Saturday, June 20, 2020

Chesterman: Can International Law Survive a Rising China?

Simon Chesterman (National Univ. of Singapore - Law) has posted Can International Law Survive a Rising China? (European Journal of International Law, forthcoming). Here's the abstract:
The founding myth of international law is the sovereign equality of its member states. How, then, can and should it accommodate the rise of one potential hegemon and the decline of another? This review essay discusses an important new book by Cai Congyan, of Xiamen University, that tries to reconcile an international rule of law with rising powers in general and the rise of China in particular. The larger theoretical project is less successful than a more immediate one, which is describing and explaining China’s instrumentalist approach to the rule of law at the domestic and international levels. Though the tone of the book is assured and reassuring, Cai’s diplomacy at times leaves some interesting questions unanswered — and a few crucial ones unasked. It is, nonetheless, essential reading for anyone seeking to understand how China sees and uses international norms and institutions.

Claussen: Trade Administration

Kathleen Claussen (Univ. of Miami - Law) has posted Trade Administration (Virginia Law Review, forthcoming). Here's the abstract:

At the core of public debates about trade policy-making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the president. What these important but superficial conversations miss is that underlying much of our trade policy in recent decades is a widespread executive branch lawmaking apparatus with monitoring, rule-making, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article is the first to excavate that critical underbelly: what I call our “trade administrative state.” It maps the trade administrative state’s statutory and institutional ascent, which, I maintain, was the product of considerable experimentation in governance schemes developed in response to diverging market trends and normative priorities, the absence of judicial mechanisms to monitor its borders, and a deficiency of administrative law disciplines to respond to its fortification. This unearthing reveals that the trade administrative state does not operate like the rest of the regulatory state either in form or in process, despite that its actors engage in several conventional regulatory functions. Rather, trade lawmaking is predominantly managed by a single agency, the Office of the U.S. Trade Representative, and, procedurally, it lacks the hallmarks traditionally associated with administrative law. The Article then evaluates this model in light of administrative law’s aspirations. It demonstrates how our present model of trade administration and its self-policing control mechanisms clash with commonly held scholarly and doctrinal understandings of executive governance.

The Article’s structural account delivers normative payoffs. This assessment of modern trade governance prescribes certain lessons for shaping an administrative law that takes account of the doctrinal and practical particularities of certain specialized areas of administration. Surprisingly, however, despite that trade administration challenges established positivist and process-oriented values, it does so in such a way that enhances compliance with international law. At a moment when critics raise concern about the president’s disfavor of international trade law and institutions, this study reveals that certain norms are entrenched in our trade administrative state to counteract those concerns.

Taken together, the Article makes three contributions: first, it identifies and illustrates the experimental history of trade administration. Second, I unpack the distinct features of trade lawmaking as managed by executive branch agencies and draw conclusions about its functions for the way we conceive of trade actors and trade action in our constitutional framework. Finally, the Article analyzes the implications of this revealed structure for administrative law both in process and in content and shows how trade lawmaking serves as an unexpected administrative constraint.

Moffett, Rose, & Hickey: Shifting the Paradigm on Cultural Property and Heritage in International Law and Armed Conflict: Time to Talk about Reparations?

Luke Moffett (Queen's Univ. Belfast - Law), Dacia Viejo Rose (Univ. of Cambridge), & Robin Hickey (Queen's Univ. Belfast - Law) have posted Shifting the Paradigm on Cultural Property and Heritage in International Law and Armed Conflict: Time to Talk about Reparations? (International Journal of Heritage Studies, forthcoming). Here's the abstract:
Armed conflict has traditionally seen the targeting and destruction of cultural property and heritage from antiquity to modern conflicts in Syria. Despite the cultural connection between such objects and traditions with people, international law has concentrated on its preservation, prosecution and punishment, rather than reparations for the loss or damage. This article highlights the growing jurisprudence and state practice which suggests a need to rethink this traditional approach and develop a framework for ensuring reparations for damage and destruction caused to cultural property and heritage. This is not only to undo the harm as far as possible, but to ensure the legacy of such culture for future generations. We take a socio-legal approach to these issues drawing from our backgrounds in transitional justice, archaeology and law, to suggest a thicker and contextually relevant approach to reparations, appreciating the reproduction or rehabilitation of culture carries its own meaning and post-conflict societies often convey the violence of the past into the meta-conflict in law and politics of the present. That said, we argue that reparations can play an important role, drawing from human rights law and heritage studies, to remedy the loss to cultural heritage that can more effectively benefit such victims.

Galbraith: Rejoining Treaties

Jean Galbraith (Univ. of Pennsylvania - Law) has posted Rejoining Treaties (Virginia Law Review, Vol. 106, p. 73, 2020). Here's the abstract:
Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer in turn has important consequences. It means that, as a matter of U.S. domestic law, a future President can rejoin treaties without needing to return to the Senate for advice and consent. The Article concludes by situating this claim within a broader account of the distribution of foreign affairs powers.

