Saturday, September 19, 2020

Cohen: Nations and Markets

Harlan Grant Cohen (Univ. of Georgia - Law) has posted Nations and Markets (Journal of International Economic Law, forthcoming). Here's the abstract:

Economics and security seem increasingly intertwined. Citing national security, states subject foreign investments to new scrutiny, even unwinding mergers like the purchase of Grindr or the creation of TikTok. The provision of 5G has become a diplomatic battleground – Huawei at its center. Meanwhile, states invoke national security to excuse trade wars. The U.S. invoked the GATT national security exception to impose steel and aluminum tariffs, threatening more on automotive parts. Russia invoked that provision to justify its blockade of Ukraine, as did Saudi Arabia and the UAE to excuse theirs of Qatar. And with the spread of COVID-19, states are invoking national security to scrutinize supply lines. Multiplying daily, such stories lead some observers to dub the era one of geoeconomics.

Nonetheless, these developments remain difficult to judge and the relationship between economics and national security confused and slippery. Neither term is self-defining, and the same activities can be defined as either or both. The essay seeks clarity in the deeper logic of these labels, revealing a fundamental choice between the logics of markets and of state. Whether invoked to “secure” borders, privacy, health, the environment, or jobs, “national security” is a claim about the proper location of policymaking. Appeals to economics, with their emphasis on global welfare and global person-to-person relationships, are as well. The logics driving the current economics-national security dynamic represent paradigmatic, competing models for organizing individuals with different normative justifications and concerns. Resolving disputes, this essay argues, requires recognizing these root choices.

Friday, September 18, 2020

Quintin: The Nature of International Humanitarian Law: A Permissive or Restrictive Regime?

Anne Quintin (International Committee of the Red Cross) has published The Nature of International Humanitarian Law: A Permissive or Restrictive Regime? (Edward Elgar Publishing 2020). Here's the abstract:

This illuminating book explores the nature of international humanitarian law (IHL), so doing by asking whether it should be seen as a permissive or a restrictive regime. An experienced lawyer in the field, Anne Quintin offers an in-depth expert analysis of this highly debated topic.

In the eyes of many, the primary purpose of IHL is to impose restrictions on the actions of parties in armed conflicts, in order to protect victims. But IHL is also increasingly cited as an authority in permitting conduct that would be deemed unlawful in peacetime, for instance some cases of internment or targeting of persons. Considering both international and non-international armed conflicts, Quintin carefully and astutely peels away the layers of this debate, revealing the true nature of IHL and concluding that whilst IHL initially developed as a restrictive regime composed of prohibitions and prescriptions, it nevertheless contains within it rare permissions that allow states to act.

Utilising a scientific methodology to offer concrete and realistic outcomes, whilst couching differing interpretations of IHL in wider debates surrounding the nature of international law, this book will be of interest to all academics, practitioners and policy-makers in the field of international humanitarian law. Its analysis of how people are effectively protected during an armed conflict will also be beneficial for the wider humanitarian community.

Thursday, September 17, 2020

Joshi: Force Majeure under the ILC Draft Articles on State Responsibility: Assessing its Viability Against COVID-19 Claims

Riddhi Joshi (Symbiosis Law School) has posted an ASIL Insight on Force Majeure under the ILC Draft Articles on State Responsibility: Assessing its Viability Against COVID-19 Claims.

Webinar: Epidemics and International Law

On September 20, 2020, the International Law Association of Thailand and the German-Southeast Asian Center of Excellence for Public Policy and Good Governance will host a webinar on "Epidemics and International Law." Registration is open until September 19, 2020, 4:00pm (Bangkok Time GMT +7). Details are available here.

New Issue: Criminal Law Forum

The latest issue of Criminal Law Forum (Vol. 31, no. 3, September 2020) is out. Contents include:
  • Marianne L. Wade, True EU citizenship as a precursor to genuine criminal justice in Europe: an analysis of EU citizenship as it relates to a sustainable area of freedom, security and justice
  • Patricia Hobbs, The Catalysing Effect of the Rome Statute in Africa: Positive Complementarity and Self-Referrals
  • Maartje Weerdesteijn & Barbora Holá, “Tool in the R2P Toolbox”? Analysing the Role of the International Criminal Court in the Three Pillars of the Responsibility to Protect
  • Cristina Fernández-Pacheco Estrada, On the Prosecution of “Stolen Babies” Cases in Spain

Sebode: Peace-Keeping der 5. Generation? Die Afghanistanmission der Vereinten Nationen und ihre Bedeutung für deren Friedenssicherungspraxis

