Saturday, April 23, 2016

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 19, no. 1, March 2016) is out. Contents include:
  • General Articles
    • Michael Riegner, Governance Indicators in the Law of Development Finance: A Legal Analysis of the World Bank’s ‘Country Policy and Institutional Assessment’
    • Caroline Henckels, Protecting Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP
    • Suzanne Zhou, Challenging the Use of Special 301 against Measures Promoting Access to Medicines: Options Under the WTO Agreements
  • Special JIEL Issue on Intellectual Property and International Investment Law
    • Henning Grosse Ruse-Khan, The Protection of Intellectual Property and International Investment Law
    • Carlos Correa & Jorge E. Viñuales, Intellectual Property Rights as Protected Investments: How Open are the Gates?
    • Susy Frankel, Interpreting the Overlap of International Investment and Intellectual Property Law
    • Kathleen Liddell & Michael Waibel, Fair and Equitable Treatment and Judicial Patent Decisions
    • Eva Nanopoulos & Rumiana Yotova, ‘Repackaging’ Plain Packaging in Europe: Strategic Litigation and Public Interest Considerations
    • Simon Klopschinski, The WTOs DSU Article 23 as Guiding Principle for the Systemic Interpretation of International Investment Agreements in the Light of TRIPs
    • Henning Grosse Ruse-Khan, Challenging Compliance with International Intellectual Property Norms in Investor–state Dispute Settlement

Friday, April 22, 2016

Hiéramente & Schneider: The Defence in International Criminal Trials

Mayeul Hiéramente & Patricia Schneider have published The Defence in International Criminal Trials: Observations on the Role of the Defence at the ICTY, ICTR and ICC (Nomos 2016). Here's the abstract:
  • Benjamin Ferencz, Preface
  • Heiko Ahlbrecht, Vorwort
  • Colleen Rohan, The Defence in International Criminal Trials: Important Actor or Necessary Evil?
  • Mayeul Hiéramente, Die Deutungshoheit im Gerichtssaal oder „Die Bändigung des Ungeheuers“ Anmerkungen zum sich selbst verteidigenden Angeklagten
  • Philipp Graebke, Die Verteidigung im Verfahren gegen Adolf Eichmann
  • Julia Gebhard, Arguing Human Rights from the Bench? How Judges in International Criminal Courts Perceive International Human Rights Law
  • Marie O’Leary, Compelling Fair Trials: The Necessity of Effective Court Powers to Ensure a Defendant’s Right “to examine, or have examined, the witnesses against him or her”
  • Masha Fedorova, Disclosure of Information as an Instrument Ensuring Equality of Arms in International Criminal Proceedings
  • Eleni Chaitidou & Elisa Hoven, The Person’s Liberty at Stake – A Tour d’Horizon on the Rights of the Arrested Person under the Rome Statute
  • Sally Alexandra Longworth, Sentencing at the International Criminal Court
  • Isabel Düsterhöft & Dominic Kennedy, How to Manage the Defence – Experiences from the ADC-ICTY
  • Philipp Müller, Promoting Justice between Independence and Institutional Constraints: The Role of the Office of the Public Counsel of the Defence at the ICC
  • Mayeul Hiéramente & Patricia Schneider, Kein faires Verfahren ohne effektive Verteidigung – Zusammenfassende Bemerkungen zu einem vergessenen Akteur der internationalen Strafjustiz und Ausblick

Colangelo: A Systems Theory of Fragmentation and Harmonization

Anthony J. Colangelo (Southern Methodist Univ. - Law) has posted A Systems Theory of Fragmentation and Harmonization (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

The firmly lodged yet rapidly accelerating phenomenon of international law’s “fragmentation” presents the international legal system with what looks like a multilayered existential threat. Theoretically, how can we conceive of international law as a unitary system if its rules are becoming progressively frayed and pixilated to the point of incoherence? Doctrinally, what is “the law” if different, purportedly authoritative, bodies interpret it so differently? And practically, how are actors increasingly subject to the ever-expanding universe of international law supposed to behave when the law itself is so splintered that it may point them in many, perhaps contradictory, directions at once?

The prevailing view so far among international law scholars, institutions, and decision-makers is to “abandon every hope” of a coherent, unitary legal system and instead settle for managing (as opposed to resolving) conflicting rules and interpretations thereof through conflict of laws methodologies.

This Article fights against that view; that is, it fights for the international legal system’s coherence. The Article first argues that the conflict of laws view promises only to entrench the evils supposedly spawned by fragmentation that threaten to take down the system; namely, compromises in core justice principles of equality (or the ideal that like cases be treated alike) and predictability of the law. The Article next draws from systems theory and its fulcrum concept of autopoiesis to defend international law as a unitary system striving for its own survival. And it argues that, rather than posing an existential threat, fragmentation may paradoxically be a species of growing pain in the system’s long-term maturation. In this connection, the Article proposes two methodological tools for decision-makers seeking to advance the project of a unitary international legal system: a presumption of coherence and a presumption of catholicity. In combination, these tools aim to promote legal coherence and correctness without the compromises in justice that invariably attend true conflict of laws disputes — compromises that conflict of laws methods institutionalize but that the Article’s coherence methods seek to avoid.

