- Maxine Burkett, Jainey Bavishi & Erin Shew, Climate Displacement, Migration, and Relocation—And the United States
- Patrick Wall, A New Link in the Chain: Could a Framework Convention for Refugee Responsibility Sharing Fulfil the Promise of the 1967 Protocol?
- Joseph Lelliott, Smuggled and Trafficked Unaccompanied Minors: Towards a Coherent, Protection-Based Approach in International Law
- Jo Wilding, Unaccompanied Children Seeking Asylum in the UK: From Centres of Concentration to a Better Holding Environment
- Jasmine Dawson & Paula Gerber, Assessing the Refugee Claims of LGBTI People: Is the DSSH Model Useful for Determining Claims by Women for Asylum Based on Sexual Orientation?
- Geoff Gilbert, President Trump’s Executive Order: Denying Protection on Holocaust Memorial Day
- Maryellen Fullerton, Trump, Turmoil, and Terrorism: The US Immigration and Refugee Ban
Friday, October 20, 2017
Since 1993, the United Nations has promoted national human rights institutions (NHRIs); these have spread to almost 120 countries. We assess what makes NHRIs effective, using quantitative and qualitative methods. We find that formal institutional safeguards contribute greatly to NHRI efficacy even in authoritarian and transition regimes. Complaint-handling mandates are particularly useful because they help NHRIs build broad bases of support. Our findings show how international organizations can wield great influence with soft tools such as recommendations and peer-review mechanisms.
Fox, Boon, & Jenkins: The United Nations Security Council and the Law of Non-International Armed Conflict
Since the end of the Cold War, the United Nations Security Council has become the preeminent international actor in the resolution of armed conflicts. This is especially true of non-international armed conflicts (or NIACs), now far more common than inter-state armed conflicts (IACs). The Council has developed a substantial track record of quelling hostilities in NIACs, negotiating peace agreements, supervising transitions from war to peace and designing new political and legal institutions for post-conflict societies.
But while the Council’s omnipresence in NIACs is now unremarkable, the legal consequences of its actions have hardly been examined. Few, if any scholars have asked whether obligations the Council has imposed on NIAC parties should contribute to norms of customary international law regulating various aspects of those conflicts. Omitting Council practice makes little sense, given that states have repeatedly turned to the Council as their chosen agent to address NIACs. A continued focus on state action alone could result (and arguably already has resulted) in a body of customary norms that is increasingly disconnected from how the international community actually addresses NIACs.
This article is the first attempt to fill this gap. Our analysis is based on a newly-compiled dataset of all Council resolutions passed on the most consequential NIACs from 1990 to 2013. We coded 1057 Security Council resolutions during that period, representing 56 NIACs. We found the Council has regularly obligated NIAC parties to act in ways that diverge from otherwise-application international law in at least four significant areas.
For example, are peace agreements ending NIACs considered legally binding? Debate involving traditional sources of custom has been indeterminate, but the Council has been clear in its view that such agreements must be followed. Are non-state rebel groups are bound by human rights obligations? Scholars are divided but the Council has been consistent and unequivocal in applying human rights standards to such groups. Should elections be held in the immediate aftermath of peace settlements in NIACs? Some scholars argue there is no more important time to adhere to international standards of democratic politics. Others argue that immediate post-conflict elections are frequently destabilizing and may actually end up undermining democratic transitions. The Council has consistently sided with the former view.
We argue that in imposing these obligations the Council has acted as an agent for other UN member states. In attributing Council-imposed obligations to the entire UN membership, we extend the Council’s preeminent role in the collective security regime to the realm of generating practice constitutive of customary international law. The patterns of obligation found in Council resolutions on NIACs should serve as important evidence of customary international law. Failure to account for the Council’s centrality in resolving NIACs – substantially exceeding national interventions in scope and frequency – would consign this critical international practice to a legal black hole.
Thursday, October 19, 2017
The Australian Journal of Human Rights (AJHR) is currently accepting submissions for Volume 24, Issue 1, 2018.
The Australian Journal of Human Rights is a peer reviewed journal that aims to raise awareness of human rights issues both in Australia and internationally. This is a general issue and you are invited to submit articles in the range of 6,000-8,000 words on any legal aspect of human rights, along with associated philosophical, historical, economic and political issues for consideration.
The deadline for submission of articles for consideration in the AJHR is:
The AJHR uses an online management system for submission of articles and book reviews for publication.
- 1 December 2017 for Issue 24 (1), with a publishing date of April 2018
- 1 March 2018 for Issue 24 (2), with a publishing date of August 2018
SUBMIT YOUR MANUSCRIPT HERE
Please visit here to begin the process. Registration takes only a few minutes.
The AJHR is published three times per year. For more about the AJHR, visit our website.
