Saturday, September 21, 2013

Rothe, Meernik, & Ingadóttir: The Realities of the International Criminal Justice System

Dawn Rothe (Old Dominion Univ.), James Meernik (Univ. of North Texas), & Thordis Ingadóttir (Reykjavik Univ.) have published The Realities of the International Criminal Justice System (Martinus Nijhoff Publishers 2013). Contents include:
  • Alette Smeulers, Barbora Hola & Tom van den Berg: Sixty-Five Years of International Criminal Justice: The Facts and Figures
  • Stephan Parmentier & Elmar Weitekamp, Punishing Perpetrators or Seeking Truth for Victims: Serbian Opinions on Dealing with War Crimes
  • Kenneth A. Rodman, Justice is Interventionist: The Political Sources of the Judicial Reach of the Special Court for Sierra Leone
  • Giorgia Tortora, The Financing of the Special Tribunals for Sierra Leone, Cambodia and Lebanon
  • Cedric Ryngaert, State Cooperation with the International Criminal Tribunal for Rwanda
  • Rosa Aloisi, A Tale of Two Institutions: The United Nations Security Council and the International Criminal Court
  • James Meernik, Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects
  • Dawn Rothe & Victoria Collins, The International Criminal Court: A Pipe Dream to End Impunity?
  • Isabella Bueno & Andrea Diaz Rozas, Which Approach to Justice in Colombia under the Era of the ICC
  • Steven C. Roach, Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability
  • Jonathan O’Donohue, Financing the International Criminal Court
  • Mark Findlay, Enunciating Genocide: Crime, Rights and the Impact of Judicial Intervention
  • James Meernik, Public Support for the International Criminal Court

Friday, September 20, 2013

Conference: The Role of the State in Investor-State Arbitration

On November 8, 2013, the World Trade Institute will host a conference on "The Role of the State in Investor-State Arbitration." I noted the call for papers here. The program is here. Here's the idea:
The conference will examine the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration.

New Volume: The Global Community: Yearbook of International Law and Jurisprudence

The latest volume of The Global Community: Yearbook of International Law and Jurisprudence is out. This is a special volume on "Global Trends: Law, Policy & Justice Essays in Honour of Professor Giuliana Ziccardi Capaldo." Contents include:
  • Normative and Procedural Aspects of International Law
    • Pablo Antonio Fernandez Sanchez, The Principle of Consent in Peace Missions of the European Union - Guarantee to Ensure the Law, the Policy and the Justice of International Peace and Security
    • Joyeeta Gupta & Nadia Sanchez, The Common But Different Responsibility (CBDR) Principle Elaborated in Relation to Other Principles of Law
    • Kishan Khoday, The Emerging South and the Evolution of Sovereignty over Natural Resources
    • Robert Kolb, Autodétermination et sécession-remède en droit international public
    • Antonio Tizzano, The Protection of Fundamental Rights: The European Court of Justice (ECJ) Key Contribution to European Union (EU) Constitutional Developments
  • International Judicial Institution
    • Mohamed Bennouna, The Advisory Function of the International Court of Justice in the Light of Recent Developments
    • Philippe Couvreur, Regards sur la Cour permanente de justice internationale
    • Philippe Gautier, Quelques réflexions sur láccès à la justice internationale dans le cadre du règlement des différends relatifs au droit de la mer
    • Barbara Kwiatkowska, Fundamental Principle of "Without Prejudice" in Submissions to the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) in East, South, West and North Africa
    • Suzannah Linton & Firew Kebede Tiba, Judges and Rule of Law in Times of Political Change or Transition
    • John Merrills, Reflections on International Adjudication in the Light of Recent Case Law
  • International Criminal Justice
    • Steven Becker, The Inequality of Harm: Unpunished Allied Atrocities, the Nuremberg Fallacy, and Why Global Criminal Justice Remains a Mirage
    • Michael Bohlander & Taner Akcam, Echoes of the Genocide DS Reflections on Turkey's Treatment of Armenian Property Rights
    • Olivier Corten, Etat de nécessité et opérations militaires ciblées
    • Geert-Jan Alexander Knoops, The Legacy of the Charles Taylor Judgment: Challenging Selective Prosecutions of Political Leaders
    • Anja Matwijkiw & Bronik Matwijkiw, Post-Conflict Justice: Legal Doctrine, General Jurisprudence and Stakeholder Frameworks
    • Anna Oriolo, Compulsory Production of Evidence in International Criminal Proceedings: Public Interests at Stake Beyond Punishment of the Guilty
    • Antonio Remiro Brotons, Malos tiempos para la justicia universal
  • Globalization and International Law
    • Richard Falk, Overcoming the Global Crisis: A Humanistic Standpoint
    • Hans Koechler, Global Powers and the Rule of Law
    • Richard Mansbach, The Several Faces of Globalization
    • George Modelski, Evolutionary Global Politics
    • Rafael Nieto-Navia, State Responsibility in Respect of International Wrongful Acts of Third Persons: The Theory of Control
    • Nicholas Onuf, Organizing for Good: Republican Theory in a Changing World
    • Ulrich Petersmann, Global Constitutional Law? Why Cosmopolitan Aggregate Public GoodsD" Must Be Protected by Cosmopolitan Conceptions of International Law
    • Karen C. Sokol, The Possibility of Climate Manufacturing and the Need for Global Governance
    • Ramesh Thakur & Thomas Weiss, Global Law and Global Governance: The United Nation's Role in Filling Gaps
    • Anna Vigorito, Natural Disasters, Climate Change and World Heritage: The Evolution of the International Risk Prevention and Management Strategies
    • Guiguo Wang, The New Haven School of Legal Theory and Traditional Chinese Culture

