Saturday, August 9, 2014

ILR: On Vacation

I'll be back the week of August 18.

Friday, August 8, 2014

New Volume: Yearbook on International Investment Law & Policy

The latest volume of the Yearbook on International Investment Law & Policy (2012-2013) is out. Contents include:
  • Part One
    • Karl P. Sauvant, Persephone Economou, Ksenia Gal, Shawn Lim, & Witold P. Wilinski, Trends in FDI, Home Country Measures and Competitive Neutrality
    • Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Nicholas J. Birch, & Kabir Duggal, International Investment Law and Arbitration: 2012 in Review
    • Lise Johnson & Lisa Sachs, Trends in International Investment Agreements, 2011-2012: A Review of Trends and New Approaches
  • Part Two: Symposium on Sustainable Development and International Investment Law: Bridging the Divide
    • Lise Johnson & Rahim Moloo, Symposium on International Investment Law and Sustainable Development
    • Rahim Moloo & Jenny J. Chao, International Investment Law and Sustainable Development: Bridging the Unsustainable Divide
    • Caroline Henckels, Balancing Investment Protection and Sustainable Development in Investor-State Arbitration: The Role of Deference
    • Stephan W. Schill, International Investment Law as International Development Law
    • Vid Prislan & Ruben Zandvliet, Labor Provisions in International Investment Agreements: Prospects for Sustainable Development
    • Mavluda Sattorova, International Investment Law, Renewable Energy, and National Policy-making: On "Green" Discrimination, Double Regulatory Squeeze, and the Law of Exceptions
    • Alessandra Asteriti, Regulatory Expropriation Claims in International Investment Arbitration: A Bridge Too Far?
  • Part Three: General Articles
    • Patrick Dumberry & Jacob Stone, International Law, Whether You Like It or Not: An Analysis of Arbitral Tribunal Practice Regarding the Applicable Law in Deciding State Contracts Disputes under the ICSID Convention in the Twenty-First Century
    • Hernando Diaz-Candia, The Role of Municipal Laws in Investment Arbitration
    • Jo En Low, The Status of State-Controlled Entities under International Investment Agreements
    • David A. Gantz, The United States and the Trans-Pacific Partnership (TPP)
    • Paolo Di Rosa & Dawn Y. Yamane Hewett, The New 2012 U.S. Model BIT: Staying the Course
    • Björn Arp, The Regulation of Foreign Directive Investment in Bolivia: Some Current Challenges

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

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 14, no. 3, September 2014) is out. Contents include:
  • Avidan Kent, Implementing the principle of policy integration: institutional interplay and the role of international organizations
  • Ayşem Mert, Hybrid governance mechanisms as political instruments: the case of sustainability partnerships
  • Mark Giordano, Alena Drieschova, James A. Duncan, Yoshiko Sayama, Lucia De Stefano, & Aaron T. Wolf, A review of the evolution and state of transboundary freshwater treaties
  • Tobias Dan Nielsen, The role of discourses in governing forests to combat climate change
  • Inés de Águeda Corneloup & Arthur P. J. Mol, Small island developing states and international climate change negotiations: the power of moral “leadership”

Thursday, August 7, 2014

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 118, no. 2, 2014) is out. Contents include:
  • Joël Lebullenger, Les mécanismes de règlement des litiges des accords externes de l'Union européenne et de l'ALENA
  • Raphaël van Steenberghe, Les interventions française et africaine au Mali au nom de la lutte armée contre le terrorisme
  • Julia Motte-Baumvol, Le réglement des différends à l'intention des entreprises multinationales: quelques réflexions à partir des principes directeurs de l'OCDE
  • David Appanah, A propos des arrêts Aklagaren C/ Hans Akerberg Fransson et Stefano Melloni C/ Ministerio Fiscal rendus par la Cour de justice le 23 février 2013

