Saturday, April 20, 2013

Debuf: Captured in War: Lawful Internment in Armed Conflict

Els Debuf (International Committee of the Red Cross) has published Captured in War: Lawful Internment in Armed Conflict (Hart Publishing 2013). Here's the abstract:

A security measure designed to neutralize threats from an enemy party, internment is common in warfare. In the context of internment operations in Afghanistan, Iraq, Guantanamo Bay and the Democratic Republic of the Congo, and of increasing international military intervention in internal conflicts more generally, the legal framework for internment has been widely criticised for being at best ambiguous and full of loopholes, at worst out-dated and inadequate.

In light of such criticism, this book examines the continued relevance and adequacy of the existing legal framework, identifies its shortcomings and proposes possible avenues to remedy them. It offers answers to fundamental questions such as who may be lawfully interned in armed conflict, on what legal basis, for what reasons and for how long. Starting from the premise that internment in armed conflict cannot be lawful under one branch of international law while at the same time unlawful under another, the book offers a fresh view of the interaction between the simultaneously applicable norms of international humanitarian and human rights law. Applying this approach to a comprehensive analysis of relevant normative texts, international and national case-law and actual battlefield practice of the 20th and 21st century, the book not only answers the questions it raises but also offers fresh views of related issues such as the personal scope of application of the Third and Fourth Geneva Conventions, the influence of international human rights law on the interpretation of international humanitarian law and whether States need to derogate from the first in order to rely on the latter.

Reaffirming the adequacy of the legal framework for internment in international armed conflict and occupation, the author nevertheless demonstrates the importance of interpreting that framework in conformity with subsequent developments in international law and actual practice. She lays bare significant challenges in non-international armed conflict, such as the lack of a legal basis to intern in international humanitarian law and the serious risks involved in solutions proposed so far to remedy that gap. Indeed, sole reliance on international human rights law, domestic law or, alternatively, on the rules on targeting are unsatisfactory and inappropriate. Heeding calls for the clarification and modernization of the existing legal framework for internment in armed conflict, the author puts forward concrete proposals for normative developments that seek to reconcile both the practical realities of contemporary armed conflict and significant developments in international law that affirm the right to liberty as one of the most fundamental attributes of any human being.

Schwöbel: The Comfort of International Criminal Law

Christine E.J. Schwöbel (Univ. of Liverpool - Law) has posted The Comfort of International Criminal Law (Law and Critique, forthcoming). Here's the abstract:
This paper examines the changing relationship between the disciplines of international criminal law (ICL) and international human rights law; I particularly focus on the associations of the former with comfort and the latter with discomfort. It appears that a shift may be taking place in that ICL is being refashioned from a field enforcing human rights law to one which has assumed an entirely independent status. Indeed, ICL appears to be crowding out international human rights law. The inquiry begins with the question whether ICL is becoming the preferred discursive framework for practitioners, academics, and politicians. A contemporary desire for certainty over contention, action over discourse, and simplicity over complexity is revealed; in short, a preference for comfort over discomfort. The second half of the paper is dedicated to highlighting some of the concerns attached to this preference and suggesting possible techniques for addressing these concerns. Employing the idea of 'discomfort', I refer to the relevance of (a) Michel Foucault's Ethics of Discomfort, (b) Judith Butler's idea of the Language of Discomfort, and (c) draw on Franz Kafka's literary exploration of the Comfort in Discomfort. The ideas culminate in an invitation to relearn the comfort in discomfort of contention, discourse and complexity in international law.

