Drawing on the interactional account of international law, this chapter begins with a reflection on the concept of ‘sources of law,’ which it takes to refer to processes that are shaped by requirements of legality and through which legal norms are made and remade. This alternative understanding of ‘sources’ does not entail that the law-making methods listed in Article 38 of the ICJ Statute have ceased to matter in international environmental law – far from it. The interactional law framework takes seriously what international actors do, both as they continue to rely on ‘sources’ listed in Article 38, and as they develop new ways of making international law. The chapter, therefore, explores the law-making processes listed in Article 38 in turn, and then moves on to consider newer processes. The interactional framework and its practice-based understanding of legality illuminate the existence of resilient and relatively stable law-making processes, such as treaty-based and customary law-making, as well the emergence of new law-making processes, such as the various modes of ‘soft’ standard-setting that have seen a steady rise in international environmental law, and beyond.
Saturday, May 28, 2016
- Neville Cox, The Freedom to Publish ‘Irreligious’ Cartoons
- Amanda Cahill-Ripley, Reclaiming the Peacebuilding Agenda: Economic and Social Rights as a Legal Framework for Building Positive Peace - A Human Security Plus Approach to Peacebuilding
- Alan Desmond, The Development of a Common EU Migration Policy and the Rights of Irregular Migrants: A Progress Narrative?
- Sandra Fredman, Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights
- Dinah Shelton, Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights
- Odette Mazel, Self-Determination and the Right to Health: Australian Aboriginal Community Controlled Health Services
- Hemi Mistry, The International Court of Justice’s Judgment in the Final Balkans Genocide Convention Case
- Philipp Wesche & Miriam Saage-Maaß, Holding Companies Liable for Human Rights Abuses Related to Foreign Subsidiaries and Suppliers before German Civil Courts: Lessons from Jabir and Others v KiK
CALL FOR PROPOSALS
Canadian Council on International Law
45th Annual Conference
The Promise of International Law:
Solutions for the World’s Crises
November 3-5, 2016
"In a crisis, be aware of the danger – but recognize the opportunity."
― John F. Kennedy
In a world of accelerating change, there is a need to adapt quickly and implement solutions to address crises.
The term crisis can be applied to almost any international law issue when that issue reaches an undeniable intensity. The international community faces crises on numerous fronts across all dimensions: social, political, economic, and environmental.In fact, it can be applied to almost any international law issue. As such, international law has been called on to tackle pressing subjects like climate change, genocide, fluctuating oil prices, unstable economies, human migration, disease outbreak, poverty, consumerism/consumption, war, species extinctions, corporate instability, and lack of governance.
International law has often been called upon to provide the solution to these various crises. Sometimes, international law becomes the framework for international legal actors to resolve issues. Other times, international law is itself the solution to the problem. In what ways are international law being looked to and applied to the issues of today that are of most concern to the global community? What are those potential solutions and what is the action-plan to move forward?
But is the current international legal system yielding enough solutions to addressnew crises? International law may be falling short and losing relevance. International law experts constantly adapt to stay relevant in this fluctuating world. But are we keeping up? Is international law moving fast enough with technology? Can treaties and governance helpin situations of constant changes? What are the solutions therein? The term “crisis” itself raises several foundational questions of its own. Is it too abrasive? For instance, can the slowing economy and fluctuation of oil prices really be considered a crisis? Perhaps they are just cyclical challenges with solutions just around the corner. Is climate change at a crisis already? If not yet at that level, can a crisis on the international legal issues be averted through cooperation and international law? What are the crisis-prevention measures exactly, and what do they look like? Or does the international community require a crisis in order to galvanize?
All these issues, and more, will be discussed at the 45th Annual Conference of the Canadian Council on International Law (CCIL). Join us as we discuss solutions to the world’s crises.
All types and topics for panel and paper proposals are welcome. When crafting the proposal, note and address the following, where applicable:
- All proposals must relate to the 45th Annual Conference theme: The Promise of International Law: Solutions for the World’s Crises.
- The CCIL encourages proposals from all sectors within the legal profession (academia, private law firms, NGO’s, and government lawyers).
- Diversity in speakers and panel composition from designated groups will be a focus when crafting the program.
- Creativity in proposals will also be a focus and we encourage deviation from traditional reading of a power point presentation, such as case studies, debates, ensuring interaction with audience such as extended Q&A, mock treaty negotiation, etc.
- Speaker duplicates during the Conference are discouraged (i.e. one speaker should not be on more than one panel).
Potential Topics - All areas of international law are welcome, for example:
- Public International Law; Air Law; Corporate Law; Courts and Tribunals; Dispute Resolution; Environmental Law; Human Rights; International Criminal Law; International Economic Law; International Intellectual Property Law; International Investment Law; International Judicial Institutions; International Organizations; State Responsibility; Law of the Sea/Maritime Law; Legal Theory; Migration Law; Nonproliferation, Arms Control and Disarmament Law; Refugee Law; Security Law; Space Law; State Jurisdiction (Customary Law); Technology Law; Territory and Land Frontiers; The Law of Armed Conflict/International Humanitarian Law (Military Occupation; War Crimes; International Armed Conflict); The United Nations/International Civil Service; Trade Law; Treaties and Other International Agreements; etc.
a). Panel Proposals
Panel proposals should be organized around the Conference theme and must include a brief description of the focus, format, and speakers.
