- Special Issue: The Tenth Anniversary of the United Nations Declaration on the Rights of Indigenous Peoples
- Jessie Hohmann, Introduction
- Felipe Gómez Isa, The UNDRIP: an increasingly robust legal parameter
- Julian Burger, After the Declaration: next steps for the protection of indigenous peoples’ rights
- Dorothée Cambou, The UNDRIP and the legal significance of the right of indigenous peoples to self-determination: a human rights approach with a multidimensional perspective
- Federico Lenzerini, Implementation of the UNDRIP around the world: achievements and future perspectives. The outcome of the work of the ILA Committee on the Implementation of the Rights of Indigenous Peoples
- Corinne Lewis & Carl Söderbergh, The World Bank’s new Environmental and Social Framework: some progress but many gaps regarding the rights of indigenous peoples
- Malayna Raftopoulos & Damien Short, Implementing free prior and informed consent: the United Nations Declaration on the Rights of Indigenous Peoples (2007), the challenges of REDD+ and the case for the precautionary principle
- Jérémie Gilbert & Corinne Lennox, Towards new development paradigms: the United Nations Declaration on the Rights of Indigenous Peoples as a tool to support self-determined development
- Noelle Higgins, Creating a space for indigenous rights: the Universal Periodic Review as a mechanism for promoting the rights of indigenous peoples
- Adriana Giunta, Looking back to move forward: the status of environmental rights under the UN Declaration on the Rights of Indigenous Peoples
- Harry Hobbs, Treaty making and the UN Declaration on the Rights of Indigenous Peoples: lessons from emerging negotiations in Australia
- Stephen M. Young, The self divided: the problems of contradictory claims to Indigenous peoples’ self-determination in Australia
- Jeremy Patzer, Indigenous rights and the legal politics of Canadian coloniality: what is happening to free, prior and informed consent in Canada?
- Amelia Alva-Arévalo, A critical evaluation of the domestic standards of the right to prior consultation under the UNDRIP: lessons from the Peruvian case
- Fumiya Nagai, Implementing the rights of indigenous peoples in Japan: implications and challenges of forest certification for the Ainu
- Lucy Claridge, The approach to UNDRIP within the African Regional Human Rights System
- Silvia Gagliardi, Indigenous peoples’ rights in Morocco: subaltern narratives by Amazigh women
- Shlomit Stein, Reflections on indigenous peoples’ rights vis-à-vis the law of occupation
Friday, May 24, 2019
- Claudia Ituarte-Lima, Amelie Dupraz-Ardiot, & Constance L. McDermott, Incorporating international biodiversity law principles and rights perspective into the European Union Timber Regulation
- Giorgia Sforna, Climate change and developing countries: from background actors to protagonists of climate negotiations
- Rishi Basak & Edwin van der Werf, Accountability mechanisms in international climate change financing
- Roberta Arbolino & Luisa De Simone, Rethinking public and private policies in Europe with the support of a industrial sustainability index
- Tatiana Yu Sorokina, A national system of biological monitoring in the Russian Arctic as a tool for the implementation of the Stockholm Convention
Grey: Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential
The 1998 Rome Statute, the treaty establishing the International Criminal Court (ICC), includes a longer list of gender-based crimes than any previous instrument of international criminal law. The Statute's twentieth anniversary provides an opportunity to examine how successful the ICC has been in prosecuting those crimes, what challenges it has faced, and how its caselaw on these crimes might develop in future. Taking up that opportunity, this book analyses the ICC's practice in prosecuting gender-based crimes across all cases for war crimes, crimes against humanity and genocide in the ICC up until mid-2018. This analysis is based on a detailed examination of court records and original interviews with prosecutors and gender experts at the Court. This book covers topics of emerging interest to practitioners in this field, including wartime sexual violence against men and boys, persecution on the grounds of gender and sexual orientation, and sexual violence against 'child soldiers'.
Thursday, May 23, 2019
- Klaus Peter Berger, Common Law v. Civil Law in International Arbitration: The Beginning or the End?
