Nyarango: A Jigsaw Puzzle or a Map? The Role of Treaties under Kenya's Constitution

Archibold Ombongi Nyarango (Gumbo and Company Advocates) has published A Jigsaw Puzzle or a Map? The Role of Treaties under Kenya's Constitution (Journal of African Law, Vol. 62, no. 1, February 2018). Here's the abstract:

Kenya's 2010 Constitution marks the first time that treaty law has been constitutionally declared part of Kenya's domestic law. However, the laconic drafting of the relevant provision leaves unanswered questions about the role of treaties. This article seeks to answer some of those questions, addresses conflicts between treaties and other laws, and concludes that treaties can be directly enforceable in domestic law unless they are expressly non-self-executing. Furthermore, domestic courts must apply treaties in accordance with the constitution, although the article also addresses the problems that this causes with article 103 of the UN Charter and the East African Community Treaty. Treaties that are applied directly domestically should be considered at a par with statutes enacted by the national Parliament and prevail over county laws. Human rights treaties should carry greater weight than conflicting statutes. Where a treaty is implemented into domestic legislation, the “parent” treaty should prevail where there is a conflict.

Conference: 7th Annual Cambridge International Law Journal Conference

On April 3-4, 2018, the Cambridge International Law Journal will host its 7th Annual Conference. The theme is: "Non-State Actors and International Law." The program is here.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 19, no. 1, 2018) is out. Contents include:

• Stephan W. Schill, Investor-State Dispute Settlement Reform at UNCITRAL: A Looming Constitutional Moment?
• Nicolás M. Perrone, UNCTAD’s World Investment Reports 1991–2015: 25 Years of Narratives Justifying and Balancing Foreign Investor Rights
• Arie Reich, Israel’s Foreign Investment Protection Regime in View of Developments in Its Energy Sector
• Matthew Happold & Relja Radović, The ECOWAS Court of Justice as an Investment Tribunal
• Tuğba Karagöz, The Influence of Investor-Centered Values in the Operation of Political Risk Insurance

Call for Papers: Unpacking Economic and Social Rights: International and Comparative Dimensions

The Institute of International and European Law of the University of Göttingen and the Minerva Center for Human Rights at the Hebrew University of Jerusalem Faculty of Law have issued a call for papers for a conference on “Unpacking Economic and Social Rights: International and Comparative Dimensions,” to take place, November 9-10, 2018, in Göttingen. The call is here.

AJIL Unbound Symposium: Framing Global Migration Law - Part III

AJIL Unbound has posted a symposium on "Framing Global Migration Law - Part III," the third in a three-part symposium. Parts I and II are here and here. The symposium includes an introduction by Jaya Ramji-Nogales and Peter J. Spiro and contributions by Joel Trachtman, Ralph Wilde, Audrey Macklin, Siobhán Mullally, Chantal Thomas, Iris Goldner Lang, and Moria Paz.

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 18, no. 2, 2017) is out. Contents include:

• Tribute
• Hilary Charlesworth, Karen Engle, Aeyal Gross, Vanja Hamzić, Gina Heathcote, Wayne Morgan & Rahul Rao, A Collection of Writings in Honour of Professor Dianne Otto
• Lecture
• Stephen Mathias, UN Peacekeeping Today: Legal Challenges and Uncertainties
• Articles
• Bérénice Boutin, Attribution of Conduct in International Military Operations: A Causal Analysis of Effective Control
• Rebecca Dowd & Jane McAdam, International Cooperation and Responsibility Sharing to Combat Climate Change: Lessons for International Refugee Law
• Andrew Godwin, Ian Ramsay & Miranda Webster, International Commercial Courts: The Singapore Experience
• Etienne Henry, Alleged Acquiescence of the International Community to Revisionist Claims of International Customary Law (with Special Reference to the Jus Contra Bellum Regime)
• Rodrigo Polanco Lazo & Sebastián Gómez Fiedler, A Requiem for the Trans-Pacific Partnership: Something New, Something Old and Something Borrowed?
• Peter Tzeng, The Peaceful Non-Settlement of Disputes: Article 4 of CMATS in Timor-Leste v Australia
• Tania Voon, Balancing Regulatory Autonomy with Liberalisation of Trade in Services: An Analytical Assessment of Australia's Obligations under Preferential Trade Agreements
• Weihuan Zhou, Chinese Investment in Australia: A Critical Analysis of the China–Australia Free Trade Agreement

