Steingruber: Consent in International Arbitration

Andrea M. Steingruber has published Consent in International Arbitration (Oxford Univ. Press 2012). Here's the abstract:

Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions.

Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions.

These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses.

The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.

Prost: The Concept of Unity in Public International Law

Mario Prost (Keele Univ. - Law) has published The Concept of Unity in Public International Law (Hart Publishing 2012). Here's the abstract:

'Fragmentation' has become a defining, albeit controversial, metaphor of international law scholarship in the era of globalisation. Some scholars see it as a new development, others as history repeating itself; some approach it as a technical issue and some as the reflection of deeper political struggles. But there is near-consensus about the fact that the established vision of international law as a unitary whole is under threat. At the core of the fragmentation debate lies the concept of unity, but this is hardly ever rationalised and is more assumed than explained. Its meaning remains vague and intuitive. 'The Concept of Unity in Public International Law' attempts to dispel that vagueness by exploring the various possible meanings of the concept of unity in international law. However, eschewing one grand theory of unity, it identifies and compares five candidates. Intentionally pluralistic in its outlook, the book does not engage in normative arguments about whether international law is or should be unitary but seeks to show instead that the concept of unity is contested and that discourses on fragmentation are necessarily contingent.

Talmon: A Primer on ICJ Procedure: A Commentary on Article 43 ICJ Statute

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted A Primer on ICJ Procedure: A Commentary on Article 43 ICJ Statute. Here's the abstract:

The procedure before the International Court of Justice is governed, first and foremost, by Article 43 of the Court`s Statute, the Rules of Court, the Practice Directions and by the practice of the Court. The term ‘procedure’ describes the mode of conducting proceedings before the Court. In combining both oral and written phases of procedure the Court ‘marries the key features of the common and civil law systems’ thus allowing States, according to their own legal traditions, to lay greater emphasis on either of the two phases of the proceedings. The combination of the two phases is the basis for the sound administration of international justice. The Court’s procedure in contentious cases is characterized by the equality of the parties, the duality of the proceedings, the simplicity of the procedural rule and the flexibility in its application. The paper provides a detailed commentary on the rules governing the written and oral phase of the proceedings in contentious cases and the incidental proceedings on preliminary objections.

New Issue: Revue Québécoise de Droit International

The latest issue of the Revue Québécoise de Droit International (Vol. 23, no. 2, 2010) is out. Contents include:

• Anne-Claire Gayet, La conformité des conditions de travail des travailleurs agricoles migrants au Québec avec l'article 46 de la Charte des droits et libertés de la personne interprété à la lumière du droit international
• Maroine Bendaoud, Le droit au logement tel que vu par le Pacte international relatif aux droits économiques, sociaux et culturels : sa mise en œuvre québécoise est-elle conforme ?
• Fannie Lafontaine, The Unbearable Lightness of International Obligations: When and How to Exercise Jurisdiction under Canada's Crimes against Humanity and War Crimes Act
• Étienne Giroux, Bioprospection en Antarctique : juridiction des États et libre disposition des résultats
• Sylvestre-José-Tidiane Manga, International Environmental Governance Reform within the United Nations: Seeking for more Sustainability Towards and Beyond Rio + 20 Earth Environment Summit

BIICL: The Special Procedures of the UN Human Rights Council and the Human Rights Situation in Iran

On March 26, 2012, Ahmed Shaheed (UN Special Rapporteur for Iran) and Scott Sheeran (Univ. of Essex - Law) will speak at the British Institute of International and Comparative Law on "The Special Procedures of the UN Human Rights Council and the Human Rights Situation in Iran."

