In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines.
We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field.
We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.
Sunday, July 21, 2019
The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises are expanding in scope and the legislative protections to which they are entitled are contracting. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals, but to deny categorically such protections to foreign states.
A careful analysis of Article III and of the Fifth Amendment shows that the conventional wisdom and lower court cases are wrong. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, the purpose of which was to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” also presupposes both personal jurisdiction (over any kind of defendant) and other process-based limitations. The Fifth Amendment overlaps with Article III in important ways. It also protects foreign states. They are “persons” due the same constitutional “process” to which other defendants are entitled. Modern scholars have struggled to see the connection between due process and personal jurisdiction. The cases involving the immunity of foreign states makes the connection clear for all defendants. “Process” only reached defendants within sovereign power, or jurisdiction, of the issuing court.
Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of the Constitution, with significant implications for several additional areas of modern doctrine. The analysis of separation of powers and due process also lays the groundwork for determining whether foreign states have additional constitutional rights.
Saturday, July 20, 2019
- Tom Obokata, Combating Transnational Organised Crime through International Human Rights Law
- G. Anthony Giannoumis & Michael Ashley Stein, Conceptualizing Universal Design for the Information Society through a Universal Human Rights Lens
- Majid Nikouei & Masoud Zamani, Jurisprudence of Tolerance: Hate Speech, Article 17 and Theory of Democracy in the European Convention on Human Rights
- Maria Augusta León Moreta, Analysing Benefit Sharing Scheme as Compensation for Damages Caused by Resource Extraction in Indigenous Territory
- Aniel Caro de Beer & Dire Tladi, The Use of Force against Syria in Response to Alleged Use of Chemical Weapons by Syria: A Return to Humanitarian Intervention?
- Laura Hering, Beamtenstreik zwischen Karlsruhe und Straßburg: Art. 11 EMRK und die konventionskonforme Auslegung durch das BVerfG
- Gerd Winter & Koba Kalichava, Rechtstransfer und Eigendynamik in Transformationsländern: Das Beispiel der Verwaltungsrechtsentwicklung in Georgien
- Stellungnahmen und Berichte
Matthias Hartwig, Bericht zur völkerrechtlichen Praxis der Bundesrepublik Deutschland im Jahr 2017
Eksteen: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs
This book deals with what the author considers a sorely neglected question, namely the role of the judiciary in states’ foreign policy processes. Eksteen argues that the impact of the judiciary on foreign affairs is understudied and that recognition of its role in foreign affairs is now due. This makes it a ground-breaking scholarly contribution that should first of all prove of value to students, scholars, researchers and practitioners in the two broad fields of politics and law for the wide scope of issues it covers and the very comprehensive reference lists it contains. Secondly, professionals working within politics, including members of the legislatures of the United States, the European Union and South Africa, as well as members of the judiciaries there, should find this book of benefit. A detailed examination has been undertaken of the role of the United States Supreme Court, the two high courts in South Africa, namely the Constitutional Court and the Supreme Court of Appeal, and the European Court of Justice of the European Union, in foreign affairs. The author substantiates the unmistakable fact that these Courts have become involved in and influence foreign affairs. Furthermore, that they have not shied away from using their judicial authority when dealing with cases touching on foreign affairs and especially presidential overreach. The lack of recognition of the judiciary’s role in foreign affairs is still noticeable in Foreign Policy Analysis (FPA) literature. This book concludes that FPA has to accept and give proper recognition to the judiciary and its increasing relevance in foreign affairs.
Investment arbitration is increasingly making the headlines because of both its potential to overly restrict the policy space of states and its significant costs for parties. Against this background of negative side-effects, it is worth asking whether it is used predominantly in situations that at least appear legitimate. We focus on the hypothesis that investment arbitration is used as a response to the effects of two types of shocks on investors – shocks caused by severely dysfunctional governance at the national level and shocks caused by economic crisis. Whereas investment arbitration could gain legitimacy if used to redress or mitigate severe governance deficiencies, its use in the context of economic crisis could be viewed as putting the countries’ economy in double jeopardy. Investment arbitration would further hurt countries already in great difficulty and would thus be used in a situation that does not appear plainly legitimate. We test links between governance, economic crises and investment arbitration using an original dataset that includes investment claims filed under the rules of all arbitration institutions as well as ad hoc arbitrations. We find that bad governance, understood as corruption and lack of rule of law (using the WGI Corruption and WGI Rule of Law indexes), has a statistically significant relation with investment arbitration claims, but economic crises do not when considered separately. Yet, bad governance and economic crises considered together are a good predictor of when countries get hit by investment arbitration claims.
