Saturday, April 8, 2023

New Volume: Recueil des Cours

Volume 428 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 428
    • Slim Laghmani, Islam et droit international
    • Mario J. A. Oyarzábal, The Influence of Public International Law upon Private International Law: In History and Theory and in the Formation and Application of the Law

Thursday, April 6, 2023

Whelan: Reciprocity in Public International Law

Arianna Whelan
has published Reciprocity in Public International Law (Cambridge Univ. Press 2023). Here's the abstract:
There is a common perception of reciprocity as a concept that is opposed to the communitarian interests that characterise contemporary international law, or merely a way of denoting reactions to unfriendly or wrongful conduct. This book disputes this approach, and highlights how reciprocity is instead linked to the structural characteristic of sovereign equality of States in international law. This book carries out an in-depth analysis of the concept of reciprocity and the elements that characterise it, before examining the various roles and articulations of reciprocity in a number of fields of public international law: the law of treaties, the treatment of individuals, the execution of international law, and the jurisdiction of international courts and tribunals. In all these areas, it analyses both more traditional and more contemporary examples, to demonstrate how reciprocity is closely linked to the very structure of public international law.

Joyner: Disarmament is Good, but What We Need Now is Arms Control

Daniel Joyner (Univ. of Alabama - Law) has posted Disarmament is Good, but What We Need Now is Arms Control (Indonesian Journal of International and Comparative Law, Vol. 10, no. 1, 2023). Here's the abstract:
This article aims to correct a number of misconceptions held by both scholars and activists about the United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW), and international nuclear weapons law generally. It first reviews the development of international law related to nuclear weapons, and provides a novel taxonomy of legal obligations divided into three substantive categories. It then examines the TPNW within that taxonomy, and considers how it should be understood to fit within this legal context. It concludes that the TPNW is essentially a nuclear disarmament treaty. While it should be welcomed as a contribution to nuclear disarmament law, it should not be confused with nuclear arms control treaties, which are distinct in role and purpose. The article concludes that at the current moment of crisis in nuclear arms control law, a refocusing of attention is needed to conclude a successor treaty to New START, which is due to expire in 2026.

Schmitt & Biggerstaff: Aid and Assistance as a “Use of Force” Under the Jus Ad Bellum

Michael N. Schmitt (Univ. of Reading - Law) & W. Casey Biggerstaff (U.S. Naval War College) have published Aid and Assistance as a “Use of Force” Under the Jus Ad Bellum (International Law Studies, Vol. 100, 2023). Here's the abstract:
Although the prohibition of the use of force is a cornerstone of international law, our understanding of what constitutes a “use of force” under Article 2(4) of the UN Charter nonetheless continues to evolve. While the term was traditionally understood to mean armed force, emerging interpretations are expanding our understanding of the prohibition’s breadth. The Charter’s text, travaux préparatoires, and subsequent interpretations and practice by States, reinforced by the persuasive reasoning of the International Court of Justice, all confirm that the notion of force extends to indirect force, which includes military support provided to parties to a conflict. Yet, to date, States have failed to meaningfully contend with the notion of indirect force, much less clarify its precise threshold. Accordingly, through the lens of the Russia-Ukraine conflict, this article examines whether, and if so, when a State's military aid or assistance that contributes to another State's use of force constitutes a separate and distinct use of force under international law. After concluding that aid or assistance can, under certain conditions, qualify as a use of force, the article proposes several non-exclusive factors that States are likely to consider when assessing whether aid or assistance from a supporting State crosses the prohibition’s threshold.

ASIL: Proceedings of the 116th Annual Meeting

The Proceedings of the 116th Annual Meeting of the American Society of International Law (2022), edited by Rachel Lopez (Drexel Univ. - Law), Kish Parella (Washington & Lee Univ. - Law), & Patrick Pearsall (Allen & Overy), is now available. The table of contents is here.

