This chapter examines the so-called 'rule of necessary implication' in treaty interpretation by considering international judicial decisions in three different contexts: implied powers as reflected in decisions of the International Court of Justice and the International Criminal Court; implied jurisdiction in investment treaty arbitration; and necessary implication in the dispute settlement system of the World Trade Organization. In our view, the rule of necessary implication does not form part of customary international law per se but rather reflects treaty interpretation as contained in the Vienna Convention on the Law of Treaties and other customary rules of interpretation. Terms may be implied in a treaty, for example, pursuant to the principle of effectiveness, to give effect to the object and purpose of the treaty, to avoid an absurd result, or to conform with the intentions of the treaty parties.
Sunday, December 31, 2017
Mitchell & Voon: The Rule of Necessary Implication
Puig & Strezhnev: Affiliation Bias in Arbitration: An Experimental Approach
A characteristic feature of arbitration, a growing form of legal adjudication, is that each disputing party appoints an arbitrator. Commentators, however, suggest that party-appointed arbitrators tend to be biased in favor of their appointers. Evaluating this claim from data on historical disputes is problematic because of nonrandom selection of arbitrators. Here we use a novel experimental approach to estimate the causal effect of the appointing party. Using survey experiments with arbitration experts around the world, we show that professional arbitrators suffer from affiliation effects—a cognitive predisposition to favor the appointing party. At a methodological level, we offer a solution to the problem of measuring this effect when credible observational designs are lacking.
New Issue: Questions of International Law
- Determining the existence and content of a dispute: in search for legal criteria
- Introduced by Paolo Palchetti
- Beatrice I. Bonafé, Establishing the Existence of a Dispute before the International Court of Justice: Drawbacks and Implications
- Karin Oellers-Frahm, The awareness requirement and its problematic consequences for the Court’s jurisdiction
Saturday, December 30, 2017
Morosini & Sanchez Badin: Reconceptualizing International Investment Law from the Global South
- Michelle Ratton Sanchez Badin & Fabio Morosini, Reconceptualizing international investment law from the global South
- Vivienne Bath, The South and alternative models of trade and investment regulation – Chinese investment and approaches to international investment agreements
- Rodrigo Polanco Lazo, The Chilean experience in South-South investment and trade agreements
- Vivienne Bath, Australia and the Asia-Pacific: the regulation of investment flows into Australia and the role of free trade agreements
- James Nedumpara, India's trade and investment agreements: striking a balance between investor protection rights and development concerns
- Michelle Ratton Sanchez Badin & Fabio Morosini, Navigating between resistance and conformity with the international investment regime: the Brazilian agreements on cooperation and facilitation of investments (ACFIs)
- Malebakeng Agnes Forere, The New South African protection of investment act: striking a balance between attraction of FDI and redressing the Apartheid Legacies
- Andrew Lang & Nicolás Marcelo Perrone, Experimenting with international investment law: initiatives from the Global South
New Issue: Journal of International Criminal Justice
- In Memoriam
- In Memoriam: M. Cherif Bassiouni,1937–2017
- Yvonne McDermott, The International Criminal Court’s Chambers Practice Manual: Towards a Return to Judicial Law Making in International Criminal Procedure?
- Rosemary Grey, The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective
- Emily Haslam & Rod Edmunds, Whose Number is it Anyway?: Common Legal Representation, Consultations and the ‘Statistical Victim’
- Olga Kavran, International Criminal Courts and the Right to Information
- Cases Before International Courts and Tribunals
- Alexander Heinze, The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: A Diamond Made Under Pressure?
- National Prosecution of International Crimes: Legislation and Cases
- Hector Olasolo & Joel M F Ramirez Mendoza, The Colombian Integrated System of Truth, Justice, Reparation and Non-Repetition
New Issue: Revista Iberoamericana de Derecho Internacional y de la Integración
Friday, December 29, 2017
New Issue: International Legal Materials
- Prosecutor v. Al-Bashir: Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (Int'l Crim. Ct.), with introductory note by Max du Plessis
- Zongo v. Burkina Faso, Judgment & Judgment on Reparations (Afr. Ct. H.P.R.), with introductory note by Oliver Windridge
- United Nations Security Council Resolutions 2199 & 2253, with introductory note by Jimmy Gurulé
- United Nations Security Council Resolutions 2321, 2371, & 2375, with introductory note by Meredith Rathbone and Pete Jeydel
- Presidential Policy Guidance: Procedures for Approving Direct Action Against Terrorist Targets Located Outside The United States and Areas of Active Hostilities, with introductory note by Rita Siemion
Thursday, December 28, 2017
New Issue: Asian International Arbitration Journal
- Kenneth Beale & Nelson Goh, Due Process Challenges in Asia: An Emerging High Bar
- João Ribeiro & Shunsuke Sato, Transparency in Investment Arbitration: Its Importance for Japan
- Ikram Ullah, Judicial Review of Arbitral Award in Pakistan
- Luxi Gan & Shudong Yang, Issues in the Recognition and Enforcement of Foreign Arbitral Awards in China
- Varun Mansinghka, Third-Party Funding in International Commercial Arbitration and its Impact on Independence of Arbitrators: An Indian Perspective
Mälksoo & Benedek: Russia and the European Court of Human Rights: The Strasbourg Effect
- Lauri Mälksoo, Introduction: Russia, Strasbourg and the paradox of a human rights backlash
- Petra Roter, Russia in the Council of Europe: participation a la carte
- Anton Burkov, The use of European human rights law in Russian courts
- Sergei Marochkin, ECtHR and the Russian Constitutional Court: duet or duel?
- Alexei Trochev, The Russian Constitutional Court and the Strasbourg court: judicial pragmatism in a dual state
- Mikhail Antonov, Philosophy behind human rights: Valery Zorkin vs the West
- Bill Bowring, Russia's cases in the ECtHR and the question of socialization
- Elisabet Fura & Rait Maruste, Russia's impact on the Strasbourg system: as seen by two former judges of the European Court of Human Rights
- Philip Leach, Egregious human rights violations in Chechnya: the continuing pursuit of justice
- Vladislav Starzhenetskiy, Property rights in Russia: reconsidering the socialist legal tradition
- Dmitri Bartenev, LGBT rights in Russia and European human rights standards
- Benedikt Harzl, Nativist ideological responses to European/liberal human rights discourses in contemporary Russia
- Wolfgang Benedek, General conclusions
Wednesday, December 27, 2017
Gill, Fleck, Boothby, & Vanheusden: Leuven Manual on the International Law Applicable to Peace Operations
The Leuven Manual is the authoritative, comprehensive overview of the rules that are to be followed in peace operations conducted by the United Nations, the European Union, NATO, the African Union and other organisations, with detailed commentary on best practice in relation to those rules. Topics covered include human rights, humanitarian law, gender aspects, the use of force and detention by peacekeepers, the protection of civilians, and the relevance of the laws of the host State. The international group of expert authors includes leading academics, together with military officers and policy officials with practical experience in contemporary peace operations, supported in an individual capacity by input from experts working for the UN, the African Union, NATO, and the International Committee of the Red Cross. This volume is intended to be of assistance to states and international organisations involved in the planning and conduct of peace operations, and practitioners and academia.
