The immunity or exemption enjoyed by States from legal proceedings before foreign national courts is a crucial area of international law. On the basis of an exhaustive analysis of judicial decisions, international treaties, national legislation, government statements, deliberations in international organisations as well as scholarly opinion, Xiaodong Yang traces the historical development of the relevant doctrine and practice, critically analyses the rationale for restrictive immunity and closely inspects such important exceptions to immunity as commercial transactions, contracts of employment, tortious liability, separate entities, the enforcement of judgments, waiver of immunity and the interplay between State immunity and human rights. The book draws a full picture of the law of State immunity as it currently stands and endeavours to provide useful information and guidance for practitioners, academics and students alike.
Saturday, October 6, 2012
Yang: State Immunity in International Law
Friday, October 5, 2012
Hathaway et al.: The Treaty Power: Its History, Scope, and Limits
This article examines the scope of the treaty power under the U.S. Constitution. A recent challenge in the courts has revived a debate over the reach and limits of the federal government’s treaty power that dates to the Founding. This article begins by placing today’s debate into historical perspective — examining the understanding of the treaty power from the time of the Founding, through the Supreme Court’s landmark decision in 1920 in Missouri v. Holland, up to the present. It then provides a systematic account of the actual and potential court-enforced limits on the treaty power — including affirmative constitutional limits, limits on implementing legislation, and limits on the scope of the Article II treaty power itself. In the process, the article develops a detailed pretext test that courts could use to assess whether the federal government has exceeded its Article II authority. Because even this elaborated pretext test is unlikely to be used to invalidate many treaties, the most important protection against abuse of the treaty power lies in the structural, political, and diplomatic checks on the exercise of the power itself — checks that the article describes and assesses. These checks provide for what the article terms “top-down” and “bottom-up” federalism accommodation. The result is a flexible system in which state and federal governments work together to preserve the boundary between their respective areas of sovereignty. The article concludes that this flexible system of accommodation is likely to be more effective than any court-enforced restraint at protecting against abuse of the federal treaty power.
Mitchell & Henckels: Variations on a Theme: Comparing the Concept of 'Necessity' in International Investment Law and WTO Law
The concept of ‘necessity’ is used in many legal systems to delimit permissible measures from prohibited measures where such measures negatively affect the regime’s primary values, such as human rights, liberalized trade, and unimpeded use of an investment. International investment tribunals have adopted a variety of approaches to the question of whether a host state measure is ‘necessary’ to achieve its objective in relation to a number of provisions of investment treaties, including non-precluded measures clauses and fair and equitable treatment. Yet their approaches to this form of analysis are inconsistent and generally not analytically robust. By comparison, WTO tribunals have developed relatively sophisticated methods for analyzing a measure’s necessity to achieve its objective in the context of general exceptions, sanitary and phytosanitary measures and technical regulations. The WTO approach generally takes into account a number of factors including the importance of a measure’s objective, a measure’s effectiveness at achieving that objective, and the availability of alternative measures. Importantly, WTO tribunals generally undertake this analysis with a degree of deference, in recognition of states’ right to set their own policy priorities. Investment tribunals could usefully employ aspects of the WTO approach to necessity in the context of both non-precluded measures and the positive obligations of fair and equitable treatment, non-discrimination and non-expropriation. Such an approach would go some way toward the development of a consistent, coherent body of cases in relation to the concept of necessity in international investment law, providing greater certainty for both host states and investors.
Drumbl: When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality of Mass Atrocity
This paper unpacks thorny criminological and penological questions through the lens of a single case, Prosecutor v. Grégoire Ndahimana (ICTR Trial Chamber III, 2011). This case is yet another judicial intervention into the Nyange church massacre, a tragedy that took the lives of up to 2,000 Tutsi civilians. Ndahimana was the bourgmestre (mayor) of the commune – Kivumu – in which the church was sited. He was convicted and sentenced to a 15 year term of imprisonment, less (as is customary) time served (in his case, since August 2009).
This paper initially proceeds descriptively and then pursues an interrogative bent.
As to description, this paper sets out the gruesome details of the Nyange church massacre, the background of the accused Ndahimana, and the specifics of his trial judgment and sentence. Ndahimana was convicted of genocide and of extermination as a crime against humanity by aiding and abetting as well as by virtue of his command responsibility. Judges on Trial Chamber III, however, fractured regarding modes of liability and also regarding factors in mitigation. As to modes of liability, the majority dismissed many of the allegations against Ndahimana and found that he had command responsibility only over the communal police, whom he failed to punish for crimes they committed on April 15, 1994, and that he aided and abetted the church demolition merely by being present at the time (April 16) and lending tacit approval thereto. As to penological determinations, the majority relied upon the systemic nature of the demolition and the broad coordination that it necessitated in order to mitigate Ndahimana’s sentence. The majority posited that his involvement may have been “more the product of duress” than of “extremism or ethnic hatred.” Judge Arrey sharply dissented regarding both liability and sentence.
As to interrogation, this paper inductively cycles back from the judgment to explore more fully the admixture of situational and dispositional factors that fuelled the Nyange church massacre. The Ndahimana case exposes the murkiness of individual agency within connived collective criminality. It elucidates the clumsiness of the purported joint criminal enterprise – the infighting, tensions, and squabbles among group members – while recognizing its destructive effectiveness. This case also examines how a seemingly moderate small-town politician became, in the time span of several days, ensnared in one of the balefully iconic acts of the Rwandan genocide. Finally, the trial proceedings attest to troubling inconsistencies in fact-finding within the ICTR even among factually overlapping cases.
In the end, one take-away is that much more than the pyrrhic and reductive intercessions of the criminal law are required to appreciate the etiology of mass atrocity, at least how it unfolded at the micro-level in Nyange, and, moreover, to fashion adequate remedies. Hence, the call for pluralism: a true pluralism, namely, one of method, of nomenclature, of epistemology, and of accountability.
