The interface of international trade law and online content regulation is problematic and complex. This article examines the consistency of the regulation of unauthorized Virtual Private Network services (“VPNs”) in China with WTO law to demonstrate that while extant international trade rules may be effective in disciplining protectionist aspects of online content regulations, they can neither scrutinize domestic values underlying such regulations nor guarantee a free and open internet. Thus, existing rules contained in international trade agreements play a limited role in balancing domestic socio-cultural and political values vis-à-vis online censorship with an open, globally interconnected internet enabling seamless digital flows.
The several ongoing dialogues in relevant global, multistakeholder, and transnational fora could eventually generate international consensus on critical aspects of online content regulation such as disinformation. But with respect to the resolution of digital trade disputes resulting from such regulations, trade tribunals must acknowledge that online content regulation is often politically and culturally sensitive and some regulatory differences among countries could be entirely irreconcilable. Therefore, when such disputes arise before a trade body, both caution and pragmatism are necessary in applying international trade law to such measures. Further, although governments are looking into varied aspects of digital and data regulation in ongoing plurilateral and bilateral trade negotiations, they are unlikely to reach any meaningful agreement on digital trade provisions that limit their ability to regulate online content.
Thursday, April 21, 2022
Mishra: Breaking Down Digital Walls: The Interface of International Trade Law and Online Content Regulation through the Lens of the Chinese VPN Measure
Mayer: International Advisory Proceedings on Climate Change
Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, Tuvalu, Vanuatu, and other island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. They are planning to ask international courts to clarify the obligations of states to cut greenhouse gas emissions and to pay reparations for the harm already caused, hoping that this would help foster more action against climate change.
This Article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and engages critically with the main substantive and procedural aspects of potential advisory proceedings. Contrary to the prevailing view, this Article shows that these initiatives, albeit well intended, are almost certain to fail to achieve their goals, and might be counterproductive.
The likely failure of advisory proceedings on climate change results from several factors, including jurisdictional challenges and questions of judicial propriety. A court would find it difficult to determine the law applicable to key aspects of the questions, such as the modalities of burden-sharing in global efforts on climate change mitigation. And even if a court were to give a meaningful advisory opinion, it is highly uncertain whether powerful states would comply with it. These factors raise the risk that the issuance of advisory opinions might further erode the credibility of international institutions, thus undermining the foundations of any cooperation against climate change.
Yip: The Use of Force against Individuals in War under International Law: A Social Ontological Approach
Is it legal to kill, or capture and confine, someone in war? Is this relevant or wise to ask in the reality of war? What does 'legal' actually mean in the labyrinth of overlapping international laws?
This volume explores the meaning, relevance, and wisdom of questioning the 'legality' of the use of force against individuals in war by reconnecting legal thought with the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study of the laws regulating warfare.
The Use of Force against Individuals in War under International Law uncovers different conceptions of 'legality' that generate tensions among different international laws regulating warfare and highlights the limits of legal techniques in addressing these tensions. Accepting these tensions serves not to denigrate the law itself but to invite a deeper level of engagement with it - through the lens of social theories.
Drawing on the insight that every social action results from an interaction between human agency and social structures, this publication argues that in regulating warfare, one distinct body of international law, the law of armed conflicts, accommodates the diminished agency of human beings operating in highly structured conditions while other bodies of international law harbour the potential to transform these very structured conditions. Thus, assimilating these laws, whether in court or real-world practices, fundamentally conflates their underlying social ontologies.
Martin: All Necessary Measures? The United Nations and International Intervention in Libya
The international intervention after the 2011 Libyan uprising against Muammar Gaddafi was initially considered a remarkable success: the UN Security Council’s first application of the ‘responsibility to protect’ doctrine; an impending civilian massacre prevented; and an opportunity for democratic forces to lead Libya out of a forty-year dictatorship. But such optimism was soon dashed.
Successive governments failed to establish authority over the ever-proliferating armed groups; divisions among regions and cities, Islamists and others, split the country into rival administrations and exploded into civil war; external intervention escalated. Ian Martin gives his first-hand view of the questions raised by the international engagement. Was it a justified response to the threat against civilians? What brought about the Security Council resolutions, including authorising military action? How did NATO act upon that authorisation? What role did Special Forces operations play in the rebels’ victory? Was a peaceful political settlement ever possible? What post-conflict planning was undertaken, and should or could there have been a major peacekeeping or stabilisation mission during the transition? Was the first election held too soon?