New Issue: International Affairs

The latest issue of International Affairs (Vol. 94, no. 2, March 2018) is out. Contents include:

• Astrid H. M. Nordin & Mikael Weissmann, Will Trump make China great again? The belt and road initiative and international order
• David H. Ucko, Preventing violent extremism through the United Nations: the rise and fall of a good idea
• Rebecca Sanders, Norm spoiling: undermining the international women's rights agenda
• Peacebuilding in an Era of Pragmatism
• Louise Wiuff Moe & Finn Stepputat, Introduction: Peacebuilding in an era of pragmatism
• Cedric de Coning, Adaptive peacebuilding
• Louise Wiuff Moe, Counter-insurgency in the Somali territories: the ‘grey zone’ between peace and pacification
• Louise Riis Andersen, The HIPPO in the room: the pragmatic push-back from the UN peace bureaucracy against the militarization of UN peacekeeping
• Katja Lindskov Jacobse & Troels Gauslå Engell, Conflict prevention as pragmatic response to a twofold crisis: liberal interventionism and Burundi
• Jan Bachmann & Peer Schouten, Concrete approaches to peace: infrastructure as peacebuilding
• Finn Stepputat, Pragmatic peace in emerging governscapes

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 38, no. 3, Fall 2017) is out. Contents include:

• Special Feature: Contemporary Slavery
• Rebecca J. Scott, International Law and Contemporary Slavery: The Long View
• Vladislava Stoyanova, United Nations Against Slavery: Unravelling Concepts, Institutions and Obligations
• Bénédicte Bourgeois, Statutory Progress and Obstacles to Achieving an Effective Criminal Legislation Against the Modern Day Forms of Slavery: The Case of France
• Carlos H. B. Haddad, The Definition of Slave Labor for Criminal Enforcement and the Experience of Adjudication: The Case of Brazil

Conference: Thirtieth Investment Treaty Forum Public Conference

The British Institute of International and Comparative Law will host the Thirtieth Investment Treaty Forum Public Conference on May 11, 2018. The theme is: "Enforcement in International Investment Law." The program is not yet available. Here's the idea:

From enforcement of an arbitration agreement to enforcement of provisional measures and final awards, parties and tribunals have to rely on domestic authorities.

In addition to difficult issues common to any arbitration proceedings, such as enforcement against non-signatories to the arbitration agreement, tracing the assets of reluctant debtors, and stay of enforcement, investor-State disputes add other complex issues.

These include State immunity, different regimes under the New York Convention, the International Centre for Settlement of Investment Disputes (ICSID) Convention and other regional conventions, as well as in States non-signatories to such conventions. Additional difficulties arise with the enforcement of non-pecuniary provisional measures and cost awards.

The recent decision of the European Court of Justice in Achmea v Slovakia poses serious questions related to the enforceability of intra-EU investment treaties and awards.

These issues require a good understanding of the interplay between public international and domestic law.

To discuss these issues the Thirtieth ITF Public Conference will convene in London on 11 May 2018. The Forum will bring together leading arbitrators, judges, practitioners and academics, drawn primarily from ITF members, to debate issues related to enforcement in international investment law.

The Conference will also mark the sixtieth anniversary of the 1958 New York Convention, which continues to play an important role in international investment disputes.

New Issue: Business and Human Rights Journal

The latest issue of the Business and Human Rights Journal (Vol. 3, no. 1, January 2018) is out. Contents include:

• Articles
• Daniel Augenstein, Mark Dawson, & Pierre Thielbörger, The UNGPs in the European Union: The Open Coordination of Business and Human Rights?
• Karin Buhmann, Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action
• Claire Methven O’Brien, The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal
• Olga Martin-Ortega, Public Procurement as a Tool for the Protection and Promotion of Human Rights: a Study of Collaboration, Due Diligence and Leverage in the Electronics Industry
• Developments in the Field
• Michael Ineichen, Protecting Human Rights Defenders: A Critical Step Towards a More Holistic Implementation of the UNGPs
• Maria Anne van Dijk, Marijn de Haas, & Ruben Zandvliet, Banks and Human Trafficking: Rethinking Human Rights Due Diligence
• Kendyl Salcito & Mark Wielga, What does Human Rights Due Diligence for Business Relationships Really Look Like on the Ground?
• Namit Agarwal, Measuring Business Responsibility Disclosures of Indian Companies: A Data-Driven Approach to Influence Action
• Rasmus Kløcker Larsen & Sandra Atler, Applying the First Pillar of the UN Guiding Principles to Development Cooperation: The Performance of Swedish Agencies and State-owned Enterprises
• Dorothée Baumann-Pauly, Bridging Theory and Practice through Immersion: Innovations for Teaching Business and Human Rights at Business Schools