New Issue: Revue de Droit Militaire et de Droit de la Guerre
- Agora: The Al-Jedda & Al-Skeini cases before the European Court of Human Rights
- Frederik Naert, The European Court of Human Rights’ Al-Jedda and Al-Skeini Judgments: An Introduction and Some Reflections
- Francesco Messineo, Things Could only Get Better: Al-Jedda beyond Behrami
- Kjetil Mujezinovic Larsen, ‘Neither Effective Control nor Ultimate Authority and Control’: Attribution of Conduct in Al-Jedda
- Anne-Marie Baldovin, Impact de la jurisprudence récente de la Cour européenne des droits de l’Homme sur la planification et l’exécution des opérations militaires à venir: Application extraterritoriale de la Convention, imputabilité des faits des troupes et fragmentation du droit international
- Heike Krieger, After Al-Jedda: Detention, Derogation, and an Enduring Dilemma
- Radidja Nemar, Hobbes face à Kant: la justice militaire américaine et la doctrine de la responsabilité du supérieur hiérarchique suite à Abu Ghraib
New Issue: Manchester Journal of International Economic Law
- Wen-chen Shih, Legal Nature of the Traded Units under the Emissions Trading Systems and Its Implication to the Relationship between Emissions Trading and the WTO
- Adeshola Odusanya, Favour a Major Economy, Favour Me: Most Favoured Nation Clause in ACP-EC EPAs
- Diane A. Desierto, Calibrating Human Rights and Investment in Economic Emergencies: Prospects of Treaty and Valuation Defenses
- Haneul Jung, Tackling Currency Manipulation with International Law: Why and How Currency Manipulation should be Adjudicated?
- Linda Renee Praast, Artificially Sweetened Agriculture: Sugar Subsidy Programs in the United States and the European Union
New Issue: Asian International Arbitration Journal
- Michael Hwang & Kevin Lim, Corruption in Arbitration — Law and Reality
- Yang Honglei & Wang Yuan, Mutual Enforcement of Mainland China and the Hong Kong SAR Awards: An Issue of Nationality
d'Aspremont: Herbert Hart in Post-Modern International Legal Scholarship
This chapter argues that the most relevant of Hart’s insights for contemporary international legal scholarship are to be found in his reductionism. It contends that the Hartian concept of law is germane to the extent that it helps international legal scholars to restrict international legal positivism to a mechanism for determining the mode of existence of norms; that is, their validity. Hart’s positivism is reductionist in that it confines legal positivism to a theory about the determination of the existence of law by virtue of a theory of sources, i.e. a theory of the ascertainment of rules. In that sense, Hart’s theory renders legal positivism a tool of limited scope which does not lay down a grand theory of law, and which is certainly not a content-determining mechanism.
According to this view, Hart’s Concept of Law is alien to the search for legal certainty and immanent truth as regards the content of law. This is why it is argued here that, from a Hartian perspective, international legal positivism is not about determining the right content of norms and the right adjudicative truth. Instead, international legal positivism should be confined to a thesis about the validity-condition of legal norms.
The Hart-inspired international legal positivism which is put forward here is premised on the idea that international legal positivism is deficient when it comes to deciphering and unraveling the other dimensions of international law such as the creation of subjects, the description of the multi-dimensional phenomenon of law-making or the compliance pull of international legal rules to name only a few. This understanding of international legal positivism simultaneously brings with it a division of tasks among various approaches to international law within international legal scholarship, each of them recognised as having distinct merits that can be mutually reinforcing.
Thursday, October 4, 2012
New Issue: ASA Bulletin
- Antonias Dimolitsa, L’« extension » de la clause compromissoire à des
- Tolga Ayoğlu, Application of Trade Usages in International Institutional Arbitration – Some Reflections
- Michael Wietzorek, Ukrainian Courts on Agreements to Arbitrate in Switzerland
- Łukasz Błaszczak & Joanna Kolber, Annulment and enforcement of arbitral awards in Poland
Cassese et al.: Global Administrative Law: The Casebook (Third Edition)
This book is an attempt to analyse global administrative law through the elaboration and examination of a number of different cases and case-studies. The architecture of its contents mirrors the characteristics of this field. In order to fully grasp global administrative law, however, it is important also to have a sound understanding of the broader governance context in which it is situated. This volume attempts to provide this also.
New Issue: Journal of Conflict Resolution
- Kyle Haynes, Lame Ducks and Coercive Diplomacy: Do Executive Term Limits Reduce the Effectiveness of Democratic Threats?
- Muhammet A. Bas, Democratic Inefficiency? Regime Type and Suboptimal Choices in International Politics
- Gretchen Schrock-Jacobson, The Violent Consequences of the Nation: Nationalism and the Initiation of Interstate War
- Mark S. Manger, Mark A. Pickup, & Tom A. B. Snijders, A Hierarchy of Preferences: A Longitudinal Network Analysis Approach to PTA Formation
- Seden Akcinaroglu, Rebel Interdependencies and Civil War Outcomes
- Michael K. McKoy & Michael K. Miller, The Patron’s Dilemma: The Dynamics of Foreign-Supported Democratization
- Abraham Sagi-Schwartz, Children of War and Peace: A Human Development Perspective
Call for Submissions: Journal of Philosophy of International Law
The Journal of Philosophy of International Law (JPIL) is a peer reviewed (and currently an open source Journal) published by ElectronicPublications.Org Ltd-a publisher with no institutional affiliation. The JPIL's sister publications are the Manchester Journal of International Economic Law and the Journal of Islamic State Practices in International Law. The JPIL is being re-launched and will be published twice a year (May and November).
AIM: The Journal has a distinguished Advisory Board and its aim is to scholarly platform for the philosophy of international law. The aims of the JPIL are to promote:
- Critical examination of and legal reflection on the foundations of International Law.
- Philosophical analysis and critique of the nature legal order or any aspect thereof.
The areas that might be covered by these aims include, but are not confined to the following:
- Historical enquiry into International Law for philosophical purposes, or intellectual history as related to the foundations and development of International Law.
- Ethical issues in International Law or the uses of International Law for ethical debate.
- Ontological questions of the existence of International Law and the nature of the reality it attempts to regulate such as states, humanity and world society.
- Epistemological questions of an interdisciplinary nature and enquiry into the limits of disciplinary approaches such as positivism in International Law.