Questo libro, concepito come un “manuale”, intende mettere a fuoco il “sistema” delle norme vigenti in modo da consentire al lettore di cogliere l’essenza degli istituti giuridici e comprenderne il funzionamento, anche ai fini della risoluzione delle controversie transnazionali. Tante e rilevanti sono le novità normative e giurisprudenziali intervenute in questi ultimi anni ed esaminate in questo volume: riforme che vanno, inter alia, dalla modernizzazione del “sistema Paese” per sviluppare il commercio con l’estero allo sviluppo delle fonti del diritto dell’Unione europea, dalla disciplina dei contratti internazionali a quella dei pagamenti e delle garanzie bancarie internazionali, dalle nuove norme per la soluzione delle controversie transnazionali come il Reg. n.1215/2012 (c.d. Reg. Bruxelles I bis) al nuovo Regolamento di arbitrato e mediazione ICC del 2017.
This book provides the first University textbook of International Business Law in the Italian language designed to provide the theoretical and practical foundations for students and practicioners of this fundamental field of law. It classifies different sources of law affecting trasnational business operations according to their origin and legal system (National (i.e. Italian), European Union, Intergovernmental and non national (i.e. new lex mercatoria and the Unidroit Principles for international Commercial Contracts)as well as identifies the different actors in the field (companies, States, Intergovernmental Organizations, Non Governmental Organizations). In such a framework, rules of International Economic Law (from WTO to the new EU Customs Code, from economic treaties to embargos) provides the setting into which the core contract are operationals. Thus, the main perspective of the book is that of Private International Law by which different rules are applied according to their sphere of applications. Among the topics discussed, there are the main transnational business contracts (i.e. sales, transport, payment methods, insurance, agency and distribution contracts, intellectual property, trade finance, bank guarantees, foreign direct investments) and the the most prominent dispute resolution mechanisms such as Arbitration and ADRs. The book takes into proper account, inter alia, the Unidroit Principles for International Commercial Contracts 2016; EU Regulation n.1215/2012 (c.d. Reg. Bruxelles I bis) and the new ICC Arbitration Rules 2017.
- Symposium on State-Owned Enterprises in China
- Petros C. Mavroidis & Merit E. Janow, Free Markets, State Involvement, and the WTO: Chinese State-Owned Enterprises in the Ring
- Li-Wen Lin, A Network Anatomy of Chinese State-Owned Enterprises
- Andrea Mastromatteo, WTO and SOEs: Article XVII and Related Provisions of the GATT 1994
- Thomas J. Prusa, NMEs and the Double Remedy Problem
- Philip I. Levy, The Treatment of Chinese SOEs in China's WTO Protocol of Accession
- Raj Bhala, TPP, American National Security and Chinese SOEs
- Mark Wu, China's Export Restrictions and the Limits of WTO Law
- William E. Kovacic, Competition Policy and State-Owned Enterprises in China
- Robert Wolfe, Sunshine over Shanghai: Can the WTO Illuminate the Murky World of Chinese SOEs?
- Sam R. Bell, K. Chad Clay, & Carla Martinez Machain, The Effect of US Troop Deployments on Human Rights
- Patrick E. Shea & Charlotte Christian, The Impact of Women Legislators on Humanitarian Military Interventions
- Vera Mironova & Sam Whitt, International Peacekeeping and Positive Peace: Evidence from Kosovo
- Shahryar Minhas & Benjamin J. Radford, Enemy at the Gates: Variation in Economic Growth from Civil Conflict
- Tyler Kustra, HIV/AIDS, Life Expectancy, and the Opportunity Cost Model of Civil War
- Kai A. Konrad & Vai-Lam Mui, The Prince—or Better No Prince? The Strategic Value of Appointing a Successor
- Mauricio Rivera, Authoritarian Institutions and State Repression: The Divergent Effects of Legislatures and Opposition Parties on Personal Integrity Rights
- Michael Kenney, Stephen Coulthart, & Dominick Wright, Structure and Performance in a Violent Extremist Network: The Small-world Solution
- Tim Haesebrouck, NATO Burden Sharing in Libya: A Fuzzy Set Qualitative Comparative Analysis
- Libby Jenke & Christopher Gelp, Theme and Variations: Historical Contingencies in the Causal Model of Interstate Conflict
Over the past few decades, arbitration has become the number one mechanism to settle international investment and commercial disputes. As a parallel development, the international legal framework to combat economic crime became much stronger within the fields of foreign public bribery, private bribery, fraud and money laundering. With frequent allegations of criminal conduct arising in international arbitration proceedings, it is crucially important to consider how such claims can be proven. This book analyses relevant case law involving alleged criminal conduct within international arbitration and addresses the most pressing issues regarding applicable criminal law and evidence. It is an essential resource for practising lawyers and academics active in the field of international investment and commercial arbitration.
