Lecture: Lijnzaad on "We're in this together, the scope of the 'ship-as-a-unit' rule"

On May 8, 2024, Liesbeth Lijnzaad (Judge, International Tribunal for the Law of the Sea) will deliver a lecture (on Zoom) as part of the 2024 Public International Law Lecture Series. The topic is: "We're in this together, the scope of the 'ship-as-a-unit' rule." Details are here.

New Issue: Journal of International Humanitarian Legal Studies

The latest issue of the Journal of International Humanitarian Legal Studies (Vol. 15, no. 1, 2024) is out. Contents include:

• Agnieszka Szpak, Ukraine and Violations of International Humanitarian Law – A Critical Analysis of the Amnesty International Report
• David James Cantor, Conceptualising “Relocation” Across Displacement Contexts
• Sara (S) Benabbass & Marten (M.C.) Zwanenburg, The Interaction Between the Obligation to Warn and Other Rules of ihl
• Rebecca Barber, What Blocked the UN’s Response to the Earthquakes in Northwest Syria? Reflections on a Humanitarian System Premised on Government Consent
• Mark Klamberg, Regulatory Choices at the Advent of Gig Warfare
• Giacomo Biggio, The Legal Status and Targeting of Hacker Groups in the Russia-Ukraine Cyber Conflict

Provost: Legal Pluralism and War

René Provost (McGill Univ. - Law) has posted Legal Pluralism and War. Here's the abstract:

Wars are moments of social and political dislocation that uncover assumptions that routinely remain uninterrogated. The nature and function of law in society are questions both so complex and so pervasive that they most often fall into the category of unexamined facets of social life, relegated to the abstract musings of philosophers and legal theorists. Wars sometimes disrupt the normal patters of legalism to suddenly make more concrete and immediate such foundational questions. Thus, warzones are often thought of as lawless spaces, but in fact the problem is more often an overabundance of laws. Conflict situations in which several legal orders make competing claims are not extraordinary at all; arguably, it could be claimed that they are one of the defining legal features of war. The strange and tragic fate of Rainer Beck and Bruno Dörfer offers a striking illustration of the revealing disruption of law in war and the ways in which legal pluralism can help to structure thinking about the concept of law in such a context. Indeed, legal pluralism suggests that this and other examples of disrupted legality in conflict zones are best understood as the interaction and intersection of legal orders that must be mediated rather than resolved by claims of higher authority.

Hollis: Delimiting "Agreements" for International Law

Duncan B. Hollis (Temple Univ. - Law) has posted Delimiting "Agreements" for International Law (Virginia Journal of International Law Online, forthcoming). Here's the abstract:

Agreements are central to many international law projects, including both treaty-making and the (rising) use of non-binding agreements. Yet, for all the attention States and scholars currently direct to differentiating between binding and non-binding agreements, there has been relatively little discussion of the antecedent inquiry – what constitutes an agreement in the first place? This short essay calls for new efforts to define agreements for purposes of international law and international relations, focusing on two criteria – mutuality and commitment. Agreements require two (or more) participants just as they must exhibit some shared expectations regarding those participants’ future behavior. This definition provides important limiting principles by excluding certain binding instruments (e.g., unilateral declarations) as well as some non-binding ones (e.g., diplomatic “deliverables” that do not reflect shared commitments to future courses of conduct). Moreover, a focus on agreements foregrounds a salient category absent in most existing discourse – tacit agreements. Reflecting on why tacit agreements qualify as agreements can help highlight different methods (e.g., content-driven criteria, presumptions and defaults) to supplement (or substitute for) existing subjective and objective efforts to identify whether an agreement is binding under international law. For those concerned with the transparency of diplomatic deliverables, the efficacy of domestic approval procedures for international agreements, as well as the operation of both the law of treaties and the law of state responsibility, it will be necessary to develop a broader and deeper understanding of what agreements “are” alongside any efforts to identify and differentiate among their binding and non-binding forms.