Ana Catarina Sebode has published Peace-Keeping der 5. Generation? Die Afghanistanmission der Vereinten Nationen und ihre Bedeutung für deren Friedenssicherungspraxis (Mohr Siebeck 2020). Here's the abstract:
Über ein Jahrzehnt währte die Afghanistanmission der Vereinten Nationen, bestehend aus den Missionskomponenten ISAF und UNAMA. Sie hat die Praxis des sog. Peace-Keeping der Vereinten Nationen maßgeblich geprägt. Ana Catarina Sebode bettet die Mission in den Kontext des Peace-Keeping ein und zeigt ihre Bedeutung für die Rolle des Sicherheitsrates im Friedenssicherungssystem der Charta der Vereinten Nationen auf. Sie beantwortet die Frage, ob die Afghanistanmission im bestehenden völkerrechtlich etablierten Generationengefüge des Peace-Keeping aufgeht, oder ob sie Teil einer neuen Generation der Friedenssicherung ist. Das besondere Engagement der NATO, die von 2003 bis 2014 die Führung über die militärische Missionskomponente ISAF innehatte, wird dabei kritisch gewürdigt. So entsteht ein Gesamtbild der Vor- und Nachteile des arbeitsteiligen Peace-Keeping zwischen den Vereinten Nationen, ihren Mitgliedstaaten und regionalen Partnern wie der NATO im kriegsgeplagten Land am Hindukusch.

Wednesday, September 16, 2020

New Issue: Trade, Law and Development

The latest issue of Trade, Law and Development (Vol. 12, no. 1, Summer 2020) is out. Contents include:
  • Special Issue: Trade in Services: A Holistic Solution to New-Found Issues in Trade Law?
    • Rudolf Adlung, The GATS – A Sleeping Beauty?
    • Petros C. Mavroidis, And You Put the Load Right on Me: Digital Taxes, Tax Discrimination and Trade in Services
    • Andreas Maurer, Overview on available trade statistics and tools to assess Trade in Services
    • Markus Krajewski, The
    • Hildegunn Kyvik Nordas, Telecommunications: The Underlying Transport Means for Services Exports
    • Weiwei Zhang, Blockchain: Replacing, Eliminating and Creating Trade in Services
    • Mira Burri, Trade in Services Regulation in the Data-Driven Economy
    • Pralok Gupta, Sunayana Sasmal, The Curious Case of Trade Facilitation in Services: Rejected Multilaterally but Adopted Bilaterally and Plurilaterally
    • Ben Shepherd, Quantifying Trade Law: New Perspectives on the Services Trade Restrictiveness Index
    • Sunanda Tewari & Prakhar Bhardwaj, Situating India’s Mode 4 Commitments in Geopolitics and Political Economy: The Case of GATS 2000 Proposal, India-Singapore CECA and India-ASEAN TiS

New Issue: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre

The latest issue of the Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (Vol. 57, nos. 1 & 2, 2018-2019) is out. Contents include:
  • Marine Wéry, La jurisprudence relative à la clause d’exclusion prévue à l’article 141bis du Code pénal: la difficile application du droit international humanitaire par les cours et tribunaux belges
  • Julien Tropini, La rupture de l’équilibre juridique de l’article 141bis du code pénal belge par la jurisprudence sur les « combattants étrangers » : La remise en cause de la répartition des compétences entre le droit international humanitaire et le droit antiterroriste
  • Matteo Tondini, Espionage and International Law in the Age of Permanent Competition
  • Hanna Bourgeois & Jean-Emmanuel Perrin, The Use of Force for Mission Accomplishment: A Pitfall in Contemporary Operations?
  • Miek Lamaire, Virginie Lambotte, Sarah Letellier, Celine Van Holsbeeck & Hélène Paquay, Report of the Second ‘Silent leges inter arma?’ International Conference held in Bruges from 19 to 21 September 2018
  • Tobias Vestner, Targeting Private Military and Security Companies
  • Samuel C. Duckett White, A Soldier by Any Other Name: A Reappraisal Of The ‘Citizen in Uniform’ Doctrine in Light of Part IIIAAA of the Defence Act 1903 (Cth)
  • Jens Claerman, Guarding the vigilant guardian: A legal perspective on Belgium’s domestic deployment of the armed forces
  • Tokwene A Ndjokou Eloubwe Ilate, Le droit pénal militaire camerounais : combat inégalitaire entre normalisation et spécialisation d'un droit exceptionnel
  • Diletta Marchesi, Celine Van Holsbeeck & Hélène Paquay, Report of the Third ‘Silent Leges Inter Arma?’ International Conference held in Bruges from 18 to 20 September 2019

Helfer: Rethinking Derogations from Human Rights Treaties

Laurence R. Helfer (Duke Univ. - Law; Univ. of Copenhagen - iCourts) has posted Rethinking Derogations from Human Rights Treaties (American Journal of International Law, forthcoming). Here's the abstract:
Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system’s many problems, identifies recent developments that have exacerbated these problems, and proposes a range of reforms in five areas—embeddedness, engagement, information, timing, and scope.