Wouters & Duquet: The United Nations, the European Union and Multilateral Action Against Terrorism

Jan Wouters (Katholieke Universiteit Leuven - Law) & Sanderijn Duquet (Katholieke Universiteit Leuven - Law) have posted The United Nations, the European Union and Multilateral Action Against Terrorism. Here's the abstract:
The United Nations (UN) and the European Union (EU) have developed a partnership in fighting terrorism. Despite the different actors and issues involved, multilateral approaches have successfully been applied in both formal and informal settings. At the same time, the lasting central role of States in countering terrorism has been stressed at global and regional levels. This working paper critically reviews the organizations’ strategies, legal and institutional frameworks developed and interactions taking place. Doing so, the paper discusses the EU’s use of its collective weight in the UN context and its commitment to the finding of multilateral solutions to the benefit of global debates and practices. The paper also identifies possible conceptual fractions in UN-EU counter-terrorism cooperation. It thereto focuses on the dynamics in multilateral efforts to streamline counter-terrorism action, to define terrorism and to sanction terrorists and terrorist groups.

New Issue: International Studies Review

The latest issue of International Studies Review (Vol. 15, no. 3, September 2013) is out. Contents include:
  • Lilach Gilady & Matthew J. Hoffmann, Darwin's Finches or Lamarck's Giraffe, Does International Relations Get Evolution Wrong?
  • Andrey Makarychev & Viatcheslav Morozov, Is “Non-Western Theory” Possible? The Idea of Multipolarity and the Trap of Epistemological Relativism in Russian IR
  • David A. Hughes, Liberal Warfare: A Crusade Twice Removed
  • Timothy J. Junio & Thomas G. Mahnken, Conceiving of Future War: The Promise of Scenario Analysis for International Relations
  • The Forum
    • The Decline of War

New Issue: Global Policy

The latest issue of Global Policy (Vol. 4, no. 3, September 2013) is out. Contents include:
  • Research Articles
    • Thomas Hale, David Held & Kevin Young, Gridlock: From Self-reinforcing Interdependence to Second-order Cooperation Problems
    • Peter Knaack & Saori N. Katada, Fault Lines and Issue Linkages at the G20: New Challenges for Global Economic Governance
    • Alexandra Bohm, Responding to Crises: The Problematic Relationship between Security and Justice in The Responsibility to Protect
    • Martin Ravallion & Shaohua Chen, A Proposal for Truly Global Poverty Measures
    • Michael Zürn & Stefan Schäfer, The Paradox of Climate Engineering
    • Martin Mulligan, Rebuilding Communities after Disasters: Lessons from the Tsunami Disaster in Sri Lanka
  • Special Section - Globalising Justice: A Multidimensional Approach
    • Marcello Di Paola & Valentina Gentile, Globalising Justice: A Multidimensional Approach 1. Economics: Indicators and Policy Implications
    • Jean-Paul Fitoussi & Joseph E. Stiglitz, On the Measurement of Social Progress and Wellbeing: Some Further Thoughts
    • Leonardo Becchetti, ‘On the Measurement of Social Progress and Wellbeing’: A Commentary
    • Raffaele Marchetti, ‘On the Measurement of Social Progress and Wellbeing’: A Commentary
    • Leif Wenar, Fighting the Resource Curse
  • Survey Articles
    • Philipp Pattberg & Ayşem Mert, The Future We Get Might Not Be the Future We Want: Analyzing the Rio+20 Outcomes
    • Nienke de Deugd, Katharina Stamm & Wim Westerman, Supranational Cooperation in Europe
  • Practitioner Commentary
    • David Re, The Glass is Half-full for International Criminal Law

