Saturday, August 20, 2016

Fabre: Cosmopolitan Peace

Cécile Fabre (Univ. of Oxford - Philosophy) has published Cosmopolitan Peace (Oxford Univ. Press 2016). Here's the abstract:
This book articulates a cosmopolitan theory of the principles which ought to regulate belligerents' conduct in the aftermath of war. Throughout, it relies on the fundamental principle that all human beings, wherever they reside, have rights to the freedoms and resources which they need to lead a flourishing life, and that national and political borders are largely irrelevant to the conferral of those rights. With that principle in hand, the book provides a normative defence of restitutive and reparative justice, the punishment of war criminals, the resort to transitional foreign administration as a means to govern war-torn territories, and the deployment of peacekeeping and occupation forces. It also outlines various reconciliatory and commemorative practices which might facilitate the emergence of trust amongst enemies and thereby improve prospects for peace.

Friday, August 19, 2016

New Issue: American Review of International Arbitration

The latest issue of the American Review of International Arbitration (Vol. 27, no. 1, 2016) is out. Contents include:
  • George A. Bermann, The Yukos Annulment: Answered and Unanswered Questions
  • Report of the International Commercial Disputes Committee of the New York City Bar Association, Advance Waivers of Arbitrator Conflicts of Interest in International Commercial Arbitrations Seated in New York
  • William R. Spiegelberger, Russia Report: The Enforcement of Foreign Arbitral Awards in 2015
  • Frederick A. Acomb & Nicholas J. Jones, The Insider Adversary in International Arbitration
  • Jan-Philip Elm, Behavioral Insights into International Arbitration: An Analysis of How to De-Bias Arbitrators

deGuzman: Justifying Extraterritorial War Crimes Trials

Margaret M. deGuzman (Temple Univ. - Law) has posted Justifying Extraterritorial War Crimes Trials. Here's the abstract:
War crimes are increasingly being adjudicated in international courts and in national courts with no territory links to the crimes under the doctrine of universal jurisdiction. Such extraterritorial trials rely for their justification on the existence of an interest in accountability that is not based on the location of the crimes or the nationalities of the perpetrators or victims. Yet proponents of extraterritorial adjudication of war crimes rarely interrogate the nature of this justifying interest. This Article identifies three central justifying rationales for extraterritorial war crimes trials in the law and literature. It demonstrates that a tension exists among these rationales that creates confusion and dissonance in the legal doctrines and policies governing such trials. Finally, it suggests that proponents of extraterritorial war crimes trials should endorse the broadest of the rationales, which best expresses the global cosmopolitan ideal embedded in the human rights and humanitarian law regimes. At the same time, it argues for more robust principles to guide the exercise of extraterritorial jurisdiction over war crimes by balancing the global and national interests at stake.

Venzke: Cracking the Frame? On the Prospects of Change in a World of Struggle

Ingo Venzke (Univ. of Amsterdam - Law) has posted Cracking the Frame? On the Prospects of Change in a World of Struggle (European Journal of International Law, forthcoming). Here's the abstract:
Critical scholarship classically lays bare the assumptions and choices that people make when they argue. By displaying the consequences of those assumptions and choices, it seeks to instil a sense of responsibility for them. Drawing them out into the open, critical scholarship presents them for contestation, unsettles them, and opens them up for change. In his latest book, A World of Struggle, David Kennedy directs our attention to the background work of expertise – how it rules through arguments, how it shapes the global political economy and how it sustains unjust distributions of gains. Kennedy offers a warm invitation to join the struggle to imagine and remake the world differently. In the present review, I discuss this invitation’s specific appeal. More generally, I ask about the prospects of change in international law as well as the activities that might support such change. I argue, first, that carving out background assumptions and choices is not enough. What is needed is an account of transitions – something that Kennedy acknowledges but does not provide. Second, I approach the vexed question of who could effectively crack existing frames – a question that Kennedy ducks. And, third, I discuss the role of violence, rhetoric and reason in the argumentative practice of expert work – distinctions that Kennedy refutes. I am ultimately happy to accept Kennedy’s invitation. It surely comes with immense acuity, subtle side blows and not so subtle punches – always in his signature style. I conclude that, with the aim of inducing change, a core activity of scholars should be to trace changes in concrete contexts and to thereby regain a sense for the possibilities of the past.