Wednesday, April 5, 2023

Sarfaty & Deberdt: Supply Chain Governance at a Distance

Galit Sarfaty (Univ. of British Columbia – Law) & Raphael Deberdt (Univ. of British Columbia) have posted Supply Chain Governance at a Distance (Law and Social Inquiry, forthcoming). Here's the abstract:
This article examines the role of industry in implementing and interpreting the international legal norm of human rights due diligence. Our study focuses on a multi-industry association called the Responsible Minerals Initiative (RMI), which has assumed a leading role in implementing conflict minerals legislation and interpreting the norm of human rights due diligence in mineral supply chains. Drawing on interviews with RMI staff, corporate representatives, and independent members of the RMI’s governance committees, we analyze the RMI’s risk assessment tools that facilitate corporate compliance with global mineral supply chain regulations. We demonstrate that these technocratic tools mask the underlying corporate interests that control how human rights due diligence is being interpreted and implemented on the ground. We then argue that global supply chains are being “governed at a distance” through these technical practices whereby companies divest themselves of responsibility to their suppliers. Supply chain governance at a distance is therefore transforming the norm of human rights due diligence from an instrument of corporate accountability to a tool of corporate legitimacy.

Modirzadeh: ‘[L]et Us All Agree to Die a Little’: TWAIL’s Unfulfilled Promise

Naz K. Modirzadeh (Harvard Univ. - Law) has posted ‘[L]et Us All Agree to Die a Little’: TWAIL’s Unfulfilled Promise (Harvard International Law Journal, forthcoming). Here's the abstract:
Third World Approaches to International Law (TWAIL) has aspirations to transform the tools and institutions of international law — which have served for centuries to construct, enact, and extend Western exploitation and domination — into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled — and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I argue that this is, at least partly, due to TWAIL’s ambivalence towards the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and to the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions towards the Global South.

Tuesday, April 4, 2023

Johns: #Help: Digital Humanitarianism and the Remaking of International Order

Fleur Johns
(Univ. of New South Wales - Law) has published #Help: Digital Humanitarianism and the Remaking of International Order (Oxford Univ. Press 2023). Here's the abstract:

Like many other areas of life, humanitarian practice and thinking are being transformed by information and communications technology. Despite this, the growing digitization of humanitarianism has been a relatively unnoticed dimension of global order. Based on more than seven years of data collection and interdisciplinary research, #Help presents a ground-breaking study of digital humanitarianism and its ramifications for international law and politics.

Global problems and policies are being reconfigured, regulated, and addressed through digital interfaces developed for humanitarian ends. #Help analyses how populations, maps, and emergencies take shape on the global plane when given digital form and explores the reorientation of nation states' priorities and practices of governing around digital data collection imperatives. This book also illuminates how the growing prominence of digital interfaces in international humanitarian work is sustained and shaped by law and policy.

#Help reveals new vectors of global inequality and new forms of global relation taking effect in the here and now. To understand how major digital platforms are seeking to extend their serviceable lives, and to see how global order might take shape in the future, it is essential to grasp the perils and possibilities of digital humanitarianism. #Help will transform thinking about what is at stake in the use of digital interfaces in the humanitarian field and about how, where, and for whom we are making the global order of tomorrow.

Seta: Compulsory insurance for cruise vessels as a preparation for the next pandemic: Law of the sea perspective

Makoto Seta (Waseda Univ. - Graduate School of Asia-Pacific Studies) has published Compulsory insurance for cruise vessels as a preparation for the next pandemic: Law of the sea perspective (Marine Policy, Vol. 152, June 2023). Here's the abstract:
During the COVID-19 pandemic, many port states faced difficulty when cruise vessels with COVID-19 patients tried to dock at their ports. Although they are basically not obliged to accept such vessels under international law, they cannot easily deny access because the refusal would be viewed as a lack of humanitarian consideration. On the other hand, accepting such vessels leads to the risk of exposing their own nationals to COVID-19 and incurring the financial cost of medical treatment for cruise passengers. In fact, in the cases of Diamond Princess, Costa Atlantica, and Zaandam and Rotterdam, the question of who should take on the financial burden for medical costs of crews and passengers on board these vessels was debated. The current international legal framework does not provide any answer to this question, and therefore, a new framework is needed. If the new framework allocates the economic burden to ensure the provision of tests and medical care so that an intolerably heavy burden is not imposed on port states, they will be more welcoming to cruise vessels with infected people. Such allocation could be realized by requesting that carriers provide a compulsory insurance system for medical care in a pandemic.