Thursday, September 19, 2013

Reinisch: The Privileges and Immunities of International Organizations in Domestic Courts

August Reinisch (Univ. of Vienna - Law) has published The Privileges and Immunities of International Organizations in Domestic Courts (Oxford Univ. Press 2013). Here's the abstract:

International organizations are increasingly operating across borders and engaging in legal transactions in virtually all jurisdictions. This makes, familiarity with the applicable law and practice imperative for both international organizations and those who engage in legal relations with them. Furthermore, the issue of whether, how, and to what extent domestic courts take into account decisions of foreign and international courts and tribunals in their own decision-making has become increasingly important in recent years. This book provides a comprehensive empirical study of this transnational judicial dialogue, focusing on the law and practice of domestic jurisdictions concerning the legal personality, privileges, and immunities of international organizations. It presents a selection of detailed country-by-country studies, examining the manner of judicial dialogue across domestic jurisdictions, and between national and international courts.

The approach taken in this book intersects with three highly topical areas of international legal scholarship: the rapidly evolving law of international institutions; the burgeoning research into the role of domestic courts in the international legal system; and the recent rise of empirically-oriented legal scholarship. Utilizing OUP's International Law in Domestic Courts database, the book presents analysis of little-known cases which have real international significance, illustrating the impact and extent of transnational judicial dialogue in the international legal system. The book provides important perspectives on the evolution and status of the law of immunity of international organizations, and contributes to the understanding of relationships between national courts, and between national and international courts.

Stahn: Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity

Carsten Stahn (Leiden Univ. - Law) has posted Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity. Here's the abstract:
Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 89, no. 5, September 2013) is out. Contents include:
  • Doug Stokes & Richard G. Whitman, Transatlantic triage? European and UK ‘grand strategy’ after the US rebalance to Asia
  • Tarak Barkawi & Shane Brighton, Brown Britain: post-colonial politics and grand strategy
  • Sven Biscop, Peace without money, war without Americans: challenges for European strategy
  • Benjamin Kienzle, A European contribution to non-proliferation? The EU WMD Strategy at ten
  • Tuomas Forsberg, The rise of Nordic defence cooperation: a return to regionalism?
  • Paul Cornish & Andrew M. Dorman, Fifty shades of purple? A risk-sharing approach to the 2015 Strategic Defence and Security Review
  • Saul Kelly & Gareth Stansfield, Britain, the United Arab Emirates and the defence of the Gulf revisited
  • Andrew Monaghan, Putin's Russia: shaping a ‘grand strategy’?
  • David Hastings Dunn, Drones: disembodied aerial warfare and the unarticulated threat
  • Michael Dumper, Policing divided cities: stabilization and law enforcement in Palestinian East Jerusalem
  • Justin Morris, Libya and Syria: R2P and the spectre of the swinging pendulum

Whytock: Some Cautionary Notes on the 'Chevronization' of Transnational Litigation

Christopher A. Whytock (Univ. of California, Irvine - Law) has posted Some Cautionary Notes on the 'Chevronization' of Transnational Litigation (Stanford Journal of Complex Litigation, Vol. 1, pp. 467-486, 2013). Here's the abstract:

In 1993, residents of the Lago Agrio region of the Ecuadorian Amazon sued Texaco, Inc. alleging extensive environmental damage and personal injuries caused by Texaco’s oil extraction operations there. The U.S. District Court for the Southern District of New York dismissed the suit on forum non conveniens grounds in favor of the courts of Ecuador, and the U.S. Court of Appeals for the Second Circuit affirmed in 2002. Meanwhile, Chevron Corp. had acquired Texaco in 2001. After the forum non conveniens dismissal, the Lago Agrio plaintiffs sued Chevron in an Ecuadorian court, which entered a $17.2 billion judgment against Chevron. Since then, the parties have been engaged in an extensive litigation and public relations battle over the enforcement of the judgment, a battle that has reached beyond the United States and Ecuador to countries including Argentina, Brazil and Canada.

Although the Chevron-Ecuador case raises many interesting legal issues, this Essay sounds a note of caution about the lessons of the case for transnational litigation. On the one hand, as Part One argues, the case usefully highlights two important transnational litigation trends: the growing multipolarity of transnational litigation and the increasing interaction between the transnational litigation system and other international legal sub-systems. On the other hand, as Part Two argues, the lessons of the Chevron-Ecuador case for law reform are, and should be, limited. Judges, scholars and policymakers may understandably feel pressure to push the law in a particular direction in order to address perceived imperatives that are specific to the Chevron-Ecuador case. But this would risk bypassing the careful evidence-based deliberation needed for sound law reform. The Essay illustrates this risk using examples from the law governing the enforcement of foreign country judgments. The overarching argument is this: Judges, policymakers and scholars should use caution to avoid unduly “Chevronizing” the law of transnational litigation.