Tuesday, September 15, 2020

Kagiaros & Tzevelekos: The Importance of State Practice in the Shaping of International Standards Pertaining to the Clash between Free Speech and the Banning of Negationism: The Contribution of the Greek Legal Order

Dimitrios Kagiaros (Univ. of Durham - Law) & Vassilis Tzevelekos (Univ. of Liverpool - Law) have posted The Importance of State Practice in the Shaping of International Standards Pertaining to the Clash between Free Speech and the Banning of Negationism: The Contribution of the Greek Legal Order (in Responsibility for the Denial of International Crimes, P. Grzebyk ed., forthcoming). Here's the abstract:
Considering the tension between freedom of expression and the banning/punishing of historical negationism as a means to fight hate speech, the paper makes three interconnected points. First, it identifies a number of international legal authorities calling on states to enact legislation at the domestic level to prohibit and, in particular, to prosecute denialism. This movement is thinner at the global level, but more tangible within Europe. The authorities at issue acknowledge the importance of FoE, but they offer no clear guidance as to the balance that should be maintained between it and the prohibition/punishment of denialism, or as to the limits of FoE more generally. Moreover, these authorities contain no fully shaped and clear criteria as to how to draw a satisfying distinction between legitimate debate and disagreement, on the one hand, and negationism amounting to hate speech that shall constitute a criminal offence, on the other. Second, the paper argues that establishing such limits and balances involves a value judgment. It is not an objective, “dry” technical legal exercise. In this respect, analysis in the study highlights certain criteria established by the European Court of Human Rights in historical negationism cases arguing that, even though they may be useful, they are not adequate, in the sense that these criteria do not suffice to avoid shifting to a subjective appraisal (by means of stricto sensu proportionality or by declaring certain speech as abusive) based upon the personal values, ideals, preferences and the ideological predispositions of judges. Third, the key argument advanced in this note is that the combination of the previous two points invites us to recognise the weight of state practice in the shaping of international standards in an area (namely the balance between FoE and the prohibition/criminalisation of denialism, particularly as a form of hate speech) that is far less settled than one may think or than what the exigencies of legal certainty, particularly in areas like human rights and especially in criminal law, require. In this respect, the paper outlines the importance of state practice and how, from a technical point of view, such practice may help to shape standards, to give the example of the Greek legal order, briefly discussing relatively recent relevant legislative and judicial practice that allows learning certain lessons regarding, inter alia, the dangers of abusive prosecution of free speech on the basis of defective legislation criminalising denialism.

Glasgow Centre for International Law and Security Wednesday Webinars

The Glasgow Centre for International Law and Security has launched a new series of Wednesday Webinars that are free and open to the public. Here's the schedule:
  • September 30, 2020: The UN @75 – challenges for the new quarter-century
  • October 14, 2020: International law and rival governments
  • October 28, 2020: World Trade Governance: 2020 and beyond
  • November 11, 2020: Justice for Syria? Roundtable discussion on current developments
  • November 25, 2020: Roundtable on the ‘Renaissance Dam’ dispute: the state of transboundary water law in the face of climate insecurity

Call for Submissions: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre

The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre has issued a call for submissions for its upcoming volume 59. Here's the call:

Now accepting submissions for Volume 59

The Editorial Board of The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (MLLWR) is pleased to invite submissions for the upcoming volume in 2021.

The Review's editorial board welcomes submissions that come within the broader scope of the Review, including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict).

For vol 59 issue 1, the deadline for submission is 15 November 2020. Submissions after this date will be considered for volume 59 issue 2. Submissions should be sent to mllwr@ismllw.org and will be subject to double-blind peer review.

Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered.

Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the above mentioned email address.