Focus: The focus of the panel should be described including a presentation title, with descriptions of the particular sub-topics proposed (300 words maximum). Emphasis should be placed on the various perspectives on the sub-topic that will be presented. Solutions for each crisis must be offered.
Construction/Format: Diversity (i.e. Equal gender representation and/or designated group representation) and creativity in panel format(i.e. Deviation from traditional delivery methods), such as increased audience interaction, will be considered an asset.Formats should encourage audience interaction with an objective toward solution-making and teachable moments. Examples of creative panel formats include:
- Debates (ex. Theory vs. Practice)
- Case Studies;Real-life Experiences
- Mock negotiation/trial/arbitration/etc. (possibly based on a case, which can then be reviewed with the solution & applied law in reality)
- Panels focused mainly on interaction with delegates, such as Q&A’s
Proposed Speakers: Include a list of the proposed speakers (minimum of 3 speakers) with their anticipated contributions, such as topics or titles. Note that:
- Proposed speakers must have already expressed a willingness and availability to participate in the Conference should the proposal be accepted.
- All speakers must be available each day of the Conference for assignment to a program timeslot (November 3-5, 2016).
- Designations/title, organization, and short biographies of the proposed Chair and speakers should be included with the proposal.
- Speakers will receive a 50% discount on the Conference fee.
- Speaker duplicates on different panels is discouraged (Speakers should not appear more than once on the program, which will be a factor in panel selection).
If accepted for the program, speakers must be confirmed and panels must be finalized and provided to the CCIL by September 26, 2016.CCIL will assign the date and time of the panel.
b). Paper Proposals
Paper proposals should include a working title of the paper and an abstract (300 words maximum) describing the paper’s main thesis, methods, and contribution. Applicants should also include the designation/title, organization, and a short biography (200 words maximum). Solution(s) for any crisis in the proposal must be offered.
Authors of accepted proposals have the option to draft a paper on their proposed topic, and CCIL may publish the paper. Final papers should be sent to email@example.com no later than November 1, 2016.
III. Submission Logistics
The Conference will take place at the department of Global Affairs Canada, 111 & 125 Sussex Drive, in Ottawa, Ontario, Canada, from November 3 to 5, 2016.
How to Submit: Please submit your proposal online.
Deadline: Proposals must be received no later than May 31, 2016.
Speaker Fees: All speakers will receive a 50% discount on Conference fees.
Speaker Availability: All proposed speakers must be available for the duration of the Conference (November 3-5, 2016) in order to be considered. If accepted, CCIL will assign the date and time of the panel on which the speaker will be participating. Dates and times of sessions may change during the planning process of the Conference.
Speaker Duplicates: Speaker duplicates during the Conference is discouraged (i.e. One speaker should not be on more than one panel).
The CCIL anticipates communicating acceptance decisions during the Summer and early Fall of 2016.
Please address any questions to the 2016 Conference Committee, via the CCIL Secretariat at firstname.lastname@example.org.
Mayerfeld: The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law
International human rights law is often criticized as an infringement of constitutional democracy. In The Promise of Human Rights, Jamie Mayerfeld argues to the contrary that international human rights law provides a necessary extension of checks and balances and therefore completes the domestic constitutional order. In today's world, constitutional democracy is best understood as a cooperative project enlisting both domestic and international guardians to strengthen the protection of human rights. Reasons to support this view may be found in the political philosophy of James Madison, the principal architect of the U.S. Constitution.
The Promise of Human Rights presents sustained theoretical discussions of human rights, constitutionalism, democracy, and sovereignty, along with an extended case study of divergent transatlantic approaches to human rights. Mayerfeld shows that the embrace of international human rights law has inhibited human rights violations in Europe whereas its marginalization has facilitated human rights violations in the United States. A longstanding policy of "American exceptionalism" was a major contributing factor to the Bush administration's use of torture after 9/11.
Mounting a combination of theoretical and empirical arguments, Mayerfeld concludes that countries genuinely committed to constitutional democracy should incorporate international human rights law into their domestic legal system and accept international oversight of their human rights practices.