New Issue: Ethics & International Affairs

The latest issue of Ethics & International Affairs (Vol. 27, no. 3, Fall 2013) is out. Contents include:
  • Essay
    • Richard Schiffman, Hunger, Food Security, and the African Land Grab
  • Policy Brief
    • Frances Moore Lappé, Jennifer Clapp, Molly Anderson, Robin Broad, Ellen Messer, Thomas Pogge & Timothy Wise, How We Count Hunger Matters
  • Nonproliferation in the Twenty-First Century
    • J. Bryan Hehir, Nonproliferation: A Global Issue for a Global Ethic
    • Jacques E. C. Hymans, The Threat of Nuclear Proliferation: Perception and Reality
    • Nina Tannenwald, Justice and Fairness in the Nuclear Nonproliferation Regime
    • Ward Wilson, The Gordian Knot: Moral Debate and Nuclear Weapons
  • Feature
    • Campbell Craig & Jan Ruzicka, The Nonproliferation Complex

Wednesday, September 18, 2013

Conference: International Law Weekend 2013

The American Branch of the International Law Association and the International Law Students Association will host International Law Weekend 2013, October 24-26, 2013, in New York City. The conference theme is "Internationalization of Law and Legal Practice." The schedule of events is here.

New Issue: International Relations

The latest issue of International Relations (Vol. 27, no. 3, September 2013) is out. Contents include:
  • Special Issue: EU external policy at the crossroads: The challenge of actorness and effectiveness
    • Arne Niemann & Charlotte Bretherton, EU external policy at the crossroads: The challenge of actorness and effectiveness
    • Geoffrey Edwards, The EU’s foreign policy and the search for effect
    • Louise van Schaik, The EU’s growing pains in negotiating international food standards
    • Lisanne Groen & Arne Niemann, The European Union at the Copenhagen climate negotiations: A case of contested EU actorness and effectiveness
    • Manfred Elsig, The EU as an effective trade power? Strategic choice of judicial candidates in the context of the World Trade Organization
    • Maurizio Carbone, Between EU actorness and aid effectiveness: The logics of EU aid to Sub-Saharan Africa
    • Erik Brattberg & Mark Rhinard, Actorness and effectiveness in international disaster relief: The European Union and United States in comparative perspective
    • Charlotte Bretherton & John Vogler, A global actor past its peak?

New Issue: Global Constitutionalism

The latest issue of Global Constitutionalism (Vol. 2, no. 3, November 2013) is out. Contents include:
  • William Vlcek, Crafting human rights in a constitution: Gay rights in the Cayman Islands and the limits to global norm diffusion
  • Annika E. Poppe & Jonas Wolff, The normative challenge of interaction: Justice conflicts in democracy promotion
  • Georg Nolte & Helmut Philipp Aust, European exceptionalism?
  • Ming-Sung Kuo, On the constitutional question in global governance: Global administrative law and the conflicts-law approach in comparison
  • Daniel Augenstein, Normative fault-lines of trans-national human rights jurisprudence: National pride and religious prejudice in the European legal space
  • Eamon Aloyo, Improving global accountability: The ICC and nonviolent crimes against humanity

Baccini, Dür, & Elsig: Depth, Flexibility and International Cooperation: The Politics of Trade Agreement Design

Leonardo Baccini (London School of Economics), Andreas Dür (Univ. of Salzburg), & Manfred Elsig (Univ. of Bern) have posted Depth, Flexibility and International Cooperation: The Politics of Trade Agreement Design. Here's the abstract:
States design some international institutions more flexibly than others. What explains this variation? Focusing on preferential trade agreements, we argue that different aspects of institutional design are interdependent. In particular, we posit that deep agreements create an incentive for states to add more flexibility, which can take the form of transitional flexibility or provisions that serve as safety valves in the long term. Both types of flexibility mechanisms increase with depth and are complementary. We also argue that states are concerned about the stability of an agreement and as a consequence introduce ex-ante constraints against exploiting the future application of flexibility. An original data-set on the design of 587 trade agreements signed between 1945 and 2009 allows us to test our arguments. Descriptive evidence, multivariate statistics and instrumental variable models all support the theoretical expectations. The paper contributes to the literature on the design of international institutions and preferential trade agreements.