Milanovic: Special Rules of Attribution of Conduct in International Law

Marko Milanovic (Univ. of Nottingham - Law) has posted Special Rules of Attribution of Conduct in International Law (International Law Studies, forthcoming). Here's the abstract:

Are there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of international law? This is the first article to systematically analyse the notion of special rules of attribution in international law. In particular, it searches for such rules in international humanitarian law, the law on the use of force, and European human rights law.

The article argues that that, to the extent special rules of attribution exist, they are rare and never uncontroversial. In most situations putative special rules attribution can be, and should be, conceptualized differently. It is particularly difficult to justify why rules of attribution should vary depending on the context or particular subject-matter, e.g. why a special rule of attribution should exist for terrorism but not (say) for genocide. Therefore, we should, to the extent reasonably possible, try to reconcile the various jurisprudential divergences identified in this article with the general attribution framework so as to minimize the incidence of special rules, unless there is a very good reason why such a rule should exist. One such reason could be emerging subject-specific state complicity doctrines, which do require sectoral adjustment, but even these doctrines would in most cases not be attributive in nature.

Seminar: A Troubled History: Forcible Transfers and Deportations in International Criminal Law

On Wednesday, June 24, 2020, the University of Wollongong will hold a Zoom Seminar on "A Troubled History: Forcible Transfers and Deportations in International Criminal Law," at 12:30-1:30 pm AEST (Australian Eastern Standard Time). The speakers will be Victoria Colvin and Phil Orchard. The Zoom link is here. For questions, contact Dorothea Anthony (, Law School and Legal Intersections Research Centre, University of Wollongong. Here's the idea:
Forced transfers and deportations of civilian populations are a persistent, grim theme in atrocity crimes. Not only do the victims suffer the loss of homes, property, and community, but these acts also may be a prelude to other atrocity crimes. Criminalizing forced displacement not only responds to a major human rights and atrocities problem which is not directly covered by either refugee or international human rights law; it and can also serve an important deterrent effect. The conduct has long been recognized as potentially wrongful in international law. However, establishing and prosecuting international crimes in this area has been a lengthy and challenging process. We examine the historical development of prohibitions against forced displacement, particularly that forms of forcible transfer and deportations can constitute war crimes and crimes against humanity. In recent times, we turn to the record of three international and hybrid courts where prosecutions of these crimes have occurred: the ECCC, the ICTY, and the ICC. We identify several challenges in codifying and prosecuting these crimes. As with many international crimes, delineating the elements of the offences, and therefore the conduct which is criminal in the international sphere, has been controversial along two axes. Particular to these crimes is that despite the harmful nature of the displacement, they may also be committed either to protect populations from, or in lieu of, other atrocities such as genocide, but also for reasons of military necessity and public security. In addition, the nature of the relationship between the two offences of deportation, in which a border is crossed, and forcible transfers, where it is not, has been a persistent question. The result is that these issues in combination mean that there is both an impetus to and an impediment for the prosecution of deportations and forcible transfers.

Dothan: As If: Why Legal Scholarship Needs Assumptions

Shai Dothan (Univ. of Copenhagen - iCourts) has posted As If: Why Legal Scholarship Needs Assumptions (Seton Hall Law Review, forthcoming). Here's the abstract:
A common accusation against law and economics is that it is based on unrealistic and unreasonable assumptions, such as claiming that people behave rationally. This accusation may very well be true. But it should not stand in the way of progress in legal analysis. The reason is that when something is assumed about facts—for example, how people behave or, alternatively, about the best way to interpret a set of judgments—the test of this assumption is in whether the hypotheses built on it are supported or refuted by other facts. If an assumption does not lead to accurate predictions, it can easily be discarded. In contrast, conceptual analysis of law that tries to assess the nature of a legal norm or field, for example establishing whether investment treaty arbitration is a part of public international law or not, is not assuming anything about facts. Because the only substance that is played with is concepts, no facts can be brought to refute the argument, only competing narratives. The purpose of this paper is to explain why the process of making assumptions is necessary for legal scholarship and why it is impossible to understand the law without assumptions and it could be dangerous to try to do so.

Bove, Ruffa, & Ruggeri: Composing Peace: Mission Composition in UN Peacekeeping

Vincenzo Bove (Univ. of Warwick), Chiara Ruffa (Uppsala Univ.), & Andrea Ruggeri (Univ. of Oxford) have published Composing Peace: Mission Composition in UN Peacekeeping (Oxford Univ. Press 2020). Here's the abstract:
Composing Peace: Mission Composition in UN Peacekeeping is about mission composition in peacekeeping operations and asks how diversity of mission composition influences the ability of a peace mission to keep the peace. This book focuses on four types of mission composition—diversity among peacekeepers, within the mission leadership, between mission leaders and peacekeepers, and between peacekeepers and locals. It is the first book to explore mission composition and its consequences, unpacking a concept hitherto unexplored and empirically combining quantitative and qualitative methods. It makes an important contribution to the fields of peace research, security studies, and international relations at large.