Friday, April 19, 2013

Ohlin: The One or the Many

Jens David Ohlin (Cornell Univ. - Law) has posted The One or the Many (Criminal Law & Philosophy, forthcoming). Here's the abstract:
The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral responsibility. Under this view, collective moral agency is a real phenomenon, though the existence of the collective neither obviates nor eliminates the moral responsibility of the individuals from which it is composed. My own evaluation of the proposed solution concentrates on Davidson’s Principle of Charity and whether behavior interpretation requires viewing such agents in particular ways so as to maximize rationality. By analogy to the distinctive rationality of long-term plans, where the rationality of an individual act can only be understood relative to its place in the rationally justified long-term plan of a single individual, I also consider the rationality of individual acts whose rationality can only be understood relative to the group endeavors of which they are a part. Finally, Part III traces some implications of the two-level solution for legal doctrine, in particular the role of collective organizations in the recent jurisprudence of the International Criminal Court. In particular, I note that the ICC has recently become more and more focused on the role played by goal-oriented collectives, in particular with regard to the plan or policy requirement for crimes against humanity and, in the context of modes of liability, indirect liability for crimes committed through an organization (Organisationsherrschaft).

Ruggie: Just Business: Multinational Corporations and Human Rights

John Ruggie (Harvard Univ. - Kennedy School of Government; formerly, UN Special Representative for Business and Human Rights) has published Just Business: Multinational Corporations and Human Rights (W.W. Norton 2013). Here's the abstract:

One of the most vexing human rights issues of our time has been how to protect the rights of individuals and communities worldwide in an age of globalization and multinational business. Indeed, from Indonesian sweatshops to oil-based violence in Nigeria, the challenges of regulating harmful corporate practices in some of the world’s most difficult regions long seemed insurmountable. Human rights groups and businesses were locked in a stalemate, unable to find common ground. In 2005, the United Nations appointed John Gerard Ruggie to the modest task of clarifying the main issues. Six years later, he had accomplished much more than that. Ruggie had developed his now-famous "Guiding Principles on Business and Human Rights," which provided a road map for ensuring responsible global corporate practices. The principles were unanimously endorsed by the UN and embraced and implemented by other international bodies, businesses, governments, workers’ organizations, and human rights groups, keying a revolution in corporate social responsibility.

Just Business tells the powerful story of how these landmark “Ruggie Rules” came to exist. Ruggie demonstrates how, to solve a seemingly unsolvable problem, he had to abandon many widespread and long-held understandings about the relationships between businesses, governments, rights, and law, and develop fresh ways of viewing the issues. He also takes us through the journey of assembling the right type of team, of witnessing the severity of the problem firsthand, and of pressing through the many obstacles such a daunting endeavor faced.

Beyani: Protection of the Right to Seek and Obtain Asylum under the African Human Rights System

Chaloka Beyani (London School of Economics - Law) has published Protection of the Right to Seek and Obtain Asylum under the African Human Rights System (Martinus Nijhoff Publishers 2013). Here's the abstract:
The use of international human rights machinery to protect refugees has acquired an important dimension in recent years. This is true of both the United Nations treaty body system and the African, European and Inter-American regional systems of of human rights. The result is a dynamic international invigoration of traditional refugee law that, in contradistinction, tends to be applied at the level of national courts and tribunals. Yet the precise role of human rights in the protection of refugees is sometimes viewed with suspicion and uncertainty. This Commentary provides a valuable insight into the use of human rights in the protection of refugees through the prism of the African Human Rights System.

Conference: The Indian Society of International Law's 42nd Annual Conference

On April 20-21, 2013, the Indian Society of International Law will hold its 42nd Annual Conference, in New Delhi. The following themes will be discussed: (1) Cyber Law - Internet Treaties; (2) Investment Treaties - Investment Disputes; (3) International Environmental Law, (i) Recent Developments, (ii) Climate Change - Post-Doha Status; and (4) Private International Law, (i) Inter-country Adoption, (ii) Enforcement of Foreign Arbitral Awards. The program is here.

