Saturday, September 28, 2019
Amorosa: Rewriting the History of the Law of Nations: How James Brown Scott Made Francisco de Vitoria the Founder of International Law
In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations.
This book describes the Spanish origin project in context, relying on Scott's biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria's persisting role as a key figure in the canon of international legal history, the book sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law.
Friday, September 27, 2019
- General Articles
- Michał Balcerzak, Uses and Underuses of the International Convention on the Elimination of All Forms of Racial Discrimination at the International Court of Justice
- Marek Jan Wasiński, Endogenous and Exogenous Limits of the African Charter on Democracy, Elections and Governance
- Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska & Anna Wójcik, Law-Secured Narratives of the Past in Poland in Light of International Human Rights Law Standards
- Sanja Djajić & Rodoljub Etinski, Summary Procedure before the Strasbourg Court under Article 28(1)b of the European Convention on Human Rights: Judicial Economy under Scrutiny
- Andrii Hachkevych, The Method of New Positivism as Elaborated by Ludwik Ehrlich
- Łukasz Kułaga, A Brave, New, International Investment Court in Context. Towards a Paradigm Shift of the ISDS
- Peng Wang & Maciej Żenkiewicz, Protection of Polish Investors under the China-Poland Bilateral Investment Treaty
- Dimitry Kochenov, Article 7 TEU: A Commentary on a Much Talked-about “Dead” Provision
- Aleksandra Kustra-Rogatka, Constitutional Courts and the Implementation of EU Directives: A Comparative Analysis
- Agnieszka Grzelak, Protection of Personal Data of Crime Victims in European Union Law – Latest Developments
- Maciej Podgórski, The Single Resolution Mechanism in Action. An Analysis of the Decision-making Practice of the Single Resolution Board
- Piotr Sitnik, The Dual/Multiple Nature of “Plain and Intelligible Language” of Unfair Terms in Consumer Contracts under European Law and Its Polish Transposition
- Polish Practice of International Law
- Sylwia Majkowska-Szulc & Arkadiusz Wowerka, Cross-border Transfer of a Seat, Cross-border Conversion or the Coming into Existence of a New Company? Doubts Against the Background of the Court of Justice’s Judgment in C-106/16 Polbud – Wykonawstwo Sp. z o.o
- Book Reviews
- Marcin Menkes, Book review: Andrea Gattini, Attila Tanzi, and Filippo Fontanelli (eds.), General Principles of Law and International Investment Arbitration, Brill Nijhoff, Leiden, Boston: 2018
- Agata Helena Winkiel-Skóra, Book review: Piotr Szwedo, Cross-border Water Trade: Legal and Interdisciplinary Perspectives, Brill Nijhoff, Leiden, Boston: 2018
This book deals with the prosecution of core crimes and constitutes the first comprehensive analysis of the horizontal and vertical systems of enforcement of international criminal law and of their inter-relationship. It provides a global jurisprudential exposition in assessing the grounds for refusal of surrender to the International Criminal Court and of extradition to another State. It also offers insights into legal perspectives which improve the prevailing enforcement regimes of various models of criminal justice, including hybrid criminal tribunals, special criminal courts, judicial panels and partnerships, and other budding sui generis judicial and/or prosecutorial institutions.
Natoli & Riccardi: Borders, Legal Spaces and Territories in Contemporary International Law: Within and Beyond
This book examines the challenges posed to contemporary international law by the shifting role of the border, which has recently re-emerged as a central issue in international relations. It posits that borders do not merely correspond to States’ boundaries: indeed, while remaining a fundamental tool for asserting States’ power, they are in fact a collection of constantly changing spatial limits. Consequently, the book approaches borders as context-specific limits and revisits notions traditionally linked to them (jurisdiction, sovereignty, responsibility, individual rights), while also adopting the innovative approach of viewing borders as phenomena of both closedness and openness. Accordingly, the first part of the book addresses what happens “within” borders, investigating the root causes of the emergence of spatial limits and re-assessing apparent extra-territorial assertions of State power. In turn, the second part not only explores typical borderless spaces, but also more generally considers the exercise of States’ and international organisations’ powers and prerogatives across or “beyond” borders.