The result is to answer the threat posed by fragmentation with a novel alternative account of how fragmentation may: (i) fit into international law’s long-term evolution as an ultimately coherent and robust system; (ii) eventually, if counterintutively, lead to broader and deeper harmonization of the law regulating international disputes, and; (iii) in turn, furnish more predictable and acceptable rules for actors involved in those disputes. Indeed, the Article argues that its theory not only provides an alternative description of fragmentation, but also that its descriptive account leads to a more just international legal system.

deGuzman: Inter-National Justice for Them or Global Justice for Us?: The U.S. As a Supranational Justice Donor

Margaret M. deGuzman (Temple Univ. - Law) has posted Inter-National Justice for Them or Global Justice for Us?: The U.S. As a Supranational Justice Donor (Case Western Reserve Journal of International Law, forthcoming). Here's the abstract:
U.S. policy concerning international justice, particularly at the ICC, involves case-by-case support when such support is in U.S. national interests. This policy signals that the U.S. considers itself a supranational justice donor rather than a member of a global justice community committed to enforcing shared values. In these remarks prepared for a conference on The International Legal Practices of the Obama Administration at Case Western Reserve University School of Law I argue that this approach to international criminal justice both inhibits global justice efforts and undermines the U.S. claim to global moral leadership. I suggest that the next U.S. administration should assert full membership in the global justice community by joining the ICC and providing unequivocal support for all efforts to address serious international crimes.

Thursday, April 21, 2016

Tesón: The Theory of Self-Determination

Fernando R. Tesón (Florida State Univ. - Law) has published The Theory of Self-Determination (Cambridge Univ. Press 2016). Contents include:
  • Fernando R. Tesón, Introduction: the conundrum of self-determination
  • Bas van der Vossen, Self-determination and moral variation
  • Christopher W. Morris, The case for national self-determination
  • Frédéric Mégret, The right to self-determination: earned, not inherent
  • Jens David Ohlin, The right to exist and the right to resist
  • Patrick Macklem, Self-determination in three movements
  • Alan Patten, Self-determination for national minorities
  • Matthew Lister, Self-determination, dissent, and the problem of population transfers
  • Michael Blake, Civil disobedience, dirty hands, and secession
  • John R. Morss, 'Mars for the martians?' On the obsolescence of self-determination
  • Elizabeth Rodríguez-Santiago, The evolution of self-determination of peoples in international law

New Issue: African Journal of International Criminal Justice

The latest issue of the African Journal of International Criminal Justice (2015, no. 2) is out. Contents include:
  • Luke Moffett, Accountability for Forced Displacement in Democratic Republic of Congo and Uganda before the International Criminal Court
  • Simeon P. Sungi, The Kenyan Cases and the Future of the International Criminal Court’s Prosecutorial Policies
  • Oumar Ba, The Court Is the Political Arena: Performance and Political Narratives at the International Criminal Court
  • Stanley Ibe, Addressing Impunity for Serious Crimes: The Imperative for Domesticating the Rome Statute of the ICC in Nigeria

Sandvik & Jacobsen: UNHCR and the Struggle for Accountability

Kristin Bergtora Sandvik (Peace Research Institute Oslo - PRIO) & Katja Lindskov Jacobsen (Metropolitan Univ. College) have published UNHCR and the Struggle for Accountability: Technology, Law and Results-Based Management (Routledge 2016). Contents include:
  • Katja Lindskov Jacobsen & Kristin Bergtora Sandvik, Introduction: The Quest for an Accountability Cure
  • Niamh Kinchin, UNHCR and the Complexity of Accountability in the Global Space
  • Maja Janmyr, Advancing UNHCR Accountability through the Law of International Responsibility
  • Adèle Garnier, Narratives of accountability in UNHCR’s refugee resettlement strategy
  • Miriam Bradley, UNHCR and accountability for IDP protection in Colombia
  • Marion Fresia & Andreas von Känel, Universalizing the refugee category and struggling for accountability: the every-day work of eligibility officers within UNHCR
  • Ashley B. Rockenbach, Accounting for the Past, A history of refugee management in Uganda, 1959-64
  • Kristin Bergtora Sandvik, How accountability technologies shape international protection: results-based management and rights-based approaches revisited
  • Katja Lindskov Jacobsen, UNHCR, Accountability and Refugee Biometrics

Tanzi, Asteriti, Polanco Lazo, & Turrini: International Investment Law in Latin America / Derecho Internacional de las Inversiones en América Latina

