Saturday, April 1, 2017

Special Issue: The Nuremberg Trials. New Perspectives on the Professions

The latest issue of Comparativ – Zeitschrift für Globalgeschichte und vergleichende Gesellschaftsforschung (no. 4/16) focuses on "The Nuremberg Trials. New Perspectives on the Professions." Contents include:
  • The Nuremberg Trials. New Perspectives on the Professions
    • Guillaume Mouralis & Marie-Bénédicte Vincent, Die Nürnberger Prozesse. Neue Ansätze aus der Sozialgeschichte und Berufssoziologie
    • Matthias Gemählich, Dénoncer les crimes du nazisme : Des magistrats français au procès de Nuremberg
    • Jesús Baigorri-Jalón, Interpreting at the main Nuremberg Trial (1945–1946) and its Impact on Conference Interpreters’ Professionalization
    • Valéry Pratt, Quel rôle pour Franz Leopold Neumann en amont et en aval du Procès militaire international de Nuremberg ?
    • Ron Levi, Sara Dezalay, & Michael Amiraslani, Prosecutorial Strategies and Opening Statements: Justifying International Prosecutions from the International Military Tribunal at Nuremberg through to the International Criminal Court
    • Jean-Louis Halpérin, The Justice Case in Nuremberg: How the Prosecution and the Defendants Conceive the Involvement of the German Legal Profession in the Nazi Regime
    • Nathalie Le Bouëdec, Die westdeutschen Juristen und der Nürnberger Juristenprozess: Analyse einer (Nicht-?)Rezeption

Call for Abstracts: Edited Volume on "'Traffic in Women' and International Law"

Sonja Dolinsek (Universität Erfurt) & Kathleen Zeidler (GWZO Leipzig) have issued a call for abstracts for an edited volume on "'Traffic in Women' and International Law." Here's the call:

Six international conventions to combat the so-called “Mädchenhandel”, “white slavery”, “traffic in women” and “human trafficking” were adopted over the course of the 20th century. During the first half of the 20th century the issue received political and public attention to a degree as to make it possible to regulate it through international law. Five of the six international conventions were adopted between 1904 and 1949, while the last one was signed only in 2000. The phenomenon of the “trafficking in women” thus was one of the first fields for the regulation through international law along with more traditional issues, such as war and peace. A joint consideration of “trafficking” and international law thus offers a promising research topic.

Nevertheless, the international law dimension has only played a minor role in historical research on “trafficking”. So far, “trafficking” has been analysed with a view towards the multiple national as well as transnational civil society efforts and initiatives to combat „Mädchenhandel“, „white slavery“ or „traffic in women“. Some analyses have situated these efforts in the context of a “moral panic” and have, in some cases, questioned the existence of the underlying phenomenon. Studies focusing on the politics and implementation of anti-trafficking initiatives in national and local contexts, concentrated on certain regions. Research focusing on practices and implementation have pointed to an intricate connection between the politics of prostitution, migration and, more generally, sexual politics. A number of studies have analysed the raced, gendered and classed dimensions of discourses, representations and politics in this field.

All these studies have pointed to core issues connected to histories of “trafficking”, such as prostitution, sexuality, migration, police, law and order as well as social and political efforts of civil society and media representations. A more general view of the research on the histories on trafficking reveals, however, a rather fragmented field, in particular with regard to the dimensions of international law, which often do not go far beyond teleological success stories of an international struggle against this “evil”.

This edited volume seeks to integrate all these aspects by approaching the field through actors and institutions: A number of actors in the fields of social and security politics, including networks of legal experts, contributed to the development and expansion of institutions to regulate “trafficking”.

Debates on “trafficking” were and still are structured by “mental maps” based on ideas of a poverty and civilizational gap. It stands out that at the turn of the 19th to the 20th century mostly Jewish women from Galicia were perceived of being victims of the traffic. With the process of decolonization after 1945 debates on trafficking and migrant prostitution were structured mostly through the lens of North-South-relations (“first world”-“third world”), which then again were re-structured as a gap between East and West after 1989. Against this backdrop it must be asked what it meant for the territorialization of international law that “trafficking” as a field of regulation was often connoted as “Eastern European”.

