Culture and trade have a longstanding, complex relationship, covering a range of areas from digital products, to intangible cultural heritage, and the diversity of cultural expressions. Some of these areas have been subject to greater research than others. Each area requires an understanding with insights from culture, law and economics. One of the most basic interactions of culture and trade, namely through the illicit trade in cultural property, is typically assumed from a legal perspective to be addressed through the explicit exception in international trade law for measures imposed to protect national treasures. However, the definition of cultural property in the relevant treaty of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) is not necessarily identical to the meaning of national treasures in the law of the World Trade Organization (‘WTO’). Moreover, the WTO Appellate Body has shown reluctance to apply non-WTO law in determining WTO disputes, such that a conflict between relevant UNESCO and WTO provisions or the corresponding domestic regulations might not necessarily be resolved as expected. This conclusion provides one example of the possible limitations of the current Appellate Body approach to broader international law and also suggests, with respect to cultural property, that closer alliance in treaty drafting may be required to ensure greater coherence between these regimes.
Saturday, January 6, 2018
Voon: Restricting Trade in Cultural Property: National Treasures at the Intersection between Cultural Heritage and International Trade Law
Sterio: Self-Determination and Secession Under International Law: The Cases of Kurdistan and Catalonia
Friday, January 5, 2018
- M. Buscemi, La codificazione della responsabilità delle organizzazioni internazionali alla prova dei fatti. Il caso della diffusione del colera a Haiti
- P. Acconci, Biofuel Production through Sustainable Investments from the Standpoint of the European Union
- S. Tonolo, L’evoluzione dei rapporti di filiazione e la riconoscibilità dello status da essi derivante tra ordine pubblico e superiore interesse del minore
- Note e Commenti
- D. Damascelli, La legge applicabile ai rapporti patrimoniali tra coniugi, uniti civilmente e conviventi di fatto nel diritto internazionale privato italiano ed europeo
- M. Fornari, Conflitto in Ucraina, orsi fantasiosi e programmi malevoli
- G. Pascale, Sull’obbligo degli Stati di registrare gli accordi internazionali presso il Segretariato generale delle Nazioni Unite: il caso Jadhav
- M. Lando, The Croatia/Slovenia Arbitral Award of 29 June 2017: Is there a Common Method for Delimiting All Maritime Zones under International Law?
- O. Vanin, L’incidenza dei diritti fondamentali in materia penale sulla ricostruzione dell’ordine pubblico internazionale: il caso del riconoscimento delle decisioni straniere attributive di punitive damages
- Emmanuel Gaillard, Introduction
- Boaz Moselle, Economics and the Meaning of ‘Investment’
- Stanimir Alexandrov, Is There a Legal Definition of ‘Investment’?
- Pierre-Marie Dupuy, About the Definition of an International Investment – The Requirement of a Contribution to the Economic Development of the Host State
- Stephen M. Schwebel, Does the Consent of the Contracting Parties Govern the Requirement of an ‘Investment’ as Specified in Article 25 of the ICSID Convention?
- Michael Pokinghorne & Sven-Michael Volkmer, The Legality Requirement in Investment Arbitration
- Margaret Clare Ryan, Is There a “Nationality” of Investment? Origin of Funds and Territorial Link to the Host State
- Megan Clifford & Christophe Douaire de Bondy, Determining State Intention when Negotiating and Entering into Investment Treaties – A Canadian Perspective /li>
- Roberto Echandi-Gurdián, Determining State Intention when Negotiating and Entering into Investment Treaties – A Developing Country Perspective
- Jae-Hoon Kim, Determining State Intention when Negotiating and Entering into Investment Treaties – A South Korean Perspective
- Doak Bishop & Margrete Stevens, Jurisdiction Ratione Personae – Is There a Standard Definition of an ‘Investor’ in Investment Treaties?
- Yas Banifatemi, Taking Into Account Control Under Denial of Benefits Clauses
- Geneviève Bastid-Burdeau, Defining the Respondent State in Investment Treaty Arbitration: Are There Specific Standards of Jurisdiction?
- Veijo Heiskanen, Entretemps: Is There a Distinction Between Jurisdiction Ratione Temporis and Substantive Protection Ratione Temporis?
