CALL FOR PAPERS
The Editors welcome submissions for volume 63 (2020) of the GYIL, inviting interested parties to submit contributions for consideration for inclusion in the forthcoming edition.
2020 has proven to be the most consequential year in modern history. Recent global events have highlighted the existence of serious challenges for international law and its institutions. The German Yearbook for International Law (GYIL) wishes to open submissions for articles on all topics of relevance to public international law. In particular, however, we are interested in articles addressing recent international developments such as the impact of Covid-19 on global health and the World Health Organisation, the international dimensions of the Black Lives Matter movement and the fight against racism, the ongoing struggle against climate change, and the implications of political and legal changes in Hong Kong for democracy. Submissions from the entire academic community are welcomed. Articles will be independently peer-reviewed by a board of renowned experts. All work submitted will be scrutinised based on its intellectual quality and its advancement of academic discourse.
Papers submitted should be in English, be between 10,000-12,500 words (inclusive of footnotes), and conform with the house style of the GYIL (which is available on our website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent by 1 October 2020 to the Assistant Editor of the GYIL via e-mail: firstname.lastname@example.org
Monday, August 10, 2020
Duval & Kassoti: The Legality of Economic Activities in Occupied Territories: International, EU Law and Business and Human Rights Perspectives
This edited volume explores the question of the lawfulness under international law of economic activities in occupied territories from the perspectives of international law, EU law, and business and human rights.
Providing a multi-level overview of relevant practices, policies and cases, the book is divided in three parts, each dealing with how different legal fields have come to grips with the challenges brought about by the question of the lawfulness under international law of economic activities in occupied territories. The first part includes contributions pertaining to the international law dimension of the question. It contains chapters on the conjunction between jus in bello, jus ad bellum and international human rights law in the context of exploitation of natural resources in territories under belligerent occupation; on third party obligations flowing from the application of occupation law in relation to natural resources exploitation; and on State practice with regards to trading with occupied territories. The second part focuses on EU law and contains contributions that assess the EU’s approach to occupied territories and the extent to which this approach comports with the EU’s obligations under international law; contributions providing an in-depth assessment of the case-law of the CJEU on occupied territories; as well as contributions pertaining to the political considerations that may influence the legal framing of questions pertaining to occupied territories. The final part focuses on the business and human rights perspective, with chapters on investment arbitration as a means for holding the occupant accountable for its conduct towards foreign investments and investors; on the role and impact of the soft law framework governing corporate activity (such as the UN Guiding Principles) on business involvement with occupied territories; as well as a final case study on the dispute involving Israeli football activity in settlements located in the OPT and the legal responsibility of FIFA in this regard.
Sunday, August 9, 2020
In recent years, investor-state tribunals have often permitted shareholders' claims for reflective loss despite the well-established principle of no reflective loss applied consistently in domestic regimes and in other fields of international law. Investment tribunals have justified their decisions by relying on definitions of 'investment' in investment agreements that often include 'shares', while the no-reflective-loss principle is generally justified on the basis of policy considerations pertaining to the preservation of the efficiency of the adjudicatory process and to the protection of other stakeholders, such as creditors. Although these policy considerations militating for the prohibition of shareholders' claims for reflective loss also apply in investor-state arbitration, they are curable in that context and must be balanced with policy considerations specific to the field of international investment law that weigh in favor of such claims: the protection of foreign investors in order to promote trade and investment liberalization.
- Anne-Sophie Martin & Steven Freeland, Exploring the Legal Challenges if Future On-Orbit Servicing Missions and Proximity Operations
- Ermanno Napolitano, Interdisciplinary Team Teaching in Space Legal Education
- Gemmo Bautista Fernandez, Where No War Has Gone Before: Outer Space and the Adequacy of the Current Law of Armed Conflict
- Stefan Pislevik, Law Without Gravity: Arbitrating Space Disputes at the Permanent Court of Arbitration and the Relevance of Adverse Inferences
- Michelle L.D. Hanlon & Bailey Cunningham, The Legal Imperative to Mitigate the Plume Effect: An “Aggravation and Frustration” that Imperils our History and our Future
This book investigates the use of duress as a defence in international criminal law, specifically in cases of child soldiers. The prosecution of children for international crimes often only focuses on whether children can and should be prosecuted under international law. However, it is rarely considered what would happen to these children at the trial stage. This work offers a nuanced approach towards international prosecution and considers how children could be implicated and defended in international courts. This study will be of interest to academics and practitioners working in international criminal law, transitional justice and children’s rights.
Qin: WTO Reform: Multilateral Control over Unilateral Retaliation – Lessons from the US-China Trade War
Preventing trade wars is a key function of the WTO rule-based system. But as the United States and China waged the largest trade war in history, the WTO sat on the sidelines, unable to do anything to stop the fight. Why has the system failed so spectacularly? In a search for answers, this article examines the context of the US-China conflict and makes a number of findings. First, under WTO law, the burden of avoiding this trade war was placed on China, the victim of US aggressive unilateral tariffs; and contrary to China’s claim, its retaliatory tariffs cannot be justified by general principles of international law. Second, the WTO rule prohibiting unilateral retaliation was born out of a grand political bargain, but it embodies the wisdom of Adam Smith and achieves the goal of the Havana Charter to turn retaliation into an instrument of international order. Third, the WTO’s inability to prevent China’s resort to unilateral retaliation reveals a deficiency in its existing legal design, but that deficiency can be fixed procedurally as proposed herein. Given the importance of preventing large-scale trade wars in the future, improving multilateral control over unilateral retaliation should be a top priority in WTO reform.