Friday, May 27, 2016
- Kenneth W. Abbott, Jessica F. Green & Robert O. Keohane, Organizational Ecology and Institutional Change in Global Governance
- Sarah M. Brooks & Marcus J. Kurtz, Oil and Democracy: Endogenous Natural Resources and the Political “Resource Curse”
- Cameron Ballard-Rosa, Hungry for Change: Urban Bias and Autocratic Sovereign Default
- Alex Weisiger, Learning from the Battlefield: Information, Domestic Politics, and Interstate War Duration
- Olof Larsson & Daniel Naurin, Judicial Independence and Political Uncertainty: How the Risk of Override Affects the Court of Justice of the EU
- Asif Efrat & Abraham L. Newman, Deciding to Defer: The Importance of Fairness in Resolving Transnational Jurisdictional Conflicts
- Matúš Jarolín, State Territory as a Fundamental Element of Statehood
- Rastislav Šutek, The Arms Trade Treaty: A Promise Towards the Victims of Armed Conflicts
- Peter Pavlovič, Direct Participation in Hostilities in Non-international Armed Conflicts: Act-based Approach vs. Membership-based Approach
- Jan Ondřej, The Exercise of Jurisdiction over Objects and Persons in Outer Space with Specific Reference to the International Space Station
- Eva Villacis, Al Qaida Sanctions Regime of the United Nations Security Council and Due Process Standards: Utopia or Reality?
- Nikola Regecová, National Courts v. International Courts as an Effective Means to Punish Criminals in Accordance with International Law (Case of Saif Al-Islam Gaddafi)
- Marek Jan Wasinski, The Campbell Case: A New Chapter of the Saga
- Markus P. Beham, Gabčíkovo-Nagymaros - The Neverending Story?
- Martin Faix, Application of Human Rights to European Union Military Operations: Mission Impossible?
- Darina Macková, New Approaches to Public International Law: Cosmopolitan Vision
- Special Issue: Making the SDGs Succeed
- Kathleen McAfee, Green economy and carbon markets for conservation and development: a critical view
- Aarti Gupta, Till Pistorius, & Marjanneke J. Vijge, Managing fragmentation in global environmental governance: the REDD+ Partnership as bridge organization
- A. F. Hof, M. G. J. den Elzen, & A. Mendoza Beltran, The EU 40 % greenhouse gas emission reduction target by 2030 in perspective
- Casey Stevens & Norichika Kanie, The transformative potential of the Sustainable Development Goals (SDGs)
- Pamela S. Chasek & Lynn M. Wagner, Breaking the mold: a new type of multilateral sustainable development negotiation
- Joshua C. Gellers, Crowdsourcing global governance: sustainable development goals, civil society, and the pursuit of democratic legitimacy
- Joyeeta Gupta & Courtney Vegelin, Sustainable development goals and inclusive development
- Ingrid Boas, Frank Biermann, & Norichika Kanie, Cross-sectoral strategies in global sustainability governance: towards a nexus approach
- Justin Desautels-Stein, International legal structuralism: a primer
- Uwe Steinhoff, When may soldiers participate in war?
- Dennis R. Schmidt, Peremptory law, global order, and the normative boundaries of a pluralistic world
- Arthur A. Stein, The great trilemma: are globalization, democracy, and sovereignty compatible?
- Adrian Gallagher, Conceptualizing humanity in the English School
Sixth Annual ASIL Research Forum
November 11-12, 2016
University of Washington School of Law
4293 Memorial Way Northeast Seattle, WA 98195
The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at ASIL Academic Partner University of Washington School of Law in Seattle, Washington.
The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress from across the spectrum of international law. Please note that, in addition to academics, private practitioners, government attorneys, international organization representatives, and non-government lawyers are frequently selected to present papers based on the abstracts they submit.
Papers may be on any topic related to international, comparative, and transnational law and should be unpublished at the time of their submission (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Multiple submissions are welcome, but authors will only be selected to present on a single abstract, including co-authored papers.
Proposals should be submitted submitted online by 12 noon ET on Monday, July 11, 2016. Interested authors should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Abstracts will be considered via a blind review process. Papers that do not follow these guidelines will not be considered. Notifications of acceptance will go out in late July.
Papers accepted for presentation will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. All authors of accepted papers will be required to submit a draft paper four weeks (Monday, October 10, 2016) before the Research Forum. Accepted authors must commit to being present on both Friday, November 11 and Saturday, November 12, 2016. Presenters must agree to allow their draft papers to be provided to registered attendees of the Research Forum in advance of the meeting.
Presenters will be required to register for the Research Forum, but will be provided a significantly reduced registration rate. ASIL does not have funding resources to cover the costs of travel or lodging for presenters.
- Kjølv Egeland, Lethal Autonomous Weapon Systems under International Humanitarian Law
- Adamo Silvia, Protecting International Civil Rights in a National Context: Danish Law and Its Discontents
- Hans Blix, UN Security Council vs. Weapons of Mass Destruction
President Obama has embraced what many in the international law community long-regarded as off limits: targeting war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemy’s armed forces. Although the weight of scholarly opinion has for years maintained that such objects are not legitimate military targets, the existing literature on this topic is highly deficient. Academic discussion has yet to grapple with some of the strongest and clearest evidence in support of the U.S. view on the legality of such targeting decisions. Indeed, intellectual resources may be better spent not on the question whether such objects are legitimate military targets under the law of armed conflict, but on second-order questions such as how to apply proportionality analysis and how to identify limiting principles to guard against unintentional slippery slopes. In this article, the author discusses the legal pedigree for the Obama Administration’s war-sustaining targeting. The article then turns to identifying some of the most significant second-order questions and how the United States and the international community might begin to address them in ongoing and future armed conflicts.
