development, and agriculture, to show that trade is a primary goal of foreign policy, a dominant (and divisive) aspect of international relations, and a vital component of global order. She unpacks the many ways in which trade was politicised, and the layers of meaning associated with trade; trade policies, as well as disputes about trade, communicated ideas, hopes and fears that were linked to larger questions of identity, sovereignty, and status. This study reveals how the economic and political dimensions of foreign policy and international engagement intersected, showing that trade was not only instrumentalised in the service of particular policies or relations but that it was also an essential aspect of international relations.
New Issue: Revue Générale de Droit International Public
- Articles
- Hugues Hellio & Solveig Henry, Le suivi par la Cour International de Justice de ses ordonnances en indication de mesures conservatoires - Une pratique éméergente entre inspiraiton, discrétion et recherche d'effectivité
- Anne Choquet & Awa Sam Lefebre, Détresse en mer en période de pandémie : des navires de croisière à la recherche d'un port d'accueil
- Note
- Jean-Emmanuel Perrin, L'instrumentalisation et l'arsenalisation de la règle de droit à des fins politiques ou miltaires et ses conséquences sur l'ordre juridique international : quelle stratégie de riposte?
Fraser: Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court
Julie Fraser (Utrecht Univ. - Netherlands Institute of Human Rights) has posted Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court (in Intersections of Law and Culture at the International Criminal Court, Julie Fraser & Brianne McGonigle Leyh eds., forthcoming). Here's the abstract:
Islamic law covers a broad scope and articulates norms regarding crime and punishment as well as what would today be considered international law. In fact, Islamic law contains many techniques relating to preventing and punishing crime, victim remedies and reconciliation, making it relevant to the elucidation and application of international criminal law by the International Criminal Court (ICC). This relevance is pertinent as many of the States with situations being considered by the ICC’s Prosecutor have a Muslim-majority, such as Afghanistan, Iraq, Libya, Mali, Palestine and Sudan. Furthermore, around two-thirds of the Red Cross’ (ICRC) present operations relate to armed conflicts in Islamic contexts. However, the positive role that Islamic law can play in such conflicts is under-appreciated. Despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent. For example, the Court has not, to date, drawn upon Islamic law in its rulings in such situations. This chapter advocates the ICC’s use of or reference to Islamic law in relevant cases to promote the Court’s cultural legitimacy in Muslim communities and to foster the engagement of Muslim-majority States in the Rome Statute system.
Arato, Claussen, & Heath: The Perils of Pandemic Exceptionalism
Julian Arato (Brooklyn Law School), Kathleen Claussen (Univ. of Miami - Law), & J. Benton Heath (Temple Univ. - Law) have posted The Perils of Pandemic Exceptionalism (American Journal of International Law, forthcoming). Here's the abstract:
In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.
New Issue: Swiss Review of International and European Law
- Der Kleinstaat im Völkerrecht
- Lorenz Langer, Der Kleinstaat im Völkerrecht: Das Beispiel Liechtensteins
- Peter Bussjäger, Liechtenstein in der Staatengemeinschaft: Über Labilität von Souveränität und das Ringen um Anerkennung
- Andreas Müller, Die Völkerrechtsfreundlichkeit der liechtensteinischen Rechtsordnung: Zwischen Offenheit und Selbstbehauptung
- Patricia M. Schiess Rütimann, Liechtenstein und die UNO-Frauenrechtskonvention CEDAW
- Charlotte Sieber-Gasser, In engen Grenzen: Kleine Volkswirtschaften, der Handelskrieg und COVID-19
- Lorenz Langer, Implications of Soft Law Regimes for Small States: The Experience of Switzerland and Liechtenstein
Müller: Reformhindernisse im internationalen Investitionsrecht
Das internationale Investitionsrecht befindet sich in einer Umbruchsphase. Die seit geraumer Zeit existierende Kritik an der traditionellen Ausgestaltung zwischenstaatlicher Investitionsabkommen hat Eingang in die neuere Vertragspraxis gefunden. Moderne Investitionsabkommen sind präziser formuliert, enthalten häufiger Ausnahmetatbestände und sollen so staatliche Regulierungsspielräume stärker berücksichtigen. Diese vielfach beschworene Reform des Investitionsrechts steht jedoch weiterhin vor erheblichen rechtlichen Herausforderungen. Denn eine der Besonderheiten der Rechtsmaterie ist ihre mangelnde Harmonisierung und die Wechselwirkungen, die zwischen der großen Zahl neuer und älterer Investitionsabkommen entstehen können. Die so hervorgerufenen normativen Spannungsverhältnisse führen zu einer Reihe neuer Rechtsfragen, denen sich Joscha Müller in seiner Untersuchung eingehend widmet.