Cameron: The Privatization of Peacekeeping: Exploring Limits and Responsibility under International Law
Private military and security companies (PMSCs) have been used in every peace operation since 1990, and reliance on them is increasing at a time when peace operations themselves are becoming ever more complex. This book provides an essential foundation for the emerging debate on the use of PMSCs in this context. It clarifies key issues such as whether their use complies with the principles of peacekeeping, outlines the implications of the status of private contractors as non-combatants under international humanitarian law, and identifies potential problems in holding states and international organizations responsible for their unlawful acts. Written as a clarion call for greater transparency, this book aims to inform the discussion to ensure that international lawyers and policy makers ask the right questions and take the necessary steps so that states and international organizations respect the law when endeavouring to keep peace in an increasingly privatized world.
Tuesday, December 26, 2017
New Issue: Manchester Journal of International Economic Law
- Aniruddha Rajput, Safeguarding India's Regulatory Autonomy: Objectives, Process and Possible Outcomes
- David Collins, The UK Should Include ISDS in its Post-Brexit International Investment Agreements
- Noam Zamir, The Police Powers Doctrine in International Investment Law
- Oscar C.H. Yang, Continuing Anti-Dumping Investigations despite De Minimis Dumping Margins: The Case of Canada - Welded Pipe
- Marina Fyrigou-Koulouri, Sovereign Debt Restructuring: Is There a Place for International Investment Arbitration?
Symposium: The Psychology of International Law
Methymaki & Tzanakopoulos: Freedom With Their Exception: Jurisdiction and Immunity as Rule and Exception
The relationship between the rules on state jurisdiction and sovereign immunity, as well as the rules of sovereign immunity between themselves, has been the subject of long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts are barred from exercising such jurisdiction over acts of another sovereign. This latter rule has its own exceptions, namely that a foreign state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.
Christensen: The Social Structure of Transnational Criminal Justice: A Cluster of Spaces Beyond National Borders
This article analyses elements of the social structure of transnational criminal justice. The main goal of the analysis is to investigate, if the terminology crafted around transnational criminal law as a distinct legal system corresponds to the social structuration of this space as it can be observed in the justice practices that drive it. To enable such an analysis, the article contributes both a theoretical discussion of how best to conceptualise the social spaces of transnational criminal justice as well as, more cautiously, an empirical investigation into the workings of these spaces, focusing the fight against drugs, terrorism, corruption and ecological crimes. Building conceptually on Pierre Bourdieu’s field theory, the analytical focal point of the article is the practices of transnational criminal justice and the professionals who are active in this space. This raises crucial questions of how the social practices of transnational criminal justice structures usages and developments of the law. Based on the identification and analysis of four separate but interrelated spaces of practice, the article argues that our theoretical understanding of transnational criminal justice and law needs to be recalibrated to take into account the different ways in which it is mobilised to create either security or good governance.
Monday, December 25, 2017
New Issue: Journal of East Asia and International Law
- Issue Focus: Legal Aspects of Renewable Energy Development
- Weidong Yang, Problems and Adjustments of Renewable Energy Legislation in China
- Kenji Asano, Enactment and Enforcing Processes of the Japanese Feed in Tariff Law: Difficulties for Maximizing Renewable's Diffusion while Minimizing National Burden
- Gary Lilienthal & Nehaluddin Ahmad, Communis Opinio and Jus Cogens: A Critical Review on Pro-Torture Law and Policy Argument
- Yong Wang, China's Practice in Treaty Reservations since 1949: A Critical Review
- Notes & Comments
- Lin Zhang & Lingsheng Zhang, Research and Teaching of International Law in Contemporary China: A Landscape Sketch
- Eric Yong Joong Lee, Will Trump's Military Option against North Korea Work? Legal and Political Restraints
- Regional Focus & Controversies: International Law and Natural Phenomenon
- Natalia Y. Puspita, Natural Disaster in Armed Conflict Area: The Implementation of the Doctrine of Responsibility to Protect in the ASEAN
- Hao Shen, International Deep Seabed Mining and China's Legislative Commitment to Marine Environmental Protection
- East Asian Observer
- Sunjoo Kang & Younjoo Kim & Insook Kim, Refugee's Rights to HIV/AIDS Healthcare in Korea under the UNAIDS Guidelines
- N. Kala & Y. Abaydeldinov & T. Furman & A. Ponomarev, The World Tourism Organization for Countering Terrorist Threats
Sunday, December 24, 2017
New Issue: Diritti umani e diritto internazionale
- Pasquale De Sena, Dignità umana in senso oggettivo e diritto internazionale
- Concetta Maria Pontecorvo, La gestione internazionale delle emergenze sanitarie globali alla luce del caso Ebola: quid novi?
- Silvia Favalli, La Convenzione ONU sui diritti delle persone con disabilità nella giurisprudenza di Strasburgo: considerazioni a margine della sentenza Guberina c. Croazia
- Giustizia transizionale: ruolo delle vittime e ammissibilità di misure di amnistia o di riduzione delle sanzioni in caso di gravi violazioni dei diritti umani
- Elena Carpanelli, Transitional Justice in Colombia: Shadows and Lights of the Agreement on Victims of the Conflict
- Gabriella Citroni, Rodríguez-Bronchú Carceller, Transitional Justice in Nepal: From Promise of Redress to New Tool for Exclusion?
- Annalisa Zamburlini, El Salvador, dai massacri alla ricerca di giustizia: il ruolo della società civile
- Marina Castellaneta, La Corte europea dei diritti umani e l’applicazione del principio dell’abuso del diritto nei casi di hate speech
- Ludovica Poli, Infondatezza manifesta… ma solo per alcuni: riflessioni a margine del caso Charlie Gard
- Alberto Miglio, La condizionalità di fronte alla Corte di giustizia
Saturday, December 23, 2017
Lamp: Legislative Innovation in the Trade and Climate Regimes
The conclusion of the Trade Facilitation Agreement in 2013 and the Paris Agreement in 2015 represent significant breakthroughs for the multilateral trade and climate regimes, respectively. The chapter explores the innovations in lawmaking principles and techniques that made the conclusion of these agreements possible. To this end, the chapter develops a framework for the comparative analysis of multilateral lawmaking along five dimensions: the principles pursuant to which the participants in lawmaking assume commitments, the techniques that the participants employ to generate legal obligations, the modalities that they use to establish the form and scope of each individual participant’s commitments, the legal form of these commitments, and their potential effects. The chapter discusses the recent experience of the trade and climate regimes to shed light on the benefits and drawbacks of competing approaches to multilateral lawmaking along each of these dimensions.