Furthermore, it is necessary to consider spatio-temporal shifts in legal definitions and public discourses at a national and international level as well as their implementation and the local practices connected with it, i. e. practices at the border, in the local (legal or illegal) brothel, at the rescue and counselling organisations, in court or in jail.

In order to deliver such a multidimensional perspective, it can be useful to offer an analysis of the legal language, legal discourse and the language used in policing practices. This includes semantic analyses of conceptual changes and shifts from “Mädchenhandel”, “white slavery” or “traite des blanches” to “Frauenhandel”, “traffic in women” and, eventually, “human trafficking”. The semantics of “slavery” deserves particular attention, because of the recurring reference to it in concepts such as “white slavery” or “Sexual Slavery”, but also due to the self-description of activists as “abolitionists”. For a perspective focusing on international law, we expect that an analysis of conceptual shifts embedded in the legal and social context and taking into account their global dimensions of transfers of meanings across borders to be particularly fruitful.

Aiming at unravelling the connection between international law and “trafficking” as part of the multi-layered dimensions of the issue at hand, we aim at discussing the controversial, but unavoidable question of what “trafficking” was and whether, if at all, it is and was captured empirically. The goal is less to find definite answers, but rather to fruitfully engage the legal and international focus to make the conceptual vagueness of “trafficking” as well as the spatio-temporal cycles of public attention devoted to trafficking the object of analysis. In this way, contradictions and discrepancies between and across various parallel discourses and practices become the centre of analysis. Who and whose experience was captured by anti-trafficking discourses and practices, and who was not? What did it mean for those affected to be discursively and/or legally categorized and contained as a “white slave”, “traded thing” or as “victim of trafficking”? What legal entitlements and what legal practices were connected to such categorization and how did these practices and the actors connected to them change in space and time?

Through such a multidimensional perspective, this edited volume aims at productively engaging with questions relating to changes in (international) law, statehood and the transnational sphere and show how “trafficking” was (and possibly still is) made in all these contexts.

We call for proposals for submissions for an edited collection. In particular, we seek proposals from various social sciences and humanities working on the issue outlined in the present call. We seek theoretically, methodologically and (for empirical submissions) empirically grounded submissions offering innovative and provocative analysis of the intersection of international law and the history (and present) of “trafficking”. A regional or temporal focus is not required.


- 500 words (German or English);
- Short outline of the specific object of analysis, research question, sources/data, and method
- Deadline for the abstract April 15th 2017
- Notification of acceptance: April 22nd 2017

Deadline for the submission of the manuscript (German or English; max. 70,000 characters): November 15th 2017

Editors of the collection: Sonja Dolinsek, Kathleen Zeidler in co-operation with Dietlind Hüchtker and Dietmar Müller


Sonja Dolinsek
Erfurt University

Kathleen Zeidler
GWZO Leipzig

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 48, no. 2, 2017) is out. Contents include:
  • Craig H. Allen, The Salish Sea Boundary Straits: “Historic Internal Waters” or Territorial Seas?
  • Roman Dremliuga, A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views from Russia
  • Xuexia Liao, Evaluation of Scientific Evidence by International Courts and Tribunals in the Continental Shelf Delimitation Cases
  • Ngwatung Akamangwa, Regulatory Influences on Environmental Protection: Why Shipping Companies Comply and When They Don't
  • Sophia Kopela, Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration

Friday, March 31, 2017

Limenta: WTO Retaliation: Effectiveness and Purposes

Michelle Limenta (Universitas Pelita Harapan - Center for International Trade and Investment) has published WTO Retaliation: Effectiveness and Purposes (Hart Publishing 2017). Here's the abstract:
The central point of this book concerns three main issues: the problems of WTO retaliation, the question of the effectiveness of retaliation, and the purposes of retaliation. WTO retaliation is often deemed ineffective due to its inherited shortcomings. This book highlights the significance in identifying the purposes of retaliation prior to evaluating its effectiveness. Put differently, it refers to the purpose-based approach of effectiveness. It is a common understanding that the purpose of WTO retaliation is to induce compliance. This book, nevertheless, argues in favour of coexistence of the multiple purposes of retaliation, including reaching a mutually agreeable solution. These views are based on the extensive research conducted on the purposes of WTO retaliation, namely through interpreting Article 22 of the DSU; examining the remedies rules within the frameworks of public international law, and law and economics; and assessing the academic writings/debates as well as the statements of arbitrators. Finally, by evaluating a number of disputes involving WTO retaliation, this book demonstrates the reasonableness and soundness of WTO retaliation in light of its multiple purposes.