Hathaway & Khan: 'Mistakes' in War

Oona A. Hathaway (Yale Univ. - Law) & Azmat Khan (Columbia Univ. - Journalism) have posted 'Mistakes' in War (University of Pennsylvania Law Review, forthcoming). Here's the abstract:

In 2015, the United States military dropped a bomb on a hospital in Afghanistan run by Médecins Sans Frontières, killing forty-two staff and patients. Testifying afterwards before a Senate Committee, General John F. Campbell explained that “[t]he hospital was mistakenly struck.” In 2019, while providing air support to partner forces under attack by ISIS, the U.S. military killed dozens of women and children. Central Command concluded that any civilian deaths “were accidental.” In August 2021, during a rushed withdrawal from Afghanistan, the U.S. military executed a drone strike in Kabul that killed ten civilians, including an aid worker for a U.S. charity and seven children in his family. The Pentagon later admitted it was a “tragic mistake.” In these cases and others like them, no one set out to kill the civilians who died. Such events are usually chalked up as sad but inevitable consequences of war—as regrettable “mistakes.”

This Article examines the law on “mistakes” in war. It asks: Under international humanitarian law, intentionally killing a civilian is a war crime, but is killing a civilian by mistake ever a crime? It considers whether and when the law holds not just individuals, but also states, responsible for “mistakes.” To see how the law works, or fails to work, in practice, the Article examines the U.S. military’s own assessments of civilian casualties. The analysis focuses on the United States, both because of its global military operations and because of the power of its example to shape global practices. It demonstrates that “mistakes” in the U.S. counterterrorism campaign have been far more common than generally acknowledged. Moreover, some errors are the predictable result of a system that, during the period examined, did little to learn from its mistakes.

Call for Papers: 12th Conference of the Postgraduate and Early Professionals/Academics Network of SIEL

A call for papers has been issued for the 12th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law, to be held July 3-4, 2024, in Hong Kong. The call is here.

Call for Papers: Small States and Arctic Sustainability Workshop

The Singapore Management University Yong Pung How School of Law has issued a call for papers for a workshop on "Small States and Arctic Sustainability," to take place November 20, 2024, in Singapore. The call is here.

Shaffer: Package Treaties: Addressing the Negative Effects of Trade

Gregory Shaffer (Georgetown Univ. - Law) has posted Package Treaties: Addressing the Negative Effects of Trade. Here's the abstract:

This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through “flanking policies.” It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Part I defines terms and sets forth the argument. Part II typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Part III assesses different institutional choices for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Part IV shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures the flanking policies. Part V concludes.

Gilleri: Sex, Gender and International Human Rights Law: Contesting Binaries

Giovanna Gilleri (Univ. of Trieste) has published Sex, Gender and International Human Rights Law: Contesting Binaries (Routledge 2024). Here's the abstract:

This book investigates the relationship between sex and gender under international human rights law, and how this influences the formation of individual subjects.

Combining feminist, queer, and psychoanalytical perspectives, the author scrutinises the sexed/gendered human rights discourse, starting from the assumptions underpinning interpretations of sex, gender, and the related notions of gender identity, sex characteristics, and sexual orientation. Human rights law has so far offered only a limited account of the diversity of sexed/ gendered subjectivities, being based on a series of simplistic assumptions. Namely, that there are only two sexes and two genders; sex is a natural fact and gender is a social construct; gender is the metonymic signifier for women; and gender power relations take the asymmetrical shape of male domination versus female oppression. Against these assumptions, dominative and subordinate postures interchangeably attach to femininities and masculinities, depending on the subjects’ roles, their positionalities, and the situational meanings of their acts. The limits of an approach to gender which is based on rigid binaries are evident in two case studies, on the UN human rights treaty bodies’ vocabulary on medically unnecessary interventions upon intersex children and on the European Court of Human Rights’ narrative on sadomasochism.

Conference: Recharacterising International Disputes: Exploring the Phenomenon of Multi-Fora Litigation

On June 12-13, 2024, Maastricht University's Faculty of Law will host a conference, in the hybrid format, on "Recharacterising International Disputes: Exploring the Phenomenon of Multi-Fora Litigation." Details, including registration, are here.

deGuzman & López: Is International Criminal Law Feminist?

Margaret M. deGuzman (Temple Univ. - Law) & Rachel López (Drexel Univ. - Law) have posted Is International Criminal Law Feminist? (in The Oxford Handbook on Women and International Law, forthcoming). Here's the abstract:

The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.

To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.