GUIDELINES FOR AUTHORS: The Journal welcomes submission or articles and reviews for consideration with a view to publication. The normal word length for article contributions is between 4000-8000 words. The normal word length for article contributions should be 1000 to 1500 words. Submissions except reviews should include a short abstract of not more than 60 words. The style guide for references is Oxford University Standard for Citation of Legal Authorities (OSCOLA).
PAPER SUBMISSION PROCEDURE: Editorial correspondence, including submissions to the Journal should made electronically to the Journal, should be to the Editor-in-Chief at JPILemail@example.com
New Issue: Transnational Environmental Law
- Jacqueline Peel, Lee Godden & Rodney J. Keenan, Climate Change Law in an Era of Multi-Level Governance
- An Hertogen, Sovereignty as Decisional Independence over Domestic Affairs: The Dispute over Aviation in the EU Emissions Trading System
- Sabina Manea, Defining Emissions Entitlements in the Constitution of the EU Emissions Trading System
- Luca Rubini & Ingrid Jegou, Who’ll Stop the Rain? Allocating Emissions Allowances for Free: Environmental Policy, Economics, and WTO Subsidy Law
- Jonathan Verschuuren & Jan McDonald, Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia
- Grit Ludwig, Property Rights and Participation in REDD+: The Case of Mozambique
- Ann Powers, The Rio+20 Process: Forward Movement for the Environment?
Steinitz: Transnational Legal Process Theories
This Chapter of The Oxford Handbook of International Adjudication is devoted to transnational legal process theories. The main thrust of the Chapter is that the field of transnational legal process theories has proceeded without the benefit of conceptual clarity regarding the key underlying concept: the concept of a/the ‘legal process’ and that a myriad of partly-overlapping concepts — such as international adjudication, supranational adjudication, and transnational litigation — are used interchangeably, willy-nilly. This, in turn, may be explained by three observations. First, that the relevant discourse attempts, by design of the field’s forefathers, to capture both transnational public adjudication and private transnational commercial adjudication (international arbitration) within a single framework. Second, is the tendency to group together international adjudication — arbitration and litigation in international courts and tribunals — and cross-border litigation — litigation with a foreign component in national courts. Third, is a theory deficit — little has changed since Harold Koh observed a “void in legal scholarship” in the mid-1990s, despite the explosion of international adjudication at that time.
The Chapter opens with definitions of ‘transnational legal process(es)’ and with a brief history of the concept. The main section presents some of the leading theories, grouped based upon the underlying perspective of the theorists: The lawyers and legal theorists; the political science and international relations theorists; and the sociologists and socio-legal theorists. In addition to describing these dominant approaches, the Chapter highlights competing methodologies and key themes, such as the internationalization of the rule of law and its discontents and the intended and unintended consequences of the transplantation of institutional models. The Chapter concludes with some general observations and with a number of suggestions for further research.
Mégret: From Peacekeeping to R2P: The Protection of Civilians as the UN's New Raison D'Etre?
This paper was first presented at the Université du Québec at Montréal in a workshop on the evolution of the civilian/military distinction and means deployed to protect civilians in war. It aims to chart the evolution of peace operations in relation to the protection of civilians (POC), a theme that has become dominant in the last decade. Charting the genesis of that evolution, it relates it to evolving understandings about the use of force, the normative framework of reaction to atrocities, and the evolution of the very concept of peace operations. It finds that POC remains a vexed issue, one that deeply challenges our understanding of what peace operations entail.
Stewart: Overdetermined Atrocities
An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, each of the soldiers is right — none made, either directly or through others, an essential contribution to the death. In many respects, this dilemma is the leitmotif for individual responsibility in a globalized world, where criminal harm is so frequently occasioned by collectives. In order to assess the various solutions offered for the overdetermination problem in criminal theory, this paper reconsiders arguments for and against requiring causation in criminal responsibility, competing theoretical accounts of causation and the various unsatisfactory explanations for overdetermination presently on offer. While the paper uses examples from international criminal justice as illustrations, it concludes that overdetermination is a central moral problem of our time. A range of significant consequences follow for the theory and practice of international criminal law.
Drumbl: 'She Makes Me Ashamed to Be a Woman': The Genocide Conviction of Pauline Nyiramasuhuko, 2011
Although much of the literature on gender and conflict focuses, appropriately, on women as victims of violence, women also act as agents of violence, including mass atrocity, during conflict situations. The first (and, to date, only) woman to be convicted by an international tribunal for genocide and rape as a crime against humanity is Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development. She was sentenced to life imprisonment by Trial Chamber II of the International Criminal Tribunal for Rwanda in June 2011. At the time of her conviction, she was 65 years old.
This article is partly biopic (sketching her background), partly legal (summarizing the trial/judgment), and partly interrogative (on this latter note, exploring the intersections between gender and justice in the strategies of participants in the proceedings and, more tellingly, in public portrayals thereof). The judgment itself, at 1,500 pages in length, is gender-neutral in terms of its depiction of Nyiramasuhuko. She is presented as a perpetrator indifferently from her male coperpetrators.
Public portrayals of Nyiramasuhuko, in contrast, exude problematic essentialisms, stereotypes, and imagery of women and mothers. These caricatures – which constitute the focus of this paper – emerge at two distinct levels. First, they are invoked by the media to sensationalize and spectacularize the trial itself – in short, to titillate. Second, they are instrumentally invoked to favor strategic operational outcomes. For example, those stakeholders who condemn Nyiramasuhuko’s conduct turn to her status as woman and mother to accentuate her personal culpability and individual deviance (i.e. she is a worse perpetrator, a greater disappointment, and a more shocking offender because she is a woman, mother, and grandmother). Those who defend her conduct, including Nyiramasuhuko herself, pretextually invoke tropes rooted in imagery of womanhood and motherhood to emphasize the impossibility of her culpability (i.e. she can’t be a perpetrator, in particular of rape, because she is a woman, mother, and grandmother).
