The US-China economic interactions will have profound ramifications for the world. The article explores the following questions: what is the path forward for US-China economic interactions? What are its implications? It argues that selective engagement is the possible future path for US-China economic interactions. Selective engagement involves selective focuses, which currently are an unprecedented emphasis on market access, and delegalized implementation. Selective engagement contrasts sharply with deep free trade agreements that focus on regulatory disciplines and legalized dispute settlement. Selective engagement carries profound implications, ranging from rule vacuum and inconsistency, increased protection and economic disintegration, to the marginalization of multilateralism. Essentially, selective engagement is a “different animal” from previous trade practices, and could be a game changer in international economic order. The US-China interaction is highly mutable, and selective engagement may change over time.
Friday, June 12, 2020
Recent interdisciplinary scholarship helps explain why the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) did not dispel denialism about the nature of, and responsibility for, mass atrocities in Bosnia and elsewhere in the former Yugoslavia. Some studies suggest that efforts to counter denialism might even have a backfire effect, hardening the beliefs of committed nationalists. This research raises the unsettling question whether, at least in some circumstances, efforts to counter denialist narratives could instead lead those who espouse them to turn up the volume of toxic discourses. This article suggests that new social science research can productively be mined to develop effective strategies for persuading people to align their beliefs with facts rather than falsehoods. At the same time, the implications of research identifying a “backfire effect” should not be overstated, as more recent studies suggest this risk has been overstated. In addition, the author argues that, particularly since our understanding of social dynamics surrounding the entrenchment and abatement of denialism remains poor, we do well to honor and support the agency of survivors in identifying worthwhile processes of knowledge production and meaning-making in their societies. The article emphasizes as well that knowledge and memory-making processes are profoundly shaped by the political and social contexts in which they unfold. Accordingly, much of the work necessary to end denialism must be done in the realm of politics.
Sosnowski: ‘Not dead but sleeping’: Expanding international law to better regulate the diverse effects of ceasefire agreements
Ceasefire agreements are legally governed by international humanitarian law because they have generally been considered in relation to how they affect levels of violence. However, new research in the fields of anthropology, security, and development studies suggests that ceasefires can have many more ramifications. These range from their ability to influence governance institutions, property and citizenship rights, economic networks, and security mechanisms. Consequently, this article suggests that a broader legal framework is needed through which to consider ceasefires and their consequences. While canvassing the option of ceasefires being types of contractual documents or as special agreements under Common Article 3 of the Geneva Conventions, the article concludes that the best way to regulate ceasefire agreements is through an expanded version of lex pacificatoria. Rather than being governed by hard international law, such a move would allow for the implementation of more flexible programmatic standards to influence the myriad ways ceasefires are negotiated, the conduct of belligerents, and their diverse effects on the ground during wartime.
- Jeff A. Ardron, Alison A. Swaddling, Heidi Prislan, & Nicholas Hardman-Mountford, Sailing on an Ocean of Noble Causes: The Commonwealth Blue Charter
- Christopher Huggins, John Connolly, Craig McAngus & Arno van der Zwet, Brexit and the Uncertain Future of Fisheries Policy in the United Kingdom: Political and Governance Challenges
- Bleuenn Gaëlle Guilloux, Ocean and Climate Regime Interactions
- Rebecca Brown, Dispute Settlement in the Seas: International Law Influences on the Australia-Timor-Leste Conciliation
- Vasco Becker-Weinberg, Maritime Boundary-making and Improving Ocean Governance in Timor-Leste
- Felipe Kern Moreira, The Fishing Rights of Indigenous Peoples in the Context of the Global Governance of the Seas
- Sara Wissmann & Maurus Wollensak, Sometimes Goodbyes are Not Forever: Japan’s Hypothetical Re-accession to the International Convention for the Regulation of Whaling
- Chua Thia-Eng, Chou Loke-Ming & Danilo Bonga, Scaling up Integrative Collaborative Governance towards Sustainable Coastal Development: Contributions of the Integrated Coastal Management System in the East Asian Seas Region
- Jan-Stefan Fritz, Governing Plastics Pollution in the Ocean: From Anarchy to Mission Orientation
- Andrew Birchenough & Fredrik Haag, The London Convention and London Protocol and Their Expanding Mandate
- Ndubuisi Augustine Nwafor, Onyedikachi Josiah Alozie & Kenechukwu C. Mbajiorgu, Evaluating Nigeria’s Position on Intended Nationally Determined Contributions under the 2015 Paris Agreement and the Sustainable Development Goals
- Judith Swan, Illegal, Unreported, and Unregulated Fishing: Are RFMOs Effectively Addressing the Problem?