New Issue: GlobaLex

The latest issue of GlobaLex (January/February 2024) includes:

• Dunia P. Zongwe, The African Continental Free Trade Area (AfCFTA): The Law, the Economics, and the Research
• Colin Fong & Alex Burdett, Update: Immigration Law – A Comparative Approach to Researching Immigration Law of Australia, Canada, and the United States
• S M Atia Naznin, Update: Researching the Right to Housing
• Christopher C. Dykes, Update: Researching Indigenous Peoples International Law
• Charlotte Daugherty, Update: Researching Sustainable Development Law (SDL)

New Issue: American Journal of International Law

The latest issue of the American Journal of International Law (Vol. 118, no. 2, April 2024) is out. Contents include:

• Article
• Miles Jackson & Federica I. Paddeu, The Countermeasures of Others: When Can States Collaborate in the Taking of Countermeasures?
• Current Developments
• Kevin Baumert, The Continental Shelf Beyond 200 Nautical Miles: Announcement of the U.S. Outer Limits
• Daniel Bodansky, Four Treaties in One: The Biodiversity Beyond National Jurisdiction Agreement
• International Decisions
• Christopher Ward, Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia)
• Philipp Janig, X v. OPEC. Judgment No. SV 1/2021 (SV 1/2021–23) ECLI:AT:VFGH:2022: SV1.2021 and Verfassungsgerichtshof (Constitutional Court of Austria)
• Contemporary Practice of the United States Relating to International Law
• The United States Urges the Seizure of Russian Frozen Assets
• The United States Provides and Then Rescinds Sanctions Relief for Venezuela
• The United States Condemns Enactment of Ugandan Anti-homosexuality Act and Imposes Measures in Response
• Congress Extends Anti-bribery Laws to the Demand Side with Enactment of the Foreign Extortion Prevention Act
• The United States Supports Israel’s Use of Force in Gaza
• The United States and Partners Use Force Against the Houthis to Protect Freedom of Navigation in the Red Sea and the Gulf of Aden
• Recent Books on International Law
• Basa̧k Çali, Optimism in International Human Rights Law Scholarship
• José E. Alvarez, reviewing Frontiers of Gender Equality: Transnational Legal Perspectives, edited by Rebecca J. Cook
• Nora Stappert, reviewing Talking International Law: Legal Argumentation Outside the Courtroom, by Ian Johnstone & Steven Ratner
• Astrid Iversen, reviewing Sovereign Debt Restructuring and the Law: The Holdout Creditor Problem in Argentina and Greece, by Sebastian Grund
• Antoine Pécoud, reviewing IOM Unbound? Obligations and Accountability of the International Organization for Migration in an Era of Expansion, edited by Megan Bradley, Cathryn Costello, & Angela Sherwood

Brunk & Hakimi: The Prohibition of Annexations and the Foundations of Modern International Law

Ingrid (Wuerth) Brunk (Vanderbilt Univ. - Law) & Monica Hakimi (Columbia Univ. - Law) have posted The Prohibition of Annexations and the Foundations of Modern International Law (American Journal of International Law, forthcoming). Here's the abstract:

The international legal norm that prohibits forcible annexations of territory is foundational to modern international law. It lies at the core of three projects that have been central to the enterprise. The first focuses on settling title to territory as the basis for establishing state authority. The second regulates the use of force across (settled) territorial borders. The third provides for the people within each state’s (settled) borders collectively to determine their own fates. The norm that prohibits forcible annexations is integral to each of these projects independently, and by tying them together, has had a transformative effect on the legal system as a whole.

However, this prohibition is also misunderstood, both as a matter of history and in its relationship to other contemporary international legal norms. Because it is intertwined with all three of the above projects, its origins cannot be traced to only one or the other. The common narrative that describes it as the inevitable outgrowth of regulating war is, therefore, misleading and incomplete. That narrative overlooks the role that formerly colonized states played in securing this norm while seeking to establish themselves as states, through decolonization and claims of self-determination. In modern doctrine, too, the prohibition of annexations is often subsumed into the general prohibition on the use of force, when in fact, its normative influence extends much more broadly.

As a result, the norm’s significance and position in modern international law are consistently overlooked. Analysts have also, by and large, failed to appreciate that it is now caught up in a broader contest over the future world order and at risk of erosion. As deeply flawed as the previous world order was, jettisoning this norm is a dangerous path forward. From Ukraine to Palestine, Israel, the Nagorno-Karabakh region, the Golan Heights, Western Sahara, and the Chagos Archipelago, states and nonstate actors alike care deeply about exercising power over territory, which has historically been a primary impetus of interstate war.