- Rossana Deplano, Introduction
- Marija Đorđeska, General Principles of Law Recognized by Civilized Nations: Method, Inductive-Empirical Analysis and (More) ‘Scientific’ Results
- Sarina Landefeld, The Evolution of Norms and Concepts in International Law: A Social Constructivist Approach
- Josef Ostřanský, A Case for Ethnography of International Investment Law
- Alice Margaria, Going beyond judgements: Exploring the Jurisprudence of the European Court of Human Rights
- Elizabeth A. Faulkner, The development of child trafficking within international law: a socio-legal and archival analysis
- Giulia Gentile & Luigi Lonardo, Appeals in the field of EU sanctions before the European Court of Justice after Lisbon: A quantitative study
- Gabriel M. Lentner, The Perils of Quantitative Research in International Law
- Huaxia Lai, The Unfulfilled Promises of the Data-Driven Approach to International Economic Law
- Rossana Deplano, Conclusions
Wednesday, January 22, 2020
Deplano: Pluralising International Legal Scholarship: The Promise and Perils of Non-Doctrinal Research Methods
Attribution in International Law and Arbitration clarifies and critically discusses the international rules of attribution of conduct, particularly regarding their application to states under international investment law.
It examines the key question of how and to what extent breaches of State obligations, particularly in respect of States' commitments to foreign investors under international investment agreements (IIAs) and bilateral investment treaties (BITs), can be attributed.
Of special interest within this context is the responsibility of States when the alleged breach has been committed by separate legal entities, rather than the state itself. Under domestic law, entities such as state-owned enterprises (SOEs) are considered legally distinct, however the State may still be considered responsible for their actions under international law.
The book addresses the relevant issues systematically, beginning with direct reference to the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International law Commission (ILC) in 2001. It then elaborates on the specifics of international investment law, based on a detailed examination of practice and case law, whilst giving due consideration to the academic debate. The result is a full, innovative take on one of the most difficult questions in investment arbitration.
Tuesday, January 21, 2020
- Cosette D. Creamer & Beth A. Simmons, The Proof Is in the Process: Self-Reporting Under International Human Rights Treaties
- Cecily Rose, The Creation of a Review Mechanism for the UN Convention Against Transnational Organized Crime and Its Protocols
- Current Developments
- Sean D. Murphy, Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission
- Editorial Comment
- Richard B. Bilder, On the Search for Extraterrestrial Intelligence (SETI)
- International Decisions
- Tania Voon, Russia—Measures Concerning Traffic in Transit
- Angela Mudukuti, Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal
- Tara Van Ho, Vedanta Resources Plc and Another v. Lungowe and Others
- Cameron Miles, The MV “Norstar” Case (Panama v. Italy)
- Contemporary Practice of the United States Relating to International Law
- Jean Galbraith, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- Cesare P.R. Romano, Legitimacy, Authority, and Performance: Contemporary Anxieties of International Courts and Tribunals
- Chiara Giorgetti, reviewing Comparative International Law, edited by Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg
- Rita Guerreiro Teixeira & Jan Wouters, reviewing Research Handbook on the Theory and Practice of International Lawmaking, edited by Catherine Brölmann and Yannick Radi
- Charlotte Ku, reviewing The Changing Practices of International Law, edited by Tanja Aalberts and Thomas Gammeltoft-Hansen
- Andrea Harrison, reviewing Underground Warfare, by Daphné Richemond-Barak
Monday, January 20, 2020
- Unpacking the Strategic Dynamics of the Indo-Pacific
- Kai He & Mingjiang Li, Understanding the dynamics of the Indo-Pacific: US–China strategic competition, regional actors, and beyond
- Feng Liu, The recalibration of Chinese assertiveness: China's responses to the Indo-Pacific challenge
- Xue Gong, Non-traditional security cooperation between China and south-east Asia: implications for Indo-Pacific geopolitics
- Kei Koga, Japan's ‘Indo-Pacific’ question: countering China or shaping a new regional order?