- Apollin Koagne Zouapet, Putem transforma vechiul în nou? Scurte observații privind protecția diplomatică în lumina „dreptului internațional al drepturilor omului”
- Laura-Maria Crăciunean-Tatu, Participarea la cercetare științifică, accesul la drepturi reproductive și dreptul la sănătate sexuală și reproductivă: abordarea Comitetului ONU pentru Drepturi Economice, Sociale și Culturale în Comunicarea S.C. și G.P. c. Italiei
- Emiliano Jeronimo Buis, La Anfictionía Pileo-Délfica y la solución judicial de controversias interestatales en el mundo griego clásico: ¿Un antecedente antiguo de la Corte Internacional de Justicia?
- Ruggero Cozzi Elzo, Fundamentos del principio de distinción en el derecho internacional humanitario
- Eduardo Picand Albónico, La sucesión por causa de muerte en el sistema chileno de Derecho internacional privado
- Laisa Branco Coelho C. de Almeida & Emanuele Mario Zavanella, The Brazilian 'Blue Amazon' Program: A New Chapter for Submarines Nuclear-Powered International Domain?
- Sebastian Ramos Zeballos, Evolución histórica de la responsabilidad internacional por hecho ilícito, desde los clásicos hasta la Sociedad de Naciones
- Claudio Nash Rojas, Desafíos del sistema interamericano de derechos humanos en tiempos de cólera
- Edison Garcés Cartes, El Caso Samarco y principios rectores sobre empresas y derechos humanos
- Rafael Mauricio Plaza Reveco, Preferential Tax Regimes. Offshore Corporate Profits in the Asia-Pacific Region
- Claudia Cardenas, El Proyecto de Ley de Cooperación entre el Estado de Chile y la Corte Penal Internacional
Saturday, August 8, 2020
Kaufmann-Kohler & Potestà: Investor-State Dispute Settlement and National Courts: Current Framework and Reform Options
This open access book examines the multiple intersections between national and international courts in the field of investment protection, and suggests possible modes for regulating future jurisdictional interactions between domestic courts and international tribunals. The current system of foreign investment protection consists of more than 3,000 international investment agreements (IIAs), most of which provide for investment arbitration as the forum for the resolution of disputes between foreign investors and host States. However, national courts also have jurisdiction over certain matters involving cross-border investments. International investment tribunals and national courts thus interact in a number of ways, which range from harmonious co-existence to reinforcing complementation, reciprocal supervision and, occasionally, competition and discord. The book maps this complex relationship between dispute settlement bodies in the current investment treaty context and assesses the potential role of domestic courts in future treaty frameworks that could emerge from the States’ current efforts to reform the system.The book concludes that, in certain areas of interaction between domestic courts and international investment tribunals, the “division of labor” between the two bodies is not always optimal, producing inefficiencies that burden the system as a whole. In these areas, there is a need for improvement by introducing a more fruitful allocation of tasks between domestic and international courts and tribunals – whatever form(s) the international mechanism for the settlement of investment disputes may take.Given its scope, the book contributes not only to legal analysis, but also to the policy reflections that are needed for ongoing efforts to reform investor-State dispute settlement.
The idea of “comparative law in action” seems nonsensical given the sterile and academic reputation of comparative law as a discipline. This Article argues that comparative law in action does not merely exist, it thrives in the field of international commercial arbitration (“ICA”). Comparative law methods pervade every stage of an international arbitration and are indispensable to ICA practice.
For many aspects of international arbitral proceedings, multiple laws conceivably apply. With no default options, the parties must make numerous choices: there is “too much law.” For other aspects of ICA, there is “too little law”: no applicable body of law provides any legal rule binding the parties or the arbitral tribunal, which must instead determine or develop the governing legal regime anew for each arbitration. In both situations—too much law and too little—comparative law methods are essential. Moreover, even if arbitrators and counsel were not constrained to think comparatively, the professional context within which they work would ensure that comparativism remains central to ICA practice.
The Article concludes by considering the implications of international arbitration as comparative law in action, for comparative law as a discipline and for the development of transnational law in the Twenty–First Century.
The thirtieth anniversary of the Yearbook of International Environmental Law presents an opportunity to take stock of how international environmental law has developed since 1990, both as a subject area and as a discipline. In this essay, I briefly outline the foundational elements of international environmental law–which to a significant degree had been laid as of 1990–and my top ten list of developments since then.
Milewicz: Constitutionalizing World Politics: The Logic of Democratic Power and the Unintended Consequences of International Treaty Making
The elusive ideal of a world constitution is unlikely to be realized any time soon – yet important steps in that direction are happening in world politics. Milewicz argues that international constitutionalization has gathered steam as an unintended by-product of international treaty making in the post-war period. This process is driven by the logic of democratic power, whereby states that are both democratic and powerful – democratic powers – are the strongest promoters of rule-based cooperation. Not realizing the inadvertent and long-term effects of the specialized rules they design, states fall into a constitutionalization trap that is hard to escape as it conforms with their interests and values.
COVID-19 hit as the world was undergoing the most significant upheaval in the international trade regime since at least the creation of the World Trade Organization (WTO) in 1995. The pandemic has given urgency to a preexisting demand in the United States, Europe, and elsewhere for the localization of supply chains. When the crisis hit, many developed countries realized that their supply chains for critical medical supplies and pharmaceuticals were concentrated in China. When the pandemic temporarily halted production in China, developed countries faced significant shortages of medical supplies. As a result, approximately eighty nations restricted the export of such products.
This Article argues that modern trade agreements overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. I make two primary points. First, critics of reshoring have argued that further trade liberalization is the best guarantee against supply chain risks. To the contrary, I argue that modern free trade agreements (FTAs), the primary vehicle through which trade liberalization has proceeded since 1995, do little to encourage the diversification of supply chains and in some cases actually exacerbate supply chain risks, especially through loose rules of origin. Second, I argue that WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for aggressive action only in the face of a crisis. WTO members are thus put to a choice. They can limit their attempts to preventatively regulate supply chain risks, waiting until a crisis occurs, or they can flout WTO rules. The former option risks more supply chain crises, while the latter option risks further undermining support for and adherence to the multilateral trading system. In this sense, trade law finds itself at a juncture similar to that faced by rules on the use of force two decades ago. Both sets of rules contain limited exceptions for preemptive action in the face of imminent threats. Just as nations like the United States felt that the imminence requirement did not give them enough flexibility to respond to modern threats in the use of force context, so too will nations chafe at the narrow exceptions for crisis-based supply chain regulation in the trade context.