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 20, no. 1, 2018) is out. Contents include:

• Martine Beijerman, Practice what you Preach? Limitations to Imposing Democratic Norms on NGOs
• Eghosa Osa Ekhator, Regulating the Activities of Multinational Corporations in Nigeria: A Case for the African Union?
• Marie-Aure Perreaut, Editorial: Legal Issues of the Białowieża Forest
• Maciej Perkowski, Wioleta Hryniewicka-Filipkowska & Izabela Dąbrowska, Protection of the Bialowieza Forest as a Challenge to Cross-border Cooperation
• Maciej Perkowski & Wojciech Zoń, The Protection of Invaluable Natural Resources: Illustrating the Example of the Bialowieza Forest

Job Opening: Asser Institute (Senior Researchers)

The T.M.C. Asser Instituut is accepting applications for two Senior Researcher positions focusing on multilateral institutions. Details are available here (Senior Researcher on "Advancing Public Interests in International and European Law") and here (Senior Researcher on "Adequate Dispute Settlement and Adjudication in International and European Law").

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 22, no. 4, 2018) is out. Contents include:

• Pontian N. Okoli & Chinedum I. Umeche, Jurisdictional conflicts and individual liberty – the encroaching burden of technicality in Nigeria
• Francesca Mussi, Countering migrant smuggling in the Mediterranean Sea under the mandate of the UN Security Council: what protection for the fundamental rights of migrants?
• Paul Chaney, Civil society, human rights and religious freedom in the People’s Republic of China: analysis of CSOs’ Universal Periodic Review discourse
• Tim Lindgren, Ecocide, genocide and the disregard of alternative life-systems
• Alexander Dunlap, The ‘solution’ is now the ‘problem:’ wind energy, colonisation and the ‘genocide-ecocide nexus’ in the Isthmus of Tehuantepec, Oaxaca
• Ross W. Bellaby, Extraordinary rendition: expanding the circle of blame in international politics

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 18, no. 2, April 2018) is out. Contents include:

• Jing Xu, International environmental agreements with agenda and interaction between pollutants
• Jasper N. Meya, Ulrike Kornek, & Kai Lessmann, How empirical uncertainties influence the stability of climate coalitions
• Duncan Weaver, The Aarhus convention and process cosmopolitanism
• Michael B. Schwebel, Gathering at the AOSIS: perceived cooperation among Pacific Small Island States
• Anita Talberg, Peter Christoff, Sebastian Thomas, & David Karoly, Geoengineering governance-by-default: an earth system governance perspective
• Jing Liu & Michael Faure, Risk-sharing agreements to cover environmental damage: theory and practice
• Jacob D. Petersen-Perlman & Itay Fischhendler, The weakness of the strong: re-examining power in transboundary water dynamics
• Simon Marsden, Protecting wild land from wind farms in a post-EU Scotland

New Issue: The Law and Practice of International Courts and Tribunals

The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 16, no. 3, 2017) is out. Contents include:

• Ori Pomson, The Obligations concerning Negotiations Cases and the “Dispute” Requirement in the International Court of Justice
• Andres Sarmiento Lamus & Walter Arévalo Ramírez, Non-appearance before the International Court of Justice and the Role and Function of Judges ad hoc
• Ravindra Pratap, Provisional Measures in the “Enrica Lexie” Case
• María Carmelina Londoño-Lázaro, Ulf Thoene & Catherine Pereira-Villa, The Inter-American Court of Human Rights and Multinational Enterprises: Towards Business and Human Rights in the Americas?
• Sondre Torp Helmersen, Scholarly-Judicial Dialogue in International Law
• Guillaume Le Floch, Marie Lemey & Lucie Paiola, Procedural Developments at the International Criminal Court (2016)