New Issue: Journal of International Organizations Studies
- John Mathiason, The United Nations at the Country Level: Reassessing Operational Activities for Development
- Patrick J. Tiefenbacher, The “Amazon Moment”—A New Business Model for the United Nations at the Country Level
- Annett Richter, The Norm Life Cycle of UN Reform: “Delivering as One and UN System-Wide Coherence”
- Luciana Campos, The “Delivering as One” UN Initiative: Reforming the United Nations System at the Country Level
New Issue: Journal of Conflict & Security Law
- Ray Murphy, The United Nations Mission in South Sudan and the Protection of Civilians
- Harry Aitken, The Security Council and International Law Enforcement: A Kelsenian Perspective on Civilian Protection Peacekeeping Mandates
- Shavana Musa, The Saudi-Led Coalition in Yemen, Arms Exports and Human Rights: Prevention Is Better Than Cure
- Catherine Connolly, ‘Necessity Knows no Law’: The Resurrection of Kriegsraison through the US Targeted Killing Programme
- Lenneke Sprik, Command Responsibility in Peacekeeping Missions: Normative Obligations of Protection in a Criminal Law Environment
- Clive Walker, The War of Words with Terrorism: An Assessment of Three Approaches to Pursue and Prevent
Engle: Feminist Governance and International Law: From Liberal to Carceral Feminism
Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation.
The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions.
Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.
Friday, December 22, 2017
Chechi & Renold: Cultural Heritage Law and Ethics: Mapping Recent Developments
- Lucas Lixinski & Vassilis Tzevelekos, The Strained, Elusive and Wide-Ranging Relationship between International Cultural Heritage Law and the Law of State Responsibility: From Collective Enforcement to Concurrent Responsibility
- Wenke Brückner, “Cultural Genocide” and the International Criminal Court. The Possibilities and Limits of the Protection of Cultural Heritage
- Sabine von Schorlemer, The Usefulness of the “Responsibility To Protect” as Applied to the Protection of Cultural Heritage in Armed Conflict
- Gareth Fletcher, “Scores on the Doors”: Establishing a Certificate of Virtue Framework for Future Art Market Regulation
- Sophie Vigneron, Codes of Conduct and the Regulation of the Art Trade in England: Between Hard and Soft Law
Burri: International Law and Artificial Intelligence
This paper proposes five arguments about major aspects of artificial intelligence and their implications for international law. The aspects are: automation, personhood, weapons systems, control, and standardization.
New Additions to the UN Audiovisual Library of International Law
Thursday, December 21, 2017
AJIL Unbound Symposium: Global Animal Law, Part II: The Case for Global Legal Animal Studies
Call for Papers: The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law
The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law
The Interest Group on the History of International Law seeks abstracts for an Agora Proposal to be submitted to the European Society of International Law for its 2018 Conference on ‘International Law and Universality’ to be held 13–15 September 2018 in Manchester.
Universality’s flip side is the local and the particular. Locations are inescapable parts of any idea of universality. People are positioned in time, place, class, gender, race, ethnicity, indigeneity, and sexuality. These particulars formed familiar coordinates for locating different peoples within ideas of the universal; at the bottom of hierarchies — subsumed, excluded, ignored, erased.
The beginning of international legal history’s recent renaissance lay in exploring one assertion of universality — the liberal-democratic progressive narrative — and Europe as its location, and white male jurists as its particular. Later advances began to unpack the imperial, racial and class aspects of international law’s pasts, to understand how that universal spread to many localities. Some of the most recent and exciting historical projects have begun to draw our attention to the everyday, to materiality, objects, and archives beyond the legal, to tell personal, hidden and revealing histories of international law.
And yet, international legal history has so far been largely resistant to more radical forms of history that spurred so many of the main innovations in twentieth century historiography: social histories, women’s histories, labour histories, and histories of resistance and radicalism. Other themes at the 2018 ESIL Conference invite papers on universality and particularism’s histories at the juridical, conceptual and theoretical levels. This Agora seeks to expand that universe in the direction of something more local, personal and radical — to uncover histories that have been hidden within these longues durées and big trends.
Fitting with and interrogating the theme of universality, we seek papers that look for the local in the universal and the legal, from across the globe and from any period of historical inquiry. We are looking to share the hidden stories, archival gems, and accounts of everyday lives and movements that illuminate and contest the universal in new and powerful ways. It is particularly fitting that we do this in Manchester, a city that was one major birthplace of the industrial revolution, the labour movement, and the suffragette movement.Issues arising within this theme might include, but are not limited to:
- The role of women and women’s movements in constructing, challenging and critiquing the ideas of universality in international law.
- Labour and international law: competing universals of solidarity and capitalism.
- Race, ethnicity, indigeneity, intersectionality and the stories of challenging, rethinking and repurposing the universal.
- Rebellions, radicalism and resistance: histories of popular debate, protests and discord over universality in law.
- Shifting the ‘turn to biography’ in international legal histories: introducing the field to new lives and new, untold stories.
- The significance of rural areas, cities, communities, migration and labour flows for rethinking law, the international, and the universal.
- Submit an abstract of no more than 800 words, submitted by email to firstname.lastname@example.org by 17 January 2018. No late submissions will be considered.
- An interest group subcommittee will then blind review the abstracts and finalise the proposed format. The likely format will be a panel of 4 papers, but this may change depending on abstracts received.
- Selected abstracts will be sent, with the Agora theme, to the ESIL 2018 Conference organisers for their consideration by 31 January 2018. If the proposal is successful, full papers (minimum 3000 words) will need to be submitted by 15 July 2018 for circulation to other Agora participants.
- We encourage proposals from scholars in any discipline — legal or not — and at any stage of career. Selection will be based on scholarly merit and with regard to producing an engaging workshop, without prejudice to gender, seniority, language or geographical location
- Please circulate this call to anyone you think may be interested.
- Please direct any questions to Martin Clark (email@example.com) or Markus Beham (firstname.lastname@example.org).
New Issue: International Relations
- Michael Byers, Crises and international cooperation: an Arctic case study
- Brian Christopher Rathbun, Subvert the dominant paradigm: a critical analysis of rationalism’s status as a paradigm of International Relations
- Benjamin R Banta, Leveraging the idea of ‘Humanitarian War’
- Arash Heydarian Pashakhanlou, Fully integrated content analysis in International Relations
- Ali Balci, Writing the world into counter-hegemony: identity, power, and ‘foreign policy’ in ethnic movements
- Seo-Hyun Park, Rhetorical entrapment and the politics of alliance cooperation: explaining divergent outcomes in Japan and South Korea during the Iraq War
- James Turner Johnson, Three perspectives on just war
Tams: Ways Out of the Marshland: Investment Lawyers and the Law of State Succession
This is the manuscript of a paper given at the Frankfurt Investment Law Workshop 2016, which discusses the interrelationship between the general rules governing State succession on the one hand, and the particular approach to state succession adopted by investment lawyers. The paper proceeds from recent, high-profile cases such as SANUM or WORLD WIDE MINERALS and situates these in an analytical framework.