- Louise Olsson, Angela Muvumba Sellström, Stephen Moncrief, Elisabeth Jean Wood, Karin Johansson, Walter Lotze, Chiara Ruffa, Amelia Hoover Green, Ann Kristin Sjöberg & Roudabeh Kishi, Peacekeeping Prevention: Strengthening Efforts to Preempt Conflict-related Sexual Violence
- Holger Albrecht, Diversionary Peace: International Peacekeeping and Domestic Civil-Military Relations
- Barış Arı & Theodora-Ismene Gizelis, Civil Conflict Fragmentation and the Effectiveness of UN Peacekeeping Operations
- Patrick Hunnicutt & William G. Nomikos, Nationality, Gender, and Deployments at the Local Level: Introducing the RADPKO Dataset
- Kajsa Tidblad-Lundholm, When are Women Deployed? Operational Uncertainty and Deployment of Female Personnel to UN Peacekeeping
The humanitarian framing of disarmament is not a novel development, but rather represents a re-emergence of a much older and long-standing sensibility of humanitarianism in disarmament. The Book rejects the 'big bang' theory that presents the Anti-Personnel Landmines Convention 1997, and its successors – the Convention on Cluster Munitions 2008, and the Treaty on the Prohibition of Nuclear Weapons 2017 – as a paradigm shift from an older traditional state-centric approach towards a more progressive humanitarian approach. It shows how humanitarian disarmament has a long and complex history, which includes these treaties. This book argues that the attempt to locate the birth of humanitarian disarmament in these treaties is part of the attempt to cleanse humanitarian disarmament of politics, presenting humanitarianism as a morally superior discourse in disarmament. However, humanitarianism carries its own blind spots and has its own hegemonic leanings. It may be silencing other potentially more transformative discourses.
In this book, the author outlines three independent bases for the existence of legal limits to the veto by UN Security Council permanent members while atrocity crimes are occurring. The provisions of the UN Charter creating the veto cannot override the UN's 'Purposes and Principles', nor jus cogens (peremptory norms of international law). There are also positive obligations imposed by the Geneva and Genocide Conventions in situations of war crimes and genocide - conventions to which all permanent members are parties. The author demonstrates how vetoes and veto threats have blocked the Security Council from pursuing measures that could have prevented or alleviated atrocity crimes (genocide, crimes against humanity, war crimes) in places such as Myanmar, Darfur, Syria, and elsewhere. As the practice continues despite regular condemnation by other UN member states and repeated voluntary veto restraint initiatives, the book explores how the legality of this practice could be challenged.
Paddeu: Military Assistance on Request and General Reasons Against Force: Consent as a Justification for the Use of Force
Is consent a defence or part of the definition of the prohibition of force? The mainstream answer has been to read (non)consent into the definition of the prohibition. The rule would thus prohibit only non-consensual force. In this article, I challenge this approach. This approach implies that there is no general reason against force in international society, that consensual force is not harmful and does not call for justification. And yet, the use of force, whether internal or international, always harms or threatens harm to international peace - the paramount purpose of the United Nations, so that maintaining international peace must count as a general reason against force. Moreover, international actors offer and expect justifications whenever force is used, including with consent. To reflect the general reason against force, the prohibition must exclude consent from its definition. Consent must be recast as a defence.
- Oscar Maúrtua de Romaña, El Rol De Las Líneas De Base En El Derecho Del Mar Y El Proceso De Delimitación Marítima Entre El Perú Y Chile
- José Luis Pérez Sánchez-Cerro, La Justicia Social Y El Derecho Internacional
- Gonzalo García Calderón Moreyra, Convenio Sobre Arreglo De Diferencias Relativas A Inversiones Entre Estados Y Nacionales De Otros Estados (CIADI)
- Augusto Hernández Campos, El Asilo Diplomático Y El Caso Alan García
- Alexander Antialón Conde, La Solidaridad Americana En Tiempos Del Covid-19: El Bloqueo A Cuba
- Carolina Loayza-Tamayo, Principios De Derecho Internacional De Los Derechos Humanos Aplicables En Estado De Emergencia Covid-19 Y El Uso De La Fuerza Por Parte Del Personal Policial
- Pablo Rosales Zamora, El Debate Sobre El Carácter Jurídico Del Derecho De Gentes En Hispanoamérica Durante El Siglo XIX: La Contraposición Entre José Silva Santisteban Y Andrés Bello
- Juan Fuentes & David Sánchez, Análisis Crítico Del Concepto De Apátrida De Facto
- Ubaldo Greco, La Regulación Jurídica De Las Relaciones Patrimoniales De Las Parejas Internacionales En La UE
Kriesel: Peoples' Rights: Gruppenrechte im Völkerrecht: Theorie und Praxis des kollektiven Menschenrechtsschutzes in Afrika, Amerika und Europa
Die Peoples ' Rights aus dem afrikanischen Menschenrechtsschutzsystem sind bislang eine Unbekannte, die allenfalls unter dem Blickwinkel des Kulturrelativismus wahrgenommen wird. Gruppenrechte als Menschenrechte scheinen angesichts des Primats der Individualrechte undenkbar. Indes offenbart die erstmalige Gesamtschau von der Ideengeschichte (innerhalb und jenseits des Nationalstaates), dem theoretischen Diskurs zu kollektiven Rechtspositionen und der Praxis des internationalen Menschenrechtsschutzes ein anderes Bild. Julia Kriesel unternimmt eine rechtsvergleichende Analyse des afrikanischen, amerikanischen und europäischen Menschenrechtssystems und zeigt, dass der Schutz von Gruppen durch Menschenrechte (unabhängig von der rechtspositivistischen Ausgangssituation) längst Realität ist. Hervor tritt eine Verflechtung von Individual- und Gruppenschutz mit einem (teilweise neuen) umfassenden Menschenrechtsverständnis.