Attila Tanzi (Univ. of Bologna), Alessandra Asteriti (Leuphana Univ.), Rodrigo Polanco Lazo (Univ. of Chile), & Paolo Turrini (Univ. of Trento) have published International Investment Law in Latin America / Derecho Internacional de las Inversiones en América Latina : Problems and Prospects / Problemas y Perspectivas (Brill | Nijhoff 2016). Contents include:
  • A. Tanzi, A. Asteriti, R. Polanco, & P. Turrini, Introduction—Introducción
  • S. Schill, Derecho internacional de inversiones y derecho público comparado en una perspectiva latinoamericana – International investment law and public comparative law in a Latin American perspective
  • R. Polanco Lazo, Two worlds apart: the changing features of international investment agreements in Latin America – Dos mundos aparte: las cambiantes características de los tratados internacionales de inversión en América Latina
  • C. Bellei Tagle, Arbitraje de inversiones en América Latina: de la hostilidad a la búsqueda de nuevas alternativas – Investment arbitration in Latin America: from hostility to the quest for new alternatives
  • J.G. Prieto Muñoz, International investment disputes in South America: rethinking legitimacy in the context of global pluralism – Las controversias sobre las inversiones internacionales en Sudamérica: repensar la legitimidad en el contexto de pluralismo global
  • F. Cristani, Dispute settlement clauses in international investment treaties and free trade agreements concluded by Latin American countries – Cláusulas de solución de controversias en los tratados internacionales de inversión y acuerdos de libre comercio celebrados por los países de América Latina
  • E. Milano & J.G. Prieto Muñoz, Arbitrajes y adjudicaciones inter-estatales de inversión extranjeras en la reciente experiencia latinoamericana – Inter-State arbitration, or adjudication, and foreign investment in the recent Latin American experience
  • X. Fuentes, J. Klein Kranenberg, Annulment proceedings in cases involving Latin American countries – Procesos de anulación en casos relacionados a países latinoamericanos
  • D.P. Fernández Arroyo, La transparencia como paradigma del arbitraje de inversiones – Transparency as a paradigm of investment law arbitration
  • F. Leturia, La contribución al desarrollo del Estado receptor como requisito de la noción de inversión: la experiencia de los países latinoamericanos – The contribution to the development of the host State as a requisite of the definition of investment: the Latin American experience
  • A. Tanzi & L. Mola, Breaches of State contracts in the interpretation and application of international investment law in the arbitration case law involving Latin American countries – Incumplimiento de contratos estatales en la interpretación y aplicación del derecho internacional de inversiones en la jurisprudencia de arbitraje en América Latina
  • T. Gazzini & Y. Radi, Practice and interpretation of ‘umbrella clauses’ in the Latin American experience – Práctica e interpretación de ‘cláusulas paraguas’ en la experiencia latinoamericana
  • L. Mola, International investment arbitration and serious economic crises: lessons learned in the Argentinean crisis of 2000–2001 – Arbitrajes internacionales de inversión y crisis económicas graves: lecciones aprendidas en la crisis argentina de 2000–2001
  • A. Kolo, Expropriatory taxation in the Latin American experience – Impuestos expropiatorios en la experiencia latinoamericana
  • M.A. Correa Serrano, Foreign direct investment and development in the Pacific Alliance –Inversión extranjera directa y desarrollo en la Alianza del Pacífico
  • C. Ononaiwu, Regional investment treaty arrangements in the Caribbean: developments and implications – Acuerdos regionales de inversión en el Caribe: evolución y implicaciones
  • F. Marrella & S. De Vido, On the possible (re-)negotiation of BITs by the European Union and its potential impact on Latin America – Sobre la posible (re)-negociación de los TBIs por la Unión Europea y su impacto potencial en América Latina
  • V. Poppa, The ‘cases’ between Chevron and Ecuador: a systemic perspective – Los ‘casos’ entre Chevron y Ecuador: una perspectiva sistémica
  • J.R. Feris & A. Serra e Moura, La participación de Estados y entidades públicas latinoamericanas en el arbitraje de la Cámara de Comercio Internacional: diez años de experiencia – The participation of Latin American States and public entities in the International Chamber of Commerce arbitration: ten years of experience
  • M. Doe Rodríguez & J.L. Aragón Cardiel, Causas y azares: el renacimiento de la Corte Permanente de Arbitraje en América Latina en el campo de las inversiones extranjeras – Cause and coincidence: the renaissance of the Permanent Court of Arbitration in Latin America in the field of foreign investment
  • A. Carlevaris & R. Digón, The Argentinian bonds saga: an international investment law perspective – La saga sobre los bonos argentinos: la perspectiva del derecho internacional de inversiones
  • B. Desilus & W.M. Sánchez Casanova, Aplicación de la Ley de Inversión Extranjera en México: una revisión desde la sociología del derecho – Implementation of the Law on Foreign Investment in Mexico: a review from the standpoint of the sociology of law
  • V. Saco, El secreto del éxito del Perú en el CIADI: destruyendo el paradigma de que el sistema de solución de diferencias inversionista-Estado es peligroso para los países en desarrollo – The secret of Peru’s success before the ICSID: dispelling the idea that the investor-State dispute settlement system is a danger for developing countries
  • J.P. Bohoslavsky & J.B. Justo, Compatibilizando derechos de los inversores extranjeros y derechos humanos: ¿Por qué? ¿Cómo? ¿Quién? ¿Cuándo? – Combining the rights of foreign investors and human rights: Why? How? Who? When?
  • C. Cinelli, Inversiones extranjeras, pueblos indígenas y desarollo sostenible: la jurisprudencia de la Corte Interamericana de Derechos Humanos – Foreign investment, indigenous peoples and sustainable development: the Inter-American Court of Human Rights case-law
  • F. Seatzu, Increasing Foreign Private Investment in the Latin American and Caribbean Region through the Multilateral Investment Fund/Aumentando la inversión extranjera privada en Latinoamérica y el Caribe a través del Fondo Multilateral de Inversiones
  • . E. Ruozzi, Argentina and trade in biofuels: development and sustainability issues and their impact on foreign investment – Argentina y comercio de biocombustibles: cuestiones de desarrollo y sostenibilidad y su impacto sobre las inversiones extranjeras
  • M.A. Grau Ruiz & J. Malherbe, The dependence on foreign investment as a potential barrier for a sound environmental taxation – La dependencia de las inversiones extranjeras como barrera potencial a la introducción de una reglamentación fiscal adecuada
  • J.E. Viñuales, Concluding observations: the laws and the judge of foreign investment – Conclusiones: la ley y el juez de la inversión extranjera

Burleson: Paris Agreement and Consensus to Address Climate Challenge

Elizabeth Burleson has posted an ASIL Insight on Paris Agreement and Consensus to Address Climate Challenge.

