Since the 1990s, western, developed countries have moved away from rule-making and standard-setting in multilateral intergovernmental organizations and have increasingly collaborated on those matters in clubs of developed countries, such as trans-governmental regulatory networks. Although clubs often generate rules or standards that affect developing countries, the latter have not had a voice in rule-making, resulting in a ‘participation gap’, for which clubs are being criticized. Against this background, I analyse a recent development that has largely gone unnoticed: Clubs have been integrating previously excluded developing countries. From small and exclusive clubs, they are growing into larger and more inclusive clubs. I call this trajectory of the past seventy years—the establishment of intergovernmental organizations, their increasing displacement in favour of clubs, and the recent reversion towards larger clubs—accordion governance. Like an accordion that expands or contracts as needed, so too have governance models and rule-making adjusted to changing conditions and preferences by becoming more or less inclusive.
Focusing on club expansion, I address three questions:
(1) How has participation—and the rules governing it—evolved over time?
(2) Why are governments voluntarily sharing rule-making authority with new participants?
(3) Can these reforms close the participation gap in international rule-making?
Saturday, March 2, 2019
Friday, March 1, 2019
Germann: Protocole 14: La lettre de cachet de la CEDH - L'Europe des juges en droits de l'Homme unie dans la diversité?
Since the entry into force of Protocol 14 ECHR in 2010, the European Court of Human Rights has begun to lose a crucial element of its legitimacy. Protocol 14 allows a single judge to screen cases with an unrestricted margin of appreciation, formally in order to discharge the Court and, in case of abuse, to deny access to justice. Concluding the inadmissibility of a politically disturbing affair is the most effective way of ignoring it. Of more than 95 % of the applications declared inadmissible each year by single judges in Strasbourg, the probability of a significant number of abuses can not be ruled out from the outset. The litigant thus faces a single judge with an exorbitant and uncontrollable power, who, upon the pretext that the request is "manifestly ill-founded" or that it concerns an "insignificant prejudice" according to his personal interpretation, has "carte blanche" to turn a deaf ear and deny so justice. Moreover, a decision of inadmissibility will allow the State concerned to assert a false legitimacy of its own laws and decisions against an individual who is genuinely a victim of a violation of the ECHR - the ultimate perverse effect of Protocol 14 is to draw in the moral authority of the ECHR to challenge the victim's recourse to law. In order to mitigate the risk of such a situation, a panel of at least two judges from different political and legal cultures and jurisdictions would be needed to determine the admissibility of the application, which would allow a genuine debate compliant with discourse ethics, and thereby a social control between national magistrates sitting in the Court. This contribution calls for a reform of Protocol 14 to safeguard the European Convention on Human Rights.
- B. Graeff & M. Rebourg, La protection juridique des majeurs âgés : éléments de comparaison entre droit français et droit brésilien
- É-A.T. Gatsi, Heurs et malheurs du contentieux électoral en Afrique : étude comparée du droit électoral processuel africain
- J. Vanderschuren, France : la loi sapin ii et la lutte contre les fonds vautours
- F. Seatzu & E. Pintus, Observations sur le statut juridique international de la Communauté des pays de langue portugaise
- M-C. Ernotte, L’Office du juge — Études de droit comparé
- P. Sabbadini, Dynamic Markets, Dynamic Competition and Dynamic Enforcement — The impact of the digital revolution and globalisation on competition law enforcement in Europe
- J.F. Leclercq, Le contentieux climatique : une révolution judiciaire mondiale
- A. Kohl, Cross-border debt recovery in the EU. A comparative and empirical study on the use of the European uniform procedures
Brexit, hybrid war, wall campaigns, mass migration, climate change: In the present political moment, some of our perennial demands on internationalism - its management of the passions of nationalism and logics of sovereignty - have become acute tests of its potential and limitations. At this time of breakdown and opportunity, our spring 2019 Symposium addresses a vital question: can internationalism meet the challenges of the contemporary?
