Saturday, August 11, 2018

New Issue: Global Environmental Politics

The latest issue of Global Environmental Politics (Vol. 18, no. 3, August 2018) is out. Contents include:
  • Joshua B. Horton, Jesse L. Reynolds, Holly Jean Buck, Daniel Callies, Stefan Schäfer, David W. Keith, & Steve Rayner, Solar Geoengineering and Democracy
  • Eric K. Chu, Transnational Support for Urban Climate Adaptation: Emerging Forms of Agency and Dependency
  • Ralph Borland, Robert Morrell, & Vanessa Watson, Southern Agency: Navigating Local and Global Imperatives in Climate Research
  • Sandra Schwindenhammer, The New Regionalism in Global Organic Agricultural Governance Through Standards: A Cross-Regional Comparison
  • Jesse Abrams, Erik Nielsen, Diana Diaz, Theresa Selfa, Erika Adams, Jennifer L. Dunn, & Cassandra Moseley, How Do States Benefit from Nonstate Governance? Evidence from Forest Sustainability Certification
  • Ryan Rafaty, Perceptions of Corruption, Political Distrust, and the Weakening of Climate Policy
  • David Ciplet, Kevin M. Adams, Romain Weikmans, & J. Timmons Roberts, The Transformative Capability of Transparency in Global Environmental Governance

Banu: Nineteenth Century Perspectives on Private International Law

Roxana Banu (Western Law School) has published Nineteenth Century Perspectives on Private International Law (Oxford Univ. Press 2018). Here's the abstract:

Private International Law is often criticized for failing to curb private power in the transnational realm. The field appears disinterested or powerless in addressing global economic and social inequality. Scholars have frequently blamed this failure on the separation between private and public international law at the end of the nineteenth century and on private international law's increasing alignment with private law.

Through a contextual historical analysis, Roxana Banu questions these premises. By reviewing a broad range of scholarship from six jurisdictions (the United States, France, Germany, the United Kingdom, Italy, and the Netherlands) she shows that far from injecting an impetus for social justice, the alignment between private and public international law introduced much of private international law's formalism and neutrality. She also uncovers various nineteenth century private law theories that portrayed a social, relationally constituted image of the transnational agent, thus contesting both individualistic and state-centric premises for regulating cross-border inter-personal relations.

Overall, this study argues that the inherited shortcomings of contemporary private international law stem more from the incorporation of nineteenth century theories of sovereignty and state rights than from theoretical premises of private law. In turn, by reconsidering the relational premises of the nineteenth century private law perspectives discussed in this book, Banu contends that private international law could take centre stage in efforts to increase social and economic equality by fostering individual agency and social responsibility in the transnational realm.

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 29, no. 2, May 2018) is out. Contents include:
  • Editorial
    • JHHW, Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System; Authors of EJIL – Customer Care; In this Issue
  • Articles
    • Itamar Mann, Maritime Legal Black Holes: Migration and Rightlessness in International Law
    • Leora Bilsky & Rachel Klagsbrun, The Return of Cultural Genocide?
    • David Kosař & Jan Petrov, Determinants of Compliance Difficulties among ‘Good Compliers’: Implementation of International Human Rights Rulings in the Czech Republic
    • Devika Hovell, The Authority of Universal Jurisdiction
  • Symposium: International Law and the First World War: Belligerency and Neutrality
    • Stephen C Neff, Disrupting a Delicate Balance: The Allied Blockade Policy and the Law of Maritime Neutrality during the Great War
    • Andrew J Norris, Uninvited and Unwelcome: The SS Appam and the US Law of Neutrality
  • Roaming Charges
    • Roaming Charges: Moments of History
  • Focus: Investment Arbitration
    • Gus Van Harten, Leaders in the Expansive and Restrictive Interpretation of Investment Treaties: A Descriptive Study of ISDS Awards to 2010
    • Malcolm Langford & Daniel Behn, Managing Backlash: The Evolving Investment Treaty Arbitrator?
  • Focus: Geography of Human Rights
    • Tilmann Altwicker, Transnationalizing Rights: International Human Rights Law in Cross-Border Contexts
    • Barbara Oomen & Moritz Baumgärtel, Frontier Cities: The Rise of Local Authorities as an Opportunity for International Human Rights Law
  • Review Essay
    • Akbar Rasulov, A Marxism for International Law: A New Agenda
  • Book Reviews
    • Jochen von Bernstorff, reviewing Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century
    • Monica Hakimi, reviewing Ian Hurd, How to Do Things with International Law
    • Jan Klabbers, reviewing Michael Ignatieff, The Ordinary Virtues: Moral Order in a Divided World
  • The Last Page
    • Ela Kotkowska, A Migrant Song

Friday, August 10, 2018

Olásolo: International Criminal Law, Transnational Criminal Organizations and Transitional Justice

Héctor Olásolo (Universidad del Rosario - Law; Instituto Iberoamericano de La Haya) has published International Criminal Law, Transnational Criminal Organizations and Transitional Justice (Brill | Nijhoff 2018). Here's the abstract:
Parties negotiating the end of authoritarian regimes or armed conflicts are almost inevitably left in a situation of legal uncertainty. Despite their overlapping scope of application, the differences between the approaches of International Criminal Law (ICL) and Transitional Justice (TJ) are so profound that, unless dogmatisms are left aside and a process of dialogue is entered into, it will not be possible to harmonize the current legal regime of international crimes with the need to articulate transitional processes that are capable of effectively overcoming authoritarian regimes and armed conflicts. The serious material limitations shown by national, international and hybrid ICL enforcement mechanisms should be acknowledged and the goals pursued by ICL should be redefined accordingly. A minimum level of consensus on the scope of application, goals and elements of TJ should also be reached. Situations of systematic or large scale violence against the civilian population by transnational criminal organizations increase the challenge.