- Joel Slawotsky, The Clash of Architects: Impending Developments and Transformations in International Law
- Heng Wang, The RCEP and Its Investment Rules: Learning from Past Chinese FTAs
- S.R. Subramanian, Abuse of Diplomatic Privileges and the Balance between Immunities and the Duty to Respect the Local Laws and Regulations under the Vienna Conventions: The Recent Indian Experience
Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and therefore any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should therefore be secondary, confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this paper is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.
Wednesday, October 18, 2017
An idiosyncratic array of international rules allows “consultants” to gain special access to international officials and lawmakers. Historically, many of these consultants were public-interest associations like Amnesty International. For this reason, the access rules have long been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But focusing on the classic public-law virtues of democracy and legitimacy obscures an important fact: many of these international consultants are now industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their corporate clients.
Lifting the veil on the corporate lobbyists challenges the conventional view, which I call “strong legitimacy optimism,” by bringing a set of longstanding critiques into focus: Consultant associations are not always representatives of the “global public” and consultation is not robust participation in governance. Moreover, the access rules both overregulate and underregulate access to lawmakers, producing a “medieval fair” of unaccountable associations that can obscure meaningful contributions. This critique is particularly salient in the context of business lobbying, where the access rules can shut out valuable business expertise, sacrifice transparency, or unnecessarily expose officials and lawmakers to capture.
This Article introduces a theory of international lobbying law. Reframing the access rules as lobbying regulation delivers explanatory and normative payoffs by focusing reformers on relevant actors and points of access, and promising regulatory tools. Specifically, two regulatory models emerge: One draws on the flawed but best-available registration and disclosure norms of domestic lobbying regulation. The other is a multi-stakeholder model pioneered by 21st century public-private partnership organizations. The Article develops an original typology to organize and identify features of the international access rules across diverse international organizations, thereby clarifying the regulatory tradeoffs that accompany each choice. Perhaps counterintuitively, reformers should likely eschew the most common middle-of-the-road access models — which are grounded in the flawed strong legitimacy optimist view — and instead choose among the two divergent regulatory models, with the choice driven by organizational mission.
Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law?
Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns.
The results highlight the existence of two species or dialects of rights talk — the universalist dialect and the positive-rights dialect — both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community.
The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law.
This paper reflects on the modest role fulfilled by general principles of law in contemporary international legal thought and practice. It submits that the tepidity with which international lawyers have resorted to general principles of law in practice and legal thought — and especially in their expansionist enterprises — is the result of the inability of general principle of law to operate a source of international law. In particular, it is argued here that the miserable fate of general principles of law can be traced back to a choice by early 20th century international lawyers to locate and organize the prevention of non liquet as well as analogical reasoning within the sources of international law. The following will show that the doctrine of sources of international law may not have proved the most adequate framework for the prevention of non liquet and gap-filling function that was bestowed upon general principles of law. It is only once general principles of law come to be construed and deployed in international legal thought and practice as an argumentative technique of content-determination (i.e. a mode of interpretation) and thus not as a source of international law that they have a chance to play a meaningful role in international legal argumentation.
During virtually the same period in which international lawyers began to critically explore the history of their discipline, historians turned to the forgotten pasts of international legal institutions such as the League of Nations, the United Nations, the international human rights system, and related systems of global governance as subjects of historical inquiry, while engaging in a vibrant debate over the meaning of their historiographical shift. Historians describe the turn to the international as a challenge to methodological nationalism. At the same time, international lawyers’ turn to history has been criticized for remaining locked within statist constraints, provoking repeated calls for a ‘global history’ of international law.
This paper explores the link between these statist constraints and the centrality of history of ideas in the history of international law. Studying the history of international law from a history of ideas perspective involves decisions on questions of agency that draw from theoretical predispositions on what international law is. International legal histories often share a vision of international legal history as a history of ideas and, in various ways, the history of ideas as they were advocated and developed by international lawyers. Analyzing the history of international law through the study of the work and thought of prominent international lawyers is tuned to telling a history of law through their theoretical, cultural, and sociological perspectives. This approach therefore remains loyal to their understanding of what international law is and the set of ideas, practices, and institutions they deem relevant for its understanding. The questions they are interested in and the concepts they develop become the questions and concepts we are studying. This methodological perspective provides an intriguing critical window onto international lawyers’ imagined legal world at a particular time and place. However, it also carries important pitfalls. The choice to tell the history of international law through the eyes of those who embrace a particular jurisprudential perspective on the international law field (such as a view that recognizes nothing but states as relevant to their oeuvre) could easily conflate between the historical perspective and the jurisprudential assumptions underpinning the historical inquiry. This could lead to an account of the international legal order as irrelevant to the fate of non-state actors such as corporations, NGOs, minorities, or stateless persons or to ‘non-statist’ aspects of social life such as economic relations or the family. Furthermore, it may be oblivious to ideas about law that may not be confined to such mandarin legality and appear in non-traditional sites and texts.