Thursday, May 26, 2016
Wednesday, May 25, 2016
Non- State actors, principally corporations and international organizations, as well as foreign States, influence decision-making. This reality particularly affects the enjoyment and implementation of economic, social and cultural (ESC) rights. Alongside what has become a fast-moving reality, legal developments in the field of ESC rights are also happening at a fast pace. In the last decade we have not only witnessed the end of the ESC justiciability debate, including a growing recognition of these rights at the domestic level, but also the adoption of an international complaints procedure to deal with violations of ESC rights (OP-ICESCR). Yet, these legal developments fall short of providing accountability in a globalized world. There is a discrepancy between international human rights law – with its focus on the territorial State – and the current globalized context in which non-state actors and foreign States also affect the enjoyment of ESC rights. Scholars have argued for the expansion of the duty-bearer side of human rights law in order ‘to synch’ human rights law with reality. Most of the research in the last decade has focused on the recognition of the obligations of foreign States and NSAs, less so on subsequent rules for the attribution and distribution of obligations, responsibility, and remedies. What are the (legal) building blocks or foundations of a multi-duty-bearer accountability framework?
This book consists of three parts. In part I the book provides the reader with a solid understanding of the concept of accountability and the challenges it implies for the protection of human rights. Part II reviews the various accountability procedures in the international and regional human rights systems. It details the existence of any procedural and substantive provisions found in the procedures that present prospects or hurdles for the scrutiny of extraterritorial or transnational obligations. Part III turns to a normative, prescriptive outlook as it examines the procedural adaptations needed to facilitate the expansion of the duty-bearer side of human rights law.
- Rémi Bachand, Suraccumulation du capital, surproduction, impérialisme et droit international
- Kintxo Freiss, Les incertitudes relatives au mandat d’arrêt européen à la lumière de l’affaire Aurore Martin
- Véronique Guèvremont, L’exemption culturelle canadienne dans le Partenariat Transpacifique ou la destinée d’une peau de chagrin
- Céline Lévesque, Les rôles et responsabilités des provinces canadiennes dans le cadre de procédures d’arbitrage entre investisseurs et États fondées sur des traités économiques
- Tove Nyberg, International Commission Against Impunity in Guatemala : A Non-Transitional Justice Effort
- Malgorzata Ulla, L’obésité d’un travailleur constitutive d’un handicap relevant de la protection de la Directive 2000/78 – L’évolution récente de la notion de handicap en droit de l’Union européenne
- Notes et commentaires
- Adolphe Kilomba Sumaili, La CIRGL et le règlement des différends dans la région des Grands lacs : cas de la rébellion du M23
- Emmanuelle Tourme Jouannet, Laurence Burgorgue-Larsen, Hélène Ruiz Fabri, & Bérénice K. Schramm, Ouverture
- Bérénice K. Schramm, (Re)voir Phryné devant l’aréopage de Jean-Léon Gérôme (1861)
- Oriane-Jill Aoust, Droits des femmes et sphère privée en Afrique : le constat d’une défaillance des instruments régionaux africains
- Charalambos Apostolidis, Le marxisme et la cause féminine
- Rémi Bachand, Les apports de la théorie féministe du positionnement dans une théorie (critique) du droit (international)
- Laurence Burgorgue-Larsen, La lutte contre la « violence de genre » dans le système interaméricain de protection des droits de l’homme. Décodage d’une évolution politique et juridique d’envergure
- Anne-Marie D’Aoust & Anne Saris, Femmes, genre et sécurité en relations internationales et en droit international : un dialogue en construction
- Martin Gallié & Maxine Visotzky-Charlebois, Le droit des femmes tel qu’il a été enseigné par les Pères fondateurs du droit international public et leurs héritiers. Notes de lecture sur les ouvrages et les manuels du XVIe au XXIe siècle
- Dominique Gaurier, Quelle place faite aux femmes dans l’ordre international de l’Antiquité et du début de l’époque moderne
- Stéphanie Hennette-Vauchez & Diane Roman, Du sexe au genre : le corps des femmes en droit international
- Dzovinar Kévonian, L’histoire des femmes juristes en France jusqu’aux années 1960 : état des lieux et sources de recherche
- Anne Lagerwall, La prostitution, le port du voile et l’avortement devant la Cour européenne des droits de l’Homme : une affaire de femmes ?