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 60, no. 1, May 2013) is out. Contents include:
  • Jure Vidmar, Rethinking Jus Cogens After Germany v. Italy: Back to Article 53?
  • Ademola Abass, The Proposed Criminal Jurisdiction for the African Court: Some Problematical Aspects
  • Denis Abels, Positive Obligations and the International Criminal Tribunals' Law of Detention: Funding Family Visits and the ICC Presidency's Ngudjolo Decision
  • M.D. Fink, Maritime Embargo Operations: Naval Implementation of UN Sanctions at Sea Under Articles 41 and 42 of the UN Charter
  • Cliff Farhang, Mapping the Approaches to the Question of Exemption from International Responsibility

Thursday, April 18, 2013

Bradley: Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries

Curtis A. Bradley (Duke Univ. - Law) has posted an ASIL Insight on Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries.

Scheiber & Paik: Regions, Institutions, and Law of the Sea: Studies in Ocean Governance

Harry N. Scheiber (Univ. of California, Berkeley - Law) & Jin-Hyun Paik (Judge, International Tribunal for the Law of the Sea) have published Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Martinus Nijhoff Publishers 2013). The table of contents is here. Here's the abstract:
Regions, Institutions, and Law of the Sea: Studies in Ocean Governance offers fresh perspectives both on issues specific to major ocean regions, and on the nature and functions of institutions that implement the legal order of the oceans. Of special interest is a set of chapters by distinguished scholars and jurists providing nuanced analysis of the International Tribunal for the Law of the Sea as a key actor in the institutional and regime structure. Other expert authors contribute timely analysis of specific ocean uses in the context of implementation of "soft" and "hard" law. Piracy, global warming and ecosystem challenges, geo-engineering, control of pollution in shipping operations, Seabed Authority policy, and performance of the UN Regional Seas Programme are among key issues presented in both their regional and legal dimensions. Also considered in depth are law, ocean policy, and the operation of international organizations in Northeast Asia, Latin America, the Indian Ocean region, the African coastal areas, and the Arctic.

Schabas: The Universal Declaration of Human Rights: The Travaux Préparatoires

William A. Schabas (Middlesex Univ. - Law) has published The Universal Declaration of Human Rights: The Travaux Préparatoires (Cambridge Univ. Press 2013). Here's the abstract:
A collection of United Nations documents associated with the drafting of the Universal Declaration of Human Rights, these volumes facilitate research into the scope of, meaning of and intent behind the instrument's provisions. It permits an examination of the various drafts of what became the thirty articles of the Declaration, including one of the earliest documents – a compilation of human rights provisions from national constitutions, organised thematically. The documents are organised chronologically and thorough thematic indexing facilitates research into the origins of specific rights and norms. It is also annotated in order to provide information relating to names, places, events and concepts that might have been familiar in the late 1940s but are today more obscure.

Conference: Transnational Judicial Dialogue: Concept, Method, Extent, Effects

On June 21-22, 2013, the ERC project "MultiRights," the ECRP project "International Law through the National Prism: the Impact of Judicial Dialogue," and the Norwegian Centre of Excellence "PluriCourts" will host a conference on "Transnational Judicial Dialogue: Concept, Method, Extent and Effects." The program is here.

Dorsey & Paulussen: Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism

Jessica Dorsey (T.M.C. Asser Instituut) & Christophe Paulussen (T.M.C. Asser Instituut) have posted Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism. Here's the abstract:
On 10 and 11 January 2013, the T.M.C. Asser Instituut and the International Centre for Counter-Terrorism – The Hague (ICCT), in cooperation with the International Humanitarian and Criminal Law Platform, the Konrad Adenauer Stiftung, the Municipality of The Hague and the Netherlands Ministry of Foreign Affairs organised a two-day symposium entitled The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism. During the symposium, twenty-seven top panellists and moderators from academia, civil society, governments, the military and multilateral organisations discussed the contours of various approaches states take against non-state actors with the goal of countering terrorism. Specifically, the symposium addressed issues related to uses of force and how these may affect and define the geographic and temporal scope and limitations of the laws of armed conflict in relation to counter-terrorism. Besides this main theme, which operates within the armed conflict paradigm, the symposium also discussed and assessed the law-enforcement paradigm. This research paper aims to highlight the main issues that were addressed during the symposium and in doing so, will follow the titles of the six panels: a) Whenever War?: Temporal Limitations to Armed Conflict; b) Wherever War?: Geographic Limitations to Armed Conflict; c) International Humanitarian Law and International Human Rights Law: Menu à la Carte?; d) A Case Study on Targeted Killings and Drones; e) Law Enforcement Approach in Counter-Terrorism; and f) The Way Forward: The Need for a New Framework for Counter-Terrorism?

