In Kiobel v. Royal Dutch Petroleum Co., the US Supreme Court dramatically restricted the scope of the Alien Tort Statute (ATS), holding that the statute does not permit victims of human rights abuses to sue foreign corporations for violations of international law that took place entirely abroad. We draw on three unique characteristics of the decision to estimate its effect on companies’ valuations. First, we show that extractive industry firms with headquarters abroad experienced larger cumulative abnormal returns following the ruling. By contrast, similar US-based firms—which generally remain subject to ATS liability—did not benefit from the decision. Second, we demonstrate that foreign-based firms benefited both on the final decision date and on the earlier date when the Court slated the case for reargument on the issue of extraterritoriality. Third, we show that this effect varied with the human rights records of host countries: mining firms based abroad with subsidiaries in countries with poor human rights records benefitted most. Although our results cannot resolve debates over the merit of ATS suits, we do show that the Kiobel decision mattered: for foreign firms, it decreased the cost of doing business under regimes with records of human rights violations.
Saturday, November 12, 2016
Chrstensen & Hausman: Measuring the Economic Effect of Alien Tort Statute Liability
Friday, November 11, 2016
New Issue: Human Rights Quarterly
- Tom Farer, I Cried for You, Argentina
- Jessica Montell, Learning from What Works: Strategic Analysis of the Achievements of the Israel-Palestine Human Rights Community
- Nadya Nedelsky, “The Struggle for the Memory of the Nation”: Post-Communist Slovakia and Its World War II Past
- Lara Stemple, Portia Karegeya, & Sofia Gruskin, Human Rights, Gender, and Infectious Disease: From HIV/AIDS to Ebola
- Susannah Willcox, Climate Change Inundation, Self-Determination, and Atoll Island States
- Andreas Schedler, The Criminal Community of Victims and Perpetrators: Cognitive Foundations of Citizen Detachment from Organized Violence in Mexico
- Wayne Sandholtz, United States Military Assistance and Human Rights
- Linda Cornett, Peter Haschke, & Mark Gibney, Introduction to the Societal Violence Scale: Physical Integrity Rights Violations and Nonstate Actors
- Tom Pegram & Katerina Linos, Architects of Their Own Making: National Human Rights Institutions and the United Nations
New Volume: Italian Yearbook of International Law
- In Memoriam
- M. Iovane, Benedetto Conforti
- G. Sacerdoti, Luigi Ferrari Bravo
- Focus: The Migratory Crisis: Current Challenges for International and European Law
- M. Gestri, EUNAVFOR Med: Fighting Migrant Smuggling Under UN Security Council Resolution 2240 (2015)
- F. Lenzerini, Sixty-Five Years and It Shows Them All: Proposals for Amending the 1951 Convention Relating to the Status of Refugees
- M.R. Mauro, Detention and Expulsion of Migrants: The Khlaifia v. Italy Case
- F. Casolari, The EU’s Hotspot Approach to Managing the Migration Crisis: A Blind Spot for International Responsibility?
- A. Liguori, Some Observations on the Legal Responsibility of States and International Organizations in the Extraterritorial Processing of Asylum Claims
- F. Staiano, The Protection of European Union Citizens Victims of Human Trafficking In Europe
- Notes and Comments
- S. Dromgoole, The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law: The 2015 Resolution of the Institut de Droit International
- G. Bartolini, Strengthening Compliance with International Humanitarian Law: The Failed Proposal for a “Meeting of States on International Humanitarian Law”
- F. Capone, Countering “Foreign Terrorist Fighters”: A Critical Appraisal of the Framework Established by the UN Security Council Resolutions
- S. Silingardi, The Protection of Private Investors’ Rights in Recent International Investment Agreements
- L. Borlini, The Achievements and Limits of Italian Anti-Corruption Legislation in Light of the International Legal Framework
- C. Bakker, The Paris Agreement on Climate Change: Balancing “Legal Force” and “Geographical Scope”
- M. Montini & F. Volpe, In Praise of Sustainability: The Encyclical Letter Laudato Sì and Its Legal-Economic Implications
Gazzini: Interpretation of International Investment Treaties
This book offers a systematic study of the interpretation of investment-related treaties – primarily bilateral investment treaties, the Energy Charter Treaty, Chapter XI NAFTA as well as relevant parts of Free Trade Agreements. The importance of interpretation in international law cannot be overstated and, indeed, most treaty claims adjudicated before investment arbitral tribunals have raised and continue to raise crucial and often complex issues of interpretation. The interpretation of investment treaties is governed by the Vienna Convention on the Law of Treaties (VCLT). The disputes relating to these treaties, however, are rather peculiar as they place multinational companies (or natural person) in opposition to sovereign governments.