SFDI: Le standard de due diligence et la responsabilité internationale

The Société Française pour le Droit International has published Le standard de due diligence et la responsabilité internationale : Journée d'étude franco-italienne du Mans (Pedone 2018). Contents include:
  • Sarah Cassella, Les travaux de la Commission du droit international sur la responsabilité internationale et le standard de due diligence
  • Yann Kerbrat, Le standard de due diligence, catalyseur d’obligations conventionnelles et coutumières pour les Etats
  • Serena Forlati, L’objet des différentes obligations primaires de diligence : prévention, cessation, répression… ?
  • Karine Bannelier, Le standard de due diligence et la cyber-sécurité
  • Arnaud de Nanteuil, Due diligence et investissements étrangers
  • Helene Raspail, Due diligence et droits de l’homme
  • Gabriella Venturini, Les obligations de diligence dans le droit international humanitaire
  • Sandrine Maljean-Dubois, Les obligations de diligence dans la pratique : la protection de l’environnement
  • Ida Caracciolo, Due diligence et droit de la mer
  • Evelyne Lagrange, La responsabilité des organisations internationales pour violation d’une obligation de diligence
  • Paolo Palchetti, La violation par l’Union européenne d’une obligation de diligence
  • Pasquale de Sena, La « due diligence » et le lien entre le sujet et le risque qu’il faut prévenir : quelques observations
  • Pierre d’Argent & Alexia de Vaucleroy, Le contenu de l’omission illicite : la non utilisation de moyens raisonnables
  • Patrick Jacob, Le contenu de la responsabilité de l’Etat négligent
  • Massimo Starita, Négligence illicite et responsabilités multiples : partage ou cumul de responsabilités ?
  • Riccardo Pisillo Mazzeschi, Le chemin étrange de la due diligence : d’un concept mystérieux à un concept surévalué

Chalabi: National Human Rights Action Planning

Azadeh Chalabi (Ulster Univ. - Law) has published National Human Rights Action Planning (Oxford Univ. Press 2018). Here's the abstract:
This book deals with human rights action planning, as a largely under-researched area, from theoretical, doctrinal, empirical, and practical perspectives, and as such, provides the most comprehensive studies of human rights planning to date. At the theoretical level, by advancing a novel general theory of human rights planning, it offers an alternative to the traditional state-centric model of planning. This new theory contains four sub-theories: contextual, substantive, procedural, and analytical ones. At the doctrinal level, by conducting a textual analysis of core human rights conventions, it reveals the scope and nature of the states' obligation to adopt a plan of action for implementing human rights. At the empirical level, a cross-case analysis of national human rights action plans of 53 countries is conducted exploring the major problems of these plans in different phases of planning and uncovering the underlying causes of these problems. At the practical level, this volume sets out how these plans should be developed and implemented, how they can be best monitored by international human rights bodies, and how to maximize their effectiveness.

Thursday, August 9, 2018

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 13, no. 3, September 2018) is out. Contents include:
  • Daniela Donno & Michael Neureiter, Can human rights conditionality reduce repression? Examining the European Union’s economic agreements
  • Yasemin Bal Gündüz & Masyita Crystallin, Do IMF programs catalyze donor assistance to low-income countries?
  • Asif Efrat & Abraham L. Newman, Divulging data: Domestic determinants of international information sharing
  • Iain Osgood & Yilang Feng, Intellectual property provisions and support for US trade agreements
  • Heidi Hardt, Who matters for memory: Sources of institutional memory in international organization crisis management

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 62, no. 8, September 2018) is out. Contents include:
  • Burcu Savun & Daniel C. Tirone, Foreign Aid as a Counterterrorism Tool: More Liberty, Less Terror?
  • Civil Conflicts Abroad, Foreign Fighters, and Terrorism at Home Alex Braithwaite, Tiffany S. Chu
  • Casey Crisman-Cox, Enemies within: Interactions between Terrorists and Democracies
  • Eric Mvukiyehe, Promoting Political Participation in War-torn Countries: Microlevel Evidence from Postwar Liberia
  • Yossi David, Nimrod Rosler, & Ifat Maoz, Gender-empathic Constructions, Empathy, and Support for Compromise in Intractable Conflict
  • Julia Elad-Strenger & Golan Shahar, Revisiting the Effects of Societal Threat Perceptions on Conflict-related Positions: A Three-wave Study
  • Benjamin A. T. Graham, Noel P. Johnston, & Allison F. Kingsley, Even Constrained Governments Take: The Domestic Politics of Transfer and Expropriation Risks
  • Sarah Kreps & Sarah Maxey, Mechanisms of Morality: Sources of Support for Humanitarian Intervention

Margalit: Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation

Alon Margalit has published Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation: Manoeuvring between Legal Regimes and Paradigms for the Use of Force (Brill | Nijhoff 2018). Here's the abstract:
In Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation Alon Margalit discusses the appropriate State response to civilian casualties caused by its armed forces. Various legal and practical challenges, arising when investigating the fatal consequences of the use of force, are examined through the practice of the US, the UK, Canada and Israel during military operations in Afghanistan, Iraq, Somalia and the occupied Palestinian territory. Alon Margalit considers this topical and sensitive issue within a broader context, namely the public scrutiny of State behaviour and influence of human rights law during armed conflict. The debate over the scope of the duty to investigate reflects competing approaches looking to (re)shape the balance between military necessity and humanitarian considerations.

New Issue: Human Rights Quarterly

The latest issue of the Human Rights Quarterly (Vol. 40, no. 3, August 2018) is out. Contents include:
  • Dustin N. Sharp, Pragmatism and Multidimensionality in Human Rights Advocacy
  • Monika Heupel, How do States Perceive Extraterritorial Human Rights Obligations? Insights from the Universal Periodic Review
  • Jean H. Quataert, A New Look at International Law: Gendering the Practices of Humanitarian Medicine in Europe's "Small Wars," 1879–1907
  • Douglas Irvin-Erickson, Prosecuting Sexual Violence at the Cambodian War Crimes Tribunal: Challenges, Limitations, and Implications
  • Kristine Eck & Christopher J. Fariss, Ill Treatment and Torture in Sweden: A Critique of Cross-Case Comparisons
  • Sara E. Lahti, The Limits of Shock and Shame: An Ethnographic Case Analysis of the Naming and Shaming Technique to Promote Human Rights for the Taalibe Qur'anic School Students of Senegal
  • Lauren Eyler, Saira Mohamed, Isabelle Feldhaus, Rochelle Dicker, & Catherine Juillard, Essential Surgery as a Component of the Right to Health: A Call to Action
  • Siobhán Wills, Use of Deadly Force by Peacekeepers Operating Outside of Armed Conflict Situations: What Laws Apply?