- Peter Arnt Nielsen, The Hague 2019 Judgments Convention - from failure to success?
- Eva Jueptner, The Hague Jurisdiction Project – what options for The Hague Conference?
- Haris P. Meidanis, Enforcement of mediation settlement agreements in the EU and the need for reform
- Kazuaki Nishioka, Choice of court agreements and derogation from competition law
- Michiel Poesen, Concurrent liabilities and jurisdiction over individual contracts of employment under the Brussels Ia Regulation
- Dorota Miler, The EU Succession Regulation and forced heirship: a potential violation of German public policy?
- Matthias Lehmann, Hayk Kupelyants on sovereign defaults before domestic courts
Friday, August 7, 2020
There is order on the internet, but how has this order emerged and what challenges will threaten and shape its future? This study shows how a legitimate order of norms has emerged online, through both national and international legal systems. It establishes the emergence of a normative order of the internet, an order which explains and justifies processes of online rule and regulation. This order integrates norms at three different levels (regional, national, international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards).
Matthias C. Kettemann assesses their internal coherence, their consonance with other order norms and their consistency with the order's finality. The normative order of the internet is based on and produces a liquefied system characterized by self-learning normativity. In light of the importance of the socio-communicative online space, this is a book for anyone interested in understanding the contemporary development of the internet.
This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is offered as a free PDF download from OUP and selected open access locations.
International public administrations (IPAs) have become an essential feature of global governance, contributing to what some have described as the 'bureaucratization of world politics'. While we do know that IPAs matter for international politics, we neither know exactly to what extent nor how exactly they matter for international organizations' policy making processes and subsequent outputs. This book provides an innovative perspective on IPAs and their agency in introducing the concept of administrative styles to the study of international organizations and global public policy. It argues that the administrative bodies of international organizations can develop informal working routines that allow them to exert influence beyond their formal autonomy and mandate. The theoretical argument is tested by an encompassing comparative assessment of administrative styles and their determinants across eight IPAs providing rich empirical insight gathered in more than 100 expert interviews.
Thursday, August 6, 2020
Hard and soft law developed by international and regional organizations, transgovernmental networks, and international courts increasingly shape rules, procedures, and practices governing criminalization, policing, prosecution, and punishment. This dynamic calls into question traditional approaches that study criminal justice from a predominantly national perspective, or that dichotomize the study of international from national criminal law. Building on socio-legal theories of transnational legal ordering, this book develops a new approach for studying the interaction between international and domestic criminal law and practice. Distinguished scholars from different disciplines apply this approach in ten case studies of transnational legal ordering that address transnational crimes such as money laundering, corruption, and human trafficking, international crimes such as mass atrocities, and human rights abuses in law enforcement. The book provides a comprehensive treatment of the changing transnational nature of criminal justice policymaking and practice in today's globalized world.
The chapter outlines the legal concept of international organization. We map the debates on the traditional defining elements and the broader theoretical paradigms where the concept has been traditionally embedded. We argue that relatively well-established theoretical frameworks no longer match reality. Therefore we need a legal concept of international organization that is both sufficiently specific to have an analytical value for legal examination and sufficiently broad for not missing out entities which are apt to shape the normative situation of individuals or to deploy substantial direct or indirect legal effects for the fate of nations and for the integrity of our planet. We conceive of “international organization” as a cluster concept which does not depend on a set of fixed criteria. Some entities are in the core of the concept, others are more on the fringes. Besides actors which are inter-state in form, other entities with multiple legal bases (public and private, international and domestic) and with a hybrid membership (states, civil society, even commercial) may be qualified as international organizations if they are entrusted with competences to fulfil tasks in the global public interest and feature a certain degree of autonomy. The concept should also encompass actors devoid of legal personality when they are sufficiently structured and stable to distinguish them from mere networks and ad hoc cooperation. Ultimately and more radically, international law as part and parcel of a global legal landscape necessitates the concept of a global organization.
- Elisabeth Pramendorfer, The Role of the Human Rights Council in Implementing the Responsibility to Protect
- Benedict Docherty, Xavier Mathieu, & Jason Ralph, R2P and the Arab Spring: Norm Localisation and the US Response to the Early Syria Crisis
- Mikelli Marzzini L. A. Ribeiro, Marcelo de Almeida Medeiros, & Alexandre Cesar Cunha Leite, China’s Engagement with R2P: Pluralist Shaper?
- Rana M. Essawy, The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’
- Svetlana Bokeriya, Key Aspects of Combined Thinking of the brics Countries on the Responsibility to Protect
We live in a world ruled by standards. From toys and computers to corporate social responsibility, from the drycleaner in Nairobi to the Swedish radiation safety authority - international standards specify almost all aspects of society. This book questions how this is made possible. Standards need support in order to work and Ingrid Gustafsson explores how a control regime built on standards, certifications and accreditations can emerge over time and grow global.
The global control regime is nurtured mainly by the questions connected to globalization: how can we trust things from other parts of the world? While resting on buzzwords such as ’trust’ and ‘confidence’, the global control regime leaves us with a faceless bureaucratic system with no name and no one in charge. This has severe consequences for responsibility: if no one is in charge, then no one is to be held accountable for how standards rule the world. This is particularly pertinent because the author shows how states are embedded in standards to a much higher degree than previous research has shown.