As Western interventions are reassessed and Libya continues to struggle for stability, this is a unique account of a critical period, by a senior international official who was close to the events.
Masiko: Flexible Regional Economic Integration in Africa: Lessons and Implications for the Multilateral Trading System
This book examines the relationship between flexible regional economic integration in the East African Community (EAC), through its application of variable geometry, and the establishment of the African Continental Free Trade Area (AfCFTA) as a continent-wide form of integration. It uses a historical, political, legal and economic analysis of the processes that led to the adoption of flexible regional integration in Africa, with particular regard to the EAC. This takes place in the inescapable context of pan-Africanism, showing how regional integration efforts in Africa are based on pan-Africanist ideals, and how an evolution of these ideals has led to an evolution in the goals of integration. With growing awareness of the weaknesses and impracticality of consensus-based decision-making on a global level, it makes the case for the pursuit of flexibility in multilateral trade, drawing lessons from the experience of the AfCFTA and blocs in other regions.
This book is a historical evaluation of regional economic integration efforts in Africa and it follows the path of attempts to integrate the economies on the continent from colonial times to the birth of the AfCFTA. While it is a study in law, it relies heavily on politics, economics and history to weave together a more complete theory of economic integration based on the African experience.
New Book Symposium: Fitzmaurice’s King Leopold’s Ghostwriter
Wednesday, April 20, 2022
Holá, Nzitatira, & Weerdesteijn: The Oxford Handbook on Atrocity Crimes
Social scientific research focusing on mass atrocities, which include widespread or systematic crimes such as genocide, crimes against humanity, and war crimes, expanded after the end of the Cold War. Mass violence in the former Yugoslavia, as well as the genocide in Rwanda, sparked new research initiatives in numerous disciplines. Scholars working in various academic fields such as international (criminal) law, political science, psychology, sociology, history, anthropology, and demography began to focus on the causes and consequences of atrocity crimes. Yet knowledge generated by these various disciplines remains scattered and has not been integrated into a single edited volume.
The Oxford Handbook on Atrocity Crimes surveys and further develops the evolving field of atrocity crimes studies by combining major mono-, inter-, and multi-disciplinary research on atrocity crimes in one comprehensive volume. With contributions of leading scholars, this handbook will be an essential source and reference tool. Unique in its thematic focus (atrocity crimes as an overarching phenomenon, including crimes of genocide, crimes against humanity, and war crimes) as well as in its comprehensive scope, the book covers the etiology, the actors involved, the harm caused, the reactions to atrocity crimes, and in-depth analyses of understudied situations of war crimes, crimes against humanity, and genocide.
New Book Symposium: Simpson’s The Sentimental Life of International Law
Tuesday, April 19, 2022
New Issue: Review of European, Comparative & International Environmental Law
- Special Issue: Human Rights and the Climate Change Crisis
- Mara Tignino & Makane Moïse Mbengue, Climate change at the crossroads of human rights: The right to a healthy environment, the right to water and the right to development
- Philippe Cullet, Confronting inequality beyond sustainable development: The case for eco-human rights and differentiation
- Margaretha Wewerinke-Singh, A human rights approach to energy: Realizing the rights of billions within ecological limits
- Elsabé Boshoff, Rethinking the premises underlying the right to development in African human rights jurisprudence
- Elena Cima, The right to a healthy environment: Reconceptualizing human rights in the face of climate change
- Helen Keller & Angela Hefti, Bringing the right to water into the spotlight: A civil right before the European Court of Human Rights?