Nyiramasuhuko’s trial and conviction also, when deconstructed, offer a number of important lessons for the development and effectiveness of international legal interventions in post-conflict spaces. These proceedings, therefore, can be read didactically. The adulation heaped on her case belies a shadow side, to wit, that the veneration of international justice can lead to neglect of national justice. The proceedings against Nyiramasuhuko also inform of the need to rethink the role of femininities and masculinities in the metastasis of atrocity. Recognizing women as agents of violence, as bystanders to violence, as resisters of violence, as well as victims of violence informs a more nuanced understanding of atrocity and, thereby, solidifies deterrent aspects. In this vein, this article advocates for a more nuanced, grounded, and sublime approach to victims and victimizers, at times the two being one, in mass atrocity. And, finally, the proceedings against Nyiramasuhuko reveal the limits to criminalization in the process of transitional justice more generally, and important components thereof such as emboldening the status of women in post-conflict societies.
Wednesday, October 3, 2012
Call for Submissions: Polish Yearbook of International Law
The Polish Yearbook of International Law (PYIL) is a scientific journal published since 1966 by the Institute of Law Studies of the Polish Academy of Sciences in Warsaw. The focus of the Yearbook is on public and private international law as well as European law. Each volume of PYIL also includes a legal bibliography of Polish authors who have published in the above areas in the particular year.
PYIL is currently seeking articles for its next volume (XXXII), which will be published in June 2013. 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 condition for acceptance, we are particularly interested in articles that address current issues in international and European law that relate to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works.
Submissions should not exceed 15,000 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. Authors must include an abstract not exceeding 250 words. More detailed information, including the PYIL style sheet is available on: http://inp.pan.pl/pyil.
Please send manuscripts to firstname.lastname@example.org. The deadline for submissions is 31 January 2013.
New Issue: African Journal of International and Comparative Law
- Brian Sang Y.K., Improving the Protection of Human and Peoples’ Rights in Africa: Reflections from the Yogogombaye Case
- Abimbola A. Olowofoyeku, Sub-regional Courts and the Recusal Issue: Emergent Practice of the East African Court of Justice
- H. A. Olaniyan, Conflict of Laws Through Nigerian Case Law: A Researcher's Critical Comments (Part 1)
- Adem Kassie Abebe, Limitations to the Rights of Indigenous Peoples in Africa: A Model for Balancing National Interest in Development with the Rights of Indigenous Peoples?
- Omolo Joseph Agutu, Least Developed Countries and the TRIPS Agreement: Arguments for a Shift to Voluntary Compliance
- Paul Kuruk, Investment Issues in the West Africa–European Union Economic Partnership Agreement Negotiations: Is a Harmonised Regional Investment Framework the Answer?
- Edel Hughes, In (Hot) Pursuit of Justice? The Legality of Kenyan Military Operations in Somalia
ASIL: Developing Your Faculty Credentials: An International Law Perspective
Internationally-focused registrants of the AALS Faculty Recruitment Conference are invited to attend this American Society of International Law panel discussion and reception, cosponsored by the Society’s Teaching International Law Interest Group and the AALS Section on International Law. AALS registrants will have the chance to hear recommendations from international law faculty members and the chair of a faculty appointments committee regarding methods for improving one’s hiring prospects in the academic field. Recent faculty hires will also be on hand to have informal conversations with attendees about their personal experiences in obtaining a faculty position during a reception following the panel discussion.
Haider Ala Hamoudi, Professor, Chair of Appointments Committee, University of Pittsburgh School of Law
Sonia Rolland, Associate Professor, Northeastern University School of Law, Vice-Chair, ASIL Teaching International Law Interest Group
New Issue: Arbitration International
- Filip De Ly, Mark Friedman, & Luca Radicati Di Brozolo, International Law Association International Commercial Arbitration Committee’s Report and Recommendations On ‘Confidentiality in International Commercial Arbitration’
- George A. Bermann, Navigating EU Law and the Law of International Arbitration
- Joshua Karton, A Conflict of Interests – Seeking a Way Forward on Publication of International Arbitral Awards
- Adam Raviv, No More Excuses – Toward a Workable System of Dispositive Motions in International Arbitration
- Jayems Dhingra, It is Time to Unseal Sealed Offers in International Arbitration – As a Negotiation Strategy or Pressure Tactics?
- Thayananthan Baskaran, Recent Amendments to the Malaysian Arbitration Act
- Cornel Marian, Proper Notice – Common Problems in Interpreting Article V(1) (b) of the New York Convention in Light of the Lernmorniiproekt Decision of the Swedish Supreme Court
- Andy Moody & Cameron Forsaith, Enforcing Declaratory Awards as a Judgment of the English Court – An Effective Weapon If Fighting in Multiple Jurisdictions?
Kammerhofer: Hans Kelsen in Post-Modern International Legal Scholarship
Can we call Hans Kelsen’s Pure Theory of Law an example - or even the epitome - of post-modern international legal positivism? The Pure Theory of Law’s radical programme rivals that of many other critical scholarly projects; as a ‘down-to-earth’ critical enterprise, its deconstructive arguments hit orthodox doctrine harder than those of most post-modernists. Moreover, it also contains a constructive side. This chapter first and foremost aims to show that the Pure Theory can be an attractive approach for international legal scholars, but it does not assert its inevitability.
The chapter’s main line of argument is developed through four topics, grouped in pairs. In the first set of topics, two key features of the Pure Theory of Law are introduced, developed and discussed. Section 2 outlines the Pure Theory’s radical programme for a science of law. Its dramatic departure from the orthodox opinions of the day - through the purification of legal scholarship - is still with us today. One of the key dualities of the Pure Theory’s approach is explored in Section 3. The two conceptual poles of ‘normativism’ and ‘positivism’ may look like thesis and antithesis, but they are united in synthesis in the legal theory of Kelsen and his followers; they do not constitute two extremes on an oscillating - and irreconcilable - pendulum.
The second set of topics map the structural analysis provided by the Pure Theory of Law onto the sources of international law. Section 4 discusses the Kelsenian Grundnorm and contrasts it with Hart’s Rule of Recognition, before assessing this debate in connection with the origins and foundations of the formal sources of international law. Finally Section 5 focuses attention on one of the least ‘positivist’ sources: the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c) ICJ Statute).