- Isabelle Masson, (Re)penser les relations constitutives de la gouvernance néolibérale : quelques pistes de réflexion féministes pour les relations internationales et le droit international
- Frédéric Mégret, Féminisme et droit international : le « féminisme de gouvernance » à l’épreuve du « féminisme critique »
- Anne-Sophie Tabau, Féminismes et droit international de l’environnement
- Emmanuelle Tourme Jouannet, Les différentes étapes pour la reconnaissance des droits des femmes. Droits des femmes et droit international de la reconnaissance
- Anne-Charlotte Martineau, Odysée d’une toubabou
Handels- und investitionsschutzrechtlichen Abkommen, wie z.B. die projektierte Transatlantic Trade and Investment Partnership (TTIP), werfen zunehmend Fragen nach der demokratischen Legitimität des Zustandekommens sowie der Ausgestaltung der bi- und multilateralen wirtschaftlichen Integration auf. Dieser Band, der Vorträge einer Tagung des JuWissBlog vom April 2015 präsentiert, widmet sich sowohl den historischen und theoretischen Grundlagen dieser Fragestellungen als auch konkreten Problemkomplexen der Partizipation und Legitimation im Unions- und Investitionsschutzrecht: Welche Grenzen setzt die Rechtsprechung des Gerichtshofs der Europäischen Union den Investor-Staats-Schiedsgerichten? (Wie) Sind die jeweiligen Eigentumsschutzklauseln der Investitionsschutzbestimmungen gegenüber politischer Selbstbestimmung demokratisch zu rechtfertigen? Wo liegen partizipatorische Potentiale in der regulatorischen Zusammenarbeit und im Recht der Welthandelsorganisation?
Mit Beiträgen von: Corinna Dornacher; Henner Gött, LL.M.; Tobias Heinze; Roland Hoffmann, LL.M., Dr. Michael Ioannidis, LL.M. LL.M.; Andreas Kerkemeyer, Andrej Lang, LL.M.; Michael Riegner, LL.M.; Dr. Thomas Trentinaglia; Dr. Dr. Patricia Wiater; Sebastian Wuschka, LL.M.
Justenhoven & O'Connell: Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science
With the founding of the United Nations, the “People of the United Nations” declared “to save succeeding generations from the scourge of war”. International law and international institutions have made progress towards achieving this goal, however, the world is clearly still a long way from effectively eradicating major organized violence between or within states. In 1963, Pope John XXIII’s renowned peace encyclical Pacem in Terris offered a practical vision beyond the accepted international policies of his time: normative ideas for reforming the UN aimed at a peaceful conflict resolution in a time of globalization. It calls for renewed commitment to the United Nations and international law. Pope John XXIII explained the role of public authorities within nation states in keeping the peace and working together for the common good. He saw the need for similar authority for the international community. Fifty years later, the authors critically debate the ideas for ‘global political authority’ and global law from their respective perspectives: theology, philosophy, international law, economics, and political science. Is the quest for a ‘global political authority’ well- or ill-founded? Can the International Court of Justice or the International Criminal Court be seen as an international authority in the making? Or do we have to strive for alternative concepts for global authority that global governance theories have to offer?
With contributions by Nigel Biggar, Andreas Hasenclever, Heinz-Gerhard Justenhoven, Matthias Lutz-Bachmann, Karsten Nowrot, Mary Ellen O’Connell, Stefan Oeter, Michael Reder, Annette Schramm, Christian J. Tams, Samuel T. Tessema, Johan Verstraeten and Dietmar von der Pfordten.
We consider the claim that individuals or nations who emitted carbon dioxide in the past should be held responsible for those emissions. We examine two theories of responsibility for past emissions that are often conflated: (i) that emissions in the past by individuals in one nation have wrongfully harmed, or will wrongfully harm, individuals in other nations, and (ii) that individuals or nations who emitted in the past used more than their fair share of the limited ability of the atmosphere to absorb carbon dioxide. These two theories have distinct philosophical bases. A theory of responsibility for harm caused to others is based on conventional theories of corrective justice or efficiency, such as the Polluter Pays Principal. The difficulty with these theories is measuring relative harm. There are few estimates of the harms from the 1°C of temperature change experienced so far from past emissions because it is difficult to distinguish the resulting harms from normal variations in the climate. The second theory, a theory of responsibility for excess use, would require a level of compensation several orders of magnitude larger than a theory based on harm. Responsibility for excess use, however, is more difficult to ground in widely-accepted theories of justice. It is, we argue, a theory of equal ownership of all limited resources which few theories of justice would support.
Tuesday, May 24, 2016
The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones.
A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is needed is a politics-reinforcing political question doctrine that can balance the need for robust review with the desire for robust debate. The uncertain boundaries between the political branches' overlapping powers create space for political debate. Their overlapping powers allow different groups to access the political system and have a voice on policy. Deciding separation of powers questions once-and-for-all can shut off those access points, shutting down political debate. A politics-reinforcing political question doctrine preserves the space in the political system for those debates by turning the pre-Zivotofsky political question doctrine on its head. Whereas the pre-Zivotofsky political question suggested abstention when the branches were in agreement and scrutiny when they were opposed, a politics-reinforcing political question doctrine suggests the opposite, allowing live debates to continue while scrutinizing political settlements. In so doing, it brings pluralism and politics back into the political question analysis, encouraging democracy rather than deference.
Choudhury: Spinning Straw into Gold: Incorporating the Business and Human Rights Agenda into International Investment Agreements
The adoption of the U.N. Guiding Principles on Business and Human Rights represents a watershed moment in the business and human rights movement. Nevertheless, despite its achievements, the work to align business and human rights issues remains.