Goodman & Jinks: Socializing States: Promoting Human Rights through International Law

Ryan Goodman (New York Univ. - Law) & Derek Jinks (Univ. of Texas - Law) have published Socializing States: Promoting Human Rights through International Law (Oxford Univ. Press 2013). Here's the abstract:

The role of international law in global politics is as poorly understood as it is important. But how can the international legal regime encourage states to respect human rights? Given that international law lacks a centralized enforcement mechanism, it is not obvious how this law matters at all, and how it might change the behavior or preferences of state actors. In Socializing States, Ryan Goodman and Derek Jinks contend that what is needed is a greater emphasis on the mechanisms of law's social influence--and the micro-processes that drive each mechanism. Such an emphasis would make clearer the micro-foundations of international law. This book argues for a greater specification and a more comprehensive inventory of how international law influences relevant actors to improve human rights conditions. Substantial empirical evidence suggests three conceptually distinct mechanisms whereby states and institutions might influence the behavior of other states: material inducement, persuasion, and what Goodman and Jinks call acculturation. The latter includes social and cognitive forces such as mimicry, status maximization, prestige, and identification. The book argues that (1) acculturation is a conceptually distinct, empirically documented social process through which state behavior is influenced; and (2) acculturation-based approaches might occasion a rethinking of fundamental regime design problems in human rights law. This exercise not only allows for reexamination of policy debates in human rights law; it also provides a conceptual framework for assessing the costs and benefits of various design principles.

While acculturation is not necessarily the most important or most desirable approach to promoting human rights, a better understanding of all three mechanisms is a necessary first step in the development of an integrated theory of international law's influence. Socializing States provides the critical framework to improve our understanding of how norms operate in international society, and thereby improve the capacity of global and domestic institutions to build cultures of human rights.

Tuesday, September 17, 2013

Cleveland & Dodge: Defining and Punishing Offenses Under Treaties

Sarah H. Cleveland (Columbia Univ. - Law) & William S. Dodge (Univ. of California - Hastings College of the Law) have posted Defining and Punishing Offenses Under Treaties. Here's the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

Kanetake & Nollkaemper: The Application of Informal International Instruments Before Domestic Courts

Machiko Kanetake (Univ. of Amsterdam - Law) & André Nollkaemper (Univ. of Amsterdam - Law) have posted The Application of Informal International Instruments Before Domestic Courts. Here's the abstract:
The rigidity associated with formal international law has induced states and international organizations to resort to declarations, comments, guidelines and other "informal" international instruments. Despite their informality, many of these non-treaty instruments are adopted with the expectation that actions would be taken at the domestic level. This paper analyzes how and on what basis domestic courts indeed apply informal international instruments. The limited survey of judicial practices unveils that judicial references to informal international instruments, albeit in many cases symbolic, influence the outcome and give rise to the question of justification. The degree of influence and the need for justification vary depending on the purposes for which instruments are employed, the types of instruments, and the weight they carry in the judicial reasoning. The justification offered explicitly or implicitly by domestic courts in resorting to non-treaty documents is the persuasiveness, as opposed to bindingness, of instruments. Yet what constitutes persuasiveness remains unclear, and this uncertainty renders unstable the legitimacy of judicial engagement with informal instruments. While we identified the systematic association with treaties, the independence of institutions that adopt informal instruments, and the wider public acceptance as possible variables that constitute persuasiveness, these rather non-substantive criteria do not exhaust possibly more value-laden factors which determine judicial reference to informal international instruments.

Kurtz: Building Legitimacy Through Interpretation in Investor-State Arbitration: On Consistency, Coherence and the Identification of Applicable Law

Jürgen Kurtz (Univ. of Melbourne - Law) has posted Building Legitimacy Through Interpretation in Investor-State Arbitration: On Consistency, Coherence and the Identification of Applicable Law (in The Foundations of International Investment Law: Bridging Theory Into Practice, Zachary Douglas, Joost Pauwelyn & Jorge Vinuales eds., forthcoming). Here's the abstract:
After decades of stability, there are now visible changes to the elasticity of state commitment to investment treaty law and arbitration. State disenchantment has grown steadily over recent years and is even beginning to dangerously manifest itself in forms of hard exit (albeit, at this stage, confined to a handful of parties). The causes of the legitimacy crisis facing the system run much deeper than the usual prescriptions surveyed in the literature to date. This paper begins by arguing that there are weaknesses in both the formal (consent) and substantive (functional) justifications that, singly or collectively, will typically legitimize international economic law constraints in the eyes of states parties. This framing of a legitimacy deficit is then used as an invitation to examine whether investor-state arbitral interpretation might contribute in some way to shoring up the level of state commitment to the system. Any tractable normative prescription in this direction first depends on identifying what states parties expect when delegating adjudicatory power over future disputes to arbitral tribunals. The paper draws on international relations theory in an attempt to accurately conceptualize that understanding. Using those insights, the paper examines both internal and external strategies by which arbitral adjudication can dovetail with this theoretical position and thus potentially contribute to building legitimacy over the regime. On the internal front, the paper first considers the case for consistency. It departs from the conventional assumption of a binary choice and explores instead the possibility of strict consistency in certain settings while allowing for bounded levels of differentiation in others. Ultimately however, it is the coherence and integrity of reasoning employed by arbitral tribunals that is of greatest import to states parties. In a diffuse and heterogeneous network such as investment law, this is necessarily a question of common but sophisticated hermeneutics. Unfortunately however, the state of play in investment arbitration leaves much to be desired. There is also little room for optimism when it comes to the external strategies canvassed in this paper. The identification of applicable (customary) international law is of critical import given the deliberate openness of the investment treaty regime. Yet in a disappointing parallel with the internal dimensions of fostering legitimacy, the surveyed arbitral tribunals have approached this key task superficially and with little appreciation of its charged systemic importance.