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 9, no. 3, September 2014) is out. Contents include:
  • Erik Voeten, Does participation in international organizations increase cooperation?
  • Amanda Murdie, Scrambling for contact: The determinants of inter-NGO cooperation in non-Western countries
  • Stephanie J. Rickard & Daniel Y. Kono, Think globally, buy locally: International agreements and government procurement
  • Andreas Dür, Leonardo Baccini, & Manfred Elsig, The design of international trade agreements: Introducing a new dataset

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 46, no. 3, Spring 2014) is out. Contents include:
  • Symposium: The Function of Judges and Arbitrators in International Law
    • Eyal Benvenisti & George W. Downs, Democratizing Courts: How National and International Courts Promote Democracy in an Era of Global Governance
    • Andreas Follesdal, To Guide and Guard International Judges
    • André Nollkaemper, Concerted Adjudication in Cases of Shared Responsibility
    • Geir Ulfstein, International Courts and Judges: Independence, Interaction, and Legitimacy
    • Robert Howse & Ruti Teitel, Cross-Judging Revisited
    • D. Brian King & Rahim Moloo, International Arbitrators as Lawmakers
    • Alec Stone Sweet & Giacinto della Cananea, Proportionality, General Principles of Law, and Investor-State Arbitration: A Response to José Alvarez

Pauwelyn: Rule-Based Trade 2.0? The Rise of Informal Rules and International Standards and How They May Outcompete WTO Treaties

Joost Pauwelyn (Graduate Institute of International and Development Studies) has posted Rule-Based Trade 2.0? The Rise of Informal Rules and International Standards and How They May Outcompete WTO Treaties (Journal of International Economic Law, Symposium Issue in Honor of Prof. John Jackson, forthcoming). Here's the abstract:
One of Professor Jackson’s many legacies is his role in moving the international trade system from a “power-oriented” to a “rule-oriented” regime. The core feature and underlying goal of a “rule-oriented structure”, Professor Jackson explains, is “creating greater predictability, redressing unfair power imbalances, and preventing escalating international tensions”. The focus of “rule-based trade 1.0” is, therefore, on output and effect (predictability and stability of rules; their neutral application to all), not on input and content of the rules in the first place (who defines the rules, how were they adopted, are the rules welfare enhancing, coherent and adapted to new developments?). This contribution highlights how, since the turn of the millennium, we have witnessed stagnation in the formation of traditional treaty rules combined with a rise in informal rules and international standards. While the nature of the rules is thereby changing profoundly -- new actors, new processes, new outputs -- the contribution’s main claim is that the output and effect of the new type of rules being created (e.g. their effectiveness) may well match, and at times outcompete, that of traditional GATT/WTO rules. At the same time, these new (informal) rules and standards may also be more (rather than less) legitimate and coherent in terms of input and content. This potential evolution is described as a move from “thin state consent” (rule-based trade 1.0) to “thick stakeholder consensus” (rule-based trade 2.0).

Wednesday, August 6, 2014

Rodman: Intervention and the ‘Justice Cascade’: Lessons from the Special Court for Sierra Leone on Prosecution and Civil War

Kenneth A. Rodman (Colby College - Government) has posted Intervention and the ‘Justice Cascade’: Lessons from the Special Court for Sierra Leone on Prosecution and Civil War (Human Rights Review, forthcoming). Here's the abstract:
In the ‘Justice Cascade’, Kathryn Sikkink argues that “foreign prosecutions and international tribunals can be cost-effective alternatives to military intervention.” Yet, the successes of the Special Court for Sierra Leone—in prosecuting former Liberian President Charles Taylor and in imposing accountability on the leaders of all armed groups regardless of political alignment—were dependent on a commitment by Western powers and international and regional organizations to a military victory against the rebels in Sierra Leone and coercive regime change in Liberia. The lesson that should be drawn from this case—which parallels that of other international tribunals set up during ongoing violence—is that the prospects for international criminal justice during civil wars are dependent on the political strategies adopted by outsiders to address the conflict and that taking criminal accountability seriously requires an interventionist rather than a consent-based approach to conflict resolution.