Garrido Muñoz: Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas

Asier Garrido Muñoz (Univ. of Salamanca - Law) has published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas. De la técnica jurídica a los valores (Tirant lo Blanch 2013). Here's the abstract:
Las sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas, así como sus homologas europeas, han sido objeto de una creciente conflictividad doctrinal y judicial cuya problemática de fondo, aún no resuelta, es tan extensa como técnicamente compleja. Este trabajo ofrece una visión actualizada de la relación entre el derecho a las garantías judiciales y estas medidas desde una doble perspectiva internacional y europea. La originalidad del enfoque reside en el análisis de ámbitos como la teoría de la sanción internacional y del ius cogens, la responsabilidad del Estado por los actos de organizaciones internacionales o la estructura de los procedimientos sancionadores de la UE. Se añade un riguroso y pertinente análisis sobre la posición de la Carta de las Naciones Unidas en el Derecho internacional. Recogiendo la jurisprudencia más reciente en la materia, el objetivo del autor es demostrar que los argumentos técnico-jurídicos no sólo no impiden, sino que exigen la protección judicial de los afectados por estas "listas negras" antiterroristas, tanto a nivel internacional como europeo.

Wednesday, April 17, 2013

New Issue: Journal of International Maritime Law

The latest issue of the Journal of International Maritime Law (Vol. 18, no. 6, 2012) is out. Contents include:
  • Michael F. Sturley, Amending the Rotterdam Rules: technical corrections to the U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
  • Trine-Lise Wilhelmsen, Nordic Marine Insurance Plan 2013: a regional approach to a balanced contract?
  • Tabetha Kurtz-Shefford, Liability for offshore facility pollution damage after the Deepwater Horizon? What happened to the global solution?

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 13, no. 2, May 2013) is out. Contents include:
  • Johannes Urpelainen, A model of dynamic climate governance: dream big, win small
  • Tobias Böhmelt & Carola Betzold, The impact of environmental interest groups in international negotiations: Do ENGOs induce stronger environmental commitments?
  • Marjanneke J. Vijge, The promise of new institutionalism: explaining the absence of a World or United Nations Environment Organisation
  • Geoffroy Filoche, Domestic biodiplomacy: navigating between provider and user categories for genetic resources in Brazil and French Guiana
  • Riikka Sievänen, John Sumelius, K. M. Zahidul Islam & Mila Sell, From struggle in responsible investment to potential to improve global environmental governance through UN PRI

Reymond: L'attribution de comportements d'organes de facto et d'agents de l'Etat en droit international

Jérôme Reymond has published L'attribution de comportements d'organes de facto et d'agents de l'Etat en droit international : Etude sur la responsabilité internationale des Etats (Schulthess Verlag 2013). Here's the abstract:
La résolution 56/83, adoptée par l’AGONU le 12 décembre 2001, n’a pas levé toutes les incertitudes en matière de responsabilité internationale des Etats, s’agissant notamment de la question de l’attribution de comportements d’organes de facto et des agents de l’Etat. Consacré à cette problématique, cet ouvrage examine le processus de codification de la règlementation en matière de responsabilité internationale des Etats, puis la place et la nature des règles régissant l’attribution au sein de la théorie de la responsabilité internationale des Etats. Enfin, l’ouvrage cherche alors à établir la portée précise des règles en matière d’attribution de comportements d’organes de facto et d’agents de l’Etat pour proposer finalement une lecture originale et cohérente de la jurisprudence internationale et de certains courants doctrinaux.

