Saturday, October 5, 2013

Call for Papers: Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa

A call for papers has been issued for a conference on "Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa," to take place May 23-24, 2014, in the Hague University of Applied Sciences. The call for papers is here. I am told that the deadline for the submission of abstracts has been extended to October 25, 2013.

Friday, October 4, 2013

Conference: 11º Congresso Brasileiro de Direito Internacional

The Eleventh Congresso Brasileiro de Direito Internacional will take place in Belo Horizonte on October 6-9, 2013. I noted the call for papers here. The program is here.

Krisch: The Decay of Consent: International Law in an Age of Global Public Goods

Nico Krisch (Institut Barcelona d’Estudis Internacionals) has posted The Decay of Consent: International Law in an Age of Global Public Goods (American Journal of International Law, forthcoming). Here's the abstract:
Because of its emphasis on state consent, classical international law is often seen as inadequate for solving problems of a global scale, especially when they involve global public goods. As these problems grow in importance, many commentators expect the rise of non-consensual elements in the international legal order. This article analyzes to what extent, and in what forms, we can empirically observe such a turn to non-consensualism in response to global public goods challenges in three issue areas. It finds the consent element in international law to be highly resilient, with only limited challenges to traditional international legal categories. Change takes place mainly through a shift away from treaties and international law as such: through a shift from formal to informal and from egalitarian to unilateral and hierarchical modes of governance. In the resulting picture, international law retains much of its consensual character, but it is increasingly sidelined in favour of other normative orders in which consent plays a much more limited role.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 28, no. 2, Fall 2013) is out. Contents include:
  • 2013 Lalive Lecture
    • Alain Pellet, The Case Law of the ICJ in Investment Arbitration
  • Case Comments
    • Walid Ben Hamida, SAUR International SA c République argentine: Droit national, droit international et droits de l’homme : l’histoire d’un ménage à trois
    • Irmgard Marboe, Quasar de Valores SICAV SA and others v The Russian Federation: Another Chapter of the Yucos Affair
    • Julian Davis Mortenson, Quiborax SA et al v Plurinational State of Bolivia: The Uneasy Role of Precedent in Defining Investment
    • Georgios Petrochilos, Bosh International, Inc and B&P Ltd Foreign Investments Enterprise v Ukraine: When is Conduct by a University Attributable to the State?
    • Aniruddha Rajput, AES Summit Generation Limited and AES-Tisza Erömü Kft v Hungary: The Scope of ad hoc Committee Review for Manifest Excess of Powers and Failure to State Reasons
    • Borzu Sabahi & Kabir Duggal, Occidental Petroleum v Ecuador (2012): Observations on Proportionality, Assessment of Damages and Contributory Fault
    • Andrea Marco Steingruber, Antoine Goetz and others v Republic of Burundi: Consent and Arbitral Tribunal Competence to Hear Counterclaims in Treaty-based ICSID Arbitrations
    • Gaëtan Verhoosel & Sabeen Sheikh, Caratube International Oil Company LLP v Republic of Kazakhstan: Revisiting threshold jurisdictional questions—the meaning of foreign control and investment
    • Katia Yannaca-Small, BIVAC BV v Paraguay versus SGS v Paraguay: The Umbrella Clause Still in Search of One Identity
  • Articles
    • Pieter Bekker & Akiko Ogawa, The Impact of Bilateral Investment Treaty (BIT) Proliferation on Demand for Investment Insurance: Reassessing Political Risk Insurance After the ‘BIT Bang’
    • Giorgio Sacerdoti, BIT Protections and Economic Crises: Limits to Their Coverage, the Impact of Multilateral Financial Regulation and the Defence of Necessity
    • Surya P. Subedi, India’s New Bilateral Investment Promotion and Protection Treaty with Nepal: A New Trend in State Practice
  • Notes
    • Diane A. Desierto & Desiree A. Desierto, Investment Pricing and Social Protection: A Proposal for an ICESCR-adjusted Capital Asset Pricing Model
    • John Y. Gotanda, Consistently Inconsistent: The Need for Predictability in Awarding Costs and Fees in Investment Treaty Arbitrations
    • Anne K. Hoffmann, Counterclaims in Investment Arbitration
    • Charles T. Kotuby, Jr & Luke A. Sobota, Practical Suggestions to Promote the Legitimacy and Vitality of International Investment Arbitration