Thursday, March 30, 2017

Conference: What's Next for Human Rights Scholarship?

Tomorrow through Saturday, March 31-April 1, 2017, the University of Virginia will hold a conference on "What's Next for Human Rights Scholarship?" The program is here.

ASIL: 100 Days - A Live Online Briefing Series - The Future of Environmental Agreements

As noted previously, the American Society of International Law is sponsoring "100 Days - A Live Online Briefing Series." The fourth session - on "The Future of Environmental Agreements" - is scheduled for Wednesday, April 5, 2017. Here's the idea:

Over the past several decades, international organizations and nation-states have entered into agreements of various kinds to mitigate environmental harms, including air and water pollution, the collapsing ocean ecosystem, vanishing forests and habitat, species extinction, the spread of hazardous chemicals, ozone depletion, and global climate change. The Trump Administration has indicated that it may seek to withdraw from a number of multilateral environmental agreements, including the Paris Agreement, signed by President Obama in 2016, and the UN Framework Convention on Climate Change, signed by President George H.W. Bush and ratified by a unanimous U.S. Senate in 1992.

This live online briefing, the fourth in the Society's series on "International Law and the Trump Administration," will feature former senior U.S. officials from both Republican and Democratic administrations who were responsible for formulating policy and representing the U.S. Government on international environmental issues. They will discuss the role of international law and institutions in protecting the environment; the strengths and weaknesses of multilateral environmental agreements that are currently in force; and the likely implications of U.S. withdrawal.

Werner, Hoon, & Galán: The Law of International Lawyers: Reading Martti Koskenniemi

Wouter Werner (Vrije Universiteit - Law), Marieke de Hoon (Vrije Universiteit - Law), & Alexis Galán (Università Commerciale Luigi Bocconi - Law) have published The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge Univ. Press 2017). Contents include:
  • Wouter Werner, Marieke de Hoon & Alexis Galán, Introduction: the law of international lawyers
  • Gregor Noll, What moves law? Martti Koskenniemi and transcendence in international law
  • David Dyzenhaus, Formalism, realism and the politics of indeterminacy
  • Nigel D. White, Settling disputes: a matter of politics and law
  • Jaye Ellis, Form meets function: the culture of formalism and international environmental regimes
  • Eric A. Posner, Martti Koskenniemi on human rights: an empirical perspective
  • Jutta Brunnée & Stephen J. Toope, The rule of law in an agnostic world: the prohibition on the use of force and humanitarian exceptions
  • Nikolas M. Rajkovic, The space between us: law, teleology and the new orientalism of counterdisciplinarity
  • Sahib Singh, The critical subject
  • Friedrich Kratochwil, Practicing law: Spoudaios, professional, expert, or 'Macher'? Reflections on the changing nature of an occupation
  • Frédéric Mégret, Thinking about what international humanitarian lawyers 'do': an examination of the laws of war as a field of professional practice
  • Anne Orford, International law and the limits of history
  • Andrew Lang & Susan Marks, Even the dead will not be safe: international law and the struggle over tradition
  • Samuel Moyn, Martti Koskenniemi and the historiography of international law in the age of the war on terror
  • Liliana Obregón, Martti Koskenniemi's critique of Eurocentrism in international law
  • Martti Koskenniemi, Epilogue: To enable and enchant: epilogue on the power of law