Call for Papers: ESIL Interest Group on International Economic Law

The Interest Group on International Economic Law of the European Society of International Law has issued a call for papers for a workshop to be held on the occasion of the Society's Fifth Biennial Conference. Here's the call:

European Society of International Law Interest Group on International Economic Law

Workshop held on the occasion of the Fifth ESIL Conference on “Regionalism and International Law”

University of Valencia, 13-15 September 2012

Call for Papers

Deadline 23 April 2012

The IG on International Economic Law Interest Group invites all members of the ESIL to submit works for presentation in either of the two panels of our workshop: “The Regulatory Answers to the Sovereign Debt Crisis” and “The reach and impact of bilateralism as a tool for fragmentation or de-fragmentation in IEL”. The first panel will deal with the different legal instruments created both in the European Union and at the international level to solve the financial problems brought about by the sovereign debt crisis. On the second subject we will deal with fragmentation in a very wide sense, including trade, investment law, or even natural resources law. Proposals for papers may address either of the two topics. The deadline for the submission of abstracts is 23 April 2012. The ESIL IEL IG workshop takes place on Thursday 13 September 2012, 9:30-12:30 am.

In addition, there will be a joint workshop of the IG on International Economic Law and the IG on International Environmental Law on the topic of the United Nations ‘Rio+20’ Conference taking place on Wednesday, 12 September 2012, 6-8 pm.

For the full Call for Papers, please follow this link.

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 45, no. 1, January 2012) is out. Contents include:

• Dan W. Puchniak & Masafumi Nakahigashi, Japan's Love for Derivative Actions: Irrational Behavior and Non-Economic Motives as Rational Explanations for Shareholder Litigation
• Sheldon Bernard Lyke, Brown Abroad: An Empiricial Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation
• Philip M. Nichols, The Psychic Costs of Violating Corruption Laws

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 30, no. 1, 2012) is out. Contents include:

• S. E. Berry, A tale of two Instruments: Religious Minorities and The Council of Europe’s Rights Regime
• E. Craig, From security to Justice? The Development of A More Justice-oriented Approach to the Realisation of european Minority Rights
• F. Prina, Power, Politics and Participation: The Russian Federation’s National Minorities and their Participatory Rights

Conference: Agents of Change: The Individual as a Participant in the Legal Process

On May 19-20, 2012, the Cambridge Journal of International and Comparative Law will host a conference on "Agents of Change: The Individual as a Participant in the Legal Process." The program is here.

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (Vol. 89, no. 1, 2012) is out. Contents include:

• G. Caceres, L'aménagement raisonnable en matière religieuse: lorsque les concepts franchissent l'atlantique
• R. Njeufack Temgwa, Le droit d'évocation de la Cour suprême camerounaise en matière civile en question: une contribution à l'évolution des cours suprêmes
• L.D. Muka Tshibende, Y. Queinnec, & I. Tchotourian, Articles 224 et s. de la loi grenelle II: vers un droit de la gouvernance d'entreprise (enfin?) responsable
• G. De Foestraets, Le contrôle de la contradiction des motifs d'une sentence arbitrale: vers une solution plus mesurée?

Call for Participation: Measuring the Immeasurable? The Fairness Discourse in Investment Treaty Arbitration

Daniel Behn, a PhD Candidate at the University of Dundee's Centre for Energy, Petroleum, and Mineral Law and Policy (CEPMLP), is conducting a study on the fairness discourse in investment treaty arbitration. This study is not a typical questionnaire; rather, it asks the participant to sort through a number of subjective statements (a process called Q sorting) on issues of fairness in investment treaty arbitration and to rank order them in relation to each other. The study seeks to improve our understanding on how values shape and influence the way that we approach legal problems in investment treaty arbitration. Participation should take about 20-30 minutes and will be conducted in the strictest of confidence. Those interested in participating should go to the study's website and use the access code "HLC."

Call for Papers: Collective Redress in the Cross-Border Context

A call for papers has been issued for a works-in-progress conference on "Collective Redress in the Cross-Border Context." Here's the call:

Collective Redress in the Cross-Border Context

Large-scale international legal injuries are becoming increasingly prevalent in today’s globalized economy, whether they arise in the context of consumer, commercial, contract, tort or securities law, and countries are struggling to find appropriate means of providing collective redress, particularly in the cross-border context. The Hague Institute for the Internationalisation of Law (HiiL), along with the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS), will be responding to this new and developing challenge by convening a two-day event on the theme “Collective Redress in the Cross-Border Context: Arbitration, Litigation, Settlement and Beyond.” The event includes two different elements – a workshop on 21-22 June 2012 comprised of invited speakers from all over the world as well as a works-in-progress conference on 20-21 June 2012 designed to allow practitioners and scholars who are interested in the area of collective redress to discuss their work and ideas in the company of other experts in the field. Both events are organized by the Henry G. Schermers Fellow for 2012, Professor S.I. Strong of the University of Missouri School of Law.