Shany: Can Strasbourg be replicated at a global level? A View from Geneva

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted Can Strasbourg be replicated at a global level? A View from Geneva (in The European Court of Human Rights - Current Challenges in Historical and Comparative Perspective, Helmut Philipp Aust & Esra Demir-Gürsel eds., forthcoming). Here's the abstract:

How can one explain the fact that a relatively weak human rights monitoring body, the Human Rights Committee (HRCttee) is adopting, at times, bolder legal interpretations of international human rights law than the European Court of Human Rights (ECtHR) – the consummate international human rights court? And how can the Committee’s traditional aversion to the margin of appreciation doctrine be reconciled with the fact that it oversees a far more diverse group of states than the ECtHR? And finally, how does one explain the decision by a country to revise its laws following the issuance of the views of the HRCttee, despite the acceptance of the same laws by the ECtHR?

This Chapter seeks to provide some answers to these questions through allusion to the different historical and geopolitical context for the establishment and operation of the ECtHR and the HRCttee. In a nutshell, it argues that the ECtHR forms part of a European agenda of regional integration and democratization, which has no direct parallel at the global level, and that the said agenda influences the legal tools the Court applies and its self-role perception. At the same time, the HRCttee, like other UN treaty bodies, derive their legitimacy from other sources – especially from the notion of universality of international human rights – a notion with powerful symbolic value, which exerts on some states considerable compliance pull.

Hamilton: Governing the Global Public Square

Rebecca J. Hamilton (American Univ. - Washington College of Law) has posted Governing the Global Public Square (Harvard International Law Journal, forthcoming). Here's the abstract:

Social media platforms are the public square of our era – a reality that has been entrenched by the widespread closure of physical public spaces in response to the Covid-19 pandemic. And this online space is global in nature, with over 2.5 billion users worldwide. Its governance does not fall solely to governments. With the rise of social media, important decisions about what content does - and does not - stay online are made by private technology companies.

Reflecting this reality, cutting-edge scholarship has converged on a triadic approach to understanding how the global public square operates - with states, users, and technology companies marking out three points on a “free speech triangle” that determines what content appears online. While offering valuable insights into the nature of online speech regulation, this scholarship—which has influenced public discussion—has been limited by drawing primarily on a recurring set of case studies arising from the U.S. and the European Union. As a result, the free speech triangle has locked in assumptions that make sense for the U.S. and the EU, but that regrettably lack broad applicability.

This Essay focuses our attention on the global public square that actually exists, rather than the narrow U.S. and European-centric description that has commanded public attention. Drawing on interviews with civil society, public sources, and technology company transparency data, it introduces a new set of case studies from the Global South, which elucidate important dynamics that are sidelined in the current content moderation discussion.

Drawing on this broader set of materials, I supplement the free speech triangle’s analysis of who is responsible for online content, with the question of what these actors do. In this way, activity within the global public square can be grouped into four categories: content production, content amplification, rule creation, and enforcement. Analyzing the governance of the global public square through this functional approach preserves important insights from the existing literature while also creating space to incorporate the plurality of regulatory arrangements around the world. I close with prescriptive insights that this functional approach offers to policymakers in a period of unprecedented frustration with how the global public square is governed.

Bodansky: The Role and Limits of the International Court of Justice in International Environmental Law

Daniel Bodansky (Arizona State Univ. - Law) has posted The Role and Limits of the International Court of Justice in International Environmental Law (in The Cambridge Companion to the International Court of Justice, Carlos Esposito & Kate Partlett eds., forthcoming). Here's the abstract:
The contribution of the International Court of Justice to international environmental law has been comparatively modest. Since it first emerged in the early 20th century, international environmental law has developed primarily through negotiations among States rather than judicial decisions. Although the increasing judicialization of international law in recent decades has included an uptick in environmental litigation, most of this litigation has taken place in specialized tribunals such as the regional human rights courts, the International Tribunal for the Law of the Sea, and the World Trade Organization’s Dispute Settlement Mechanism, not the International Court of Justice. Today, even on the most generous accounting, the ‘environmental’ decisions of the Court still number in the single digits and, for the most part, have taken a rather conservative approach, lending the Court’s authority to well-established principles rather than breaking new ground. This chapter reviews the substantive contributions of the ICJ to international environmental law, and assesses its role and limits as an actor in the international environmental process.

Berlin: Does Criminalizing Torture Deter Police Torture?