New Issue: Human Rights Quarterly

The latest issue of the Human Rights Quarterly (Vol. 36, no. 3, August 2014) is out. Contents include:
  • Isabel Marcus, The “Woman Question” in Post-Socialist Legal Education
  • Xinyuan Dai, The Conditional Effects of International Human Rights Institutions
  • Dubravka Šimonović, Global and Regional Standards on Violence Against Women: The Evolution and Synergy of the CEDAW and Istanbul Conventions
  • Keri Ellis & Loretta Feris, The Right to Sanitation: Time to Delink from the Right to Water
  • Emma Mawdsley, Human Rights and South-South Development Cooperation: Reflections on the “Rising Powers” as International Development Actors
  • Yvonne Donders & Vincent Vleugel, The Receptor Approach: A New Human Rights Kid on the Block or Old Wine in New Bags? A Commentary on Professor Zwart’s Article in HRQ

New Issue: Yale Journal of International Law

The latest issue of the Yale Journal of International Law (Vol. 39, no. 1, Winter 2014) is out. Contents include:
  • Margaret M. deGuzman, Harsh Justice for International Crimes?
  • Stella Burch Elias, Comprehensive Immigration Reform(s): Immigration Regulation Beyond Our Borders
  • Lilian V. Faulhaber, Charitable Giving, Tax Expenditures, and Direct Spending in the United States and the European Union

New Issue: Journal of World Energy Law & Business

The latest issue of Journal of World Energy Law & Business (Vol. 7, no. 4, August 2014) is out. Contents include:
  • Thomas J. Dimitroff, Cross-border oil and gas pipeline risk and sustainable mitigations
  • Danielle L. Ornelas, Pietro A. S. Mendes, Alessandra Magrini, & Maurício C. Arouca, Offshore oil and gas exploration and production in Brazil: a proposal for integrated actions for operational, occupational and environmental safety
  • Elimma C. Ezeani, Removing oil subsidies in Nigeria: between necessity and false economy
  • Camila Borges, Alexandre Szklo, & José Alberto Bucheb, Windfall profits arising from the subadditivity of costs after unitization and compliance with minimum local content requirements in Brazilian deepwater offshore oil fields

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 9, nos. 7-8, 2014) is out. Contents include:
  • Yves Melin, Protective Orders in Trade Defence Investigations
  • Darrel H. Pearson & Jessica B. Horwitz, ‘Administrative Protective Orders: Protection of Confidential Information in Canadian Trade Remedy Proceedings’
  • Adrián Vázquez, Protection of Confidential Information in the Mexican Trade Remedy System
  • Luis Felipe Aguilar Rico, Patricia Arratíbel Siles, & Juan Antonio Dorantes Sánchez, Administrative Protective Orders in Trade Remedy Cases in Mexico
  • Patrick J. Togni, A Primer on U.S. APO Practice and Procedure in Antidumping and Countervailing Duty Proceedings
  • Wolfgang Mueller, Administrative Protective Order System: Should the Exception Be Made the Rule?
  • Folkert Graafsma, APO and Known Unknowns
  • Renato Antonini, Access to (Confidential) Data in EU Trade Defence Proceedings
  • Davide Rovetta & Maurizio Gambardella, Access to EU Antidumping/Subsidy Confidential Files: The EU Law ‘Zwartveld Sincere Cooperation Doctrine’, Surprise What You Are Looking for Already Exists
  • Shintaro Hamanaka, WTO Agreement on Trade Facilitation: Assessing the Level of Ambition and Likely Impacts
  • Paul C. Rosenthal & Jeffrey S. Beckington, The People’s Republic of China: A Market Economy or A Non-market Economy in Anti-dumping Proceedings Starting on December 12, 2016?
  • Christian Pitschas, The New EU Tobacco Products Directive in the Light of TRIPS: Trademarks and the Protection of Public Health
  • C. Nalin Kumar & Sarbani Mukherjee, Imperatives of Trade Facilitation in the Indian Coffee Sector: A Transaction Cost Perspective