Whitman: The Verdict of Battle: The Law of Victory and the Making of Modern War
Today, war is considered a last resort for resolving disagreements. But a day of staged slaughter on the battlefield was once seen as a legitimate means of settling political disputes. James Whitman argues that pitched battle was essentially a trial with a lawful verdict. And when this contained form of battle ceased to exist, the law of victory gave way to the rule of unbridled force. The Verdict of Battle explains why the ritualized violence of the past was more effective than modern warfare in bringing carnage to an end, and why humanitarian laws that cling to a notion of war as evil have led to longer, more barbaric conflicts.
Belief that sovereigns could, by rights, wage war for profit made the eighteenth century battle’s golden age. A pitched battle was understood as a kind of legal proceeding in which both sides agreed to be bound by the result. To the victor went the spoils, including the fate of kingdoms. But with the nineteenth-century decline of monarchical legitimacy and the rise of republican sentiment, the public no longer accepted the verdict of pitched battles. Ideology rather than politics became war’s just cause. And because modern humanitarian law provided no means for declaring a victor or dispensing spoils at the end of battle, the violence of war dragged on.
The most dangerous wars, Whitman asserts in this iconoclastic tour de force, are the lawless wars we wage today to remake the world in the name of higher moral imperatives.
Rayfuse & Scott: International Law in the Era of Climate Change
Climate change will fundamentally affect every area of human endeavour, including the development of international law. This book maps the current and potential impacts of climate change on the norms, principles, rules and processes of international law.
This timely study brings together a group of leading scholars in their respective fields of international law to examine the impacts of climate change, and our responses to it, on the whole spectrum of international legal regimes, including those dealing with everything from climate displacement, human rights, and international trade and investment, to the oceans, the environment, armed conflicts and the use of force, and outer-space. The volume also examines the impacts of climate change on the underlying principles and processes of international law, including those relating to the making and enforcement of international law and to third party dispute resolution. The book shows that there is much more to dealing with climate change than negotiating one global climate change-specific regime. Other areas of international law can, and must, be included in the solution. In this way international law can maximise its coherence and its efficacy.
Tuesday, October 2, 2012
Call for Papers: Interfaces between International and National Legal Orders: An International Rule of Law Perspective (Reminder)
Kwiatkowska: Submissions to the UN CLCS of Disputed and Undisputed Maritime Boundary Delimitations or Other Unresolved Land or Maritime Disputes of Developing States
This pioneering book surveys fundamental principles of not prejudicing by the UN Commission on the Limits of the Continental Shelf (CLCS) of Disputed and Undisputed Boundary Delimitations or Other Unresolved Land or Maritime Disputes under UNCLOS and the CLCS Rules. It constitutes a remarkable contribution by one of the world's leading academics in the field of international law of the sea to peaceful resolution of oceans and boundary disputes within the framework of the UNCLOS and the United Nations Charter.
The author presents convincing legal reasoning that interpretation of the treaty provisions of UNCLOS and the CLCS Rules, as well as vast state practice of Submissions made to the CLCS are clear in suggesting that - as the 2006 UNCLOS Annex VII Barbados/Trinidad and Tobago Maritime Delimitation (Jurisdiction and Merits) Award and the 2012 ITLOS Bangladesh v. Myanmar Bay of Bengal Maritime Delimitation Judgment confirmed - the CLCS's Recommendations must in no way prejudice existing and prospective boundary delimitations, nor must they prejudice other land or maritime disputes, which can thus well be adjudicated-arbitrated or otherwise resolved: prior or in parallel to or sometimes in a follow-up to the CLCS' involvement. All practical means giving effect to such "without prejudice" principles are also being carefully analyzed, including practice of partial Submissions, deferral of Submissions, consideration of Submissions subject to consent of all parties to pending delimitations and disputes, or filing joint or separate Submissions by Agreement of all states concerned.
In view of much attention given in the UNCLOS literature to Submissions in the Arctic and other regions of the developed states, the high virtue of this book is a comprehensive focus on Submissions and the pertaining delimitations and disputes of developing states of the Caribbean and Latin America, Northeast and Southeast Asia, South Pacific, South Asia and the Middle East, East Africa - Indian Ocean, South Africa, West Africa and North Africa. In the context of such broad geographical coverage, also some practice of developed states is covered, notably that of the United States, France, Britain, Japan, Australia and Spain.
The full docket of the CLCS and an intimate link between process of disputed and undisputed boundary delimitations (by states and the judicial-arbitral fora) and process of delineation of outer CS limit beyond 200 miles (by the CLCS) will ensure that the CLCS remains in the UN-based center of stimulating law of the sea development and peaceful settlement of oceans disputes as a part of global system of the peace and security for at least the next two decades.
New Issue: Revue de Droit Militaire et de Droit de la Guerre
- Agora: The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends (Celebration of the Military Law and the Law of War Review’s 50th Anniversary)
- Thomas E. Randall, The Evolving Role of the Legal Advisor in Support of Military Operations
- Ian Henderson, Legal Officers in the Australian Defence Force: Functions by Rank and Competency Level, along with a Case-Study on Operations
- Liron A. Libman, Legal Advice in the Conduct of Operations in the Israeli Defense Forces
- Rob McLaughlin, ‘Giving’ Operational Legal Advice: Context and Method
- Magne Frostad, The Responsibility of Sending States for Human Rights Violations during Peace Support Operations and the Issue of Detention
- Chris De Cock, Verzetsbestrijdingsoperaties in Afghanistan: welk recht moet worden toegepast?
- Martin D. Fink, UN-Mandated Marine Arms Embargo Operations in Operation Unified Protector
- Tommaso Natoli, Considerazioni sull’intervento militare in Libia a dieci anni dalla nascita della ‘Responsibility to Protect’
Call for Submissions: Revista Latinoamericana de Derecho Comercial Internacional
We are currently considering contributions for publication in Issue 1, Volume 1, 2013.
The School of Law of the National Autonomous University of Mexico is pleased to announce the launch of its brand-new academic journal:
The Journal focuses on the study and fostering of ideas regarding international trade law, on a bilingual basis (English-Spanish), devoted extensively to topical issues relating to:
• International Commercial Arbitration
• Investment Arbitration
• Investment Law & Policy
• International Economic Law
We encourage the submission of manuscripts dealing with current problems and their proposed solutions as well as trend topics on the aforementioned subjects.
