Paddeu & Waibel: Necessity 20 Years On: The Limits of Article 25 ARSIWA

Federica Paddeu (Univ. of Cambridge) & Michael Waibel (Univ. of Vienna - Law) have posted Necessity 20 Years On: The Limits of Article 25 ARSIWA (ICSID Review, forthcoming). Here's the abstract:

Investment tribunals have fleshed out the requirements of the defence of necessity in Article 25 of the Articles on State Responsibility. This article considers the impact of necessity in international investment law and in general international law. The decided cases of the early 21st century have revealed three difficulties in Article 25 and in the defence of necessity. First, rather than assessing necessity from the vantage point of the State invoking necessity, they assess it ex post with hindsight bias. Second, the standard of proof required to demonstrate the existence of a grave and imminent peril is infeasible for many situations of risk and uncertainty. Third, the ‘only way’ criterion is not only unduly strict and virtually impossible to prove, but is wholly unrealistic for macro-level crises, such as pandemics or financial crises. To account for these difficulties, tribunals should avoid hindsight bias, especially with respect to ‘grave and imminent peril’ and the ‘only way’ criterion. The defence of necessity is a blunt instrument and has not afforded States a significant ‘safety valve’. As a result, States have begun to reconsider the substantive standards in investment treaties and to include internal exceptions in their investment treaties.

Hirsch: Social Cognitive Studies, Sociological Theory, and International Law

Moshe Hirsch (Hebrew Univ. of Jerusalem - Law) has posted Social Cognitive Studies, Sociological Theory, and International Law (in International Law’s Invisible Frames – Social Cognition and Knowledge Production in International Legal Processes, Andrea Bianchi & Moshe Hirsch eds., forthcoming). Here's the abstract:

The image of international legal decision-makers emerging from socio-cognitive studies is significantly different from the prevalent view among diverse actors operating in this field. The socio-cognitive perspective of international law underlines that sensory objects are not 'objectives' or self-evident, and that their internalization in legal decision-makers' minds always involves intermediating mental processes (such as perception, categorization, and interpretation). Limited cognitive resources available to such decision-makers (including military commanders, national decision-makers, and international adjudicators) often lead them to utilize heuristic shortcuts (though occasionally involving some well-known biases). These cognitive processes and heuristics are frequently influenced by socio-cultural patterns (such as norms of attention, stereotypes, or languages) prevailing in the decision-makers' social groups, and often below their conscious level. The increasing awareness to the constraining influence of default socio-cognitive systems on individuals tends to diminish the significance of human agency in real life social situations. On the theoretical level, the latter tendency in socio-cognitive literature supports a shift towards the structural pole of the agency–structure continuum. The formation, interpretation, and implementation of international law interact with diverse socio-cognitive processes. Equipped with insights drawn from socio-cognitive and sociological theoretical literatures, the last section of this chapter focuses on international criminal law, emphasizing its intensified multi-cognitive character and the significant effects of socio-mental patterns on defendants and additional actors (such as adjudicators and prosecutorial staff). This discussion suggests that where it is credibly proven that the particular crime directly involves a distinctive socio-cognitive pattern predominant in the defendant's community, it is desirable that the tribunal considers the defendant's socio-cognitive background as a mitigating or aggravating factor at the sentencing stage.

New Issue: Korean Journal of International and Comparative Law

The latest issue of the Korean Journal of International and Comparative Law (Vol. 9, no. 1, 2021) is out. Contents include:

• Chie Kojima, Modern Slavery and the Law of the Sea: Proposal for a Functional Approach
• Anastasia Telesetsky, Keeping UNCLOS Relevant: Revising UNCLOS to Address 21st Century Fishing, Labor Practices, Pollution, and Climate Change
• Helmut Tuerk, Some Developments and Issues after the Adoption of UNCLOS
• Dustin Kuan-Hsiung Wang, Fill the Gap between Law and Governance: An Observation on SDG 14
• Chris Whomersley, How to Amend UNCLOS and Why It Has Never Been Done
• Karen N. Scott, MPAs in the Southern Ocean under CCAMLR: Implementing SDG 14.5
• Vasco Becker-Weinberg, The Interpretation and Application of the Freedom of Navigation and Flag State Jurisdiction in the M/V “Norstar” and the M/T “San Padre Pio” Cases
• Anthony Carty, What Use Is Customary International Law?
• Hua Zhang, The Development of International Law of the Sea by International Courts and Tribunals: A Case Study of Due Diligence Obligation

Conference: Investment Law Reform: The View from Asia

On June 14-17, 2021, the Centre for International Law at the National University of Singapore and the U.S. Asia Law Institute at New York University School of Law will host an online conference on "Investment Law Reform: The View from Asia." Program and details are here.