Peña-Neira: Fuentes del Estado de Derecho internacional

Sergio Peña-Neira (Universidad Bernardo O'Higgins - Law) has published Fuentes del Estado de Derecho internacional (Ediciones Olejnik 2016). Here's the abstract:
Las "fuentes" normativo-jurídicas permiten determinar si una norma es jurídica o no. Sin embargo, en el supuesto de la existencia de un Estado de Derecho internacional necesariamente dichas "fuentes" que establecen obligatoriedad en el vínculo jurídico pueden ampliarse más allá de las clásicas del artículo 38 del Estatuto de la Corte Internacional de Justicia. Este libro busca determinar si es posible pensar hoy en fuentes del Derecho internacional público más allá de las fuentes clásicos y definir si es posible reconocerlas como tales en el presente del Derecho internacional público. Es un dato que el mundo se regula por normas jurídicas y Estado de Derecho internacional es un término que se refiere a las normas jurídicas que regulan las relaciones jurídicas internacionales y no a lo que normalmente se asocia, la teoría de Montesquieu sobre el Estado, que en su tiempo y aun hoy no sólo es una teoría sino que causó revolución en el pensar acerca de los Estados nacionales.

Wednesday, March 29, 2017

McAuliffe: Transformative Transitional Justice and the Malleability of Post-Conflict States

Padraig McAuliffe (Univ. of Liverpool - Law) has published Transformative Transitional Justice and the Malleability of Post-Conflict States (Edward Elgar Publishing 2017). Here's the abstract:

Despite the growing focus on issues of socio-economic transformation in contemporary transitional justice, the path dependencies imposed by the political economy of war-to-peace transitions and the limitations imposed by weak statehood are seldom considered. This book explores transitional justice’s prospects for seeking economic justice and reform of structures of poverty in the specific context of post-conflict states.

Systematic and timely, this book examines how the evolution of contemporary civil war, the modalities of peacemaking and peacebuilding, as well as the role of grassroots forms of justice, condition prospects for tackling the economic roots of conflict. It argues that discourse in the area focuses too much on the liberal commitments of interveners to the exclusion of understanding how interventionist impulses are compromised by the agency of local actors. Ultimately, the book illustrates that for transitional justice to become effective in transforming structures of injustice, it needs to acknowledge the salience of domestic political incentives and accumulation patterns.

Proelss: United Nations Convention on the Law of the Sea: A Commentary

Alexander Proelss (Universität Trier - Law) has published United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck/Hart/Nomos 2017). Here's the abstract:
The United Nations Convention on the Law of the Sea (UNCLOS) entered into force in 1994 and has since been ratified by about 160 states, including all the Member States of the EU and the EU itself. The Convention defines the rights and duties of national states with regard to the use of the seas. UNCLOS consolidates customary international law and various Conventions previously adopted by the international community. This Treaty, the most comprehensive ever concluded, is often referred to as 'the constitution for the seas'. This Commentary focuses particularly on the interaction between UNCLOS and the European legal order, for example in the field of the prevention or the reduction of environmental pollution and the fair distribution of natural resources.

Call for Papers: Rethinking and Renewing the Study of International Law in/from/about Latin America

A call for papers has been issued for a conference on "Rethinking and Renewing the Study of International Law in/from/about Latin America," to take place September 26-28, 2017, in Bogotá. The call is here. The deadline for the submission of abstracts is April 3, 2017.

Steer: Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes

Cassandra Steer (Women in International Security Canada) has published Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes (Springer 2017). Here's the abstract:
This book seeks to understand how and why we should hold leaders responsible for the collective mass atrocities that are committed in times of conflict. It attempts to untangle the debates on modes of liability in international criminal law (ICL) that have become truly complex over the last twenty years, and to provide a way to identify the most appropriate model for leadership liability. A unique comparative theory of ICL is offered, which clarifies the way in which ICL develops as a patchwork of different domestic criminal law notions. This theory forms the basis for the comparison of some influential domestic criminal law systems, with a view to understanding the policy and cultural reasons for their differences. There is a particular focus on the background of the German law which has influenced the International Criminal Court so much recently. This helps to understand, and seek a solution to, the current impasses in the debates on which model of liability should be applied. An entire chapter of the book is devoted to considering why leaders should be held responsible for crimes committed by their subordinates, from legal, moral and pragmatic perspectives. The moral responsibility of leaders is translated into criminal liability, and the different domestic models of liability are translated to the international context, in such a way as to appeal to advanced students of ICL, academics, and practitioners who want to understand the complexities of leadership liability in international criminal law today and identify the best way to approach it.