The Journal welcomes contributions in English and/or Spanish.
The Journal is divided into three sections on which contributions are well received:
1. Academic Articles. This section will contain those contributions related to academic works dealing with current topics and legal problems its author considers relevant for the discussion of such topics.
2. Case Law Reviews. This section it will include contributions summarizing new case law, which may contain brief opinions on the holding of the relevant court or arbitral tribunal.
3. Books, Conferences & Legislative Up-Date Notes. All notes related to books, conferences and legislative updates from any jurisdiction containing a brief opinion on the matter summarized are welcomed.
For the criteria on the submission of contributions, please click here.
Deadline to submit contributions
November 31, 2012.
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Actualmente estamos recibiendo ensayos para publicación en el Número 1, Volumen 1, 2013.
La Facultad de Derecho de la Universidad Nacional Autónoma de México se complace en anunciar su nueva revista académica:
La Revista se enfoca en el estudio y promoción de ideas relacionadas al derecho comercial internacional, en una base bilingüe (inglés-español), concentrándose extensivamente en aspectos relacionados con el comercio internacional, incluyendo especialmente temas relativos al:
• Arbitraje Comercial Internacional
• Arbitraje de Inversión
• Derecho y Política de Inversión Extranjera
• Derecho Económico Internacional
Alentamos la presentación de ensayos que se ocupen de los problemas actuales y sus soluciones, así como temas en boga sobre las materias mencionadas.
La Revista está abierta a contribuciones en inglés y/o español.
La Revista se divide en tres secciones en las que las contribuciones son bien recibidas:
1. Artículos académicos. Esta sección contendrá aquellas contribuciones relacionadas con trabajos académicos que se ocupen de temas de actualidad y problemas legales que su autor considere puedan servir para la discusión de dichos temas.
2. Resúmenes de casos. En esta sección se publicarán aquellas contribuciones cuya finalidad sea resumir nuevos casos, mismas que podrán contener breves opiniones sobre la decisión del tribunal estatal o tribunal arbitral de que se trate.
3. Notas sobre libros, conferencias y actualizaciones legislativas. Son bienvenidas todas las notas relacionadas con libros, conferencias y actualizaciones legislativas de cualquier jurisdicción, las cuales contengan una breve opinión sobre el asunto comentado.
Para mayor información sobre los criterios para presentar contribuciones, favor de dar clic aquí.
Fecha límite para presentar ensayos
31 de noviembre de 2012.
Pauwelyn, Wessel, & Wouters: Informal International Lawmaking
- Joost Pauwelyn, Ramses Wessel & Jan Wouters, An Introduction to Informal International Lawmaking
- Joost Pauwelyn, Informal International Lawmaking: Framing the Concept and Research Questions
- Ayelet Berman & Ramses Wessel, The Legal Form and Status of Informal International Lawmaking Bodies
- Liliana Andonova & Manfred Elsig, Informal International Lawmaking: A Conceptual View from International Relations
- Stefan Voigt, The Economics of Informal International Lawmaking: An Empirical Assessment
- Philipp Dann & Marie v. Engelhardt, Legal Approaches to Global Governance and Accountability: Informal Lawmaking, International Public Authority, and Global Administrative Law Compared
- Joost Pauwelyn, Is It International Law Or Not and Does It Even Matter?
- Dick W.P. Ruiter & Ramses Wessel, The Legal Nature of Informal International Law: A Legal Theoretical Exercise
- Jean d'Aspremont, From a Pluralization of International Norm-Making Processes to a Pluralization of Our Concept of International Law
- Andrea Bianchi, Reflexive Butterfly Catching: Insights from a Situated Catcher
- Jan Klabbers, Impact of Informal International Law before International Courts and Tribunals
- Gregory Shaffer & Mark Pollack, The Interaction Between Formal and Informal International Lawmaking
- Yane Svetiev, The Limits of Informal International Law: Enforcement, Norm-generation, and Learning in the International Competition Network
- Eyal Benvenisti, Toward a Typology of Informal International Lawmaking: Mechanisms and their Distinct Accountability Gaps
- Tim Corthaut, Bruno Demeyere, Nicholas Hachez & Jan Wouters: Operationalizing the Accountability of Informal International Lawmaking
- Fabian Amtenbrink, Towards an Index of Accountability for Informal International Lawmakers?
- Harm Schepel, Informal Lawmaking and the Accountability of Private Governance
- Ellen Vos, Making Informal International Law Accountable: Lessons from the EU
- Lorenzo Casini, Domestic Public Authorities Within Global Networks: Institutional and Procedural Design, Accountability, and Review
- Alexandre Flückiger, Keeping Informal Lawmaking Domestically Accountable: Legal Impact and Accountability of Domestic Soft Law
- Pierre-Hugues Verdier, U.S. Implementation of Basel II: Lessons for Informal International Lawmaking
- Ayelet Bermanm The Role of Domestic Administrative Law in the Accountability of Informal International Lawmaking: The Case of the ICH
- Joost Pauwelyn, Ramses Wessel & Jan Wouters, Informal International Lawmaking: An Assessment and Template to Keep it Both Effective and Accountable
Crawford: Brownlie's Principles of Public International Law (Eighth Edition)
This is the eighth edition of Sir Ian Brownlie's classic distillation of public international law. Serving as a single volume introduction to the field as a whole, the book seeks to present international law as a system that is based on, and helps structure, relations among states and other entities at the international level. It aims to identify the constituent elements of that system in a clear and accessible fashion.
This eighth edition, fully updated by James Crawford, Whewell Professor of International Law at the University of Cambridge, continues to provide the balance, clarity and expertise expected from this classic text. Completely updated to take account of the many areas of expansion and development in international law which have occurred since earlier editions, all chapters have been reviewed and brought up to date. The eighth edition features a new introduction and the chapters on environmental law, immunities, responsibility, use of force and high seas freedoms have been substantially rewritten.