New Issue: Rivista di Diritto Internazionale

The latest issue of the Rivista di Diritto Internazionale (Vol. 101, no. 2, 2018) is out. Contents include:
  • Articoli
    • F. Salerno, L’influenza di Santi Romano sulla dottrina e la prassi italiana di diritto internazionale
    • P. Fois, Il principio del consenso nel diritto dei trattati, dalla Convenzione di Vienna del 1969 al quadro attuale
    • A. Scioli, Il rapporto tra diritto internazionale consuetudinario e ordinamento statunitense nella prospettiva della giurisprudenza ATCA
    • F. Ippolito, Vulnerability on Trial: An Emerging Concept for Strengthening the Protection of Migrants in International Adjudication
  • Note e Commenti
    • Z. Crespi Reghizzi, Domande riconvenzionali davanti alla Corte internazionale di giustizia: l’ordinanza del 15 novembre 2017 nel caso delle pretese violazioni di diritti sovrani e spazi marini nel mare dei Caraibi (Nicaragua c. Colombia)
    • P. Pirrone, Obbligo di conformazione alla pronuncia della Corte di Strasburgo e revocazione della sentenza amministrativa: la sentenza n. 123/2017 della Corte costituziona
  • Panorama
    • M. Arcari, La decisione statunitense di trasferimento dell’ambasciata a Gerusalemme e la portata dell’obbligo di non-riconoscimento in diritto internazionale
    • E. Milano, Tensioni diplomatiche nel Mediterraneo orientale: il caso Saipem 12000
    • P. Franzi, L’inserimento di norme materiali in misure legislative dell’Unione nel campo del diritto internazionale privato

von Staden: Strategies of Compliance with the European Court of Human Rights

Andreas von Staden (Univ. of Hamburg - Political Science) has published Strategies of Compliance with the European Court of Human Rights: Rational Choice Within Normative Constraints (Univ. of Pennsylvania Press 2018). Here's the abstract:

In Strategies of Compliance with the European Court of Human Rights, Andreas von Staden looks at the nature of human rights challenges in two enduring liberal democracies—Germany and the United Kingdom. Employing an ambitious data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, von Staden presents a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, he details how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices.

Framing his analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, von Staden argues that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time—in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.

Call for Engaged Listeners: Conference on "Politics and the Histories of International Law"

The Journal of the History of International Law has issued a call for engaged listeners for its conference on "Politics and the Histories of International Law," which will take place February 15-16, 2019, at the Max Planck Institute for Comparative Public Law and International Law, in Heidelberg. The call is directed at those who are interested in participating in the audience of the conference (not as a speaker) and thus contribute to the discussion. The deadline is September 30, 2018. The full call is here.

Call for Submissions: Roman Yearbook of International Law

The Roman Yearbook of International Law has issued a call for submissions for its inaugural volume. The focus theme is: "The 90th anniversary of the creation of the Vatican City State: an international law perspective." The call is here.

Wednesday, August 8, 2018

Arrabal Ward: Wartime Sexual Violence at the International Level: A Legal Perspective

Caterina E. Arrabal Ward has published Wartime Sexual Violence at the International Level: A Legal Perspective (Brill | Nijhoff 2018). Here's the abstract:
In Wartime Sexual Violence at the International Level: A Legal Perspective Dr. Caterina E. Arrabal Ward discusses the understanding of wartime sexual violence by the international tribunals and argues that wartime sexual violence often takes place without the explicit purpose to destroy a community or population and is not necessarily a strategic choice. This research suggests that a more focused approach based on a much clearer definition of these crimes would help to remedy deficiencies at the different stages of international justice in relation to these crimes.

Moser & Peters: Legal Uncertainty and Indeterminacy – Immutable Characteristics of the OSCE?

Carolyn Moser (Max Planck Institute for Comparative Public Law and International Law) & Anne Peters (Max Planck Institute for Comparative Public Law and International Law) have posted Legal Uncertainty and Indeterminacy – Immutable Characteristics of the OSCE? (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:
This paper disentangles the complex questions relating to the legal status of the Organization for Security and Co-operation in Europe (OSCE). It unfolds in five steps. First, the political context, institutional development and operational realities of the OSCE – from its inception during the Cold War until its present situation – are briefly outlined. Then, the analysis moves on to describe the patchy legal environment of the OSCE, in particular the interrogations revolving around the entity’s legal nature. Thirdly, the discussion turns to the international legal personality, domestic legal capacity and the privileges and immunities of the OSCE. The inquiry brings to the fore its current lack of a unified international legal personality, which is coupled with a lack of explicit and unequivocal rules on domestic legal personality (‘capacity’), both of which, in turn, lead to the status of the OSCE and its members of staff depending on domestic law or, more precisely, on a patchwork of national legal regimes of various participating States. Building on these insights, the fourth section of the paper outlines different formalisation options with a view to coping with the current legal uncertainty and indeterminacy surrounding the OSCE. Finally, the paper sketches out the content of the book by briefly recapitulating the main arguments made by the paper’s authors.

Call for Submissions: Modernisation of the Energy Charter Treaty (ECT)

Transnational Dispute Management has issued a call for submissions for a special issue on "Modernisation of the Energy Charter Treaty (ECT)." The call is here.

Kunz: Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ

Raffaela Kunz (Max Planck Institute for Comparative Public Law and International Law) has posted Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ. Here's the abstract:
Sentenza 238/2014 of the Italian Constitutional Court (ItCC) highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. The Sentenza rather suggests that domestic courts in times of global governance and increased activity of international courts see their role at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This paper does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the ICJ, in reality more often than not, they have refused to do so and deferred in the implementation of its judgments to the political branches. Assessing this practice, the paper argues that domestic courts should take a more active stance and overcome the purely interstate view which seems at odds with present day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the paper cautions that the risk of setting dangerous precedents by openly defying international judgments is considerable. Given that there is no simple way out for domestic courts in cases of conflict between international and domestic (constitutional) law, courts should carefully balance the different interests at stake, namely the interest of an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand, keeping in mind that at the end of the day a functioning international legal system will to a large extent depend on them.

Joyner: Why I Stopped Believing in Customary International Law

Daniel Joyner (Univ. of Alabama - Law) has posted Why I Stopped Believing in Customary International Law (Asian Journal of International Law, forthcoming). Here's the abstract:
There has been a recent proliferation of scholarly treatment on the development, identification, and determination of customary international law (CIL), in response to the International Law Commission’s work program on this topic, which it began in 2012. Much of this scholarship has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. At the same time, there are influential voices who argue that, notwithstanding these problems, some of which they contend are overstated, CIL nevertheless continues to play a practically useful and necessary role in the international legal system, and that there is nothing fundamentally wrong with the orthodox process for identifying CIL. This article maintains that the problems which have been identified by scholars in the processes of identification and determination of CIL, and their implication for the international legal system, are of such a serious and institutionalized nature as to give rise to a presumptive distrust of any statement about what is or is not a rule of CIL. It argues that if CIL is going to retain its place as a source of international legal obligation, the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.