Fundamental questions dealt with in the study include: Are investment treaties a special category of treaty for the purpose of interpretation? How have the rules on interpretation contained in the VCLT been applied in investment disputes? What are the main problems encountered in investment-related disputes? To what extent are the VCLT rules suited to the interpretation of investment treaties? Have tribunals developed new techniques concerning treaty interpretation? Are these techniques consistent with the VCLT? How can problems relating to interpretation be solved or minimised? How creative have arbitral tribunals been in interpreting investment treaties? Are States capable of keeping effective control over interpretation?
Thursday, November 10, 2016
Tsolakidis Das Aufhebungsverfahren nach Artikel 52 der ICSID-Konvention
Bereits seit den ersten beiden Aufhebungsentscheidungen, Klöckner I und Amco I, ist die inhaltliche Reichweite der Aufhebungsgründe aus Artikel 52 ICSID-Konvention Gegenstand umfangreicher Diskussionen in Schrifttum und Praxis. Im Mittelpunkt der Kritik steht eine häufig wahrgenommene Überschreitung der Grenze zwischen Aufhebung und Berufung. Vor diesem Hintergrund versucht dieses Werk, ein umfassendes Verständnis im Hinblick auf die Aufhebungsgründe der ICSID-Konvention zu vermitteln. Hierzu erfolgen insbesondere eine Auseinandersetzung mit der Entstehungsgeschichte der ICSID-Aufhebungsgründe sowie eine Analyse der bisherigen Aufhebungsrechtsprechung. Darüber hinaus werden im Schrifttum diskutierte Lösungsansätze erörtert und gegeneinander abgewogen. Abschließend wird ein eigener Lösungsansatz dargestellt, der auf der Unterscheidung zwischen Prüfungsgegenstand (subject of review) und Prüfungsmaßstab (standard of review) beruht.
From the very first cases, Klöckner I and Amco I, there has been considerable debate over the scope of Article 52 ICSID Convention. The focal point of contention is a perceived transgression of the line between annulment and appeal. Against this background, this book attempts to provide a comprehensive understanding of the annulment grounds under the ICSID Convention. To this end, it provides an overview of the evolution of annulment grounds for arbitral awards in international law and analyses the actual application of Article 52 ICSID Convention by ad hoc committees. Finally, it addresses whether and to what extent the perceived shortcomings of ICSID’s annulment process need to be remedied, thereby proposing that ad hoc committees, in applying the annulment grounds under the ICSID Convention, should distinguish more clearly between subject and standard of review.
Bianchi: International Law Theories: An Inquiry into Different Ways of Thinking
Two fish are swimming in a pond. "Do you know what?" the fish asks his friend. "No, tell me." "I was talking to a frog the other day. And he told me that we are surrounded by water!" His friend looks at him with great scepticism: "Water? What's that? Show me some water!"
This book is an attempt to stir up 'the water' the two fish are swimming in. It analyses the different theoretical approaches to international law and invites readers to engage with legal thinking in order to familiarize ourselves with the water all around us, of which we hardly have any perception.
International lawyers and students of international law often find themselves focused on the practice of the law rather than the underlying theory. The main aim of this book is to provide interested scholars, practitioners, graduate, and postgraduate students in international law and other disciplines with an introduction to various international legal theories, their genealogies, and critique. By providing an analytical approach to international legal theory, the book encourages readers to sharpen their sensitivity to these different methodologies and to consider how the presuppositions behind each theory affect analysis, research, and practice in international law. Theories of International Law is intended to assist students, scholars, and practitioners in reflecting more generally how knowledge is formed in the field.