Wautelet, Kruger, & Coppens: The Practice of Arbitration: Essays in Honour of Hans van Houtte
This book offers a series of commentaries on noteworthy arbitral awards and court decisions on arbitration. All contributions focus on the practice of arbitration. Influential authors with proven arbitration experience share their insights on celebrated and less well-known cases, drawn from various countries, various arbitration institutions and including both commercial and investment arbitration.
This collection of essays celebrates the work and scholarship of Hans Van Houtte, who has been a professor of international commercial arbitration at the University of Leuven for more than 20 years. In addition to his widely -praised contribution to the theory of arbitration, Professor Van Houtte has built a long career in the practice of arbitration, presiding over a vast array of arbitratal tribunals and holding appointments to international tribunals, most recently as president of the Iran-US Claims Tribunal.
Jacobs: Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories
This chapter discusses legal positivism in international criminal law through the lens of the Principle of Legality. First describing the slow adoption of the principle of legality in ICL from the Nuremberg and Tokyo trials, the chapter argues against most of the reasons put forward to limit its application in contemporary practice of ICL. In order to do this, the Chapter first develops the idea that the principle of legality imports legal positivism as a substantive norm of ICL, which makes it an original field of law and that the principle of legality therefore acts as a Rule of Conflict of Theories. Looking more closely at the practice of international courts, the chapter suggests that the principle of legality requires, among other things, the slow exclusion of customary law as a source of ICL and the exclusion of Articles 31 and 32 of the Vienna Convention on the Law of Treaties as means of interpreting international criminal statutes, even in the case of the ICC. The Chapter concludes with some general issues on the tension between criminal lawyers and international lawyers in ICL and on the limits of the alleged specifics of the field.
Monday, October 1, 2012
Tams & Tietje: Documents in International Economic Law: Trade, Investment, and Finance
International economic law is one of the crucial branches of international law, and of major importance both practically and conceptually. This document collection brings together all of the most important treaties, regulations, and other documents in this area. It presents the key documents of contemporary international economic law in one single volume, so to provide students as well as practitioners with an accessible reference guide. The book will feature a brief introduction, providing readers with a 'roadmap' through what is perceived by many as the maze of international economic law.
The collection brings together documents relating to the three main pillars of international economic law, namely world trade law, international monetary law, and international investment law. These are preceded by texts of a more general character, notably issued by the United Nations and clarifying the parameters of international economic relations. This broad focus enables readers to view international economic law in its breadth and to avoid the pitfalls of a 'compartmentalised' approach, which exclusively focuses on, for example, WTO law or investment law without appreciating their interrelation. By bringing together key texts of all three branches, the book should be invaluable to students taking general courses of international economic law as well as more specialised courses such as WTO law or investment law.
Pérez Cepeda: El principio de Justicia Universal: Fundamentos y límites
Las diversas aportaciones que se presentan tienen un punto en común: han tratado de elaborar un libro que, de nuevo, vuelva sobre las direrentes perspectivas multidisciplinares necesariamente interrelacionadas del pincipio de justicia universal. Atinadamente, los autores de este libro, han abordado un análisis complejísimo de entramado jurídico-penal-procesal-internacional puesto en marcha con la aplicación de este pincipio que tienen a la Humanidad como sujeto de derechos y que ha significado un salto cualitativo muy importante en la protección jurisdiccional de los derechos humanos en la aldea global. En este contexto, se ponen de manifiesto alternativas teóricas, legislativas y prácticas no solo posibles a la actual regulación del principio de justicia universal en nuestro país y en el ámbito internacional, sino sobre todo consecuentes y coherentes con estos postulados.
Hsueh: Direct Effect of WTO Agreements: Practices and Arguments
The book investigates the debates of the direct effect of WTO agreements. There are three reasons why the consideration of direct effect is significant. First, direct effect is concerned with the separation of powers, specifically with the extent of involvement of the judicial branch of the member state in enforcing its obligations. Second, the effectiveness of WTO agreements depends more and more on the cooperation of national courts. Several WTO agreements have circumvented the legislative branch and set forth specific rules that the executive branches of the members must respect. Third, direct effect relates to legal protection for individuals who engage in international trade and could grant greater protection for the interests of individuals. This research aims at giving answers to the debate of whether the direct effect of WTO agreements should be granted. The subordinated and interrelated aims are to clarify the positions of major members and their reasons, to search grounds for granting the direct effect of WTO agreements, and to identify the difficulties arising thereby.
New Issue: Cuadernos de Derecho Transnacional
- Ana Paloma Abarca Junco & Miguel Gómez Jene, Arbitraje familiar internacional
- Giacomo Biagioni, Alcuni caratteri generali del forum necessitatis nello spazio giudiziario europeo
- Celia M. Caamiña Domínguez, La garantía del Estado
- Javier Carrascosa González, La Ley aplicable a la separación judicial y al divorcio en defecto de elección de ley por los cónyuges. Análisis del artículo 8 del Reglamento 1259/2010 de 20 diciembre 2010
- Luis F. Carrillo Pozo, Eficacia en españa de las resoluciones extranjeras en materia de efectos económicos del matrimonio
- María del Pilar Diago Diago, Gentlemen’s agreements y contratos de financiación internacional
- Carlos Llorente Gómez de Segura, Los contratos internacionales de utilización de aeronaves: a modo de síntesis
- Jorge Oviedo Albán, The general principles of the United Nations Convention for the International Sale of Goods
- María Gema Quintero Lima, La proteccion transnacional de los derechos laborales en materia de seguridad y salud: una asimetria comunitaria y sus remiendos institucionales
- Sara de Vido, The relevance of double nationality to conflict-of-laws issues relating to divorce and legal separation in Europe
- Celia M. Caamiña Domínguez, Los beneficiarios del derecho de participación tras el fallecimiento del autor (STJUE de 15 abril 2010, Caso Fundación Gala-Salvador Dalí)
- Beatriz Campuzano Díaz, El TJUE de nuevo con el foro de la pluralidad de demandados. Nota a la sentencia de 1 de diciembre de 2011 en el asunto Painer
- Pilar Juárez Pérez, El controvertido ‘derecho’ de residencia de los nacionales turcos en la Unión Europea: La STJUE de 15 noviembre 2011 (asunto Dereci)
- Isabel Lorente Martínez, Lugar del hecho dañoso y obligaciones extracontractuales. La sentencia del TJUE de 25 octubre 2011 y el coste de la litigación internacional en Internet
- Maria Joao Matias Fernandex, O conceito de «Actividad Dirigida» inscrito no artigo 15.º, numero 1 alinea c). Do Regulamento «Bruxelas I» e a Internet: subsidios do Tribunal de Justiça por ocãsiao do acórdão Pammer/Alpenhof
- Yaritza Pérez Pacheco, Objeciones a la jurisdicción arbitral del CIADI
- María Gema Quintero Lima, Un nuevo ejemplo de la actividad profiláctica del Tribunal de Luxemburgo: a propósito de la STJCE de 17 de noviembre de 2011 (asunto Van Ardennen)
- Mª Ángeles Rodríguez Vázquez, El difícil equilibrio entre el derecho a la tutela judicial del demandante y la protección de los derechos de defensa: el asunto Lindner
New Issue: Journal of World Trade
- Michel Cartland, Gérard Depayre, & Jan Woznowski, Is Something Going Wrong in the WTO Dispute Settlement?