- Zachary Douglas, When Does an Investment Treaty Claim Arise? An Excursus on the Anatomy of the Cause of Action
- Florian Kriener, Determining an International Watercourse: The Dispute of Chile v. Bolivia concerning the Silala
- Alamiro Andrés Alfaro Zepeda, Renewable Energy Support in the Light of the World Trade System. The Role of the WTO Agreements in Allowing the Development of Renewable Energy Projects
- Ignacio Odriozola, Sobre aislacionismo y excepcionalidad: Donald J. Trump, los Neoconservadores y el Derecho Internacional
- Comentarios de Jurisprudencia
- Francisco Lertora Pinto, The Application of the Rules on Interpretation of Treaties in the light of the Judgment on Preliminary Objections in the Case between Somalia v. Kenya
Thursday, January 4, 2018
- Michael Fuchs, Der Kampf gegen die Zerstörung von Kulturgut
- Federico Lenzerini, Intentional Destruction of Cultural Heritage, Crimes Against Humanity and Genocide: Towards an Evolutionary Interpretation of International Criminal Law
- Janet Blake, Protection of Intangible Cultural Heritage in the Event of Armed Conflict: An Imperative for Cultural Heritage, Humanitarian and Human Rights Law
- Thomas D. Grant, Autonomy and Self-determination
- Noelle Higgins & Mohamed Bada, The Destruction of Cultural Property in Timbuktu: Challenging the ICC War Crime Paradigm
- Mark V. Vlasic & Jeffrey Paul DeSousa, Combatting Blood Antiquities with Social Impact Television: How we Can Leverage Media to Combat Illicit Markets and Terrorism
- Fiona Macmillan, Heritage, Imperialism and Commodification: How the West Can Always Do It Best
- Marlene Horvat & Alja Lipavic Oštir, Vergessene sprachliche Welt im Westen von Goričko in Slowenien
Standing in the background of the global legal order are a range of what might be called “market principles” or “market givens”-collective presentations or beliefs about how markets work-which are treated as objective descriptions at a particular time and place. This Article argues that such market givens should be understood as a kind of “law in hiding,” shaping the policy space available to states and other actors and affecting global legal developments in important but unrecognized ways. Drawing on examples from global financial law, rules on capital mobility, and sovereign debt practices, I demonstrate how market principles can provide the real substantive content for conventionally recognized law, effectively counter official law, and act as powerful rules in the absence of clear legal standards. I further consider why “law” is a suitable categorization for these market principles, adopting a broad definition that derives from and pushes forward recent international legal scholarship. I contend that deliberately incorporating market principles into our understanding of the global legal order would be not only theoretically plausible but also productive, especially by expanding the field of legal work and activism and by raising important questions about lawmaking mechanisms, accountability, and norm coherence. I also suggest that market principles have thus far escaped attention from lawyers in part because of tendencies and assumptions in multiple variants of international legal scholarship itself.
- Harold Hongju Koh (Yale University), Inaugural Lecture: Schools of International Law in the United States of America
- Catherine Kessedjian (Université Paris II (Panthéon-Assas)), Cours général: Le tiers impartial et indépendant en droit international - Juge, arbitre, médiateur, conciliateur
- Jutta Brunnée (University of Toronto), Procedure and Substance in International Environmental Law
- Ryan Goodman (New York University), International Humanitarian Law and the Use of Lethal Force
- Makane Moïse Mbengue (Université de Genève), Les juridictions internationales et la science
- Jan Paulsson (University of Miami), Issues Arising from Findings of Denial of Justice
- Anne Peters (Max Planck Institute for Comparative Public Law and International Law), International Law and Animals
- Yuval Shany (Hebrew University of Jerusalem), The Extraterritorial Application of International Human Rights Law
In this article, the authors examine the contributions of Shakespearean legal thought to our understanding of core aspects of international dispute settlement. These aspects include: the sweeping role of masks in law and in the resolution of disputes; the construction and deconstruction of authority; the purpose of law in arousing desire and thus action; the limits in recognizing informal international law as law; the benefits of exaggeration; the problematic ambition of adjudicators; the key role of passion, against rationality, in understanding and dealing with international disputes; the decision-making resources to be found in logics of life; exercising measure in the enforcement and reach of law; remembering that law deals with human beings in our quest for law’s purity and systematic organization; resisting single-mindedness; the relevance of a dialectic form of proportionality; and the inescapable need to embrace uncertainty. The authors also discuss the general relevance of law & literature, and law & theatre, for all manner of legal professionals and review Shakespeare’s own legal background and thus his a priori ability to deal with legal matters.