Persons interested in being considered as presenters for the works-in-progress conference should submit an abstract of no more than 500 words to Professor S.I. Strong at strongsi@missouri.edu on or before 1 May 2012. Decisions regarding accepted proposals will be made in early May, and those whose proposals are accepted for the works-in-progress conference will need to submit a draft paper by 4 June 2012 for discussion at the conference. All works-in-progress submissions should explore one or more of the various means of resolving collective injuries, including class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation, preferably in a cross-border context. Junior scholars in particular are encouraged to submit proposals for consideration.

Persons presenting at the works-in-progress conference will have to bear their own costs, since there is no funding available to assist with travel and other expenses. The works-in-progress conference will be held on 20 and 21 June 2012 at NIAS, Meijboomlaan 1, 2242 PR Wassenaar, The Netherlands. Wassenaar is approximately 20 minutes from The Hague by car. The workshop of invited speakers will be held on 21 and 22 June, also at NIAS.

Both the Schermers workshop and the works-in-progress conference are open to the public, although advance registration is required. More information on both events is available at the HiiL website (www.hiil.org) or from Professor Strong at strongsi@missouri.edu.

Contact: Prof. S.I. Strong at strongsi@missouri.edu

Deadline for proposals: 1 May 2012

For more on the Henry G. Schermers Fellowship at HiiL/NIAS, see: http://www.hiil.org/organ-bios/prof-s-i-strong

Mills: Towards a Public International Perspective on Private International Law: Variable Geometry and Peer Governance

Alex Mills (Univ. College London - Law) has posted Towards a Public International Perspective on Private International Law: Variable Geometry and Peer Governance. Here's the abstract:

This paper argues that private international law rules constitute a form of international ‘public’ ordering or global governance, and it explores some of the implications of this argument for the international development of private international law. It begins by examining the theoretical foundations for this perspective as well as its historical context and justification, arguing that it is more coherent and more consistent with pre-modern conceptions of the subject. It then turns to examine recent developments in federal systems – the European Union, Canada and Australia – which demonstrate the emergence of a similar ‘public’ perspective on private international law at a regional level. The paper then considers two major problems with the idea that developments within federal systems can be transplanted or applied by analogy at the international level, as well as the potential of two ideas which present responses to these problems. The first problem is that of hierarchy – the complexity of the relationship between federal and international developments – and the idea examined in response is that of variable geometry. The second problem is that of heterarchy – the absence of institutional structures comparable to those in federal systems to support international developments – and the idea of peer governance is examined as a response to this issue. The paper concludes that these ideas have a potentially important impact on a range of international law questions, and that they should form a key part of the research agenda for studies of global governance both within and beyond the context of private international law.

Talmon: The Absent Judge: A Commentary on Article 23 ICJ Statute

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted The Absent Judge: A Commentary on Article 23 ICJ Statute. Here's the abstract:

The Members of the International Court of Justice (ICJ) are obliged to hold themselves permanently at the disposal of the Court except during judicial vacations and if they are on leave or prevented from attending by illness or other serious reasons. The Judges of the ICJ are, however, frequently absent from the Court. In several cases up to three members of the Court were absent at the same public sitting; in two cases, due to absence, the number of judges on the bench was reduced to 11; and in one recent case there were only 10 judges left on the bench. The paper examines provision of the Court’s Statute dealing with the absence of judges, the meaning of ‘absence’, the duty of judges to explain their absence, justifications for absence and the consequences of the absence of judges. Although the record of the judges’ presence in The Hague seems to have improved over last couple of years, their frequent presence at academic conferences, their public speaking engagements, and their work as arbitrators indicates some further room for improvement.