- Osvaldo Urrutia & Sebastián Rodríguez Alfaro, The IUU Fishing Vessel Listing Process in the Practice of the South Pacific Regional Fisheries Management Organisation
- Judy Dwyer, José Benchetrit & Jana Aker, Illegal, Unreported, and Unregulated Fisheries: The Northwest Atlantic Fisheries Organization Experience
- Hrannar Már Ásgeirsson, Darius Campbell & João Neves, Illegal, Unreported, and Unregulated Fishing: How the North-East Atlantic Fisheries Commission Addresses the IUU Fishing Challenge – Is It Working?
- Peter A. Murray & Susan Singh-Renton, Illegal, Unreported, and Unregulated Fishing: How the Caribbean Regional Fisheries Mechanism Addresses the IUU Fishing Challenge – Experiences and Lessons
- Abdellah Srour, Nicola Ferri & Anna Carlson, The General Fisheries Commission for the Mediterranean and the Fight against Illegal, Unreported, and Unregulated Fishing through Better Compliance
- Henrik Ringbom, Legalizing Autonomous Ships
- Millicent McCreath, Enhancing Compliance with Shipping Regulations for Environmental Protection in Antarctica
- Rebecca Prentiss Pskowski, Cradle to Graving-Dock? The Limits of Modern Shipbreaking Reform
- Desai Shan, The Need to Enhance Marine Occupational Health and Safety in Canada
Prior to the progressive development of the law of armed conflict heralded by the 1949 Geneva Conventions — most particularly in relation to the concepts of international and non-international armed conflict-the customary doctrine on recognition of belligerency functioned for almost 200 years as the definitive legal scheme for differentiating internal conflict from "civil wars", in which the law of war as applicable between states applied de jure.
Employing a legal historical approach, this book describes the thematic and practical fundamentals of the doctrine, and analyzes some of the more significant challenges to its application. In doing so, it assesses whether, how, and why the doctrine on recognition of belligerency was considered "fit for purpose," and seeks to inform debate as to its continuity and utility within the modern scheme of the law of armed conflict.
- Philipp Glahé, The Heidelberg Circle of Jurists and Its Struggle against Allied Jurisdiction: Amnesty-Lobbyism and Impunity-Demands for National Socialist War Criminals (1949–1955)
- Raphaël Cahen, Frederik Dhondt & Elisabetta Fiocchi Malaspina, Training, Ideas and Practices. The Law of Nations in the Long Eighteenth Century: An Introduction to the Focus Section
- Zülâl Muslu, Language and Power: The Dragoman as a Link in the Chain Between the Law of Nations and the Ottoman Empire
- Alice Bairoch de Sainte-Marie, La conception des devoirs du négociateur en Nouvelle-France: Héritage métropolitain ou cas particulier?