Tanzi: The Consolidation of International Water Law
The present analysis will consider first the basic principles of the international water law discourse as consolidated by the two Conventions, and then their respective scope ratione materiae and ratione personae. The ensuing assessments will be made within the framework of both treaty and customary law with a view to maximizing the practical guideline function of the two instruments for the conduct of co-riparian States in their mutual relations, and in relation to a transboundary watercourse. Such a function is dual in nature: the regulatory framework of the two Conventions requires both the adoption of domestic legislative and administrative measures on the use, protection and conservation of watercourses, and the negotiation of new watercourse agreements with a view to further cooperation on specific international watercourses.
Tzeng: Appointing Authorities: Self-Appointment, Party Appointment, and Non-Appointment
Appointing authorities wield tremendous power in international arbitration. This Chapter examines three phenomena concerning appointing authorities that have occurred in recent arbitrations: self-appointment (where the appointing authority appoints him or herself to the tribunal); party appointment (where one or both parties appoint the appointing authority to the tribunal); and non-appointment (where the appointing authority refuses to appoint an arbitrator). The Chapter concludes that, in light of the significant powers granted to appointing authorities, greater attention should be directed towards regulating their conduct.
New Issue: Journal of the History of International Law / Revue d'histoire du droit international
- Claire Vergerio, Alberico Gentili’s De iure belli: An Absolutist’s Attempt to Reconcile the jus gentium and the Reason of State Tradition
- Jeffrey T. Tirshfield, The Socio-Historical Case for the Existence of a Nexus Requirement in the Application of Universal Jurisdiction to Maritime Piracy
- Robert Schütze, From the “Closed” to the “Open” Commercial State: A Very Brief History of International Economic Law
Wednesday, December 20, 2017
Ragone: The Catalan Referendum on Independence: A Constitutional Conundrum
Meguro: Customary International Law and Non-State Actors: Between Anthropomorphism and Artificial Unity
This chapter seeks to shed light on the role of non-state actors in custom-making processes. It does so by repudiating the dominant understanding of opinio juris and practice within the two-element variant of the doctrine of customary law that has informed practice and scholarship since the 1920s. It shows that dominant approaches to opinio juris and practice are indifferent to the role of non-state actors by virtue of constructions that are highly questionable. Section 1 sketches the dominant understanding of two elements of customary international law. Section 2 discusses the limitations of the dominant understanding of opinio juris by showing the extent to which the anthropomorphic concept of opinio juris fails to perform the functions assigned to it. In section 3, the attention turns to practice which contains a greater variety of approaches. This section particularly emphasizes the role of domestic non-state actors in the creation of international norms that shapes State practice, and increasing role of international organizations to strengthen the grips of the domestic actors in creating international customary norms through the member states. This chapter ends with a few concluding remarks about the general implications of the approach promoted here for the doctrine of customary law as a whole.
Eslava, Fakhri, & Nesiah: Bandung, Global History, and International Law: Critical Pasts and Pending Futures
- Luis Eslava, Michael Fakhri, & Vasuki Nesiah, The Spirit of Bandung
- B.S. Chimni, Anti-Imperialism: Then and Now
- Rose Sydney Parfitt, Newer Is Truer: Time, Space, and Subjectivity at the Bandung Conference
- Fredrik Petersson, From Versailles to Bandung: The Interwar Origins of Anticolonialism
- Samera Esmeir, Bandung: Reflections on the Sea, the World, and Colonialism
- Mohammad Shahabuddin, Nationalism, Imperialism, and Bandung: Nineteenth-Century Japan as a Prelude
- Adil Hasan Khan, Ghostly Visitations: “Questioning Heirs” and the Tragic Tasks of Narrating Bandung Futures
- Ibrahim J. Gassama, Bandung 1955: The Deceit and the Conceit
- Vik Kanwar, Not a Place, but a Project: Bandung, TWAIL, and the Aesthetics of Thirdness
- Katharine McGregor & Vannessa Hearman, Challenging the Lifeline of Imperialism: Reassessing Afro-Asian Solidarity and Related Activism in the Decade 1955–1965
- Chen Yifeng, Bandung, China, and the Making of World Order in East Asia
- Boris N. Mamlyuk, Decolonization as a Cold War Imperative: Bandung and the Soviets
- Akbar Rasulov, Central Asia as an Object of Orientalist Narratives in the Age of Bandung
- Liliana Obregón, Latin America during the Bandung Era: Anti-Imperialist Movements vs. Anti-Communist States
- John Reynolds, Peripheral Parallels? Europe’s Edges and the World of Bandung
- Germán Medardo Sandoval Trigo, The Bandung Conference and Latin America: A Decolonial Dialogue with Oscar Correas
- Zoran Oklopcic, A Triple Struggle: Nonalignment, Yugoslavia, and National, Social, and Geopolitical Emancipation
- Umut Özsu, “Let Us First of All Have Unity among Us”: Bandung, International Law, and the Empty Politics of Solidarity
- Ratna Kapur, The Colonial Debris of Bandung: Equality and Facilitating the Rise of the Hindu Right in India
- Cyra Akila Choudhury, From Bandung 1955 to Bangladesh 1971: Postcolonial SelfDetermination and Third World Failures in South Asia
- Mai Taha, Reimagining Bandung for Women at Work in Egypt: Law and the Woman between the Factory and the “Social Factory”
- Luwam Dirar, Rethinking the Concept of Colonialism in Bandung and Its African Union Aftermath
- Sylvia Wairimu Kang’ara, China and Africa: Development, Land, and the Colonial Legacy
- Noha Aboueldahab, Bandung’s Legacy for the Arab Spring
- Rebecca LaForgia, Applying the Memory of Bandung: Lessons from Australia’s Negative Case Study
- Fabia Fernandes Carvalho Veçoso, Bandung in the Shadow: The Brazilian Experience
- Hani Sayed, The Humanization of the Third World
- Aziza Ahmed, Bandung’s Legacy: Solidarity and Contestation in Global Women’s Rights
- Karin Mickelson & Usha Natarajan, Reflections on Rhetoric and Rage: Bandung and Environmental Injustice
- Priya S. Gupta, From Statesmen to Technocrats to Financiers: Development Agents in the Third World
- Julio Faundez, Between Bandung and Doha: International Economic Law and Developing Countries
- Obiora Chinedu Okafor, The Bandung Ethic and International Human Rights Praxis: Yesterday, Today, and Tomorrow
- Antony Anghie, Bandung and the Origins of Third World Sovereignty
- Sundhya Pahuja, Letters from Bandung: Encounters with Another International Law
- Charlotte Peevers, Altering International Law: Nasser, Bandung, and the Suez Crisis
- Nahed Samour, Palestine at Bandung: The Longwinded Start of a Reimagined International Law
- Anthony Paul Farley, “Must Have Been Love”: The Nonaligned Future of A Warm December
- Arif Havas Oegroseno, The Bandung Declaration in the Twenty-First Century: Are We There Yet?