Thursday, September 26, 2019
- Jorge Contesse, Resisting the Inter-American System
- Andrea Pin & Francesca M. Genova, The Duty to Disclose Adverse Precedents: The Spirit of the Common Law and Its Enemies
- Angela Huyue Zhang, Strategic Comity
Milanovic: State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights
This article examines the jurisprudence of the European Court of Human Rights with regard to the acquiescence or connivance of states parties to the European Convention on Human Rights (ECHR) in the wrongful conduct of third states (which themselves may or may not be parties to the ECHR) or non-state actors. It discusses the origins of the acquiescence or connivance test in the Court’s case law, which is idiosyncratic and does not stem from general international law. The article also discusses the test’s legal nature, arguing that its conceptual basis remains unclear, and that the current state of the case law could support two theories.
First, that acquiescence or connivance, as applied in the Court’s most recent cases, is an ECHR-specific rule of attribution of conduct, which deviates from the general rules of attribution in international law, as codified by the International Law Commission in its Articles on State Responsibility. The Articles themselves do allow for the possibility of sector-specific rules of state responsibility; Article 55 ASR, entitled lex specialis, thus provides that the Articles ‘do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ One view of the Court’s acquiescence or connivance test is thus that it provides us with an example of a lex specialis rule of attribution of conduct in the sense of Article 55 ASR.
The alternative view, however, is that the Court’s acquiescence or connivance jurisprudence would best be conceptually framed as an ECHR-specific theory of state complicity. Under such a framing, the state acquiescing or conniving in the wrongful conduct of a third party is being held responsible for the assistance it provides to that third party, rather than for the third party’s own conduct – in other words, the complicity rule is not necessarily an attributive one. While such a rule would arguably differ from the ILC’s general approach to wrongful state aiding and assisting in Article 16 ASR, it would not be an ECHR-specific rule of attribution, or at least it would not always operate with an attributive effect. I argue that such a conceptual framing would best accommodate human rights-specific needs while maintaining coherence with general international law. Even under such a framing, however, there are many aspects of the acquiescence or connivance test that require further clarification by the Court.
Wednesday, September 25, 2019
International Law is a system that governs relations among a heterogenous group of states seeking to coexist and to collectively address thorny challenges. Diversity would seem to be a natural cornerstone, in terms of the individuals involved, the governance approaches taken, and the methodological approaches taken to studying international law. But how diverse is it, in reality?
This year’s conference of the Canadian Council of International Law invites participants to think critically about whether and how International Law is adequately accommodating and promoting diversity. For example:
International law scholars, practitioners and students are invited to discuss these questions at the 48th annual conference of the CCIL through different eyes and from different perspectives.
- Does international law appropriately reflect the variety of states, peoples, and organizations that constitute the international community?
- Are international forums and institutions adequately diverse or representative? Or might they sometimes be used to restrain or impede diversity?
- How exactly are international institutions including the different perspectives of actors such as states, IOs, individuals, NGOs, and identity groups (such as women, indigenous peoples, LGBTQ)?
- What methodologies and techniques might international law use to better reflect legal and cultural diversity?
- Milivoje Mitrovic, Dealing with the Consequences of Non-Compliance with Mandatory Pre-Arbitral Requirements in Multi-Tiered Dispute Resolution Clauses The Swiss Approach and a Look Across the Border
- Manuel Arroyo, Giving birth to a 3’000-page treatise*: How “Arbitration in Switzerland” came into being
- Hamel Alsulamy, The Saudi Center for Commercial Arbitration: The Catalyst Most Needed
- Benedikt Pirker, Das Schiedsgericht im Institutionellen Abkommen Zwischen Eigenständigkeit Und Autonomie Desunionsrechts
- Gordon Blanke, Die Europäische Kommission als Amicus Curiae in Schiedsverfahren zum EU-Wettbewerbsrecht: Überlegungen zu einer strukturierten Zusammenarbeit
- Ibrahim Shehata, 25 Years of Model Law Arbitration in Egypt
This thorough and detailed Research Handbook explores the complexity of the governance of sales contracts in the modern world. It considers what is, and what ought to be, the role of traditional sales law in light of the growing diversity of commercial, trade and transactional contexts in which such contracts are made and performed. Offering an international and comparative perspective, leading experts in the field examine many topical aspects of sales law and practice. These include digital technologies, long-term contracts, global supply chains and trade in commodities. Chapters also investigate the diversity of sources that govern sales contracts today, particularly those sources that emanate from the industry and commercial players, such as standard form contracts, rules of trade associations, trade usages and trade terms. Through this critical and highly analytical examination, this Research Handbook ultimately demonstrates that the sources of governance found within the industrial sector are as important as traditional sales law, if not more so, in terms of their role in governing sales contracts in contemporary society.