Mazzuoli: The Law of Treaties

Valerio de Oliveira Mazzuoli (Universidade Federal de Mato Grosso - Law) has published The Law of Treaties (Forense 2016). Here's the abstract:

The extraordinary growth in the number of international treaties concluded in recent decades has awakened the interest in the study of the Law of Treaties throughout the world. Nevertheless, many of the works that have been recently published do not reach a satisfactory degree of detail, leaving the academic readership with no answer concerning most of the practical problems that the contemporary law of treaties poses.

This book, written by one of the most renowned Brazilian internationalists, deepens the study of the law of treaties by offering specific solutions to current legal problems. It provides a high-level theoretical and practical approach, touching upon all major current issues of the law of treaties. It is noteworthy that each subject-matter discussed in this work was thoroughly analyzed and supported by a rigorous methodology, including the use of the most accurate terminology and a well-reasoned explanation of each of the issues addressed in accordance with the most authoritative legal scholarly writings.

This work is also a helpful reference for governmental and diplomatic officials, legal practitioners and the legal academia at large in trying to understand how international acts are negotiated and adopted, what the rules are for the formulation of reservations and introduction of amendments to conventional texts, how a State is definitely deemed to be bound by an international act or treaty, which the effects are of a treaty that came into force and how treaties should be applied at the international level, etc.

Hurd: The Permissive Power of the Ban on War

Ian Hurd (Northwestern Univ. - Political Science) has posted The Permissive Power of the Ban on War (European Journal of International Security, forthcoming). Here's the abstract:
The ban on inter-state war in the UN Charter is widely identified as central to the modern international order–Michael Byers calls it ‘one of the twentieth century’s greatest achievements’. Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around ‘self-defence’, the laws on war authorise, and thus legitimate, wars that are motivated by the security needs of the state, while forbidding other motives for wars. Second, state practice since 1945 has expanded the scope of this authorisation, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest that international law is a resource that increases state power, at least for powerful states, and this relation between international law and power politics is missed by both realists and liberal internationalists.

New Issue: International Journal of Refugee Law

The latest issue of the International Journal of Refugee Law (Vol. 28, no. 2, June 2016) is out. Contents include:
  • Naomi Hart, Complementary Protection and Transjudicial Dialogue: Global Best Practice or Race to the Bottom?
  • Phil Orchard, The Contested Origins of Internal Displacement
  • Gregor Noll, Junk Science? Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum
  • Niamh Kinchin, The Implied Human Rights Obligations of UNHCR
  • Guy S Goodwin-Gill, The Mediterranean Papers: Athens, Naples, and Istanbul

Thursday, August 18, 2016

Peters: The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization

Anne Peters (Max Planck Institute for Comparative Public Law and International Law) has posted The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization. Here's the abstract:
The new posture of international courts and tribunals is the ‘spirit of systemic harmonisation’, to use the words of the European Court of Human Rights Grand Chamber in Al Dulimi. Fifteen years after then ICJ President’s Gilbert Guillaume’s ‘proliferation’-speech before the UN General Assembly and ten years after publication of the ILC ‘fragmentation’-report, it is time to bury the f-word. Along that line, this paper concentrates on the positive contribution of the new techniques which courts, tribunals and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing ‘harmonisation’ and ‘integration’ within international law could also be conceptualised as a form of procedural constitutionalisation.

Venzke & Thio: The Internal Effects of ASEAN External Relations

Ingo Venzke (Universiteit van Amsterdam - Law) & Li-ann Thio (National Univ. of Singapore - Law) have published The Internal Effects of ASEAN External Relations (Cambridge Univ. Press 2016). Here's the abstract:
Starting with a typology of ASEAN external agreements, the authors go on to provide an original reading of plurilateral agreements as 'joint' agreements. The book then offers both a clarification of the effects - direct or indirect - of external agreements within the legal orders of ASEAN Member States, and an explanation of the effects of external agreements within the legal regime of ASEAN. The authors conclude with a discussion of the role of ASEAN centrality and the role of the secretariat in shaping it.