This paper highlights the relevance of two particular facets in the writings on the history of international law. The first relates to the scholar’s underlying assumptions on the theory of the law, and the second is the theory of law of the agents whose work, ideas, and practices the scholar studies. Bearing in mind the relevance of these theoretical perspectives to our understanding of the history of international law, I wish to explore the link between, on the one hand, the agent we choose to study and her/his theory of the law and, on the other, our own. It further inquires into how studies that move beyond the dominant traditional imagery of the international lawyer as the pre-eminent agent in international legal historiography could change our understanding of international legal history and how might such a shift in understanding, in turn, inform our theoretical predispositions on international law.
Meunier-Aitsahalia & Morin: The European Union and the Space-Time Continuum of Investment Agreements
The 2009 Lisbon Treaty transferred the competence over Foreign Direct Investment (FDI) policy from the national to the supranational level. This article analyses the impact of this transfer on the content of international investment agreements and, more broadly, the shape of the investment regime complex. Is the competence shift expected to have an independent impact or simply reproduce and continue existing trends? Exploring these two conjectures through a combination of text analysis, primary materials, and interviews, we are making a Historical Institutionalist argument focusing on the timing and sequencing of international investment negotiations. While the competence shift has allowed the EU to innovate in developing its own approach to negotiating international investment agreements, notably with the proposal to create an Investment Court System, the novelty may be only at the surface as the constraints of past, current, and future negotiations restrict the options available to EU actors - we call this the space-time continuum. The result of this learning-and-reacting process is a new European approach which simultaneously duplicates and innovates and could eventually favour greater centralization within the investment regime complex.
Tuesday, October 17, 2017
Research that uses economic concepts to analyze international law has generated an impressive body of insights but, as this article will argue, it has nonetheless been limited by a pair of methodological missteps. First, law-and-economics scholarship generally assumes that the standard dilemmas of international cooperation do not apply in the case of the European Union, on the grounds that the EU represents a single super-federation rather than an agreement among sovereign states. That position has proven implausible after Brexit, however, and cannot account for the current unraveling of legal coordination across Europe. Second, the literature assumes that treaties are designed to facilitate the provision of global public goods, and has not incorporated the related economic theory of club goods. That decision is also problematic because a vast body of international agreements concern joint investments in club goods, which raise a distinct set of design problems. Thus, the two “wrong turns” in the economic analysis of international law consist of a misinterpretation of European integration and a neglect of club theory.
This article not only identifies these gaps in the scholarship but also further shows that they remedy one another when analyzed in parallel. On one hand, club theory supplies a framework that can be used to construct a unified explanation of the three recent waves of European disintegration: the Eurozone financial crisis, the collapse of Schengen Area border controls, and Brexit. This includes their underlying causes, the limits of available policy responses, and implications for the EU going forward. On the other hand, a close examination of the treaties underlying European integration proves useful for understanding how other international club good agreements work. Specifically, it reveals that the legal elements that regulate entry and exit in those agreements serve radically different functions than is otherwise predicted by the prevailing theories of treaty design. The result is to flip some classic debates in international law—such as whether treaties “screen or constrain” member states, and the extent to which “flexibility” in treaty obligations can promote international cooperation—on their heads.
APPEL À MANUSCRITS - 2018
La Revue québécoise de droit international (RQDI) souhaite recevoir des manuscrits en vue de la préparation de ses prochains numéros. Depuis son origine, la Revue a pour mission de rendre compte de la recherche et de la pratique en droit international, et ce, dans le domaine public, privé ou comparé, en français, en anglais et en espagnol. Dans cette optique, la revue publie des études, des notes et commentaires, des chroniques de jurisprudence ayant influencé la pratique du droit international au Québec et des recensions d'ouvrages traitant de droit international.
Le lectorat de la RQDI est composé d’universitaires, de juristes, de praticiens du droit et d’étudiants de par le monde. Des bibliothèques de droit et d'administration publique et de nombreuses universités canadiennes, américaines et européennes forment une partie importante des abonnés institutionnels de la Revue. La RQDI est également un instrument de référence pour des entreprises, des cabinets d'avocats et pour des juristes œuvrant au sein d'organismes gouvernementaux. Dans cette perspective, afin de répondre au caractère international et diversifié de la Revue, la RQDI encourage les contributions d’universitaires, de praticiens, de décisionnaires, de chercheurs et d’étudiants à nous soumettre des manuscrits correspondant à sa mission.