- Patrick Milton, The Mutual Guarantee of the Peace of Westphalia in the Law of Nations and Its Impact on European Diplomacy
- Elisabetta Fiocchi Malaspina, Transforming the Law of Nations: The Case of the Eighteenth Century Italian Peninsula
- Victor Simon, La dignité impériale des rois de France en Orient: Titulatures et traductions dans la diplomatie franco-ottomane
This book explores to what extent a state owes human rights obligations to individuals outside of its territory, when the conduct of that state impacts upon the lives of those individuals. It draws upon legal and political philosophy to develop a theory of extraterritoriality based on the nature of human rights, merging accounts of economic, social, and cultural rights with those of civil and political rights
Lea Raible outlines four main arguments aimed at changing the way we think about the extraterritoriality of human rights. First, she argues that questions regarding extraterritoriality are really about justifying the allocation of human rights obligations to specific states. Second, the book shows that human rights as found in international human rights treaties are underpinned by the values of integrity and equality. Third, she shows that these same values justify the allocation of human rights obligations towards specific individuals to public institutions - including states - that hold political power over those individuals. And finally, the book demonstrates that title to territory is best captured by the value of stability, as opposed to integrity and equality. On this basis, Raible concludes that all standards in international human rights treaties that count as human rights require that a threshold of jurisdiction, understood as political power over individuals, is met. The book applies this theory of extraterritoriality to explain the obligations of states in a wide range of cases.
- Gabrielle Marceau, Never Waste a Good Crisis: The End of the WTO Dream, or the Beginning of Something Greater?
- Davorin Lapaš, Diplomatic Privileges and Immunities for IGO-like Entities: A Step Towards a New Diplomatic Law?
- Noëlle Quénivet, Binding the United Nations to Customary (Human Rights) Law
- Cristina Contartese, Competence-Based Approach, Normative Control, and the International Responsibility of the EU and Its Member States: What Does Recent Practice add to the Debate?
- Gloria Fernández Arribas, Rethinking International Institutionalisation through Treaty Organs
Wednesday, June 10, 2020
The problem of moral sunk costs pervades decision-making with respect to war. In the terms of just war theory, it may seem that incurring a large moral cost results in permissiveness: if a just goal may be reached at a small cost beyond that which was deemed proportionate at the outset of war, how can it be reasonable to require cessation? On this view, moral costs already expended could have major implications for the ethics of conflict termination. Discussion of sunk costs in moral theorizing about war has settled into four camps: Quota, Prospect, Addition, and Discount. In this paper, I offer a mathematical model that articulates each of these views. The purpose of the mathematisation is threefold. First, to unify the sunk costs problem. Second, to show that these views differ in the nature of their justifications: some are justified qualitatively and others quantitatively. Third, to clarify the differential force of qualitative and quantitative critiques of these four views.
Kanetake: Giving Due Consideration: A Normative Pathway between UN Human Rights Treaty Monitoring Bodies and Domestic Courts
This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One of such justifications pertains to an obligation to consider the specific findings of treaty monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.
This book offers an engaging and historically informed account of the moral challenge of radically asymmetric violence — warfare conducted by one party in the near-complete absence of physical risk, across the full scope of a conflict zone. What role does physical risk and material threat play in the justifications for killing in war? And crucially, is there a point at which battlefield violence becomes so one-directional as to undermine the moral basis for its use?
In order to answers these questions, Asymmetric Killing delves into the morally contested terrain of the warrior ethos and Just War Tradition, locating the historical and contemporary role of reciprocal risk within both. This book also engages two historical episodes of battlefield asymmetry, military sniping and manned aerial bombing. Both modes of violence generated an imbalance of risk between opponents so profound as to call into question their permissibility. These now-resolved controversies will then be contrasted with the UAV-exclusive violence of the United States, robotic killing conducted in the absence of a significant military ground presence in conflict theatres such as Pakistan, Yemen, and Somalia. As will be revealed, the radical asymmetry of this latter case is distinct, undermining reciprocal risk at the structural level of war. Beyond its more resolvable tension with the warrior ethos, UAV-exclusive violence represents a fundamental challenge to the very coherence of the moral justifications for killing in war.