Workshop: The Influence, Legacy and Future of the European Court of Human Rights in the International Legal Order

On June 8, 2021,the ESIL Interest Group on International Courts and Tribunals, in collaboration with the ESIL Interest Group on International Human Rights, will hold an online workshop on "The Influence, Legacy and Future of the European Court of Human Rights in the International Legal Order." The program is here. Registration is here.

Conference: Whither Eastern Asian Liberals? The Aspirations and Anxieties of International Law in Taiwan, Korea, and Japan

On July 4, 2021, the Japan Chapter of the Asian Society of International Law will hold its 12th Annual Conference online on the theme "Whither Eastern Asian Liberals? The Aspirations and Anxieties of International Law in Taiwan, Korea, and Japan." Program and registration are here.

Call for Submissions: Special Issue on "Water Law as Environmental Law" (Chinese Journal of Environmental Law)

The Chinese Journal of Environmental Law has issued a call for submissions for a special issue on "Water Law as Environmental Law." The call is here.

Webinar: SOEs in multilateral trade regulation

On June 11, 2021, the Collegio Carlo Alberto and the Phd school of the University of Turin will host a webinar on "SOEs in multilateral trade regulation." Details are here.

Conference: Legal (Un)Certainty of Occupation: Crimea and Donbas

On June 9-11, 2021, Global Rights Compliance will host a conference on “Legal (Un)Certainty of Occupation: Crimea and Donbas.” Program and details are here.

New Volume: Austrian Review of International and European Law

The latest volume of the Austrian Review of International and European Law (Vol. 24, 2019) is out. Contents include:

• 50 Years Vienna Convention on the Law of Treaties
  • Christina Binder & August Reinisch, 50 Years Vienna Convention on the Law of Treaties’
  • Helmut Tichy, Introductory Remarks
  • Axel Marschik, The Vienna Convention of the Law of Treaties and Karl Zemanek – A Preamble of Sorts
  • Hanspeter Neuhold, The Vienna Convention of the Law of Treaties at 50: Issues at the Vienna Codification Conference
  • Veronika Bílková, Worlds Apart? Interpretation of International Criminal Law and International Human Rights Law Treaties and the VCLT
  • Georg Nolte, Still Setting the Frame: The Vienna Convention’s Rules on Treaty Interpretation in the Light of the ILC Conclusions on Subsequent Agreements and Subsequent Practice
  • Gerhard Hafner, Provisional Application of Treaties
  • Christina Binder, The VCLT over the Last 50 Years: Developments in the Law of Treaties with a Special Focus on the VCLT’s Rules on Treaty Termination
  • Dire Tladi, The ILC’s Draft Conclusions on Peremptory Norms of General International Law: Personal Reflections of the Special Rapporteur
  • Hélène Ruiz Fabri, The Eternal Question of Ius Cogens Running Into Procedural Hurdles

Fontanelli: GATS the way / I like it: WTO Law, Review of EU Legality and Fundamental Rights

Filippo Fontanelli (Univ. of Edinburgh; LUISS) has posted an ESIL Reflection on GATS the way / I like it: WTO Law, Review of EU Legality and Fundamental Rights.

Chehtman: The Use of Force at the International Court of Justice

Alejandro Chehtman (Universidad Torcuato Di Tella - Law) has posted The Use of Force at the International Court of Justice (in The Cambridge Companion to the International Court of Justice, forthcoming). Here's the abstract:

This chapter presents a succinct overview of the main contributions of the International Court of Justice (ICJ) to the use of force. It centrally addresses the opinions on the Court on a number of key issues, such as the prohibition to use force and its potential exceptions, most notably the law on individual and collective self-defence. It further presents some descriptive statistics about how the Court has decided cases in this area, it seeks to identify the main conceptualizations, inconsistencies, disagreements, and limitations of the Court’s opinions, as well as their evolution. It ultimately argues that although the initial influence of the Court was substantial, it has faded significantly over the years as a result of what seems a conscious, even strategic decision of its judges.

Online Discussion: Analyzing Military Necessity

On June 14, 2021, the Institute for International Affairs of the University of Hamburg Faculty of Law will host the third of its "Hamburg Summer Talk Series in International Law." The topic is: "Analyzing Military Necessity." Details are here.