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 16, no. 3, September 2013) is out. Contents include:
  • Geraldo Vidigal, Re-Assessing WTO Remedies: The Prospective and the Retrospective
  • Elizabeth Trujillo, A Dialogical Approach to Trade and Environment
  • Sherzod Shadikhodjaev, Duty Drawback and Regional Trade Agreements: Foes or Friends?
  • Valentina Vadi & Lukasz Gruszczynski, Standards of Review in International Investment Law and Arbitration: Multilevel Governance and the Commonweal
  • Jaemin Lee, Remand to Fast-Track Prompt Implementation: A Critical Assessment of the ‘Double Adoption’ Remand Proposal in Chair’s Text and an Argument for a ‘Single Adoption’ Alternative
  • Michael Ewing-Chow, Alex W. S. Goh, & Akshay Kolse Patil, Are Asian WTO Members Using the WTO DSU ‘Effectively’?
  • Paolo D. Farah & Elena Cima, Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel

Waldron: International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence

Jeremy Waldron (New York Univ. - Law) has posted International Law: 'A Relatively Small and Unimportant' Part of Jurisprudence. Here's the abstract:
This paper evaluates and criticizes the account of international law given in Chapter Ten of H.L.A. Hart's book, The Concept of Law. Hart's account offers a few insights--particularly on the relation between law and sanctions. But his account of international law is moistly quite impoverished. His observations about the absence of secondary rules (rules of change, adjudication, and recognition ) in international law are quite unjustified. His exaggeration of the difference between international law and municipal legal systems is so grotesquely exaggerated, as to deprive the former account of almost all its utility in jurisprudence. What is worse, his dismissive and misconceived account of international law has tended to drive practitioners of analytic legal philosophy away form addressing this important area of jurisprudence.

Shany: Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law (The Law & Ethics of Human Rights, Vol. 7, no. 1, pp. 47–71). Here's the abstract:
International human rights law (IHRL) has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights (ECtHR) favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: (1) the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, (2) special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations.

Hodson: Women's Rights and the Periphery: CEDAW's Optional Protocol

Loveday Hodson (Univ. of Leicester - Law) has posted Women's Rights and the Periphery: CEDAW's Optional Protocol (European Journal of International Law, forthcoming). Here's the abstract:
This paper places the UN Women’s Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee’s importance has largely been overlooked, which is a considerable oversight. The Committee is in fact uniquely positioned to make a contribution to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this paper examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to CEDAW and questions how far the Committee has been able to develop 'women's rights' in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.

Conference: Natural resources grabbing: erosion or legitimate exercise of State sovereignty?

On October 4-5, 2013, the Università degli Studi di Cagliari Dipartimento di diritto pubblico e di studi sociali and the Università degli Studi di Milano Facoltà di Giurisprudenza will host a conference on "Natural resources grabbing: erosion or legitimate exercise of State sovereignty?" in Cagliari. I noted the call for papers here. The program is here. The registration form is here.

Monday, September 16, 2013

Conference: Twenty-First Investment Treaty Forum Public Conference

The British Institute of International and Comparative Law will host the Twenty-First Investment Treaty Forum Public Conference on October 24, 2013. The theme is: "The Economic and Financial Aspects of Investor-State Arbitration." The program is here. Here's the idea:

While a great deal of attention has been paid to the content of the substantive rules governing the treatment of foreign investors and procedural aspects of investor-state arbitration, less attention has been given to the economic and financial aspects underpinning the system and how these factors may affect its operation. It is these economic and financial aspects which will form the focus of the meeting.

The first panel will consider the question of the costs of arbitration: the cost of arbitral institutions, fees of arbitrators and counsel, the allocations of costs in arbitral awards and the considerations that should be factored in when making such decisions.

The second panel will look at the debate with respect to third-party financing of claims. While third-party funding has fast become a way of life for lawyers involved in the investor-state system, real issues remain regarding the effect third-party funding can have on actors' incentives and on measures that might be taken to regulate the use of such funding, even if it is not altogether eliminated.