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 57, no. 1, February 2018) is out. Contents include:

• Jadhav Case (India v. Pakistan): Order on Provisional Measures (I.C.J.), with introduction note by Surabhi Ranganathan
• Prosecutor v. Ahmad Al Faqi Al Mahdi: Judgment and Sentence & Reparations Order (Int'l Crim. Ct.), with introductory note by Ana Filipa Vrdoljak
• Bărbulescu v. Romania (Eur. Ct. H.R.), with introductory note by Nichole L. Sterling and Emily R. Fedeles
• Tele2 Sverige AB v. Post-Och Telestyrelsen and Secretary of State for the Home Department v. Tom Watson, Peter Brice, and Geoffrey Lewis (C.J.E.U.), with introductory note by Michelle Marie F. Villarica
• United Nations Security Council Resolution 2347, with introductory note by Patty Gerstenblith
• United Nations Security Council Resolutions 2240, 2312 & 2380, with introductory note by Andreas Schloenhardt
• United Nations Security Council Resolution 2354 & Comprehensive International Framework to Counter Terrorist Narratives, with introductory note by Andreas Motzfeldt Kravik

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 21, nos. 1-2, March 2018) is out. Contents include:

• Natacha Estèves, Open models for patents: Giving patents a new lease on life?
• Verity Dawkins, Combating biopiracy in Australia: Will a disclosure requirement in the Patents Act 1990 be more effective than the current regulations?
• Muhammad Z. Abbas & Shamreeza Riaz, WTO “Paragraph 6” system for affordable access to medicines: Relief or regulatory ritualism?
• Ruchi Sharma, Audhesh K. Paswan, Sunil K. Ambrammal & Madan Dhanora, Impact of patent policy changes on R&D expenditure by industries in India
• Hembadoon Iyortyer Oguanobi, Broadening the conversation on the TRIPS agreement: Access to medicines includes addressing access to medical devices
• Belinda Townsend, Deborah Gleeson & Ruth Lopert, Japan's emerging role in the global pharmaceutical intellectual property regime: A tale of two trade agreements

Sharp: Rethinking Transitional Justice for the Twenty-First Century: Beyond the End of History

Dustin N. Sharp (Univ. of San Diego - School of Peace Studies) has published Rethinking Transitional Justice for the Twenty-First Century: Beyond the End of History (Cambridge Univ. Press 2018). Here's the abstract:

Transitional justice is the dominant lens through which the world grapples with legacies of mass atrocity, and yet it has rarely reflected the diversity of peace and justice traditions around the world. Hewing to a largely western and legalist script, truth commissions and war crimes tribunals have become the default means of 'doing justice'. Re-Thinking Transitional Justice for the Twenty-First Century puts the blind spots and assumptions of transitional justice under the microscope, and asks whether the field might be re-imagined to better suit the diversity and realities of the twenty-first century. At the core of this re-imagining is an examination of the broader field of post-conflict peace building and associated critical theory, from which both caution and inspiration can be drawn. By using this lens, Dustin N. Sharp shows how we might begin to generate a more cosmopolitan and mosaic theory and imagine more creative and context-sensitive approaches to building peace with justice.

Demirkol: Judicial Acts and Investment Treaty Arbitration

Berk Demirkol (Galatasaray Üniversitesi) has published Judicial Acts and Investment Treaty Arbitration (Cambridge Univ. Press 2018). Here's the abstract:

Judicial acts of states are becoming increasingly subjected to international investment claims. This book focuses on distinctive particularities of these claims. Although there are no special responsibility regimes for different functions of the state, the application of investment treaty standards and the threshold for their breach may vary depending on the function involved. Accordingly, in order for the state to incur responsibility for a wrongful act committed in the exercise of its judicial function, there are some specific conditions that should be met: the investor must establish that the state is responsible for a breach attributable to the state; the investment tribunal has jurisdiction over the particular dispute; and the damage that the investor has suffered is a result of the particular breach. Berk Demirkol addresses questions in relation to the substance, jurisdiction, admissibility, and remedies in cases where state responsibility arises from a wrongful judicial act.