Current contestations of the liberal international order stand in notable contrast with the earlier rise of international law during the post-cold war period. As Krieger and Liese argue, this situation calls for assessment of the type of change that is currently observed, i.e. norm change (Wandel) or a more fundamental transformation of international law – a metamorphosis (Verwandlung)? To address this question, this paper details the bi-focal approach to norms in order to reflect and take account of the complex interrelation between fact-based and value-based conceptions of norms. The paper is organised in three sections. The first section presents three axioms underlying the conceptual framework to study norm(ative) change which are visualised by a triangular operation to analyse this change in relation with practices and norms. The second section recalls three key interests that have guided IR norms research after the return to norms in the late 1980s. They include, first, allocating change in and through practice, second, identifying behavioural change with reference to norm- following, and third, identifying norm(ative) change with reference to discursive practice. The third section presents the two analytical tools of the conceptual frame, namely, the norm-typology and the cycle-grid model. It also indicates how to apply these tools with reference to illustrative case scenarios. The conclusion recalls the key elements of the conceptual framework for research on norm(ative) change in international relations in light of the challenge of establishing sustainable normativity in the global order.
This book outlines the protection standards typically contained in international investment agreements as they are actually applied and interpreted by investment tribunals. It thus provides a basis for analysis, criticism, and stocktaking of the existing system of investment arbitration. It covers all main protection standards, such as expropriation, fair and equitable treatment, full protection and security, the non-discrimination standards of national treatment and MFN, the prohibition of unreasonable and discriminatory measures, umbrella clauses and transfer guarantees. These standards are covered in separate chapters providing an overview of textual variations, explaining the origin of the standards and analysing the main conceptual issues as developed by investment tribunals. Relevant cases with quotations that illustrate how tribunals have relied upon the standards are presented in depth. An extensive bibliography guides the reader to more specific aspects of each investment standard permitting the book's use as a commentary of the main investment protection standards.
International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Wednesday, August 5, 2020
What was long feared by legislators and courts has now become reality: trans men give birth to their own children and request to be designated as their ‘fathers’ for the purpose of birth registration. This paper sheds light on the transformative potential of such procreative scenarios and the following legal claims for fatherhood. An argument is made that they invite essential reflections on what it means to be a father today and, in so doing, they prompt a (re)construction of legal fatherhood which includes care as a relevant, paternal parameter. By focusing on ongoing cases decided by English and German courts, however, this paper shows that domestic courts’ understanding of fatherhood has essentially preserved its conventionally heteronormative, biological and mediated nature. Yet, the game is still open and an application pending before the European Court of Human Rights may breathe fresh air into the debate.
Rosselet: Les contre-mesures à travers le prisme du principe de proportionnalité : Étude en droit de la paix et en droit international humanitaire
La présente étude aborde la question des contre-mesures à travers la seule condition substantielle de la proportionnalité, en défendant une conception large de ce principe. Au moyen de quatre critères (adéquation, subsidiarité, nécessité, pesée des intérêts), le principe de proportionnalité constitue une grille de lecture permettant d’examiner la licéité d’une contre-mesure. Il établit une rigueur juridique pour l’analyse de cette condition fondamentale sans perdre la malléabilité de cette dernière.
L’approche comparative du principe de proportionnalité dans le cadre des contre-mesures en droit de la paix et des représailles de guerre a permis de mettre en lumière l’héritage laissé par les secondes aux premières. Si les difficultés d’apprécier la proportionnalité des représailles se retrouvent dans les contre-mesures en droit de la paix, l’analyse a également démontré la nécessité de basculer d’une justice privée des États à une justice institutionnalisée lorsque les intérêts fondamentaux de la communauté internationale dans son ensemble sont en jeu.
Tuesday, August 4, 2020
Choudhury: Human Rights Provisions in International Investment Treaties and Investor-State Contracts
Today there is ample recognition that corporations have responsibilities to protect human rights in the context of their business operations. However, there is less recognition that foreign investors have concomitant duties in the context of foreign investment, despite the fact that many foreign investors operate as corporations.
Nevertheless, an increasing number of states are beginning to include references to human rights in their investment treaties and investor-state contracts. While in some instances, states refer to human rights generally in their treaties or contracts, a small but growing number of states address specific human rights such as indigenous and gender rights within the ambit of their treaty or contract.
Often treaties or contracts only refer to human rights in vague or non-obligatory language. Yet, gradually more and more states are beginning to include more stringent language. Nowhere is this more apparent than in some investor-state contracts, which are now beginning to include both positive and negative obligations for foreign investors in regards to human rights.
Yet regardless of the approach, references to human rights in investment treaties and investor-state contracts offer three advantages. They can help protect states’ regulatory sovereignty, work towards establishing human rights obligations for foreign investors, and provide context for their interpretation. All three of these benefits work towards reducing the asymmetries inherent in international investment law.
This open access book contains 13 contributions on global animal law, preceded by an introduction which explains key concepts and methods. Global Animal Law refers to the sum of legal rules and principles (both state-made and non-state-made) governing the interaction between humans and other animals, on a domestic, local, regional, and international level. Global animal law is the response to the mismatch between almost exclusively national animal-related legislation on the one hand, and the global dimension of the animal issue on the other hand.
The chapters lay some historical foundations in the ius naturae et gentium, examine various aspects of how national and international law traditionally deals with animals as commodity; and finally suggest new legal concepts and protective strategies. The book shows numerous entry points for animal issues in international law and at the same time shifts the focus and scope of inquiry.
Monday, August 3, 2020
Sharmin: Application of Most-Favoured-Nation Clauses by Investor-State Arbitral Tribunals: Implications for the Developing Countries
This book comprehensively examines various issues regarding the scope of Most-Favoured Nation (MFN) Clauses in International Investment Agreements (IIAs), and addresses the reform, interpretation, and enforcement of IIAs with a specific focus on the MFN clause. The book begins with a study of the history and evolution of the MFN. It then presents a substantive analysis focusing on the drafting style and how it affects the scope of the MFN; rules of interpretation and arbitral case law on the scope of the MFN, procedural prerequisites to arbitration and jurisdiction of arbitral tribunals, and the implications of adopting an expansive approach to the MFN clause.