- Milo Molfa, Adam Grant, Paul Kleist, & Amy Wen Wei, Challenges in the Taking of Evidence in Arbitrations Seated in Mainland China
- Christopher Adams & Giles Harvey, No Man Is an Island: Compelling Witness Evidence in Support of Arbitration Proceedings Seated in London
- Alex Ye, The Good Faith Principle in the Context of the Enforcement of New York Convention Awards: An Analysis of Hong Kong’s Position in Light of the Apparently Conflicting Court Decisions
- Sam Luttrell, Observations on the Proposed New ICSID Regime for Security for Costs
- Kyle Haynes, Useful ignorance: The benefits of uncertainty during power shifts
- Michael Breen & Patrick J. W. Egan, The Catalytic Effect of IMF Lending: Evidence from Sectoral FDI Data
- Daina Chiba & Tobias Heinrich, Colonial Legacy and Foreign Aid: Decomposing the Colonial Bias
- Elise Must & Siri Aas Rustad, “Mtwara will be the New Dubai”: dashed expectations, grievances, and civil unrest in Tanzania
- Bernhard Reinsberg, Thomas Stubbs, Alexander Kentikelenis & Lawrence King, The political economy of labor market deregulation during IMF interventions
- Research Notes
- Juan Tellez & Jordan Roberts, The Rise of the Islamic State and Changing Patterns of Cooperation in the Middle East
- Sarah Kreps & Stephen Roblin, Treatment format and external validity in international relations experiments
- The 2018 Global Compacts on Refugees and Migration
- Jane McAdam, The Global Compacts on Refugees and Migration: A New Era for International Protection?
- Volker Türk, The Promise and Potential of the Global Compact on Refugees
- Michele Klein Solomon & Suzanne Sheldon, The Global Compact for Migration: From the Sustainable Development Goals to a Comprehensive Agreement on Safe, Orderly and Regular Migration
- James C Hathaway, The Global Cop-Out on Refugees
- Thomas Gammeltoft-Hansen, The Normative Impact of the Global Compact on Refugees
- T Alexander Aleinikoff, The Unfinished Work of the Global Compact on Refugees
- Michael W Doyle, Responsibility Sharing: From Principle to Policy
- Alexander Betts, The Global Compact on Refugees: Towards a Theory of Change?
- David James Cantor, Fairness, Failure, and Future in the Refugee Regime
- B S Chimni, Global Compact on Refugees: One Step Forward, Two Steps Back
- Geoff Gilbert, Indicators for the Global Compact on Refugees
- Jeff Crisp, A Global Academic Network on Refugees: Some Unanswered Questions
- Cathryn Costello, Refugees and (Other) Migrants: Will the Global Compacts Ensure Safe Flight and Onward Mobility for Refugees?
- François Crépeau, Towards a Mobile and Diverse World: ‘Facilitating Mobility’ as a Central Objective of the Global Compact on Migration
- Kathleen Newland, The Global Compact for Safe, Orderly and Regular Migration: An Unlikely Achievement
- Elspeth Guild, The UN Global Compact for Safe, Orderly and Regular Migration: What Place for Human Rights?
- Walter Kälin, The Global Compact on Migration: A Ray of Hope for Disaster-Displaced Persons
- Vitit Muntarbhorn, The Global Compacts and the Dilemma of Children in Immigration Detention
- Guy S Goodwin-Gill, The Global Compacts and the Future of Refugee and Migrant Protection in the Asia Pacific Region
- Arie Afriansyah, Indonesia and the Global Compacts on Refugees and Migration
- Lili Song, Strengthening Responsibility Sharing with South–South Cooperation: China’s Role in the Global Compact on Refugees
- Susan M Akram, Assessing the Impact of the Global Compacts on Refugees and Migration in the Middle East
- Fatima Khan & Cecile Sackeyfio, What Promise Does the Global Compact on Refugees Hold for African Refugees?