Although appearing to be a relatively benign method of warfare when viewed from a distance, a close examination of maritime blockade unveils a sinister character that can, in cases where countries are highly reliant on imports of foodstuffs to feed their populations, prove incredibly deadly, particularly for the young and elderly. This book is unique in that it is the only contemporary book that is dedicated to the study of the law of maritime blockade in the context of modern humanitarian law.
Reviewing the development of blockade law over the past four centuries, The Law of Maritime Blockade provides a historical analysis of the law as it emerged, tracing its evolution through armed conflicts between 1684 and the present. Referring to the starvation caused by the blockade of Germany during World War I and the humanitarian crisis caused by the sanctions regime against Iraq (1991-2003), this book demonstrates that blockade can have extremely deleterious effects for vulnerable civilian populations. In this context the current law of blockade is examined, and found to be deficient in terms of its protection for civilians. Recognizing and advocating that blockade should remain as a valid and effective method of warfare, the book offers a template for a modern law of maritime blockade that incorporates many of the traditional aspects of the law, while reducing the possibilities that blockades can cause or exacerbate humanitarian disasters.
Wednesday, January 3, 2018
- Larry Catá Backer, The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy
- Eric Blinderman & Myra Din, Hidden by Sovereign Shadows: Improving the Domestic Framework for Deterring State-Sponsored Cybercrime
- Magnus Hörnqvist,·Sovereign Display and Fiscal Techniques: Some Notes on Recent Strategies to Counteract Money Laundering and Terrorist Financing
- Nicholas Calcina Howson, China’s “Corporatization without Privatization” and the Late Nineteenth Century Roots of a Stubborn Path Dependency
- Rainer Hülsse, The Money Mule: Its Discursive Construction and the Implications
- Stephen Kim Park & Tim R. Samples, Tribunalizing Sovereign Debt: Argentina’s Experience with Investor–State Dispute Settlement
- Pammela S. Quinn, “Head-of-State–Owned Enterprise” Immunity
- Research Articles
- David B. Carter & H. E. Goemans, International Trade and Coordination: Tracing Border Effects
- Erik Bleich, Historical Institutionalism and Judicial Decision-Making: Ideas, Institutions, and Actors in French High Court Hate Speech Rulings
- Tulia G. Falleti & Thea N. Riofrancos, Endogenous Participation: Strengthening Prior Consultation in Extractive Economies
- Gabrielle Kruks-Wisner, The Pursuit of Social Welfare: Citizen Claim-Making in Rural India
Mixing insights from critical sociology and legal scholarship, this article analyses the diverging professional interests at play in the Extraordinary Chambers in the Courts of Cambodia (ECCC) and examines how they affect the Chambers’ application of the law. The article shows that judicial interpretation in the ECCC is influenced by two non-legal factors. One is the overall shared interest of the competing groups of professionals occupying the Chambers that the Khmer Rouge leaders are tried before an internationalised rather than purely a domestic court. The other is the profound power battle between the international and the national constituents of the ECCC. In a broader context, the findings of the article point to a fundamental divide between an international market of criminal lawyers promoting a very specific idea of international criminal justice and the local context this market purports to cater to.
Amicus curiae participation in international courts and investment arbitration tribunals is increasing despite lack of clarity on the concept's nature, function and added value in international dispute settlement. The book examines the laws and practices of amicus curiae to assess the concept's status quo, and to determine if it meets the many expectations. Does it infuse proceedings with alternative views and the public interest? Does it increase the legitimacy and transparency of international dispute settlement, or the coherence of international law? Or does it derail the proceedings at the expense of the parties to advance its agenda? The book argues that neither the expectations nor the concerns attached to amicus curiae have materialized. It shows a hesitation by courts with a strong adversarial tradition to consider the views of non-parties, and argues that amicus curiae is not the best vehicle to present a public interest or increase legitimacy. However, it can improve judicial decisions and decision-making if regulated and used properly.