New Issue: African Journal of International and Comparative Law

The latest issue of the African Journal of International and Comparative Law (Vol. 21, no. 3, October 2013) is out. Contents include:
  • Vinesh Basdeo, The Legal Challenges of Criminal and Civil Asset Forfeiture in South Africa: A Comparative Analysis
  • Anthony O. Nwafor, The Requisite Intention for the Acquisition of Domicile of Choice: Permanent or Indefinite – A Comparative Perspective
  • Okechukwu Ejims, The Impact of Nigerian International Petroleum Contracts on Environmental and Human Rights of Indigenous Communities
  • Bolanle T. Erinosho, The Revised African Convention on the Conservation of Nature and Natural Resources: Prospects for a Comprehensive Treaty for the Management of Africa's Natural Resources
  • Charles G. Ngwena, Reforming African Abortion Laws to Achieve Transparency: Arguments from Equality
  • Aashish Srivastava & Michel Koekemoer, The Legal Recognition of Electronic Signatures in South Africa: A Critical Overview
  • Adejoke O. Oyewunmi, Sharpening the Legal Tools to Overcome Biopiracy in Africa Through Pro-development Implementation of Normative International Standards: Lessons from Brazil, South Africa and India
  • Gebreyesus Abegaz Yimer, Adjudicatory Jurisdiction in International Carriage of Goods by Sea: Would the Rotterdam Rules Settle the Controversy?
  • John-Mark Iyi, The AU/ECOWAS Unilateral Humanitarian Intervention Legal Regimes and the UN Charter

New Volume: Austrian Review of International and European Law

The latest volume of the Austrian Review of International and European Law (Vol. 15, 2010) is out. Contents include:
  • Agora: Humanitarian Disarmament
    • Bonnie Docherty, Ending Civilian Suffering: The Purpose, Provisions, and Promise of Humanitarian Disarmament Law
    • Dinah Shelton, Normative Evolution in Corporate Liability for Violations of Human Rights and Humanitarian Law
    • Richard Moyes & Brian Rappert, Looking Inwards and Looking Outwards – Specific Challenges and Strategic Directions From the Prohibition of Cluster Munitions
    • Michael Schoiswohl, Human Rights and Disarmament – A Blind Date or a Shotgun Marriage?
    • Peter Weiss, A Legal Path to a Nuclear Weapons Free World
    • Rebecca Johnson, Linking Humanitarian Law and Nuclear Disarmament Action: The Case for a Nuclear Weapons Convention
    • Karl Zemanek, Response to a Terrorist Attack – A Clarification of Issues

Thursday, October 3, 2013

Dumberry: The Fair and Equitable Treatment Standard: A Guide to NAFTA Case Law on Article 1105

Patrick Dumberry (Univ. of Ottawa - Law) has published The Fair and Equitable Treatment Standard: A Guide to NAFTA Case Law on Article 1105 (Wolters Kluwer 2013). Here’s the abstract:

Since the entry into force of the North American Free Trade Agreement (NAFTA) in 1994, several arbitral tribunals have rendered awards dealing with claims of breach of Article 1105. Some of these awards have been very controversial and have had a tremendous impact on the development of the concept of fair and equitable treatment (FET) and the evolution of international investment law. Yet, in spite of the fundamental importance of these awards, no comprehensive study had been undertaken to determine the meaning and the content of the FET standard under NAFTA Article 1105.