Abbott, Zangl, Snidal, & Genschel: The Governor's Dilemma: Indirect Governance Beyond Principals and Agents
The Governor's Dilemma develops a general theory of indirect governance based on the tradeoff between governor control and intermediary competence; the empirical chapters apply that theory to a diverse range of cases encompassing both international relations and comparative politics. The theoretical framework paper starts from the observation that virtually all governance is indirect, carried out through intermediaries. But governors in indirect governance relationships face a dilemma: competent intermediaries gain power from the competencies they contribute, making them difficult to control, while efforts to control intermediary behavor limit important intermediary competencies, including expertise, credibility, and legitimacy. Thus, governors can obtain either high intermediary competence or strong control, but not both. This competence-control tradeoff is a common condition of indirect governance, whether governors are domestic or international, public or private, democratic or authoritarian; and whether governance addresses economic, security, or social issues. The empirical chapters analyze the operation and implications of the governor's dilemma in cases involving the governance of violence (e.g., secret police, support for foreign rebel groups, private security companies), the governance of markets (e.g., the Euro crisis, capital markets, EU regulation, the G20), and cross-cutting governance issues (colonial empires, "Trump's Dilemma"). Competence-control theory helps explain many features of governance that other theories cannot: why indirect governance is not limited to principal-agent delegation, but takes multiple forms; why governors create seemingly counter-productive intermediary relationships; and why indirect governance is frequently unstable over time.
- Seokwoo Lee, Hee Eun Lee & Kevin YL Tan, Asian State Practice of Domestic Implementation of International Law (ASP-DIIL): A Preliminary Report
- Seokwoo Lee, Seung Bae Woo & Seryon Lee, Arthur John Patterson’s Murder Case of the Itaewon Homicide
- Nong Hong, Ocean Governance in the Asia-Pacific and the Arctic: Regional Practice and Lessons Learned
- Buhm-Suk Baek and Hosung Ahn, Korean Judicial Decisions: Major Decisions from the Second Half of 2018 to the First Half of 2019
- Jaime de Melo & Jean-Marc Solleder, The EGA Negotiations: Why They Are Important, Why They Are Stalled, and Challenges Ahead
- Nany Hur, Dongchul Kwak, & Jeongjoon Park, Online Platform Providers in the Sharing Economy: Emergence of New Service Suppliers?
- Kamala Dawar, Official Export Credit Support: Competition and Compliance Issues
- Hao Wu, A Harmonized Interpretation of Freedom of Transit in the Fragmented International Legal System: Applying Article 31(3)(c) of the Vienna Convention on the Law of Treaties to the Russia – Traffic in Transit Dispute
- Angshuman Hazarika & Pieter Van Vaerenbergh, Climate Change as a Security Risk: Too Hot to Handle?
- Sang Man Kim, Export Credit Guarantee and Prohibited Subsidies Under the SCM Agreement
- Weihuan Zhou, Qingjiang Kong, & Huiqin Jiang, Technology Transfer Under China’s Foreign Investment Regime: Does the WTO Provide a Solution?
Tuesday, June 9, 2020
During the 1980s, thousands of Chadian citizens were detained, tortured, and raped by then-President Hissène Habré's security forces. Decades later, Habré was finally prosecuted for his role in these atrocities not in his own country or in The Hague, but across the African continent, at the Extraordinary African Chambers in Senegal. By some accounts, Habré's trial and conviction by a specially built court in Dakar is the most significant achievement of global criminal justice in the past decade. Simply creating a court and commencing a trial against a deposed head of state was an extraordinary success. With its 2016 judgment, affirmed on appeal in 2017, the hybrid tribunal in Senegal exceeded expectations, working to deadlines and within its budget, with no murdered witnesses or self-dealing officials.
This book details and contextualizes the Habré trial. It presents the trial and its impact using a novel structure of first-person accounts from 26 direct actors (Part I), accompanied by academic analysis from leading experts on international criminal justice (Part II). Combined, these views present both local and international perspectives through distinct but inter-locking parts: empirical source material from understudied actors both within and outside the court is then contextualized with expert analysis that reflects on the construction and work of: the Extraordinary African Chamber (EAC) as well as wider themes of international criminal law. Together with an introduction laying out the work and significance of the EAC and its trial of Hissène Habré, the book is a comprehensive consideration of a history-making trial.
