This article introduces a Thematic Section, forthcoming in International Studies Quarterly, on Judicializing International Relations. The article examines the multiple ways that judicializing international relations shifts power away from national executives and legislatures towards litigants, judges, arbitrators, and other non-state decision-makers. We identify two preconditions for judicialization to occur—delegation to a court or other adjudicatory body charged with applying designated legal rules, and legal rights claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for authoritatively determining past violations of the law, identifying remedies for those violations, and preventing future violations. Because judicializing international relations occurs in multiple phases, in multiple locations, and involves multiple decision-makers, governments often do not control the timing, nature or extent to which political and policy decisions are adjudicated. Delegation—and the associated choice of institutional design features—is thus only the first step in a chain of processes that determine how a diverse array of non-state actors influence politically consequential decisions.
Saturday, November 24, 2018
Karen J. Alter (Northwestern Univ. - Political Science), Emilie Marie Hafner-Burton (Univ. of California, San Diego - School of Global Policy and Strategy), & Laurence Helfer (Duke Univ. - Law) have posted Theorizing the Judicialization of International Relations (International Studies Quarterly, forthcoming). Here's the abstract:
Italian Yearbook of International Law (Vol. 27, 2017) is out. Contents include:
- Symposium: Sanctions and Restrictive Measures in International Law
- Nigel D. White, Autonomous and Collective Sanctions in the International Legal Order
- Leonardo Borlini & Stefano Silingardi, Defining Elements and Emerging Legal Issues of EU “Sanctions”
- Viktoriia Lapa, National Margin of Appreciation as a Standard of Review for Economic Sanctions: In Search of the Golden Fleece?
- Antonino Alì, The Parliamentary Assembly of The Council of Europe and the Sanctions Against the Russian Federation in Response to the Crisis in Ukraine
- Elena Carpanelli, Italian Practice in the Implementation of International Targeted Sanctions: Enhanced Protection or Additional Complexities?
- Francesca Capone, A Critical Overview of the United Nations Architecture on Children and Armed Conflict: What Role for Sanctions?
- Focus: The ILC’s Work on the Identification of Customary International Law
- Cameron Miles, Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law
- Mariangela La Manna, the Standards for the Identification of Exceptions to Customary Law
- Ludovica Chiussi, Remarks on the ILC Work on the Identification of Customary Law and Human Rights: Curbing “Droit de L’Hommisme”?
- James A. Green, The Persistent Objector Rule in the Work of the International Law Commission on the Identification of Customary International Law
- Notes and Comments
- Enrico Milano, Secession Revisited: General Framework and Lessons from the Referenda in Catalonia and Kurdistan
- Marco Pedrazzi, The Treaty on the Prohibition of Nuclear Weapons: A Promise, a Threat or a Flop?
- Valentina Grado, The EU “Conflict Minerals Regulation”: Potentialities and Limits in the Light of the International Standards on Responsible Sourcing
- Marina Mancini, Italy’s New Migration Control Policy: Stemming the Flow of Migrants from Libya without Regard for Their Human Rights
The latest issue of the Journal of World Trade (Vol. 52, no. 6, 2018) is out. Contents include:
- Julio J. Nogués, In Remembrance of J. Michael Finger
- Robert McDougall, The Crisis in WTO Dispute Settlement: Fixing Birth Defects to Restore Balance
- Jae Woon Lee, Airline Subsidies: Can the Law Play a Role in Regulating Them?
- Reem Anwar Ahmed Raslan, Green Subsidies and WTO Trade Rules: A ‘Conflict of Values’ or A ‘Conflict of Norms’?
- Catherine Li, The EU’s Proposal Regarding the Establishment of the Investment Court System and the Response from Asia
- Tekuni Nakuja & William A. Kerr, 'Do WTO Commitments Restrict the Policy Space of Countries Wishing to Provide Food Security Through Stockholding Programs?
- Gillian Moon, A ‘FundamentalMoral Imperative’: Social Inclusion, the Sustainable Development Goals and International Trade Law After Brazil-Taxation
- Kateřina Hradilová & Ondřej Svoboda, Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness
Tuesday, November 20, 2018
The International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice has issued a call for papers for a workshop on "Loyal Co-operation within the System of the European Convention on Human Rights," to take place May 10-11, 2019. The call is here.
Monday, November 19, 2018
Human Rights Review (Vol. 19, no. 4, December 2018) is out. Contents include:
- Mari Stenlund & Pamela Slotte, Forum Internum Revisited: Considering the Absolute Core of Freedom of Belief and Opinion in Terms of Negative Liberty, Authenticity, and Capability
- Gabriel O. Adebayo & Jan-Erik Mansikka, Human Security and Citizenship in Finnish Religious Education: Rethinking Security Within the Human Rights Horizon
- Michael McEachrane, Universal Human Rights and the Coloniality of Race in Sweden
Klopschinski: Public Policy Considerations in Intellectual Property-Related International Investment Arbitration
Simon Klopschinski (Rospatt Osten Pross) has posted Public Policy Considerations in Intellectual Property-Related International Investment Arbitration (in Research Handbook on Intellectual Property and Investment Law, Christophe Geiger ed., forthcoming). Here's the abstract:
In the investment arbitration Philip Morris v. Uruguay the arbitral tribunal rejected Philip Morris’ claim that Uruguay’s anti-smoking legislation expropriated the tobacco company’s trademarks. In its reasoning the tribunal largely deferred to Uruguay’s policy decision to curtail tobacco companies’ business operations for the purpose of enhancing public health. Philip Morris v. Uruguay raises the question if there are, apart from public health, other public policy considerations which the tribunal should have given more weight to, e.g. the promotion of foreign investment and the protection of intellectual property (IP). The article explores the concept of ‘public policy’ and how IP law, WTO law as well as international investment law, i.e. the legal regimes relevant to IP-related investment arbitration, deal with public policy considerations. The article also reviews the handling of public policy considerations in the IP-related investment arbitrations Philip Morris v. Uruguay, Eli Lilly v. Canada as well as Bridgestone v. Panama.