AJIL Unbound Symposium: Mason's "The Transformation of International Tax"

AJIL Unbound has posted a symposium on Ruth Mason’s article "The Transformation of International Tax." The symposium includes an introduction by Alan O. Sykes and contributions by Reuven S. Avi-Yonah, Wei Cui, Lilian V. Faulhaber, and Wolfgang Alschner.

Bartels, van den Boogaard, Ducheine, Pouw, & Voetelink: Military Operations and the Notion of Control Under International Law: Liber Amicorum Terry D. Gill

Rogier Bartels (Netherlands Defence Academy), Jeroen C. van den Boogaard (Netherlands Defence Academy), Paul A. L. Ducheine (Netherlands Defence Academy), Eric Pouw & Joop Voetelink (Netherlands Defence Academy) have published Military Operations and the Notion of Control Under International Law: Liber Amicorum Terry D. Gill (Asser Press 2020). The table of contents is here. Here’s the abstract:

This book is a tribute to the work of Professor Terry Gill, offered to him by friends and colleagues who are also academics and/or practitioners in the field of International Law of Military Operations (ILMO).

ILMO is a distinct sub-discipline within public international law and domestic public law, covering all domains of military operations: land, sea, air and (cyber)space. As such, ILMO includes elements of other branches of public international law, such as international humanitarian law, human rights law, the law on the use of force, the law of the sea, the law of State responsibility, arms control law and the law of international organisations. Importantly, as a hybrid field of law, ILMO covers the legal basis for military deployment both nationally and internationally, as well as the subsequent international legal regimes applicable to the forces (once deployed) and the domestic administrative and constitutional issues related to the relevant forces.

Control is a central notion of ILMO and is the leading theme of this book. The contributions in this book reflect the variety of legal frameworks applicable to military operations and offer an insightful view into the various legal and factual roles of control. The legal notion of control is considered, inter alia, in relation to restraints in the decision to deploy military forces and the legal basis for doing so. The impact of control is also discussed in relation to State and command responsibility and in different situations, including during peace operations, occupation and other situations of armed conflict. Additionally, control is considered over the armed forces themselves, over detainees, migrants at sea and over the type or scale of force used in military operations, through targeting rules or rules of engagement. Furthermore, the book contains several discussions of control in the case law of international courts, within arms control law, weapons law and in the context of autonomous weapons systems.

Monday, September 14, 2020

Kearney & Olejnikova: Researching the United Nations Documents

Janet Kearney (Fordham Univ. - Law Library) & Lucie Olejnikova (Yale Univ. - Law Library) have published Researching the United Nations Documents (GlobaLex, September/October 2020).

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (2020, no. 3) is out. Contents include:
  • M. Katsivela, Les moyens de défense de la responsabilité extracontractuelle du fait personnel (droit civil québécois) et de la responsabilité délictuelle en common law au canada : une étude en droit comparé
  • T. Garcia, Les activités non liées au domaine militaire des entreprises militaires et de sécurité privées
  • M.L. Ndiffo Kemetio, La situation du droit international et du droit communautaire dans les constitutions des États d’Afrique subsaharienne francophone
  • J.M. Bikoro, L’initiative constitutionnelle dans le nouveau constitutionnalisme des États d’Afrique noire francophone

Lifshits & Ponamorenko: International Financial Standards in the Global Legal Order and in EU and EAEU Law

Ilya Lifshits (Russian Foreign Trade Academy) & Vladislav Ponamorenko (Russian Foreign Trade Academy) have published International Financial Standards in the Global Legal Order and in EU and EAEU Law (Russian Law Journal, Vol. 8, no. 3, 2020). Here's the abstract:
The global financial crisis strengthened the role of international financial standards in global commercial architecture and outlined the specialization of standard-setting bodies. These standards may be transposed in international agreements or be implemented in the legal order of states and state communities (such as the European Union (EU) and the Eurasian Economic Union (EAEU)). The development of standard-setting bodies and the evolving process of soft law rulemaking have led to the establishment of a specific mechanism, which may be called “the soft law mechanism.” The authors argue that this mechanism includes several components: normative (IFS), institutional (SSBs), controlling (peer reviews), and assuring (implementing incentives) components. However, despite the rising influence of international financial standards, a strict boundary between soft and hard law should be established. This article outlines these boundaries and justifies the use of the term soft law. In post-crisis global financial regulation, the role of soft law has increased not only in the financial market but also in the field of monetary regulation. Along with the traditional mechanisms of financial support from the International Monetary Fund (IMF), states may use alternative bilateral and regional mechanisms. At the level of integration associations, soft law manifests in different ways. In the EU, despite the expansion of its field of action, soft law is purely an auxiliary element of the Union’s legal system. In EAEU law, the mechanism of soft-law regulation can be considered promising, given the peculiarities of the integration model.