The Commentary on the Energy Charter Treaty (ECT) provides a unique, article-by-article, textual analysis of this important international agreement. The ECT outlines a multilateral framework for cross-border cooperation in the energy sector based on the principles of open competitive markets and sustainable development. By binding governments to commitments that guarantee open markets, non-discrimination, and access to foreign investment, the ECT aims to strengthen the global rule of law on energy issues and, in doing so, reduce the risks associated with energy-related investment and trade. Expert contributors provide commentary and analysis on the five primary areas of the ECT: investment promotion and protection, trade, transit, environmental protection, and dispute settlement. The optional protocols are also addressed, including issues such as energy efficiency and the environment.
Conference: Things Fall Apart or Creative Destruction?: The Future of the Rule of Law in International Governance
de Beer: Peremptory Norms of General International Law (Jus Cogens) and the Prohibition of Terrorism
In Peremptory Norms of International Law and Terrorism (Jus Cogens) and the Prohibition of Terrorism, Aniel de Beer analyses the role of these norms (jus cogens norms) in the fight against terrorism. Jus cogens norms protect fundamental values of the international community, are hierarchically superior and non-derogable. The author argues, based on an analysis of the sources of international law, that the prohibition of terrorism has become the jus cogens norm of our time. She further considers the impact of the status of the prohibition of terrorism as a jus cogens norm on other norms of international law relevant in the fight against terrorism, namely the prohibition of torture, the right to a fair trial and the prohibition of the inter-state use of force.
Despite claims to the contrary, and to paraphrase Mark Twain’s famous quip, the rumours of customary law’s death have been greatly exaggerated – customary international law remains alive and well. Nowadays, international law seems to be going through a similar process as mathematics did in the 19th century. In order for international legal scholarship to progress, we need to go back to its theoretical foundations. We need to identify, critique and discuss the axioms on which the system is based, as well as the rules under which these building-blocks of the international legal system function.
There is still much to do before we can understand customary international law in all its complexity. One reason is that most analysis tends to focus on the process of emergence and identification of a rule of customary international law, through the dichotomous requirements of state practice and opinio iuris, with all the shortcomings and pitfalls that it entails. Yet, customary international law as a source raises other questions, too. Can we speak of ‘rules’ in this context (what is the nature of customary law)? What is the foundation for the sources of international law in general and customary law, in particular? Do we conflate the determination of a rule of customary international law with the determination of its content?The First ECTPIL and TRICI-Law Conference will draw on these and other under-researched questions, such as:
- What are the rules, if we can talk about rules, that regulate the functioning of sources of international law and of customary international law in particular?
- Is the classical paradigm of state practice and opinio iuris still valid today?
- Are there alternative approaches that can offer a better model describing the emergence and functioning of rules of customary international law?
- Can customary international law be interpreted? Are rules of customary international law open to interpretation in the same way as treaty rules?
- Do domestic approaches to customary law differ from those in international legal scholarship? What lessons can be learned (or tools adopted) from domestic approaches to customary law?
- Is hermeneutics relevant to customary international law?
- Is there a difference between the interpretation of state practice compared to the interpretation of a rule of customary international law?
- Where do the lines between identification, interpretation, application and modification of a rule of customary international law lie?