Mark S. Berlin (Marquette Univ. - Political Science) has posted Does Criminalizing Torture Deter Police Torture? Here's the abstract:
Studies that cast doubt on the effectiveness of legal norms for improving respect for human rights have mostly focused on treaty ratifications or constitutional provisions. In contrast, I focus on national criminal law. I argue that criminalization of torture is more likely to deter police torture than these other forms of legal prohibition, because criminalization more credibly increases the threat of material and social costs of torture, while also helping to catalyze mobilization that amplifies these deterrent effects. Using an original, global dataset on national criminal laws against torture, I find that states that criminalize torture and define it in line with the standards of the UN Convention against Torture experience reductions in police torture. These findings highlight a largely unexplored angle on the relationship between law and human rights protection and demonstrate the importance of legal domestication for the effectiveness of international human rights law.

New Issue: Transnational Legal Theory

The latest issue of Transnational Legal Theory (Vol. 11, nos. 1-2, 2020) is out. Contents include:
  • Special Issue: Transnational Environmental Law in the Anthropocene
    • Emily Webster & Laura Mai, Transnational environmental law in the Anthropocene
    • J. E. Viñuales, Two layers of self-regulation
    • Peter D Burdon, Ecological law in the Anthropocene
    • Klaus Bosselmann, Environmental trusteeship and state sovereignty: can they be reconciled?
    • Afshin Akhtar-Khavari, Restoration and cooperation for flourishing socio-ecological landscapes
    • Louis J. Kotzé, Earth system law for the Anthropocene: rethinking environmental law alongside the Earth system metaphor
    • Laura Mai, (Transnational) law for the Anthropocene: revisiting Jessup’s move from ‘what?’ to ‘how?’
    • Phillip Paiement, Urgent agenda: how climate litigation builds transnational narratives
    • Melanie Murcott & Emily Webster, Litigation and regulatory governance in the age of the Anthropocene: the case of fracking in the Karoo
    • Emily Barritt, The myth of mermaids and stewardship of the seas
    • Pierre Cloutier de Repentigny, To the Anthropocene and beyond: the responsibility of law in decimating and protecting marine life
    • Tina Beigi & Michael Hennessy Picard, Regimes of waste (im)perceptibility in the life cycle of metal

New Issue: International Studies Quarterly

The latest issue of the International Studies Quarterly (Vol. 64, no. 2, June 2020) is out. Contents include:
  • Cameron G Thies, Multiple Identities and Scholarship in International Studies: 2019 ISA Presidential Address
  • Jessica Kirk, From Threat to Risk? Exceptionalism and Logics of Health Security
  • Sara E Davies & Sophie Harman, Securing Reproductive Health: A Matter of International Peace and Security
  • Vera Mironova, Karam Alhamad, & Sam Whitt, Rebel Group Attrition and Reversion to Violence: Micro-Level Evidence from Syria
  • Christian Oswald, Melanie Sauter, Sigrid Weber, & Rob Williams, Under the Roof of Rebels: Civilian Targeting After Territorial Takeover in Sierra Leone
  • Andrea Michelle Morris, Who Wants to Be a Suicide Bomber? Evidence from Islamic State Recruits
  • Christian Ambrosius & David A Leblang, Exporting Murder: US Deportations and the Spread of Violence
  • Deniz Cil & Alyssa K Prorok, Selling Out or Standing Firm? Explaining the Design of Civil War Peace Agreements
  • Zhiyuan Wang, Thinking outside the Box: Globalization, Labor Rights, and the Making of Preferential Trade Agreements
  • Sara Norrevik, Trust and Support for Comprehensive Trade Agreements in the European Parliament
  • Roel Dom & Lionel Roger, Debt or Alive: Burundi's Fiscal Response to Economic Sanctions
  • David H Bearce & Samantha L Moya, Why is the Mass Public Not More Supportive of Free Trade? Evidence from the United States
  • Therese Anders, Christopher J Fariss, & Jonathan N Markowitz, Bread Before Guns or Butter: Introducing Surplus Domestic Product (SDP)
  • Patrick Shea & Paul Poast, Leaders and Default
  • Martin Binder & Jonathan Golub, Civil Conflict and Agenda-Setting Speed in the United Nations Security Council
  • Benjamin Faude & Felix Groβe-Kreul, Let's Justify! How Regime Complexes Enhance the Normative Legitimacy of Global Governance
  • Hayley Walker & Katja Biedenkopf, Why Do Only Some Chairs Act as Successful Mediators? Trust in Chairs of Global Climate Negotiations
  • Marlies Glasius, Jelmer Schalk, & Meta De Lange, Illiberal Norm Diffusion: How Do Governments Learn to Restrict Nongovernmental Organizations?
  • Glenn Palmer, Vito D'Orazio, Michael R Kenwick, & Roseanne W McManus, Updating the Militarized Interstate Dispute Data: A Response to Gibler, Miller, and Little
  • Douglas M Gibler, Steven V Miller, & Erin K Little, The Importance of Correct Measurement: A Response to Palmer, et al
  • Glenn Palmer, Vito D'Orazio, Michael R Kenwick, & Roseanne W McManus, The Militarized Interstate Dispute Dataset: Putting Things in Perspective
  • Neil Narang & Brad L LeVeck, Stylized Facts and Comparative Statics in (Social) Science Inquiry