Stone Sweet & Brunell: How the European Legal System Works: Override, Non-Compliance, and Majoritarian Activism in International Regimes

Alec Stone Sweet (Yale Univ. - Law) & Thomas L. Brunell (Univ. of Texas, Dallas - Political Science) have posted How the European Legal System Works: Override, Non-Compliance, and Majoritarian Activism in International Regimes. Here's the abstract:

A striking feature of European integration and governance over the past fifty years has been the crucial role played by the European Court of Justice (ECJ). The ECJ is a Trustee court, rather than a simple Agent of the Member States, with the power to determine the scope of its own authority. In a recent paper, Carrubba et al., having examined the ECJ rulings on some 3,176 legal questions rendered over an 11-year period, claim that the decision-making of the European Court of Justice (ECJ) has been constrained - systematically - by the threat of override on the part of Member State Governments, acting collectively, and the threat of non-compliance on the part of any single State. They also purport to have found strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory. We undertake original analysis of the same data. We conclusively demonstrate that the threat of override is not credible, and that the legal system is activated, rather than paralyzed, by noncompliance. We also explore what happened when MSG sought to override the Court - they failed - and organize a contest between the rival theories. In a head-to-head showdown, Neofunctionalism wins in a landslide. Finally, the analysis provides statistical support for the view that the ECJ engages in majoritarian activism. When Member States urge the Court to censor a defendant State for noncompliance, the ECJ tends to do so. The conclusion draws out implications of our findings for research on the two other international regimes that exhibit effective judicial review: the World Trade Organization and the European Convention on Human Rights.

New Issue: Israel Law Review

The latest issue of the Israel Law Review (Vol. 45, no. 1, March 2012) is out. The second through seventh articles in this issue were presented at Fifth Annual Minerva Center for Human Rights–ICRC Conference on International Humanitarian Law, the topic of which was the principle of proportionality in the laws of war (both jus ad bellum and jus in bello). Contents include:

• Frédéric Mégret, Is There Ever a ‘Right to One's Own Law’? An Exploration of Possible Rights Foundations for Legal Pluralism
• Jann K Kleffner, Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?
• Reuven (Ruvi) Ziegler & Shai Otzari, Do Soldiers' Lives Matter? A View from Proportionality
• Robin Geiss, The Principle of Proportionality: ‘Force Protection’ as a Military Advantage
• Christian J Tams & James G Devaney, Applying Necessity and Proportionality to Anti-Terrorist Self-Defence
• Raphaël van Steenberghe, Proportionality under Jus ad Bellum and Jus in Bello: Clarifying their Relationship
• Aaron Fellmeth, The Proportionality Principle in Operation: Methodological Limitations of Empirical Research and the Need for Transparency
• Cedric Ryngaert, Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of the ‘Effective Control’ Standard after Behrami

Call for Papers: Latin American Society of International Law 2012 Biennial Conference

The Latin American Society of International Law has issued a call for papers for its 2012 Biennial Conference. The theme is: "Latin America: Heritage and Inheritance in International Law." Here's the call (English/Spanish):

Latin American Society of International Law

Biennial Conference 2012

Latin America: Heritage and Inheritance in International Law

CALL FOR PAPERS

Rio de Janeiro Brazil 23-25 August 2012

Ever since their independence Latin American States have exercised significant influence on the progressive development of international law. Having arrived to international society during the first quarter of the nineteenth century these States were confronted with a largely unfavorable international legal system. This prompted an immediate concern among the newly independent States for the formulation of clear rules to protect their autonomy. In asserting these rights they provided solid bases for the transformation of international law. Remarkably the following century saw the generalization of these rules one after the other which today constitutes the body of international law.

During its Biennial Conference in 2012 the Latin American Society of International Law (LASIL) seeks to assess the development of international law taking Latin America as a focal point. The global situation of the past decade has prompted the revisionism of cosmopolitan and universalist tendencies and an increasing reliance on regional and national perspectives to address pressing issues. The global economic crisis the unprecedented growth of emerging countries and the insecurity derived from complex armed activities has favored inward-looking responses with far-reaching implications of a legal political and economic character. The Biennial Conference will evaluate these issues from a wider perspective while situating Latin America on the global stage.

The first objective of the Conference is to evaluate the region’s main contributions to the development of general international law overtime. The second consists in identifying legal responses to the new international challenges of our time.