One approach to furthering the work in this area has been to focus on the establishment of a new international binding treaty on business and human rights issues. Treaty proponents view a binding treaty as a mechanism by which existing gaps in human rights protection can be closed. Yet critics are skeptical. They point to the lack of treaty support by states which are headquarters for multinational corporations and worry about the diminishment of aspired treaty rights during the treaty negotiation process as evidence of their concerns.
This article questions whether there is a need for a “new” international business and human rights treaty. Instead it argues that the linkage of business and human rights issues can be made by way of international investment agreements (IIAs). Given the bilateral or regional nature of IIAs, multilateral state support is lessened, facilitating adoption of new principles or rights. Moreover, IIAs offer a robust enforcement mechanism, through international arbitration, which can provide effective remedies. In addition, because multinational corporations are often reliant on IIAs to gain access to new markets, IIAs can be used as a tool to impose human rights obligations onto corporations from the outset before abuses occur. Most importantly, reconfiguring IIAs to adopt the BHR agenda ensures that norm development in business areas does not undermine human rights issues when these two areas intersect and that corporate rights stand in parallel to corporate obligations.
The treatment of foreign investment has become the most controversial issue in global governance. At the centre of the controversy lies the mechanism of investor-state dispute settlement (ISDS), which allows private firms legal recourse against governments, if government interference has degraded their investment. Using newly released data covering 696 investment disputes, I assess some of the central claims about ISDS. I argue that the regime has indeed undergone a major shift: a majority of claims deal not with direct takings by low rule of law countries, but with regulation in democratic states. The result of this shift towards indirect expropriation affects firms’ incentives: claimants may gain even when they lose a challenge, if litigation can deter governments’ regulatory ambitions. The result, as I show, is an increase in the number of cases, accompanied by a precipitous decrease in their legal merit. Investors bringing indirect expropriation claims also appear far less likely to settle, and more likely to publicize the dispute, consistently with theoretical expectations.
Social researchers often feature as expert witnesses in international criminal trials, and there has yet to be a systematic evaluation of their impact on the co-production of courtroom knowledge. Analysis of over four hundred expert appearances shows that international judges do prefer experts using scientific methods. Unexpectedly, when social researchers are called, courts favor qualitative over quantitative approaches. In two international hate speech trials, a language expert was preferred to a quantitative sociologist because the former did not challenge the sovereignty of judges, or the status hierarchy of the courtroom. When excluding quantitative experts, judges cite “common sense” as the basis of facticity and knowledge. The prevailing epistemological framework at international criminal tribunals results from the knowledge strategies of legal actors operating in the structurally fragile context of international institutions.
This essay condenses the argument made in my article with Robert Wolfe and Vinhcent Le on transparency obligations in the area of subsidies and how transparency disciplines work or might work in this area. Subsidies are important mechanisms for the provision of public goods, the correcting of market failures, and the furthering of economic development. Yet they also create transnational externalities, whether through providing advantages to certain traders or through adversely affecting global public goods. Disciplining such government support through formally binding rules is thus notoriously difficult. A focus on substantive law alone is insufficient for understanding how subsidies law develops and has effects on social understandings and practices. Discipline on subsidies depends fundamentally on the existence of fora to discuss definitions, generate information about the incidence of subsidies, and then to determine whether a particular measure fits the definition and ought to be subject to censure. In the trading system, the World Trade Organization (WTO) provides a forum regarding subsidies generally, but there are others, such as the Organization for Economic Co-operation and Development, the International Monetary Fund, the G20, and informal networks organized by non-governmental organizations and other stakeholders. The essay first looks at transparency mechanisms within the WTO governing subsidies generally, followed by those developed through other processes.
A profound and profoundly important book—a moving personal detective story, an uncovering of secret pasts, and a book that explores the creation and development of world-changing legal concepts that came about as a result of the unprecedented atrocities of Hitler’s Third Reich.
East West Street looks at the personal and intellectual evolution of the two men who simultaneously originated the ideas of “genocide” and “crimes against humanity,” both of whom, not knowing the other, studied at the same university with the same professors, in a city little known today that was a major cultural center of Europe, “the little Paris of Ukraine,” a city variously called Lemberg, Lwów, Lvov, or Lviv.
The book opens with the author being invited to give a lecture on genocide and crimes against humanity at Lviv University. Sands accepted the invitation with the intent of learning about the extraordinary city with its rich cultural and intellectual life, home to his maternal grandfather, a Galician Jew who had been born there a century before and who’d moved to Vienna at the outbreak of the First World War, married, had a child (the author’s mother), and who then had moved to Paris after the German annexation of Austria in 1938. It was a life that had been shrouded in secrecy, with many questions not to be asked and fewer answers offered if they were.
As the author uncovered, clue by clue, the deliberately obscured story of his grandfather’s mysterious life, and of his mother’s journey as a child surviving Nazi occupation, Sands searched further into the history of the city of Lemberg and realized that his own field of humanitarian law had been forged by two men—Rafael Lemkin and Hersch Lauterpacht—each of whom had studied law at Lviv University in the city of his grandfather’s birth, each considered to be the father of the modern human rights movement, and each, at parallel times, forging diametrically opposite, revolutionary concepts of humanitarian law that had changed the world.