New Volume: Recueil des Cours

Volume 378 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 378
    • Y. Iwasawa, Domestic Application of International Law
    • Javier Carrascosa González, The Internet – Privacy and Rights relating to Personality

Patel: The State Practice of India and the Development of International Law

Bimal N. Patel (Gujarat National Law Univ.) has published The State Practice of India and the Development of International Law: Dynamic Interplay between Foreign Policy and Jurisprudence (Brill | Nijhoff 2016). Here's the abstract:
The State Practice of India and the Development of International Law by Bimal N. Patel provides a critical analysis of India’s state practice and development of international law. Providing insight into the historical evolution of Indian state practice from pre-1945 period through the 21st century, the work meticulously and systematically examines the interpretation and execution of international law by national legislative executive and judicial organs individually as well as collectively. The author demonstrates India’s ambitions as a rising global power and emerging role in shaping international affairs, and convincingly argues how India will continue to resist and prevent consolidation of Euro-American centric influence of international law in areas of her political, economic and culture influence.

Wednesday, August 17, 2016

Criddle: Human Rights in Emergencies

Evan J. Criddle (William and Mary Law School) has published Human Rights in Emergencies (Cambridge Univ. Press 2016). Contents include:
  • Evan J. Criddle, Introduction: testing human rights theory during emergencies
  • Gerald L. Neuman, Constrained derogation in positive human rights regimes
  • Evan J. Criddle, Protecting human rights during emergencies: delegation, derogation, and deference
  • James W. Nickel, Two models of normative frameworks for human rights during severe emergencies
  • Emily M. Hafner-Burton, Laurence R. Helfer & Christopher J. Fariss, Emergency and escape: explaining derogations from human rights treaties
  • Fionnuala Ní Aoláin, The cloak and dagger game of emergency and war
  • Thomas Poole, The law of emergency and reason of state
  • William E. Scheuerman, Human rights lawyers v. Carl Schmitt
  • Scott Sheeran, Human rights and derogation in peacekeeping: addressing a legal vacuum within the state of exception
  • Diane A. Desierto, Austerity measures and international economic, social, and cultural rights

Tuesday, August 16, 2016

Call for Submissions: Time and Cost Issues in International Arbitration

Transnational Dispute Management has issued a call for submissions for a TDM special issue on "Time and Cost Issues in International Arbitration." Here's the call:

TDM Call for Papers: Time and Cost Issues in International Arbitration

We are pleased to announce a forthcoming TDM special issue on "Time and Cost Issues in International Arbitration."

This Special Issue will be edited by Wendy Miles QC (Boies, Schiller & Flexner) and Philippe Cavalieros (Winston & Strawn), and will focus on a subject that is central to the concerns of arbitration users, many of whom perceive arbitration proceedings as being too expensive and lengthy.

Time and cost concerns in international arbitration are not new - users have become more cost-conscious particularly since the global financial crisis. What is disheartening is that these concerns are consistently and still being identified as amongst the worst traits of arbitration, as revealed in the latest 2015 survey conducted by the School of International Arbitration at Queen Mary University (

At a time when the legitimacy and efficacy of arbitration as a system of dispute settlement is being questioned, it is all the more important to discuss time and cost issues, analyze to what extent these concerns are warranted, pinpoint the contributing factors, and identify potential solutions.

To better inform users of cost allocation practices and how they can be used to control time and costs, the ICC Task Force on Costs recently released a Report on Decisions on Costs in International Arbitration ( (pdf)), which sets out tribunals' considerations, and the different approaches to cost allocation across arbitral institutions and national laws.

In its survey, the School of International Arbitration at Queen Mary University suggested several measures aimed at saving costs, and asked respondents to rate their effectiveness. The most positively ranked suggestion was to require tribunals to "commit to and notify parties of a schedule for deliberations and delivery of final award." Other high ranked cost-saving proposals included "stronger pre-appointment scrutiny of prospective arbitrators' availability," "sanctions for dilatory conduct by parties or their counsel" and "requirement for early procedural conference." It appears that users want arbitrators to take on a more proactive approach to setting and meeting deadlines, and sanctioning dilatory tactics.