- Susan M Akram, The Search for Protection for Stateless Refugees in the Middle East: Palestinians and Kurds in Lebanon and Jordan
- Damian Lilly, UNRWA’s Protection Mandate: Closing the ‘Protection Gap’
- Shani Bar-Tuvia, Australian and Israeli Agreements for the Permanent Transfer of Refugees: Stretching Further the (Il)legality and (Im)morality of Western Externalization Policies
- Christopher D Boom. Beyond Persecution: A Moral Defence of Expanding Refugee Status
Irreversible climate change. Ecosystem collapse and mass extinction of plant and animal species. Renewed threat of a nuclear arms race. Mass migration. Widespread famine. Each has been referred to as a ‘tipping point’ in this age of the anthropocene. What role does international law play when the natural world and human society is at, or nearing, such tipping points? And is international law itself at a tipping point? At the same time as it expands to cover all areas of human activity as an essential tool for bringing order to a rapidly globalising world, it is also the target of significant attacks from different angles – with regard to its general utility, its capacity to order our lives effectively, and its potential for creating an unaccountable leviathan limiting freedom. Increasing polarisation seems to indicate that the system will either gain greater acceptance as an ordering principle, or collapse under the fragmenting tendencies of re-nationalisation of powers and decision-making, ultimately declining as a normative ideal.
- Externalizing EU Migration Control while Ignoring the Human Rights of Migrants: Is There Any Room for the International Responsibility of European States?
- Introduced by Maria Irene Papa
- Violeta Moreno-Lax & Martin Lemberg-Pedersen, Border-induced displacement: The ethical and legal implications of distance-creation through externalization
- Giuseppe Pascale, Is Italy Internationally Responsible for the Gross Human Rights Violations against Migrants in Libya?
Thursday, February 28, 2019
- Malgosia Fitzmaurice, Introductory Reflections
- Constantine Antonopoulos, State Responsibility for Acts of Non-State Actors
- Antonis Bredimas, The Responsibility of the International Monetary Fund for the Economic Impact of the Application of Conditionality
- Markos Karavias, Corporations and Responsibility under International Law
- Ilias Plakokefalos, The Limits of Responsibility: Liability for Damage in the Deep Seabed?
- Efthymios Papastavridis, Fisheries and State Responsibility: Lessons to Be Learned from Recent Case-Law
- Petros C. Mavroidis, A Little Less Conversation and a Little More Action (Property and Liability Rules in the DSU Review of the WTO)
- Charalampos Giannakopoulos, The Right to Regulate in International Investment Law and the Law of State Responsibility: a Hohfeldian Approach
- Panayotis M. Protopsaltis, Shareholders’ Injury and Compensation in Investor-State Arbitration
- Nikolaos Voulgaris, Establishing International Responsibility in Rendition Cases before the European Court of Human Rights
- Véronique Pin-Fat, ‘What’s love got to do with it?’ Ethics, emotions, and encounter in International Relations
- Juanita Elias & Shirin M. Rai, Feminist everyday political economy: Space, time, and violence
- Jamie Levin & Joseph MacKay, Domestic entanglements: Family, state, hierarchy, and the Hobbesian state of nature
- Katharine M. Millar, What do we do now? Examining civilian masculinity/ies in contemporary liberal civil-military relations
- Helen M. Kinsella & Laura Sjoberg, Family values? Sexism and heteronormativity in Feminist Evolutionary Analytic (FEA) research
- Catherine Charrett, Diplomacy in drag and queer IR art: Reflections on the performance, ‘Sipping Toffee with Hamas in Brussels’
- Andrew F. Cooper & Jérémie Cornut, The changing practices of frontline diplomacy: New directions for inquiry
- Jamie Allinson, Counter-revolution as international phenomenon: the case of Egypt
- Valbona Muzaka, India and Brazil in pursuit of the competitive knowledge economy
- Sandra C Wisner, Criminalizing Corporate Actors for Exploitation of Natural Resources in Armed Conflict: UN Natural Resources Sanctions Committees and the International Criminal Court
- Pádraig McAuliffe & Christine Schwöbel-Patel, Disciplinary Matchmaking: Critics of International Criminal Law Meet Critics of Liberal Peacebuilding
- Symposium: On Crimes Against Humanity: Views from Russia and China
- Vladimir Tochilovsky, Crimes Against ‘Humaneness’?: The Russian Interpretation of Crimes Against Humanity
- Dan Zhu, China, Crimes Against Humanity and the International Criminal Court
- Cases Before International Courts and Tribunals
- Monique Cormier, Can the ICC Exercise Jurisdiction over US Nationals for Crimes Committed in the Afghanistan Situation?