- Rajesh Rajagopalan, Evasive balancing: India's unviable Indo-Pacific strategy
- Brendan Taylor, Is Australia's Indo-Pacific strategy an illusion?
- Dewi Fortuna Anwar, Indonesia and the ASEAN outlook on the Indo-Pacific
- See Seng Tan, Consigned to hedge: south-east Asia and America's ‘free and open Indo-Pacific’ strategy
- Kai He & Huiyun Feng, The institutionalization of the Indo-Pacific: problems and prospects
- Mingjiang Li, The Belt and Road Initiative: geo-economics and Indo-Pacific security competition
- Ling Wei, Developmental peace in east Asia and its implications for the Indo-Pacific
- Literature Review
- Dahlia Simangan, Where is the Anthropocene? IR in a new geological epoch
Sunday, January 19, 2020
Friday, January 17, 2020
Call for papers
Polish Yearbook of International Law, vol. XXXIX: 2019
Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXIX), which will be published in June 2020. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal requirement for acceptance, we are specifically interested in articles that address issues in international and European law relating to broadly understood Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works.
Submissions should be between 8.000 and 10,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal.
All details about submission procedure and required formatting are available at the PYIL’s webpage. Manuscript should be submitted via the PYIL’s submission system until 31 January 2020. You can also contact us by email (firstname.lastname@example.org).
- Ludwig Krämer, Forty Years of EU Measures to Fight Wildlife Crime
- Yashraj Samant & Avani Gupta, Legality of Delisting a Transboundary Ramsar Site to Combat HPAI Outbreak and the Adequacy Standards of Compensatory Sites
- Amanda Whitfort, China and CITES: Strange Bedfellows or Willing Partners?
- The meaning and effects of erga omnes within the Prespa Agreement of 17 June 2018 between Greece and North Macedonia
- Introduced by Vassilis P Tzevelekos
- Ioannis Prezas, A bilateral treaty developing legal effects erga omnes? Reflections on the Prespa Agreement between Greece and North Macedonia settling the name dispute
- Vassilis Pergantis, The Prespa Agreement between Greece and North Macedonia and the settlement of the name dispute: Of objective regimes, erga omnes obligations and treaty effects on third parties
This chapter looks at legal positivism and its methods. In international legal scholarship, we are confronted with a paradox: while most international lawyers would say they employ broadly ‘positivist’ methods to find out what the law prescribes, its methods are among the least reflected. Positivism is seldom practised in a manner that is coherent with the theory of legal positivism. This leads to a bifurcation: default positivism and theoretical positivism.
Default positivism is not a deeply reflected theoretical approach, but rather the default solution. Fealty to the law is important, but not in an overly formalist and strict manner. Default international legal positivism is a result of processes of socialisation and adaption, founded on a largely subconscious culture of orthodoxy: a pragmatic mindset of submission to and accommodation of widely accepted practices and methods. Its methods reflect that mindset and I briefly analyse two: precedent-following and interpretation. On the one hand, the power of precedents in international law (acknowledged not to be a common law) is taken so seriously that arguing against the ICJ is virtually impossible – the ICJ cannot err on an important issue. On the other hand, the role which the Vienna rules on interpretation play is curiously formalistic and does not sit well with the idea of interpretation as finding out what a text means.
Theoretical positivism, using the Pure Theory of Law as an example, is theory-laden and much less pragmatic. It is primarily a theory of how legal scholarship can stay true to the ideal of (legal-)‘scientific’ cognition. Its methods, in turn, are structural analysis and frame-determination. The analysis of the structure of the international legal order, the relationship of different norms and sources is central to any legal-scholarly enterprise and helps to avoid admixing it with ideological precepts. The frame-determination method of interpretation avoids the impossible task of eliminating the vagueness of natural languages and the inevitable freedom to decide. Scholarly interpretation is not an attempt to tell courts how to decide a case, it rather shows the (structural) limits of the law to be applied.