Tuesday, August 7, 2018

Jackson & O'Malley: The Institution of International Order: From the League of Nations to the United Nations

Simon Jackson (Univ. of Birmingham - History) & Alanna O'Malley (Leiden Univ. - History and International Relations) have published The Institution of International Order: From the League of Nations to the United Nations (Routledge 2018). Contents include:
  • Susan Pedersen, Foreword: From the League of Nations to the United Nations.
  • Simon Jackson & Alanna O’Malley, Introduction: Rocking on its Hinges? The League of Nations, the United Nations and the New History of Internationalism in the Twentieth Century.
  • Andrew Arsan, ‘He Tampers with the Source of Life itself who Tampers with Freedom’: Personhood, the State, and the International Community in the Thought of Charles Malik.
  • José Antonio Sánchez Román, From the Tigris to the Amazon: Peripheral Expertise, Impossible Cooperation and Economic Multilateralism at the League of Nations, 1920-1946.
  • Mats Ingulstad & Lucas Lixinski, Pan-American Exceptionalism: Regional International Law as a Challenge to International Institutions.
  • Nathan A. Kurz, Jewish Memory and the Human Right to Petition, 1933-1953.
  • Florian Hannig, The 1971 East Pakistan Crisis and the Origins of the UN’s Engagement with Humanitarian Aid.
  • Nova Robinson, "Women’s point of view was apt to be forgotten": The Liaison Committee of International Women’s Organizations’ Campaign for an International Women’s Convention, 1920-1953.
  • Sarah Shields, The League of Nations and the Transformation of Representation: Sectarianism, Consociationalism, and the Middle East.
  • Konrad M. Lawson, Reimagining the Postwar International Order: The World Federalism of Ozaki Yukio and Kagawa Toyohiko.
  • Miguel Bandeira Jerónimo & José Pedro Monteiro, Internationalism and Empire: The Question of Native Labour in the Portuguese Empire (1929­1962).
  • Ryan Irwin, Epilogue

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 25, no. 4, 2018) is out. Contents include:
  • Haldun Yalçınkaya, Emre Hatipoglu, Dilaver Arıkan Açar & Mitat Çelikpala, Turkish Efforts in Peacekeeping and the Introduction of the TUBAKOV Dataset: An Exploratory Analysis
  • Paolo Foradori, Cops in Foreign Lands: Italy’s Role in International Policing
  • Yf Reykers, Holding Accountable UN-Authorized Enforcement Operations: Tracing Accountability Mechanisms
  • Megan Bastick & Claire Duncanson, Agents of Change? Gender Advisors in NATO Militaries

Alter: The Contested Authority and Legitimacy of International Law: The State Strikes Back

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Contested Authority and Legitimacy of International Law: The State Strikes Back (in Beyond Anarchy: Rule and Authority in the International System, Christopher Daase & Nicole Dietelhoff eds., forthcoming). Here's the abstract:
Written to engage IR theory debates, this chapter argues that the crafting, invocation, interpretation and application of international law are a primary means through which states collectively rule and contest politics in international relations today. Yet since international law (IL) draws its legitimacy and authority from public affirmations of and diffuse support for the rule of law, public support for the rule of law is a permissive condition for IL to be politically constraining. After explaining how national and transnational legal practices constitute international law’s de facto authority, the chapter explores both ordinary and extraordinary contestations of IL authority. Ordinary contestation takes place within a legal field, when lawyers, stakeholders, judges and government officials debate and contest over the meaning of international law. Political tactics are also part of ordinary contestation, but because the curators of IL authority are transnational, a state may be unable to impose its preferred IL interpretation. Where states fail to impose a preferred interpretation, three extra-ordinary contestation strategies can be used to escape IL authority: 1) states can seek to replace international law’s authority with domestic law’s authority; 2) states can pit different international laws against each other by maneuvering within and around international regime complexes; and (3) states can attack the legitimacy and authority of international law altogether. Where authority challenges enhance IL accountability, they are to be welcome. But each strategy can also be used to tear at the fabric of IL authority, potentially undermining the permissive conditions that make IL both constraining and effective.

Killean: Victims, Atrocity and International Criminal Justice: Lessons from Cambodia

Rachel Killean (Queen's Univ. Belfast - Law) has published Victims, Atrocity and International Criminal Justice: Lessons from Cambodia (Routledge 2018). Here's the abstract:
While international criminal courts have often been declared as bringing ‘justice’ to victims, their procedures and outcomes historically showed little reflection of the needs and interests of victims themselves. This situation has changed significantly over the last sixty years; victims are increasingly acknowledged as having various ‘rights’, while their need for justice has been deployed as a means of justifying the establishment of international criminal courts. However, it is arguable that the goals of political and legal elites continue to be given precedence, and the ability of courts to deliver ‘justice to victims’ remains contested. This book contributes to this important debate through an examination of the role of victims as civil parties within the Extraordinary Chambers in the Courts of Cambodia. Drawing on a series of interviews with civil parties, court practitioners and civil society actors, the book explores the way in which both the ECCC and the role of victims within it are shaped by specific political, economic and legal contexts; examining the ‘gap’ between the legitimising value of the ‘imagined victim’, and the extent to which victims are able to further their interests within the courtroom.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 94, no. 4, July 2018) is out. Contents include:
  • Japan's Pivot in Asia
    • Richard J. Samuels & Corey Wallace, Introduction: Japan's pivot in Asia
    • Shogo Suzuki & Corey Wallace, Explaining Japan's response to geopolitical vulnerability
    • Alexandra Sakaki & Junya Nishino, Japan's South Korea predicament
    • Bjørn Elias Mikalsen Grønning, Operational and industrial military integration: extending the frontiers of the Japan–US alliance
    • Mayumi Fukushima & Richard J. Samuels, Japan's National Security Council: filling the whole of government?
    • Takako Hikotani, The Japanese Diet and defence policy-making
    • Tomohiko Satake & John Hemmings, Japan–Australia security cooperation in the bilateral and multilateral contexts
    • Rohan Mukherjee, Japan's strategic outreach to India and the prospects of a Japan–India alliance
    • James D. J. Brown, Japan's security cooperation with Russia: neutralizing the threat of a China–Russia united front
    • Corey Wallace, Leaving (north-east) Asia? Japan's southern strategy
    • Masanori Nishi, Reflections of a practitioner: strategic adaptation in Japan since the 1970s