New Issue: Asian Journal of WTO & International Health Law and Policy

The latest issue of the Asian Journal of WTO & International Health Law and Policy (Vol. 7, no. 2, September 2012) is out. Contents include:
  • Chang-Fa Lo, External Regime Coherence: WTO/BIT and Public Health Tension as an Illustration
  • Austin I. Pullé, Promoting Global Food Democracy – GM Foods, Trade Law, the Environment & Ethics
  • Laurence Boulle, Balancing Competing Interests in FDI Policy – A Developing Country Perspective
  • Lisa Forman, From TRIPS-Plus to Rights-Plus? Exploring Right to Health Impact Assessment of Trade-Related Intellectual Property Rights Through the Thai Experience
  • Yi-Chen Su, Lost in Interpretation: Solving the Myth of Diagnostic – Method Patents
  • Sieh Lee Mei Ling & Nurul Ahmad Mahdzan, Measurement and Conceptual Issues: In International Trade in Services Data
  • Lilian Richieri Hanania, Cultural Diversity and Regional Trade Agreements – The European Union Experience with Cultural Cooperation Frameworks
  • R. Rajesh Babu, Remedies for Violation of WTO Law: The Misplaced Notion of Effectiveness

New Issue: International Organization

The latest issue of International Organization (Vol. 67, no. 2, Spring 2013) is out. Contents include:
  • Research Articles
    • Jonathan Mercer, Emotion and Strategy in the Korean War
    • Paul K. MacDonald, “Retribution Must Succeed Rebellion”: The Colonial Origins of Counterinsurgency Failure
    • Charlotte Epstein, Theorizing Agency in Hobbes's Wake: The Rational Actor, the Self, or the Speaking Subject?
    • Ted Hopf, Common-sense Constructivism and Hegemony in World Politics
    • Yoram Z. Haftel & Alexander Thompson, Delayed Ratification: The Domestic Fate of Bilateral Investment Treaties
    • Lars-Erik Cederman, Kristian Skrede Gleditsch, Idean Salehyan & Julian Wucherpfennig, Transborder Ethnic Kin and Civil War
    • Martin Ardanaz, M. Victoria Murillo & Pablo M. Pinto, Sensitivity to Issue Framing on Trade Policy Preferences: Evidence from a Survey Experiment

Tuesday, April 16, 2013

New Issue: International Studies Review

The latest issue of International Studies Review (Vol. 15, no. 1, March 2013) is out. Contents include:
  • Special Issue: International Relationships in the Information Age
    • Beth A. Simmons, Preface
    • J. P. Singh, Information Technologies, Meta-power, and Transformations in Global Politics
    • Archon Fung, Hollie Russon Gilman & Jennifer Shkabatur, Six Models for the Internet + Politics
    • Muzammil M. Hussain & Philip N. Howard, What Best Explains Successful Protest Cascades? ICTs and the Fuzzy Causes of the Arab Spring
    • Susan K. Sell, Revenge of the “Nerds”: Collective Action against Intellectual Property Maximalism in the Global Information Age
    • Milton Mueller, Andreas Schmidt & Brenden Kuerbis, Internet Security and Networked Governance in International Relations
    • Myriam Dunn Cavelty, From Cyber-Bombs to Political Fallout: Threat Representations with an Impact in the Cyber-Security Discourse
    • Nicholas J. Cull, The Long Road to Public Diplomacy 2.0: The Internet in US Public Diplomacy

Vidmar: Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice

Jure Vidmar (Univ. of Oxford - Law) has published Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing 2013). Here's the abstract:
This book analyses the emerging practice in the post-Cold War era of the creation of a democratic political system along with the creation of new states. The existing literature either tends to conflate self-determination and democracy or dismisses the legal relevance of the emerging practice on the basis that democracy is not a statehood criterion. Such arguments are simplistic. The statehood criteria in contemporary international law are largely irrelevant and do not automatically or self-evidently determine whether or not an entity has emerged as a new state. The question to be asked, therefore, is not whether democracy has become a statehood criterion. The emergence of new states is rather a law-governed political process in which certain requirements regarding the type of a government may be imposed internationally. And in this process the introduction of a democratic political system is equally as relevant or irrelevant as the statehood criteria. The book demonstrates that via the right of self-determination the law of statehood requires state creation to be a democratic process, but that this requirement should not be interpreted too broadly. The democratic process in this context governs independence referenda and does not interfere with the choice of a political system.