The third panel will look at systemic issues, asking whether a system organized around the resolution of privately financed claims is likely to achieve wider economic and political goals or whether a system by which one may seek ad hoc annulment as of right is likely to lead to create incentives for expeditious dispute settlement.

Symposium: International Regulation of Investment in the Rising Powers

On November 8, 2013, the University of Pennsylvania Journal of International Law will host a symposium on "International Regulation of Investment in the Rising Powers." Here's the idea:
Inspired by the complex legal issues raised in doing business, encouraging economic growth, and tackling poverty in fast-developing regions of the world, the Symposium will focus on the future of regulation of investment at national and global levels.

Sirleaf: The Truth About Truth Commissions: Why They Do Not Function Optimally in Post-Conflict Societies

Matiangai V. S. Sirleaf (Univ. of Pennsylvania - Law) has posted The Truth About Truth Commissions: Why They Do Not Function Optimally in Post-Conflict Societies. Here's the abstract:
Using insights from the legal transplant literature to analyze the transplanting of truth commissions, this paper finds that truth commissions will face more challenges carrying out their mandates in post-conflict versus post authoritarian societies. In post-conflict societies, the combination of weak institutions to support a truth-telling process, combined with large numbers of victims and perpetrators will tend to overwhelm truth commissions. These factors concomitant with lower levels of moral consensus surrounding mass violence interact to make truth commissions function less optimally in post-conflict contexts. Truth commissions can be more successful carrying out institutional mandates in post-conflict contexts when combined with a court because of mutually-reinforcing effects. It concludes that, much more experimentation needs to be done in order to formulate effective and contextually appropriate responses to mass violence instead of the current “one-size-fits-all” approach in transitional justice.

Seminar: Authority in a Transnational Age

On November 8-9, 2013, the Centre for Law and Society in a Global Context at the Department of Law, Queen Mary, University of London will host a Modern Law Review seminar on "Authority in a Transnational Age." The program is here. Here's the idea:

Contemporary jurisprudence – and legal scholarship and legal education more generally – is currently under serious challenge from the emergence of arguably new legal phenomena at the non-state or transnational level. This challenge is both substantive and methodological. Substantively, legal scholars are being confronted with, and asked to explain, phenomena which cannot easily be explained by theories which put the sovereign state at the centre. Such phenomena include internet regulation and the new lex mercatoria. New jurisprudential problems are also raised by the growth of transnational communities, which bring with them a variety of different legal traditions and understandings. Methodologically, in this context, traditional conceptual analysis is arguably ever more in need of being informed by empirical analysis – for the old concepts, and their universalistic tendencies, are being criticised as inadequate.

One concept that calls for revision in the transnational context is authority. Considering how that concept, juristically and normatively, is being challenged by the transnational context is the focus of the seminar. Questions are being raised as to whether authority is better conceived of as capable of being shared, or held in degrees, or continuously negotiated amongst a group of communities or institutions. Questions are also raised about what kind of authority exists at the transnational level, and what it should be called – is it ‘legal’ or ‘regulalatory’? Further, it is being hotly debated whether authority so re-conceived is normatively desirable.

A number of scholars have argued that the reality at the transnational level is that communities or institutions have (legal or regulatory) authority in degrees; moreover, their sharing it, or negotiating it, with other communities or institutions, is perhaps a condition of their having it at all. This qualification of (legal or regulatory) authority in the transnational context, which we may call, following Roger Cotterrell, ‘relative authority’, demands serious analysis. In particular, it is imperative that jurisprudes and legal scholars consider how to assess the quality of relations between normative communities and institutions of relative authority: does such quality require, for instance, certain unfamiliar techniques of legal reasoning? Should the design of institutions change given the emphasis on communication and interaction between them? What are the limits that can be placed – and who could place them – on the claims to authority made by normative communities?

It is the aim of this seminar to engage in such questions, focusing on juristic and normative issues surrounding the concept of authority in the transnational context, but drawing on multiple methods and perspectives. In doing so, the seminar hopes to usher in a jurisprudence for the transnational age. More precisely, the sub-themes for the seminar will include:

1. the state and its authority, thereby providing a comparison or contrast with the transnational context;

2. the concept of authority from the perspective of pluralism, and its descriptive and normative credentials;

3. the discourse of constitutionalism and its relationship with the concept of authority;

4. sociological and anthropological perspectives on transnational authority;

5. historical and comparative perspectives on authority in transnationalism; and

6. examining the privatisation of authority, especially in the context of relations between regulatory institutions and private organisations and corporations.