Along this vein, the International Court of Arbitration at the ICC recently introduced a policy whereby arbitrators who fail to submit draft awards within three months after the last substantive hearing, absent reasonable justification, will have their fees reduced (

Possible topics for submission to the Special Issue would include a discussion of the cost-saving measures proposed in the Queen Mary survey or a commentary on the potential impact of the ICC's newly implemented policy to reduce arbitrator fees for unjustified delays. Other ideas could include but are not limited to the following:

  • Power of arbitrators to sanction party or counsel behavior that delays or increases the cost of arbitration (e.g. power to order legal counsel to pay the opposing party's legal costs, etc.)
  • Enforceability issues that may arise from sanctions imposed by arbitrators
  • Whether guidelines and checklists help foster cost-effective behavior
  • Different types of funding options for arbitration users, whether impecunious or not
  • The effect of a party's insolvency during proceedings
  • Use of political risk insurance or arbitration award default coverage
  • Recoverability of party costs other than institutional, legal, or expert/witness fees (e.g. sums owed to third party funders, in-house costs, etc.)
  • Pressure in the legal market to prolong arbitral proceedings

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue. Proposals for papers (abstracts) should be submitted to the editors by November 2016, publication is expected in 2017.

Feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.

Wendy Miles QC
Boies, Schiller & Flexner
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Philippe Cavalieros
Winston & Strawn
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Please address all questions and proposals to both editors, contact details here.

Please CC when submitting your materials.

New Issue: Global Summitry

The latest issue of Global Summitry (Vol. 2, no. 1, June 2016) is out. Contents include:
  • Eric Helleiner, Legacies of the 2008 Crisis for Global Financial Governance
  • Henry Farrell, Globalized Green Lanternism
  • Paul Martin, Paul Martin on the G20 and China’s Hosting of the G20 Leaders’ Summit
  • M. Taylor Fravel, Explaining China’s Escalation over the Senkaku (Diaoyu) Islands
  • Oliver Stuenkel, The BRICS: Seeking Privileges by Constructing and Running Multilateral Institutions
  • Mark Beeson, Multilateralism in East Asia: Less than the Sum of Its Parts?

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 55, no. 4, December 2015) is out. Contents include:
  • Sreenivasa Rao Pemmaraju, The nature and function of international law: an evolving international rule of law
  • Tafsir Malick Ndiaye, The judge, maritime delimitation and the grey areas
  • Peter Hilpold, The fight against terrorism and SC Resolution 2249 (2015): towards a more Hobbesian or a more Kantian International Society?

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 17, no. 1, June 2016) is out. Contents include:
  • Sang-Hyun Song, International Criminal Court-Centred International Criminal Justice and Its Challenges
  • Amanda Alexander, International Humanitarian Law, Postcolonialism and the 1977 Geneva Protocol I
  • Conall Mallory, Abolitionists at Home and Abroad: A Right to Consular Assistance and the Death Penalty
  • Rebecca L Stanley & Ross P Buckley, Protecting the West, Excluding the Rest: The Impact of the AML/CTF Regime on Financial Inclusion in the Pacific and Potential Responses
  • Hailegabriel G Feyissa, European Extraterritoriality in Semicolonial Ethiopia
  • Phoebe J Galbally, Playing the Victim: A Critical Analysis of Canada's Bill C-36 from an International Human Rights Perspective
  • Patrick Wall, A Marked Improvement: The High Court of Australia's Approach to Treaty Interpretation in Macoun v Commissioner of Taxation [2015] HCA 44
  • Ryan J Turner, Transnational Supply Chain Regulation: Extraterritorial Regulation as Corporate Law's New Frontier
  • Sarah Williams, MH17 and the International Criminal Court: A Suitable Venue?
  • Roda Mushkat, 'Loose' Regionalism and Global Governance: The Association of Southeast Asian Nations (ASEAN) Factor

Monday, August 15, 2016

Bradley & Goldsmith: Obama's AUMF Legacy

Curtis A. Bradley (Duke Univ. - Law) & Jack Landman Goldsmith III (Harvard Univ. - Law) have posted Obama's AUMF Legacy. Here's the abstract:
Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making claims about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important restraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.

Cohen: On the linguistic design of multinational courts: The French capture

Mathilde Cohen (Univ. of Connecticut - Law) has published On the linguistic design of multinational courts: The French capture (International Journal of Constitutional Law, Vol 14, no. 2, pp. 498-517, 2016). Here's the abstract:
This article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice of a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

Carver & Handley: Does Torture Prevention Work?