Nikol, Bernhard, & Schniederjahn: Transnationale Unternehmen und Nichtregierungsorganisationen im Völkerrecht

Ralph Nikol, Thomas Bernhard, & Nina Schniederjahn have published Transnationale Unternehmen und Nichtregierungsorganisationen im Völkerrecht (Nomos 2013). Here's the abstract:
Transnationalen Unternehmen und Nichtregierungsorganisationen haben einen wachsenden Einfluss auf klassische Völkerrechtssubjekte sowie auf die Herausbildung völkerrechtlicher Normen und deren Umsetzung. Dem Bedürfnis nach einer Evaluation der rechtlichen Rahmenbedingungen trägt dieser Band, der aus dem gleichnamigen Workshop des Arbeitskreises junger VölkerrechtswissenschaftlerInnen entstand, Rechnung. Dabei arbeiten die Beiträge unterschiedliche Themen des völkerrechtlichen Diskurses zu neuen Akteuren auf, bewerten den Meinungsstand und entwickeln Lösungsansätze. Der thematische Schwerpunkt des Bands liegt in der Aufarbeitung der rechtlichen Probleme in Zusammenhang mit Menschenrechtsverletzungen transnationaler Unternehmen. Ferner werden neben grundsätzlichen Überlegungen auch Probleme aus dem Bereich des Investitionsschutzrechts sowie des Rechts der Vereinten Nationen aufgegriffen.

Nadakavukaren Schefer: Will the WTO Finally Tackle Corruption in Public Purchasing? The Revised Agreement on Government Procurement

Krista Nadakavukaren Schefer (Universität Basel - Law) has posted an ASIL Insight on Will the WTO Finally Tackle Corruption in Public Purchasing? The Revised Agreement on Government Procurement.

New Issue: Amsterdam Law Forum

The latest issue of the Amsterdam Law Forum (Vol. 5, no. 1, Winter 2013) is out. Contents include:
  • Scientific Articles
    • Frank Huisingh, A Responsibility to Prevent? A Norm's Political and Legal Effects
    • Therese O'Donnell & Craig Allan, An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications
    • Vladislava Stoyanova, The Crisis of a Definition: Human Trafficking in Bulgarian Law
  • Opinion Articles
    • Dino Kritsiotis, The Arab Spring, Massive Violations of Human Rights and the Use of Force
    • Ester Herlin-Karnell, Denmark and the European Area of Freedom, Security and Justice: a Scandinavian Arrangement
    • Alphonse Muleefu, Beyond the Single Story: Rwanda's Support to the March 23 Movement (M23)
    • Kenneth Manusama, 'Lawfare' in the Conflict between Israel and Palestine?
    • Hilla Dayan, Israel Against Democracy, Part 2: Post-Elections Analysis

Heath: Managing the ‘Republic of NGOs’: Accountability and Legitimation Problems Facing the U.N. Cluster System

J. Benton Heath (Curtis, Mallet-Prevost, Colt & Mosle LLP) has posted Managing the ‘Republic of NGOs’: Accountability and Legitimation Problems Facing the U.N. Cluster System (Vanderbilt Journal of Transnational Law, forthcoming). Here's the abstract:
This Article identifies and critically assesses the crucial but troubled system for the coordination of international humanitarian assistance (the U.N. “Cluster Approach”). Regardless of whether the Cluster Approach actually “helps” in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable, as they ultimately fail to resolve the tension between humanitarian organizations’ autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and “peer review”. Drawing on theories of “network” governance and “experimentalism”, this Article teases out the institutional and normative implications of such a model. In particular, the Article argues, a turn toward peer review would demand dramatic improvements in the inclusion of affected populations in the cluster system. This investigation may carry broader lessons for transnational networks and the study of accountability in global governance.