New Addition to the UN Audiovisual Library of International Law
The Codification Division of the UN Office of Legal Affairs recently added a lecture to the UN Audiovisual Library of International Law Podcast Channel. Due to current circumstances, the AVL team can post lectures only to the podcast channel and not the website. The lecture was given by Phoebe Okowa on “Protection of Natural Resources in Armed Conflict.”
Tuesday, July 28, 2020
New Volume: Japanese Yearbook of International Law
- Culture and International Law: A Comprehensive Analysis
- Maki Nishiumi, Introductory Note
- Toshiyuki Kono, Destruction of Cultural Heritage and Recovery: The World Heritage, Authenticity, and “Process-Thinking”
- Véronique Guèvremont, The Relationship Between Culture and Development in International Law
- Yvonne Donders, Cultural Rights in International Human Rights Law: From Controversy to Celebration
- Jacqueline Mowbray, Language and International Law: How Does International Law Protect Languages and Linguistic Rights?
- New Legislation on the International Jurisdiction of Japanese Courts on Personal Status Litigations and Domestic Relations Cases
- Aki Kitazawa, Introductory Note
- Yuko Nishitani, New International Civil Procedure Law of Japan in Status and Family Matters
- Yuko Nishitani, International Adjudicatory Jurisdiction in Matrimonial Matters in Japan
- Masako Murakami, International Jurisdiction of Child-Related Cases in Japan
- Takami Hayashi, International Jurisdiction in Case Related to Succession: New Rules in Japan
- Manabu Iwamoto, Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases
- Customary International Law in Theory and Practice
- Georg Nolte, How to Identify Customary International Law? — On the Outcome of the Work of the International Law Commission (2018)
- Tatsuya Abe, ICJ Practice in Determining the Existence of Customary International Law
- Hitomi Takemura, Inconvenient Truths About the Identification of Customary International Law in International Criminal Law
- Public International Law
- Bjørn Kunoy, How Deep is Your Love: Intercrossing of Inner and Outer Continental Shelf Entitlements
- Japanese Digest of International Law
- Atsuko Kanehara, Japan’s Withdrawal from the International Convention for the Regulation of Whaling
Genovese: Weak States at Global Climate Negotiations
This Element provides an explanation for the power of weak states in international politics, focusing on the case of international climate negotiations at the United Nations. The author points to the pitfalls of assuming that weak countries elicit power from their coordinated salience for climate issues. Contrastingly, it is argued that weak states' influence at global climate negotiations depends on the moral authority provided by strong states. The author maintains that weak states' authority is contingent on international vulnerability, which intersects broader domestic discussions of global justice, and pushes the leaders of strong countries to concede power to weak countries. New empirical evidence is shown in support of the theory.
Niezen: #HumanRights: The Technologies and Politics of Justice Claims in Practice
Social justice and human rights movements are entering a new phase. Social media, artificial intelligence, and digital forensics are reshaping advocacy and compliance. Technicians, lawmakers, and advocates, sometimes in collaboration with the private sector, have increasingly gravitated toward the possibilities and dangers inherent in the nonhuman. #HumanRights examines how new technologies interact with older models of rights claiming and communication, influencing and reshaping the modern-day pursuit of justice.
Ronald Niezen argues that the impacts of information technologies on human rights are not found through an exclusive focus on sophisticated, expert-driven forms of data management but in considering how these technologies are interacting with other, "traditional" forms of media to produce new avenues of expression, public sympathy, redress of grievances, and sources of the self. Niezen considers various ways that the pursuit of justice is happening via new technologies, including crowdsourcing, social media–facilitated mobilizations (and enclosures), WhatsApp activist networks, and the selective attention of Google's search engine algorithm. He uncovers how emerging technologies of data management and social media influence the ways that human rights claimants and their allies pursue justice, and the "new victimology" that prioritizes and represents strategic lives and types of violence over others. #HumanRights paints a striking and important panoramic picture of the contest between authoritarianism and the new tools by which people attempt to leverage human rights and bring the powerful to account.