Call for Submissions: The Interaction Between International Investment Law and Special Economic Zones (SEZs)
- Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel, & Josephine van Zeben, Transnational Environmental Law across the Spectrum of Development
- Nada Ali, Reilly Dempsey Willis, Asim El Moghraby, & Mohammaed Jalal Hashim, Norms, Mobilization and Conflict: The Merowe Dam as a Case Study
- Mohsen Nagheeby, Mehdi Piri D., & Michael Faure, The Legitimacy of Dam Development in International Watercourses: A Case Study of the Harirud River Basin
- Ana Mercedes López-Rodríguez, The Sun Behind the Clouds? Enforcement of Renewable Energy Awards in the EU
- Timiebi Aganaba-Jeanty & Anna Huggins, Satellite Measurement of GHG Emissions: Prospects for Enhancing Transparency and Answerability under International Law
- Qi Gao & Sean Whittaker, Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation in China?
- Yue Zhao, Shuang Lyu, & Zhu Wang, Prospects for Climate Change Litigation in China
Friday, July 19, 2019
- Andrea L. Everett, Humanitarian Military Action in the 21st Century: Three Trends Shaping the Contemporary Landscape
- Eglantine Staunton, Iraq (1991, 2003 and 2014), Normative Debates on Human Protection, and the Role Played by France
- Pınar Gözen Ercan, UN General Assembly Dialogues on the Responsibility to Protect and the Use of Force for Humanitarian Purposes
- Alex J. Bellamy & Stephen McLoughlin, Human Protection and the Politics of Armed Intervention: With Responsibility Comes Accountability
- Mustafa Kirisci & J. Michael Greig, Reputation, Pressure and Concession-making in Claim Disputes
- Su-Mi Lee, The Philippines’ 1963 Mediation in the Borneo Confrontation
- Annie Herro, The Pre-negotiation of UN Human Rights Treaties: The Case of the Convention on the Rights of Persons with Disabilities
- Eric Keels, The Importance of Being Earnest (in Mediation): Rebel Group Structure, Leadership Turnover, and Success in Civil War Mediation
- Allard Duursma& Isak Svensson, Introducing an Agenda-based Measurement of Mediation Success: The Divergent Effects of the Manipulation Strategy in African Civil Wars
- Owen Darbishire, Preparing for Brexit: Substance, Politics and Readiness in an International Re-negotiation
- From the Board: ‘The Paradox of Proliferation and Contestation of Economic Integration’
- Geraldo Vidigal, WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed – Something Blue?
- Arnoud Willems & Maryanne Kamau, Of Binding Provisions and Trust Marks; Roadmap to a Global Legal Framework for the Digital Economy
- Yilly Vanessa Pacheco Restrepo, Enforcement Practice Under Preferential Trade Agreements: Environmental Consultations and Submissions on Environmental Enforcement Matters in the US-Peru TPA
- Marijn Van Der Sluis, Similar, Therefore Different: Judicial Review of Another Unconventional Monetary Policy in Weiss (C-493/17)
- Vicktoria Elazarova, Swedish Match 2018: Can the Court Actually Advise or Make the Commission Consider the Evidence?
The chapters in this book are reworkings of presentations given during a conference held in 2018 at the German Embassy to the Netherlands in The Hague on the occasion of the 20th anniversary of the adoption of the Rome Statute. They provide an in-depth analysis of major points of contention the International Criminal Court (ICC) is currently facing, such as, inter alia, head of state immunities, withdrawal from the Rome Statute, the exercise of jurisdiction vis-à-vis third-party nationals, the activation of the Court’s jurisdiction regarding the crime of aggression, as well as the relationship of the Court with both the Security Council and the African Union, all of which are issues that have a continued relevance and carry a particular controversy.
Thursday, July 18, 2019
- Special Issue: Revisiting State Socialist Approaches to International Criminal and Humanitarian Law
- Raluca Grosescu & Ned Richardson-Little, Revisiting State Socialist Approaches to International Criminal and Humanitarian Law: An Introduction
- Giovanni Mantilla, The Protagonism of the USSR and Socialist States in the Revision of International Humanitarian Law
- Sonja Dolinsek & Philippa Hetherington, Socialist Internationalism and Decolonizing Moralities in the UN Anti-Trafficking Regime, 1947–1954
- Raluca Grosescu, State Socialist Endeavours for the Non-Applicability of Statutory Limitations to International Crimes: Historical Roots and Current Implications
- Ned Richardson-Little, The Drug War in a Land Without Drugs: East Germany and the Socialist Embrace of International Narcotics Law
- Tamás Hoffmann, Crimes against the People – a Sui Generis Socialist International Crime?