Bacchus: The Willing World: Shaping and Sharing a Sustainable Global Prosperity

James Bacchus (Univ. of Central Florida; formerly, Appellate Body, World Trade Organization) has published The Willing World: Shaping and Sharing a Sustainable Global Prosperity (Cambridge Univ. Press 2018). Here's the abstract:
In this time of unwillingness, the right kinds of global solutions are needed now more than ever. Climate change is here and intensifying. Anxieties over economic globalization grip many in the fear of change. While these fearful have turned inward into unwillingness, the world's willing are working harder than ever for international and other cooperative solutions. James Bacchus explains why most of the solutions we need must be found in local and regional partnerships of the willing that can be scaled up and linked up worldwide. This can only be achieved within new and enhanced enabling frameworks of global and other international rules that are upheld through the international rule of law. To succeed, these rules and frameworks must for the first time see and treat economy and environment as one. The Willing World explains how best we can build the right legal structure to attain our global goals - and summon and inspire the willingness needed to do it.

Lattimer & Sands: The Grey Zone: Civilian Protection Between Human Rights and the Laws of War

Mark Lattimer (Ceasefire Centre for Civilian Rights) & Philippe Sands (Univ. College London - Law) have published The Grey Zone: Civilian Protection Between Human Rights and the Laws of War (Hart Publishing 2018). Contents include:
  • Emily Crawford, Who Is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities
  • Mark Lattimer, The Duty in International Law to Investigate Civilian Deaths in Armed Conflict
  • Amichai Cohen, Protection by Process: Implementing the Principle of Proportionality in Contemporary Armed Conflicts
  • Stuart Casey-Maslen, Regulating Armed Drones and Other Emerging Weapons Technologies
  • Pavle Kilibarda & Gloria Gaggioli, The Globalisation of Non-International Armed Conflicts
  • Françoise J Hampson, Administrative Detention in Non-International Armed Conflicts
  • Lois Moore & Christine Chinkin, The Crime of Rape in Military and Civilian Jurisdictions
  • Carla Ferstman, The Right to Reparation for Victims of Armed Conflict
  • Sharon Weill, Arguing International Humanitarian Law Standards in National Courts-A Spectrum of Expectations
  • Bill Bowring, The Death of Lex Specialis? Regional Human Rights Mechanisms and the Protection of Civilians in Armed Conflict
  • Cedric Ryngaert, Extraterritorial Obligations under Human Rights Law
  • Liesbeth Zegveld, What Duties Do Peacekeepers Owe Civilians? Lessons from the Nuhanovic Case
  • Blinne Ní Ghrálaigh, Civilian Protection and the Arms Trade Treaty
  • Valentin Zellweger & François Voeffray, A Path Towards Greater Respect for International Humanitarian Law
  • Jennifer M Welsh, The Responsibility to Protect and Non-State Armed Groups
  • Carrie McDougall, Protecting Civilians by Criminalising the Most Serious Forms of the Illegal Use of Force: Activating the International Criminal Court's Jurisdiction over the Crime of Aggression
  • Leila Nadya Sadat, Elements and Innovations in a New Global Treaty on Crimes Against Humanity

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 52, no. 4, 2018) is out. Contents include:
  • Bradly J. Condon, Captain America and the Tarnishing of the Crown: The Feud Between the WTO Appellate Body and the USA
  • Linda J. Allen, Reassessing the ‘Green’ in NAFTA/li>
  • Mark S. Langevin, Foot Dragging or Strategic Withdrawal? The Cotton Dispute and Executive Compliance
  • Martín Molinuevo, Brexit: Trade Governance and Legal Implications for Third Countries/li>
  • Guy Harpaz, The Front Polisario Verdict and the Gap Between the EU’s Trade Treatment of Western Sahara and Its Treatment of the Occupied Palestinian Territories/li>
  • Bashar H. Malkawi & Joel Slawotsky, The League of Arab States Trade Boycott of Israel a Passé: Time for Renewed Debate/li>
  • Elena Cima, Promoting Renewable Energy Through FTAs? The Legal Implications of a New Generation of Trade Agreements

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 19, no. 4, 2018) is out. Contents include:
  • Patrick Dumberry, State Succession to State Contracts: A New Framework of Analysis for an Unexplored Question
  • Robert W. Schwieder, Legal Aid and Investment Treaty Disputes: Lessons Learned from the Advisory Centre on WTO Law and Investment Experiences
  • Kristen E. Boon, Investment Treaty Arbitration: Making a Place for Small Claims
  • Panagiotis A. Kyriakou, Mitigating the Risks Entailed in Shareholders’ Claims for Reflective Loss: Suggestions for Investment Treaty Reform
  • Seljan Verdiyeva, The Eurasian Economic Union: Problems and Prospects

Conference: Le traité de Versailles : Regards franco-allemands en droit international à l'occasion du centenaire

On September 28-29, 2018, the Centre des études internationales et européennes at the Université de Strasbourg will hold a conference on "Le traité de Versailles : Regards franco-allemands en droit international à l'occasion du centenaire / The Versailles Treaty: French and German Perspectives in International Law on the Occasion of the Centenary." The program is here. Preceding the conference, on September 26-27, there will be a Young Researchers Workshop on the subject of "Le principe d’autodétermination un siècle après le traité de Versailles : d’hier à aujourd’hui – et demain ? / Das Selbstbestimmungsprinzip ein Jahrhundert nach dem Versailler Vertrag: Von gestern bis heute - und morgen?" The program is here.

Macak: Internationalized Armed Conflicts in International Law

Kubo Macak (Univ. of Exeter - Law) has published Internationalized Armed Conflicts in International Law (Oxford Univ. Press 2018). Here's the abstract:

This book provides the first comprehensive analysis of factors that transform a prima facie non-international armed conflict (NIAC) into an international armed conflict (IAC) and the consequences that follow from this process of internationalization. It examines in detail the historical development as well as the current state of the relevant rules of international humanitarian law. The discussion is grounded in general international law, complemented with abundant references to case law, and illustrated by examples from twentieth and twenty-first century armed conflicts.

In Part I, the book puts forward a thorough catalogue of modalities of conflict internationalization that includes outside intervention, State dissolution, and recognition of belligerency. It then specifically considers the legal qualification of complex situations that feature more than two conflict parties and contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization.