This book’s systematic analysis of the provision and its case law fills this analytical gap. Because Article 1105 is in many ways different from typical FET clauses contained within most investment treaties, the author examines the particular parameters under which it must be interpreted. He also analyzes how these specific features have influenced NAFTA tribunals’ interpretation of the provision, and how their assessments differ from awards rendered by other tribunals outside NAFTA.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 82, no. 3, 2013) is out. Contents include:
  • Maria Eriksson, The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights
  • Ulf Linderfalk, The Source of Jus Cogens Obligations – How Legal Positivism Copes with Peremptory International Law
  • Marina Lostal, The Role of Specific Discipline Principles in International Law: A Parallel Analysis between Environmental and Cultural Heritage Law
  • The International Criminal Court’s Involvement with Africa: Evaluation of a Fractious Relationship

New Issue: Transnational Legal Theory

The latest issue of Transnational Legal Theory (Vol. 4, no. 2, 2013) is out. Contents include:
  • Peter Rijpkema, The Concept of a Global Rule of Law
  • Phillip Paiement, Paradox and Legitimacy in Transnational Legal Pluralism
  • Ignacio de la Rasilla del Moral, The Dilemma of the Three Wise Monkeys? Transnational Law as a Tool of Constitutional Interpretation and the US Supreme Court
  • Alexander Somek, The Individualisation of Liberty: Europe's Move from Emancipation to Empowerment

Chaisse: Investment Claims Against Asian States - A Legal Analysis of the Statistics, Trends and Prospects

Julien Chaisse (Chinese Univ. of Hong Kong - Law) has posted Investment Claims Against Asian States - A Legal Analysis of the Statistics, Trends and Prospects. Here's the abstract:
The developments which are now taking place show that Asian states are increasingly negotiating international investment agreements (IIAs) (in the form of BITs or PTAs) which form a dense network of obligations. Although few cases had been brought against Asian states by 2009, the pattern has changed since 2010, with a sharp increase in the initiation of investor-state arbitration proceedings over the last three years. Although some IIAs have generated a few disputes for technical reasons (for example, those concluded by China before 2005 or by Thailand, Indonesia, Thailand and Malaysia, which require the pre-approval of investments), it is rather predictable that Asian states are currently entering an era in which foreign investors are likely to multiply claims. Such a trend requires host states to be prepared to litigate while reassessing the economic and political benefits of current investment treaty commitments.

New Volume: African Yearbook on International Humanitarian Law

The latest volume of the African Yearbook on International Humanitarian Law (Vol. 2012) is out. Contents include:
  • Shannon Bosch, The Combatants Status of "Underaged" Child Soldiers Recruited by Irregular Armed Groups in International Armed Conflicts
  • Khoti Kamanga, Implementation of International Humanitarian Law in Tanzania : a Legal Enquiry
  • Gerhard Kemp, Sina Ackermann, The Elements of the Crime of Genocide and the Imperative to Protect to Protect Certain Groups : Normative Shapers in Criminal Law and the Humanitarian Perspective
  • Mutsa Mangezi, Localised Armed Conflicts : a Factual Reality, a Legal Misnomer
  • Mispa Roux, The Erga Omnes Obligation to Prevent and Prosecute Gross Human Rights Violations With Special Emphasis Upon Genocide and Persecution as a Crime Against Humanity
  • Brian Sang Yk, Legal Regulation of Belligerent Reprisals in International Humanitarian Law : Historical Development and Present Status
  • Christopher Gevers, Alan Wallis, & Max du Plessis, Sixty Years in the Making, Better Late Than Never? : the Implementation of the Geneva Conventions Act

Wednesday, October 2, 2013

New Issue: World Politics

The latest issue of World Politics (Vol. 65, no. 4, October 2013) is out. Contents include:
  • Edward D. Mansfield & Diana C. Mutz, US versus Them: Mass Attitudes toward Offshore Outsourcing
  • Hanna Lerner, Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey
  • Jeff D. Colgan, Domestic Revolutionary Leaders and International Conflict
  • Iain Hardie, David Howarth, Sylvia Maxfield & Amy Verdun, Banks and the False Dichotomy in the Comparative Political Economy of Finance
  • Dan Slater, Democratic Careening

Call for Papers: Junior International Law Scholars Association Annual Meeting

The Junior International Law Scholars Association has issued a call for papers for its annual meeting, which will take place January 31, 2014, at Berkeley Law School. Here's the call:
The Junior International Law Scholars Association (JILSA) is holding its annual meeting on Friday, January 31, 2014, at Berkeley Law School. JILSA is an informal network composed mostly of junior scholars at American law schools who get together annually for a self-funded workshop. Junior scholars and fellows interested in presenting works in progress at the meeting should email proposals to Jean Galbraith and Markus Wagner by Friday, November 8. Please send a working title/abstract and provide a sense of the shape the paper is in. Proposals to present early stage works are also welcome.

