Over the last several years, states parties of the International Criminal Court (ICC) have put increasing pressure on the court to become more efficient. Proceedings are seen as unduly slow, and judges have been urged to rein in the parties and expedite the process.
The emphasis on efficiency can advance important goals of the ICC. It can help ensure defendants’ right to a speedy trial, promote victims’ interests in closure, and allow the court to process more cases with limited resources. But as the experience of earlier international criminal tribunals shows, an unrelenting pursuit of efficiency could also interfere with other values of the criminal process, such as the protection of individual rights and the search for truth.
This book chapter examines how the sharper focus on expediting proceedings at the ICC has affected defense rights and interests. Have judges, in an effort to increase the court’s efficiency, limited defense opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have concerns about cost led the court to impose unwarranted restrictions on defense investigations? Have judges urged the defense to disclose its case early on or to settle any aspects of the case with the prosecution?
To begin an exploration of these questions, the chapter analyzes the findings of a survey of international criminal defense attorneys about their views of ICC procedures. While survey respondents expressed some concerns about procedural unfairness at the court, they did not believe that judges’ preoccupation with efficiency was the cause of the unfairness. Likewise, while they complained about insufficient financial and institutional support for defense work, respondents tended to place responsibility for these decisions on the Registry and States Parties, not on judges. Perhaps most surprisingly, respondents stated that certain judicial efforts to expedite proceedings—demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favor defense rights. Defense attorneys could therefore leverage the court’s emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.
Tuesday, March 28, 2017
Shany: A Human Rights Perspective to Global Battlefield Detention: Time to Reconsider Indefinite Detention
The article discusses one principal challenge to detention without trial of suspected international terrorists — the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One describes the “hardline” position on the security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the UK and Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the duration of the armed conflict in which the organizations they are affiliated with participate. Part Two describes judicial and quasi-judicial challenges to the “hardline” position, and Part Three addresses recent developments in IHRL relating to the co-application of IHL and IHRL and the extra-territoriality of certain IHRL norms, and specifically discusses developments relating to the application of IHRL norms governing security detentions. Part Four concludes by offering an IHRL-based perspective to security detention policy and, in particular, to aspects of the policy leading to de facto indefinite detention.
The 2017 Conference on Theory and International Law seeks to understand better the behaviour of those who shape international law - international and domestic judges, arbitrators, and state officials. Inspired by ground-breaking research that opens the "black box" of international decision-making, this Conference invites participants to theorise, experiment and speculate.
Some of the questions we will explore are: Do decision-makers behave rationally? Do they behave predictably?What factors may influence their decision-making? What are the roles of cognitive skills, intuition, and background, including education and political persuasion? What are the implications of these insights for choosing a method of dispute settlement for a particular case or designing a dispute settlement mechanism for future disputes? What are the implications for the conduct and procedures of international negotiations?
XXII Annual Conference of the
Italian Society of International Law and European Union Law
on ‘Migration and International Law: Beyond Emergency?’
Call for Papers
The Italian Society of International Law and European Union Law is issuing a Call for Papers for its XXII Annual Conference on ‘Migration and International Law: Beyond Emergency?’ that will be held at the University of Trento on 8-9 June 2017. The Conference consists of three plenary sessions and two rounds of parallel sessions, the latter being open to participation through this Call. The Call is addressed to both Italian and foreign scholars and welcomes submissions focussing on the public international law, private international law and EU law aspects of migration.
Contributions are particularly welcome in the following thematic areas:
Guidelines for submissions
- the main solutions elaborated by legal scholars as well as policymakers to deal with the phenomenon of migration;
- the role of international institutions (e.g., EU, WHO, ILO, IOM) and their agencies (e.g., Frontex, UNHCR) in managing migration;
- the responsibility of States (both origin and host States) and of international organisations in managing migration;
- the routes of migrants (both forced and voluntary ones) from the State of origin towards the host State, including in relation to the role of non-State actors;
- the condition of migrants in the Country of arrival;
- the relationships of migrants with those remaining in the Countries of origin as well as with the host society.
Abstracts are welcome of no more than 600 words to be submitted in PDF or WORD format to the following e-mail address: firstname.lastname@example.org. The deadline for submission is 15 April 2017. A short curriculum vitae (50-150 words approx.) should be attached to the abstract.
Italian, English and French will be the working languages for both drafting the paper and presenting at the Conference. In this regard, panellists are expected to speak no more than 20 minutes each. All applicants will be notified via e-mail by the end of April 2017 of the results of the selection process. Successful applicants should send the text of their speech by 31 May 2017.