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Call for Submissions - 2018
The Quebec Journal of International Law (RQDI: Revue québécoise de droit international) is seeking to receive manuscripts for the preparation of its upcoming issues. Since inception, the journal’s mission is to report on research and practice in the international law field within the public, private and compared area, in French, English and Spanish. With this in mind, the journal publishes studies, notes and comments, and also some chronicles of case law having influenced the practice of international law in Quebec and reviews of books on international law
The RQDI readership is made of academics, lawyers, legal practitioners and students from around the world. Law and public administration libraries as well as many Canadian, American and European universities, make up an important part of the institutional subscribers to the Journal. The RQDI is also a reference guide for companies, law firms and lawyers working in government agencies. In this perspective and in order to meet the international and diversified nature of the Journal, the RQDI encourages contributions from academics, practitioners, policy makers, researchers and students to submit manuscripts in line with its mission.
The manuscripts submitted to the RQDI are subject to an anonymous and rigorous scientific evaluation through a peer review. The Reading Committee with the assistance of the Editorial management team ensures the scientific quality of all manuscripts published by the Journal.
The articles submitted to the reading committee should count a maximum of 12 000 words, incluing footnotes. The manuscripts should be submitted under a ". Doc or. Docx" format using Microsoft Word. The Journal has taken up the writing protocol of the Canadian Guide to Uniform Legal Citation, 8th Edition, and complies with the rules of the legislative drafting style of the RQDI, published by LexisNexis. In addition, the submissions must include a 300 words (max.) abstract written in English, French, and Spanish.
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- Vito De Lucia, Beyond anthropocentrism and ecocentrism: a biopolitical reading of environmental law
- Henry Shue, Climate dreaming: negative emissions, risk transfer, and irreversibility
- Kirsten Davies, Sam Adelman, Anna Grear, Catherine Iorns Magallanes, Tom Kerns & S. Ravi Rajan, ‘The Declaration on Human Rights and Climate Change’: a new legal tool for global policy change
- Vincent Bellinkx & Wouter Vandenhole, Normative guidance for energy governance: sustainable development and human rights
- Julia Dehm, Post Paris reflections: fossil fuels, human rights and the need to excavate new ideas for climate justice
Saul, Føllesdal, & Ulfstein: The International Human Rights Judiciary and National Parliaments: Europe and Beyond
- Matthew Saul, Andreas Føllesdal & Geir Ulfstein, Introduction
- Geir Ulfstein, A transnational separation of powers?
- Kirsten Roberts Lyer & Philippa Webb, Effective parliamentary oversight of human rights
- Jürg Steiner, Citizens' deliberation and human rights
- Alice Donald, Parliaments as compliance partners in the European convention on human rights system
- Theresa Squatrito, Parliamentary interpretation and application of European human rights law
- Matthew Saul, How and when can the international human rights judiciary promote the human rights role of national parliaments?
- Amrei Müller, Obligations to 'secure' the rights of the Convention in an 'effective political democracy': how should parliaments and domestic courts interact?
- Colin Murray, Shifting emergencies from the political to the legal sphere: placing the United Kingdom's derogations from the ECHR in historical context
- Nino Tsereteli, The role of the European Court of Human Rights in facilitating legislative change in cases of long-term delays in implementation
- Leiv Marsteintredet, The Inter-American Court of Human Rights and the mobilisation of parliaments
- Ed Bates, Democratic override (or rejection) and the authority of the Strasbourg court – the UK parliament and prisoner voting
- Colm O'Cinneide, Saying 'no' to Strasbourg – when are national parliaments justified in refusing to give effect to judgments of international human rights courts?
- Andreas Føllesdal, Law making by law breaking? A theory of parliamentary civil disobedience against international human rights courts
- Matthew Saul, Conclusion: how does, could, and should the international human rights judiciary interact with national parliaments?
This chapter proposes a reflection on comparative international courts rather than comparative international law more broadly understood. International courts are approached differently by various legal actors who may be influenced by their own national legal environments. Though there is a long tradition of scholarly thinking about the role of particular national traditions in shaping international law, be it substantive or procedural law, little attention has been paid to the influence of domestic legal cultures and languages on the design and internal organization of international courts. Yet, is there such a thing as a specifically international way of designing and running courts tasked with resolving international disputes? Focusing on the ICJ and its predecessor court, the Permanent Court of International Justice (PCIJ), this chapter aims to make the reach of domestic norms, in particular French legal culture, in the design and daily operation of international courts more salient.