- Eunice Ndonga Githinji & Tamara Wood, Prospects for the Global Compacts in Africa: Combining International Solidarity with Home-Grown Solutions
- Olabisi Dare & Allehone M Abebe, Regional Solutions and the Global Compact on Refugees: The Experience from Africa
- Marina Sharpe, The Global Compact on Refugees and Conflict Prevention in Africa: ‘Root Causes’ and Yet Another Divide
- Digital Trade
- Merit E. Janow & Petros C. Mavroidis, Digital Trade, E-Commerce, the WTO and Regional Frameworks
- Anupam Chander, The Internet of Things: Both Goods and Services
- Joshua P. Meltzer, Governing Digital Trade
- Norman Zhang, Trade Commitments and Data Flows: The National Security Wildcard: Reconciling Passenger Name Record Transfer Agreements and European GATS Obligations
- Robert Wolfe, Learning about Digital Trade: Privacy and E-Commerce in CETA and TPP
- Evan Y. Kim, E-Commerce in South Korean FTAs: Policy Priorities and Provisional Inconsistencies
- Usman Ahmed, The Importance of Cross-Border Regulatory Cooperation in an Era of Digital Trade
- R. S. Neeraj, Trade Rules for the Digital Economy: Charting New Waters at the WTO
Wednesday, May 22, 2019
Paige: Petulant and Contrary: Approaches by the Permanent Five Members of the UN Security Council to the Concept of 'threat to the peace' under Article 39 of the UN Charter
Aside from self-defence, a UN Security Council authorisation under Chapter VII is the only exception to the prohibition on the use of force. Authorisation of the use of force requires the Security Council to first determine whether that situation constitutes a ‘threat to the peace’ under Article 39. The Charter has long been interpreted as placing few bounds around how the Security Council arrives at such determinations. As such commentators have argued that the phrase ‘threat to the peace’ is undefinable in nature and lacking in consistency. Through a critical discourse analysis of the justificatory discourse of the P5 surrounding individual decisions relating to ‘threat to the peace’ (found in the meeting transcripts), this book demonstrates that each P5 member has a consistent definition and understanding of what constitutes a ‘threat to the peace’.
- Steven A. Bank, Reforming FIFA from the Inside Out
- John F. Coyle & Christopher R. Drahozal, An Empirical Study of Dispute Resolution Clauses in International Supply Contracts
- Craig Martin, Challenging and Refining the "Unwilling or Unable" Doctrine
- Neha Mishra, Building Bridges: International Trade Law, Internet Governance, and the Regulation of Data Flows
- Ingebjørg Finnbakk & Ragnhild Nordås, Community Perspectives and Pathways to Reintegration of Survivors of Sexual Violence in Eastern Democratic Republic of Congo
- Andrew Fagan, The Gentrification of Human Rights
- Lorna, McGregor, Rachel Murray, & Shirley Shipman, Should National Human Rights Institutions Institutionalize Dispute Resolution?
- Marie Elske C. Gispen & Brigit C.A. Toebes, The Human Rights of Children in Tobacco Control
- Lilian Chenwi, Exhaustion of Local Remedies Rule in the Jurisprudence of the African Court on Human and Peoples’ Rights
- Ronli Sifris & Maria Tanyag, Intersectionality, Transitional Justice, and the Case of Internally Displaced Moro Women in the Philippines
- Adriana Rudling, “I’m Not that Chained-Up Little Person”: Four Paragons of Victimhood in Transitional Justice Discourse
- Alejandro Anaya- Muñoz, Bringing Willingness Back In: State Capacities and the Human Rights Compliance Deficit in Mexico
- Mumo Nzau & Amanda B. Edgell, Judicial Independence and Civil Liberties in Transitional Democracies: The Case of Kenya
Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.
And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. In fact, questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decisionmaking, the weight accorded the position of any given decisionmaker, the context in which the decision is made — together these shape the ultimate position the President takes.
This Article explores and critiques the foreign policy role Congress can — and does — play in structuring and rearranging the relative powers of those internal actors, and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings. There are risks to deploying such “process controls,” as I term them, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.
International law is generally understood to be made up of the rules that states accept as binding in their relations with one another. But international law is the product not only of a political and legal process that takes place between states — as this common understanding implies — but also of processes that take place within them. And yet to date there has been remarkably little cross-national work examining the role of domestic politics and law in the creation of treaties and other international law. Part of the reason for this gap is the difficulty of conducting cross-national studies of foreign relations law on a large scale. To the extent there have been comparative studies done of foreign relations law, they have been largely limited to relatively small-scale case studies. More comprehensive examination of the differences across nations in the ways in which they make international commitments is rare. This chapter aims to contribute to an emerging conversation about how best to carry out a more comprehensive examination of differences between states in the law governing their engagement in the world around them. It maps out five areas that offer opportunities and challenges for the study of comparative foreign relations law. First, the choice of methodology, whether quantitative or qualitative. Second, the under-representation of certain states in existing foreign relations scholarship. Third, the domestic political and institutional structures that shape the interplay between the legislative, executive, and judicial functions within states. Fourth, the role of geopolitics. Fifth, the chapter sounds a cautionary note about approaching international law through domestic law.