While in principle travel and accommodation expenses will not be reimbursed to panellists, requests coming from young scholars will be considered.
The papers presented at the Conference will be collected in a volume, edited by the Conference organisers and published in the book series devoted to the proceedings of the Italian Society of International Law and European Union Law Annual Conferences. To this effect, contributors are expected to submit their final paper (6000-8000 words max.) by 31 July 2017. Editing criteria will be communicated to contributors together with the decision of acceptance to the Conference.
Monday, March 27, 2017
Kassoti: The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration
Over the last few years, the CJEU’s approach to international law has sparked a fierce debate in the literature. More recent case-law has challenged the narrative of the CJEU’s Völkerrechtsfreundlichkeit and it has called into question the EU’s carefully cultivated self-image as a global actor with an attitude of respect and fidelity to international law. The judgment of the General Court in Front Polisario (judgment of 10 December 2015, case T-512/12) is especially relevant since it involved a number of complex international law questions and thus, it provides important insights into how the CJEU treats international law in its practice, thereby feeding directly into the debate over the CJEU’s Völkerrechtsfreundlichkeit. The case-note argues that the Court’s approach to international law leaves much to be desired and sits uncomfortably with the traditional self-portrayal of the EU as an internationally engaged actor committed to the observance of international law, thereby confirming the view that, in its more recent case-law, the CJEU has abandoned the “international law friendly” tone of its earlier judgments. This Insight only takes into account the judgment of the General Court in the Front Polisario case, while the decision of the Court of Justice (judgment of 21 December 2016, case C-104/16 P, Council v. Front Polisario [GC]) will be the object of a subsequent Insight.
El presente artículo analiza el estado actual del derecho consuetudinario internacional en materia de protección ambiental. A través de un estudio pormenorizado de la jurisprudencia internacional pertinente, el artículo identifica una matriz consuetudinaria que consiste en la exigencia de diligencia debida en el marco del principio de prevención, y sus expresiones procedimentales, a saber la obligación de cooperación de buena fe, en particular por medio de la notificación y la consulta, y la exigencia de efectuar una evaluación previa de impacto ambiental. Pese a que la doctrina haya afirmado el carácter consuetudinario de una multitud de principios, solo los principios identificados en este artículo han recibido una consagración jurisprudencial indiscutible. Por ende, el artículo no efectúa una mera selección de ciertos principios sino que se concentra en aquellos principios cuya base consuetudinaria ha sido efectivamente reconocida. Se estudia luego el detalle de cada una de estas normas así como sus interacciones. El artículo concluye con una breve referencia a la frontera actual en materia de desarrollo consuetudinario, recalcando las dificultades que se desprenden de la aplicación secuencial de estas normas, la ausencia de individuación de un campo importante de deberes exigidos por la diligencia debida en el marco del principio de prevención, y la eventual consolidación por esta vía del principio precautorio y del principio de participación publica.
The article focuses on the current state of customary international law as regards environmental protection. Based on an analysis of the relevant case law, the article identifies a customary core consisting of the duty of due diligence as expressed through the prevention principle, and its procedural extensions through the obligation to cooperate in good faith, particularly by means of notification and consultation, and through the requirement to conduct a prior environmental impact assessment. Despite the fact that commentators have admitted the customary character of many other principles, the only principles effectively recognised in the case law as having an undisputed customary grounding are those addressed in this article. For this reason, the article does not merely select some principles but, rather, it focuses on those customary principles that have been effectively recognised as such. Subsequently, the article analyses each norm in detail as well as the interactions among them. It concludes with a brief reference to the current frontier of customary law in this area highlighting the difficulties arising from a sequential application of these norms, the need to further spell out the requirements of due diligence, and the potential consolidation through this avenue of the precautionary and public participation principles.
The purpose of this paper is to explore the legal dynamics of hybrid warfare. My central argument is that law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. This requires a clear understanding of the legal dynamics of hybrid threats, awareness of legal vulnerabilities and taking steps to strengthen legal preparedness, deterrence and defense. At the same time, the instrumentalization of law poses profound challenges to the post-Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.