Part II of the book challenges the conventional wisdom that members of non-State armed groups do not normally benefit from combatant status. It argues that the majority of fighters belonging to non-State armed groups in most types of internationalized armed conflicts are in fact eligible for combatant status.

Finally, Part III turns to belligerent occupation, traditionally understood as a leading example of a notion that cannot be transposed to armed conflicts occurring in the territory of a single State. By contrast, the book argues in favour of the applicability of the law of belligerent occupation to internationalized armed conflicts.

Ruiz Abou-Nigm, McCall-Smith, & French: Linkages and Boundaries in Private and Public International Law

Veronica Ruiz Abou-Nigm (Univ. of Edinburgh - Law), Kasey McCall-Smith (Univ. of Edinburgh - Law), & Duncan French (Univ. of Lincoln - Law) have published Linkages and Boundaries in Private and Public International Law (Hart Publishing 2018). Contents include:
  • Verónica Ruiz Abou-Nigm, Kasey McCall-Smith & Duncan French, Introduction: Systemic Dialogue: Identifying Commonalities and Exploring Linkages in Private and Public International Law
  • Alex Mills, Connecting Public and Private International Law
  • Jean d'Aspremont & Francesco Giglio, Windows in International Law
  • Kirsty J Hood, 'International' Rules in an Internal Setting
  • Duncan French & Verónica Ruiz Abou-Nigm, Jurisdiction: Betwixt Unilateralism and Global Coordination
  • Richard Collins & María Mercedes Albornoz, On the Dwindling Divide between the Public and Private: The Role of Soft Law Instruments in Global Governance
  • María Blanca Noodt Taquela & Ana María Daza-Clark, The Role of Global Values in the Evaluation of Public Policy in International Investment and Commercial Arbitration
  • Kasey McCall-Smith & Andreas Rühmkorf, Reconciling Human Rights and Supply Chain Management through Corporate Social Responsibility
  • Elisa Morgera & Lorna Gillies, Realising the Objectives of Public International Environmental Law through Private Contracts: The Need for a Dialogue with Private International Law Scholars
  • Sharon E Foster, International Investment Arbitration and the Arduous Route to Transparency
  • Dimitrios Kagiaros & Amanda Wyper, Protecting Whistleblowers: The Roles of Public and Private International Law

Monday, August 6, 2018

Chehtman: International Law and Constitutional Law in Latin America

Alejandro Chehtman (Universidad Torcuato Di Tella - Law) has posted International Law and Constitutional Law in Latin America (in The Oxford Handbook of Constitutional Law in Latin America, Conrado Hübner Mendes & Roberto Gargarella eds., forthcoming). Here's the abstract:
This contribution examines the relationship between international law and domestic law in Latin America. It assesses whether international norms can be validly invoked before local authorities, what the hierarchy conferred upon them is, as well as the status of decisions and other pronouncements by supranational bodies, most notably those of the Inter-American System. All in all, it documents the increasing importance that international law has achieved within Latin American legal systems since the wave of Constitutional reforms that started in the mid-1980s. In this context, it highlights the privileged status generally conferred upon international human rights law, within domestic constitutional systems, by means of its constitutionalization. However, on the basis of three cases-studies on Argentina, Mexico and Colombia, this contribution shows that in practice domestic authorities have had a zigzagging attitude vis-à-vis the hierarchy and applicability of international human rights norms, particularly with respect to the decisions of the Inter-American Court of Human Rights. Ultimately, I argue that this particular feature can be explained neither by the relevant legal provisions in the American Convention on Human Rights or in the national Constitutions, nor through the expansive jurisprudence of the Inter-American Court of Human Rights. Rather, the best explanation for it is through the political needs of local high courts at different times. Nevertheless, this ultimately shows that despite what all of these courts state in their jurisprudence, we lack an adequate model to regulate the specific terms of the relationship between domestic courts and their supranational counterparts.

Shaffer: Retooling Trade Agreements for Social Inclusion

Gregory Shaffer (Univ. of California, Irvine - Law) has posted Retooling Trade Agreements for Social Inclusion (University of Illinois Law Review, forthcoming). Here's the abstract:
International trade law has been oblivious to social inclusion. It is not the reason for the weakening of the U.S. economy and entrenchments of poverty, but it is nevertheless blamed for them, including the shuttering of factories, joblessness, and even homelessness. Although it is not primarily to blame, it is not wholly innocent either. International trade law plays a powerful role in fomenting the conditions under which people may thrive, implicating social equality and inclusion. This Article addresses why international trade law needs to be structured in ways that support social inclusion if society is to turn the tide against rising neo-nationalism, racism, and authoritarianism. The impacts of trade and rapid technological change on income inequality and the security of work have become politically salient issues in the United States and Europe. They have led to the rise of nativist political parties that threaten to upset the international institutional framework. The outcome could be dire. The Article shows how international economic law can and should be retooled. By doing so, it can: (i) help combat harmful tax competition, avoidance, and evasion; (ii) aid domestic social security and job retraining; (iii) support labor protection; (iv) deter social dumping; and (v) enable industrial policy experimentation for development.

Ambos: Wirtschaftsvölkerstrafrecht: Grundlagen der völkerstrafrechtlichen Verantwortlichkeit von Unternehmen

Kai Ambos (Universität Göttingen - Law) has published Wirtschaftsvölkerstrafrecht: Grundlagen der völkerstrafrechtlichen Verantwortlichkeit von Unternehmen (Duncker & Humblot 2018). Here's the abstract:
Die Frage der strafrechtlichen Haftung transnationaler Wirtschaftsunternehmen für völkerrechtliche Verbrechen gewinnt zunehmend an Bedeutung. Nach begrifflichen Vorbemerkungen werden zunächst die Formen der Unternehmensbeteiligung an solchen Verbrechen sowie die Praxis seit Nürnberg dargestellt. Dieser lässt sich eine Tendenz zur Unternehmungshaftung entnehmen. Aus diesem Grund und weil Unternehmen letztlich durch ihre Mitarbeiter handeln, kann die Haftung nicht rein kollektiv – im Sinne eines reinen Organisationsmodells –, sondern nur auf der Grundlage des Zurechnungsmodells überzeugend begründet werden, und zwar als derivative, auf Aufsichts- bzw. Organisationsverschulden beruhende Unternehmenshaftung. Der individualstrafrechtliche Ansatz des Zurechnungsmodells verweist auf die bekannten Formen strafbarer Beteiligung, wobei insbesondere eine Beihilfehaftung in Betracht kommt. Alles in allem wird jedoch vor zu hohen Erwartungen an eine (völker)strafrechtliche Unternehmenshaftung gewarnt. Das Strafrecht kann auch hier nur als Teil eines ganzheitlichen Ansatzes (beschränkte) präventive Wirkungen entfalten.