Benesch: But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies

Susan Benesch (Harvard Univ. - Dangerous Speech Project) has posted But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies (Yale Journal on Regulation, forthcoming). Here's the abstract:

Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.

To correct this, advocates have proposed that companies follow international human-rights law. That law–by far the world’s best-known rules for governing speech–could improve regulation itself, and would also allow for better transparency and oversight on behalf of billions of people who use social media.

This paper argues that for this to work, the law must first be interpreted to clarify how (and whether) each of its provisions are suited to this new purpose. For example, the law provides that speech may be restricted to protect national security, as one of only five permissible bases for limiting speech. Governments, for which international law was written, may regulate on that basis, but not private companies which have no national security to protect.

To fill some of the gap, the paper explains and interprets the most relevant provisions of international human-rights law–Articles 19 and 20 of the International Covenant on Civil and Political Rights, which pertain to freedom of expression–for use by social media companies, in novel detail.

Giorgetti & Pollack: Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals - Introduction

Chiara Giorgetti (Univ. of Richmond - Law) & Mark A. Pollack (Temple Univ. - Political Science & Law) have posted Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals - Introduction (in Beyond Fragmentation: Cross-Fertilization, Cooperation, and Competition among International Courts and Tribunals, Chiara Giorgetti & Mark A. Pollack eds., forthcoming). Here's the abstract:

The international community in the 21st century is more legalized and more judicialized than at any other period in history. Yet today’s international legal order is also fragmented, leading to concerns about the proliferation of specialized legal regimes, adjudicated by an uncoordinated assemblage of international courts and tribunals. In this volume, we and our fellow authors explore international judicial cooperation, competition, and cross-fertilization “beyond fragmentation.” Existing scholarship on international legal fragmentation, we suggest, has moved through three phases in recent decades. In the first phase, practitioners and scholars reacted with alarm to the judicial proliferation of the post-Cold War years, which they feared would create systemic problems of overlapping and contested jurisdiction, as well as conflicting and divergent interpretations of law. Following this period of “postmodern anxieties,” the new century saw the pendulum swing towards towards a second, more optimistic school of thought, which empirically identified (and normatively championed) a series of techniques whereby international judges could “manage” fragmentation through dialogue and cross-fertilization, producing convergence and unity in international law. Most recently, in the opening salvos of a third wave, skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization.

Building on this debate, this volume interrogates the record of cross-fertilization, cooperation, and competition among international courts and tribunals. In doing so, we address three important themes. First, we examine the phenomenon of cross-fertilization in the area of procedural law, finding that that courts do indeed learn and borrow from each other in establishing procedural rules, which show signs of convergence. Second, we examine the more complex experience of cross-fertilization in substantive international law, where we find greater variation among international courts and tribunals in their willingness to refer and defer to others. Third and finally, we investigate the agents of cross-fertilization, including not only judges but also international governmental organizations, international court registries and arbitral secretariats, member states, litigants, and counsel. Each of these actors, we suggest, possesses mixed motives, weighing their (perhaps weak) interest in the coherence of the international legal system against their (perhaps dominant) interests in their own regional or substantive legal order or values, or indeed with simply winning their current dispute. The picture that emerges is one in which international judicial cross-fertilization is both real and important, but also highly variable and asymmetric across courts and issue-areas, and likely to remain so.

Sunday, September 13, 2020

Guidi & Maisley: A Trillion Dollar Question: Who Should Pay for COVID-19?

Sebastian Guidi (Yale Univ. - Law) & Nahuel Maisley (Univ. of Buenos Aires - Law; New York Univ. - Law) have posted A Trillion Dollar Question: Who Should Pay for COVID-19? (New York University Law Review, forthcoming). Here's the abstract:

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit-approach” draws on a deep-seated conception of international law: states have a sovereign “right to be left alone;” the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit-approach; not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic, while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments of the lawsuit-approach (based on the International Health Regulations and on the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit-approach faces difficulties stemming from the lack of deep normative agreement, in international law, on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit-approach is led back to the global conversation about the allocation of losses it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”) making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids, and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit-approach relies on international law as a means to achieve “corrective justice,” while denying its implications for “distributive justice.” We argue that this is conceptually impossible: The general understandings we need to allocate responsibility for the pandemic are inherently distributive: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independently of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit-approach might be unpleasantly surprised of where that road may lead them.