Kleinlein: International Legal Thought: Creation of a Tradition and the Potential of Disciplinary Self-Reflection
This contribution reflects on the role of tradition-building in international law, the implications of the recent ‘turn to history’ and the ‘presentisms’ discernible in the history of international legal thought. It first analyses how international legal thought created its own tradition in the 19th and 20th centuries. These projects of establishing a tradition implied a considerable amount of what historians would reject as ‘presentism’. Remarkably, critical scholars of our day and age who unsettled celebratory histories of international law and unveiled ‘colonial origins’ of international law, were also criticized for committing the ‘sin of anachronism’. The contribution therefore examines the basis of this critique and defends ‘presentism’ in international legal thought. However, the ‘paradox of instrumentalism’ remains that the ‘better’ historical analysis becomes, the more it loses its critical potential for current international law. At best, the turn to history activates a potential of disciplinary self-reflection.
Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.
Sunday, March 26, 2017
The post-9/11 environment, in which states may use self-defense as an ongoing and overarching justification and construct for military operations, whether episodic or sustained in nature, against one or more non-state groups for more than fifteen years, poses challenges to the very concept of self-defense. In particular, the ongoing reliance on self-defense in locations and against groups not contemplated at the time of the initial incident triggering the right to self-defense raises essential questions about the extent of self-defense: how far can a state go when acting in self-defense — both in the geographical sense and in the sense of the legitimate aims of using force — and for how long does this right of self-defense last? In this era of extended campaigns against transnational terrorist groups, examination of such questions is essential to an understanding of self-defense and, therefore, an effective assessment of the legality of state action against such groups.
This article explores the extent of self-defense, particularly in the context of a state using force in self-defense against one or more terrorist groups located in one or multiple locations outside the boundaries of the State. After brief foundational background, the article examines how differing conceptions of the legitimate aims of self-defense affect the extent of self-defense and addresses the consequences of an armed conflict paradigm for the parameters of self-defense. Finally, the article raises questions that naturally follow from a state's initial success in countering a terrorist group with armed force and pose new challenges for the self-defense analysis. For example, as a state's military operations damage a group's ability to operate, it will seek new bases from which to operate in different states or regions and it may splinter into multiple groups or reconstitute itself as one or more new groups. Along with the appearance of new groups inspired by or declaring allegiance to the original terrorist group, these developments require further analysis of whether the nature and extent of self-defense changes, and how, in light of the dynamic operational environment for counterterrorism.
- Patrick Dumberry, Shopping for a better deal: the use of MFN clauses to get ‘better’ fair and equitable treatment protection
- V.K. Rajah, W(h)ither adversarial commercial dispute resolution?
- Bernardo Sepúlveda-Amor & Merryl Lawry-White, State responsibility and the enforcement of arbitral awards
- Philip Chong & Blake Primrose, Summary judgment in international arbitrations seated in England
- Recent Developments
- John Gaffney, Should the European Union regulate commercial arbitration?
- Lucy Greenwood, Tipping the balance – diversity and inclusion in international arbitration
- Gary J. Shaw, Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit
- Fan Yang, The proper law of the arbitration agreement: Mainland Chinese and English law compared
- Case Notes
- Blake Primrose, Separability and stage one of the Sulamérica inquiry
- Francisco González de Cossío, Mexico’s fantastic three: a pro-arbitration trilogy
- Kwadwo Sarkodie & Joseph Otoo, Getma v Republic of Guinea—implications for African arbitration
Saturday, March 25, 2017
- Volume 381
- Erik Jayme, Les langues et le droit international privé
- George Bermann, Arbitration and Private International Law
Friday, March 24, 2017
Cardinal & Mégret: The Other 'Other': Moors, International Law and the Origin of the Colonial Matrix
Historiographies of international law highlight as the beginning of this “inter-national” set of binding rules the Reformation and the way it tore at the very fabric of Christian unity by exposing seemingly incommensurable (while hermeneutically similar) world views. Others go further and point to the Renaissance and the early modern periods as at least containing the seeds of an international legal order in the making. In particular the beginning of international law is located in the writings of the Spanish post-scholastics of the Salamanca school, essentially Dominicans and Jesuits reflecting on Aquinas’ rendition of natural law. The “Other” of International Law, therefore, is conceived as being the Indian of the Americas, one whose encounter powerfully contributed to the shaping of an international system becoming aware of his radical difference.
Still, international law’s debt to its encounter with its Muslim Other, despite its evident linkages to early modernity, remains curiously absent from the discipline’s historiography. At no point are the “Re-”Conquista and medieval Europe’s continued dealings with Muslims in its midst and on its frontiers mentioned, as if the “discovery” alone marked a fundamental break in the normative interactions between people. Why is this initial and even foundational hinging moment neglected? What does it say about the writing of the history of international law? That it is conspicuously not a history of the relation of Europe with its Islamic other, perhaps even a tentative erasure of that relation?