Lubin: The Rights to Privacy and Data Protection Under International Humanitarian Law and Human Rights Law
The Lieber Code of 1863, one of the earliest attempts at codifying the laws of war, set the principle that the “privation and disturbance of private relations” during armed conflict must be treated as the exception and not the rule. President Abraham Lincoln who signed the Code into a general order, is also known for being the first U.S. President to authorize a bulk military signals intelligence (SIGINT) collection program, granting his Secretary of War, Edwin Stanton, the authority to tap into Confederate telegraph lines.
It would take twenty-seven more years before Warren and Brandeis would publish their landmark 1890 Harvard Law Review article, which laid the cornerstone for the international recognition of the fundamental human right to privacy. Nonetheless, the right did not find any explicit mention, let alone specific protection, in either the Hague Regulations of 1899 and 1907, the Geneva Conventions of 1949, or the Additional Protocols of 1977. Unsurprisingly, the International Committee of the Red Cross (ICRC) Customary IHL database also excludes any real mention of privacy or data protection within the 161 rules it identifies as constituting the common core of humanitarian law binding on all parties to all armed conflicts today.
A review of the roles that the rights to privacy and data protection play in regulating wartime military operations is long overdue. Literature exploring the use of digital technologies during armed conflict has centered mostly on either the development of lethal autonomous weapon systems or on various techniques in cyber and information warfare. Far more limited attention has been given to other more mundane technologies which wartime deployment could have significant privacy and data protection infringing effects.
This chapter in an upcoming second edition of the Research Handbook on Human Rights and Humanitarian Law explores three such case studies: (1) data protection obligations triggered by the monitoring of the civilian population in the occupied territories; (2) the restrictions imposed on wartime SIGINT collection for launching military operations; and (3) the obligations imposed on international organizations and criminal courts in the collection of digital evidence for jus post bellum investigations and fact-finding missions. These three cases were selected as they target three different obligation holders: a belligerent occupier, a targeting commander, and post factum investigator or prosecutor. In reviewing these case studies, the chapter explores the normative foundation and scope of application of the rights to privacy and data protection in IHL.
The chapter proceeds in the following order. Section II discusses the nature and scope of the rights to informational privacy and data protection under HRL. Section III examines the application of these rights during armed conflict, under the existing theoretical doctrines surrounding the concurrent application of HRL. This section argues that regardless of which specific doctrine one adopts, the rights to privacy and data protection must be read into our contemporary understanding of IHL. Section IV then moves to discuss the specific application of these rights in each of the three case studies. Section V concludes.
The language of protection came with an ambivalence that was capable of portraying the protector as the benevolent sovereign, i.e., as protecting the slaves from planter brutality (protection as humanity), but also one that allowed the sovereign to exert control over the protected to prevent resistance to authority (protection as control). In this paper, I examine the politics behind protection for slaves in Trinidad in the early 19th century to show how protection, as a legal strategy, served these different ends in the British Empire, of humanity and control alike, and was influenced by the legacy of Edmund Burke. I make two arguments in this paper: First, I argue that Burke’s trusteeship ideas, albeit widely written about as limiting imperial rule (concerning his efforts in India, largely demonstrated by the Warren Hastings trial), can also be described as a tool for imperial expansion in the early 19th century (as in the case of its redeployment in the Mandates model). To re-characterize Burke as neither radical nor conservative, but as a pragmatist who believed that one must ‘allow an evil to correct it’, I examine the underlying meaning of what became his ‘trusteeship model’ from the perspective of his plan to protect slaves. Second, I claim that if we move past the strict international-national delineation present in international law today, we can appreciate that the legal technique of protection was at the center of the exploitation of non-European peoples for much longer during the ‘Pax Britannica’.