- Hengameh Saberi, Virtue Pedagogy and International Law Teaching
- Partha Chatterjee, The Legacy of Bandung
Tuesday, December 19, 2017
Call for Papers: Comparative International Law (Reminder)
Seibert-Fohr: The Human Rights Committee - Legacy and Promise
The UN Human Rights Committee, which is recognized for its legal expertise in human rights law, belongs to the most prominent institutions for the oversight of international human rights. The Committee was the first universal body with a mandate to examine individual communications. Among the international treaty bodies it continues to receive the highest number of individual petitions. Through the course of its four decades of existence, the Committee has developed a considerable body of jurisprudence affecting the interpretation of human rights by domestic and international institutions, including the International Court of Justice.
The present book chapter introduces readers to the work of this quasi-judicial expert body from the perspective of a Committee member. It locates the Committee’s institutional place in the overall structure of the human rights system and describes current challenges and developments. The author offers an in-depth assessment of the Committee’s legacy and makes proposals on how the Committee can refine its procedures and methodology. In times of increasing challenges for international human rights, the Committee’s principal task is to defend the integrity of the Covenant, maintain a norm-based dialogue with the States parties and render the Covenant’s interpretation truly universal. In absence of an international human rights court, the Committee needs to preserve its legacy as a central legal player in universal human rights protection, reinforce the legitimacy of its decisions and exercise its functions in accordance with its mandate as a body composed of legally experienced and independent experts. This process also requires the involvement of other stakeholders and States parties who carry the responsibility for the Committee’s composition, independence and structural capacity. The author reminds States parties of their role as trustees of the universal protection of human rights and calls for an active complementarity approach in line with their erga omnes partes obligations. States parties are required to increase their commitments towards treaty implementation and enforcement both domestically and internationally. The author makes proposals on how to procedurally link the international and the domestic level and how States can play a more active role in the international enforcement of human rights.
New Issue: International Organization
- Michael G. Findley, Adam S. Harris, Helen V. Milner, & Daniel L. Nielson, Who Controls Foreign Aid? Elite versus Public Perceptions of Donor Influence in Aid-Dependent Uganda
- Erica Owen & Noel P. Johnston, Occupation and the Political Economy of Trade: Job Routineness, Offshorability, and Protectionist Sentiment
- Roseanne W. McManus & Keren Yarhi-Milo, The Logic of “Offstage” Signaling: Domestic Politics, Regime Type, and Major Power-Protégé Relations
- Sarah Blodgett Bermeo, Aid Allocation and Targeted Development in an Increasingly Connected World
- Bernhard Reinsberg, Katharina Michaelowa, & Stephen Knack, Which Donors, Which Funds? Bilateral Donors' Choice of Multilateral Funds at the World Bank
- Research Notes
- Jeffrey A. Friedman, Jennifer S. Lerner, Richard Zeckhauser, Behavioral Consequences of Probabilistic Precision: Experimental Evidence from National Security Professionals
- Diana C. Mutz, Eunji Kim, The Impact of In-group Favoritism on Trade Preferences
- Review Essay
- Christian Reus-Smit, Cultural Diversity and International Order
New Issue: Netherlands International Law Review
- J.F.R. Boddens Hosang, The Effects of Paradigm Shifts on the Rules on the Use of Force in Military Operations
- Martha M. Bradley, Expanding the Borders of Common Article 3 in Non-International Armed Conflicts: Amending Its Geographical Application Through Subsequent Practice?
- Nicole J. Siller, Human Trafficking in International Law Before the Palermo Protocol
Conference: 112th ASIL Annual Meeting
Practice reifies and animates international law, shaping what it means, how it is applied, and how effectively it achieves the diverse goals of those who invoke it. Practice is constitutive and contentious. It looks both backward and forward.
The 2018 Annual Meeting will focus on international law in action: how and by whom international law is made, shaped, and carried out, both formally and informally; how it is taught; how the practices of international institutions, law firms, companies, not-for-profit organizations, government offices, and militaries generate international rules; how and in what ways states and other actors interact; and how participants deploy international legal arguments. The meeting will consider how international legal practice has changed and is continuing to change in response to geopolitical shifts and contemporary challenges, including demands for greater transparency, accountability, legitimacy, and inclusion.
At its 112th Annual Meeting, the American Society of International Law invites policymakers, practitioners, academics across the disciplinary spectrum, and students to reflect on the broad manifestations, sources, and implications of international legal practice.
Monday, December 18, 2017
New Volume: German Yearbook of International Law
- Forum: Paris Climate Agreement
- Jorge E. Viñuales, The Paris Agreement on Climate Change: Less is More
- Focus: Frozen Conflicts: How Does PIL Deal with Them?
- Thomas D. Grant, Three Years After Annexation: Of ›Frozen Conflicts‹ and How to Characterise Crimea
- Milena Sterio, Self-Determination and Secession Under International Law: Nagorno-Karabakh
- Christopher J. Borgen, Moldova: Law and Complex Crises in a Systemic Borderland
- Enrico Milano, Unfreezing and Settling the Conflict over Kosovo
- Juan Soroeta, The Conflict in Western Sahara After Forty Years of Occupation: International Law versus Realpolitik
- Nikos Skoutaris, The Paradox of the Europeanisation of Intrastate Conflicts
- General Articles
- Andreas Kulick, From Problem to Opportunity?: An Analytical Framework for Vagueness and Ambiguity in International Law
- Lando Kirchmair, What Came First: The Obligation or the Belief? A Renaissance of Consensus Theory to Make the Normative Foundations of Customary International Law More Tangible
- Paul Behrens, The Crime of Genocide and the Problem of Subjective Substantiality
- Philipp Janig & Sarah Mansour Fallah, Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment
- Christoph Schewe, Clearing Up? Transparency in the Dispute Settlement of International Trade Agreements
- Lilian Richieri Hanania, The Social Dimension of Sustainable Development in EU Trade Agreements: Strengthening International Labour Standards
- German Practice
- Thomas Giegerich, In Germany International Law may be Honoured in the Breach: The Federal Constitutional Court Gives the Legislature Carte Blanche to Override Treaties
- Felix Telschow, »Gliding O'er All«: Human Dignity and Constitutional Identity in the Federal Constitutional Court's Recent
- Mareike Nürnberg & David Schenk, Deployment of Soldiers for the Protection of Nationals Abroad and Inner-State Justification: The German Federal Constitutional Court's Decision on the Operation of German Military in Libya
- Berenike Schriewer, The German Federal Constitutional Court's First Reference for a Preliminary Ruling to the European Court of Justice: A 2016 Follow-Up
- Isabell Böhm, Genocide in Rwanda: The Judgment of Frankfurt's Higher Regional Court Against a Former Rwandan Mayor of 29 December 2015
- Jens Kaiser, German Chairmanship of the Organization for Security and Cooperation in Europe in 2016
- Avril Rushe & Joschka Peters-Wunnenberg, Are the Maghreb States ›Safe‹?