I. Conference Format

The Program will consist of two parts: one plenary session and six discussion tables. Speakers at the discussion tables will be selected in accordance with the present Call. Participants and speakers may use any of the four LASIL languages (Spanish Portuguese English and French).

II. Eligibility of Speakers

This Call for Papers is open to academics and practitioners of all levels including PhD students. To ensure a rich discussion account will be taken of diverse perspectives and geographical representation.

Priority will be given to original presentations addressing a topic under the general conference theme.

III. Topics

1. International human rights tribunals and the Inter-American System

2. Migration: between national security and protection of the individual

3. Violence and armed conflict situations: differences and affinities

4. Dispute settlement and the Pact of Bogota

5. Developments in trade and investment: the environmental breakthrough

6. Cultural diversity in Latin America

IV. Selection

Proposals should be sent electronically to LASIL’s Board of Directors before 31 March 2012 through the following e-mail addresses: karina.perezrouco@graduateinstitute.ch and monica.naime@graduateinstitute.ch Proposals shall include the following:

a. Name of the discussion table in which they intend to participate

b. An abstract of 500 words of the proposed topic

c. Name of author(s) and institutional affiliation (if applicable)

d. CV of author(s) including a list of publications

e. Contact details of author(s) (including e&mail and phone number)

f. The language of the presentation

The LASIL Board of Directors will constitute a Committee responsible for the selection of proposals. The final decision regarding the inclusion of papers on the conference’s agenda will be notified to the participants not later than 30 April 2012. Finalized versions of the papers must be submitted by 31 July 2012. Only one proposal per person is allowed.

V. Conference Details

The conference will take place at Rio de Janeiro Brazil from 23 to 25 August 2012. No attendance fees are required.

LASIL is unfortunately currently unable to cover travel and accommodation expenses.

New Issue: Internationales Handelsrecht

The latest issue of Internationales Handelsrecht (2012, no. 1) is out. Contents include:

• Peter Mankowski, Der Vorschlag für ein Gemeinsames Europäisches Kaufrecht

Safferling: International Criminal Procedure

Christoph Safferling (Philipps-Universität Marburg - Law) has published International Criminal Procedure (Oxford Univ. Press 2012). Here's the abstract:

This book sets out and analyses the procedural law applied by international criminal tribunals and the International Criminal Court (ICC). It traces the development of international criminal procedure from its roots in the International Military Tribunal at Nuremberg to its current application by the Yugoslav and Rwanda Tribunals, the Special Court for Sierra Leone, the Extraordinary Chamber in the Courts of Cambodia, and the International Criminal Court. All of these tribunals apply a different set of rules. The focus of this book, however, lies on the ICC and its procedural regime as contained in the Rome Statute, the Rules of Procedure and Evidence, and the different Regulations of the Court and of the Prosecutor.

The exceptional compromise between common and civil law which formed the basis of the ICC's Statute created a unique procedural order. This book systematically analyses the Court's organisational structure, overall procedural setting, and the individual procedural regulations, and compares and contrasts these to other international criminal tribunals. Amongst the many unresolved procedural issues are the rights of the accused before, during, and after the trial, the disclosure of evidence, the presentation of evidence, the participation of victims, the protection of witnesses, and the cooperation between the ICC and individual states. Through looking at these issues, the book develops a concise and fitting theoretical underpinning for the ICC's procedural order that is not founded on any specific legal culture.

ASIL Cables

The American Society of International Law has launched ASIL Cables, a website aimed to provide daily reports during the Society's upcoming Annual Meeting, which will take place March 28-March 31, in Washington, DC. Tai-Heng Cheng (New York Law School) will serve as ASIL Cables' editor. Here's his description of the idea:

For over a century, the American Society of International Law has convened scholars, policy-makers, and legal practitioners to exchange ideas about international law. Through its publications and meetings, the Society has brought its discussions to communities worldwide. In this fashion, the Society has deepened our understanding of international law and influenced solutions to global problems.