This essay seeks to challenge the accepted historiography of the discipline, with specific regard to Europe’s relations with the people of Islam, and those they perceived as the people of Islam. The general guiding thread of the argument is that international law, at its inception, was a discourse that enforced a structure of power for the justification of conquest and control of Europe’s normatively divergent “Other.” Conceptually, we propose to use Peruvian Philosopher Anibal Quijano’s theorization of the “matrix of coloniality” as a reifying structure of power, and thus of the inherent relationship between the project of modernity and the domination of the Other. We claim that the structure of the “matrix of coloniality” arguably emerged long before the “Re-”Conquista, while that event significantly helped shape its unfolding and arguably paved the way for the other conquista, that of the Americas.
- Al-Dulimi and Montana Management Inc. v. Switzerland (Eur. Ct. H.R.), with introductory note by Stefan Kadelbach
- Bédat V. Switzerland (Eur. Ct. H.R.), with introductory note by Dimitrios Kagiaros
- Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, with introductory note by Alexis J. Ortiz
- United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), with introductory note by Kasey McCall-Smith
- United Nations Security Council Resolution 2298, with introductory note by David P. Fidler
The history and theory of international law have been transformed in recent years by post-colonial and post-imperial critiques of the universalistic claims of Western international law. The origins of those critiques lie in the often overlooked work of the remarkable Polish-British lawyer-historian C.H. Alexandrowicz (1902-75). This volume collects Alexandrowicz's shorter historical writings, on subjects from the law of nations in pre-colonial India to the New International Economic Order of the 1970s, and presents them as a challenging portrait of early modern and modern world history seen through the lens of the law of nations.
The book includes the first complete bibliography of Alexandrowicz's writings and the first biographical and critical introduction to his life and works. It reveals the formative influence of his Polish roots and early work on canon law for his later scholarship undertaken in Madras (1951-61) and Sydney (1961-67) and the development of his thought regarding sovereignty, statehood, self-determination, and legal personality, among many other topics still of urgent interest to international lawyers, political theorists, and global historians.
Thursday, March 23, 2017
McCrudden: CEDAW in National Courts: A Case Study in Operationalizing Comparative International Law Analysis in a Human Rights Context
In an article published in the American Journal of International Law (AJIL), I tackled the difficult question of how to explain the pattern of domestic judicial use of the Convention on the Elimination of Discrimination Against Women that I had identified, and I suggested explanations for this pattern. My tentative conclusion was that what similarities and differences were observable resulted, at least in part, from the functions that international human rights law fulfills in domestic jurisdictions, and that these functions may differ from the role that international human rights law plays at the international level. It was suggested that the observable pattern of references to CEDAW in national level courts results, to a significant degree, from the combination of the four elements involved in comparative international human rights law: that it is international law; and that it concerns human rights; and that it is law; and that it is being applied domestically. In this article, I referred to both the methodology I used, and the findings of the study on which this analysis was based, in summary form, promising a fuller account in this book. This chapter seeks to fulfil the promise in my AJIL article to explain my methodology and my basic findings in more detail. The chapter is structured as follows. Part II presents a brief outline of CEDAW in order to locate what follows. Part III provides a detailed analysis of the methodology I adopted in undertaking the study, including a discussion of the sources I used in compiling a detailed dataset of judicial opinions and how I formulated the questions used to analyze this dataset. Part IV presents the basic findings that resulted from this analysis. Part V concludes. There are, in addition, two appendices. Appendix A sets out the electronic and other databases and datasets from which my dataset of domestic cases citing CEDAW was drawn. Appendix B provides citations for each of the cases in the dataset, by jurisdiction.
Schill: Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law
This paper discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional and multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It addresses, first, the importance of bilateral treaties in international investment law (IIL) and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime of IIL. Second, the paper turns to the preeminent importance arbitral decisions assume in determining and developing the content of IIL. Third, the paper addresses the increasing influence of comparative law in IIL and its impact on its understanding of sources. Fourth, the paper discusses how soft law instruments influence IIL, even though they are not binding law. It argues that the particular ‘sources-mix’ in IIL is chiefly a product of the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of the field.