- Sebastian Tho Pesch, Finding a Solution Without Addressing the Problem: The 2014 Ems-Dollard Treaty
- Marcus Schladebach, The Germanwings Disaster: Legal Debates and Consequences
- Thomas Hoppe, The German Federal Court of Justice Marks a Possible Way for the CJEU's Preliminary Ruling: The Compatibility of Investment Arbitration Clauses in Intra-EU Bilateral Investment Treaties with European Union Law
Sunday, December 17, 2017
Tams: A Dangerous Last Line of Defence – Or: A Roman Court Goes Lutheran
The paper comments on Decision 238/2014 of the Italian Constitutional Court, in which the Italian Constitutional Court addressed the tension between human rights and State immunity. Its focus is on the reasoning adopted by the Italian Constitutional Court, which relied on Italian 'foreign relations law' to avoid giving effect to the international legal rules on State immunity.
Saturday, December 16, 2017
New Issue: Nordic Journal of Human Rights
- International Election Observation
- Bård A. Andreassen & Jo Martin Stigen, International Election Observation: Promoting Human Rights-based Governance
- Avery Davis-Roberts & David J Carroll, International Election Observer Recommendations and UN Human Rights Mechanisms: Toward a More Robust System of Global Accountability on Democracy and Human Rights
- Therese Pearce Laanela, Beyond the Checklist: Addressing New Challenges in Election Observation Methodology
- Kåre Vollan, International Election Observation and Standards for Systems of Representation: A Critical View
- Michael Lidauer, Armin Rabitsch & Iris O’Rourke, Mapping Legislation for Citizen and International Election Observation in Europe: A Comparative Analysis on the Basis of OSCE/ODIHR Reports
- Virginia Atkinson, Rebecca Aaberg & Staffan Darnolf, Disability Rights and Election Observation: Increasing Access to the Political Process
- Svetlana Chetaikina & Vasil Vashchanka, Gap for Improvement: Election Observation and Political Representation of Women in the OSCE Region
- Max Grömping, Domestic Election Monitoring and Advocacy: An Emerging Research Agenda
Call for Papers: The Authoritarian Pushback and the Resilience of International Institutions
Call for Papers
The Authoritarian Pushback and the Resilience
of International Institutions
Panel at ICON Society Annual Conference
25-27 June 2018, Hong Kong
The Max Planck Institute for Comparative Public Law and International Law invites the submission of proposals for a panel entitled “The Authoritarian Pushback and the Resilience of International Institutions” at the upcoming ICON Society annual conference in Hong Kong. More than a decade after the emergence of public law approaches to international institutions, such as Global Administrative Law (GAL), Global Constitutionalism, or International Public Authority (IPA), the international system has changed dramatically. The Trump presidency and the British Brexit vote are among the most visible examples of a growing trend against global governance and international decision-making as it currently stands. What had once been taken for granted in scholarship as well as in practice – the expansion of international law, the proliferation of institutional institutions, and universal standards of democracy and human rights – is now being challenged on several fronts. All around the globe we observe governments stressing their respective national interest and deciding to opt out of, or terminate, international cooperation mechanisms. The backlash against global governance is in full swing: From withdrawals from the Rome Statute, the Paris Agreement or the TPP, to the non-execution of judgments of international courts. At the same time, most international institutions continue to carry on, sometimes under increasing financial and political constraints. Lastly, new arrangements like the Belt and Road Initiative have emerged, raising questions of whether they contribute to, or rather sideline international regimes already in place.
The panel will address several research questions that emerge from this situation:
Scholars of all levels are invited to submit proposals of up to 500 words until 20 January 2018 to email@example.com. Successful applicants will receive financial support for their travel expenses of up to 1000,- euros.
- How does the authoritarian, nationalist pushback change international institutions, including international courts, and how do these changes affect their problem-solving capacity?
- How does the authoritarian, nationalist pushback affect the legitimacy of international institutions, including international courts?
- How resilient are international institutions, including international courts, against the authoritarian, nationalist pushback, and which strategies do they adopt?
Contact: Matthias Goldmann (firstname.lastname@example.org), Silvia Steini
Friday, December 15, 2017
Call for Papers: Key Biographies in the Legal History of European Union 1950-1993
Call for Papers
Key Biographies in the Legal History of European Union 1950-1993
Frankfurt/Main, 21-22 June 2018
“Legal History of the European Union” is a recently established research field at the Max Planck Institute for European Legal History at Frankfurt. The MPIeR attempts to situate the history of European law in a longue durée perspective, with a strong comparative dimension and taking into account the broader political and socio-economic context.
The activities of the research group include the organization of an annual conference. Last year’s conference explored the legal history and the travaux préparatoires of the 1957 Rome Treaties. The conference proceedings are currently being prepared for publication.
The 2018 conference will scrutinize the history of European law with a distinct focus on professional biographies, both of key personalities in the history of European integration and of less prominent actors – national, transnational and European.
Panels may include, but are not necessarily restricted to the following topics:
We welcome proposals of not more than 150 words by 15th January 2018. Please email your proposal and a short CV to email@example.com.
- Negotiators of European treaties from 1950 until the present-day
- Actors involved in the constitutional practice of the European Court of Justice
- Member-state representatives dealing with the national reception of European law or counteracting the ECJ’s constitutional practice
- Scholars from the emerging academic field of “European law” or “European Studies” in the wider sense and their interpretations of European law
- Members of European movements, lobbies, media or other professional organizations involved in the process of European Union
Professor Stefan Vogenauer
Dr. Philip Bajon
Workshop: International Law and Accountable, Transparent Institutions
Van Regemorter: The International Criminal Court and the Right to Interim Release
Does a person accused of genocide, crimes against humanity or war crimes before the International Criminal Court (ICC) enjoy the same human rights as a person accused of the same crimes before a national jurisdiction? In other words, to what extent does the ICC have an obligation to respect human rights of a suspect or accused person and, if so, can it do so? The purpose of this book is precisely to answer this question by focusing on the right to interim release of an accused. It seeks to draw attention to this issue and improve the practice of the ICC by presenting a clear legal argument from which key actors, such as defense lawyers, can draw from to enforce their clients’ right to freedom. To this end, it identifies the basis of the ICC’s legal obligation and defines the right to provisional release pending trial. On the basis of this definition, the compliance by the ICC with this obligation is analyzed. Like other authors who examined the question of the applicability of human rights to the ICC, the author of this book considers that the particular context in which the ICC acts must be taken into account when assessing its ability to respect human rights. However, unlike such authors, this book demonstrates that, regarding the right to interim release, this particular context is not necessarily an obstacle that defense lawyers must uncritically accept. The practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) offers multiple examples of successful provisional releases in cases where a State agrees to offer guarantees for the reception of an accused in its territory. This book therefore argues for the obligation of the ICC to obtain such guarantees and outlines the remedies available to an accused in case of inaction by the ICC and lack of good will of its State parties, including recourse to the European Court of Human Rights.