Most free trade agreements signed over the past two decades should more appropriately be called preferential trade and investment agreements (PTIA). Measured in words, investment provisions already occupy more space in the corpus of the 450 trade treaties notified to the World Trade Organization than any other issue area. This chapter introduces the main rules, issues and controversies raised by investment provisions in trade agreements. It provides an overview over investment commitments in trade agreements and sets out the wider policy context in favor of and against the inclusion of such investment rules. It then discusses normative issues raised by investment provisions in trade agreements in their substantive and procedural dimension as well as in relation to their interaction with parallel and often overlapping bilateral investment treaties (BITs). Even though the future inclusion of investment rules in trade agreements, at least in some parts of the world, is uncertain, PTIAs will likely remain a central venue for reforming and updating investment rules.
Tuesday, January 2, 2018
- Lauren Benton & Adam Clulow, Introduction: The Long, Strange History of Protection
- Luca Scholz, Protection and the Channelling of Movement on the Margins of the Holy Roman Empire
- Karen B. Graubart, Containing Law within the Walls: The Protection of Customary Law in Santiago del Cercado, Peru
- Lauren Benton & Adam Clulow, Webs of Protection and Interpolity Zones in the Early Modern World
- Gabriel de Avilez Rocha, Plunder and Profit in the Name of Protection: Royal Iberian Armadas in the Early Atlantic
- Annabel Brett, Protection as a Political Concept in English Political Thought, 1603–51
- Philip J. Stern, Limited Liabilities: The Corporation and the Political Economy of Protection in the British Empire
- David L. Howell, From Nurturing to Protection in Nineteenth-Century Japan
- Bain Attwood, Protection Claims: The British, Maori and the Islands of New Zealand, 1800–40
- Lisa Ford, Protecting the Peace on the Edges of Empire: Commissioners of Crown Lands in New South Wales
- Inge Van Hulle, British Protection, Extraterritoriality and Protectorates in West Africa, 1807–80
- Ahmad Amara, Between Imperial Subjects and Political Partners: Bedouin Borders and Protection in Ottoman Palestine, 1900–17
- Moses E. Ochonu, Protection by Proxy: The Hausa-Fulani as Agents of British Colonial Rule in Northern Nigeria
- Barnaby Crowcroft, The Problem of Protectorates in an Age of Decolonisation: Britain and West Africa, 1955–60
In Europe and the United States, it is common for public discourse to frame Russia as a state 'outside' international law. However, when we consider the evolution of international law since 1800, we see that Russia was both the source and the object of many international juridical innovations. Perhaps most famously, the 1899 Hague Convention on the Laws of War was initiated by Nicholas II and his ministers, while émigré Russians were central to the evolution of legal doctrines regarding statelessness after 1918. At the same time, refugees from the Soviet Union were the object of the first attempts at an international passport system in the interwar period. Soviet lawyers and diplomats consistently engaged with international law after 1945, helping to shape crucial articles in the Nuremberg Charter and proposing influential formulations of economic and social rights in the early United Nations. Meanwhile, Soviet international legal scholars elaborated theories of international law that attempted an (often uneasy) reconciliation of Marxist scepticism of law as a tool of imperialism and a belief that in the era of 'peaceful coexistence' international law could further both Soviet foreign policy goals and the struggle against global capitalism.
As the above brief summary demonstrates, a global history of international law cannot be told without Russia. This workshop will gather both senior and early career scholars from UK, Russian, US, and European academia to reconsider the role of Russia and the Soviet Union in the history of international law. Uniting specialists in the histories of international criminal law, international humanitarian law, private international law, the international law of intellectual property, human rights, and global migration management, the workshop will ask whether there was a distinctive imperial Russian or Soviet approach to international law and if so, how did changed, developed and evolved over the past two hundred years.