- Karen Kong, Human rights activist scholars and social change in Hong Kong: reflections on the Umbrella Movement and beyond
- Hao Duy Phan, Promotional versus protective design: the case of the Asean intergovernmental commission on human rights
- Manuel Góngora-Mera, The ethnic chapter of the 2016 Colombian peace agreement and the afro-descendants’ right to prior consultation: a story of unfulfilled promises
- Eric Freedman, Returning to the mission? Journalists after jail
- Julie Fraser, Challenging State-centricity and legalism: promoting the role of social institutions in the domestic implementation of international human rights law
- Phuong N. Pham, Niamh Gibbons & Patrick Vinck, A framework for assessing political will in transitional justice contexts
- Isabella Moore, Indignity in unwanted pregnancy: denial of abortion as cruel, inhuman and degrading treatment
- Jeffrey S. Bachman & Jack Holland, Lethal sterility: innovative dehumanisation in legal justifications of Obama’s drone policy
- Ergun Cakal, Political Violence and Its Discontents: A Critique of Refugee Status as Purely Civilian and Humanitarian
- Smadar Ben-Natan, Revise Your Syllabi: Israeli Supreme Court Upholds Authorization for Torture and Ill-Treatment
- Dale Stephens, Roots of Restraint in War: The Capacities and Limits of Law and the Critical Role of Social Agency in Ameliorating Violence in Armed Conflict
- Hin-Yan Liu, Léonard Van Rompaey & Matthijs M Maas, Editorial Beyond Killer Robots: Networked Artificial Intelligence Systems Disrupting the Battlefield?
- Hin-Yan Liu, From the Autonomy Framework towards Networks and Systems Approaches for ‘Autonomous’ Weapons Systems
- Léonard Van Rompaey, Shifting from Autonomous Weapons to Military Networks
- Matthijs M Maas, Innovation-Proof Global Governance for Military Artificial Intelligence? How I Learned to Stop Worrying, and Love the Bot
- Valentin Jeutner, The Digital Geneva Convention: A Critical Appraisal of Microsoft’s Proposal
- Nathan Edward Clark, Blurred Lines: Multi-Use Dynamics for Satellite Remote Sensing
- Gary Schaub Jr., Controlling the Autonomous Warrior: Institutional and Agent-Based Approaches to Future Air Power
Wednesday, July 17, 2019
Is international law equipped to tackle the challenges posed by the dramatic increase in disasters? In Disaster Management and International Space Law Diego Zannoni attempts to answer this crucial question through an analysis of the main legal issues involved, addressing both prevention and relief, with a special focus on major space applications such as remote sensing and telecommunications, and the attendant specific legal regimes.
It is argued that, when lives of human beings are in danger, territorial sovereignty becomes, to a certain extent, porous and bends in front of the value of human life and the urgent need to rescue. On the other hand, specific obligations were identified to cooperate in the prevention and management of disasters, particularly in terms of data sharing.
- Bartosz Soloch, CJEU Judgment in Case C-284/16 Achmea: Single Decision and Its Multi-Faceted Fallout
- Steven William Kayuni & Mtendere Mute Gondwe, Gouverner C’est Prévoir – Trappings of Value Distribution: a Prolegomenon to the African Union’s Hissène Habré Trust Fund for Victims
- Judith Levine, Ethical Dimensions of Arbitrator Resignations: General Duties, Specific Quandaries, and Sanctions for Suspect Withdrawals
- Arman Sarvarian, Procedural Economy at the International Court of Justice
- Fernando Lusa Bordin, Procedural Developments at the International Court of Justice
- Nina H.B. Jørgensen, The (Unequal) Relationship between Hong Kong’s Waters and China’s Baselines
- Jo Inge Bekkevold, Coast Guard Cooperation in the South China Sea: A Confidence-Building Measure?
- Jae-Gon Lee, International Regulations of Greenhouse Gas Emissions from International Shipping: Issues and Possible Responses
- Xinmin Ma, China and the UNCLOS: Practices and Policies
- Dimitris Liakopoulos, Evolutionary, Dynamic or Contemporary Interpretation in WTO System?