Internet technology has amplified the convening power of the Society. This 2012 edition of ASIL Cables is the Society’s inaugural effort to present online daily reports of discussions and events as they occur at the Annual Meeting. It connects, almost in real time, those of us at the meeting with those who cannot be present. For the Society’s members who are unable to attend the Meeting, and for readers who have not yet become members, ASIL Cables is a way to stay abreast of the latest ideas generated at the Meeting. It is also another arena for ASIL members to engage each other in conversations about the pressing issues of the day, either as contributors to ASIL Cables or by posting comments to the contributors’ dispatches.

Chasek & Wagner: The Roads from Rio: Lessons Learned from Twenty Years of Multilateral Environmental Negotiations

Pamela Chasek (Manhattan College - Political Science) & Lynn M. Wagner (IISD Reporting Services) have published The Roads from Rio: Lessons Learned from Twenty Years of Multilateral Environmental Negotiations (Routledge 2012). The table of contents is here. Here's the abstract:

At the 1992 United Nations Conference on Environment and Development, popularly known as the Rio Earth Summit, the world’s leaders constructed a new "sustainable development" paradigm that promised to enhance environmentally sound economic and social development. Twenty years later, the proliferation of multilateral environmental agreements points to an unprecedented achievement, but is worth examining for its accomplishments and shortcomings.

This book provides a review of twenty years of multilateral environmental negotiations (1992-2012). The authors have participated in most of these negotiating processes and use their first-hand knowledge as writers for the International Institute for Sustainable Development’s Earth Negotiations Bulletin as they illustrate the changes that have taken place over the past twenty years. The chapters examine the proliferation of meetings, the changes in the actors and their roles (governments, nongovernmental organizations, secretariats), the interlinkages of issues, the impact of scientific advice, and the challenges of implementation across negotiating processes, including the Framework Convention on Climate Change, the Convention to Combat Desertification, the Convention on Biological Diversity, the Commission on Sustainable Development, the UN Forum on Forests, the chemicals conventions (Stockholm, Basel and Rotterdam), the Montreal Protocol on Substances that Deplete the Ozone Layer, the Convention on International Trade in Endangered Species, the Convention on Migratory Species and the International Treaty on Plant Genetic Resources for Food and Agriculture.

Happold: Reviewing the Security Council: The Role of Other International Organisations

Matthew Happold (Université du Luxembourg - Law) has posted Reviewing the Security Council: The Role of Other International Organisations. Here's the abstract:

The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again how extensive its powers are. Acting under Chapter VII of the Charter of the United Nations, the Council has imposed an arms embargo, frozen Libyan assets, referred the situation to the International Criminal Court, ordered a ‘no-fly zone’ and authorized the use of force short of occupying the territory to enforce it and to protect the civilian population. But, of course, ‘For unto whomsoever much is given, of him shall be much required’ or, to put it in contemporary idiom, ‘With great power comes great responsibility.’ Although we might agree that the Security Council is justified in acting to prevent a humanitarian catastrophe, the powers it disposes can be used for both good and ill.

So what happens if and when the Council’s great powers are exercised irresponsibly? This paper examines two issues. The first is whether the Security Council is legibus solutus: that is, unbound by law. This examination, however, is only be preliminary to the second inquiry, which will consider which bodies are entitled to review the Security Council’s decisions to determine their vires and what, if they conclude that the Council has exceed its powers, they can do about it.

Given that today all but one or two provocateurs consider that the Council is not legally unbound, one might consider that absent some body external to the Security Council willing and able to act to scrutinize its actions to review their conformity with the Council’s legal powers, whether the Council will step outside of the limits of legality depends solely on the Council itself; a situation would render any legal limits to its powers illusory.

Debate, in this context, has tended to focus on judicial review; on whether the Council’s actions can be reviewed by some court or tribunal. At first, it was the role of the International Court of Justice that was scrutinised. More recently attention has shifted to look at other courts and tribunals, both national and international. However, as will be shown, judicial review of the Security Council’s actions cannot serve as a means to control the Council. The International Court of Justice will not, and other courts and tribunals cannot, effectively undertake such a task.

However, another option does exist: review by the United Nations member States themselves. It will be argued that the practice of States shows that there are limits to the power of the Security Council, and that States frame those limits in legal terms. States have asserted a ‘right of last resort’ to review the legality of Council decisions and to act accordingly. In particular, they have done so acting collectively through the political organs of international organisations.