Wednesday, April 20, 2016

Ruys: Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework

Tom Ruys (Ghent Univ. - Law) has posted Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework (in Research Handbook on UN Sanctions and International Law, Larissa van den Herik ed., forthcoming). Here's the abstract:

This chapter aims at giving a broader overview of the concepts of sanctions and countermeasures and the overarching international legal framework. At the outset, a note of caution is due. In spite of the laudable efforts of the International Law Commission, the issue of enforcement by means of non-forcible measures is and remains ‘one of the least developed areas of international law’. Notwithstanding its importance, it remains plagued by a variety of delicate controversies and grey areas. The present chapter’s aim is essentially to map the main knowns and, perhaps even more so, the main unknowns.

Section 2 looks at the extent to which sanctions may constitute mere ‘unfriendly’ retorsions that largely operate below the radar of international law. In the alternative, Section 3 examines the main accepted legal bases which may justify the recourse to sanctions by States and organizations. Section 4 turns to the controversy over the legality of third-party countermeasures. Section 5 concludes.

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 47, no. 2, 2016) is out. Contents include:
  • Sophia Kopela, Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons
  • Finn Mørk, Identification of the Base of the Continental Slope on Sedimentary Fans
  • Nigel Bankes, The Regime for Transboundary Hydrocarbon Deposits in the Maritime Delimitation Treaties and Other Related Agreements of Arctic Coastal States
  • Michaela Young, Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea
  • Paul Arthur Berkman, Alexander N. Vylegzhanin & Oran R. Young, Governing the Bering Strait Region: Current Status, Emerging Issues and Future Options

d'Aspremont: Cyber Operations and International Law: An Interventionist Legal Thought

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted Cyber Operations and International Law: An Interventionist Legal Thought (Journal of Conflict & Security Law, forthcoming). Here's the abstract:
This article argues that the international legal scholarship grappling with cyber operations can be understood as a form of interventionism. Such literature reads as an attempt by international lawyers to intervene in the problems of the world by stretching existing legal frameworks like the United Nations Charter to address what they see as dangerous legal gaps. This article sheds light on the four key argumentative patterns around which such scholarly interventionism is commonly articulated: problem-finding, administrativist camouflage, consequentialist bending, and evidentiary pragmatism. In doing so, attention is paid to the limitations of interventionism, especially at the evidentiary stage. Mention is also made of the alternative argumentative patterns into which international lawyers are pushed because of the evidentiary challenges they face in relation to the management of cyber operations through the United Nations Charter. This article ultimately argues that many of the legal problems faced by those interventionist international lawyers who want to address problems of cyber operations through existing international legal frameworks are self-inflicted.

Linos & Pegram: Architects of Their Own Making: National Human Rights Institutions and the United Nations

Katerina Linos (Univ. of California, Berkeley - Law) & Tom Pegram (Univ. College London) have posted Architects of Their Own Making: National Human Rights Institutions and the United Nations (Human Rights Quarterly, forthcoming). Here's the abstract:
The United Nations promoted a novel idea in the 1990s: National Human Rights Institutions (NHRIs). Their codification in the Paris Principles and subsequent UN General Assembly endorsement precipitated a global norm cascade. We demonstrate that NHRIs have spread rapidly. Furthermore, we document that structures established after UN endorsement had just as many institutional safeguards as earlier NHRIs. What explains this compliance pull? A transgovernmental NHRI network operating a system of independent monitoring of NHRIs is an important part of the explanation. We examine how this network has interacted with the UN system to create incentives for governments to strengthen NHRIs.

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 55, no. 3, September 2015) is out. Contents include:
  • Brigit Toebes, International health law: an emerging field of public international law
  • Prabhakar Singh, The rough and tumble of international courts and tribunals
  • K. M. Gopakumar, Twenty years of TRIPS agreement and access to medicine: a development perspective
  • Anwar Sadat, Legal constraints and opportunities in launching emissions trading in India

Tuesday, April 19, 2016

Ratner: War/Crimes and the Limits of the Doctrine of Sources

Steven R. Ratner (Univ. of Michigan - Law) has posted War/Crimes and the Limits of the Doctrine of Sources (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d’Aspremont eds., forthcoming). Here's the abstract:
International humanitarian law (IHL) and international criminal law (ICL) are the product of lawmaking processes that are not captured in the black-letter doctrine of sources under which Article 38 of the ICJ Statute is the rule of recognition for international law. Despite efforts by certain institutional players and scholars to place these two regimes squarely within Article 38, both remain distinct in terms of how actors determine whether a purported rule is a legal rule. These distinctions constitute a challenge to the idea of a unified rule of recognition and argue instead for looking for indicators (not rules) about a norm's legal status. More important, IHL and ICL demonstrate not merely the futility, but the hazards, of a unified rule of recognition. For the purpose of a concept of sources is to ground the legitimacy of international law and, consequently, create the conditions for respect for and compliance with it. In that case, we need to treat any doctrine of sources as a tool, and not an end in itself. Such a move requires that we do precisely what traditional doctrine seems to reject – to link the identification of a rule as law not only with the context in which it is formed (including its subject area), but with the context in which the norm is invoked. I conclude with thoughts about the ethical sources of IHL and ICL, a topic neglected in scholarship on sources.

Kassoti: The Sound of One Hand Clapping: Unilateral Declarations of Independence in International Law

Eva Kassoti (Hague University of Applied Sciences - Law) has published The Sound of One Hand Clapping: Unilateral Declarations of Independence in International Law (German Law Journal, Vol. 17, no. 2, 2016). Here's the abstract:
In light of the uncertainty surrounding recent unilateral declarations of independence, this Article purports to re-visit the question of their legal nature under international law. The Article shows that the International Court of Justice’s (ICJ) judgment in the Kosovo advisory opinion (hereafter referred to as the Kosovo Opinion) is of little assistance in establishing whether and to what extent such declarations fall within the ambit of international law. The Article proceeds to examine claims that unilateral declarations of independence are regulated—entirely or partly—by international law and argues that these claims are illfounded on multiple grounds. The Article asserts that international law is legally neutral towards the claims—a proposition in accord with both the factual nature of the process of state formation in international law and with the relevant practice.