Orford: NATO, Regionalism, and the Responsibility to Protect
The North Atlantic Treaty Organization (NATO) has been an important player in the emergence and consolidation of the responsibility to protect concept. This chapter considers the implications of the new and expansive role that NATO has claimed for itself in protecting civilians not only within but also beyond the North Atlantic area. Part 1 considers the initial mandate of NATO, and its relationship to the uneasy compromise between universalist and regionalist visions of international security embedded in the UN Charter. Part 2 examines the challenges posed to traditional understandings of the NATO mandate and area of operation by the ending of the Cold War, and analyses the Kosovo intervention as a turning point in the history both of NATO and of international law relating to intervention. Part 3 explores the use of the responsibility to protect concept to frame the Security Council resolutions mandating the use of force against Libya in 2011 and the role that NATO played in taking up that Security Council mandate. In the aftermath of the NATO operation in Libya, UK and US policymakers and commentators have begun to focus increasingly on the potential of regional actors as agents for realising the responsibility to protect. Part 4 concludes by critically assessing the turn to regionalism in the development of new policies and practices relating to civilian protection, and asks what that turn might mean for the universalist ambitions of the existing international legal order.
Wednesday, November 9, 2016
New Issue: International Affairs
- Anand Menon & John-Paul Salter, Brexit: initial reflections
- Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: counteracting the crisis
- Steven C. Roach, South Sudan: a volatile dynamic of accountability and peace
- Amitai Etzioni, Talking to the Muslim world: how, and with whom?
- Iver B. Neumann, Russia's Europe, 1991–2016: inferiority to superiority
- Elke Krahmann, NATO contracting in Afghanistan: the problem of principal–agent networks
- Efraim Inbar & Eitan Shamir, What after counter-insurgency? Raiding in zones of turmoil
- Jinghan Zeng, China's date with big data: will it strengthen or threaten authoritarian rule?
- Brantly Womack, Asymmetric parity: US–China relations in a multinodal world
- Giovanni Farese, The culture of investment-led international development: the Chatham House circle (1939–45) and lessons for today
- Joyce P. Kaufman, Women and children, war and peace: political agency in time of conflict
- Tim Benton, The many faces of food security
Conference: 2016 ASIL Midyear Meeting
Call for Papers: ANZSIL 25th Annual Conference
25th Annual Conference of the
Australian and New Zealand Society of International Law
Canberra, 29 June–1 July 2017
Sustaining the International Legal Order
in an Era of Rising Nationalism
The 25th ANZSIL Annual Conference will take place from Thursday, 29 June, to Saturday, 1 July 2017 at Hotel QT Canberra, 1 London Circuit, Canberra, Australia. The Conference Organising Committee now invites proposals for papers to be presented at the Conference, either individually, or as a panel.
Call for Papers and Panels: Deadline 24 February 2017
This Silver Jubilee ANZSIL Conference takes place amidst a resurgence of nationalism around the world. In Europe, political parties with anti-immigration platforms have gained popularity and Britain has voted to leave the European Union. In the United States, antiglobalisation and protectionist rhetoric fell on fertile electoral ground during the 2016 presidential election campaign. A wave of nationalist sentiment has also swept through Asia, leading to new arms races and strategic contests over Asia’s seas.
These developments lend some support to the notion, mistakenly attributed to Mark Twain, that while history does not repeat itself, it does rhyme. Indeed, the first ANZSIL Conference in 1993 was held at a time when the euphoria of the fall of the Berlin Wall was becoming a nationalist ‘hangover’: ethnic conflicts had engulfed parts of Europe and Samuel Huntington predicted a clash of civilisations.
In those immediate post-Cold War years, however, the international legal order was called upon to ensure stability through increased regionalism and multilateralism. Faced with today’s challenges, the role of international law seems less clear. States can certainly rely on international law processes – say, withdrawal from treaties and international organisations – in an attempt to turn back the clock on globalisation and multilateralism. But can this succeed? What are the alternatives? What role for international law? What future for global governance?
The Conference Organising Committee invites paper submissions reflecting on these themes in any area of public and private international law including (but not limited to): human rights; international humanitarian law; international trade law; international investment law; international financial regulation; the law of the sea, airspace and outer space; international environmental law; international criminal law; diplomatic and consular law. Submissions of all methodological persuasions are welcome, as are interdisciplinary papers connecting international law to the humanities, and social, natural and formal sciences.