- M Brinton Lykes & Hugo van der Merwe, Exploring/Expanding the Reach of Transitional Justice
- Renee Jeffery, Lia Kent, & Joanne Wallis, Reconceiving the Roles of Religious Civil Society Organizations in Transitional Justice: Evidence from the Solomon Islands, Timor-Leste and Bougainville
- Megan Bradley, More than Misfortune: Recognizing Natural Disasters as a Concern for Transitional Justice
- Kirsten Ainley, Evaluating the Evaluators: Transitional Justice and the Contest of Values
- Amy Rothschild, Victims versus Veterans: Agency, Resistance and Legacies of Timor-Leste’s Truth Commission
- Omer Aijazi & Erin Baines, Relationality, Culpability and Consent in Wartime: Men’s Experiences of Forced Marriage
- Cheryl Lawther, The Truth about Loyalty: Emotions, Ex-Combatants and Transitioning from the Past
- Raluca Grosescu, Judging Communist Crimes in Romania: Transnational and Global Influences
- Sidney Leclercq, Injustice through Transitional Justice? Subversion Strategies in Burundi’s Peace Process and Postconflict Developments
Eckes: Integrated Rights Protection in the European and International Context: Some Reflections About Limits and Consequences
The universal claim of human rights and the cultural and political dimension of fundamental right stand in an apparent tension. The same is true for different regimes of fundamental rights that govern the same substantive situations within the same territory. An integrated rights protection must ideally be able to put these tensions at work in order to attain a justified and adequate level of protection in the European, national and international context.
Different courts make claims about how the different rights regimes should relate to each other, which can be and are justified within the internal logic of their different legal orders. The protection of the individual is in this claim-making only one consideration amongst several. The claims are also strongly influenced by systematic considerations of how the particular decision fits into the specific system; in what way it may change the relationship between the different orders; and ultimately, what it may mean in terms of shifts of powers between different judicial actors or between the judiciary and the other branches of government.
These system specific considerations makes it unlikely that any satisfactory answer can be found in (exclusively) studying judicial practices to questions of how the different regimes should relate to each other or whether they should integrate to reach a more justified and adequate level of protection. This paper argues that the question of how the different regimes should interrelate requires explicating and developing general theoretical considerations of who should decide what a justified and adequate level of rights protection is.
In support of this central argument, the paper firstly explains why fundamental rights protection has been the area in which most tensions have arisen between the different legal orders. Secondly, it sets out the current judicial practice of pursuing rights coherence while keeping external rights regimes at an interpretational distance. Finally it develops its argument that the two central questions are ultimately questions of a theoretical nature: Who should determine the interpretation of human rights norms? How much integration of fundamental rights protection is justifiable and adequate?
“The law behind rule of law transfers”
GoJIL Call for papers
In 2018, with Till Patrik Holterhus as special issue editor, the Goettingen Journal of International Law (GoJIL) will publish a special issue on “The law behind rule of law transfers”.
Globalization and internationalization have led to drastically increased interaction between state and non-state actors, both on the international and supranational level. Such interactions provide a fertile soil for the “transfer” of legal concepts – transfer here to be understood as the inter-regime process of promoting, implementing and safeguarding a legal concept.
One fundamental legal concept that has been and still is a main subject of these transfer processes is the “rule of law”. With roots reaching back into ancient Athens and Rome, the late Middle Ages, the Enlightenment-fostered great Revolutions of the 18th century, and its final conceptual formation in the 19th and 20th century, the rule of law can best be described as a set of principles organizing the relationship between a community and its governing institutions, with the aim of subjecting power to law by institutional and procedural means – namely the existence of general, predictive and enforceable laws; a public monopoly of power; the governing institutions being bound by the law and legitimized by the governed community, and the separation of powers.
The process of transferring the rule of law in regime interactions has extensively been studied in academia. This GoJIL special issue intends to contribute to these efforts by adopting a specific legal perspective that has not yet received much attention – the law that applies to these transfer processes. For this purpose, the issue will feature several case studies that identify and explore the legal sources, norms and procedures that drive and govern the various transfer processes, with a particular focus on transfers occurring in complex, interdependent supranational and international contexts.
Against this background a plethora of relevant and interesting legal regime interactions come to mind. To name only a few, topics could include
- the European Union’s mandate and mechanisms of promoting the rule of law in accession and association processes, as well as the European Union’s enforcement and safeguarding instruments regarding rule of law standards in its member states
- the United Nations’ mandate and methods to promote the rule of law in its member states, e.g. by means of Security Council resolutions
- the normative basis of rule of law implementation in situations and by means of post-conflict administration (by the United Nations or other international actors)
- belligerents’ obligation under international humanitarian law to restore, maintain, and ensure law and order in occupied territories
- rule of law clauses in bi- or plurilateral trade agreements, and the design of interlinked sanction and suspension mechanisms
- the World Bank’s mandate and current rule of law assistance/reform programs and the legal design of their implementation mechanisms
- rule of law-dialogues and their intergovernmental legal arrangements
- integrated and institutionalized rule of law-dialogues between national/European courts and their legal foundations and implications
The submissions deadline for full papers is December 31st, 2017.