- Juan Pablo Bohoslavsky, A Human Rights Focus to Upgrade China’s International Lending
- Min Jung Chung, Analysis of the Territorial Issue regarding the Liancourt Rocks between Korea and Japan
- Ji-Young Lee & Jaehyun Lee, Everyday Politics of “Dokdo” and South Korean National Identity: An Analysis of Education, Media, and Civil Society
- Seokwoo Lee & Seryon Lee, Decision of the Korean Court on Japanese Forced Labor re New Nippon Steel Corporation (Supreme Court, Case 2013 Da 61381, Final Judgment)
- Paul Bradfield, Preserving Vulnerable Evidence at the International Criminal Court – the Article 56 Milestone in Ongwen
- Benedict Abrahamson Chigara, Towards a nemo judex in parte sua Critique of the International Criminal Court?
- Annika Jones, A Quiet Transformation? Efficiency Building in the “Fall” of International Criminal Justice
- Renée Nicole Souris, Virtue Ethics, Criminal Responsibility, and Dominic Ongwen
- Owiso Owiso, The International Criminal Court and Reparations: Judicial Innovation or Judicialisation of a Political Process?
- Philipp Kastner, Teaching International Criminal Law from a Contextual Perspective
- Peter Quayle & Xuan Gao, Introduction: International Organizations and the Promotion of Effective Dispute Resolution
- International Arbitration’s Effectiveness and Affinity with Multilateral Institutions
- Cavinder Bull, An Effective Platform for International Arbitration: Raising the Standards in Speed, Costs and Enforceability
- Jacomijn van Haersolte-van Hof & Romilly Holland, What makes for Effective Arbitration? A Case Study of the London Court of International Arbitration Rules
- Matthew Gearing & Joe Liu, The Contributions of the Hong Kong International Arbitration Centre to Effective International Dispute Resolution
- Jingzhou Tao & Mariana Zhong, Resolving Disputes in China: New and Sometimes Unpredictable Developments
- International Organizations as Proponents of the Norms of Dispute Resolution
- Hugo Siblesz, The Role of International Organizations in Fostering Legitimacy in Dispute Resolution
- Locknie Hsu, The Role of International Organizations in Promoting Effective Dispute Resolution in the 21st Century
- The Dispute Resolution Mandates of International Organizations
- Wenwen Liang, The World Bank and the Creation of the International Center for Settlement of Investment Disputes: Legality and Legitimacy
- Malik R. Dahlan, Dispute Regulation in the Institutional Development of the Asian Infrastructure Investment Bank: Establishing the Normative Legal Implications of the Belt and Road Initiative
- Asif H. Qureshi, The World Trade Organization and the Promotion of Effective Dispute Resolution: In Times of a Trade War
- The Role of Dispute Resolution and Economic Development
- Ramit Nagpal & Christina Pak, Development Financing of Dispute Resolution Reform Projects: The Evolving Approach of the Asian Development Bank
- Andreas Baumgartner, Commercial Dispute Resolution: Unlocking Economic Potential Through Lighthouse Projects
- Marie-Anne Birken & Kim O’Sullivan, The Evolution of Mediation in Central Asia: The Perspective of the European Bank for Reconstruction and Development
- 2018 AIIB Law Lecture and Legal Conference
- Georg Nolte, 2018 AIIB Law Lecture: International Organizations in the Recent Work of the International Law Commission
- Ranjini Ramakrishnan, 2018 AIIB Legal Conference Report
- John W. Holmes Memorial Lecture
- Lorraine Elliott, “We the Peoples” Reclaiming an Ethic of Solidarity
- The Global Forum
- Abiodun Williams, The Legacy of Kofi Annan
- Edward Mortimer, Kofi Annan’s Public Diplomacy
- Gillian Sorensen, Secretary-General Kofi Annan
- Jean Krasno, The Origins of Kofi Annan’s Leadership: Family, Culture, and Historical Roots in Ghana
- Eugenia C. Heldt & Henning Schmidtke, Global Democracy in Decline? How Rising Authoritarianism Limits Democratic Control over International Institutions
- Troels Gauslå Engell & Katja Lindskov Jacobsen, Unintended Consequences of the Primacy of Politics in UN Peace Operations
- Ann Louise Lie, Power in Global Nutrition Governance: A Critical Analysis of the Establishment of the Scaling Up Nutrition (SUN) Partnership
- Danita Catherine Burke, Club Diplomacy in the Arctic
- Miriam Cullen, Questioning the Criminal Justice Imperative: UN Security Council Procedure and the Downside of Chapter VII Decision Making for the Adjudication of International Crimes