Thursday, January 16, 2020
Schill & Vidigal: Designing Investment Dispute Settlement À La Carte: Insights from Comparative Institutional Design Analysis
The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as ‘dispute settlement à la carte’, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.
Wednesday, January 15, 2020
- Guy S. Goodwin-Gill, The Office of the United Nations High Commissioner for Refugees and the Sources of International Refugee Law
- David McKeever, International Humanitarian Law and Counter-Terrorism: Fundamental Values, Conflicting Obligations
- Lewis Graham, Strategic Admissibility Decisions in the European Court of Human Rights
- John Ip, Reconceptualising the Legal Response to Foreign Fighters
- Kelvin F. K. Low & Eliza Mik, Pause the Blockchain Legal Revolution
- Martijn Van Den Brink, A Qualified Defence of the Primacy of Nationality over European Union Citizenship
- Shorter Articles
- Stephen Allen, Self-Determination, the Chagos Advisory Opinion and the Chagossians
- Robert McCorquodale, Jennifer Robinson, & Nicola Peart, Territorial Integrity and Consent in The Chagos Advisory Opinion
- Neil Craik, The Duty to Cooperate in the Customary Law of Environmental Impact Assessment
How do countries settle disputes in the shadow of the law? Even in the presence of legalized dispute settlement, countries still rely on diplomatic channels to resolve conflicts. But it can be difficult to assess diplomacy's impact on dispute resolution, because those channels tend to be opaque. We present both an original theory of the impact of diplomacy on dispute resolution as well as a novel measure of diplomacy. If countries with close or, conversely, distant relationships use legal channels for dispute resolution, diplomacy will have little impact on dispute settlement; resorting to legal recourse among friends or adversaries likely means that the dispute is intractable. However, diplomacy can increase the chances of settlement between countries with moderate levels of affinity. We test this argument using a protocol-based proxy for diplomatic interactions -- gifts given at the occasion of meetings between diplomatic counterparts -- that would otherwise be difficult to observe. Using the case of the United States and its disputes in the World Trade Organization, we find support for our argument. This suggests that even when countries resort to legalized methods of dispute settlement, bilateral dealmaking still plays an important role.
Call for Papers/IG Panel Proposals: 16th Annual Conference of the European Society of International Law (Reminder)
Call for Papers: The European Union’s External Action and International Law: A View From the Outside
Tuesday, January 14, 2020
- Special Issue: Trade Wars
- Anne van Aaken, Chad P Bown, & Andrew Lang, Introduction to the Special Issue on ‘Trade Wars’
- Simon J Evenett, The Smoot–Hawley Fixation: Putting the Sino-US Trade War in Contemporary and Historical Perspective
- Chad P Bown & Jennifer A Hillman, WTO’ing a Resolution to the China Subsidy Problem
- Cindy Whang, Undermining the Consensus-Building and List-Based Standards in Export Controls: What the US Export Controls Act Means to the Global Export Control Regime
- Anne van Aaken & Jürgen Kurtz, Beyond Rational Choice: International Trade Law and The Behavioral Political Economy of Protectionism
- Jonathan Bonnitcha, Investment Wars: Contestation and Confusion in Debate About Investment Liberalization
- Anthea Roberts, Henrique Choer Moraes, & Victor Ferguson, Toward a Geoeconomic Order in International Trade and Investment
- Andrew Lang, Heterodox markets and ‘market distortions’ in the global trading system
- Nicolas Lamp, At the Vanishing Point of Law: Rebalancing, Non-Violation Claims, and the Role of the Multilateral Trade Regime in the Trade Wars
- Julia Ya Qin, Forced Technology Transfer and the US–China Trade War: Implications for International Economic Law
Monday, January 13, 2020
In "The Trump Administration and International Law," Harold Hongju Koh advances two descriptive claims about the efficacy of international law in the age of President Trump. First, international law has been effective in curtailing U.S. disobedience, despite Trump's antics. Second, it could also empower President Trump; the president would be more effective at achieving concrete policy goals if instead of dismissing international law, he harnessed it to get things done. The book's upshot is that international law can have real operational value, including, perhaps especially, for the United States.