In this work, Amrita Narlikar argues that, contrary to common assumption, modern-day politics displays a surprising paradox: poverty - and the powerlessness with which it is associated - has emerged as a political tool and a formidable weapon in international negotiation. The success of poverty narratives, however, means that their use has not been limited to the neediest. Focusing on behaviours and outcomes in a particularly polarising area of bargaining - international trade - and illustrating wider applications of the argument, Narlikar shows how these narratives have been effectively used. Yet, she also sheds light on how indiscriminate overuse and misuse increasingly run the risk of adverse consequences for the system at large, and devastating repercussions for the weakest members of society. Narlikar advances a theory of agency and empowerment by focusing on the life-cycles of narratives, and concludes by offering policy-relevant insights on how to construct winning and sustainable narratives.
Monday, June 8, 2020
Lascurettes: Orders of Exclusion: Great Powers and the Strategic Sources of Foundational Rules in International Relations
When and why do powerful countries seek to enact major changes to international order, the broad set of rules that guide behavior in world politics? This question is particularly important today given the Trump administration's clear disregard for the reigning liberal international order in the United States. Across the globe, there is also uncertainty over what China might seek to replace that order with as it continues to amass power and influence. Together, these developments mean that what motivates great powers to shape and change order will remain at the forefront of debates over the future of world politics. Prior studies have focused on how the origins of international orders have been consensus-driven and inclusive. By contrast, Kyle M. Lascurettes argues in Orders of Exclusion that the propelling motivation for great power order building has typically been exclusionary. Dominant powers pursue fundamental changes to order when they perceive a major new threat on the horizon. Moreover, they do so for the purpose of targeting this perceived threat, be it another powerful state or a foreboding ideological movement. The goal of foundational rule writing in international relations, then, is blocking that threatening entity from amassing further influence, a motive Lascurettes illustrates at work across more than three hundred years of history. Far from falling outside of the bounds of traditional statecraft, order building is the continuation of power politics by other means.
This article uses the metaphor of turntablism to shed light on how international lawyers’ engagement with history has remained confined to the same terms, vocabularies, and categories of the very historical narratives they seek to evaluate, disrupt, or displace. In this article, turntablism is understood as the art of creating new music and sound effects by using one or several turntables on which a record is placed. This article argues that twenty-first century international lawyers engaging with the history of international law are talented turntablists. The many historiographical works produced by such lawyers, since the so-called ‘historical turn’, have remained confined to the very terms, categories, and vocabularies of the histories whose creation they discuss and theorise. This article ultimately shows that turntablism is not the inevitable fate of international lawyers engaging with history, and that a radical historical critique is possible and should be promoted.
Sunday, June 7, 2020
Four million square kilometres of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometres of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters off the shores of Papua New Guinea.
Governance mechanisms have not kept pace with the scientific and industrial innovation. Few countries have developed laws, regulations, or even voluntary agreements governing this activity, and none adequately address the known effects of seafloor mining or provide contingency plans for the unknown and currently unknowable effects of this new technology. Local communities and civil society organizations in the South Pacific have called for outright bans on the activity, fearing grave and unpredictable harms to the marine environments with which they have vital economic and societal relationships. Governments, too, are scrambling. While some have called for moratoria, and a few have been moving at top speed to enact seabed mining legislation, most governments contemplating seabed mining have failed to enact anything. They have not declared a moratorium, nor have they enacted legislation or created the statutory, regulatory and administrative structures necessary to support seafloor mining, and to mitigate potential harms.
This article addresses the urgent need for strong contracts between governments that plan to allow seabed mining as a path to economic development and the companies interested in accessing the valuable natural resources on the seabed within these countries’ sovereign control. Especially for countries with little experience with land based mining, or with thin regulatory infrastructure for seabed mining, such contracts will be indispensable in ensuring that countries considering permitting seabed mining receive the economic benefits they have been promised, while also safeguarding the ocean on which the countries and their populations traditionally rely for their well-being.