Milanovic & Papic: The Applicability of the ECHR in Contested Territories

Marko Milanovic (Univ. of Nottingham - Law) & Tatjana Papic (Union Univ. Belgrade - Law) have posted The Applicability of the ECHR in Contested Territories (International and Comparative Law Quarterly, forthcoming). Here's the abstract:
This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Conference: 16° Congresso Brasileiro de Direito Internacional

On August 22-25, 2018, the Academia Brasileira de Direito Internacional will hold the 16° Congresso Brasileiro de Direito Internacional, in Foz do Iguaçu. The theme is: "O Direito Internacional: Democracia, multilateralismo e diversidade."

Sunday, August 5, 2018

Call for Papers: 11th Melbourne Doctoral Forum on Legal Theory

The Melbourne Doctoral Forum on Legal Theory has issued a call for papers for this year’s forum, which will take place December 4-5, 2018. Here's the call:

Facts, Law and Critique

The 11th Melbourne Doctoral Forum on Legal Theory will take place on 4 and 5 December 2018. The Forum brings together graduate researchers and early career scholars from a range of disciplines and backgrounds to think methodologically, theoretically and critically about law and legal theory. The theme for this year’s Forum is ‘Facts, Law and Critique’.

Facts sustain law and legal institutions. Contesting, debating, and then, ‘finding’ or establishing facts is seen as essential to the process of law-making that follows. But, far from acting on or applying to a set of pre-existing facts, law produces, writes and determines its own facts, knowledges and truths. And the politics, procedures and histories of legal facts, unlike the law itself, are often taken as given, establishing a dichotomy between contesting the legal and accepting what remains outside of, or prior to, law. The recent unsettling of our contemporary faith in facts, objectivity, and transparency as a form of public knowledge and a precondition for politics provides us with an opportunity to revisit the relationship between law and facts.

In this Forum, we invite papers critically examining the relationship between facts and law as it relates to your own research. How can understanding the way in which facts — as well as institutions, procedures and methods for finding facts — have been established and contested over time and throughout history shed new light on the present moment? How does law develop and reach out for technologies which establish facts through particular means? How does selecting and assembling facts in particular ways use law to establish and embed particular narratives? What is the place of critique in a time in which facts are ‘alternative’, or in struggles over who is authorised to produce truth? How does examining processes of fact-finding highlight the politics of legal facts and the exercise of power they represent? What is seen, and what lives become unseen, as law and law’s facts come to constitute a way of experiencing the world?

Possible ways of addressing the topic might include, but are not limited to:

  • Facts and institutions, including legal procedures of establishing facts such as international fact-finding missions, commissions of inquiry and truth commissions
  • Facts and representation, including the role of media, art and the image in law and legal analysis
  • Facts and empirics, such as work critiquing the role of data, technology, and the turn to economic and quantitative analysis in law
  • Facts and courts, agreed and disputed facts, evidential processes and the judgment as public record
  • Facts and governance, including the place of, and challenges to, objectivity, publicity, and transparency in contemporary forms of legal governance and law
  • Facts and epistemologies, including indigenous forms of knowledge, fact and law, as well as epistemologies of the South
  • Custom as law and the translation of fact and practice into law
  • Facts and imperialism, and the role of history in critiquing or recreating imperialist narratives and knowledges
  • Queer theory, ontology and the selectivity of law’s facts
  • Feminist critiques of the divide between law and fact
  • The craft of the lawyer: lawyers’ agency in and responsibility for the making of law and fact.

Please submit abstracts of up to 500 words and biographies of up to 200 words to Melbourne Doctoral Forum on Legal Theory by 5 September 2018. Applicants will receive a response by late September.

We particularly invite applications from those interested in exploring methodological questions within the collegial and supportive environment of the Forum. Depending on interest, we may organise sessions specifically focusing on questions of method. If you are interested in participating in one of these sessions, please indicate this and address these questions in your abstract.

A limited number of travel bursaries are available for interstate and international presenting participants who are unable to claim sufficient funding from their home institution. Please indicate in your application whether you wish to be considered for a bursary.

Zhu: China and the International Criminal Court

Dan Zhu (Fudan Univ. - Law) has published China and the International Criminal Court (Palgrave 2018). Here's the abstract:
This book focuses on the evolving relationship between China and the International Criminal Court (ICC). It examines the substantive issues that have restricted China’s engagement with the ICC to date, and provides a comprehensive assessment of whether these Chinese concerns still constitute a significant impediment to China’s accession to the ICC in the years to come. The book places the China-ICC relationship within the wider context of China’s interactions with international judicial bodies, and uses the ICC as an example to reflect China’s engagement with international institutions and global governance in general. It seeks to offer a thought-provoking resource to international law and international relations scholars, legal practitioners, government legal advisers, and policy-makers about the nature, scope, and consequences of the relationship between China and the ICC, as well as its impact on both global governance and order. This book is the first of its kind to explore China’s engagement with the ICC primarily from a legal perspective.

New Issue: Review of European, Comparative & International Environmental Law

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 27, no. 2, July 2018) is out. Contents include:
  • Original Articles
    • Vito De Lucia, A critical interrogation of the relation between the ecosystem approach and ecosystem services
    • Shawkat Alam & Sheikh Noor Mohammad, Applying the ecosystem approach to the Sundarbans of Bangladesh: Possibilities and challenges
    • Benoit Mayer, Obligations of conduct in the international law on climate change: A defence
    • Edwin Alblas, Conflicting goals and mixed rationales: A closer look at the objectives of EU environmental law in light of the Anthropocene
    • Viktor Weber, Uncertain liability and stagnating CCS deployment in the European Union: Is it the Member States’ turn?
    • Janja Hojnik, Ecological modernization through servitization: EU regulatory support for sustainable product–service systems
    • Maria Chochorelou & Carlos Espaliu Berdud, Sustainable development in new generation FTAs: Could arbitrators further the principle through ISDS?
    • Andrew Craig Blackmore, Rediscovering the origins and inclusion of the public trust doctrine in South African environmental law: A speculative analysis
  • Case Note
    • Melissa Powers, Juliana v United States: The next frontier in US climate mitigation?