Kireyev & Osakwe: Trade Multilateralism in the Twenty-First Century
- Alexei Kireyev & Chiedu Osakwe, Making trade multilateralism work for all: the role of WTO accessions
- Alexei Kireyev, The WTO and the changing state of the global economy
- Micheline Calmy-Rey & Svenja Rauch, The art and science of negotiation: de-politicizing and technicizing negotiations
- Alexei Kireyev, Chiedu Osakwe & Anna Varyanik, The accession of Kazakhstan: dealing with complexity
- Arancha González, Helping businesses navigate WTO accession
- Maša Lekić & Chiedu Osakwe, WTO rules, accession protocols and mega-regionals – complementarity and governance in the rules-based global economy
- Juneyoung Lee, Nora Neufeld & Anna Varyanik, Promoting good governance: from encouraging a principle to taking concrete action – examples from WTO accession protocols and the WTO Trade Facilitation Agreement
- Hubert Escaith, Chiedu Osakwe, Vicky Chemutai & Ying Yan, Transforming accessions data into knowledge
- Ellen Johnson Sirleaf & Axel Addy, Accession of Liberia: an agenda for transformation
- Humayoon Rasaw, Afghanistan's accession: challenged by conflict
- Pierre Laporte, Charles Morin & Cillia Mangroo, The WTO accession of Seychelles: lessons from a small island economy
- Atsuyuki Oike, WTO accession negotiations from a negotiator's perspective
- Antony Taubman, How post-TRIPS negotiations reframe the 'trade-related aspects' of intellectual property after TRIPS: the lessons of WTO accessions
- Robert D. Anderson, Anna Caroline Müller & Nivedita Sen, Competition policy in WTO accessions: filling in the blanks in the international trading system
- Tatiana Yanguas Acosta, Geographical indications in the accessions landscape
- Diwakar Dixit, WTO accession commitments on agriculture: lessons for WTO rule-making
- Nannan Gao & Fangying Zheng, The WTO-plus obligations: dual class or a strengthened system?
- Josefita Pardo de León & Mariam Soumaré, Accession protocols and the private sector
- Maika Oshikawa, Post-accession support platform
- Alexei Kireyev & Chiedu Osakwe, Conclusion – trade multilateralism: enhancing flexibility, preserving the momentum
New Volume: Recueil des Cours
- Volume 386
- Sean D. Murphy, International Law relating to Islands
- Giuseppe Cataldi, La mise en oeuvre des décisions des tribunaux internationaux dans l’ordre interne
Nauta: The International Responsibility of NATO and its Personnel during Military Operations
In 1999, the Alliance mistakenly bombed the Chinese embassy in Belgrade. Around the same period, allegations were made regarding its involvement in human trafficking and forced prostitution in Bosnia-Herzegovina. A decade later, NATO airplanes hit a fuel truck causing significant civilian casualties in Kunduz, Afghanistan. After more than 60 years of existence and a track-record of more than 30 missions performed worldwide, it is surprising that there is still uncertainty on the scope and content of NATO’s responsibility for wrongful conduct during its military operations. This timely book deals with the international responsibility of NATO during military operations. It examines, the status of the Alliance, the existence of international obligations and conditions of attribution of conduct in NATO.
Palombino: Fair and Equitable Treatment and the Fabric of General Principles
This book moves from the circumstance whereby currently the obligation to provide fair and equitable treatment (FET) to foreign investments is included in the majority of international investment agreements and has proved to be the most invoked standard in investor-State arbitration. Hence, it is no overstatement to describe this standard as the basic norm of international investment law. Yet both its meaning and normative basis continue to be shrouded in ambiguity and, as a consequence, to inspire a considerable number of interpretations by legal writers. The book’s precise aim is to unravel such ambiguity, arguing from the idea that FET has become part of the fabric of general international law, but has done so by means of a source somewhat neglected in legal doctrine. This being the category of general principles peculiar to a certain field of international law, i.e. those principles having their own foundations in the international legal order itself, but which, through the mediation of the judge, end up being shaped according to the features typical of a specific normative field. The book, as well as having a solid theoretical backdrop as its basis, offers a careful and critical analysis of pertinent case law, and will prove useful to both scholars and practitioners.
Thursday, December 14, 2017
New Issue: Global Society
- Andrea Schneiker & Jutta Joachim, Revisiting Global Governance in Multistakeholder Initiatives: Club Governance Based on Ideational Prealignments
- Larry Crump & Christian Downie, The G20 Chair and the Case of the Global Economic Steering Committee
- Charalampos Efstathopoulos, Middle Powers and the Behavioural Model
- Evangelos Fanoulis & Vjosa Musliu, Sovereignty a-venir: Towards a Normative Understanding of Sovereignty
- Athanasios Gkoutzioulis, With Great Power Comes Great Responsibility: On Foucault’s Notions of Power, Subjectivity, Freedom and Their (Mis)Understanding in IR
- N.A.J. Taylor, The Problem of Nuclear Harm for Andrew Linklater, Lorraine Elliott and Other Contemporary Cosmopolitans
Natarajan, Reynolds, Bhatia, & Xavier: Third World Approaches to International Law: On Praxis and the Intellectual
This book addresses the themes of praxis and the role of international lawyers as intellectuals and political actors engaging with questions of justice for Third World peoples. The book brings together 12 contributions from a total of 15 scholars working in the TWAIL (Third World Approaches to International Law) network or tradition. It includes chapters from some of the pioneering Third World jurists who have led this field since the time of decolonization, as well as prominent emerging scholars in the field. Broadly, the TWAIL orientation understands praxis as the relationship between what we say as scholars and what we do – as the inextricability of theory from lived experience. Understood in this way, praxis is central to TWAIL, as TWAIL scholars strive to reconcile international law’s promise of justice with the proliferation of injustice in the world it purports to govern. Reconciliation occurs in the realm of praxis and TWAIL scholars engage in a variety of struggles, including those for greater self-awareness, disciplinary upheaval, and institutional resistance and transformation. The rich diversity of contributions in the book engage these themes and questions through the various prisms of international institutional engagement, world trade and investment law, critical comparative law, Palestine solidarity and decolonization, judicial education, revolutionary struggle against imperial sovereignty, Muslim Marxism, Third World intellectual traditions, Global South constitutionalism, and migration.
deGuzman: The Global-Local Dilemma and the ICC's Legitimacy
A key impediment to the ICC’s legitimacy is the tension between its dual mandates to both serve the global community, especially through world-wide crime prevention, and to assist the local communities most affected by the crimes it adjudicates, including by providing reparations. These mandates can sometimes be pursued simultaneously, but some decisions require the ICC to privilege one or the other set of objectives. For instance, effective global crime prevention may require dispersing prosecutorial resources across large geographic areas, whereas the victims in ICC situation countries may prefer a greater depth of prosecutions within a given situation. This Chapter demonstrates that the literature on the ICC’s legitimacy has largely failed to address this “global-local dilemma.” It argues that greater attention should be devoted to clarifying the ICC’s mission in order to promote the institution’s still fragile legitimacy.