Tuesday, August 5, 2014

New Volume: Anuario Argentino de Derecho Internacional

The latest volume of the Anuario Argentino de Derecho Internacional (Vol. 21, 2012) is out. Contents include:
  • Doctrina
    • Ariel R. Mansi, Desarrollos Recientes en el Establecimiento de Áreas Marinas Protegidas en los Océanos Australes
    • Alejandro Aldo Menicocci, El Estatuto de la Persona Humana: Del Domicilio y la Nacionalidad a la Autonomía Conflictual y Material
    • Luciano Pezzano, Fuentes de las Obligaciones Generales de los Estados en el Sistema Universal de Protección de los Derechos Humanos
    • Oscar César Benítez, Los Nuevos Procesos y Organizaciones en el Sistema Interamericano (UNASUR e CELAC), y Sus Implicancias en Relación con la OEA

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 48, no. 4, August 2014) is out. Contents include:
  • Juan A. Marchetti & Martin Roy, The TISA Initiative: An Overview of Market Access Issues
  • Rajesh Sharma, China-India FTA: Is the Future Imperfect?
  • Jingdong Liu, Accession Protocols: Legal Status in the WTO Legal System
  • Woraboon Luanratana & Alessandro Romano, Stare Decisis in the WTO: Myth, Dream, or a Siren’s Song?
  • Bernard Hoekman, Jesper Jensen, & David Tarr, A Vision for Ukraine in the World Economy
  • Song Guan, WTO Retaliation Rules in Subsidy-Related Cases: What Can We Learn from the US-Upland Cotton Arbitration?
  • Siqi Li, Haiyan He, The Concurrent Trade Defence Investigations 1982–2013: The Changing Pattern and Characteristics

Kolb: The Elgar Companion to the International Court of Justice

Robert Kolb (Univ. of Geneva - Law) has published The Elgar Companion to the International Court of Justice (Edward Elgar Publishing 2014). Here's the abstract:
The first in a series of Companions that offer broad coverage of a range of international courts and tribunals, The Elgar Companion to the International Court of Justice is a one-stop reference for those wishing to understand this highly significant and successful court. The Companion offers an objective account of how the ICJ came into being, the general principles on which it was founded, and how it functions today. It addresses certain fundamental aspects of the Court, such as its jurisdiction, structure and jurisprudence, as well as its role in the wider world. The Companion gives a human flavour to the institution through the portraits of some of the great figures that have served as its judges.

Burke-White: Crimea and the International Legal Order

William W. Burke-White (Univ. of Pennsylvania - Law) has posted Crimea and the International Legal Order. Here's the abstract:
A key balance between two of the most fundamental principles of the post-World War II international legal and political order is at stake today in Ukraine. Particularly in its annexation of Crimea, Russia has exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination. Russia’s reinterpretation of these two principles could well destabilize the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post World War II order. In determining the precedent that will be remembered from the events in Crimea, the US must work to build legal and diplomatic coalitions that narrow exceptions and reaffirm the principles of the modern international order.

Grossman: Shattering the Glass Ceiling in International Adjudication

Nienke Grossman (Univ. of Baltimore - Law) has posted Shattering the Glass Ceiling in International Adjudication. Here's the abstract:
This is the first article to examine the relationship between selection procedures and sex representativeness on various international court benches. It provides statistics on women judges on international courts, analyzes why women remain a distinct minority on the bench on most courts, and proposes and evaluates potential reforms for achieving greater balance on the bench. These reforms include more transparent and open selection procedures at the national level, the use of commissions to identify and vet candidates at the national and international levels, and aspirational and mandatory representativeness targets. Although each court operates within its own specific institutional context, comparing their procedures and outcomes provides insights into best and worst practices for achieving fair representation on the bench. Not only does this article expose flaws in and propose enhanced selection procedures to provide greater representativeness on the bench, but also the suggested reforms may enhance the legitimacy credentials of these increasingly important institutions.