Confirmed speakers include: Vladislav Starzhenetskii (Higher School of Economics Moscow), Peter Holquist (University of Pennsylvania), Tatiana Borisova (Higher School of Economics St Petersburg), Bill Bowring (Birkbeck), Kristy Ironside (McGill), Lauri Malksoo (Tartu), Greg Afinogenov (Georgetown), Julia Leikin (Exeter), Valentyna Polunina (Munich), Franziska Exeler (Berlin), Devika Hovell (LSE) and more.
- S. Toe, Le nouveau régime des effets de la dissolution des sociétés unipersonnelles en droit OHADA
- C. Tuekam Tatchum, Les principes directeurs de passation des contrats publics au Cameroun : la difficile gestation d’un code de la commande publique
- P.G. Djessi Djemba, Le délit d’exigence abusive d’une dot en droit camerounais
- G. Giacca & J. Bacharach, Et si le droit suisse affirmait pleinement sa primauté sur le droit international ? Implications juridiques et analyse critique d’un éventuel changement de paradigme
Roth-Isigkeit: The Blinkered Discipline? – Martti Koskenniemi and Interdisciplinary Approaches to International Law
This article is concerned with the debate about interdisciplinary methods in international law, in particular the turn to International Relations. It finds the historical critique of Martti Koskenniemi grounded in a more methodological issue: the turn toward a redefinition of norm properties impedes on the critical discursive quality of law. Shaping this historical critique into a research question that allows for meaningful engagement, the article discusses Koskenniemi’s charges drawing on recent constructivist scholarship. Giving an account of what it means to be ‘obliged’ to obey the law, this article defends the coherence of Koskenniemi’s position and suggests that we should take the critique of the interdisciplinary project between law and International Relations seriously. While it agrees that a significant part of the discourse fails to appreciate the particularities of the law, it suggests that understanding legal obligations requires taking the institutional autonomy of the law into account. Respecting this autonomy, in turn, points to a multi- instead of an interdisciplinary project. The reflexive formalist conception of the law that this article advocates captures the obligating nature of the law, independent of the normative content of particular rules.
Recent economic treaties contain references to labour standards with increasing specificity and stringent enforcement mechanisms. However, despite evidence for continuing massive violations of workers’ rights, forced and child labour, these mechanisms are very seldom used. This article focuses on enforcement in respect of gross and continuing violations of so-called peremptory standards i.e. those generally recognised as norms from which no derogation is permitted (cogent law or ius cogens). It looks at a number of new trade and investment agreements, and conditional tariff preferences. Goods and services produced in violation of clearly peremptory standards not only raise the question of importer involvement. These violations may also cause trade distortions against which importers may take countermeasures, sometimes explicitly in cooperation with non-state stakeholders. Sanctions may consist, for instance, in suspensions of tariff concessions or outright import bans in response to labour standard violations creating trade and investment conditions.
A possible barrier against sanctions are the non-discrimination rules enshrined in all economic treaties which seem to overprotect policy space and hence to also prevent, for instance, countermeasures against social dumping. This is particularly true for the rules framework of the World Trade Organization (WTO) which has no social clauses, but also for economic treaties with few stringent commitments, and a dearth of case law. Adjudicators in litigation cases would then have to decide whether ius cogens does take precedence over WTO and other economic treaty rules. Even though this has never occurred, this article argues that when trade measures are taken against violations of cogent law, they will withstand legal challenges better than would appear from looking at comparable WTO cases involving public morals. At the same time, producers respecting these international bottom lines for employment policies can defend their treaty-enshrined market access rights against unilateral standard setting and protectionism in disguise.
It is too early to contend that economic treaty implementation has become more holistic by adding social and environmental dumping to the list of trade distortions subject to trade remedies. Nonetheless, this article concludes that some peremptory labour standards have become easier to enforce. International Economic Treaty Law still protects against non-trade distorting sanctions. But the new venues described here can limit the race to the bottom, and contribute to sustainable employment even in countries needing ‘more’ rather than ‘better’ jobs.