Yet Koh did not write the book just to reiterate that point. He clearly is worried that Trump is doing damage both to the enterprise of international law and to the U.S. relationship with it. Thus, he intends for the book to be a "call to action," imploring people to uphold international law and contest the Trump administration's antagonistic policies. This is where the book falls short. It does not give readers compelling reasons to fight not just against the Trump administration but for international law. What about international law is both worthwhile and at serious risk under President Trump?
I argue in this Review Essay that, because the book focuses so intently on the material outcomes that international law might produce, it misses what's uniquely at stake in the current moment. A lot of law's value, both domestically and at the international level, lies in fostering a particular kind of argumentative practice. International law's argumentative practice is not, as some suggest, just cheap talk, a means for achieving concrete ends, or a smokescreen for reinforcing positions of dominance. It is worthwhile for reasons that are independent of its material outcomes. And it is deteriorating under President Trump.
Despite progress being made in the business and human rights field in defining corporate responsibility for human rights, defining foreign investors’ roles vis-a-vis human rights remains mainly stagnant. The idea that businesses have responsibility for human rights is well ensconced in global norms and is based on society's expectations of business in the 21st century. Yet despite this widespread recognition, international investment law is silent on the matter. This leaves a disconnect between the norms dictating the corporate responsibility for human rights in public international law and those found in international investment law.
One way to better align progress in the business and human rights movement with international investment law is to introduce investor obligations for human rights. These obligations can be located both in investment treaties as well as in non-treaty sources. Moreover, investment arbitration provides multiple entrypoints for tribunals to consider such obligations, for example through counterclaims, jurisdictional claims, or admissibility claims, among others.
Two primary benefits arise from introducing investor obligations for human rights. First, it can act as vehicle by which business and human rights norms, generally, can be enforced. Second, and more importantly, introducing investor obligations for human rights can help to better contextualize the interpretation of IIAs. Introducing such obligations can be used to remind tribunals that international investment law operates in a system that includes non-investment concerns such as human rights.
Considering such obligations, in and of themselves, however, are unlikely to prompt wider changes in international investment law. Nevertheless, including investor obligations in international investment law may prompt tribunals to give more balanced interpretations to international investment agreements. This can work towards ensuring that international investment law serves its ultimate aim of promoting a state’s development.
Sunday, January 12, 2020
In January 2020 a further edition of the conference “Teaching International Law” will take place. Organized by Professor Peter Hilpold (University of Innsbruck) and by Professor Giuseppe Nesi (University of Trento) these conferences aim at elucidating the particularities and special challenges associated with teaching this discipline of law. Leading international lawyers and philosophers of international law will portray their vision of teaching. The third day of this conference is dedicated to “Teaching in Practice” with model lectures given by students, young academics and Ph.D students. This project makes part of the “Euregio Mobility”-Initiative involving the University of Innsbruck, of Trento and of Bozen-Bolzano.
Thursday, January 9, 2020
This fully revised new edition offers a comprehensive picture of the law of maritime delimitation, incorporating all new cases and State practice in this field. As with all types of law, the law of maritime delimitation should possess a degree of predictability. On the other hand, as maritime delimitation cases differ, flexible considerations of geographical and non-geographical factors are also required in order to achieve equitable results. How, then, is it possible to ensure predictability while taking into account a number of diverse factors in order to achieve an equitable result? This is the question at the heart of the law of maritime delimitation. This book explores a well-balanced legal framework that reconciles predictability and flexibility in the law of maritime delimitation by looking at three aspects of the question: first it reviews the evolution of the law of maritime delimitation; second, it undertakes a comparative study of the case law and State practice; and third, it critically assesses the law of maritime delimitation in its current form.