- Aluisio de Lima-Campos & Juan Antonio Gaviria, A Case for Misaligned Currencies as Countervailable Subsidies
- Rudolf Adlung & Sébastien Miroudot, Poison in the Wine? Tracing GATS-Minus Commitments in Regional Trade Agreements
- Fabrizio Meliadò, Fisheries Management Standards in the WTO Fisheries Subsidies Talks: Learning How to Discipline Environmental PPMs?
- Julia Ya Qin, Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection
- Kong Qingjiang, China’s Uncharted FTA Strategy
- Crina Viju, May T. Yeung, & William A. Kerr, The Trade Implications of the Post-Moratorium European Union Approval System for Genetically Modified Organisms
Shaffer & Sutton: The Rise of Middle-Income Countries in the International Trading System
This paper addresses the implications of the rise of China and other middle-income countries (MICs) for the international trading system. The paper assesses how MICs have engaged with the international trading system over time, what strategies they advance, and what are the implications for going forward, focusing on the negotiation and enforcement of the rules of the World Trade Organization (WTO). Part I assesses the extent to which analysis of trade and trade policy can and should meaningfully treat MICs as a distinct category. It sets forth and analyzes a theory of MIC trading interests that calls for greater policy space for economic development. Part II provides a descriptive background of changes in the economic power and trading patterns of MICs that have implications for future trade negotiations and dispute settlement. Parts III, IV, and V respectively examine the experiences of MICs in multilateral trade negotiations, regional and bilateral trade agreements, and multilateral dispute settlement. Part VI concludes regarding MIC trading strategies and their global implications.
Ohlin: Organizational Criminality
The recent international criminal law jurisprudence on collective action has swung back and forth between two approaches to perpetration, neither of which can lay sole claim to being fully representative of the world’s legal cultures. Courts, as well as drafters of tribunal statutes, are tasked with a painful decision of choosing sides, and must give up any pretense to harmonizing international criminal law with its domestic analogues. If international criminal law selects the civil law approach of co-perpetration, it thereby turns its back on the rich common-law tradition of conspiracy and its functional analogue of JCE; if, on the other hand, international criminal law selects the common law approach, it replicates a series of criminal law principles that are anathema to civil lawyers. In a sense, this is the Nuremberg dilemma about conspiracy all over again, with a choice to be made between legal cultures. It is also, however, a fundamental precept of international criminal law that it ought to respect general principles of criminal law. But when the general principles of criminal law in domestic systems are in a state of radical pluralism, harmonization at the international level is not so easy to accomplish. This short Essay for an edited volume on pluralism and harmonization in international law explores a different approach to these issues, although without laying claim to resolving the dilemma represented by this pendulum. I advocate for the centrality of the organization itself within the doctrine, though not in the sense of Roxin’s Organisationsherrschaft, which is perpetration through an organization, but rather in the sense of perpetration by an organization. The following Essay will explain how this approach seeks to escape the pendulum swing and also what it would mean for international criminal law to adopt a more organization-centric approach to modes of liability. I conclude that a greater attention to the role of horizontal organizations will help ensure fidelity to the principle of individual culpability, rather than violate it.
Sunday, September 30, 2012
Schmalenbach: Aktuelle Herausforderungen des Völkerrechts
Dieser Sammelband enthält die Beiträge des 36. Österreichischen Völkerrechtstages 2011. Er behandelt u. a. das internationale Investitionsschutzrecht mit einem besonderen Augenmerk auf die Europäische Union. Den völkerrechtlichen Herausforderungen des Informationszeitalters widmet sich ein weiterer Teil - ein Bereich, der nicht zuletzt durch die Geschehnisse des «arabischen Frühlings» 2011 besondere Aktualität erlangte. In Form eines Projektberichts wird sodann die Standardsetzung innerhalb der Europäischen Menschenrechtsordnung durch Monitoring am Beispiel von ausgewählten Expertenorganen des Europarates erläutert. Des Weiteren finden sich die Vorträge, die sich den aktuellen Problemen des Diplomaten- und Konsularrechts widmen. Der Band schließt ab mit dem traditionellen Bericht des Völkerrechtsbüros aus der völkerrechtlichen Praxis Österreichs.
New Issue: Journal of International Humanitarian Legal Studies
- Dug Cubie, An Analysis of Soft Law Applicable to Humanitarian Assistance: Relative Normativity in Action?
- Sergei Yu. Marochkin & Vladimir A. Popov, International Humanitarian and Human Rights Law in Russian Courts
- Michael Salter & Maggi Eastwood, Post-war Developments of the Martens Clause: The Codification of `Crimes Against Humanity' Applicable to Acts of Genocide
- Bede Sheppard & Kennji Kizuka, Taking Armed Conflict Out of the Classroom: International and Domestic Legal Protections for Students When Combatants Use Schools
- Kirsten Campbell, Victims and Perpetrators of International Crimes: The Problem of the `Legal Person'