THE PALESTINE YEARBOOK OF INTERNATIONAL LAW
Call for Papers
PYBIL Vol. XXII, Submission by 30 November 2019
The PALESTINE YEARBOOK OF INTERNATIONAL LAW (PYBIL) has opened an invitation for an additional round of submissions for Volume XXII. We welcome general submissions related to public international law. We are interested in particular in critical approaches to international law, and welcome submissions in relation to Palestine. This peer-reviewed volume would include articles, case commentaries, and book reviews.
Articles should not exceed 12,000 words, including footnotes. Submissions to the general Articles section will be reviewed by the editorial board in addition to anonymous review by external experts to assess their quality and contribution to academic debates.
Case commentaries should not exceed 5,000 words, including footnotes. Commentaries should discuss significant and relevant jurisprudential developments, whether in international law tribunals or in domestic courts that are pertinent to international law.
Book reviews should not exceed 3,000 words, including footnotes. Book reviews would critically engage with recent international law publications. PYBIL is also happy to receive review essays that examine several books. Review essays should not exceed 5,000 words, including footnotes.
Submission guidelines and PYBIL style requirements:
Submissions should be exclusive to PYBIL in order to be considered. We will aim to update authors on submission progress in a timely manner. Authors who would like their articles to be considered for Volume XXII (published in 2020) should submit them by 30 November 2019. Articles submitted at a later stage will be considered for Volume XXIII (published in 2021).
Article submissions should include 2 documents: the article file without name of author, and a second file that includes the name of author, institutional affiliation, contact info, and an abstract for the submitted Article (no more than 500 words).
The submission should be double-spaced, with one-inch margins.
The Yearbook follows the legal citation system used by The Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association. For grammatical and stylistic matters, the Yearbook follows The Chicago Manual of Style, published by the University of Chicago press. The American spelling system is used.
The Yearbook is published in English since 1984. It is edited at Birzeit University’s Institute of Law (Birzeit, Palestine), and published by Martinus Nijhoff Publishers (The Hague, The Netherlands). The Editor-in-Chief of the Yearbook is Dr. Nimer Sultany.
For a list of previous volumes, please see: https://brill.com/view/serial/PYIL
Contact address for submission:
Please submit your article to: firstname.lastname@example.org
Contact address for queries:
Dr. Nimer Sultany, Editor-in-Chief: email@example.com
Mr. Ata Hindi and Ms. Reem al-Botmeh, Assistant Editors: firstname.lastname@example.org
The European Union has established relationships with other international organizations and institutions, mainly as a result of its increasingly active role as a global actor and the transfer of competences from the Member States to the EU. Containing chapters by leading scholars, this Research Handbook presents a comprehensive and critical assessment of these relationships, examining both the EU’s representation and cooperation as well as the influence of these external bodies on the development of EU law and policy.
Insightful and analytical, the Research Handbook explores the interaction of the EU with both formal and informal international institutions as it seeks to become more visible and active within these. The many challenges associated with the limits set by the EU and by international law and politics in relation to EU participation and the ‘state-centred’ international legal system are assessed.