Call for Submissions: ICTY Celebrities: War Criminals after Trial and Their Homecoming

The International Criminal Justice Review has issued a call for submissions for a special issue on "ICTY Celebrities: War Criminals after Trial and Their Homecoming." The call is here.

Tuesday, March 28, 2017

ICTR, ICTY, and MICT Case Law Database

The Mechanism for International Criminal Tribunals (MICT) has launched a new version of its Case Law Database to further promote and facilitate access to the jurisprudence of the International Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the MICT. The database is here.

Conference: ESIL 2017 Research Forum (Reminder)

The European Society of International Law's 2017 Research Forum will take place March 30-31, 2017, at the University of Grenada. The program is here.

Turner: Defense Perspectives on Fairness and Efficiency at the International Criminal Court

Jenia Iontcheva Turner (Southern Methodist Univ. - Law) has posted Defense Perspectives on Fairness and Efficiency at the International Criminal Court (in The Oxford Handbook on International Criminal Law, Kevin Jon Heller et al. eds., forthcoming). Here's the abstract:

Over the last several years, states parties of the International Criminal Court (ICC) have put increasing pressure on the court to become more efficient. Proceedings are seen as unduly slow, and judges have been urged to rein in the parties and expedite the process.

The emphasis on efficiency can advance important goals of the ICC. It can help ensure defendants’ right to a speedy trial, promote victims’ interests in closure, and allow the court to process more cases with limited resources. But as the experience of earlier international criminal tribunals shows, an unrelenting pursuit of efficiency could also interfere with other values of the criminal process, such as the protection of individual rights and the search for truth.

This book chapter examines how the sharper focus on expediting proceedings at the ICC has affected defense rights and interests. Have judges, in an effort to increase the court’s efficiency, limited defense opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have concerns about cost led the court to impose unwarranted restrictions on defense investigations? Have judges urged the defense to disclose its case early on or to settle any aspects of the case with the prosecution?

To begin an exploration of these questions, the chapter analyzes the findings of a survey of international criminal defense attorneys about their views of ICC procedures. While survey respondents expressed some concerns about procedural unfairness at the court, they did not believe that judges’ preoccupation with efficiency was the cause of the unfairness. Likewise, while they complained about insufficient financial and institutional support for defense work, respondents tended to place responsibility for these decisions on the Registry and States Parties, not on judges. Perhaps most surprisingly, respondents stated that certain judicial efforts to expedite proceedings—demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favor defense rights. Defense attorneys could therefore leverage the court’s emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.

Shany: A Human Rights Perspective to Global Battlefield Detention: Time to Reconsider Indefinite Detention

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted A Human Rights Perspective to Global Battlefield Detention: Time to Reconsider Indefinite Detention (International Law Studies, forthcoming). Here's the abstract:
The article discusses one principal challenge to detention without trial of suspected international terrorists — the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One describes the “hardline” position on the security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the UK and Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the duration of the armed conflict in which the organizations they are affiliated with participate. Part Two describes judicial and quasi-judicial challenges to the “hardline” position, and Part Three addresses recent developments in IHRL relating to the co-application of IHL and IHRL and the extra-territoriality of certain IHRL norms, and specifically discusses developments relating to the application of IHRL norms governing security detentions. Part Four concludes by offering an IHRL-based perspective to security detention policy and, in particular, to aspects of the policy leading to de facto indefinite detention.

Conference: 26th Annual SLS-BIICL Conference on Theory and International Law

On May 3, 2017, the Society of Legal Scholars and the British Institute of International and Comparative Law will hold the 26th Annual SLS-BIICL Conference on Theory and International Law, at the BIICL. The theme is: "Inside the Mind of International Decision-Makers." Here's the idea:

The 2017 Conference on Theory and International Law seeks to understand better the behaviour of those who shape international law - international and domestic judges, arbitrators, and state officials. Inspired by ground-breaking research that opens the "black box" of international decision-making, this Conference invites participants to theorise, experiment and speculate.