Crawford: Terrorism and Targeted Killings in International Law

Emily Crawford (Univ. of Sydney - Law) has posted Terrorism and Targeted Killings in International Law (in Research Handbook on International Law and Terrorism, Ben Saul ed., forthcoming). Here's the abstract:
Targeted killing has become part of the conventional military and security strategy of a number of states in their operations against terrorist suspects, with Israel, the US and Russia among the most notable that have openly employed such tactics. Controversy has arisen regarding whether, as the perpetrator states have asserted, such killings should be considered as part of an ongoing ‘war’ against terrorist organizations, thus judged according to the law on the use of force (jus ad bellum) and the law of armed conflict (jus in bello or international humanitarian law (IHL), or whether the struggle against terrorist groups should be considered within a law enforcement framework, thus engaging international human rights law (IHRL). This chapter examines these issues.

Monday, August 4, 2014

Conference: Twenty-Third Investment Treaty Forum Public Conference

The British Institute of International and Comparative Law will host the Twenty-Third Investment Treaty Forum Public Conference on September 12, 2014. The theme is: "Can International Investment Law be Restated? Or is Jurisprudence Constante the El Dorado of Investment Treaty Lawyers?" Here's the idea:
It has sometimes been suggested that while the international legal system admits no formal principle of stare decisis, there might nevertheless develop in the field of international investment treaties, a jurisprudence constante - a "persisting jurisprudence" that secures unification and stability of judicial activity. This 23rd Meeting of the Investment Treaty Forum investigates that claim, combining reports on where the investment treaty "case law" stands in the field with a theoretical and practical inquiry as to the utility of this "precedent" in light of the increasing heterogeneity among international investment treaty arrangements and the structural limitations of the regime. Among the issues to be addressed directly will be the principles applicable to claims for indirect expropriation, the evolving meaning of "fair and equitable treatment," the operation of umbrella clauses, and the definition of "investment."

Call for Papers: International Symposium on the Legacy of the ICTR

The International Criminal Tribunal for Rwanda has issued a call for papers for a symposium on the legacy of the tribunal. Here's the call:

Call for Papers: International Symposium on the Legacy of the ICTR

The International Criminal Tribunal for Rwanda (“ICTR”) is organising an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania on 6-7 November 2014 (the “Symposium”).

With the ICTR’s closure scheduled for 2015, the Symposium aims to provide an opportunity for experts in the field of international justice to reflect on the ICTR’s contributions to the development of international humanitarian law, administration of justice, and promotion of the rule of law, particularly in the Great Lakes Region. We invite experts in the field to submit proposals for papers to be presented during the Symposium. Papers should focus on the topics indicated in the draft programme, which can be found here.

Those interested in presenting a paper at the Symposium should submit an application including a 300 word abstract summarising the proposed paper via email to the ICTR Legacy Committee at Applications must include:

1) A 300 word abstract of the proposed paper;

2) The author’s name, title, and affiliation (if any);

3) The author’s Curriculum Vitae/Résumé; and

4) The author’s contact details including phone number and email address.

All applications must be received no later than 15 August 2014.

Successful applicants will receive an invitation to submit a paper by 5 September 2014 and a first draft of papers will be expected to be submitted by 17 October 2014. Submission of an application will be considered as acknowledgement that the author is available to be in Arusha from 5-8 November 2014 to participate in the Symposium. The ICTR will endeavour to cover travel and accommodation for successful applicants.

De Brabandere & Gazzini: Foreign Investment in the Energy Sector: Balancing Private and Public Interests

Eric De Brabandere (Leiden Univ. - Law) & Tarcisio Gazzini (VU University Amsterdam - Law) have published Foreign Investment in the Energy Sector: Balancing Private and Public Interests (Brill | Nijhoff 2014). Contents include:
  • Eric De Brabandere & Tarcisio Gazzini, Preface
  • Graham Coop, Introduction
  • Joachim Karl, FDI in the Energy Sector: Recent Trends and Policy Issues
  • Andrey Konoplyanik, Multiple Investment Regimes for Russian Subsoil Resources: Work in Progress or Utopia?
  • Attila Tanzi, International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis
  • Eric De Brabandere, The Settlement of Investment Disputes in the Energy Sector
  • Tarcisio Gazzini, Energy Charter Treaty: Achievements, Challenges and Perspectives
  • Yannick Radi, The Tripartite Dimension of Conflicts of Interests Workers, Foreign Investors and Host States in the Energy Sector
  • Makane Moïse Mbengue & Deepak Raju, Energy, Environment and Foreign Investment
  • Federico Lenzerini, Foreign Investment in the Energy Sector and Indigenous Peoples’ Rights
  • Valentina Vadi, Foreign Investment in the Energy Sector and Public Health
  • Stephan W. Schill, Foreign Investment in the Energy Sector: Lessons for International Investment Law