In this extraordinary and resonant book, Sands looks at who these two very private men were, and at how and why, coming from similar Jewish backgrounds and the same city, studying at the same university, each developed the theory he did, showing how each man dedicated this period of his life to having his legal concept—“genocide” and “crimes against humanity”—as a centerpiece for the prosecution of Nazi war criminals.
And the author writes of a third man, Hans Frank, Hitler’s personal lawyer, a Nazi from the earliest days who had destroyed so many lives, friend of Richard Strauss, collector of paintings by Leonardo da Vinci. Frank oversaw the ghetto in Lemberg in Poland in August 1942, in which the entire large Jewish population of the area had been confined on penalty of death. Frank, who was instrumental in the construction of concentration camps nearby and, weeks after becoming governor general of Nazi-occupied Poland, ordered the transfer of 133,000 men, women, and children to the death camps.
Sands brilliantly writes of how all three men came together, in October 1945 in Nuremberg—Rafael Lemkin; Hersch Lauterpacht; and in the dock at the Palace of Justice, with the twenty other defendants of the Nazi high command, prisoner number 7, Hans Frank, who had overseen the extermination of more than a million Jews of Galicia and Lemberg, among them, the families of the author’s grandfather as well as those of Lemkin and Lauterpacht.
A book that changes the way we look at the world, at our understanding of history and how civilization has tried to cope with mass murder. Powerful; moving; tender; a revelation.
Monday, May 23, 2016
- Kristen A. Harkness, The Ethnic Army and the State: Explaining Coup Traps and the Difficulties of Democratization in Africa
- Robert A. Dowd, Religious Diversity and Religious Tolerance: Lessons from Nigeria
- Thorin M. Wright & Paul F. Diehl, Unpacking Territorial Disputes: Domestic Political Influences and War
- Erte Xiao & Howard Kunreuther, Punishment and Cooperation in Stochastic Social Dilemmas
- Toke S. Aidt & Gabriel Leon, The Democratic Window of Opportunity: Evidence from Riots in Sub-Saharan Africa
- Stephane J. Baele, Olivier C. Sterck, & Elisabeth Meur, Theorizing and Measuring Emotions in Conflict: The Case of the 2011 Palestinian Statehood Bid
- Peter Van der Windt & Macartan Humphreys, Crowdseeding in Eastern Congo: Using Cell Phones to Collect Conflict Events Data in Real Time
Countries can challenge potential trade violations using the WTO's dispute settlement system, yet many policies that appear to violate WTO rules remain unchallenged, even when they have a significant economic impact. Why is this? We argue that the likelihood that a country challenges a protectionist policy is linked to how concentrated or diffuse the policy is. When a policy is concentrated --- because it affects only one country --- litigation is a private good, meaning that a country that pays the cost of litigation receives the full benefit of litigation. But when a policy is diffuse --- because it affects many countries --- litigation is a public good and countries face a collective action problem: many countries can benefit from litigation, but each country wants to free-ride by having another country pay the cost. The resulting selection effect has two consequences. First, the free-rider problem reduces the likelihood that a diffuse policy will be challenged in any given period, generating a longer enforcement delay for diffuse trade violations. Second, cases must have higher odds of success in order for countries to overcome the collective action problem, meaning that conditional on being filed, cases that challenge concentrated policies will be less likely to succeed in litigation than cases that challenge diffuse policies. We leverage selection effects to test our argument using data on the timing and outcomes of trade disputes. The evidence, which considers all WTO disputes from 1995 to 2013, bears out these beliefs.
Des droits subjectifs fondamentaux de l’individu jusqu’au droit objectif régissant la société, les questions liées à la sexualité font l’objet d’une activité juridique diversifiée. Du micro-juridique au macro-juridique, celle-ci sera déclinée en trois temps.
D’abord, il s’agira d’envisager la question sous l’angle de la liberté de l’individu, acteur de son intimité. Dans une démarche chronologique, les intervenants s’interrogeront tant sur l’accès à la sexualité que sur ses pratiques.
Ensuite, un deuxième atelier prolongera a thématique sous l’angle de la protection de l’individu victime, dans son intimité, de pratiques violentes. Cet atelier sera à son tour subdivisé en deux temps, visant à étudier les types de violences, puis les types de victimes.
Enfin, le troisième atelier se saisira de la question à l’échelle la plus large, envisageant les modalités par lesquelles une société toute entière cherche à protéger ses valeurs. La protection de la société implique alors des limitations à la sexualité, pour des raisons d’ordre public. D’une part, certaines sociétés organisent des ingérences dans la capacité génésique des individus, pour favoriser ou interdire la procréation. D’autre part, toute société s’interroge face au phénomène croissant de marchandisation et d’entreprenariat du sexe.