Call for Papers: Exploring Linkages between Rule of Law Backsliding and Human Rights: How to Find the Brakes on a Slippery Slope?

A call for papers has been issued for a workshop on "Exploring Linkages between Rule of Law Backsliding and Human Rights: How to Find the Brakes on a Slippery Slope?," to take place September 26, 2023, at Utrecht University. The call is here.

New Issue: Journal of Human Rights

The latest issue of the Journal of Human Rights (Vol. 22, no. 2, 2023) is out. Contents include:
  • Daniel Connolly, Seunghyun Nam & Kirsty Goodman, Solving old problems or making new ones? Blockchain technology for the protection of refugees and migrants
  • M. Rodwan Abouharb, War and infant mortality rates
  • Tine Destrooper, Belgium’s “Truth Commission” on its overseas colonial legacy: An expressivist analysis of transitional justice in consolidated democracies
  • Sinjae Kang, Sangmin Lee & Taehee Whang, Economic sanctions, repression capacity, and human rights
  • Angélica Cocomá Ricaurte, Who is a legitimate actor under international human rights law? A story about women’s mobilization against enforced disappearances
  • Jonathan Liljeblad, International human rights teachers in Myanmar universities: The individual constraints of structure on intermediaries
  • Robert M. Press, Human rights activism after the movement ends: Global lessons from Kenya’s unfinished “revolution”
  • Michelle Watts & Kate Brannum, Bomberos, maestros y psicólogos: Guatemalan civil society response to the Volcano of Fire disaster

Monday, April 3, 2023

Ostřanský & Pérez Aznar: National Governance and Investment Treaties: Between Constraint and Empowerment

Josef Ostřanský
(International Institute for Sustainable Development) & Facundo Pérez Aznar (Geneva Center for International Dispute Settlement & Univ. of Buenos Aires) have published National Governance and Investment Treaties: Between Constraint and Empowerment (Cambridge Univ. Press 2023). Here's the abstract:
Much of the existing accounts assume that investment treaties affect national governance. However, how exactly this happens has been subject to little analysis. Conventional accounts presume that these treaties improve national governance, leading to good governance and the rule of law for all. Critical accounts charge that investment treaties unduly empower foreign investors and cause a regulatory chill. On both accounts, investment treaties are expected to empower and constrain. Comparing extended case studies of Argentina, the Czech Republic, India and Mexico, this book shows how investment treaties influence national governance ideologically, institutionally, and socially. We show how the overarching role of IIAs in national governance – to cultivate constraining discipline in public administration – is realised and who gets empowered and marginalised in the process. The book's findings will serve in the debates about alternative ways of economic governance and help explain the investment treaty regime's significant resistance to change.

Call for Papers: Protest Movements and International Law

A call for papers has been issued for a workshop on "Protest Movements and International Law," to take place November 2-3, 2023, at the Max Planck Institute for Comparative Public Law and International Law, in Heidelberg. The call is here.

Sunday, April 2, 2023

Call for Papers: Asian Society of International Law 9th Biennial Conference & Junior Scholar Workshop

The Asian Society of International Law has issued a call for papers for its 9th Biennial Conference, which will be held August 8-9, 2023, at Universitas Jenderal Achmad Yani, in Bandung. A call has also been issued for a Junior Scholar Workshop that will take place the day before the conference, August 7, at Universitas Indonesia, in Depok. The calls are here.