The book’s argument centres on the need for arbitral tribunals to interpret the MFN in a manner that reflects the expressed intent of the parties. This requires taking into consideration the text of the MFN, its purpose, and the overall context of the IIA, rather than relying on values and assumptions that have nothing to do with the original intent of the parties. In making this argument, the book draws on Articles 31 and 32 of the Vienna Convention on the Law of Treaties and other interpretative rules. What sets the book apart is its comprehensive coverage of issues concerning the interpretation and application of the MFN in IIAs. At the same time, it addresses issues in connection with an expansive interpretation of MFN clauses, as well as concerns regarding the legitimacy crisis in investor-state arbitration. Accordingly, it contributes to future Investor-State Dispute Settlement (ISDS) reform, while also offering a wealth of theoretical and practical insights for future treaty drafters, arbitrators, and policymakers.
Viola: The Closure of the International System: How Institutions Create Political Equalities and Hierarchies
As global governance appears to become more inclusive and democratic, many scholars argue that international institutions act as motors of expansion and democratization. The Closure of the International System challenges this view, arguing that the history of the international system is a series of institutional closures, in which institutions such as diplomacy, international law, and international organizations make rules to legitimate the inclusion of some actors and the exclusion of others. While international institutions facilitate collective action and common goods, Viola's closure thesis demonstrates how these gains are achieved by limiting access to rights and resources, creating a stratified system of political equals and unequals. The coexistence of equality and hierarchy is a constitutive feature of the international system and its institutions. This tension is relevant today as multilateral institutions are challenged by disaffected citizens, non-Western powers, and established great powers discontent with the distribution of political rights and authority.
Schäfer: Treaty Overriding: Ein Beitrag zur verfassungsrechtlichen Zulässigkeit abkommensüberschreibender Bundesgesetze
Wie verhält sich das deutsche Verfassungsrecht zu der Frage, ob der Bundestag bei seiner gesetzgeberischen Tätigkeit an völkerrechtliche Verträge gebunden ist? Martin Schäfer untersucht dies und zeigt, wie »freundlich« sich das Grundgesetz gegenüber dem Völkerrecht verhält. Wie verträgt sich eine etwaige Bindung des Gesetzgebers an völkerrechtliche Verträge mit seiner durch das Demokratieprinzip verbürgten Freiheit, in der Vergangenheit getroffene Entscheidungen zurückzunehmen oder zu ändern? Der Autor erörtert, welchen Rang dabei völkerrechtliche Verträge in der deutschen Normenpyramide einnehmen und welche Rückschlüsse die Organkompetenzverteilung im Bereich der auswärtigen Gewalt auf die Frage zulässt, ob das sog. Treaty Overriding verfassungsrechtlich zulässig ist.
Sunday, August 2, 2020
This Handbook provides a cutting edge study of the fast developing field of international law on the protection of cultural heritage by taking stock of the recent developments and of the core concepts and current challenges. The legal protection of cultural heritage has come under renewed focus from the international community and states since the 1990s. This is evidenced by the adoption of a range of international instruments. Countries are also enacting cultural heritage legislation or overhauling existing laws within their own national territory.
Contributions address the protection of immovable and movable, tangible and intangible cultural heritage in peacetime and in the event of armed conflict as well as the interaction between specific regimes of cultural heritage protection with other fields of international law, including international criminal law, human rights and humanitarian law, environmental law, international trade, investments, and intellectual property. The last part of the Handbook covers diverse regional systems of heritage protection.
Kunz: Richter über internationale Gerichte? Die Rolle innerstaatlicher Gerichte bei der Umsetzung der Entscheidungen von EGMR und IAGMR
Das Open-Access-Buch untersucht am Beispiel des Europäischen Gerichtshofs für Menschenrechte (EGMR) und des Interamerikanischen Menschenrechtsgerichtshofs (IAGMR), welche Rolle innerstaatliche Gerichte bei der Umsetzung internationaler Entscheidungen wahrnehmen. Wann sind sie bereit ihre Pendants in Straßburg bzw. San José bei der Umsetzung ihrer Entscheidungen zu unterstützen und diese gleichsam unmittelbar „anzuwenden“, und wo ziehen sie Grenzen und rote Linien? Was sind die Probleme, die ihnen begegnen, und befinden sich Gerichte tatsächlich im Wandel hin zu einer defensiveren und weniger völkerrechtsfreundlichen Haltung, wie einige jüngere Beispiele vermuten lassen?
Das Werk widmet sich der Frage, welche Wirkungen innerstaatliche Gerichte bereit sind, den Entscheidungen der Menschenrechtsgerichte zukommen zu lassen – und zwar genau dann, wenn sich das innerstaatliche Recht nicht dazu äußert. Es zeigt auf, dass hinter der vermeintlich technischen Ausgangsfrage fundamentale Fragen verfassungsrechtlicher Natur stehen und sich am Beispiel der Menschenrechtsgerichte einige der zentralen Schwierigkeiten und Probleme zeigen, wie sie beim Zusammenspiel von Rechtsordnungen in Zeiten globalen Regierens entstehen.
- Rosemary Nagy, Settler Witnessing at the Truth and Reconciliation Commission of Canada
- Alexander Kriebitz & Raphael Max, The Xinjiang Case and Its Implications from a Business Ethics Perspective
- Olivera Simić & Barbora Holá, A War Criminal’s Remorse: the Case of Landžo and Plavšić
- Rauna Kuokkanen, Reconciliation as a Threat or Structural Change? The Truth and Reconciliation Process and Settler Colonial Policy Making in Finland
- Janne Mende & Julia Drubel, At the Junction: Two Models of Business Responsibility for Modern Slavery
Saturday, August 1, 2020
This contribution considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored – creating legal uncertainty. This article reviews how pandemics as biological and social events, end, considers how international bodies have approached the end of emergencies, and assesses what this might mean for adjudicators deciding on the end of the SARS-Cov-2 pandemic and related public health emergency.