Graf: The Humanity of Universal Crime: Inclusion, Inequality, and Intervention in International Political Thought

Sinja Graf (National Univ. of Singapore - Political Science) has published The Humanity of Universal Crime: Inclusion, Inequality, and Intervention in International Political Thought (Oxford Univ. Pres 2021). Here's the abstract:

The international crime of "crimes against humanity" has become integral to contemporary political and legal discourse. However, the conceptual core of the term--an act against all of mankind--has a longer and deeper history in international political thought. In an original excavation of this history, The Humanity of Universal Crime examines theoretical mobilizations of the idea of universal crime in colonial and post-colonial contexts. Sinja Graf demonstrates the overlooked centrality of humanity and criminality to political liberalism's historical engagement with world politics, thereby breaking with the exhaustively studied status of individual rights in liberal thought. Graf argues that invocations of universal crime project humanity as a normatively integrated, yet minimally inclusive and hierarchically structured subject. Such visions of humanity have in turn underwritten justifications of foreign rule and outsider intervention based on claims to an injury universally suffered by all mankind.

Foregrounding the "political productivity" of universal crime, the book traces the intellectual history of the rise, fall, and reappearance of notions of universal crime in political theory over time. It looks particularly at the way European theorists have deployed the concept in assessing the legitimacy of colonial rule and foreign intervention in non-European societies. The book argues that an "inclusionary Eurocentrism" subtends the authorizing and coercive dimensions of universal crime. Unlike much-studied "exclusionary Eurocentrist" thinking, "inclusionary Eurocentrist" arguments have historically extended an unequal, repressive "recognition via liability" to non-European peoples. Overall the book offers a novel view of how claims to act in the name of humanity are deeply steeped in practices that reproduce structures of inequality at a global level, particularly across political empires.

New Issue: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre

The latest issue of the Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (Vol. 59, no. 1, 2021) is out. Contents include:

• Gunnar Carroll, Clearing the smoke: evaluating the United States policy toward white phosphorus munitions in urban contexts
• Gary Pattison, Soldier self-defence: the theoretical and legal bases for command-imposed restrictions
• Ezéchiel Amani Cirimwami & Pacifique Muhindo Magadju, Prosecuting rape as war crime in the Democratic Republic of the Congo: lessons and challenges learned from military tribunals
• Vanessa Sant’Anna Bonifacio Tavares, The Comprehensive Nuclear Test-Ban Treaty, a legal anomaly?
• Triantafyllos Kouloufakos, The prohibition of the threat or use of force in cyberspace: novel legal frontier or adaptation of old frameworks?
• Giacomo Biggio, International humanitarian law and the protection of the civilian population in cyberspace: towards a human dignity-oriented interpretation of the notion of cyber attack under Article 49 of Additional Protocol I

Call for Papers: Procès de masse face aux violences de masse?/Mass Trials for Mass Violence?

A call for papers has been issued for a conference on "Procès de masse face aux violences de masse? Qu’en est-il des « maxi-procès » 75 ans après Nuremberg ?/Mass Trials for Mass Violence? What about « maxi-trials » 75 years after Nuremberg?," jointly organised by the Université libre de Bruxelles's Centre de recherches en droit pénal and McGill University's Centre for Human Rights and Legal Pluralism for the 75th anniversary of the Nuremberg judgment, on October 4, 2021. The call is here.

New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 34, no. 2, June 2021) is out. Contents include:

• International Legal Theory
• Zhuo Liang,Chinese perspectives on the ad bellum/in bello relationship and a cultural critique of the ad bellum/in bello separation in international humanitarian law
• Salvatore Caserta, Western centrism, contemporary international law, and international courts
• International Law and Practice
• Richard Mackenzie-Gray Scott, Due diligence as a secondary rule of general international law
• Josef Ostřanský & Facundo Pérez Aznar, Investment treaties and national governance in India: Rearrangements, empowerment, and discipline
• Ulrike Will & Cornelia Manger-Nestler, Fairness, equity, and justice in the Paris Agreement: Terms and operationalization of differentiation
• Niels Petersen, The implicit taxonomy of the equality jurisprudence of the UN Human Rights Committee
• David McKeever, Revisiting Security Council action on terrorism: New threats; (a lot of) new law; same old problems?
• Snjólaug Árnadóttir, Fluctuating boundaries in a changing marine environment
• International Criminal Courts and Tribunals
• Nikola R. Hajdin, The actus reus of the crime of aggression
• International Court of Justice
• Priya Urs, Obligations erga omnes and the question of standing before the International Court of Justice

Ivanova: The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes

Elena Ivanova has published The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes (Nomos 2021). Here's the abstract:

The work examines the interaction between the dispute settlement mechanisms established under the UNCLOS and the WTO Agreement, while exploring the challenges that multifaceted disputes straddling different treaty regimes pose to international courts and tribunals of limited jurisdiction such as the WTO DSB and UNCLOS courts and tribunals. It addresses these challenges through the lens of the WTO treaty and the UNCLOS, while providing answers to the following questions: to what extent the mentioned specialized adjudicatory bodies can refer to other rules of international law, especially treaty rules, given their limited jurisdiction; what the implications of the pronouncements of the UNCLOS courts and tribunals are with respect to the WTO DSB and vice versa; how should they approach multifaceted disputes involving both WTO law and law of the sea issues; what rules govern their interaction. The work examines and systematizes the latter rules, while particularly focusing on res judicata. Concerning res judicata, it tackles the questions what the status and meaning of res judicata is and to what types of preclusive pleas it can give rise in international law; whether it can operate as an inter-systemic rule. The work proposes solutions in case a multifaceted dispute allegedly involving different treaties and different branches of international law is submitted for resolution before different dispute settlement fora of limited jurisdiction and in doing so it contributes to the discussion on international procedural law and interaction of treaties and dispute settlement mechanisms.