Moura Vicente: Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective
- Manuel de Almeida Ribeiro, Foreword
- The Growing Role of International Courts and Jurisdictions: The Permanent Court of International Justice, the International Court Of Justice, and Beyond
- Rui de Moura Ramos, Introduction
- Miguel de Serpa Soares, From Absence to Abundance: Tracing the Development and Impact of International Courts
- Rita Teixeira & Ricardo Bastos, The Cases where the International Court of Justice lacked Jurisdiction: a Brief Analysis and Commentary
- Dimitra Papageorgiou & Eva Tzavala, Energy at Sea and the Jurisprudence of the International Court of Justice
- International Inspection and Control Mechanisms
- Fernando Loureiro Bastos, An Overview of the International Inspection and Control Mechanisms
- José Cunha Rodrigues, The UEFA Financial Control Body
- European and Other Regional Courts of Human Rights
- Ireneu Cabral Barreto, Introduction
- Paulo Pinto de Albuquerque, The European Court of Human Rights as the European Constitutional Court
- José Pina Delgado, The African Court on Human and People's Rights and its Position in the International and African Architectures
- Laura-Maria Craciunean, Cultural Rights and a Right to Cultural Identity before the European Court of Human Rights: Present Approaches and Future Challenges
- Adriana Ramos Costa & Eleonora Mesquita Ceia, The Influence of Inter-American Human Rights Law on the Jurisprudence of the Brazilian Supreme Federal Court
- Francesca Capone, Comparing and Discussing the Different Approaches to Remedies for Child Victims before the European Court of Human Rights and the Inter-American Court of Human Rights
- Ondřej Svaček, International Criminal Court and Human Rights: Achievements and Challenges
- Alex Ian Psarski Cabral, Cristiane Helena de Paula Lima Cabral & Mário Lúcio Quintão Soares, The Reception of the Inter-American Human Rights System in Brazil in Light of Penal Action no. 470
- Dispute Resolution Mechanisms Concerning International Trade and Investment, in particular within WTO and ICSID
- Dário Moura Vicente, Investor-state Dispute Settlement in the European Perspective: Recent Developments
- Alejandro Carballo, Dispute Resolution under the Energy Charter Treaty
- Ozge Varis, Understanding the interaction between the WTO regime and international investment regime: reversing the approach
- Sadie Blanchard, Legal Certainty During EU Accession: What Can a Foreign Investor in a Future Member State Legitimately Expect?
- Carmen Alexandra Saugar Koster, Dispute Resolution Mechanisms Concerning International Trade and Investment, in particular within WTO and ICSID. A Dual Coverage in the Services Sector
- Paolo Davide Farah & Elena Cima, The WTO Dispute Settlement System and Renewable Energy Subsidies: The Case of Feed-In Tariffs
- Emily Sipiorski, Evidence and the Principle of Good Faith in Investment Arbitration: Finding Meaning in Public International Law
- Jerzy Menkes & Magdalena Słok-Wódkowska, Challenges of “investor-state dispute settlement mechanism” in TTIP
- International Commercial Arbitration
- Luís de Lima Pinheiro, The Confluence of Transnational Rules and National Directives as the Legal Framework of Transnational Arbitration
- Tatjana Shterjova, The Challenges of Taking Evidence in International Commercial Arbitration – the Problem of Legal Privileges
- The Court of Justice of the European Union
- Fausto de Quadros, Introduction
- Maria José Rangel de Mesquita, The Court of Justice of the European Union
- Joana Covelo de Abreu, Infringement Procedure and the Court of Justice as an EU law’s Assurer: Member States’ Infringements Concerning Failure to Transpose Directives and the Principle of an Effective Judicial Protection
- Mateus Kowalski & Sofia Machado, The United Nations Sanctions Regimes and a Judicialized European Union Perspective
- Domestic Courts as International Jurisdictions?
- Catherine Kessedjian, Introduction
- Peter Trooboff, Limits on Jurisdiction of Domestic Courts to Grant Civil Damages for International Law Violations
- Rui Pereira Dias, Corporate Group Structures and the Limits of Personal Jurisdiction. US/European comparative remarks
- Humberto Cantú-Rivera, Towards Judicial Accountability in the Business & Human Rights Field?
- Miguel Poiares Maduro, The Judicial and Constitutional Challenges of Legal Globalisation
Sunday, May 22, 2016
This book addresses the legal issues raised by the interaction between human rights and development in contemporary international law. In particular, it charts the parameters of international law that states have to take into account in order to protect human rights in the process of development. In doing so, it departs from traditional analyses, where human rights are mainly considered as a political dimension of development. Rather, the book suggests focusing on human rights as a system of international norms establishing minimum standards of protection of individuals and minimum standards applicable in all circumstances on what is essential for a dignified existence.
The various dimensions covered in the book include: the discourse on human rights and development interrelationship, particularly opinio juris and the practice of states on the question; the notion of international assistance and cooperation in human rights law, under legal regimes such as international humanitarian law, and emerging rules in the area of protection of persons in the event of disasters; the extraterritorial scope of economic, social and cultural rights treaties; and legal principles on the respect for human rights in externally designed and planned development activities. Analysis of these topics sheds light on the question of whether international law as it stands today addresses most of the issues concerning the protection of human rights in the development process.