Beuren: Das Al Qaida-Sanktionsregime als Ausübung supranationaler Kompetenzen durch den Sicherheitsrat

John Beuren has published Das Al Qaida-Sanktionsregime als Ausübung supranationaler Kompetenzen durch den Sicherheitsrat (Duncker & Humblot 2016). Here's the abstract:
Als internationale Organisation sind die Vereinten Nationen prinzipiell auf die Regelung von Rechtsbeziehungen zwischen den Staaten angelegt. Wie können ihnen, wie es der Titel der Arbeit zu unterstellen scheint, dann supranationale Kompetenzen zugeschrieben werden? Eine supranationale Organisation zeichnet sich insbesondere durch die Fähigkeit aus, unter Rückgriff auf einen Anwendungsvorrang vor staatlichem Recht unmittelbar bindende Normen für Individuen erlassen zu können. Tatsächlich haben die Vereinten Nationen bereits diverse supranationale Regelungsregime eingerichtet. Die Arbeit beschäftigt sich sowohl mit der Frage der Legalität als auch der Legitimität dieses Vorgehens, um darauf aufbauend mit einem rechtspolitischen Vorschlag zur künftigen Ausgestaltung entsprechender Regime abzuschließen. Als Anwendungsbeispiel dazu dient das Al Qaida-Sanktionsregime, das den Vereinten Nationen seit Jahren als »standard setter« in diesem Bereich dient und zugleich ein zentrales Instrument zur Terrorismusbekämpfung darstellt. Durch die Aufnahme des sog. Islamischen Staates in den Kreis der Sanktionsadressaten hat das Regime nochmals seine Bedeutung unterstrichen.

Chakravarty: Investing in Authoritarian Rule: Punishment and Patronage in Rwanda's Gacaca Courts for Genocide Crimes

Anuradha Chakravarty (Univ. of South Carolina - Political Science) has published Investing in Authoritarian Rule: Punishment and Patronage in Rwanda's Gacaca Courts for Genocide Crimes (Cambridge Univ. Press 2016). Here's the abstract:
This book shows how Rwanda's transitional courts that tried genocide crimes - the gacaca - produced social complicity and cemented authoritarian rule. It is unique for its in-depth investigation of the courts' legal operations: confessions, denunciation, and lay judging, and shows how targeted incentives such as grants of clemency, opportunities for private gain, and career advancement drew the masses into the orbit of the ethnic minority-dominated regime. Using previously untapped data, it illustrates how a decade of mass trials constructed a tacit patronage-driven relationship in which the interests of the citizenry became tied to the authoritarian elite that had discretionary power to grant or withdraw those benefits at will.

Conference: 16th Annual WTO Conference

On June 10-11, 2016, the British Institute of International and Comparative Law, the Institute of International Economic Law at the Georgetown University Law Center, the Graduate Institute of International and Development Studies, and the Society of International Economic Law will hold the 16th Annual WTO conference, in Geneva. The program is here.

Monday, April 18, 2016

Ohlin: The Common Law of War

Jens David Ohlin (Cornell Univ. - Law) has posted The Common Law of War (William & Mary Law Review, forthcoming). Here's the abstract:
In recent litigation before the federal courts, the U.S. government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Essay challenges that definition, by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Essay concludes that the “common law of war” meant something far different: a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called “common,” not because it was extended or elaborated by the common law method of judged-applied law, but rather because it was “common” to all mankind by virtue of natural law, and thus applied even to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states. By recapturing this lost definition of the “common law of war,” this Essay casts some doubt on the U.S. government position that military commissions have jurisdiction, not only over international offenses, but also domestic violations of the law of war.

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. 48, no. 2, Winter 2016) is out. Contents include:
  • Cosette D. Creamer & Zuzanna Godzimirska, Deliberative Engagement Within the World Trade Organization: A Functional Substitute for Authoritative Interpretations
  • William Partlett & Eric C. Ip, Is Socialist Law Really Dead?
  • Margaret L. Satterthwaite, Coding Personal Integrity Rights: Assessing Standards-Based Measures Against Human Rights Law and Practice

Zeegers: International Criminal Tribunals and Human Rights Law - Adherence and Contextualization

Krit Zeegers (Allen & Overy LL.P.) has published International Criminal Tribunals and Human Rights Law - Adherence and Contextualization (Asser Press 2016). Here's the abstract:
This book addresses the interpretation and application of human rights norms by International Criminal Tribunals (ICTs). Such Tribunals are widely heralded as humanrights defenders. At the same time, however, they employ activities that necessarilyentail the risk of human rights violations: they conduct criminal investigations, arrest and detain individuals, and put them on trial. This book investigates this flip-side of the ICTs’ relationship with international human rights law, and focuses on the ICTs’own interpretation and application of human rights norms. Firstly, the book addresses whether and how ICTs are bound by human rights law, since unlike states they do not sign or ratify human rights conventions. Secondly, the book provides an in-depth analysis of the way in which ICTs interpret and apply human rights norms, compared to the way in which these norms are interpreted in a traditional state-context. Relying on the unique circumstances in which they operate, ICTs have often deviated from generally accepted interpretations of human rights. The author critically examines this so-called contextual approach and seeks to recommend ways in which ICTs can improve their interpretative practice by giving due regard to the context in which they operate, while still providing adequate human rights protection. Addressing the ICTs’ possible leeway in terms of contextualization, this book contributes to the broader debate about adherence to human rights norms in international law.