Tuesday, September 24, 2019
Pauwelyn & Pelc: Who Writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement
The figure of the judge or adjudicator in international tribunals has been garnering growing attention. Yet we know relatively little about how adjudicators actually produce their rulings. Anecdotal evidence suggests that for all the attention panelists and Appellate Body (AB) members at the World Trade Organization (WTO) receive, the Secretariat plays an overlooked and increasingly important role, from selecting panelists and writing an initial “issues paper” for the adjudicators, to participating in internal deliberations and assisting in the drafting of the actual ruling.
We examine this role in greater detail, and ask who, of the Secretariat vs. adjudicators, exerts more influence over the drafting of WTO panel reports? We rely on two different text analysis approaches to attribute authorship. In both cases, the findings are unambiguous: the WTO Secretariat exerts significantly more influence over the writing of WTO panel reports than panelists themselves. We then examine what factors have led to the Secretariat’s rise to prominence. Originally a response to “rogue” GATT panels in the 1980s, its functions grew over time as a result of the greater experience and expertise of its (permanent) staff, compared with (part-time) adjudicators, and its limited accountability. We also elaborate on how the Secretariat’s role matters, affecting the role of precedent, the low number of dissents, and the increasing length of proceedings and scope of rulings.
Designed to keep “rogue” panels in check, the Secretariat may thus have contributed to the very “overreach” that members like the US are lashing out against. Correcting this “overreach” and resolving the current crisis at the WTO may then, paradoxically, require a greater voice for adjudicators, and a reduced role for the Secretariat.
Once dominated by vast empires, the world is now divided into close to 200 independent countries with laws and constitutions proclaiming human rights—a transformation that suggests that nations and human rights inevitably developed together. But the reality is far more problematic, as Eric Weitz shows in this compelling global history of the fate of human rights in a world of nation-states.
Through vivid histories drawn from virtually every continent, A World Divided describes how, since the eighteenth century, nationalists have struggled to establish their own states that grant human rights to some people. At the same time, they have excluded others through forced assimilation, ethnic cleansing, or even genocide. From Greek rebels, American settlers, and Brazilian abolitionists in the nineteenth century to anticolonial Africans and Zionists in the twentieth, nationalists have confronted a crucial question: Who has the "right to have rights?" A World Divided tells these stories in colorful accounts focusing on people who were at the center of events. And it shows that rights are dynamic. Proclaimed originally for propertied white men, rights were quickly demanded by others, including women, American Indians, and black slaves.
A World Divided also explains the origins of many of today's crises, from the existence of more than 65 million refugees and migrants worldwide to the growth of right-wing nationalism. The book argues that only the continual advance of international human rights will move us beyond the quandary of a world divided between those who have rights and those who don't.
- Anup Phayal, UN Troop Deployment and Preventing Violence Against Civilians in Darfur
- Mi Jeong Shin & Chia-yi Lee, Labor Market Institutions and Outward Foreign Direct Investment in OECD Countries
- Joonbum Bae, International conflict, military rule, and violent authoritarian breakdown
- Su-Mi Lee & J. Michael Greig, The Conditional Effectiveness of Directive Mediation
- Yasutaka Tominaga, Evaluating the impact of repeated leadership targeting on militant group durability
- Levke Aduda, Failed agreements and their impact on subsequent mediation onset and success in intrastate conflicts
- Research Note
- Sung Eun Kim, Johannes Urpelainen & Joonseok Yang, Environmental effects of GATT/WTO membership: an empirical evaluation
- Special Date Feature
- Joshua Tschantret, The old terrorism: a dataset, 1860 – 1969
Cyber Law Toolkit, the leading interactive web-based resource on the international law of cyber operations, is inviting submissions for its next general update in 2020. Successful authors will be awarded an honorarium. The Toolkit consists of a number of hypothetical scenarios, each of which contains a description of cyber incidents inspired by real-world examples and accompanied by detailed legal analysis. To keep pace with the recent developments in the cyber security domain and remain relevant source of help for practitioners and scholars alike, the Toolkit is regularly updated. The project team welcomes proposals for new scenarios to be included in the 2020 Toolkit update. This call for submissions is open until 1 November 2019. For more information, see the full text of the call (PDF).