Monday, April 15, 2013

van den Driest: Remedial Secession: A Right to External Self-Determination as a Remedy to Serious Injustices?

Simone van den Driest (Tilburg Univ. - Law) has published Remedial Secession: A Right to External Self-Determination as a Remedy to Serious Injustices? (Intersentia 2013). Here's the abstract:

It is increasingly often suggested in literature that a right to unilateral secession, stemming from the right to self-determination of peoples, may arise in case of serious injustices suffered by a people. In those extreme circumstances, an alleged right to unilateral secession operates as an ultimum remedium. While such a right to remedial secession may well be morally desirable, the question is to what extent it has actually emerged under contemporary international law.

The right to self-determination of peoples is generally considered to be one of the most fundamental norms in international law. Outside the context of decolonization, the right to self-determination is a continuous right, which is to be exercised primarily within the framework of an existing State. In contrast to this internal dimension of self-determination, claims to external self-determination beyond decolonization are much more controversial, primarily due to their relation with the principle of territorial integrity of States and the fear of the international community to create disrupting precedents.

In seeking to answer the question as to the extent to which a right to remedial secession has emerged under contemporary international law, this book examines the conventional content and meaning of the right to self-determination and scrutinizes whether the various sources of international law disclose (traces of) a right to remedial secession. Assessing the existence of a customary norm in this respect, the international responses to attempts at unilateral secession are examined, paying particular attention to the recent case of Kosovo. It is concluded that while there is a certain body of support for the doctrine of remedial secession, no (customary) right to remedial secession has materialized under contemporary international law. However, in view of the humanization of the international legal order, an entitlement to remedial secession might emerge in the future.

Wolfe: Letting the Sun Shine in at the WTO: How Transparency Brings the Trading System to Life

Robert Wolfe (Queen's Univ. - Policy Studies) has posted Letting the Sun Shine in at the WTO: How Transparency Brings the Trading System to Life. Here's the abstract:
Without transparency, trade agreements are just words on paper. Transparency as disclosure allows economic actors and trading partners to see how rules are implanted; transparency in decision-making ensures fairness and peer review. In the first section of this paper, I discuss the logic of transparency in general and the motivation for its use in the trading system. Considerable information on WTO transparency mechanisms is available in the Minutes and annual reports of the various WTO bodies, and in the Director-General’s annual overview of the trading system, but comparative analysis is not easy. In the second section, therefore, I develop a framework in which different transparency mechanisms can be compared to each other using the metaphor of three generations in the evolution of transparency in the trading system as a means of explaining how transparency works in the WTO. For sunshine to work, at least two things must happen. Information must be made available, and Members have to use it. Probing the extent to which Members comply with their notification obligations, in the third section, and their efforts to improve the notification process, allow an assessment of their commitment to being transparent. In the fourth section I consider how WTO committees are used to ensure that Members are accountable for their commitments, including to notify. Since the committees differ, I use the metaphor of the great pyramid of the legal order to compare committees to each other. Assessment of whether these mechanisms work underpins observations in the conclusion on whether more sunshine is needed, and efforts underway to improve existing mechanisms.

He: China's WTO Participation in Anti-Dumping Disputes (2001-2011)