Mitzen: Power in Concert: The Nineteenth-Century Origins of Global Governance

Jennifer Mitzen (Ohio State Univ. - Political Science) has published Power in Concert: The Nineteenth-Century Origins of Global Governance (Univ. of Chicago Press 2013). Here's the abstract:

How states cooperate in the absence of a sovereign power is a perennial question in international relations. With Power in Concert, Jennifer Mitzen argues that global governance is more than just the cooperation of states under anarchy: it is the formation and maintenance of collective intentions, or joint commitments among states to address problems together. The key mechanism through which these intentions are sustained is face-to-face diplomacy, which keeps states’ obligations to one another salient and helps them solve problems on a day-to-day basis.

Mitzen argues that the origins of this practice lie in the Concert of Europe, an informal agreement among five European states in the wake of the Napoleonic wars to reduce the possibility of recurrence, which first institutionalized the practice of jointly managing the balance of power. Through the Concert’s many successes, she shows that the words and actions of state leaders in public forums contributed to collective self-restraint and a commitment to problem solving—and at a time when communication was considerably more difficult than it is today. Despite the Concert’s eventual breakdown, the practice it introduced—of face to face diplomacy as a mode of joint problem solving—survived and is the basis of global governance today.

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 39, no. 4, October 2013) is out. Contents include:
  • Adrian Little & Kate MacDonald, Pathways to global democracy? Escaping the statist imaginary
  • Mark B. Salter & Can E. Mutlu, Securitisation and Diego Garcia
  • Michele Acuto, The new climate leaders?
  • Peter Lee, Scarred souls, weary warriors, and military intervention: the emergence of the subject in the just war writings of Jean Bethke Elshtain
  • Julia Welland, Militarised violences, basic training, and the myths of asexuality and discipline
  • Oliver Turner, ‘Threatening’ China and US security: the international politics of identity
  • Thomas Moore, Saving friends or saving strangers? Critical humanitarianism and the geopolitics of international law
  • Eeva Puumala, Political life beyond accommodation and return: rethinking relations between the political, the international, and the body
  • David Jason Karp, The location of international practices: what is human rights practice?
  • Jens Steffek, Explaining cooperation between IGOs and NGOs – push factors, pull factors, and the policy cycle
  • Burak Kadercan, Making sense of survival: refining the treatment of state preferences in neorealist theory

Linarelli: Research Handbook on Global Justice and International Economic Law

John Linarelli (Swansea Univ. - Law) has published Research Handbook on Global Justice and International Economic Law (Edward Elgar Publishing 2013). Contents include:
  • John Linarelli, Introduction
  • Gillian Brock, Theories of Global Justice
  • Ernst Ulrich-Petersmann, Human Rights and International Economic Law
  • Frank Garcia & Lindita Ciko, Theories of Justice and International Economic Law
  • Chin Leng Lim, Regional Trade Agreements and the Poverty Agenda
  • Paul Clements, Multilateral Development Banks and the International Monetary Fund
  • Sarianna Lundan, Human Rights Issues in Multinational Value Chains
  • Carlos Correa, Intellectual Property Rights and International Economic Governance
  • Baogang He & Hannah Murphy, Global Social Justice at the WTO? The Role of NGOs in Constructing Global Social Contracts
  • B.S. Chimni, Critical Theory and International Economic Law
  • Andrea Maneschi, The Economics of International Trade
  • John Linarelli, Law, Rights and Development

Tuesday, October 1, 2013

Maupin: Differentiating Among International Investment Disputes

Julie A. Maupin (Duke Univ. - Law) has posted Differentiating Among International Investment Disputes (in The Foundations of International Investment Law: Bridging Theory into Practice, Douglas, Pauwelyn, & Viñuales eds., forthcoming). Here's the abstract:
Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze how much room there is to implement it within the current framework of the regime. While some improvements can be made through arbitrator-led efforts in the short term, what is needed in the medium term is a systemic restructuring that funnels different classes of investor-state claims into different types of dispute resolution mechanisms that better comport with the claims’ underlying characteristics.