The Conference Organising Committee also invites proposals for panels comprised of three to four papers in circumstances where the presenters concerned are already in conversation, or would find it useful to be so assembled. Proposed panels are expected to have a balanced gender representation. Also, panel proposals should endeavour to seek out a diversity of presenters in other respects, including their stage of career, type and place of work, discipline or sub-discipline, and so on.
In the tradition of ANZSIL Conferences, the Conference Organising Committee also invites and welcomes proposals on international law topics not connected to the conference theme.
Submission of Paper Proposals
Those proposing papers for presentation at the Conference should submit a single Word document comprised of:
- an abstract of no more than 250 words (papers with extracts in excess of 250 words will not be considered);
- a biographical note of no more than 200 words (for possible inclusion in the conference program); and
- a one-page curriculum vitae.
Submission of Panel Proposals
Those proposing panels for presentation at the Conference should submit a single document comprised of:
- a synopsis of no more than 250 words, explaining the rationale and theme of the panel; and
- three or four paper proposal, including in each case the information requested above for paper proposals.
The information requested above should be submitted in a single Word document by email to the ANZSIL Secretariat (firstname.lastname@example.org) no later than Friday, 24 February 2017. Please include the heading on your email message ‘ANZSIL Conference 2017 Proposal: [Your Name]’.
The Conference Organising Committee aims to inform applicants of the outcome of their proposals by the end of March 2017.
Further information about the Conference, including program and registration details, will be available on the ANZSIL website.
Call for Submissions: Melbourne Journal of International Law
Call for Submissions
The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions on areas of interest in international law for volume 18(1), to be published in July 2017.
For consideration for inclusion in the print issue of volume 18(1), authors should submit on or before 31 January 2017.
Any author wishing to have their article, commentary, case note or review considered for publication in MJIL must send their manuscript as a Microsoft Word document to email@example.com, along with a copy of the signed Publication Policy.
MJIL, Australia’s premier generalist international law journal, is a peer-reviewed academic journal based at Melbourne Law School in the University of Melbourne. MJIL publishes innovative scholarly research and critical examination of issues in international law.
MJIL’s coverage extends beyond public international law to articles addressing private international law, the intersection of international law with domestic law, global governance, and associated areas of transnational law.
MJIL will also consider interdisciplinary work which substantially contributes to international legal scholarship. If authors are uncertain whether their proposed topic is eligible for inclusion in MJIL they should contact the Editors at firstname.lastname@example.org.
Timing of Submissions
MJIL accepts submissions on a rolling basis and will publish advance electronic copies of articles prior to print publication. The submissions deadline for consideration in volume 18(1) is 31 January 2017.
Form of Submissions
MJIL accepts submissions in the form of articles, commentaries, case notes and book reviews. Articles should be in the vicinity of 10,000 words in length (excluding footnotes) and be an original and detailed contribution to international law scholarship. For instructions on submitting, please visit Instructions for Authors.
All articles, case notes and commentaries published in MJIL undertake a double blind refereeing process, involving at least two experts in that area of law. The Editors endeavour to decide on whether submissions will proceed to refereeing within two weeks of receipt. Although MJIL does not require exclusive submission, the Editors will not consider pieces that have been accepted or published elsewhere.
Review essays will be reviewed solely by the Editors prior to publication. Publishers’ suggestions for books to be reviewed should be sent to email@example.com, and hard copies of publications can be mailed to:
Melbourne Journal of International Law
Melbourne Law School
The University of Melbourne
VIC 3010 AUSTRALIA
Once accepted, authors will be contacted with more details on the editing and publication process. For further information, please contact the Editors at firstname.lastname@example.org.
Tuesday, November 8, 2016
Pauwelyn: Defenses and the Burden of Proof in International Law
Modern treaties include an increasingly complex set of rules, carve-outs and exceptions, ensuring, for example, the policy space of states. Their impact may be tempered also by outside instruments or custom. International law disputes, in turn, are increasingly fact-intensive, addressing, for example, complex scientific, environmental or economic questions. This double evolution enhances the role, in international litigation, of defenses and the importance of who carries the burden of proof for them. Some international tribunals may spend more time than necessary on questions of burden of proof and different types of claims in defense (dispute settlement at the World Trade Organization (WTO) comes to mind); most, however, tend to under-estimate the issue and do not devote it enough attention (for example, the International Court of Justice).