- Alessandro Mario Amoroso, Should the ICC Assess Complementarity with Respect to Non-state Armed Groups?: Hidden Questions in the Second Al-Werfalli Arrest Warrant
- National Prosecution of International Crimes: Legislation and Cases
- Sergey Sayapin, A Curious Aggression Trial in Ukraine: Some Reflections on the Alexandrov and Yerofeyev Case
- Kai Ambos, Deceased Persons as Protected Persons Within the Meaning of International Humanitarian Law: German Federal Supreme Court Judgment of 27 July 2017
Kassoti: The Empire Strikes Back: The Council Decision Amending Protocols 1 and 4 to the EU-Morocco Association Agreement
This Insight focuses on the newly adopted Council Decision amending Protocols 1 and 4 to the EU-Morocco Association Agreement which extends the territorial scope of the Association Agreement to expressly include Western Sahara. The purpose of this Insight is to assess the compatibility of the Council Decision with international law. The main argument advanced here is that the Council Decision is problematic from an international law point of view as it arguably violates the EU’s duty of non-recognition and non-assistance in the commission of internationally wrongful acts.
Wednesday, February 27, 2019
Tuesday, February 26, 2019
Das Buch geht der Frage nach, ob und inwiefern sich meeresspiegelinduzierte Veränderungen der Küstenlinien auch im Verlauf maritimer Grenzen widerspiegeln. Nach Untersuchung der maßgeblichen Vorschriften des Seerechtsübereinkommens (SRÜ) kommt die Arbeit zu dem Ergebnis, dass Veränderungen des Küstenverlaufs Auswirkungen auf maritime Grenzen haben können, das Ausmaß der Veränderung allerdings von der konkreten Art der Grenze und deren Entfernung zur Basislinie abhängt. Global betrachtet birgt die Beweglichkeit der Seegrenzen ein erhöhtes Konfliktpotential, denn sie wird Unsicherheit über bestehende Grenzverläufe verursachen. Seegrenzen sollten daher dauerhaft stabilisiert werden. Der Autor belegt, dass dies auf Grundlage des geltenden Rechts nicht sinnvoll gelingen wird. Nur durch Änderung des SRÜ oder der Herausbildung von neuem Völkergewohnheitsrecht ließe sich verhindern, dass das internationale Seerecht die Folgen des durch den Meeresspiegelanstieg bedingten Landverlusts nicht noch verschlimmert.
This article uses the metaphor of the hall of mirrors to produce three distinct images of the international lawyer. The hall of mirrors refers here to the extent to which international legal discourses are built on self-referential mechanisms tantamount to mutually reflecting mirrors, by virtue of which movements and postures are reproduced ad infinitum without disclosing the origin thereof. According to the first image produced by virtue of the metaphor of the hall of mirrors, the international lawyer feels invincible and fully makes use of the hall of mirrors to allow international legal discourses to obscure their origins and thrive in foundationlessness. The second image depicts a vulnerable international lawyer who is deprived of self-referential mechanisms for the production of international legal discourses because the mirrors have been shattered or the light turned off or simply because she has closed her eyes. The third image is that of a self-reflective international lawyer who is neither invincible nor vulnerable but consciously standing between the mutually reflecting mirrors wearing fissured spectacles and with no intention to smash the mirror, turn off the light or close her eyes. This article ends with a few observations on the coexistence of these three inter-national lawyers – the invincible, the vulnerable, and the self-reflective – standing together in the hall of mirrors, possibly not even seeing one another.