Wegner: The International Criminal Court in Ongoing Intrastate Conflicts

Patrick S. Wegner has published The International Criminal Court in Ongoing Intrastate Conflicts: Navigating the Peace–Justice Divide (Cambridge Univ. Press 2015). Here's the abstract:
In recent decades, international courts have increasingly started investigating armed conflicts. However, the impact of this remains under-researched. Patrick S. Wegner closes this gap via a comprehensive analysis of the impact of the International Criminal Court in the Darfur and Lord's Resistance Army conflicts. He offers a fresh approach to peace and conflict studies, while avoiding the current quantitative focus of the literature and polarisation between critics and supporters of applying justice in conflicts. This is the first time that the impact of an international criminal court has been analysed in all its facets in two conflicts. The consequences of these investigations are much more complex and difficult to predict than most of the existing literature suggests. Recurrent claims, such as the deterrent effect of trials and the danger of blocking negotiations by the issuing of arrest warrants, are put to the test here with some surprising results.

Call for Papers: Contextualizing Social Justice in Transnational and International Law

A call for papers has been issued for a workshop on "Contextualizing Social Justice in Transnational and International Law," to take place August 8, 2016, in Windsor. Here's the call:

Call for Papers

As interdependence among economies and societies deepens with the growth of transnational business and social networks, so too does the ability of States and non-state actors to hinder or facilitate the pursuit of social justice beyond borders. The foundations of social justice are rooted in principles like equality or mutuality that aim to organize relationships between human beings, and between society and its members. As the cross-border dimensions of these relationships intensify and the borders of societies become more permeable, our understanding of social justice and its impact on how individuals, societies and States relate to each other deserves reexamination. Key issues include: the conceptualization of social justice in contemporary context; its corollary implications on the rules and institutions that govern cross-border economic and social transactions; and its impact on how the rights and responsibilities of States and non-state actors are recognized and applied in specific fields of international and transnational law.

The research initiative, Contextualizing social justice in transnational and international law, seeks to examine such issues in a series of research dialogues leading to scholarly published contributions, launched by means of a research workshop in Windsor on 8 August 2016. We invite contributions that seek to engage in these types of questions, for instance:

  • To what extent is the reach and content of the concept of social justice evolving as cross-border dimensions and experiences of “society” evolve?
  • How do political relations or institutional and legal practices of economic and social actors across borders influence ways in which the pursuit of social justice is expressed (e.g., conditions, processes, structures or outcomes defined in socio-economic or political terms)? What rights and duties of individuals, societies, or States give legal articulation to these qualities of social justice?
  • In what way(s) can a reconstructed social justice concept serve as an analytical or theoretical tool to assess the theory, rules and institutions of international economic and social law and transnational cooperation?
  • What legal rights and responsibilities relating to social justice are recognized in theory and practice in contemporary cross-border legal contexts (e.g. nonobstruction, facilitation, the precautionary principle)? How do they relate to States’ national effort or international cooperation, international organizations, or non-state actors like business, civil society groups, and local communities?
Areas of interest include the fields of international and transnational law concerning:
  • Trade, investment or financial regulation
  • Development, international cooperation and national capacity
  • Environmental justice, sustainability and displacement
  • Work, employment and industrial relations, and supply chains
  • Epidemics, markets and access to health care
  • Conflict and migration
  • States and markets – public/private governance from local to global
  • Intellectual property, development, and markets
We welcome dialogue across philosophical, political, socio-economic and legal disciplines as well as empirical, theoretical, and inter-disciplinary approaches.

Prospective participants are invited to submit their applications by 6 May 2016, by email to Please include:

  • An abstract of 300 words maximum (in English or French)
  • Your name(s), affiliation(s) and contact information
  • A short biography
Research workshop: 8 August 2016, 9 am-5 pm, Faculty of Law Building, University of Windsor. Draft papers may be in English or French; the workshop will be held in English only. Hotel lodging for up to 2 nights with dinners, lunch and a reception are provided. Participants are kindly requested to make their own travel arrangements.

Outcomes are expected to include the publication of selected papers, including in the Windsor Yearbook of Access to Justice, the Manchester Journal of International Economic Law, the Transnational Legal Theory Journal, or the Canadian Yearbook of International Law (subject to acceptance).

Important dates:

Application deadline for workshop 6 May 2016
Notification of acceptance 20 May 2016
Draft papers 27 July 2016
Workshop date – Windsor Law 8 August 2016

Publication submissions to be confirmed with specific journal

Organizers: Janelle M. Diller, Paul Martin Sr. Professor of International Affairs and Law, University of Windsor, Faculty of Law in coordination with the Transnational Law and Justice Network, Faculty of Law, University of Windsor

Conference: The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era?

On April 20, 2016, the British Institute of International and Comparative Law will host a conference on "The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era?" The program is here. Here's the idea:

It may be argued that, in the light of the Interlaken-Izmir-Brighton-Brussels reform process, the European Court of Human Rights/Convention system has reshaped itself significantly over the last 5 or so years, possibly reflecting a new distribution of powers between Strasbourg and the member states. This may or may not be a good thing. Does it reflect a natural evolution of the Convention system, or the necessary adjustments required of a Court that is under pressure and strain?