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 18, no. 4, 2023) is out. Contents include:
  • Michael Lux & Sandra Rinnert, Are Flat Rate Adjustments of the Customs Value Possible on the Basis of a Transfer Price Arrangement?: Judgment of the German Federal Fiscal Court in ‘Hamamatsu’ following the ECJ Judgment C-529/16
  • Fernando Piérola-Castro, The WTO Panel Report in United States - Safeguard on Washers (Part 2)
  • Tran Van Trang, Doan Hong Le, Vuong Tuan Nam, Doan Quynh Giang, & Pham Thuy Hong, Customs Risk Management in Vietnam During Digital Transformation: Toward an Intelligent Customs Model
  • Jacob Lundy & Deanna Clark, There Is More to Exports than Exporting: The Growing Reach of the Deemed Export Rule

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 38, no. 1, Winter 2023) is out. Contents include:
  • Lectures
    • Zachary Douglas, ‘Instead of Principles, Slogans’
    • Jan Paulsson, Avoiding Echo Chambers? A Reaction to Professor Douglas’s Call for Conceptual Discipline
  • Case Comments
    • Robert Garden, Eco Oro v Colombia:The Brave New World of Environmental Exceptions
    • Filip Balcerzak, Horthel v Poland: Fair and Equitable Treatment Embodies the Rule of Law, Whereas ‘Tax’ Is Not Always a Tax
  • Notes
    • Laura Peters & Sebastian Wuschkas, Investment Protection in Post-Brexit EU–UK Relations
    • Gary J Shaw, The 2022 ICSID Rules: A Leap Toward Greater Transparency in ICSID Arbitration
  • Articles
    • Jason Haynes, Reforming the Bilateral Investment Treaty Landscape in the Caribbean Region: A Clarion Call
    • Didem Kayalı, Third-Party Funding in Investment Arbitration: How to Define and Disclose It
    • Raphael Ren, Vanishing Treaty Claims: Investors Trapped in a Temporal Twilight Zone
    • Ignacio de la Rasilla, ‘The Greatest Victory’? Challenges and Opportunities for Mediation in Investor-State Dispute Settlement
    • Romesh Weeramantry, Brian Chang, & Joel Sherard-Chow, Conciliation and Mediation in Investor-State Dispute Settlement Provisions: A Quantitative and Qualitative Analysis

Hartig: Making Aggression a Crime Under Domestic Law - On the Legislative Implementation of Article 8bis of the ICC Statute

Annegret Hartig
has published Making Aggression a Crime Under Domestic Law - On the Legislative Implementation of Article 8bis of the ICC Statute (Asser Press 2023). Here's the abstract:

This book offers a comprehensive analysis of the legal questions that arise for the legislative branch when implementing the crime of aggression into domestic law. Despite being the “supreme international crime” that gave birth to international criminal law in Nuremberg, its ICC Statute definition has been incorporated into domestic law by fewer than 20 States. The crime of aggression was also omitted in the rich debate held among German scholars in the early 2000s regarding the legislative implementation of other ICC Statute crimes. The current inability of the International Criminal Court to respond to the Russian aggression towards Ukraine invites the continuation of these academic debates without neglecting the particularities of the crime of aggression.

The fundamental issues discussed in this volume include the obligation to criminalize aggression, the core wrong of the crime, the normative gaps under domestic law and the jurisdictional gaps under the ICC Statute. To facilitate the operationalization of domestic implementation, the book explores the technical options for incorporating the definition into domestic law, the geographical ambit of domestic jurisdiction—most notably universal jurisdiction—as well as legal challenges such as immunities.

New Issue: Human Rights Review

The latest issue of the Human Rights Review (Vol. 24, no. 1, March 2023) is out. Contents include:
  • David Birchall & Nadia Bernaz, Business Strategy as Human Rights Risk: the Case of Private Equity
  • Eva Maria Fjellheim, “You Can Kill Us with Dialogue:” Critical Perspectives on Wind Energy Development in a Nordic-Saami Green Colonial Context
  • Amr Osman, The Right to be Forgotten: an Islamic Perspective
  • Ben Jones, Death Penalty Abolition, the Right to Life, and Necessity
  • Shanshan Lian, More Murder in the Middle: How Local Trust Conditions Repression Towards INGOs
  • Jobair Alam & Ali Mashraf, Fifty Years of Human Rights Enforcement in Legal and Political Systems in Bangladesh: Past Controversies and Future Challenges

Call for Papers: Human Rights and Sustainable Development

A call for papers has been issued for a conference on "Human Rights and Sustainable Development," to be held in the hybrid format, July 14-15, 2023, at Lancaster University. The call is here.