Friday, July 31, 2020
This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.
International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at each of these levels, this chapter describes the ways metaphors allow international lawyers to build a shared, tangible universe of legal meaning. But it also reveals how metaphors simultaneously help hide international law’s dark side, blind international lawyers to alternative ways of organizing the world, and prejudge legal outcomes. Metaphors, a key building block of the international law we know, become key also to its demolition, restoration, or remodeling.
Civil war has been a fact of political life throughout recorded history. However, unlike inter-state wars, international law has not traditionally regulated such conflicts. How then can we explain the post-1945 emergence and evolution of international treaty rules regulating the conduct of internal armed conflict: the 'Civil War Regime'? Negotiating Civil War combines insights derived from Realist, Rationalist, Liberal, and Constructivist approaches to International Relations to answer this question, revisiting the negotiation of the 1949 Geneva Conventions, the 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court. This study provides a rigorous, critical account of the making of the Civil War Regime. Sophisticated and persuasive, it illustrates the complex interplay of material, ideational, social, and strategic factors in shaping these rules with important lessons for the making and unmaking of international law in a rapidly shifting international political, economic, and security environment.
van Dijk: Internationalizing Colonial War: On the Unintended Consequences of the Interventions of the International Committee of the Red Cross in South-East Asia, 1945–1949
What is the relationship between decolonization and international law? Most historians agree that empires framed their colonial wars as emergencies in order to escape international scrutiny. After 1945, however, those same imperial powers invited the International Committee of the Red Cross (ICRC) to intervene in their wars of decolonization while resisting an official state of war. This article seeks to solve this puzzle by drawing attention to the ICRC’s critical part in reshaping the international legal system regarding colonial war in the critical years before the Algerian War of Independence (1954–62) and the Bandung Conference (1955). In this formative period, the organization, together with anti-colonial activists, played a transformative role in contesting accepted ideas of global governance and international law while providing a new stage for anti-colonial resistance, with far-reaching consequences, not just for the ICRC’s own institutional future, but also for the legitimization of (post-)colonial sovereignty in the twentieth century.
This book explores the nature and scope of the provision requiring States to ‘ensure respect’ for international humanitarian law (IHL) contained within Common Article 1 of the 1949 Geneva Conventions. It examines the interpretation and application of this provision in a range of contexts, both thematic and country-specific. Accepting the clearly articulated notion of ‘respect’ for IHL, it builds on the existing literature studying the meaning of ‘ensure respect’ and outlines an understanding of the concept in situations such as enacting implementing legislation, diplomatic interactions, regulating private actors, targeting, detaining persons under IHL in non-international armed conflict, protecting civilians (including internally displaced populations) and prosecuting war crimes. It also considers topical issues such as counter-terrorism and foreign fighting.
Laws and norms that focus on women's lives in conflict have proliferated across the regimes of international humanitarian law, international criminal law, international human rights law and the United Nations Security Council. While separate institutions, with differing powers of monitoring and enforcement, implement these laws and norms, the activities of regimes overlap. Women's Rights in Armed Conflict under International Law is the first book to account for this pluralism and institutional diversity. This book identifies key aspects of how different regimes regulate women's rights in conflict, and how they interact. Using country case studies to reveal the practical implications of the fragmented protection of women's rights in conflict, this book offers a dynamic account of how regimes and institutions interact, the extent to which they reinforce each other, and the tensions and gaps in regulation that emerge.
Mason-Case & Dehm: Redressing Historical Responsibility for the Precarities of Climate Change in the Present
This chapter is part of a volume on debating the law of climate change and thus assumes the style of legal debate. We argue that industrialized countries of the Global North are responsible for historical emissions that contribute to the unjust precarities of climate change in the present for states in the Global South, the poor, and Black, Indigenous and other marginalized peoples in settler colonial states. First, relying on international legal doctrine, we show how the 'no harm' rule of customary international law provides one avenue of recourse. Nevertheless, we also argue that this avenue is limited because international law reflects social reality and states, companies and institutions of the Global North have power to shape the law to the detriment of others. We therefore undertake an immanent critique of international legal doctrines drawing on critical traditions, including critical race theories and Third World Approaches to International Law (TWAIL). We expose the internal contradictions in the law that preclude full repair for historical injustices. We also expose that international law's inability to redress the problem at hand stems from climate change's imbrication with broader histories of dispossession, including colonialism and its reincarnations in the global political economy. We therefore argue for alternatives to obtain redress. We call for "reparations" that would look to marginalized peoples for means and ends to fully decolonize the international legal order and to re-envision social relations among peoples that could also address climate harms.
Thursday, July 30, 2020
To Do, To Die, To Reason Why offers a new account of the ethics of war and the legal regulation of war. It is especially concerned with the conduct of individuals, including whether they are required to follow orders to go to war, what moral constraints there are on killing in war, what makes people liable to be killed in war, and the extent to which the laws of war ought to reflect the morality of war. Victor Tadros defends a largely anti-authority view about the morality of war, and notable moral constraints on killing in war, such as the Doctrine of Doing and Allowing and a version of the Doctrine of Double Effect. However, he argues that a much wider range of people are liable to be harmed or killed in war than is normally thought to be the case, on grounds of both causal involvement and fairness. And it argues that the laws of war should converge much more closely with the morality of war than is currently the case.
After the Second World War, the General Agreement on Tariffs and Trade (GATT) promoted trade liberalization to help make the world prosperous and peaceful. Francine McKenzie uses case studies of the Cold War, the creation of the EEC and other regional trade agreements, development, and agriculture, to show that trade is a primary goal of foreign policy, a dominant (and divisive) aspect of international relations, and a vital component of global order. She unpacks the many ways in which trade was politicised, and the layers of meaning associated with trade; trade policies, as well as disputes about trade, communicated ideas, hopes and fears that were linked to larger questions of identity, sovereignty, and status. This study reveals how the economic and political dimensions of foreign policy and international engagement intersected, showing that trade was not only instrumentalised in the service of particular policies or relations but that it was also an essential aspect of international relations.