Dumberry: A Guide to State Succession in International Investment Law

Patrick Dumberry (Univ. of Ottawa - Law) has published A Guide to State Succession in International Investment Law (Edward Elgar Publishing 2018). Here's the abstract:
A Guide to State Succession in International Investment Law provides a comprehensive analysis of State succession issues arising in the context of international investment law. The author examines whether a successor State is bound by the investment treaties and State contracts which the predecessor State had signed with other States and foreign investors before the date of succession. Actors who are called upon to apply rules of State succession in investment arbitration cases will find this book a valuable source of practical guidance with strong theoretical foundations.

Call for Submissions: Trade, Law and Development

The journal Trade, Law and Development has issued a call for submissions for its Winter 2018 issue (Vol. 10, no. 2). The call is here.

Call for Papers: Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?

The European Research Council Project "Transnational Private-Public Arbitration as Global Regulatory Governance: Exploring The Lex Mercatoria Publica" at the Amsterdam Center of International Law has issued a call for papers for a workshop on "Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?" to take place February 27-March 1, 2019, at the University of Amsterdam. Here's the call:

Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?

Organised by the ERC Project 'Transnational Private-Public Arbitration as Global Regulatory Governance: Exploring The Lex Mercatoria Publica', Amsterdam Center of International Law (ACIL)

1. Theme of the Workshop

International law today is marked by ‘judicialization’ as a result of the unprecedented proliferation of international courts and tribunals. Great emphasis in this context has been put on how international courts and tribunals engage with – interpret, apply and further develop – international law, both general and specific, such as human rights, foreign investment or international trade law. Scholars have analyzed this engagement from various theoretical and methodological angles. One conclusion they share is that international courts and tribunals do more than passively find and apply international law; they actively make international law.

By contrast, what is often neglected, is that international courts and tribunals regularly engage with domestic law. This can concern incidental questions, such as the determination of nationality, the validity of domestic property rights, or the legality under domestic law of government conduct. In some cases, domestic law even constitutes (or forms part of) the applicable law to an international dispute. Under Article 42(1) of the ICSID Convention, for example, the law of the respondent state is the default option. However, even when the applicable law is exclusively international law,  international courts and tribunals regularly have to engage with domestic law to assess whether States have breached their international obligations. This is the case in all international dispute settlement fora. The assessment of (the exhaustion or non-exhaustion of) domestic legal remedies by the International Court of Justice (ICJ), the review of domestic trade regulations by the WTO Dispute Settlement System, the scrutiny of domestic legal proceedings by the European Court of Human Rights (ECtHR) and the examination of domestic fisheries legislation (and related enforcement actions) by the International Tribunal for the Law of the Sea (ITLOS) are but a few examples.

A pivotal, yet underexplored question is how international courts and tribunals engage with domestic law and what effect that engagement has on the domestic law in question. Do international courts and tribunals only passively ‘find’ the law by treating it itself as a fact and apply it to the facts of the case at hand? Or do international courts and tribunals creatively work with, perhaps even further develop it? Moreover, when engaging with domestic law, do international courts and tribunals try to mimic the engagement with domestic law of the courts of the state in question? Or do they approach the interpretation, application and further development of the law independently, perhaps even by looking beyond the legal system, jurisprudence and scholarship of the State in question and examining how similar issues are dealt with in other domestic legal systems? Do they, in other words, adopt a transnational and comparative approach in relation to domestic legal issues?

Beyond the empirical question concerning the how, the why is of interest. If international courts and tribunals take a transnational approach, what are the reasons for it? Does it reflect the fact that –more often than not – international adjudicators often lack the legal expertise and qualification in the domestic law they apply? Or does this have to do more with the fact that international courts have consent-based rather than compulsory jurisdiction, and form part of a different (nondomestic) public international legal order?

Finally, normative questions as to what the appropriate approach to dealing with domestic law is impose themselves. Is it appropriate for international courts and tribunals to take a transnational approach, perhaps even further develop the law in question by setting precedent? Or is there a duty to treat domestic law as a fact and to exercise deference towards the views on the interpretation and application of international law of domestic actors? Similarly, what is the role of experts on domestic law for the engagement of international courts and tribunals with domestic law?

Seeking to further explore and shed light on these empirical, analytical and normative questions, the Workshop will focus on the approach(es) adopted by international and regional courts and tribunals in dealing with issues of domestic law, or certain aspects of it. We therefore invite proposals for papers that can either deal with the approaches of specific international courts and tribunals to domestic law, such as the ICJ, the WTO Dispute Settlement System, ITLOS, the ECtHR, the Court of Justice of the European Union (CJEU), international criminal courts or tribunals, investment tribunals, or commercial arbitral tribunals, or that take approaches that deal with the engagement with domestic law, or certain aspects of it, from a cross-cutting perspective.

2. Submission of proposals and timeline

Scholars, practitioners, international judges or arbitrators, and state- and international organization officials are invited to submit proposals addressing issues falling within the scope of the Workshop’s theme.

Proposals including abstracts of no more than 500 words and the speaker’s contact details and CV (including affiliation, relevant experience and publications) or inquiries regarding the  workshop should be sent to

The deadline for the submission of paper proposals is 15 September 2018.

Successful applicants will be informed by 30 September 2018 and must submit papers (between 5,000 and 10,000 words, including footnotes) by 1 February 2019. The Workshop itself will take place during the last week of February 2019.

Limited funding is available to support travel expenses on a needs basis. Selected papers will be included in an edited volume to be published by a leading academic publisher in the course of 2019. All submissions and finalised papers must be written in English.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 57, no. 3, June 2018) is out. Contents include:
  • Ingabire v. Rwanda (Afr. Ct. H.P.R.), with introductory note by Yakaré-Oulé (Nani) Jansen Reventlow
  • Chiragov and Others v. Armenia & Sargsyan v. Azerbaijan (Eur. Ct. H.R.), with introductory note by Ramute Remezaite
  • Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (Eur. Ct. H.R.), with introductory note by Jonathan McCully
  • Waldman v. Palestine Liberation Organization (U.S. Ct. App. Second Circuit), with introductory note by William Slomanson
  • Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression (Int’l Crim. Ct.) & Resolution ICC-ASP/16/RES.5 on the Activation of the Jurisdiction of the Court over the Crime of Aggression, with introductory note by Carrie McDougall