Friday, June 19, 2020

New Issue: Global Society

The latest issue of Global Society (Vol. 34, no. 3, 2020) is out. Contents include:
  • International Institutions in a Stratified International Society: Reproducing and Transforming Inequalities
    • Caroline Fehl & Katja Freistein, Organising Global Stratification: How International Organisations (Re)Produce Inequalities in International Society
    • Thomas Müller, Institutional Reforms and the Politics of Inequality Reproduction: The Case of the League of Nations’ Council Crisis in 1926
    • Katharina P. Coleman, United Nations Peacekeeping Decisions: Three Hierarchies, Upward Mobility and Institutionalised Inequality among Member States
    • Lora Anne Viola, “Systemically Significant States”: Tracing the G20’s Membership Category as a New Logic of Stratification in the International System
    • Miriam Prys-Hansen, Differentiation as Affirmative Action: Transforming or Reinforcing Structural Inequality at the UNFCCC?
    • Dirk Peters, Justifying Inequality as Equality: Germany and the Reform of Voting Weights in the Council of the European Union
    • Clara Weinhardt, Emerging Powers in the World Trading System: Contestation of the Developing Country Status and the Reproduction of Inequalities
    • Paul Cammack, Reproduction Versus Transformation: The Case of the Asian Infrastructure Investment Bank

Stahn, Agius, Brammertz, & Rohan: Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach

Carsten Stahn (Leiden Univ. - Law), Carmel Agius (President, International Residual Mechanism for Criminal Tribunals), Serge Brammertz (Chief Prosecutor, International Residual Mechanism for Criminal Tribunals), & Colleen Rohan (Bedford Row) have published Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach (Oxford Univ. Press 2020). The table of contents is here. Here's the abstract:

The International Criminal Tribunal for the former Yugoslavia (ICTY) is one the pioneering experiments in international criminal justice. It has left a rich legal, institutional, and non-judicial legacy. This edited collection provides a broad perspective on the contribution of the tribunal to law, memory, and justice. It explores some of the accomplishments, challenges, and critiques of the ICTY, including its less visible legacies.

The book analyses different sites of legacy: the expressive function of the tribunal, its contribution to the framing of facts, events, and narratives of the conflict in the former Yugoslavia, and investigative and experiential legacies. It also explores lesser known aspects of legal practice (such as defence investigative ethics, judgment drafting, contempt cases against journalists, interpretation and translation), outreach, approaches to punishment and sentencing, the tribunals' impact on domestic legal systems, and ongoing debates over impact and societal reception. The volume combines voices from inside the tribunal with external perspectives to elaborate the rich history of the ICTY, which continues to be written to this day.

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added lectures to the UN Audiovisual Library of International Law Podcast Channel. Due to current circumstances, the AVL team can post these only to the podcast channel and not the website. The lectures were given by Andrea K. Bjorklund on “Will an International Investment Court Restore Legitimacy to Investor State Dispute Settlement?” and Malgosia Fitzmaurice on “The Legal Nature of Article 18 of the Vienna Convention on the Law of Treaties.”

Carstens & Varner: Intersections in International Cultural Heritage Law

Anne-Marie Carstens & Elizabeth Varner have published Intersections in International Cultural Heritage Law (Oxford Univ. Press 2020). The table of contents is here. Here's the abstract:

The recent spate of threats to cultural heritage, including in Iraq, Mali, Nepal, Syria, and Yemen, has led to increased focus on the sources of international cultural heritage law. This edited volume shows that international cultural heritage law is not a discrete and contained body of law, but one whose component parts are drawn from diverse fields of public international law. It shows how cultural heritage law has been shaped by its interaction with other areas of international law, and how it has contributed to international law in turn.

In this volume, scholars and practitioners explore some of the primary points of intersection between international cultural heritage law and public international law. Chapters explore instersections with the law of armed conflict, international and transnational criminal law, international human rights, the international movement, regulation, and restitution of cultural artefacts, and the UN system. The result is a cohesive collection that not only explores many facets of the intersections of cultural heritage law and public international law, but also examines how the regimes operate together and how the relationship between them largely facilitates, but also sometimes hinders, the development of international law governing the protection of cultural heritage.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 70, 2020) is out. Contents include:
  • COVID-19 and multilateral governance at the United Nations between risk-prevention, procedural adaptation and feeble response
    • Introduced by Enrico Milano and Giulio Bartolini
    • Giuseppe Nesi, The United Nations principal political organs and the universal pandemic: How to meet, negotiate and deliberate under ‘new, extraordinary and exceptional circumstances’?
    • Raymundo Treves, The health of international cooperation and UNGA Resolution 74/274
    • Marco Toscano-Rivalta, Disaster risk reduction in light of the COVID-19 crisis: Policy and legal considerations