Monday, January 1, 2018
Scholars Workshop: Challenges to Global Constitutionalism
The editorial team of Global Constitutionalism, in conjunction with PluriCourts, will be organizing a workshop from July 4th to 6th at the WZB Berlin Social Science Center. As part of this workshop we will be running special sessions for scholars interested in publishing in the field of global constitutionalism. Each selected scholar will be invited to present a paper to the workshop. They will also receive extensive feedback on their papers from senior scholars. The expectation is that selected papers, after revisions based upon feedback at the workshop, would be submitted to Global Constitutionalism for peer review with the possibility of publication. This is intended as an opportunity for researchers to receive mentorship in the craft of publishing in peer reviewed journals. Editors from the journal will work closely with the selected scholars throughout the process.
We invite paper proposals on any topic related to global constitutionalism. We define global constitutionalism as the foundations, limitations, and contestations of the principles and norms of political order and their dynamics over time on a global scale. One of the goals of the workshop is to advance global constitutionalism as an interdisciplinary field. Another is to promote the creation of networks of scholars working in similar fields. Thus, we invite submissions from a broad range of disciplines including International Law, Political Science, International Relations, Comparative Constitutional Law, Comparative Politics, Political Theory and Philosophy.
Possible topics include but are not limited to
In order to apply, please submit a paper abstract of up to 400 words and an academic biography of 150 words at email@example.com.
- International courts and contemporary challenges to international courts
- Human rights
- The rule of law from a global perspective
- Contemporary challenges to democracy
- The legitimate role of the judiciary in the global order
- Contestation of global norms
- Global justice
- Transnational democracy
- Post-colonial critiques of global constitutionalism
- Non-western approaches to global constitutionalism
- The implications of the rise of populist and nationalist movements for global constitutionalism
- Global constitutionalism and cultural diversity
The deadline for submissions is February 23rd, 2018.
If you have any questions, please contact: firstname.lastname@example.org.
Most transnational criminal law treaties do not benefit from any sort of monitoring mechanism that would allow states parties or other actors to assess their domestic implementation and enforcement. There are a few exceptions, as treaties and other instruments concerning drug control, corruption, and money laundering are indeed accompanied by monitoring mechanisms. But the general pattern across the field of transnational criminal law is clear. This article explores some possible explanations for why transnational criminal law treaties generally lack monitoring mechanisms, and it also highlights the significance of this absence from a compliance perspective. The article advocates not for the creation of more treaty monitoring bodies in the field of transnational criminal law, but instead seeks to explain their relative absence and its significance for the field. The argument, therefore, is not that monitoring bodies are necessarily desirable and ought to exist in greater numbers in this field, but rather that the absence of these bodies obscures information about compliance and impedes research about what these treaties are actually accomplishing. The current state of treaty monitoring in the field of transnational criminal law is significant because of the extent of what we do not know about the effects of these instruments.
Sunday, December 31, 2017
This chapter examines the so-called 'rule of necessary implication' in treaty interpretation by considering international judicial decisions in three different contexts: implied powers as reflected in decisions of the International Court of Justice and the International Criminal Court; implied jurisdiction in investment treaty arbitration; and necessary implication in the dispute settlement system of the World Trade Organization. In our view, the rule of necessary implication does not form part of customary international law per se but rather reflects treaty interpretation as contained in the Vienna Convention on the Law of Treaties and other customary rules of interpretation. Terms may be implied in a treaty, for example, pursuant to the principle of effectiveness, to give effect to the object and purpose of the treaty, to avoid an absurd result, or to conform with the intentions of the treaty parties.
A characteristic feature of arbitration, a growing form of legal adjudication, is that each disputing party appoints an arbitrator. Commentators, however, suggest that party-appointed arbitrators tend to be biased in favor of their appointers. Evaluating this claim from data on historical disputes is problematic because of nonrandom selection of arbitrators. Here we use a novel experimental approach to estimate the causal effect of the appointing party. Using survey experiments with arbitration experts around the world, we show that professional arbitrators suffer from affiliation effects—a cognitive predisposition to favor the appointing party. At a methodological level, we offer a solution to the problem of measuring this effect when credible observational designs are lacking.
- Determining the existence and content of a dispute: in search for legal criteria
- Introduced by Paolo Palchetti
- Beatrice I. Bonafé, Establishing the Existence of a Dispute before the International Court of Justice: Drawbacks and Implications
- Karin Oellers-Frahm, The awareness requirement and its problematic consequences for the Court’s jurisdiction