Richard Carver & Lisa Handley have published Does Torture Prevention Work? (Liverpool Univ. Press 2016). Here's the abstract:
In the past three decades, international and regional human rights bodies have developed an ever-lengthening list of measures that states are required to adopt in order to prevent torture. But do any of these mechanisms actually work? This study is the first systematic analysis of the effectiveness of torture prevention. Primary research was conducted in 16 countries, looking at their experience of torture and prevention mechanisms over a 30-year period. Data was analysed using a combination of quantitative and qualitative techniques. Prevention measures do work, although some are much more effective than others. Most important of all are the safeguards that should be applied in the first hours and days after a person is taken into custody. Notification of family and access to an independent lawyer and doctor have a significant impact in reducing torture. The investigation and prosecution of torturers and the creation of independent monitoring bodies are also important in reducing torture. An important caveat to the conclusion that prevention works is that is actual practice in police stations and detention centres that matters – not treaties ratified or laws on the statute book.

Putnam: Courts without Borders: Law, Politics, and U.S. Extraterritoriality

Tonya L. Putnam (Columbia Univ. - Political Science) has published Courts without Borders: Law, Politics, and U.S. Extraterritoriality (Cambridge Univ. Press 2016). Here's the abstract:
Courts without Borders is the first book to examine the politics of judicial extraterritoriality, with a focus on the world's chief practitioner: the United States. For much of the post-World War II era, the United States has been a frequent yet selective regulator of activities outside its territory, and US federal courts are often on the front line in deciding the extraterritorial reach of US law. At stake in these jurisdiction battles is the ability to bring the regulatory power of the United States to bear on transnational disputes in ways that other states frequently dislike both in principle and in practice. This volume proposes a general theory of domestic court behavior to explain variation in extraterritorial enforcement of US law, emphasizing how the strategic behavior of private actors is important to mobilizing courts and in directing their activities.

Krzan: Prosecuting International Crimes: A Multidisciplinary Approach

Bartłomiej Krzan (Univ. of Wrocław - Law) has published Prosecuting International Crimes: A Multidisciplinary Approach (Brill | Nijhoff 2016). Contents include:
  • Joachim Wolf, Individual Responsibility and Collective State Responsibility for International Crimes: Separate or Complementary Concepts under International Law?
  • Władysław Czapliński, Customary International Law as a Basis of an Individual Criminal Responsibility
  • Robert Uerpmann-Wittzack, Immunities before International Criminal Courts
  • Krzysztof Masło, The Attribution of International Criminal Responsibility for Serious Violations of Human Rights and International Humanitarian Law to Senior Leaders
  • Patrycja Grzebyk, Crimes against Civilians during Armed Conflicts
  • Regina Valutytė & Neringa Mickevičiūtė, Remedying Torturous Effects of the Use of Chemical Weapons under International Law
  • Witold Jakimko, The Judicial Independence of Judges within International Criminal Courts
  • Bartłomiej Krzan, Human Rights and International Criminal Law
  • Karolina Kremens, The Prosecutor of the International Criminal Court – Inquisitorial or Adversarial?
  • Wojciech Jasiński, Admissibility of Illegally Obtained Evidence in Proceedings before International Criminal Courts
  • David Kohout, Implementing the Nuremberg Principles in National Trials with Nazi Criminals: Hesitation versus Enthusiasm towards Meeting the Standards of Complementarity in the Modern International Criminal Law
  • Karolina Wierczyńska, Sufficient Domestic Proceedings – The Standard of National Criminal Proceedings before the icc in Context of Art. 17 of the Rome Statute
  • Loammi Wolf, The South African Truth and Reconciliation Commission in the Context of Xenophobia, Cycles of Violence, and Epigenetic Trauma
  • Justinas Žilinskas, Prosecuting International Crimes in Lithuania: When Wounds Shape the Law

Rajkovic, Aalberts, & Gammeltoft-Hansen: The Power of Legality: Practices of International Law and their Politics