Some of the questions we will explore are: Do decision-makers behave rationally? Do they behave predictably?What factors may influence their decision-making? What are the roles of cognitive skills, intuition, and background, including education and political persuasion? What are the implications of these insights for choosing a method of dispute settlement for a particular case or designing a dispute settlement mechanism for future disputes? What are the implications for the conduct and procedures of international negotiations?

Call for Papers: XXII Convegno annuale della SIDI (Reminder)

The Italian Society of International Law and European Union Law has issued a call for papers for its Twenty-Second Annual Conference, to be held June 8-9, 2017, at the Università degli Studi di Trento. The theme is: "Migration and International Law: Beyond Emergency?/Migrazioni e diritto internazionale: verso il superamento dell’emergenza?" Here's the call (English/Italian):

XXII Annual Conference of the

Italian Society of International Law and European Union Law

on ‘Migration and International Law: Beyond Emergency?’

Call for Papers

The Italian Society of International Law and European Union Law is issuing a Call for Papers for its XXII Annual Conference on ‘Migration and International Law: Beyond Emergency?’ that will be held at the University of Trento on 8-9 June 2017. The Conference consists of three plenary sessions and two rounds of parallel sessions, the latter being open to participation through this Call. The Call is addressed to both Italian and foreign scholars and welcomes submissions focussing on the public international law, private international law and EU law aspects of migration.

Contributions are particularly welcome in the following thematic areas:

  • the main solutions elaborated by legal scholars as well as policymakers to deal with the phenomenon of migration;
  • the role of international institutions (e.g., EU, WHO, ILO, IOM) and their agencies (e.g., Frontex, UNHCR) in managing migration;
  • the responsibility of States (both origin and host States) and of international organisations in managing migration;
  • the routes of migrants (both forced and voluntary ones) from the State of origin towards the host State, including in relation to the role of non-State actors;
  • the condition of migrants in the Country of arrival;
  • the relationships of migrants with those remaining in the Countries of origin as well as with the host society.
Guidelines for submissions

Abstracts are welcome of no more than 600 words to be submitted in PDF or WORD format to the following e-mail address: The deadline for submission is 15 April 2017. A short curriculum vitae (50-150 words approx.) should be attached to the abstract.

Italian, English and French will be the working languages for both drafting the paper and presenting at the Conference. In this regard, panellists are expected to speak no more than 20 minutes each. All applicants will be notified via e-mail by the end of April 2017 of the results of the selection process. Successful applicants should send the text of their speech by 31 May 2017.

While in principle travel and accommodation expenses will not be reimbursed to panellists, requests coming from young scholars will be considered.

The papers presented at the Conference will be collected in a volume, edited by the Conference organisers and published in the book series devoted to the proceedings of the Italian Society of International Law and European Union Law Annual Conferences. To this effect, contributors are expected to submit their final paper (6000-8000 words max.) by 31 July 2017. Editing criteria will be communicated to contributors together with the decision of acceptance to the Conference.

Call for Papers: Exiting Institutions

The European Society of International Law's Interest Group on International Organizations and the Interest Group on the EU as a Global Actor have issued a call for papers for a workshop on September 6, 2017, in Naples, on the occasion of ESIL's Annual Conference. The theme is "Exiting Institutions." The call is here.