Wednesday, June 17, 2020

Borrows & Schwartz: Indigenous Peoples and International Trade: Building Equitable and Inclusive International Trade and Investment Agreements

John Borrows (Univ. of Victoria, British Columbia - Law) & Risa Schwartz have published Indigenous Peoples and International Trade: Building Equitable and Inclusive International Trade and Investment Agreements (Cambridge Univ. Press 2020). The table of contents is here. Here's the abstract:
The United Nations Declaration on the Rights of Indigenous Peoples is seen primarily as an international human rights instrument. However, the Declaration also encompasses cultural, social and economic rights. Taken in the context of international trade and investment, the UN Declaration is a valuable tool to support economic self-determination of Indigenous peoples. This volume explores the emergence of Indigenous peoples' participation in international trade and investment, as well as how it is shaping legal instruments in environment and trade, intellectual property and traditional knowledge. One theme that is explored is agency. From amicus interventions at the World Trade Organization to developing a future precedent for a 'Trade and Indigenous Peoples Chapter', Indigenous peoples are asserting their right to patriciate in decision-making. The authors, both Indigenous and non-Indigenous experts on trade and investment legal, provide needed ideas and recommendations for governments, academia and policy thinkers to achieve economic reconciliation.

Lahmann: Information Operations and the Question of Illegitimate Interference under International Law

Henning Lahmann (ESMT Berlin - Digital Society Institute) has published Information Operations and the Question of Illegitimate Interference under International Law (Israel Law Review, Vol. 53, no. 2, pp. 189-224, July 2020). Here's the abstract:
The article examines the legal qualification of state-led information operations that aim to undermine democratic decision-making processes in other states. After a survey of the legal attitudes of states towards such operations during the Cold War, the impact of the digital transformation on the frequency and quality of information operations is explained. The article assesses scholarly responses to the outlined paradigm shift regarding the prohibition of intervention, respect for sovereignty, and the principle of self-determination. The study then inquires whether it is possible to detect a change in how states qualify adversarial information operations by tracking recent state practice and official statements of opinio juris. The survey concludes that there is insufficient uniformity to allow for an inference that the content of the analysed rules of customary international law has already shifted towards more restrictive treatment of foreign interference. As a possible way forward, the article ends with a proposal to focus on deceptive and manipulative conduct of information operations as the most viable path to outlaw such state behaviour in the future. Instead of attempting to regulate the content of information, this approach is better suited to safeguard freedom of speech and other potentially affected civil rights.

Ma: Researching the Trading Systems in the Asian-Pacific Region - APEC, ASEAN, TPP, CPTPP, RCEP and their Members

Evelyn Ma (Yale Univ. - Lillian Goldman Law Library) has posted Researching the Trading Systems in the Asian-Pacific Region - APEC, ASEAN, TPP, CPTPP, RCEP and their Members (GlobaLex, May/June 2020).

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 46, no. 3, July 2020) is out. Contents include:
  • Forum: Thinking With Gender: Feminist Methodologies Of International Relations
    • Helen M. Kinsella & Laura J. Shepherd, The ‘brutal fecundity of violence’: Feminist methodologies of International Relations
    • Elisabeth Prügl, Feminist methodology between theory and praxis
    • Jane Parpart, Rethinking silence, gender, and power in insecure sites: Implications for feminist security studies in a postcolonial world
    • Anne Sisson Runyan, Conceptus interruptus: Forestalling sureties about violence and feminism
    • Shine Choi, Redressing international problems: North Korean nuclear politics
    • Cristina Masters & Marysia Zalewski, Reflections on the forum in the Review of International Studies: A conversation between Cristina Masters and Marysia Zalewski
  • Research Articles
    • David Duriesmith & Sara Meger, Returning to the root: Radical feminist thought and feminist theories of International Relations
    • Sebastian Schindler, The task of critique in times of post-truth politics
    • Laura Pantzerhielm, Anna Holzscheiter, & Thurid Bahr, Power in relations of international organisations: The productive effects of ‘good’ governance norms in global health

Petrov: Expert Laws of War: Restating and Making Law in Expert Processes

Anton Orlinov Petrov has published Expert Laws of War: Restating and Making Law in Expert Processes (Edward Elgar Publishing 2020). Here's the abstract:

Over recent decades, international humanitarian law has been shaped by the omnipresence of so-called expert manuals. Astute and engaging, this discerning book provides a comprehensive account of these black letter rules and commentaries produced by private expert groups and demonstrates why the general acceptance of these expert manuals is largely unjustified.