This half-day event, held on the fourth anniversary of the Brighton Declaration of April 2012, will provide opportunity to hear leading experts consider how the Strasbourg Court has evolved in recent years, and reflect upon its longer-term future. Speakers will also consider how the reform process might inform debate in the UK about the European Court/Convention system and a possible British Bill of Rights.

Part one of the event will address how the Court has evolved in recent years, in terms of the approach it adopts to resolving certain cases on their substantive merits. Part two looks more specifically at the reform process initiated at Interlaken and Brighton. A focal point will be the CDDH's report of the 'Longer-term Future of the system of the European Convention on Human Rights', and its implications.

Kammerhofer: Sources in Legal Positivist Theories: The Pure Theory's Structural Analysis of the Law

Jörg Kammerhofer (Univ. of Freiburg - Law) has posted Sources in Legal Positivist Theories: The Pure Theory's Structural Analysis of the Law (in The Oxford Handbook of the Sources of International Law, Samantha Besson & Jean d’Aspremont eds., forthcoming). Here's the abstract:
We look for the law in its ‘sources.’ However, as many recognise, the main-stream riverine metaphor is fatally flawed. This chapter argues that there is an unlikely saviour - the Kelsen-Merkl Stufenbau theory of the hierarchy of norms. This may seem far-fetched, but this theory is the closest we have to a legal common-sense theory of the sources of international law. It is close to the main-stream, but provides a solid theoretical basis. It does so by fashioning the only necessary link between norms into the ordering principle of legal orders: the basis of validity of one norm is another. A special type of rule - the empowerment norm - is this basis; norms are created ‘under it.’ In other words, law regulates its own creation. This chapter demonstrates that this understanding of hierarchy avoids many of the misconceptions of orthodox scholarship. False necessities are deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, this chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-headed research on this legal order’s daily operations: norm-conflict and its application/interpretation.

Sunday, April 17, 2016

Oehm: Land Grabbing in Cambodia as a Crime Against Humanity – Approaches in International Criminal Law

Franziska Maria Oehm has published Land Grabbing in Cambodia as a Crime Against Humanity – Approaches in International Criminal Law (Verfassung in Recht und Übersee, Vol. 48, no. 4, pp. 469-490, 2015). Here's the abstract:
In October 2014, a communication was filed to the International Criminal Court (ICC) in The Hague according to Art. 15 Rome Statute. Therein, senior officials of the Kingdom of Cambodia are accused of systematic land grabs that could constitute human rights abuses and because of gravity and extent could have amounted to crimes against humanity, Art. 7 Rome Statute. Due to the fact that land grabbing continues to be an issue of concern both from a legal and from a global development perspective, the communication filed to the ICC raises the general question about proper legal mechanisms for regulation of awards and lack of respect for land rights. This article appraises the specific case of Cambodia with domestic elites as possible immediate land grabbers, including the definition and history of land grabbing and of Cambodia as such, as well as national and international law regulating investment in farmland. Furthermore it focuses on the communication filed to the ICC by examining requests from Art. 7 Rome Statute. The article considers the scope and factual requirements of crimes against humanity in the specific case of land grabbing. It additionally questions international criminal law as a proper protection mechanism in cases where domestic legal proceedings are unable or unwilling to prosecute alleged perpetrators. The article intends to detect a link between international investment and international crimes and recommends further discussion on land grabbing and possible deterrent effects arising from international criminal investigations.

Conference: Building Consensus on European Consensus

On June 1-2, 2016, the University of Portsmouth School of Law, the European University Institute, and the McCoubrey Centre for International Law of the University of Hull Law School will hold a conference on "Building Consensus on European Consensus," at the European University Institute. The program is here. Here's the idea:

The University of Portsmouth School of Law, the European University Institute and the McCoubrey Centre for International Law of the University of Hull Law School are organising a two-day conference on the European consensus (EuC) method of interpretation of the European Court of Human Rights (ECtHR, the Court).

Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marriage or adoption? Few would argue that such legally complex, and morally and politically sensitive issues are subject to universally accepted normative responses. When these questions arise within a European normative framework, the European Convention of Human Rights (ECHR, the Convention) is expected to act as a buffer for idiosyncratic national differences so that common “European” answers and standards of protection can emerge. The ECtHR undoubtedly plays a pivotal role, given its position as the last-word interpreter of the Convention.

Yet, the idea of a court, let alone an international court, establishing “new” rights or significantly expanding the scope and meaning of existing ones is, of course, inherently controversial. Presumably, it is for this reason, and in an attempt to increase its external legitimacy, that the ECtHR has developed the interpretative method of EuC. The Court will only recognise a pan-European -thus common to all 47 signatory parties to the ECHR- standard in sensitive areas of social activity, if it can trace their existence to the (loosely defined) consensus of national jurisdictions, as this is evidenced in the practice of the national legal systems of the ECHR states. If no consensus is diagnosed, states are given wider margin of appreciation. As a result, Europe may legitimately accommodate multiple human rights standards within its normative borders in the spirit of constitutional pluralism. EuC, and its symbiotic relationship to other interpretative techniques, inevitably raise significant legal, political and philosophical questions. By resorting to EuC the Court may appear to pre-empt or respond to criticisms of judicial activism and claim that evolution in the interpretation of the Convention is, in fact, born out of the practice and implicit will of it signatory parties, which are all sovereign states. But this is hardly sufficient to dissuade concerns regarding the appropriateness of consensus analysis in identifying norms in a “special” area of law, such as human rights.

The purpose of this two-day international conference is to study the function of EuC, to identify its impact on European human rights law and beyond, and to assess its merits and shortcomings by exploring the following three main strands of analysis.