- Jen Iris Allan, Dangerous Incrementalism of the Paris Agreement
- Ella Belfer, James D. Ford, Michelle Maillet, Malcolm Araos, & Melanie Flynn, Pursuing an Indigenous Platform: Exploring Opportunities and Constraints for Indigenous Participation in the UNFCCC
- Kristen Hopewell, How Rising Powers Create Governance Gaps: The Case of Export Credit and the Environment
- Clint Peinhardt, Alisha A. Kim, & Viveca Pavon-Harr, Deforestation and the United States–Peru Trade Promotion Agreement
- Paula Franco Moreira, Jonathan Kishen Gamu, Cristina Yumie Aoki Inoue, Simone Athayde, Sônia Regina da Cal Seixas, & Eduardo Viola, South–South Transnational Advocacy: Mobilizing Against Brazilian Dams in the Peruvian Amazon
- Liliana B. Andonova & Yixian Sun, Private Governance in Developing Countries: Drivers of Voluntary Carbon Offset Programs
The Military Law and the Law of War Review
Call for Papers
The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. Published since 1962, it is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world.
The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch.
For its coming issue, the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)).
The deadline for submission is 14 April 2019.
Submissions should be sent by e-mail to firstname.lastname@example.org and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address.
Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue will appear late 2019-early 2020.
- Geraldo Vidigal, The Return of Voluntary Export Restraints? How WTO Law Regulates (And Doesn’t Regulate) Bilateral Trade-Restrictive Agreements
- Yury Rovnov, The Life and Death of a Non-Recurring Subsidy: the Role of Change in Ownership of Subsidy Recipient
- Manuel Sánchez Miranda, When the Going Gets Tough, the Tough Get Going: Advancing Development Through Governance Indicators at the WTO
- Bashar H. Malkawi & Mohammad I. El-Shafie, The Design and Operation of Rules of Origin in Greater Arab Free Trade Area: Challenges of Implementation and Reform
- Qingjiang Kong & Shuai Guo, Towards a Mega-Plurilateral Dispute Settlement Mechanism for the WTO?
- Amrita Bahri, ‘Appellate Body Held Hostage’: Is Judicial Activism at Fair Trial?
- Heng Wang, The Future of Deep Free Trade Agreements: The Convergence of TPP (and CPTPP) and CETA?
Monday, February 25, 2019
- Sahib Singh & Jean d'Aspremont, The Life of International Law and its Concepts
- Fernando Lusa Bordin, Analogy
- Başak Çalı, Authority
- Richard Collins, Autonomy
- Jean d’Aspremont, Bindingness
- Ntina Tzouvala, Civilization
- Yannick Radi, Coherence
- Ingrid Wuerth, Compliance
- Stephen Neff, Consent
- Anne Peters, Constitutionalisation
- Jochen von Bernstorff, Critic
- Hilary Charlesworth, Democracy
- Onur Ince, Development
- Florian Hoffmann, Discourse
- Anthony Anghie, Domination
- Gleider I. Hernandez, Effectiveness
- Andrea Bianchi, Epistemic Communities
- Jan Klabbers, Ethics
- Mohammad Shahabuddin, Ethnicity
- Luca Bonadiman, Faith
- Harlan Grant Cohen, Fragmentation
- Robert Knox, Hegemony
- Ukri Soirila, Humanity
- John Haskell, Identity
- Walter Rech, Ideology
- Gerry Simpson, Imagination
- Akbar Rasulov, Imperialism
- Cameron A. Miles, Indeterminacy
- Antônio Augusto Cançado Trindade, Individual
- Timothy Meyer, Instrumentalism
- Nikolas M. Rajkovic, Interdisciplinarity
- Christian J. Tams, International Community
- Kevin Jon Heller, International Crime
- Jacob Katz Cogan, International Organizations
- Duncan B. Hollis, Interpretation
- Patrick Capps, Interpretivism
- Cedric Ryngaert, Jurisdiction
- Frédéric Mégret, Justice
- Valentin Jeutner, Legal Dilemma
- Umut Özsu, Legal Form
- Fleur Johns, Legality
- Oliver Kessler & Filipe Dos Reis, Legitimacy
- Anne van Mulligen, Normativity
- Catherine Brölmann & Janne Nijman, Personality
- Nico Krisch, Pluralism
- Makane Moïse Mbengue, Precedent
- Thomas Skouteris, Progress
- Pierre Schlag, Reason
- Matthias Goldmann, Relative Normativity
- André Nollkaemper, Responsibility
- Vidya Kumar, Revolutionaries
- Samuel Moyn, Rights
- Philip Allott, Rule of Law
- Ingo Venzke, Semantic Authority
- Guglielmo Verdirame, Sovereignty
- Tom Sparks, State
- Mario Prost, System
- Geoff Gordon, Universalism