Nikolas M. Rajkovic (Universiteit van Tilburg - Law), Tanja Aalberts (Vrije Universiteit Amsterdam - Law), & Thomas Gammeltoft-Hansen (Lunds Universitet - Raoul Wallenberg Institute of Human Rights and Humanitarian Law) have published The Power of Legality: Practices of International Law and their Politics (Cambridge Univ. Press 2016). Contents include:
  • Martti Koskenniemi, Foreword
  • Nikolas M. Rajkovic, Tanja E. Aalberts & Thomas Gammeltoft-Hansen, Introduction: legality, interdisciplinarity, and the study of practices
  • Friedrich Kratochwil, Re-thinking inter-disciplinarity by re-reading Hume
  • Anna Leander & Wouter Werner, Tainted love: the struggle over legality in international relations and international law
  • Filipe dos Reis & Oliver Kessler, The power of legality, legitimacy and the (im)possibility of interdisciplinary research
  • Ciaran Burke, Moving while standing still: law, politics and hard cases
  • Vidya Kumar, International law, Kelsen and the aberrant revolution: excavating the politics and practices of revolutionary legality in Rhodesia and beyond
  • Vassilis P. Tzevelekos, Juris Dicere: custom as a matrix, custom as a norm, the role of judges and (their) ideology in custom making
  • Bas Schotel, Multiple legalities and international criminal tribunals: juridical versus political legality
  • Cathleen H. Powell & Jonathan Strug, Palestine's quest for statehood and the practice of the United Nations
  • Michael L. Buenger, Regulatory legality: extraterritorial rule across domestic and international arenas
  • Surabhi Ranganathan, Legality and lawfare in regime implementation
  • Maj Grasten, Whose legality? Rule of law missions and the case of Kosovo
  • Jeffrey L. Dunoff, Perspectives on the perils, promise, politics - and practice - of interdisciplinarity

Sunday, August 14, 2016

Barnidge: Palestinian Engagement with the International Criminal Court: From Preliminary Examination to Investigation?

Robert P. Barnidge, Jr. (Webster Univ. - History, Politics, and International Relations) has published Palestinian Engagement with the International Criminal Court: From Preliminary Examination to Investigation? (Journal of the Middle East and Africa, Vol. 7, no. 2, pp. 109-23, 2016). Here's the abstract:
This article examines a number of key legal issues related to recent Palestinian moves at the International Criminal Court (ICC). It begins by describing the technicalities of these moves in light of article 12(3) of the 1998 Rome Statute of the ICC and the ICC’s accession regime. It then turns to some of the considerations that ICC Prosecutor Fatou Bensouda will have to bear in mind when she decides whether to escalate her preliminary examination to an investigation. These are the questions of jurisdiction, admissibility, and the “interests of justice.” While it is difficult to predict whether Bensouda will initiate an investigation, it is likely that Palestinian engagement with the ICC will continue to pose a significant obstacle to rapprochement between Israel and the Palestine Liberation Organization (PLO). The Palestinian moves have fundamentally challenged the bilateral negotiation imperative that emerged between Israel and the PLO in September 1993.

Call for Submissions: Non-Legal Adjudicators in National and International Disputes

Transnational Dispute Management has issued a call for submissions for a TDM special issue on "Non-Legal Adjudicators in National and International Disputes." Here's the call:

TDM Call for Papers: Non-Legal Adjudicators in National and International Disputes

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120) special issue on "Non-Legal Adjudicators in National and International Disputes". This special issue will analyse the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators[1] face when resolving national and international disputes. It will consider litigation; national arbitration and diverse forms of alternative dispute resolution (ADR); international commercial arbitration; investment arbitration; inter-State arbitration and the dispute settlement system of the World Trade Organization (WTO).

This special issue will be edited by Katia Fach Gómez (University of Zaragoza-Spain) and Weiwei Zhang (Graduate Institute of International and Development Studies - Switzerland).