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 11, no. 4, September 2013) is out. Contents include:
  • Articles
    • Randle C. DeFalco, Contextualizing Actus Reus under Article 25(3)(d) of the ICC Statute: Thresholds of Contribution
    • Máximo Langer, Universal Jurisdiction as Janus-Faced: The Dual Nature of the German International Criminal Code
    • Margherita Melillo, Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo
  • Symposium: Last Judgment - The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone
    • Simon M. Meisenberg & Laurel Baig, Foreword
    • Kai Ambos & Ousman Njikam, Charles Taylor’s Criminal Responsibility
    • Kirsten M.F. Keith, Deconstructing Terrorism as a War Crime: The Charles Taylor Case
    • Kevin Jon Heller, The Taylor Sentencing Judgment: A Critical Analysis
    • Fidelma Donlon, The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunals
  • National Prosecution of International Crimes: Legislation and Cases
    • Jennifer Daskal, Hamdan v. United States: A Death Knell for Military Commissions?
  • Highlights
    • Patrick W. Hayden & Katerina I. Kappos, Current Developments at the Ad Hoc International Criminal Tribunals

Zaum: Legitimating International Organizations

Dominik Zaum (Univ. of Reading - International Relations) has published Legitimating International Organizations (Oxford Univ. Press 2013). Contents include:
  • Dominik Zaum, International Organisations, Legitimacy, and Legitimation
  • Mervyn Frost, Legitimacy and International Organisation: The Changing Ethical Context
  • Paul Williams, Regional and Global Legitimacy Dynamics: The United Nations and Regional Arrangements
  • Jennifer Welsh & Dominik Zaum, Legitimation and the UN Security Council
  • Alhaji Sarjoh Bah, ECOWAS and the Legitimacy Question: A Normative and Institutional Approach
  • Walter Lotze, The African Union
  • Alice Ba, The Association of Southeast Asian Nations: Between Internal and External Legitimacy
  • Jochen Prantl, The Shanghai Cooperation Organisation
  • Christopher Lord, A European Re-invention of Indirect Legitimacy?
  • Ingo Peters, Legitimacy and International Organisations: the Case of the OSCE
  • Dominik Zaum, Conclusion

Oxford Public International Law Discussion Group - Michaelmas Term 2013

Here's the schedule for the Oxford Public International Law Discussion Group for Michaelmas Term 2013:
  • October 17, 2013: J Viñuales (Univ. of Cambridge), Sovereignty in Foreign Investment Law
  • October 24, 2013: Devika Hovell (London School of Economics), The Security Council in Global Public Law: the Case for the International Ombudsperson
  • October 31, 2013: M Mendelson (Blackstone Chambers), An Argentine Warship in the Ghanaian Courts: a Drama of State Immunity and Public Policy
  • November 7, 2013: D Guilfoyle (Univ. College London), Communicative Justice and International Criminal Law: Re-thinking the Rationale for International Criminal Justice and Jurisdiction
  • November 14, 2013: R McCorquodale (British Institute of International and Comparative Law), Business and Human Rights: Voluntary Expectations or Legal Obligations?
  • November 21, 2013: Veronika Fikfak (Univ. of Cambridge), TBA
  • November 28, 2013: Philippa Webb (King's College London), Factors that Explain Integration and Fragmentation Among International Courts
  • December 5, 2013: William Schabas (Middlesex Univ.), The Contemporary Significance of the Universal Declaration of Human Rights

Sarvarian: Professional Ethics at the International Bar

Arman Sarvarian (Univ. of Surrey - Law) has published Professional Ethics at the International Bar (Oxford Univ. Press 2013). Here's the abstract:

Over the past twenty years, the volume of international litigation and arbitration has increased exponentially. As the number of new international courts and tribunals has proliferated, the diversity and volume of advocates appearing before the international courts has also increased. With this increase, the ethical standards that apply to counsel have become a growing field of interest to practitioners of public international law. Problems threatening the integrity of the international judicial process and concerns about divergent ethical standards amongst counsel have multiplied in the international judicial system, prompting early attempts by senior members of the 'international bar' to articulate common ethical standards.