New Issue: International Studies Quarterly

The latest issue of the International Studies Quarterly (Vol. 57, no. 3, September 2013) is out. Contents include:
  • Harvey Starr, On Geopolitics: Spaces and Places
  • Nathan M. Jensen, Domestic Institutions and the Taxing of Multinational Corporations
  • Laron K. Williams, Flexible Election Timing and International Conflict
  • Shahar Hameiri & Lee Jones, The Politics and Governance of Non-Traditional Security
  • Emilie Hafner-Burton & James Ron, The Latin Bias: Regions, the Anglo-American Media, and Human Rights
  • Charles R. Hankla & Daniel Kuthy, Economic Liberalism in Illiberal Regimes: Authoritarian Variation and the Political Economy of Trade
  • Philip B.K. Potter, Electoral Margins and American Foreign Policy
  • Tanya Bagashka & Randall W. Stone, Risky Signals: The Political Costs of Exchange Rate Policy in Post-Communist Countries
  • Colin M. Barry, K. Chad Clay & Michael E. Flynn, Avoiding the Spotlight: Human Rights Shaming and Foreign Direct Investment
  • Joe Clare, The Deterrent Value of Democratic Allies
  • William R. Clark, Sona N. Golder, & Paul Poast, Monetary Institutions and the Political Survival of Democratic Leaders
  • Monika Bauhr, Nicholas Charron & Naghmeh Nasiritousi, Does Corruption Cause Aid Fatigue? Public Opinion and the Aid-Corruption Paradox
  • Toby J. Rider, Uncertainty, Salient Stakes, and the Causes of Conventional Arms Races
  • Edward D. Mansfield & Jon C.W. Pevehouse, The Expansion of Preferential Trading Arrangements
  • Katja B. Kleinberg & Benjamin O. Fordham, The Domestic Politics of Trade and Conflict
  • Controversy
    • Barry Buzan & George Lawson, The Global Transformation: The Nineteenth Century and the Making of Modern International Relations
    • Christopher Chase-Dunn, Response to Barry Buzan and George Lawson The Global Transformation: The 19th Century and the Making of Modern International Relations
    • Paul Musgrave & Daniel H. Nexon, Singularity or Aberration? A Response to Buzan and Lawson
    • Andrew Phillips, From Global Transformation to Big Bang—A Response to Buzan and Lawson

Sunday, September 15, 2013

Ramji-Nogales: Undocumented Migrants and the Failures of Universal Individualism

Jaya Ramji-Nogales (Temple Univ. - Law) has posted Undocumented Migrants and the Failures of Universal Individualism. Here's the abstract:
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The article demonstrates through a careful analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically innovative approach to protecting undocumented migrants and other vulnerable populations.

Eeckhout: Human Rights and the Autonomy of EU Law: Pluralism or Integration?

Piet Eeckhout (Univ. College London - Law) has posted Human Rights and the Autonomy of EU Law: Pluralism or Integration? (Current Legal Problems, Vol. 66, pp. 169-202, 2013). Here's the abstract:
The accession of the European Union to the European Convention on Human Rights raises questions about the autonomy of EU law, and about the future relationship between the EU Court of Justice and the European Court of Human Rights. The concept of autonomy appears to confirm prevailing theories about the relationships between legal systems in Europe, ie legal and constitutional pluralism. This study challenges those theories, and proposes an alternative paradigm: the integration of laws. Its central argument is that the EU system of human rights protection is increasingly characterized by its integration with the national constitutional laws of the Member States and with the ECHR. It argues that in integrated legal systems, conflicts between supreme adjudicators can be resolved from within the law. Each of the supreme/constitutional courts needs to recognize the limits of its jurisdiction, but is also sharing jurisdiction with the others. This principle of limited and shared jurisdiction is a tool for resolving conflicts, leading away from a conception of a deep conflict of supreme judicial authority. Integrated legal systems are governed by a law of integration, which is there for all to see. The article touches upon some of the elements of that law of integration. It goes on to investigate the scope for EU law autonomy—which is in essence concerned with safeguarding the jurisdiction of the Court of Justice—in connection with accession to the ECHR. It argues that the principle of limited and shared jurisdiction should govern the relationship between the two European courts, and that it is capable of ensuring that the European Court of Human Rights does not decide matters of EU competence, or EU law generally. But the principle also means that the Court of Justice will be bound by judgments of the European Court of Human Rights.

Call for Papers: Society of International Economic Law Fourth Biennial Global Conference

The Society of International Economic Law has issued a call for papers for its Fourth Biennial Global Conference, to be held in Bern, at the World Trade Institute of the University of Bern, July 10-12, 2014. The conference theme is: "Regulatory Challenges in International Economic Law: Convergence or Divergence?." The call for papers is here.