Call for Applications: Transitioning into the Profession of the Legal Scholar

Between October 2021 and February 2022, the Amsterdam Center for International Law will host a professional skills lab webinar series for early career scholars of international law on "Transitioning into the Profession of the Legal Scholar." The call for applications is here.

New Issue: Journal on the Use of Force and International Law

The latest issue of the Journal on the Use of Force and International Law (Vol. 8, no. 1, 2021) is out. Contents include:

• Special Issue: Military Assistance on Request (Part 3)
• Christian Henderson, Introduction
• Luca Ferro, The doctrine of ‘negative equality’ and the silent majority of states
• Christian Henderson, A countering of the asymmetrical interpretation of the doctrine of counter-intervention
• Michael J. Strauss, Foreign bases in host states as a form of invited military assistance: legal implications
• Articles
• Michael Byers, Still agreeing to disagree: international security and constructive ambiguity
• Rebecca Barber, A survey of the General Assembly's competence in matters of international peace and security: in law and practice

Call for Papers: Sustainable Diversity in International Arbitration

A call for papers has been issued for an online conference on "Sustainable Diversity in International Arbitration," to be held November 20, 2021. The conference will be hosted by the ecolonizing Arbitration Research Unit, Nagoya University. The call is here.

Lecture: Urrutia on "International law and the problems with high seas fishing - the future ahead"

On June 3, 2021, Osvaldo Urrutia (Universidad Católica de Valparaíso; Senior Legal Adviser on Fisheries and Ocean Affairs, Government of Chile) will deliver a lecture on "International law and the problems with high seas fishing - the future ahead" as part of the Essex Public International Law Lecture Series. Details are here.

New Issue: Legal Issues of Economic Integration

The latest issue of Legal Issues of Economic Integration (Vol. 48, no. 2, 2021) is out. Contents include:

• Geraldo Vidigal & Stephan W. Schill, International Economic Law and the Securitization of Policy Objectives: Risks of a Schmittean Exception
• Chieh Huang, China’s Take on National Security and Its Implications for the Evolution of International Economic Law
• Anna-Alexandra Marhold, Unpacking the Concept of ‘Energy Security’: Lessons from Recent WTO Case Law
• Iryna Bogdanova, Targeted Economic Sanctions and WTO Law: Examining the Adequacy of the National Security Exception
• Chieh Huang, Exempting and Justifying Covid-19 Related Export Restrictions Under WTO Law

Madsen: 'Unity in Diversity' Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

Mikael Madsen (Univ. of Copenhagen - Law) has posted 'Unity in Diversity' Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences (Law & Ethics of Human Rights, forthcoming). Here's the abstract:

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system and striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset if all judgments of the period, the article provides a structural analyses of developments in references to margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

Combs: The Impact of Separate Opinions on International Criminal Law

Nancy Combs (William & Mary Law School) has posted The Impact of Separate Opinions on International Criminal Law (Virginia Journal of International Law, forthcoming). Here's the abstract:

Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. Only a few articles consider international criminal law dissents, and these praise them for enhancing the legitimacy of the international criminal tribunals. This article, the first in a series, launches a comprehensive empirical treatment of international criminal law separate opinions. The foundation of this project is my careful review of every separate opinion in every Trial Chamber and Appeals Chamber judgment at the four, core international criminal tribunals. My fine-grained assessment of these nearly 300 separate opinions provides a solid basis for my normative conclusions, conclusions that call into question the claims of non-empirical legal scholarship on separate opinions. As the first component of a larger project, this article makes two substantial contributions: First, it lays the foundation for the remainder of the project by providing core information and statistics about international criminal law’s separate opinions. Second, the article inaugurates the project’s normative analyses by empirically assessing one of the most common claims made by proponents of separate opinions: that they help to develop the law. This article employs a variety of empirical methods to evaluate that claim, including citation counts and a painstaking content analysis of the separate opinions, among others. Each of these analyses suggests that international criminal law’s separate opinions, though numerous and voluminous, have not been an influential force in developing international criminal law.