This theoretically grounded book bridges the divide between theory and practice by linking legal theory to the doctrinal and practical concerns of the laws of war. The author innovatively links interdisciplinary insights to the needs of military lawyers in practice, showing the pitfalls of relying on private manuals as arguable restatements and interpretations of the law 'as it is'. At the same time, he explains why expert processes are so successful and why this should be of concern to all of us.

New Issue: London Review of International Law

The latest issue of the London Review of International Law (Vol. 7, no. 3, November 2019) is out. Contents include:
  • Articles
    • Susan Marks, Three liberty trees
    • Carl Landauer, The Polish Rider: CH Alexandrowicz and the reorientation of international law, Part I: Madras studies
    • Kate Grady, For whom the bell tolls: London’s Iraq and Afghanistan Memorial 1990-2015
    • Stephen Young, Re-historicising dissolved identities: Deskaheh, the League of Nations, and international legal discourse on Indigenous peoples
  • Books Etc.
    • Book Symposium: Ayça Çubukçu, For the Love of Humanity: The World Tribunal on Iraq 
    • Richard Falk, Acting beyond the state: towards a cosmopolitan awakening?
    • Aslı Ü Bâli, A politics of accountability grounded in solidarity
    • Vasuki Nesiah, Situating critique at the very heart of humanism

Fassbender: Key Documents on the Reform of the UN Security Council 1991-2019

Bardo Fassbender (Univ. of St. Gallen - Law) has published Key Documents on the Reform of the UN Security Council 1991-2019 (Brill | Nijhoff 2020). Here's the abstract:
Key Documents on the Reform of the UN Security Council 1991-2019 brings together primary source documents reflecting the political, legal and academic discussions of the United Nations Security Council reform, in particular the Council’s membership and decision-making, as they have taken place since 1991. Earlier discussions from the late 1940s through 1991 are covered insofar as they offer a useful contribution to the current debate. This extensive collection, curated by a leading authority, is intended to be representative of the debate as a whole without bias, faithfully reflecting the positions of various stakeholders, global participants and civil society. This important work will be an indispensable resource for researchers and students, bringing together hundreds of documents produced during more than three decades by governments, UN bodies, universities, think tanks and individual authors in a single, comprehensive volume.

New Issue: International Interactions

The latest issue of International Interactions (Vol. 46, no. 3, 2020) is out. Contents include:
  • Articles
    • Daniel Milton & Bryan Price, Too central to fail? Terror networks and leadership decapitation
    • Nils W. Metternich & Julian Wucherpfennig, Strategic rebels: a spatial econometric approach to rebel fighting durations in civil wars
    • Ignacio Mamone, Time for a haircut: political regimes and sovereign debt restructurings
    • Alexandra Haines , Michele Leiby , Matthew Krain & Amanda Murdie, Two sides of the same coin: can campaigns generate support for both human rights and retributive violence?
    • James A. Piazza, Politician hate speech and domestic terrorism
    • Louis-Alexandre Berg & Naomi Levy, When aid builds states: party dominance and the effects of foreign aid on tax collection after civil war
  • Research Note
    • Martin Mosler & Niklas Potrafke, International political alignment during the Trump presidency: voting at the UN general assembly

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 89, no. 2, 2020) is out. Contents include:
  • Rüdiger Wolfrum, Hilding Eek Memorial Lecture, Stockholm, 2 October 2019: Who Is Responsible for the Protection of the Ocean Floor?
  • Gaetano Pentassuglia, Assessing the Consistency of Kurdish Democratic Autonomy with International Human Rights Law
  • Viljam Engström, The IMF and Protection of Vulnerable Groups
  • Dire Tladi, The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine

Tuesday, June 16, 2020

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 20, no. 2, June 2020) is out. Contents include:
  • Special Issue: Access and Allocation in Earth System Governance
    • Joyeeta Gupta & Louis Lebel, Access and Allocation in Earth System Governance
    • Agni Kalfagianni & Simon Meisch, Epistemological and ethical understandings of access and allocation in Earth System Governance: a 10-year review of the literature
    • Defne Gonenc, Dario Piselli, & Yixian Sun, The global economic system and access and allocation in earth system governance
    • Michelle Scobie, International aid, trade and investment and access and allocation
    • Benedetta Cotta, What goes around, comes around? Access and allocation problems in Global North–South waste trade
    • Kevin Grecksch & Carola Klöck, Access and allocation in climate change adaptation
    • Antonina Ivanova, Asim Zia, Paiman Ahmad, & Mairon Bastos-Lima, Climate mitigation policies and actions: access and allocation issues
    • Joyeeta Gupta, Arthur Rempel, & Hebe Verrest, Access and allocation: the role of large shareholders and investors in leaving fossil fuels underground
    • Dona Azizi, Access and allocation in food governance, a decadal view 2008–2018
    • Margot Hurlbert, Access and allocation: rights to water, sanitation and hygiene
    • Brendan Coolsaet, Neil Dawson, Florian Rabitz & Simone Lovera, Access and allocation in global biodiversity governance: a review
    • Pritee Sharma & Salla Nithyanth Kumar, The global governance of water, energy, and food nexus: allocation and access for competing demands
    • Joyeeta Gupta & Louis Lebel, Access and allocation in earth system governance: lessons learnt in the context of the Sustainable Development Goals

Toebes: States’ Resilience to Future Health Emergencies – Connecting the Dots between Core Obligations and Core Capacities

Brigit Toebes (Univ. of Groningen - Law) has posted an ESIL Reflection on States’ Resilience to Future Health Emergencies – Connecting the Dots between Core Obligations and Core Capacities.