British Institute of International and Comparative Law will host a conference on "60 years BIICL, 50 years Brussels Regime, 60 years New York Convention." The program is here. Here's the idea:
Not only BIICL celebrates a round birthday, but also the two most important regimes for cross-border cooperation in civil and commercial litigation and arbitration - the Brussels Regime (1968), to which the UK acceded 40 years ago, and the NYC (1958). Time to take stock and assess the effects and benefits of both regimes for citizens, businesses, lawyers and courts, and time to look into the post Brexit future.
Sunday, November 18, 2018
Mbungo: L'Organisation des nations unies et l'effectivité des droits fondamentaux des déplacés internes
L'Organisation des nations unies et l'effectivité des droits fondamentaux des déplacés internes (L'Harmattan 2018). Here's the abstract:
Le déplacement interne des populations au sein de leur propre pays pose un réel défi de protection des droits de l'homme. Si l'ONU s'est intéressée tardivement à ce phénomène, elle a entrepris de construire un meilleur cadre juridique et institutionnel international pour la protection des déplacés internes. Plus de deux décennies après ses principales initiatives, il a fallu éprouver la capacité de celles-ci à concrétiser les droits déclarés en droits effectifs. Il importerait que l'ONU renforce le cadre juridique et en restructure l'architecture institutionnelle.
Guariglia, Batros, Gallmetzer, & Mugwanya: The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence
The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence (Cambridge Univ. Press 2018). Here's the abstract:
A comprehensive source of the most authoritative statements of the International Criminal Court's appellate jurisprudence. Its clear format includes commentaries followed by excerpts of the decisions and judgments, carefully selected by lawyers based on their relevance and grouped by topic. It provides a practical background to the International Criminal Court's appellate jurisprudence from experienced current and former Appeals Counsel of the Office of the Prosecutor of the Court, highlighting pertinent issues. In doing so, readers are given the tools to discern the meaning of the case law themselves, while attention is drawn to the most important developments in the jurisprudence. This text presents an authoritative and comprehensive digest of the Appeals Chamber's jurisprudence, bringing the relevant case extracts together for the first time with clear and informative commentary.
International Standardization and the Agreement on Technical Barriers to Trade (Cambridge Univ. Press 2018). Here's the abstract:
International Standardization and the Agreement on Technical Barriers to Trade examines the international standardization system generally, with a specific focus on some of the bodies within this system, along with their rules and procedures. It also examines - and questions - the lack of definition regarding several features related to the system, notably an international standardizing body (ISB) and international standards in the Agreement on Technical Barriers to Trade (TBT).
Tania Voon (Univ. of Melbourne - Law) has posted Third Strike: The WTO Panel Reports Upholding Australia's Tobacco Plain Packaging Scheme (Journal of World Investment and Trade, forthcoming). Here's the abstract:
Two of the four disputes against Australia’s tobacco plain packaging scheme in the World Trade Organization (WTO) have now been resolved, with the Dispute Settlement Body’s adoption of the Panel Reports upholding Australia’s tobacco plain packaging scheme with respect to Cuba and Indonesia. The fifth dispute, brought by Ukraine, was previously abandoned. The Panel’s lengthy decision deserves close examination, particularly as regards the balance in WTO law between WTO Members’ legitimate policy objectives (such as promoting public health) and restrictions on (i) trade (under Article 2.2 of the Agreement on Technical Barriers to Trade) or (ii) trademarks (under Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights). The Panel’s approach to the fundamental concepts of trade-restrictiveness (with respect to technical barriers to trade) and unjustifiability (with respect to encumbering trademarks) did not conform with the position put forward by either Australia or the complainants. These areas represent core aspects of the ongoing appeals by Honduras and the Dominican Republic against the Panel Reports. Although Australia did not appeal any of the Panel Reports, its own arguments before the Panel provide further insights into the Panel’s approach. The significance of the Panel Reports is heightened by the continuing United States blockage of appointments to the WTO Appellate Body, which is likely to lead to significant delays in completing the two appeals.
Sykes: The Economic Structure of International Investment Agreements with Implications for Treaty Interpretation and Design
Alan Sykes (Stanford Univ. - Law) has posted The Economic Structure of International Investment Agreements with Implications for Treaty Interpretation and Design. Here's the abstract:
This paper develops an economic theory of international investment agreements, applies it to explain central features of modern investment treaties, and uses it to address a number of prominent issues in international investment litigation. The paper argues that investment agreements have a dual function – to overcome international externalities akin to the “terms of trade” externality associated with protectionism in international trade, and to enable capital importing countries to commit more effectively to eliminate inefficient risks to foreign investors that uneconomically raise the cost of imported capital. Core features of typical investment agreements perform both functions to some degree, and an understanding of their relative importance helps to explain why the predominant approach to investment agreements is bilateral or minilateral rather than multilateral. The economic analysis also sheds light on a number of controversies in investor-state dispute settlement, including jurisdictional issues relating to the definition of “investor” and “investment,” the scope and interpretation of the national treatment and most-favored nation obligations, the evolution of the “fair and equitable treatment” obligation, the meaning of “expropriation,” and the current controversy over the interface between international investment law and domestic regulation. It also offers an explanation for recent trends in treaty provisions in response to some controversial arbitral decisions.