Monday, March 27, 2017

Kassoti: The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration

Eva Kassoti (The Hague Univ. - Law) has posted The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration. Here's the abstract:
Over the last few years, the CJEU’s approach to international law has sparked a fierce debate in the literature. More recent case-law has challenged the narrative of the CJEU’s Völkerrechtsfreundlichkeit and it has called into question the EU’s carefully cultivated self-image as a global actor with an attitude of respect and fidelity to international law. The judgment of the General Court in Front Polisario (judgment of 10 December 2015, case T-512/12) is especially relevant since it involved a number of complex international law questions and thus, it provides important insights into how the CJEU treats international law in its practice, thereby feeding directly into the debate over the CJEU’s Völkerrechtsfreundlichkeit. The case-note argues that the Court’s approach to international law leaves much to be desired and sits uncomfortably with the traditional self-portrayal of the EU as an internationally engaged actor committed to the observance of international law, thereby confirming the view that, in its more recent case-law, the CJEU has abandoned the “international law friendly” tone of its earlier judgments. This Insight only takes into account the judgment of the General Court in the Front Polisario case, while the decision of the Court of Justice (judgment of 21 December 2016, case C-104/16 P, Council v. Front Polisario [GC]) will be the object of a subsequent Insight.

Viñuales: La Proteccion Ambiental en el Derecho Internacional Consuetudinario

Jorge E. Viñuales (Univ. of Cambridge - Law) has posted La Proteccion Ambiental en el Derecho Internacional Consuetudinario [Environmental Protection in International Customary Law] (Revista Española de Derecho Internacional, forthcoming). Here's the abstract:

El presente artículo analiza el estado actual del derecho consuetudinario internacional en materia de protección ambiental. A través de un estudio pormenorizado de la jurisprudencia internacional pertinente, el artículo identifica una matriz consuetudinaria que consiste en la exigencia de diligencia debida en el marco del principio de prevención, y sus expresiones procedimentales, a saber la obligación de cooperación de buena fe, en particular por medio de la notificación y la consulta, y la exigencia de efectuar una evaluación previa de impacto ambiental. Pese a que la doctrina haya afirmado el carácter consuetudinario de una multitud de principios, solo los principios identificados en este artículo han recibido una consagración jurisprudencial indiscutible. Por ende, el artículo no efectúa una mera selección de ciertos principios sino que se concentra en aquellos principios cuya base consuetudinaria ha sido efectivamente reconocida. Se estudia luego el detalle de cada una de estas normas así como sus interacciones. El artículo concluye con una breve referencia a la frontera actual en materia de desarrollo consuetudinario, recalcando las dificultades que se desprenden de la aplicación secuencial de estas normas, la ausencia de individuación de un campo importante de deberes exigidos por la diligencia debida en el marco del principio de prevención, y la eventual consolidación por esta vía del principio precautorio y del principio de participación publica.

The article focuses on the current state of customary international law as regards environmental protection. Based on an analysis of the relevant case law, the article identifies a customary core consisting of the duty of due diligence as expressed through the prevention principle, and its procedural extensions through the obligation to cooperate in good faith, particularly by means of notification and consultation, and through the requirement to conduct a prior environmental impact assessment. Despite the fact that commentators have admitted the customary character of many other principles, the only principles effectively recognised in the case law as having an undisputed customary grounding are those addressed in this article. For this reason, the article does not merely select some principles but, rather, it focuses on those customary principles that have been effectively recognised as such. Subsequently, the article analyses each norm in detail as well as the interactions among them. It concludes with a brief reference to the current frontier of customary law in this area highlighting the difficulties arising from a sequential application of these norms, the need to further spell out the requirements of due diligence, and the potential consolidation through this avenue of the precautionary and public participation principles.

Sari: Hybrid Warfare, Law and the Fulda Gap

Aurel Sari (Univ. of Exeter - Law) has posted Hybrid Warfare, Law and the Fulda Gap (in Complex Battle Spaces, Michael Schmitt, Christopher Ford, Shane Reeves & Winston Williams eds., forthcoming). Here's the abstract:
The purpose of this paper is to explore the legal dynamics of hybrid warfare. My central argument is that law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. This requires a clear understanding of the legal dynamics of hybrid threats, awareness of legal vulnerabilities and taking steps to strengthen legal preparedness, deterrence and defense. At the same time, the instrumentalization of law poses profound challenges to the post-Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.