Ling Ling He (Univ. of Western Sydney - Law) has posted China's WTO Participation in Anti-Dumping Disputes (2001-2011) (Frontiers of Law in China, Vol. 7, no. 4, pp. 616-643, 2012). Here's the abstract:
The anti-dumping war between the US and China has attracted much attention lately, especially after a March WTO ruling and a November US domestic court ruling on the issue in 2011. While the former held that the current US method of applying countervailing and anti-dumping duties simultaneously on imports from China and other non-market economies was “inconsistent” with the WTO rules, the latter ruled that such action was “illegal” under the US countervailing law. China has been one of the most frequent anti-dumping investigation targets by both developed and developing countries for decades. Although it currently has more than one hundred anti-dumping actions against its trading partners at the domestic level, China is a very new player of anti-dumping litigation at the WTO level. China filed its first WTO claim on anti-dumping in December 2007 against the US, since when it has made frequent appearance at the WTO dispute settlement in this regard. This Article examines China’s participation in anti-dumping disputes during the first ten years of its WTO membership, five as complainant and four as respondent. The alleged undervalued Chinese currency has been claimed to provide unfair price advantages to Chinese products and consequently tops trade frictions between China and its trading partners. It to some extent contributes to the rising anti-dumping disputes of China. With the continuing pressure to appreciate the Chinese currency globally as well as the current debit crisis in the EU, more anti-dumping and countervailing investigations against China are expected to emerge as countries are pushing more exports to assist the gloomy domestic economies. This becomes more likely taking into account the mounting claims on the job lost in the US due to the flux of cheap and competitive Chinese products.

Anderson & Waxman: Law and Ethics for Autonomous Weapon Systems: Why a Ban Won't Work and How the Laws of War Can

Kenneth Anderson (American Univ. - Law) & Matthew C. Waxman (Columbia Univ. - Law) have posted Law and Ethics for Autonomous Weapon Systems: Why a Ban Won't Work and How the Laws of War Can. Here's the abstract:

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science- fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful for civilians caught near it. Grounded in a more realistic assessment of technology — acknowledging what is known and what is yet unknown — as well as the interests of the many international and domestic actors involved, this paper outlines a practical alternative: the gradual evolution of codes of conduct based on traditional legal and ethical principles governing weapons and warfare.

This essay revises and significantly extends an earlier, short Policy Review article by Anderson & Waxman from 2012, Law and Ethics for Robot Soldiers.

d'Aspremont & Mbengue: Strategies of Engagement with Scientific Fact-Finding in International Adjudication

Jean d'Aspremont (Univ. of Manchester - Law) & Makane Moïse Mbengue (Univ. of Geneva - Law) have posted Strategies of Engagement with Scientific Fact-Finding in International Adjudication. Here's the abstract:
The following contribution zeroes in on the diverging responses that permeate international adjudicative practice pertaining to international disputes arising out of scientific controversies. Drawing on the idea that scientific fact-finding is as much a struggle for argumentative persuasiveness as traditional fact-finding and law-interpretation, this article identifies and critically evaluates four attitudes of international judges and arbitrators. It shows that, when it comes to scientific fact-finding, adjudicative bodies are in a constant flux between nihilism, protectionism and outsourcing. It further demonstrates that similar dynamics can be observed with regards to the weighing of scientific knowledge in cases when adjudicators decide to outsource it to experts. This paper subsequently argues that when confronted with scientific fact-finding, international adjudicators are dealing with knowledge that is as unstable as the law and which brings them to make a choice between different types of reasoning or rationality. It ultimately makes the argument that the question of scientific fact-finding inevitably confronts international judges and arbitrators with a choice of epistemic rationality.

Sunday, April 14, 2013

Gervais: Climate Change, the International Intellectual Property Régime, and Disputes Under the TRIPS Agreement

Daniel J. Gervais (Vanderbilt Univ. - Law) has posted Climate Change, the International Intellectual Property Régime, and Disputes Under the TRIPS Agreement. Here's the abstract:
This study considers intellectual property rules contained in the WTO TRIPS Agreement as they might affect climate change regulatory efforts. The TRIPS Agreement rules that are most directly applicable in this context are patents; confidential information, and enforcement of IP rights before national courts. With respect to patents, the Agreement provides rules on subject matter eligibility and compulsory licensing that may affect which climate-related technologies get patented and how they are applied. The rules concerning confidential information are less precise. The Study then considers how a WTO dispute-settlement panel might apply WTO rules (especially TRIPS) to climate change initiatives that a WTO Member might take.