Reydams: Politics or Pragmatism? The ICTR and the Burying of the Investigation into the Assassination of President Juvénal Habyarimana
A persistent rumor about the International Criminal Tribunal for Rwanda (ICTR) is that ‘politics’ played a role in the decision in 1997 of then Chief Prosecutor Louise Arbour to end the investigation into the assassination of Rwandan President Juvénal Habyarimana. The article examines whether there is any truth to this rumor and, alternatively, whether more mundane reasons may explain the burying of the investigation. On the basis of interviews and email correspondence with the persons who might have pressured Arbour and with the former Chief-Prosecutor herself, the article concludes that there is no evidence that the US Government or the UN Secretariat intervened. Arbour’s decision seems to have been based on an assessment of the concrete conditions at the time. These were such that any responsible Prosecutor would have concluded that pursuing the investigation would be futile and dangerous. Because the truth about the assassination remains unknown, the article ends by suggesting a way to finish the ICTR’s unfinished business.
Wednesday, March 22, 2017
Gurmendi Dunkelberg: There and Back Again: The Inter-American Human Rights System's Approach to International Humanitarian Law
The Inter-American Court of Human Rights is constantly deciding cases that relate to the conduct of States in times of armed conflict. However, while a trailblazer in the field of human rights, the Court’s record with regard to the advancement of international humanitarian law is less stellar. In this article I will offer an explanation for this disconnect between the Inter-American System and international humanitarian law. Through the analysis of the court’s humanitarian law case-law, I argue that the Inter-American Court has gone through a long process of adaptation to international humanitarian law, starting with promising beginnings in the late-nineties at the Inter-American Commission, continuing through a philosophical shift in the early 2000s that drove the Inter-American Court away from direct application of humanitarian law, and ultimately returning to humanitarian law-friendly causeways in the 2010s. I also point to the risks entailed by a human rights system not well connected to humanitarian law and the reasons why I believe the Court’s disassociation with international humanitarian law seems to be slowly but steadily tending towards a positive evolution.
- Thomas Lundmark & Helen Waller, Using statutes and cases in common and civil law
- Machiko Kanetake, The dual vulnerability of transnational, science-based standards in the national legal order
- Alexis Galán & Stephanie Law, The emergence of European private law and the plurality of authority
- Christoph B. Graber, Bottom-up constitutionalism: the case of net neutrality
- Chaewoon Oh & Shunji Matsuoka, The genesis and end of institutional fragmentation in global governance on climate change from a constructivist perspective
- R. Guarino, F. Cutaia, A. L. Giacopelli, P. Menegoni, F. Pelagallo, C. Trotta, & G. Trombino, Disintegration of Italian rural landscapes to international environmental agreements
- Rishikesh Ram Bhandary, Coalition strategies in the climate negotiations: an analysis of mountain-related coalitions
- Magdalena Kuchler, Stakeholding as sorting of actors into categories: implications for civil society participation in the CDM
- Linda Wallbott & Andrea Schapper, Negotiating by own standards? The use and validity of human rights norms in UN climate negotiations
- Jennifer S. Bansard, Philipp H. Pattberg, & Oscar Widerberg, Cities to the rescue? Assessing the performance of transnational municipal networks in global climate governance
- Katharina Michaelowa & Axel Michaelowa, The growing influence of the UNFCCC Secretariat on the clean development mechanism
- Mark Zeitoun, Ana Elisa Cascão, Jeroen Warner, Naho Mirumachi, Nathanial Matthews, Filippo Menga, & Rebecca Farnum, Transboundary water interaction III: contest and compliance
- Alexandros Kailis, The influential role of consensual knowledge in international environmental agreements: negotiating the implementing measures of the Mediterranean Land-Based Sources Protocol (1980)
- Djemila Carron, Transnational Armed Conflicts
- Astrid Kjeldgaard-Pedersen, A Ghost in the Ivory Tower: Positivism and International Legal Regulation of Armed Opposition Groups
- Andres B. Munoz Mosquera & Sascha Dov Bachmann, Lawfare in Hybrid Wars: The 21st Century Warfare
- Tamar Meshel, A Decade Later and Still on Target: Revisiting the 2006 Israeli Targeted Killing Decision
- Camille Marquis Bissonnette, The Definition of Civilians in Non-International Armed Conflicts
- Alon Margalit, Recent Trends in the Application of Human Rights and Humanitarian Law
- Sam Pack, Targeting Child Soldiers: Striking a Balance between Humanity and Military Necessity