Kleinlein: International Legal Thought: Creation of a Tradition and the Potential of Disciplinary Self-Reflection

Thomas Kleinlein (Goethe Universität Frankfurt – Law) has posted International Legal Thought: Creation of a Tradition and the Potential of Disciplinary Self-Reflection (Global Community Yearbook of International Law and Jurisprudence, forthcoming). Here's the abstract:
This contribution reflects on the role of tradition-building in international law, the implications of the recent ‘turn to history’ and the ‘presentisms’ discernible in the history of international legal thought. It first analyses how international legal thought created its own tradition in the 19th and 20th centuries. These projects of establishing a tradition implied a considerable amount of what historians would reject as ‘presentism’. Remarkably, critical scholars of our day and age who unsettled celebratory histories of international law and unveiled ‘colonial origins’ of international law, were also criticized for committing the ‘sin of anachronism’. The contribution therefore examines the basis of this critique and defends ‘presentism’ in international legal thought. However, the ‘paradox of instrumentalism’ remains that the ‘better’ historical analysis becomes, the more it loses its critical potential for current international law. At best, the turn to history activates a potential of disciplinary self-reflection.

Clapham: Detention by Armed Groups Under International Law

Andrew Clapham (Graduate Institute of International and Development Studies) has posted Detention by Armed Groups Under International Law (International Law Studies, forthcoming). Here's the abstract:
Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.

Sunday, March 26, 2017

Blank: The Extent of Self-Defense Against Terrorist Groups: For How Long and How Far?

Laurie R. Blank (Emory Univ. - Law) has posted The Extent of Self-Defense Against Terrorist Groups: For How Long and How Far? (Israel Yearbook on Human Rights, forthcoming). Here's the abstract:

The post-9/11 environment, in which states may use self-defense as an ongoing and overarching justification and construct for military operations, whether episodic or sustained in nature, against one or more non-state groups for more than fifteen years, poses challenges to the very concept of self-defense. In particular, the ongoing reliance on self-defense in locations and against groups not contemplated at the time of the initial incident triggering the right to self-defense raises essential questions about the extent of self-defense: how far can a state go when acting in self-defense — both in the geographical sense and in the sense of the legitimate aims of using force — and for how long does this right of self-defense last? In this era of extended campaigns against transnational terrorist groups, examination of such questions is essential to an understanding of self-defense and, therefore, an effective assessment of the legality of state action against such groups.

This article explores the extent of self-defense, particularly in the context of a state using force in self-defense against one or more terrorist groups located in one or multiple locations outside the boundaries of the State. After brief foundational background, the article examines how differing conceptions of the legitimate aims of self-defense affect the extent of self-defense and addresses the consequences of an armed conflict paradigm for the parameters of self-defense. Finally, the article raises questions that naturally follow from a state's initial success in countering a terrorist group with armed force and pose new challenges for the self-defense analysis. For example, as a state's military operations damage a group's ability to operate, it will seek new bases from which to operate in different states or regions and it may splinter into multiple groups or reconstitute itself as one or more new groups. Along with the appearance of new groups inspired by or declaring allegiance to the original terrorist group, these developments require further analysis of whether the nature and extent of self-defense changes, and how, in light of the dynamic operational environment for counterterrorism.

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 33, no. 1, March 2017) is out. Contents include:
  • Articles
    • Patrick Dumberry, Shopping for a better deal: the use of MFN clauses to get ‘better’ fair and equitable treatment protection
    • V.K. Rajah, W(h)ither adversarial commercial dispute resolution?
    • Bernardo Sepúlveda-Amor & Merryl Lawry-White, State responsibility and the enforcement of arbitral awards
    • Philip Chong & Blake Primrose, Summary judgment in international arbitrations seated in England
  • Recent Developments
    • John Gaffney, Should the European Union regulate commercial arbitration?
    • Lucy Greenwood, Tipping the balance – diversity and inclusion in international arbitration
    • Gary J. Shaw, Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit
    • Fan Yang, The proper law of the arbitration agreement: Mainland Chinese and English law compared
  • Case Notes
    • Blake Primrose, Separability and stage one of the Sulamérica inquiry
    • Francisco González de Cossío, Mexico’s fantastic three: a pro-arbitration trilogy
    • Kwadwo Sarkodie & Joseph Otoo, Getma v Republic of Guinea—implications for African arbitration