- Jasper Krommendijk, Beyond Urgenda: The role of the ECHR and judgments of the ECtHR in Dutch environmental and climate litigation
- Regular Articles
- Mirella Miettinen & Sabaa Ahmad Khan, Pharmaceutical pollution: A weakly regulated global environmental risk
- Mengxing Lu & Michael Faure, Does the tiger have teeth? A critical examination of the toolbox approach of environmental law enforcement in China
- Junghwan Choi, The legal status of Particularly Sensitive Sea Areas (PSSAs): Challenges and improvements for PSSA resolutions
- Nikolas Sellheim & Otava Ojanperä, Indigenous youth and international conservation law: Five case studies
- Paul Martin, Solange Teles da Silva, Maurício Duarte dos Santos, & Carolina Dutra, Governance and metagovernance systems for the Amazon
- Case Note
- Magdalena Porzeżyńska, Case C-24/19 (A and others): How to ensure effet utile of the Strategic Environmental Assessment Directive?
Canfield: Translating Food Sovereignty: Cultivating Justice in an Age of Transnational Governance
In its current state, the global food system is socially and ecologically unsustainable: nearly two billion people are food insecure, and food systems are the number one contributor to climate change. While agro-industrial production is promoted as the solution to these problems, growing global "food sovereignty" movements are challenging this model by demanding local and democratic control over food systems. Translating Food Sovereignty accompanies activists based in the Pacific Northwest of the United States as they mobilize the claim of food sovereignty across local, regional, and global arenas of governance. In contrast to social movements that frame their claims through the language of human rights, food sovereignty activists are one of the first to have articulated themselves in relation to the neoliberal transnational order of networked governance. While this global regulatory framework emerged to deepen market logics, Matthew C. Canfield reveals how activists are leveraging this order to make more expansive social justice claims. This nuanced, deeply engaged ethnography illustrates how food sovereignty activists are cultivating new forms of transnational governance from the ground up.
Trahan: Revisiting the History of the Crime of Aggression in Light of Russia’s Invasion of Ukraine
Call for Applications: Two Postgraduate Positions at the Rapoport Center for Human Rights and Justice
Monday, April 18, 2022
Talmon: The Provision of Arms to the Victim of Armed Aggression: the Case of Ukraine
In response to Russia’s naked act of aggression against Ukraine on 24 February 2022, several States openly provided arms to Ukraine. These arms deliveries triggered questions of whether the States were violating the law of neutrality and, in particular, the duty of impartiality. It was asked whether the provision of arms could be justified as an act of collective self-defence or as a countermeasure. Examining State practice since the 1930s, the paper shows that with the outlawry of war as an instrument of national policy States considered themselves entitled to discriminate against the aggressor and to provide weapons to the victim of aggression. This was reinforced by the prohibition of the use of force under the Charter of the United Nations. In case of an act of armed aggression, there is no longer a duty of impartiality. Under the UN Charter it falls to the Security Council to determine the existence of an act of aggression. If the Security Council is unable to make this determination due to the exercise of the veto by a permanent Council member, the victim of aggression must not be left without assistance. In this case, it falls to each State to determine whether there is an act of aggression. If it turns out later that there was no aggression, States providing arms to a belligerent may themselves have committed an internationally wrongful act. In the case of the Russian attack on Ukraine, however, there is no doubt about who the aggressor is. On 1 March 2022, the General Assembly, by a vote of 141 in favour, five against and 35 abstentions, deplored in the strongest terms the aggression by Russia against Ukraine.
Sunday, April 17, 2022
Call for Panel Proposals: International Law Weekend 2022
The American Branch of the International Law Association has issued a call for panel proposals for International Law Weekend 2022, which will take place in New York City on October 20-22. The theme is "The Next 100 Years of International Law." The call is here. The deadline is May 15, 2022.
de Búrca: Legal Mobilization for Human Rights
The traditionally top-down focus in human rights scholarship on laws, institutions, and courts has begun to turn towards a bottom-up focus on activists, advocacy groups, affected communities, and social movements. The essays collected in Legal Mobilization for Human Rights examine a range of issues including which groups claim rights, what they are mobilizing to protect, the goals they pursue, the forums they use, the obstacles they encounter, and the extent of their success or failure. Case studies reveal key themes such as: the importance of human rights to marginalized communities; how political and societal authoritarianism shapes opportunities for effective mobilization; the importance of the choice of forum for instigating change; the role intermediary actors such as NGOs play in innovating strategies to address challenges; the possibilities for subaltern mobilization to reshape human rights law; and the importance of supporting genuinely community-led legal mobilization.