Ford: How Special is the Special Court's Outreach Section?

Stuart Ford (The John Marshall Law School, Chicago) has posted How Special is the Special Court's Outreach Section? Here's the abstract:

This article attempts to evaluate the work of the Outreach Section of the Special Court for Sierra Leone. It begins with a brief history of the Outreach Section’s work. Then it discusses the methods and accomplishments of the Section, including its effect on outreach programs at other international criminal courts. Finally, I try to answer two questions: (1) how innovative was the Outreach Section?; and (2) has the Outreach Section been successful? In contrast to earlier commentators, I try to answer these questions using empirical data, including Sierra Leonean attitudes toward and knowledge about the court as measured in various surveys. I conclude that the Outreach Section has been modestly innovative, but that it has largely failed in its primary goal of educating Sierra Leoneans about the Special Court – while virtually all Sierra Leoneans are aware of the existence of the Special Court, very few have a good understanding of what it does.

Stone Sweet & Brunell: Trustee Courts and the Evolution of International Regimes: The Politics of Majoritarian Activism in the ECHR, the EU, and the WTO

Alec Stone Sweet (Yale Univ. - Law and Political Science) & Thomas L. Brunell (Univ. of Texas, Dallas - Political Science) have posted Trustee Courts and the Evolution of International Regimes: The Politics of Majoritarian Activism in the ECHR, the EU, and the WTO. Here's the abstract:

The paper focuses on the sources and consequences of judicial power in three international regimes: the European Union, the European Convention on Human Rights, and the World Trade Organization. The courts of these regimes are trustee courts, operating in an environment of judicial supremacy with respect to states. After elaborating a theory of trusteeship, we show that state non-compliance activates, rather than paralyzes, these courts; that the threat of override is not credible and thus cannot constrain judicial lawmaking; and that courts have used their trusteeship status to enhance the effectiveness of their respective legal systems. In each regime, we examined how judges have adjudicated their most politically controversial set of cases, those involving state claims to exemptions from treaty obligations for measures that are “necessary” to achieve a specified public interest. Although there is variation among cases, we find that each court has engaged in a strategy of “majoritarian activism,” producing law that reflects a high degree of state consensus but which would not be adopted by states under unanimity decision-rules. Majoritarian activism helps these courts develop the law in a progressive manner, to mitigate potential legitimacy problems, and to render efforts at curbing the growth of their authority improbable or ineffective.

Peyró Llopis: Force, ONU et organisations régionales : Répartition des responsabilités en matière coercitive

Ana Peyró Llopis (l’Université de Cergy-Pontoise) has published Force, ONU et organisations régionales : Répartition des responsabilités en matière coercitive (Bruylant 2012). Here's the abstract:

Le rôle dévolu aux organisations régionales en matière coercitive est mal défini. Les notions de « coercition » et d’« organisation régionale » sont incertaines, mais aussi les relations de ces organisations régionales avec le système de sécurité collective instauré par la Charte des Nations Unies. Dans cet ouvrage, il est défendu qu’en matière coercitive, les organisations régionales entretiennent avec l’Organisation des Nations Unies (ONU) des rapports régis notamment par le principe de subsidiarité. Si les contours de ce principe ne sont pas clairement définis, il risque cependant d’aboutir à de véritables substitutions des organisations régionales à l’ONU.

L’ouvrage réexamine les relations entre l’ONU et les organisations régionales au regard de leur pratique de la coercition. Celle-ci met en lumière l’existence de deux courants au sein du système de sécurité collective qui se complètent et se confrontent. Ainsi, le domaine de la coercition subit-il sa déconcentration et, parallèlement, sa décentralisation. En effet, alors que l’ONU délègue souvent aux organisations régionales l’exécution de la réaction à une menace contre la paix et la sécurité internationales, d’autres fois, les organisations régionales exercent des compétences qui leur sont propres. La déconcentration de la coercition suppose ainsi le maintien d’un seul niveau de compétence et d’une hiérarchie, au sommet de laquelle se trouve l’ONU.

La décentralisation implique, pour sa part, l’existence d’une multiplicité de sujets compétents dans le domaine de la coercition dont notamment les organisations régionales.