In The Right to Appeal in International Criminal Law Dražan Djukić describes appeal proceedings in international criminal law and evaluates them against human rights benchmarks. While international criminal courts and tribunals mainly comply with these benchmarks, they have fallen short in certain important areas. Despite their importance to the legal process, appeal proceedings tend to receive limited attention. On the basis of benchmarks arising from international human rights law, Dražan Djukić systematically assesses the law and practice concerning appeal proceedings in international criminal law.
- Articles and Commentaries
- Graham Hassall, Law, Culture, and Corruption in the Pacific Islands
- S. Reindl-Krauskopf, Anti-corruption Measures from a European and Austrian Perspective: Concepts – Control – Concerns
- Farsam Salimi, Cybercrime Threats, Offences and Special Investigation Measures from a European Perspective
- Harmen van der Wilt, The European Arrest Warrant: A Blueprint for International Cooperation in Criminal Matters in Other Regions?
- Liz Campbell, Brexit and the Policing of Transnational Organised Crime in Europe
- Ray Murphy, Command Responsibility after Bemba
- Matt Bartlett, Standard Deviation: Global Standardisation and Implications for International Law
- The South Pacific
- Tony Angelo, Pacific Islands Forum 2017
Trachtman: The Internet of Things Cybersecurity Challenge to Trade and Investment: Trust and Verify?
This paper describes the problem of cybersecurity-based concerns regarding trade in IoT goods, and investment in manufacturing or distribution facilities for IoT goods, analyzes the applicable international law that would constrain national cybersecurity-based import or investment restrictions, and evaluates the availability of security or other exceptions to permit these defensive measures. Based on the defensive needs, and the legal constraints, it suggests some of the characteristics of a cooperative regulatory regime that can foster international trust or verification to allow trade and foreign investment in relation to IoT goods. Trade and investment in low risk consumer IoT products, such as household objects, will be manageable along traditional lines of other product standards, regulated by existing treaties such as the GATT and TBT Agreement to assure national treatment, MFN treatment, proportionality, and due respect for international standards. With respect to high risk industrial, infrastructural, medical or transportation IoT products, the path to liberal trade and investment is less clear, and will depend on the technical ability to surveil and confirm the safety of IoT products. It will be difficult to rely on trusted suppliers, whether on the basis of nationality or territoriality, because of the complexity of production and the magnitude of risk. States will restrict imports and investment in connection with high risk IoT products under security exceptions in trade and investment law, although the specific language of those exceptions do not necessarily support such restrictions. In some circumstances, restrictions will be based on protectionism or geoeconomic considerations, rather than cybersecurity per se. In order to avoid inefficient restriction, states will find it useful to identify means to verify security of high risk IoT products, as well as to establish trust in producers of high risk IoT products, and on the basis of sufficient combinations of verification and trust, to relax their use of security exceptions.
The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each critique contains certain moral and empirical assumptions that deserve further attention. The distributive justice implications of international investment rules are also relevant to scholars of global distributive justice. The aim of the analysis is to develop an interdisciplinary agenda – among law, philosophy, and social science – for inquiry into the justice of investment law and reform of its unjust elements.
Few contemporary debates on the use of force under international law have been more contentious than the argument over the lawfulness of transnational self-defense against non-state actors. In this context, especially controversial is the claim – advanced by the US and several other states – that defensive force against non-state actors could be lawful when territorial states are “unwilling or unable” to address the threat on their own.
Of the various objections to this standard, one significant argument suggests that when a territorial state is merely unable to stop a threat, any response against a non-state actor on its territory would be unlawful. This is because that state – assuming that it has exercised due diligence to prevent the threat – is at no fault; it has therefore not violated the prohibition on the use of force; and in the absence of such a violation, there can be no self-defense on its territory.
This Chapter challenges this argument. While not defending the lawfulness of the “unwilling or unable” test per se, it rejects the view that “state innocence” should be a valid objection to it. In this context, it argues that attributing overriding importance to state innocence conjures up an old anthropomorphism in international law, in which the state is conceived as a physical person, its territory akin to a human body. On this view, a response on the territory of an "innocent state" is likened to a response against the body of an innocent human threat or shield. Yet, in any legal regime that takes individual rights seriously, it seems that rights attributed to the fictionalized body of the state cannot override those of real-life people. It follows that state innocence alone cannot be a bar to self-defense against non-state actors, at least when human life is threatened by their attacks.
Tuesday, May 21, 2019
- H. Labayle, Le Pacte mondial sur les migrations : un pacte avec le diable ?