Puig: International Indigenous Economic Law

Sergio Puig (Univ. of Arizona - Law) has posted International Indigenous Economic Law (UC Davis Law Review, forthcoming). Here's the abstract:

Scholarship on the links between business and human rights is widespread. However, the specific ways in which globalization accommodates the economically marginalized and those who are likely most vulnerable to its negative effects has received scant attention. The increasingly obvious manifestations of discontent over the effects of globalization — from Brexit, to the election of President Trump — combined with the evidence that confirms the very uneven distribution of its benefits, indicate that this is an important scholarly gap.

To bridge it, this Article explores the extent to which the main fields of international law that are tasked with promoting economic interdependence — international finance, investment, trade, and intellectual property — address the rights and interests of indigenous peoples, an expressly protected category of marginalized and/or vulnerable people under international law.

Relying on recent legal practice and four case studies, the Article compares these fields and explains the different ways indigenous peoples’ interests are accommodated by international economic law. More broadly, the intersection between international economic law and indigenous rights — what I call international indigenous economic law — provides important lessons to current demands to address the negative effects of globalization. In particular, the Article argues that international economic law must recognize the need to more seriously incorporate the struggle for social and economic justice espoused by human rights law. At the same time, human rights advocates should utilize the growing set of possibilities from instruments that promote economic interdependence to create or renew strategies that advance human rights values and goals. This complex line has been at the core of indigenous rights advocacy, the relative success of which provides some hope for the future of international law at a challenging time.

Hakimi: The Jus Ad Bellum's Regulatory Form

Monica Hakimi (Univ. of Michigan - Law) has posted The Jus Ad Bellum's Regulatory Form (American Journal of International Law, forthcoming). Here's the abstract:

Though an extensive body of work addresses the substantive content of the jus ad bellum, little attention has been paid to its regulatory form — meaning the modes for expressing its content as concrete directives that structure legal arguments and decisions. By most accounts, its content takes the form of a blanket prohibition and a small handful of exceptions. The same general standards are thought to govern all situations involving cross-border force and to determine whether any particular operation is lawful.

This Article argues that an alternative form of regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions confer authority on the operations at issue; they make the operations easier to justify and harder to challenge in law. They do so even when they go beyond what the general standards permit. Recognizing that they are both part of the jus ad bellum and different in kind from regulation through the general standards should change how we think about and assess this body of law.

Ohlin: The Right to Punishment for International Crimes

Jens David Ohlin (Cornell Univ. - Law) has posted The Right to Punishment for International Crimes. Here's the abstract:

On October 1, 2002, Magnus Gäfgen was taken into custody by the Frankfurt police in connection with the kidnapping of a young boy held for ransom. The police threatened Gäfgen with various forms of torture unless he divulged the location of the boy. Gäfgen quickly relented and led the police to the boy, who was already dead. Gäfgen was convicted of murder and the police were convicted of coercion. However, the district court concluded that the police, though culpable, were not appropriate subjects of punishment. Gäfgen, unhappy that his torturers were not punished, filed a case against Germany at the European Court of Human Rights (ECHR), arguing that Germany's failure to punish his torturers violated his human rights. The ECHR concluded that Gäfgen was right--the German government was obligated to punish perpetrators of torture, and by failing to do so adequately, Germany violated Gäfgen's human rights.

The goal of this chapter is to show that the argument in Gäfgen is generalizable to other contexts. Although the case arose from a particular procedural posture, there is little reason to suspect that the arguments in Gäfgen will not hold for other crimes as well. At the very least, these arguments can be extended, without logical disruption, to other international crimes that states are under a legal obligation to criminalize, such as war crimes, crimes against humanity, and genocide. Moreover, if the structure of these arguments is conceptually sound, in theory they should apply outside of the European context, unless the argument is based on a particular right that is only protected by the European Convention and not by international law.

This subtle change in emphasis -- moving from punishment as a license to punishment as a legal requirement -- has profound consequences for the operation of international criminal justice. States and international tribunals are required to punish perpetrators as a matter of human rights law, and their failure to follow through on this obligation violates not just some vague or inchoate ergo omnes obligation, it also violates an obligation owed directly to the victims of that particular atrocity. This applies not just when the perpetrators are not punished at all but also when the perpetrators, like in Gäfgen's case, are not punished severely enough.