For this call for papers, GoJIL will accept abstracts of paper projects submitted before October
15th29th, 2017. If an abstract is submitted, the author will be informed before October 31st, 2017 whether or not GoJIL considers the topic particularly relevant and would appreciate to receive the full paper. The submission of abstracts is not mandatory, but offers an opportunity for early communication with the editors. All full papers received will be submitted to a double-blind peer review. They must be written in English and should not exceed 15,000 words, including footnotes.
The GoJIL article guidelines can be found here. In case of any questions feel free to contact the special issue editor (firstname.lastname@example.org) or the GoJIL Editors-in-Chief (email@example.com).
15th29th, 2017 – Submission of paper abstracts
- October 31st, 2017 – Selection of abstract authors to submit a full paper
- December 31st, 2017 – Submission of full papers (with or without previous abstract)
- January 15th, 2018 – Final selection of published papers
The act of fighting or being a fighter has certain consequences in international law. The most obvious example can be found in international humanitarian law, where a distinction is drawn between fighters and civilians, with fighters being military objectives and civilians being protected from attack. Another example is from international human rights law, where it has been held that the particular characteristics of military life have to be taken into account when interpreting the human rights of members of state armed forces. This volume focuses on the field of international criminal law and asks the question: what relevance does fighting have to victimhood in international criminal law?
Among the topics that are explored are: how have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of an organised armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of a crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity and genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes? The author carries out an in-depth exploration of case law from international criminal courts and tribunals to assess how they have dealt with these questions. She concludes that the import of fighting upon victimhood in the context of international criminal law has not always been appreciated to the extent it should have been.
Call for Papers
Polish Yearbook of International Law
Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXVII), which will be published in June 2018. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works.
Submissions should not exceed 12,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal.
All details about submission procedure and required formatting are available at the PYIL’s webpage.
Please send manuscripts to firstname.lastname@example.org. The deadline for submissions is 31 January 2018.
Monday, October 16, 2017
- Chris Brummer, The Renminbi and Systemic Risk
- Carlo de Stefano, Reforming the Governance of International Financial Law in the Era of Post-Globalization
- David M. Ong, The Asian Infrastructure Investment Bank: Bringing ‘Asian Values’ to Global Economic Governance?
- Emily Lydgate, Is it Rational and Consistent? the Wto’s Surprising Role in Shaping Domestic Public Policy
- Panagiotis Delimatsis, The Evolution of the EU External Trade Policy in Services – CETA, TTIP, and TiSA after Brexit
- Luigi Pedreschi, Balancing Efficacy with Policy Space: the Treatment of Public Services in EU Trade Agreements
- Stephan W. Schill, Reforming Investor–State Dispute Settlement: A (Comparative and International) Constitutional Law Framework
- Gary Horlick & Peggy A. Clarke, Rethinking Subsidy Disciplines for the Future: Policy Options for Reform
- Claus-Dieter Ehlermann, The Workload of the WTO Appellate Body: Problems and Remedies
- Special Issue: Sentencing
- Antje du Bois-Pedain, Guest Editor’s Preface
- Tom O’Malley, Judgment and Calculation in the Selection of Sentence
- Antje du Bois-Pedain, In Defence of Substantial Sentencing Discretion
- Wolfgang Frisch, From Disparity in Sentencing Towards Sentencing Equality: The German Experience
- Julian V. Roberts & Lyndon Harris, Reconceptualising the Custody Threshold in England and Wales
- Stefan Harrendorf, Sentencing Thresholds in German Criminal Law and Practice: Legal and Empirical Aspects
- Chris Maxwell, Non-custodial Dispositions and the Politics of Sentencing
- Anthony E. Bottoms, ‘Punishment’ in Non-custodial Sentences: A Critical Analysis
Das Völkerstrafgesetzbuch bildet die Rechtsgrundlage für die Verfolgung von Völkerrechtsverbrechen durch die deutsche Justiz. Erfasst sind Völkermord, Verbrechen gegen die Menschlichkeit, Kriegsverbrechen und seit kurzem auch das Verbrechen der Aggression. Für die Strafzumessung trifft das Gesetz allerdings keine besonderen Regelungen, sondern verweist auf das allgemeine deutsche Strafzumessungsrecht. Aziz Epik untersucht, ob diese Lösung sachgerecht ist und es ermöglicht, die Besonderheiten dieser Taten bei der Strafzumessung zu berücksichtigen. Zu diesem Zweck unternimmt er eine umfassende vergleichende Analyse des deutschen und des völkerrechtlichen Strafzumessungsrechts und widmet sich insbesondere den maßgeblichen Strafzwecken und Strafrahmen des Völkerstrafgesetzbuches, der Methode der Strafzumessung sowie den dabei zu berücksichtigenden Strafzumessungskriterien.
The German Code of Crimes against International Law (VStGB) forms the legal basis for the German judiciary to prosecute international crimes. In terms of sentencing, the VStGB refers to the general provisions of the German Criminal Code. In light of the specific nature of these crimes, Aziz Epik examines whether this is appropriate by analysing, discussing and comparing the law of sentencing under German and international criminal law.