Professional Ethics at the International Bar examines the question of how to articulate common ethical standards for counsel appearing before international courts and tribunals, and the legal powers and practical ability of international courts to prescribe and enforce such standards. It conducts original research into both the theory and practice of the issues arising from this nascent process of professionalization. Using various sources, including interviews with judges, registrars, and senior practitioners, it argues that the professionalization of advocacy through the articulation of common ethical standards is both desirable and feasible in order to protect the integrity and fairness of the international judicial process.

Monday, September 30, 2013

Maupin: Where Should Europe's Investment Path Lead?

Julie A. Maupin (Duke Univ. - Law) has posted Where Should Europe's Investment Path Lead? (Santa Clara Journal of International Law, forthcoming). Here's the abstract:
Relative to the past policies of its Member States, will the European Union’s new comprehensive international investment policy constitute a step forward, a step backward, or a perpetuation of the status quo? Professor Reinisch’s contribution to this volume opens a wide window on the current state of the debate. His cogent analysis suggests that, at present, all three possibilities remain live ones, although some basic contours of a likely trajectory are beginning to take shape. I use his musings as a springboard to investigate two questions which follow naturally from his. That is, in view of Professor Reinisch’s response to the question “where are you going, Europe?” I ask, first, where should European investment policy go next, and second, who should decide? These normative questions are pressing and require thoughtful answers developed through inter-institutional dialogue. If the new EU-wide investment policy is to succeed, their resolution must take precedence over the more mundane, technical matters that have consumed the bulk of scholarly attention so far.

New Issue: International Politics

The latest issue of International Politics (Vol. 50, no. 5, September 2013) is out. Contents include:
  • Caroline Kennedy, The Manichean temptation: Moralising rhetoric and the invocation of evil in US foreign policy
  • China in a Hostile World
  • Paul Irwin Crookes, Resetting EU–China relations from a values-based to an interests-based engagement
  • Weiqing Song, Feeling safe, being strong: China's strategy of soft balancing through the Shanghai Cooperation Organization
  • Human Rights: Human Wrongs
  • Kamila Stullerova, Rethinking human rights
  • Meirav Mishali-Ram & Hemda Ben-Yehuda, Revisiting the democratic peace practice: Interstate violence in multi-actor crises, 1918–2005

Hollis: The Existential Function of Interpretation in International Law

Duncan B. Hollis (Temple Univ. - Law) has posted The Existential Function of Interpretation in International Law. Here's the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what "exists" to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as "State practice" for purposes of identifying customary international law. Interpreters who only count what States "do" may generate different content for a claimed rule than those who also consider what States "say" about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the "existential function" of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call "existential interpretation" – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

Witt: Two Conceptions of Suffering in War

John Fabian Witt (Yale Univ. - Law) has posted Two Conceptions of Suffering in War (in Knowing the Suffering of Others, Austin Sarat ed., forthcoming). Here's the abstract:

Since at least the middle of the nineteenth century, two competing conceptions of suffering in wartime have dominated western thought about the laws of armed conflict. One conception views suffering – and especially suffering in war – as an evil in itself. Those who take this view, like Henri Dunant, founder of the International Committee of the Red Cross and inspiration for the Geneva Convention of 1864, typically adopt the minimization of suffering as the principal goal for a law of war. Another conception of suffering in war, however, sees the experience of pain as an inevitable and sometimes even ennobling accompaniment to the hard work of bringing about just ends in the world. This latter view rejects the idea that one can evaluate suffering or its legal significance without knowing why the suffering exists. This approach has a long tradition, too, one that stretches back through Dunant’s contemporary the Prussian-American Francis Lieber, drafter of the Union’s rules of engagement in the American Civil War.

These two ways of making sense of human suffering (and the conflicts between them) have animated legal efforts to manage warfare ever since Dunant and Lieber launched the modern chapter of the laws of armed conflict a century and a half ago. And for good reason. Each of the two dominant conceptions of suffering contains inescapable limits and indispensable moral insights. The difficulty – our difficulty – is to capture their insights while containing their flaws.