Çalı: Coping with Crisis: Whither the Variable Geomety in the Jurisprudence of the European Court of Human Rights

Başak Çalı (Koç Univ. - Law; Hertie School of Governance) has posted Coping with Crisis: Whither the Variable Geomety in the Jurisprudence of the European Court of Human Rights. Here's the abstract:

This article offers a new take on the diagnosis of the crisis of the European human rights system by focusing on the diversification of the attitudes towards the European Court of Human Rights by the national compliance audiences, namely domestic executives, parliaments and judiciaries. This diagnosis holds that national compliance audiences of the European Court of Human Rights can no longer be characterized as lending an overall support to the human rights acquis of Europe, that centers around the European Court of Human Rights as the ultimate authoritative interpreter of the Convention. Instead, alongside states that continue to lend overall support to the Court’s authority over the interpretation of the Convention, two types of new attitudes have developed towards the Convention across the Council of Europe in recent decades. First, there are now national compliance audiences that demand co- sharing of the interpretation task of the Convention with the European Court of Human Rights. Second, there are national compliance audiences that flout the well-established Convention standards, not merely by error, or lack of knowledge of adequate application, but with suspect grounds of intentionality and lack of respect for the overall Convention acquis. Following this diagnosis, I argue that instead of holding on to a business as usual attitude, the Court has also developed coping strategies in order to handle the fragmentation of the attitudes of its audiences by investing more in a human rights jurisprudence of a variable geometry, recognizing differentiation in the individual circumstances of states as a basis for human rights review.

Stahn: Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law

Carsten Stahn (Leiden Univ. - Law) has posted Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law. Here's the abstract:

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. At the same time new domestic cases test the boundaries of the law (e.g., Jesner v. Arab Bank, Lafarge Cement). This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less ‘romanticism’ and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.

Hirsch: The Role of International Tribunals in the Development of Historical Narratives

Moshe Hirsch (Hebrew Univ. of Jerusalem - Law) has posted The Role of International Tribunals in the Development of Historical Narratives (Journal of History of International Law, forthcoming). Here's the abstract:

Collective memories are significant for both individuals and societies, as they play an important role in the construction of collective identities. This article focuses on the role of non-criminal international tribunals in the development of collective memories, asking whether it is desirable for such international tribunals to be involved in the construction of historical narratives. International tribunals have not adopted a consistent approach concerning the presentation of the case’s historical background in their judgments. The question of whether it is desirable for non-criminal tribunals to assume an active role in this sphere is analysed using three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach.

The conclusions of this article emphasize that international adjudicators are embedded in socio-historical environments and are influenced by historical narratives prevailing their respective groups (regardless of whether they present an historical narrative or not). International tribunals interact with additional agents of memory (e.g., governmental bodies and the mass media); and though they are more constrained than other agents of memory (e.g., regarding evidentiary rules), they do hold some significant advantages in this sphere. Each agent of memory possesses some advantages and limits and they often cross-fertilize each other. Where reasonable available evidence permits, international tribunals (and particularly regional ones) may legitimately play a role in the construction of historical narratives. The participation of international tribunals in this sphere is particularly vital where national judicial or semi-judicial bodies deliberately conceal a significant historical event generating extensive harm to a disadvantaged group. In such cases, it is desirable that international tribunals undertake an inclusive approach and make reasonable efforts to take into account historical findings produced by other agents of memory (such as historians and experts), while acknowledging the possible bias of each actor. Informed by the symbolic-interactionist approach, we are of the view that judicial-historical narratives are important not only for the social integration of a particular group; but mainly as a meaningful remedy for individuals and smaller communities whose rights have been violated. In light of the valuable socio-cultural qualities of local institutions in this sphere, it is generally legitimate for regional tribunals (rather than global ones) to take an active part in the development of regional historical heritage; particularly where such judicial-historical pronouncements are significant for small communities or individuals who suffered a violation of their legal rights. The benefits of constructing collective memories in a bottom-up process indicate that where national tribunals (or local quasi-judicial bodies) function effectively and reliably, international tribunals should generally refrain from interfering with the development of local historical narratives. Where international tribunals encounter considerable asymmetric settings, it is desirable to apply adequate rules of evidence to mitigate the parties' unbalanced capacities in proving historical events.