National courts and arbitration tribunals very often need to address scientific and/or technical aspects of a dispute. Arbitrators may rely on external competences - e.g., party-appointed experts or ex curiaexperts. However, nowadays there are also various areas of conflict resolution in which non-legal experts are part of the adjudicatory body, and internally provide with the required non-legal competences.[2] In the national judicial context, there are examples of specialized national courts -e.g., in the environmental dispute sector- where non-legal experts guarantee the non-legal expertise of judicial courts. In the international arbitral context, a compelling example of the appointment a scientific-technical expert as full arbitrator is provided by the Permanent Court of Arbitration in the inter-State Indus Waters Kishenganga case. Non-legal neutrals are likewise relevant in commercial arbitration and in the broader field of ADR. In specialized areas such as disputes regarding construction, energy, engineering, financial services, technology and applied science cases, resorting to non-lawyers to resolve these type of disputes is a widely-used practice. It is also very remarkable that in the WTO dispute settlement system, by end of 2014, 44% of the panellists appointed have no legal background and 3 out of the 25 Appellate Body members appointed so far have no law degree.[3]

Possible topics for submission to this special issue might include:

  • Drawbacks of the external competences provided by non-legal experts to courts and arbitration tribunals;
  • Reasons supporting the participation of non-legal adjudicators, providing internal competences in national and international disputes;
  • Whether there are particular case patterns that make the participation of non-legal adjudicators especially desirable;
  • Background and expertise of these non-legal adjudicators;
  • Relevant criteria -of technical, scientific, political or sociological nature- influencing the selection and appointment of non-legal adjudicators;
  • Empirical studies dealing with participation of non-legal adjudicators in national and international disputes;
  • Whether the intervention of non-legal adjudicators should be encouraged or limited;
  • Obstacles facing non-legal adjudicators involved in national and international disputes;
  • Whether the existence of an assisting Secretariat -e.g., the WTO Secretariat- or the absence thereof has an impact on the appointment of non-legal adjudicators;
  • Attitudes from the legal milieu regarding non-legal adjudicators; and
  • Legal and non-legal reforms required to foster -or limit- the participation of non-legal adjudicators in the national and international context.

We invite all of those interested in the subject to contribute to this special issue with unpublished or previously published articles, conference papers, research papers and case studies dealing with one or more of the above topics or any other relevant issue. Interdisciplinary contributions as well as those coming from non-legal adjudicators or scholars are also welcome.

This special issue will be edited by:

Katia Fach Gómez, LL.M.
Tenured Professor of International Arbitration and Private International Law at the University of Zaragoza (Spain).
Current grantee of the Humboldt Foundation (Forschungsstipendium für erfahrene Wissenschaftler)
View profile
Contact details here

Weiwei Zhang, LL.M.
PhD candidate, Graduate Institute of International and Development Studies (Geneva, Switzerland).
Former consultant, Sidley Austin LLP (Geneva office)

View profile
Contact details here

Proposals for papers should be submitted to the editors - contact details here - on or before 31 October 2016. Accepted papers should be submitted to the editors on or before 10 January 2017. Publication is expected in the second quarter of 2017.

[1] For the purpose of this special issue, non-legal adjudicators refer to adjudicators who do not possess a law degree.

[2] In this context, "internal competences" refer to the adjudicators' competences that make up the adjudicatory body, whereas "external competences" refer to competences that the adjudicators lack. Katia Fach Gómez, " The US-EU Transatlantic Trade and Investment Partnership: Should it Leave a Door Open for Non-Legal Arbitrators?", Conflict Resolution Quarterly (2016), forthcoming.

[3] Joost Pauwelyn, "The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus", The American Journal of International Law vol. 109, no. 4 (October 2015), pp. 761-805.

Feinäugle: The Rule of Law and Its Application to the United Nations

Clemens A. Feinäugle has published The Rule of Law and Its Application to the United Nations (Nomos 2016). Here's the abstract:
Internationale Organisationen gewinnen in der Globalisierung immer weiter an Bedeutung – und damit auch die Frage nach der Kontrolle ihres Handelns. Die UN-Generalversammlung hat kürzlich eine Erklärung verabschiedet, wonach rechtsstaatliche Prinzipien auch für die Vereinten Nationen selbst geltend sollen. Was aber bedeutet die „rule of law“ für die Vereinten Nationen? Was ist ihre Rechtsgrundlage, Definition und Wirkung? Wissenschaftler und Praktiker erörtern diese Fragen im vorliegenden Band und beleuchten die Relevanz der „rule of law“ für die verschiedenen Tätigkeitsbereiche der UN. Sie zeichnen den Status quo der Rechtsstaatlichkeit in den Vereinten Nationen nach und diskutieren ihre wachsende Bedeutung für die Zukunft der UN.