Gartner: Transnational Rights Enforcement

David Gartner (Arizona State Univ. - Law) has posted Transnational Rights Enforcement (Berkeley Journal of International Law, forthcoming). Here's the abstract:
A central debate among international law scholars revolves around the question of how, if at all, international human rights are enforced. Based on recent empirical research, the leading explanations for human rights enforcement are: 1) the democracy thesis; 2) the constitutional thesis; and 3) the international non-governmental organization (INGO) thesis. In order to gain better insight into the causal mechanisms involved and the interplay between these different factors in human rights enforcement, this article tests these competing theories through controlled comparisons and qualitative case studies focused on a single widely ratified right, the right to education. It identifies transnational rights enforcement as an alternative mechanism of human rights enforcement. In this model, transnational civil society actors contribute to human rights enforcement by overcoming international constraints, leveraging domestic commitments, and accelerating compliance with regional norms.

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 24, no. 3, August 2013) is out. Contents include:
  • Editorial
    • JHHW, European Parliament Elections 2014: Europe’s Fateful Choices; EJIL and ESIL; In this Issue
  • Articles
    • Congyan Cai, New Great Powers and International Law in the 21st Century
    • Claus D. Zimmermann, The Concept of Monetary Sovereignty Revisited
  • EJIL: Debate!
    • Ryan Goodman, The Power to Kill or Capture Enemy Combatants
    • Michael N. Schmitt, Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’
    • Ryan Goodman, The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt
  • EJIL: Debate!
    • John Dugard & John Reynolds, Apartheid, International Law, and the Occupied Palestinian Territory
    • Yaffa Zilbershats, Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds
  • Roaming Charges: Moments of Dignity: Bar in San Juan
  • Critical Review of International Governance
    • Ademola Abass, Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges
  • Literature Review Essay
    • Benoît Mayer, Climate Change and International Law in the Grim Days

Plouffe-Malette: Protection des victimes de traite des êtres humains : Approches internationales et européennes

Kristine Plouffe-Malette has published Protection des victimes de traite des êtres humains : Approches internationales et européennes (Bruylant 2013). Here's the abstract:

Cet ouvrage propose une analyse approfondie des normes internationales et européennes relatives à la lutte contre la traite des êtres humains et, plus particulièrement, de la protection offerte aux victimes. À ce jour, les États tentent d’inscrire la lutte contre la traite des êtres humains dans une approche intégrée visant la prévention, la répression et la protection. Or il semble que la protection des victimes serve uniquement des objectifs répressifs, et ce, indépendamment du cadre législatif étudié. Ainsi, c’est à travers un prisme répressif que la protection est perçue, criminalisant et pénalisant d’autant les victimes, lesquelles sont victimes non seulement de la traite mais aussi de la lutte contre la traite.

Sont principalement analysés le Protocole visant à prévenir, réprimer et punir la traite des personnes, en particulier des femmes et des enfants, additionnel à la Convention des Nations Unies contre la criminalité transnationale organisée, la Convention du Conseil de l’Europe sur la lutte contre la traite des êtres humains, la Directive relative au titre de séjour pour les victimes de la traite des êtres humains et la Directive concernant la prévention et la lutte contre la traite des êtres humains et la protection des victimes.

Sunday, September 29, 2013

Goldmann: Human Rights and Sovereign Debt Workouts

Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law) has posted Human Rights and Sovereign Debt Workouts. Here's the abstract:
This paper argues that the development of a regime for sovereign debt workouts has created an asymmetry between the rights and interests of sovereign lenders and those of the population of a debtor state. It first analyzes the impact of sovereign debt workouts on human rights. Subsequently, it explores avenues for the justification of adjustment measures affecting human rights with a view to reconciling human rights with adjustment policies and rectifying the asymmetrical relationship. This includes the proposal of a checkbox test for adjustment programmes with retrogressive effects for human rights. Further, the paper discusses which actors besides the debtor state are bound by human rights. The concluding section argues that human rights impact assessments, among other procedural tools, might help reconciling the rights and interests of people living in debtor states with creditors’ rights and interests and cure the present asymmetrical relationship.