New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht

The latest issue of the Schweizerische Zeitschrift für internationales und europäisches Recht (Vol. 24, no. 1, 2014) is out. Contents include:
  • Aktuell
    • Christa Tobler, «Die Geister, die ich rief ...» Zum Ja der Schweiz zur Masseneinwanderungsinitiative und zum umgekehrten «Drei-Kreise-Modell» der EU
  • Aufsätze
    • Astrid Epiney, Abfallrecht in der EU: Ausgewählte Aspekte unter besonderer Berücksichtigung der Verwirklichung des Verursacherprinzips im Abfallrecht
    • Minh Son Nguyen, La gestion des déchets en droit administratif international
    • Tilmann Altwicker & Oliver Diggelmann, What Should Remain of the Critical Approaches to International Law? International Legal Theory as Critique

Yen: The Interpretation of Investment Treaties

Trinh Hai Yen (Diplomatic Academy of Vietnam) has published The Interpretation of Investment Treaties (Brill | Nijhoff 2014). Here's the abstract:

Within the context of an exponential proliferation of investment treaties with virtually uniform language and structure, The Interpretation of Investment Treaties by Trinh Hai Yen reveals the neglect or misapplication of international rules on treaty interpretation by tribunals in arbitral cases. Such practice has raised the question of the legitimacy of the interpretative process and the engendered inconsistent interpretations of investment treaties.

The book proposes three interpretative approaches aimed at ensuring that adjudicators find legitimate meaning in the challenging generality and vagueness of investment treaty language. It also provides a comprehensive analysis of legislative solutions for states through a case study of the ASEAN Comprehensive Investment Agreement, as well as a comparative analysis of modern and traditional investment treaties.

Pauwelyn: Minority Rules: Precedent and Participation Before the WTO Appellate Body

Joost Pauwelyn (Graduate Institute of International and Development Studies) has posted Minority Rules: Precedent and Participation Before the WTO Appellate Body (in Judicial Authority in International Economic Law, Joanna Jemielniak, Laura Nielsen & Henrik Palmer Olsen eds., forthcoming). Here's the abstract:

This contribution makes an empirical assessment of the role of precedent in WTO dispute settlement. As an imperfect proxy it counts cross-references between the 108 Appellate Body reports issued between 1996 and 2013. Using basic tools of network analysis it attempts to answer the following questions. Has the Appellate Body developed a practice of de facto rule of precedent? If so, as of when? Over time, is it influenced more or less by earlier reports? Have some Appellate Body reports been more influential than others? Conversely, are some Appellate Body reports relying on earlier decisions more extensively than others? Results confirm how important previous Appellate Body reports are for future WTO litigation. No one can successfully engage in WTO dispute settlement without knowing previous Appellate Body case law.

This naturally leads to a second set of questions. If the Appellate Body is effectively engaged in rule refinement, if not rulemaking, with legal effects on all WTO members (not just the disputing parties), which WTO members are shaping this rule development? Are some WTO members more active in Appellate Body litigation than others? Are other WTO members completely outside of this norm-development process? Whereas the network of cross-references between Appellate Body reports is both large and dense (35.4%), with multiple cross-references between many of the 108 reports to date, the network of participants before the Appellate Body, in contrast, is small and sparse (0.8%), with literally two WTO members acting as central hubs or feeders of WTO Appellate Body jurisprudence, leaving all other WTO members well behind.