The burden of proving a defense is said to be on the party invoking it. As trite as this proposition may sound, in international law, it hides a far more complex litigation reality. Distinctions must be made both in terms of (i) types of claims in defense, and (ii) types of burdens this may impose (or not) on the respondent.
This paper distinguishes six different “claims in defense”: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions/alternative rules, (iv) absence of breach, (v) exceptions, and (vi) defenses under secondary rules.
For each of these six “claims in defense”, five types of “burdens” on the parties or tribunal are identified: (i) burden of raising a claim in defense, (ii) burden of production of evidence, (iii) burden of persuasion (or real burden of proof), (iv) standard or quantum of proof and (v) standard of review.
Although for some claims in defense some types of burden are on the defendant, this is certainly not the case for all.
Monday, November 7, 2016
Durkee: Astroturf Activism
Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes, secretly lobbying lawmakers through front groups that function as “astroturf” imitations of grassroots organizations. But, because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths this “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials, identifies harms, and develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules for aspiring international lobbyists creates the transparency problem I identify by prohibiting direct business access. I argue that the access rules have been rendered obsolete by globalization and fundamental changes in relationships between national governments and multinational business entities. To that historical critique, the Article adds an efficiency account and an evaluation of the law’s conceptual coherence that draws from pluralistic theory. The analysis gives rise to two potential avenues for reform. One reform would require enhanced disclosures, and the other would offer formal access to business entities, engaging business input but also exposing it. Either potential reform would update the law to better accommodate contemporary business roles in international governance. The stakes are high. On the one hand, business can offer lawmakers expertise and politically neutral solutions that will build better laws. On the other hand, unchecked business influence can obstruct and neutralize laws aimed at solving critical global problems.
Collins: The Institutional Problem in Modern International Law
Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focussed on international law's peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this 'institutional problem' has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believes that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law's decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory, than in practice.
New Issue: African Journal of International and Comparative Law
- Women and Poverty: Human Rights Perspectives
- Jaakko Kuosmanen, Meghan Campbell & Laura Hilly, Introduction – Women and Poverty: A Human Rights Perspective
- Sam Rugege, Women's Empowerment in Rwanda: The Respective Roles of Courts and Policy
- Sandra Fredman, Women and Poverty – A Human Rights Approach
- Jeni Klugman & Sarah Twigg, Gender at Work in Africa: Legal Constraints and Opportunities for Reform
- Juliana Masabo, Making the EAC Regime Beneficial to Female Labour Migrants
- Pamela Abbott & Dixon Malunda, The Promise and the Reality: Women's Rights in Rwanda
- Tabeth Masengu, Customary Law Inheritance: Lessons Learnt from Ramantele v. Mmusi and others
- Henrietta Mensa-Bonsu & Philip Attuquayefio, Rule of Law and the ‘Do You Know Who I Am’ Syndrome: Reflections on Political Security in Ghana
Sunday, November 6, 2016
Pauwelyn: The WTO 20 Years On
In this response to Robert Howse’s EJIL Foreword article, it is argued that Howse overestimates the extent and type of effectiveness and legitimacy achieved by the World Trade Organization’s (WTO) dispute settlement system to date. Moreover, the effectiveness and legitimacy the system has built up has not been achieved by the Appellate Body ‘distancing itself’ from WTO members or the Geneva-based trade policy elite but, rather, because panels and the Appellate Body have, for the most part, skilfully read, reflected and responded to underlying and evolving WTO member country preferences.
The system’s success flows not from Herculian ‘declarations of independence’ by the Appellate Body or ‘open conflict with the trade policy elite’. On the contrary, it is largely explained by the Appellate Body’s ‘judicial minimalism’ (to which Howse refers) and the subtle, informal symbiosis that has emerged between the WTO Secretariat, panels and the Appellate Body, on the one hand, and WTO members and the Geneva-based trade policy elite, on the other.