1. Conceptualisation of EuC: This theme invites contributions that will purport to define and conceptualise EuC, that is to say, to explain what EuC is, how it functions and what its results and consequences are. Papers may discuss the methods (both quantitative and qualitative) that could be used for the conceptualisation of EuC, the theoretical lens (such as constitutionalism, legal pluralism etc.) through which EUC may be explained, the interrelation between EuC and other methods of interpretation (such as margin of appreciation, dynamic/evolutive, systemic integration etc.), how EuC compares to, converges with or diverges from the methods employed by courts in analogous positions (such as regional international human rights courts or national constitutional courts, including the US Supreme Court) and, more generally, any line of enquiry that may contribute to the understanding of EuC.

2. Evaluation of EuC: This theme invites contributions that aim to critically evaluate EuC, its use, usefulness, appropriateness and normative outputs. We expect analysis in that strand to be primarily normative in nature and attempt to situate EuC in the broader context of questions within Public law, Constitutional law, International law and the Philosophy of Law, purporting to answer who has the authority to make constitutive decisions about civil and political rights in a liberal democracy and how these decisions should be made.

3. The “spill-over” effects of EuC: The last theme invites contributions that will examine the impact of EuC beyond the confines of the ECHR, both within national legal systems and at the inter/supra-national levels. Is EuC (or its altera pars, namely the margin of appreciation doctrine) employed in some shape or form in other legal systems? Could / should other courts in Europe, and first and foremost the Court of Justice of the European Union, make use of EuC? Are European Union (EU) human rights institutions using EuC? We are inviting contributions that will engage with these axes of enquiry from any disciplinary perspective. Contributions may adopt a variety of doctrinal or disciplinary approaches, ranging from Jurisprudence and Legal Theory to Constitutional law and from Political Science and Philosophy to European Public law, broadly defined.

Call for Applications: Venice Academy of Human Rights

The European Inter-University Centre for Human Rights and Democratisation's Venice Academy of Human Rights is accepting applications for its summer program, to take place July 4-13, 2016. The theme of this year’s Academy is "Backlash against Human Rights?" The call for applications is available here. A detailed program is here.

New Volume: Czech Yearbook of Public & Private International Law

The latest volume of the Czech Yearbook of Public & Private International Law (Vol. 6, 2015) is out. Contents include:
  • Symposium: The Crime of Aggression Within the Rome Statute Post-Kampala
    • Pavel Šturma & Milan Lipovský, Introduction to section „Symposium on the Crime of Aggression“
    • Veronika Bílková, Aggression – the Supreme International Crime or Not a Crime at All?
    • Alla Tymofeyeva, Crimes against peace in Nuremberg
    • Pavel Šturma, Back to the ILCʹs Legislative History: Code of Crimes against the Peace and Security of Mankind
    • Carollann Braun, The Political Realities and Legal Possibilities Concerning the Relationship between the United Nation Security Council and the Crime of Aggression in the International Criminal Court
    • Pavel Caban, The Definition of the Crime of Aggression – Entry into Force and the Exercise of the Courtʹs Jurisdiction over this Crime
    • Jan Lhotský, Manifest violation of the UN Charter
    • Milan Lipovský, The Understandings to the Rome Statuteʹs Crime of Aggression
    • Kristýna Urbanová, The Kampala Agreement on crime of aggression and responsibility for cyber-attacks
  • Studies in International Law and Organizations
    • Čestmír Čepelka, Jus agens and the question of criterions for its determination
    • Jan Ondřej, Creation of New States and De Facto Regimes and the Case Referring to Crimea
    • Jakub Handrlica, The Vienna Convention on Civil Liability for Nuclear Damage and Nuclear Installations: Application Problems Revisited
    • Martin Faix, Victimsʹ Right to Reparation under International Human Rights Law: also against International Organizations?
  • International Law and European Law
    • Harald Christian Scheu, The limits of so-called benefit tourism and the free movement of EU Citizen
    • Monika Forejtová, Human rights between Strasbourg and Luxembourg – disintegration of monist view of human rights protection or a new beginning?
  • International Human Rights Law and Criminal Law
    • Ralph Janik, You canʹt have one without the other, can you? Assessing the Relationship Between the Use of Force in the Name of Human Rights and Regime Change
    • Pavel Bureš, Reproductive Rights and Human Dignity. Convergence or Divergence in the Jurisprudence of the European Court of Human Rights?
    • Alla Tymofeyeva, The Highest Amounts of Just Satisfaction: Awards of the European Court of Human Rights to Legal Persons
    • Ondřej Svaček, Human Rights Dimension of the ICCʹs Complementarity Regime
    • Pavel Caban, Gaps in the legal regime of interstate cooperation in prosecuting crimes under international law
  • Czech View on Investment and Trade Law
    • Magdalena Ličková, Post-Lisbon Exercise of EU Competence in the Field of Foreign Investment: Coping with the International Projection of Intra-EU Complexity
    • Ondřej Svoboda, TTIP and ISDS: not irreconcilable acronyms
    • Monika Feigerlová, Diag Human: A case study on multi-jurisdictional enforcement of an international arbitration award
  • Czech Practice of International Law
    • Pavel Šturma, The work of the International Law Commission in 2015, business as usual?
    • Petr Válek, Czech-Austrian Declaration on Jurisdictional Immunities of State-Owned Cultural Property
    • Vít Alexander Schorm, The Czech Republic before the European Court of Human Rights in 2014
    • Milan Beránek, List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2014 till 31st December 2014