- Hugues Hellio & Solveig Henry, Le suivi par la Cour International de Justice de ses ordonnances en indication de mesures conservatoires - Une pratique éméergente entre inspiraiton, discrétion et recherche d'effectivité
- Anne Choquet & Awa Sam Lefebre, Détresse en mer en période de pandémie : des navires de croisière à la recherche d'un port d'accueil
- Jean-Emmanuel Perrin, L'instrumentalisation et l'arsenalisation de la règle de droit à des fins politiques ou miltaires et ses conséquences sur l'ordre juridique international : quelle stratégie de riposte?
Fraser: Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court
Islamic law covers a broad scope and articulates norms regarding crime and punishment as well as what would today be considered international law. In fact, Islamic law contains many techniques relating to preventing and punishing crime, victim remedies and reconciliation, making it relevant to the elucidation and application of international criminal law by the International Criminal Court (ICC). This relevance is pertinent as many of the States with situations being considered by the ICC’s Prosecutor have a Muslim-majority, such as Afghanistan, Iraq, Libya, Mali, Palestine and Sudan. Furthermore, around two-thirds of the Red Cross’ (ICRC) present operations relate to armed conflicts in Islamic contexts. However, the positive role that Islamic law can play in such conflicts is under-appreciated. Despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent. For example, the Court has not, to date, drawn upon Islamic law in its rulings in such situations. This chapter advocates the ICC’s use of or reference to Islamic law in relevant cases to promote the Court’s cultural legitimacy in Muslim communities and to foster the engagement of Muslim-majority States in the Rome Statute system.
In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.
- Der Kleinstaat im Völkerrecht
- Lorenz Langer, Der Kleinstaat im Völkerrecht: Das Beispiel Liechtensteins
- Peter Bussjäger, Liechtenstein in der Staatengemeinschaft: Über Labilität von Souveränität und das Ringen um Anerkennung
- Andreas Müller, Die Völkerrechtsfreundlichkeit der liechtensteinischen Rechtsordnung: Zwischen Offenheit und Selbstbehauptung
- Patricia M. Schiess Rütimann, Liechtenstein und die UNO-Frauenrechtskonvention CEDAW
- Charlotte Sieber-Gasser, In engen Grenzen: Kleine Volkswirtschaften, der Handelskrieg und COVID-19
- Lorenz Langer, Implications of Soft Law Regimes for Small States: The Experience of Switzerland and Liechtenstein
Das internationale Investitionsrecht befindet sich in einer Umbruchsphase. Die seit geraumer Zeit existierende Kritik an der traditionellen Ausgestaltung zwischenstaatlicher Investitionsabkommen hat Eingang in die neuere Vertragspraxis gefunden. Moderne Investitionsabkommen sind präziser formuliert, enthalten häufiger Ausnahmetatbestände und sollen so staatliche Regulierungsspielräume stärker berücksichtigen. Diese vielfach beschworene Reform des Investitionsrechts steht jedoch weiterhin vor erheblichen rechtlichen Herausforderungen. Denn eine der Besonderheiten der Rechtsmaterie ist ihre mangelnde Harmonisierung und die Wechselwirkungen, die zwischen der großen Zahl neuer und älterer Investitionsabkommen entstehen können. Die so hervorgerufenen normativen Spannungsverhältnisse führen zu einer Reihe neuer Rechtsfragen, denen sich Joscha Müller in seiner Untersuchung eingehend widmet.
Tuesday, July 28, 2020
- Culture and International Law: A Comprehensive Analysis
- Maki Nishiumi, Introductory Note
- Toshiyuki Kono, Destruction of Cultural Heritage and Recovery: The World Heritage, Authenticity, and “Process-Thinking”
- Véronique Guèvremont, The Relationship Between Culture and Development in International Law
- Yvonne Donders, Cultural Rights in International Human Rights Law: From Controversy to Celebration
- Jacqueline Mowbray, Language and International Law: How Does International Law Protect Languages and Linguistic Rights?
- New Legislation on the International Jurisdiction of Japanese Courts on Personal Status Litigations and Domestic Relations Cases
- Aki Kitazawa, Introductory Note
- Yuko Nishitani, New International Civil Procedure Law of Japan in Status and Family Matters
- Yuko Nishitani, International Adjudicatory Jurisdiction in Matrimonial Matters in Japan
- Masako Murakami, International Jurisdiction of Child-Related Cases in Japan
- Takami Hayashi, International Jurisdiction in Case Related to Succession: New Rules in Japan
- Manabu Iwamoto, Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases
- Customary International Law in Theory and Practice
- Georg Nolte, How to Identify Customary International Law? — On the Outcome of the Work of the International Law Commission (2018)
- Tatsuya Abe, ICJ Practice in Determining the Existence of Customary International Law
- Hitomi Takemura, Inconvenient Truths About the Identification of Customary International Law in International Criminal Law
- Public International Law
- Bjørn Kunoy, How Deep is Your Love: Intercrossing of Inner and Outer Continental Shelf Entitlements
- Japanese Digest of International Law
- Atsuko Kanehara, Japan’s Withdrawal from the International Convention for the Regulation of Whaling
This Element provides an explanation for the power of weak states in international politics, focusing on the case of international climate negotiations at the United Nations. The author points to the pitfalls of assuming that weak countries elicit power from their coordinated salience for climate issues. Contrastingly, it is argued that weak states' influence at global climate negotiations depends on the moral authority provided by strong states. The author maintains that weak states' authority is contingent on international vulnerability, which intersects broader domestic discussions of global justice, and pushes the leaders of strong countries to concede power to weak countries. New empirical evidence is shown in support of the theory.