Latin America and International Law
From February 8 to 9, 2018, the Albrecht Mendelssohn Bartholdy Graduate School of Law (University of Hamburg) in conjunction with Professor José Manuel Barreto Soler (Universidad de los Andes, Universidad Externado) organizes a conference on the history of international law in Latin American. The conference title is roughly borrowed from Alejandro Álvarez' very influential (but also controversially discussed) article "Latin America and Inernational Law" from 1909. Insprired by his work, we aim at exploring the complex relationship between Latin America and international law in the past centuries.
In the last few years, questions concerning Latin America's historic relationship to international law have moved to the focus of academic attention. Several outstanding treatises have been published on and conferences have dealt with this topic. But its study is still a comparably recent academic field (especially in Europe). The conference shall contribute to its further sharpening and to the creation of new perspectives on the study of the history of international law in Latin America.
We therefore invite early as well as established academics working in the field of the history of international law in Latin America to participate in this event and to present and to discuss new ideas in this framework. We look forward to your proposals and to welcome you in Hamburg next year.We would like to invite everybody interested in the study of the history of international law in Latin America to participate in our call and to submit proposals for contributions on any of the listed subtopics (see below).
Please send your application in one single PDF file including
- your proposal of around 300 - 500 words and
- a brief CV (indicating also your institutional affiliation)
until December 3, 2017, to matthias.packeiser"AT"uni-hamburg.de
The selection of speakers will be based on the quality of their abstracts and the abstract's suitability to the overall topic of the conference.
Selected candidates will be informed by December 8, 2017.
At the conference, each speaker will be granted 20 mins for his/her presentation. Each presentation will be followed by 10 min-discussions.
Unfortunately, we are not able to cover travel or accomodation costs.
List of Subtopics:
1. International Law in the Americas before Independence- The conquest of America and the formation of modern international law- Spanish Derecho Indiano and natural rights- International law and the colonisation of the Americas by other European Empires (Portuguese, Dutch, French, British, et al.)- International law and resistance to imperialism (Las Casas, Suárez, Vieira, Guamán Poma, et al.)- Etc.
2. International Law and the Independence in the Americas- Decolonization under 19th century international law- European and U.S. reactions to Latin America's independence- Toussaint Louverture, Miranda, Bolívar, Santander, O'Higgings, et al.- Etc.
3. International Law, United States' Imperialism and Latin America- Hemispherism, inter-Americanism, and Pan-Americanism- U.S. interventions and imperialism (e.g. the Mexican-American War)- The Monroe Doctrine and the Roosevelt Corollary- Etc.
4. The Particularity of Latin American International Law- The discussion on the existence of an independent sphere of international law (Alejandro Álvarez, Amancio Alcorta, Rafael F. Seijas, Manuel de Sá Vianna, Jesús María Yepes, et al.)- Latin American particularities in international law (uti possidetis, compulsory arbitration for the settlement of State to State disputes, norms limiting the right of foreign interventions, et al.)- Etc.
5. International Law, Globalisation, and Latin America- Latin America's role in international law in the 19th and early 20th century- Trade as a motor of international integration? Law as a motor of peace?- Legal equality (e.g. the Second Hague Peace Conference)- Prohibition of the use of force to collect sovereign debt- Etc.
6. New Latin American Approaches to International Law?- Creole, Mestizo, Decolonial international law, etc.
7. Germany and the History of International Law in the Americas- Karl V, Emperor of the Holy Roman Empire, the conquest of America, and the colonisation of Venezuela, New Granada, and the River Plate- German colonial companies, El Dorado and colonial accumulation of capital: The Welser Bank in Klein Venedig- German philosophy, international law, and the colonisation of America: Kant, Hegel, Marx, and Schmitt
Sunday, October 15, 2017
The first part presents an overview of the rise of the first international and comparative law journals in the late 19th century followed by an account of the three factors lying behind the relative fall of the comparative element in the title of some of the international law journals published in French, Russian, Spanish, German, Japanese, Italian and English from 1869 to the end of the First World War. The second part surveys the consolidation of international law periodicals in the interwar period under the impact of the establishment of the League of Nations in both Latin-America and Europe including Nordic and Eastern Europe. The third part examines the expansion and main characteristics of international law journals during the Cold war and their geographical extension towards Asia, Oceania and, occasionally, the Middle East and Africa. The fourth part focuses on the main features of the global post-1989 period in the field of periodicals of international law examining the impact on them of the expansion and sectoral specialization of international law, regionalization, globalization, interdisciplinary and the transformative influence of new technologies respectively. The conclusion reflects on the first one hundred and fifty years of international law journals and points to future developments.