Combining these two phenomena one can, indeed, speak of rule development steered by a (small) minority of WTO members: minority rules.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 18, nos. 4-5, 2014) is out. Contents include:
  • Azadeh Chalabi, The nature and scope of states' obligation to adopt a national human rights action plan
  • Douglas Hamilton Spence, Foreign aid and human rights treaty ratification: moving beyond the rewards thesis
  • Masoud Rajabi-Ardeshiri, Childhood and modernity: a social constructionist reflection onto the dilemma of ‘child execution’ within the Islamic context
  • Alana Tiemessen, The International Criminal Court and the politics of prosecutions
  • Jennifer Dabbs Sciubba, Explaining campaign timing and support for a UN Convention on the Rights of Older People
  • Tristan G. Creek, Starving for freedom: an exploration of Australian government policies, human rights obligations and righting the wrong for those seeking asylum
  • Mariya Ali, Child sexual abuse: can the doctrines of al-maqasid al-shariah and maslahah assist in challenging the honour ideology?
  • Valentina Azarov, An international legal demarche for human rights? Perils and prospects of the Palestinian UN bid
  • James Rochlin, A golden opportunity lost: Canada's human rights impact assessment and the free trade agreement with Colombia
  • Simin Fadaee, Civil society organisations in India and construction of multiplicity of human rights

Sunday, August 3, 2014

Ohlin: The Combatant's Privilege in Asymmetric & Covert Conflicts

Jens David Ohlin (Cornell Univ. - Law) has posted The Combatant's Privilege in Asymmetric & Covert Conflicts. Here's the abstract:
In armed conflicts against extraterritorial non-state actors, covert action has quickly moved from the exception to the rule. U.S. military and paramilitary forces are engaged in global drone and infantry deployments that remain officially unacknowledged by the government. However, the literature has lagged behind in not questioning how basic principles of the law of war — whose architecture depends on the link between individual combatants and the political entities they fight for — apply in covert action, which obscures and denies this link. This Article provides a deeper analysis of covert action by concentrating on the basic building block of the law of war: the combatant's privilege — the right of lawful belligerents to kill in wartime free from criminal liability. In order to analyze this question, this article first interrogates a deeper orthodoxy of the field: that the combatant's privilege never applies in non-international armed conflicts. Drawing on historical and conceptual analysis, this Article concludes that the orthodox view is both simplistic and exaggerated; the more subtle answer is that government forces and rebels can qualify for the privilege in some situations, though governments retain the right to prosecute vanquished rebels for treason (but not murder). Applying this insight to asymmetric conflicts against terrorist networks, the privilege attaches to any side that meets the classical requirements for lawful belligerency: wearing a fixed emblem, carrying arms openly, a responsible command, and respect for basic customs of warfare — a standard that terrorists inevitably fail. However, government forces also fail the standard when they participate in covert action, regardless of whether the force is exercised by CIA operatives or uniformed soldiers of the Armed Forces. Individual soldiers become legitimate combatants only when they carry their arms openly and their state asserts the privilege on their behalf — a logical impossibility when the state refuses to acknowledge the use of force in the first place.

New Issue: Journal of Conflict & Security Law

The latest issue of the Journal of Conflict & Security Law (Vol. 19, no. 2, Summer 2014) is out. Contents include:
  • Pierre-Emmanuel Dupont, Compliance with Treaties in the Context of Nuclear Non-proliferation: Assessing Claims in the Case of Iran
  • Anders Henriksen, Jus ad bellum and American Targeted Use of Force to Fight Terrorism Around the World
  • Monika Hlavkova, Reconstructing the Civilian/Combatant Divide: A Fresh Look at Targeting in Non-international Armed Conflict
  • Anton O. Petrov, Non-State Actors and Law of Armed Conflict Revisited: Enforcing International Law through Domestic Engagement
  • Francis Grimal, Missile Defence Shields: Automated and Anticipatory Self-Defence?
  • Susan Power, The 2003–2004 Occupation of Iraq: Between Social Transformation and Transformative Belligerent Occupation