Zarbiyev: International Law in an Age of Post-Shame
Fuad Zarbiyev (Graduate Institute of International and Development Studies) has posted an ESIL Reflection on International Law in an Age of Post-Shame.
Gostin & Meier: Foundations of Global Health & Human Rights Edited by
Human rights are essential to global health, yet rising threats in an increasingly divided world are challenging the progressive evolution of health-related human rights. It is necessary to empower a new generation of scholars, advocates, and practitioners to sustain the global commitment to universal rights in public health. Looking to the next generation to face the struggles ahead, this book provides a detailed understanding of the evolving relationship between global health and human rights, laying a human rights foundation for the advancement of transformative health policies, programs, and practices.
International human rights law has been repeatedly shown to advance health and wellbeing - empowering communities and fostering accountability for realizing the highest attainable standard of health. This book provides a compelling examination of international human rights as essential for advancing public health. It demonstrates how human rights strengthens human autonomy and dignity, while placing clear responsibilities on government to safeguard the public's health and safety.
Bringing together leading academics in the field of health and human rights, this volume: (1) explains the norms and principles that define the field, (2) examines the methods and tools for implementing human rights to promote health, (3) applies essential human rights to leading public health threats, and (4) analyzes rising human rights challenges in a rapidly globalizing world. This foundational text shows why interdisciplinary scholarship and action are essential for health-related human rights, placing human rights at the center of public health and securing a future of global health with justice.
Kalandarishvili-Mueller: Occupation and Control in International Humanitarian Law
This book presents a systematic analysis of the notion of control in the law of military occupation. The work demonstrates that in present-day occupations, control as such occurs in different forms and variations. The polymorphic features of occupation can be seen in the way states establish control over territory either directly or indirectly, and in the manner in which they retain, relinquish or regain it. The question as to what level and type of control is needed to determine the existence and ending of military occupation is explored in great detail in light of various international humanitarian law instruments. The book provides an anatomy of the required tests of control in determining the existence of military occupation based on the law. It also discusses control in relation to occupation by proxy and when and how the end of control over territory occurs so that military occupation is considered terminated. The study is informed by relevant international jurisprudence. It draws on numerous pertinent case studies from all over the world, various reports by different UN entities and other international organisations, as well as legal doctrine.
New Issue: Ocean Development & International Law
The latest issue of Ocean Development & International Law (Vol. 51, no. 3, 2020) is out. Contents include:- Philipp P. Nickels, Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations
- Nicholas A. Ioannides, The “Predominant Interest” Concept in Maritime Boundary Delimitation
- Christian Schultheiss, Joint Development of Hydrocarbon Resources in the South China Sea After the Philippines Versus China Arbitration?
- Sandrine W. De Herdt, The Relationship Between the Delimitation of the Continental Shelf Beyond 200 nm and the Delineation of Its Outer Limits
Monday, July 27, 2020
Gagliardi: Minority Rights, Feminism and International Law: Voices of Amazigh Women in Morocco
Investigating minority and indigenous women’s rights in Muslim-majority states, this book critically examines the human rights regime within international law. Based on extensive and diverse ethnographic research on Amazigh women in Morocco, the book unpacks and challenges generally accepted notions of rights and equality. Significantly, and controversially, the book challenges the supposedly ‘emancipatory’ power vested in the human rights project; arguing that rights-based discourses are sites of contestation for different groups that use them to assert their agency in society. More specifically, it shows how the very conditions that make minority and indigenous women instrumental to the preservation of their culture may condemn them to a position of subalternity. In response, and engaging the notion and meaning of Islamic feminism, the book proposes that feminism should be interpreted and contextualised locally in order to be effective and inclusive, and so in order for the human rights project to fully realise its potential to empower the marginalised and make space for their voices to be heard.
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