- Akbar Rasulov, Utopian
- Iain Scobbie, War
Call for Submissions: The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space
Sunday, February 24, 2019
The transparency principle has a particularly vital role in international economic integration organizations because states delegate their sovereign powers to such organizations. Legal instruments applicable within such organizations display an evident deficiency of democratic legitimacy, as they have extensive power to affect human rights, while in contrast, many bodies representing the people are granted only limited participation in decision-making processes or are not involved in them at all. These characteristics place particular importance on the transparency principle, and the implementation of this standard is in the majority of cases a pre-condition of civil society’s effective control over international economic organizations, their accountability, and ultimately good governance.
The Eurasian Economic Union (EAEU) is a newly created regional and international organization, which aims at fostering economic cooperation between post-soviet states, managing a customs union and creating a single economic space in the territory of its members. Several questions arise in relation to EAEU activities: Is the EAEU a purely intergovernmental organization focused solely on trade issues, or could it be a real union that can support the ideas of accountability, good governance and the rule of law? What is the role of the transparency principle in building such an institution? This article tries to answer these questions.
In this paper, I will first consider the reasons for the low rates of successful international commercial mediations, and then begin to explore what it might take to encourage the international legal and business communities to embrace mediation for international commercial disputes. Lastly, I will introduce and examine the new United Nations Convention on International Settlement Agreements Resulting from Mediation (The Singapore Convention on Mediation), in particular its role in promoting the use of international commercial mediation globally. This paper was presented as the keynote address at the inaugural Schiefelbein Global Dispute Resolution Conference on 18 January 2019, at the Sandra Day O’Connor School of Law of Arizona State University.
Call for Papers: Legitimate Role for Investment Law and Arbitration in Protecting Human Rights (Reminder)
de la Rasilla del Moral: International Criminal Justice as Universal Social Defence – Quintiliano Saldaña (1878-1938)
Quintiliano Saldaña Garcia-Rubio (1878-1938) was one of the leading proponents of ‘legal pragmatism’ in European criminal law circles in the interwar period and the author of the first course on international criminal justice delivered at The Hague Academy of International Law in 1925. This chapter examines the three main stages in Saldaña’s polyhedral intellectual life. The first part surveys Saldaña’s formative years and his early academic professional development, examining the influence of Franz von Liszt’s Marburg School of Criminal Law on his academic interests and professional career until the end of the First World War. The second part examines Saldaña’s seminal theory of ‘universal social defence’ and his 1925 Hague Academy course, La justice pénale internationale, which included one of the first projects for an international criminal code. It also reviews Saldaña's legislative contribution to the polemical 1928 Spanish Criminal Code project, which is widely considered an example of a proto-fascist criminal code. The third part follows Saldaña’s career during the Second Spanish Republic, surveying his criminal law and criminology work in the development of his theory of ‘legal pragmatism.’ It also revisits his engagement with the mid-1930s international legal debates on terrorism in the framework his contribution to the works of the International Bureau for the Unification of Criminal Law. The conclusion revisits the mysterious circumstances of Saldaña’s death during the Spanish Civil War and the dark legacy of his legal thought on the criminal law system of General Franco’s regime in Spain.