New Issue: Review of International Studies
- Rebecca Sanders, Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’
- Marieke de Goede, The chain of security
- Rita Floyd, Parallels with the hate speech debate: the pros and cons of criminalising harmful securitising requests
- Klejda Mulaj, Violence of war, ontopology, and the instrumental and performative constitution of the political community
- Kimberly Hutchings, War and moral stupidity
- Kurt Mills & Alan Bloomfield, African resistance to the International Criminal Court: Halting the advance of the anti-impunity norm
- Paul K. MacDonald, Embedded authority: a relational network approach to hierarchy in world politics
- Matthew Castle, Embedding regional actors in social and historical context: Australia-New Zealand integration and Asian-Pacific regionalism
- Mathew Davies, Regional organisations and enduring defective democratic members
Chehtman: A Theory of International Crimes: Conceptual and Normative Issues
The quest for a unified theory of international criminalization is an important part of a compelling general theory of international criminal law. Any such account would need to have a conceptual and a normative dimension. This chapter addresses these two issues in turn. At a conceptual level, it argues that international crimes are criminal prohibitions provided under international law which are global in scope. This entails, first, that perpetrators of these crimes can be brought to justice by any national authority as well as by international and regional tribunals with no traditional connection to the crime, the perpetrators or the victims. Second, that they can be brought to justice on the basis of international law alone, irrespective of the specific legislation of any national authority allowing or even mandating such conduct. I thereby reject recent accounts, notably advocated by Roger O’Keefe and Kevin Heller, which seek to define international crimes merely by reference to the relevant legal source of the prohibition. I argue that in order to explain what an international crime is, we need to take centrally into consideration also the function that this concept serves as a matter of legal practice. At a normative level, I argue that international crimes are simply those which cannot be in force on the basis of a domestic prohibition alone, essentially because they are perpetrated, instigated or allowed by the territorial state, or because this state cannot do anything about them. As a result, individuals in different parts of the world have a fundamental interest in those who perpetrate this type of conduct being called to account by at least some domestic or international court, in order for these prohibitions to be considered in force. The chapter concludes by rejecting two recent proposals to radically expand the scope of international criminalization, either over any serious human rights violation, or over acts which do not show a significant level moral gravity or atrocity. By contrast, it offers a reinterpretation of the scope of international criminalization by putting into question the requirement that international crimes be perpetrated by groups with a significant level of organization, as currently provided for by the laws on crimes against humanity and war crimes.
Alter & Raustiala: The Politics of International Regime Complexity
The signature feature of 21st century global governance is arguably not the international regime but the regime complex. A regime complex is an array of partially overlapping and nonhierarchical institutions that includes more than one international agreement or authority. The institutions and agreements may be functional or territorial in nature. International regime complexity refers to political systems of global governance that emerge because of the co-existence of rule density and regime complexes. This review essay highlights insights and questions that emerge from the last fifteen years of scholarship on the politics of international regime complexity, explaining why regime complexes arise, what factors sustain them, and the range of political effects regime complexity creates. Our conclusion explains why in a Post-American world order, the trend of international regime complexity will likely accelerate.
Grosse Ruse-Khan: TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World
International intellectual property (IP) protection is increasingly governed by a network of bilateral and regional treaties. Most of these contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the TRIPS Agreement, commonly referred to as ‘TRIPS-plus’. Human rights bodies, NGOs, and academic commentators often criticise these standards for undermining flexibilities available under TRIPS. Such policy space, however, is critical to design national IP laws in light of domestic needs. This chapter makes a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework. My argument is based on the role treaty law affords to the object and purpose expressed in Articles 7 and 8 TRIPS. They have not only been recognised as essential for promoting access to medicines in the Doha Declaration on TRIPS and Public Health. As integral objectives and principles of TRIPS, Articles 7 and 8 limit the ability of WTO Members to modify their IP-related treaty obligations inter se. Based on their negotiation history and common understandings expressed by WTO Members, I argue for an enhanced role of TRIPS’ object and purpose as a loose constitutional frame for IP commitments in bilateral and regional treaties.
New Issue: Korean Journal of International and Comparative Law
- The Dokdo/Takeshima Dispute
- Paul Huth, Sunwoong Kim & Terence Roehrig, Special Issue Introduction
- Paul Huth & Sunwoong Kim, Is There a Path to Peaceful Resolution in the Dokdo/Takeshima Dispute?
- Hee Eun Lee, South Korea’s Claim to Dokdo
- Hyon Joo Yoo, Domestic Politics in South Korea and the Territorial Issue of Dokdo
- Terence Roehrig, Stuck Between Two Allies: The United States and the Dokdo/Takeshima Dispute
Wednesday, December 13, 2017
New Issue: ICSID Review: Foreign Investment Law Journal
- NUS Centre for International Law Collection of Articles on an Appellate Body in ISDS
- Meg Kinnear & Christine Sim, Introduction to the Collection
- J. Christopher Thomas & Harpreet Kaur Dhillon, The Foundations of Investment Treaty Arbitration: The ICSID Convention, Investment Treaties and the Review of Arbitration Awards
- Elsa Sardinha, The Impetus for the Creation of an Appellate Mechanism 503 Mark Feldman, Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power
- Mark Huber & Greg Tereposky, The WTO Appellate Body: Viability as a Model for an Investor–State Dispute Settlement Appellate Mechanism
- Chester Brown, Supervision, Control, and Appellate Jurisdiction: The Experience of the International Court
- N. Jansen Calamita, The Challenge of Establishing a Multilateral Investment Tribunal at ICSID
- Elsa Sardinha, The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU–Vietnam Free Trade Agreement
- Colin M. Brown, A Multilateral Mechanism for the Settlement of Investment Disputes. Some Preliminary Sketches
- Lucy Reed & Christine Sim, Potential Investment Treaty Appellate Bodies: Open Questions
- Facundo Pérez-Aznar, Investment Protection in Exceptional Situations: Compensation-for-Losses Clauses in IIAs
- Case Comment
- Tomoko Ishikawa, Marco Gavazzi and Stefano Gavazzi v Romania: A New Approach to Determining Jurisdiction over Counterclaims in ICSID Arbitration?