- G. Ravarani, Quelques réflexions sur la légitimité du juge de Strasbourg
- C. Rizcallah, Le principe de confiance mutuelle : une utopie malheureuse ?
- S. Wattier, La reconnaissance juridique du féminicide : quel apport en matière de protection des droits des femmes ?
- C. Katz, Le refus de la protection des groupes politiques par la Convention sur la prévention et la répression du génocide : une exclusion contestable, une finalité entamée
- T. Hochmann, Chronique des arrêts de la Cour suprême des États-Unis en matière de droits fondamentaux (octobre 2016 – juin 2018)
- J. Arroyo, M-L. Basilien-Gainche, S. Lavorel, D. Mardon, C. Philippe, S. Turgis, S. Gerry-Vernières, A. Peyre, & A. Ailincai, La soft law dans le domaine des droits fondamentaux (octobre 2017 – octobre 2018)
- X. Delgrange & D. Koussens, Quelles laïcités en salle d’audience ? À propos de quelques arrêts canadiens et européens sur le port de symboles religieux dans les prétoires
- H. Tigroudja, Ports de signes religieux, « discrimination croisée » et ingérence de l’État dans la liberté de manifester sa religion
- G. Haarscher, Le blasphémateur sous les fourches caudines des juges de Strasbourg
- M-A. Beernaert, Droit d’accès à un avocat et relativité toujours plus grande des garanties du droit à un procès équitable
- E. Patsrana & R. Bustos, « Bonne formation pour de bons jugements » - Le programme HELP (formation aux droits de l’homme pour les professionnels du droit) du Conseil de l’Europe
Monday, May 20, 2019
The Promise of International Law
In a world of increasing polarization and threats to individual and collective security, many turn to international law for guidance and protection, while others consider this body of law and the institutions that apply it ill-equipped to address evolving needs. Has international law lived up to its full potential and is it equipped to safeguard the peaceful coexistence of its subjects, to protect human rights and the environment, and to contribute to the attainment of shared prosperity?
The year 2020 will give us much to reflect upon and to reaffirm. Even as states have withdrawn or sought to withdraw from agreements such as the Trans-Pacific Partnership, the Paris Agreement on Climate Change, and the Treaty on European Union, the international community will commemorate other enduring institutions and commitments in 2020. For example, the United Nations will mark its 75th anniversary amidst calls for significant reforms to global governance. The year 2020 also will see the celebration of the 100th anniversary of the entry into force of the Treaty of Versailles and of the Covenant of the League of Nations, the 50th anniversary of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, and the 20th anniversary of UN Security Council Resolution 1325 on women, peace and security. At the same time, the year 2020 will serve as a reminder that we have but ten years left to achieve the UN Sustainable Development Goals, which envisage "a world of universal respect for human rights and human dignity, the rule of law, justice, equality and non-discrimination."
At its 114th Annual Meeting in 2020, the American Society of International Law (ASIL) invites policymakers, practitioners, academics, and students of international law to reflect upon the successes and failures of international law. Has international law held states, military forces, multinational corporations, and other actors – both public and private – to account for their international obligations? What role do regulatory bodies, international institutions, and non-governmental organizations play in actualizing the objectives of international law? Can and should international law be expected to produce just outcomes in all circumstances? The Annual Meeting presents an opportunity for the Society to take stock of the past successes and failures of international law while reaffirming the promise it holds for the future.
- International Human Rights, Humanitarian Law, and Criminal Justice
- Transnational Litigation, Arbitration, and Dispute Resolution
- Trade, Investment, Finance, and Technology
- Sustainable Development and Global Governance
- Security, Foreign Relations, and Use of Force
- Energy, Environment, Sea, and Space
Call for Session Ideas
To suggest a session to the Committee, please complete the form below by no later than July 16, 2019.
Mitchell & Mishra: Regulating Cross-Border Data Flows in a Data-Driven World: How WTO Law Can Contribute
While the free cross-border movement of data is essential to many aspects of international trade, several countries have imposed restrictions on these data flows. The pre-internet rules of the World Trade Organization (‘WTO’) discipline some of these restrictions, but they are insufficient. Unfortunately, so are the electronic commerce chapters in modern preferential trade agreements. This article argues that reformed WTO rules, that take account of the policy challenges of the data-driven economy, are required. These reforms would facilitate internet openness while ensuring consumer and business trust, promote digital inclusion of developing countries and incorporate clear exceptions for legitimate domestic policies.