Hakimi: Making Sense of Customary International Law

Monica Hakimi (Univ. of Michigan - Law) has posted Making Sense of Customary International Law (Michigan Law Review, forthcoming). Here's the abstract:

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law—routinely invoked and applied in a broad range of settings—and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the conceptual baggage that is brought to bear on it. Most contemporary accounts of CIL reflect what can be called a “rulebook conception.” They presuppose that, in order for a given proposition to be CIL, it must apply more or less in the same way in all cases of a given type, rather than fluctuate without established criteria from one situation to the next. This rulebook conception is wrong. It does not accurately describe the range of normative material that global actors, in the ordinary course, use and treat as CIL. And because it is wrong, it systematically sows confusion and leads analysists to devalue CIL as a kind of international law. We should stop imagining that CIL operates like a rulebook and should recognize that it is an inherently contingent and variable kind of law.

Monday, June 15, 2020

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 37, no. 3, 2020) is out. Contents include:
  • Christoph Liebscher, Teamwork Approach in Arbitration: A New Perspective
  • Brendan Casey & Hamish Lal, Ten Years Later: Why the ‘Renaissance of Expedited Arbitration’ Should Be the ‘Emergency Arbitration’ of 2020
  • Giorgio Risso, Portfolio Investment in ICSID Arbitration: Just a Matter of Consent?
  • Manasi Kumar, The ‘Composite Transaction’ and Extension of Arbitration Agreements in India
  • Ibrahim Shehata, The Ministerial Approval Requirement for Arbitration Agreements in Egypt: Revisiting the Public Policy Debate

Poznansky: In the Shadow of International Law: Secrecy and Regime Change in the Postwar World

Michael Poznansky (Univ. of Pittsburgh - Graduate School of Public and International Affairs) has published In the Shadow of International Law: Secrecy and Regime Change in the Postwar World (Oxford Univ. Press 2020). Here's the abstract:

Secrecy is a staple of world politics and a pervasive feature of political life. Leaders keep secrets as they conduct sensitive diplomatic missions, convince reluctant publics to throw their support behind costly wars, and collect sensitive intelligence about sworn enemies.

In the Shadow of International Law explores one of the most controversial forms of secret statecraft: the use of covert action to change or overthrow foreign regimes. Drawing from a broad range of cases of US-backed regime change during the Cold War, Michael Poznansky develops a legal theory of covert action to explain why leaders sometimes turn to covert action when conducting regime change, rather than using force to accomplish the same objective. He highlights the surprising role international law plays in these decisions and finds that once the nonintervention principle-which proscribes unwanted violations of another state's sovereignty-was codified in international law in the mid-twentieth century, states became more reluctant to pursue overt regime change without proper cause. Further, absent a legal exemption to nonintervention such as a credible self-defense claim or authorization from an international body, states were more likely to pursue regime change covertly and concealing brazen violations of international law.

Shining a light on the secret underpinnings of the liberal international order, the conduct of foreign-imposed regime change, and the impact of international law on state behavior, Poznansky speaks to the potential consequences of America abandoning its role as the steward of the postwar order, as well as the promise and peril of promoting new rules and norms in cyberspace.

Sunday, June 14, 2020

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 53, no. 2, March 2020) is out. Contents include:
  • Asli U. Bali, Artificial States and the Remapping of the Middle East
  • Roxana Banu, Conflicting Justice in Conflict of Laws
  • Moran Ofir & Ido Sadeh, ICO vs. IPO: Empirical Findings, Information Asymmetry, and the Appropriate Regulatory Framework
  • S. I. Strong, Judging Judicial Appointment Procedures

New Issue: Global Governance: A Review of Multilateralism and International Institutions

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 26, no. 2, April-June 2020) is out. Contents include:
  • Special Issue: The United Nations at 75
    • Alynna Lyon, Kendall Stiles, Alistair Edgar, Kurt Mills & Peter Romaniuk, The 75th Anniversary of the United Nations: Looking Back and Looking Forward
    • Àlvaro de Soto, In Memoriam: Javier Pérez de Cuéllar
    • Amitav Acharya & Dan Plesch, The United Nations: Managing and Reshaping a Changing World Order
    • David M. Malone & Adam Day, The UN at 75: How Today’s Challenges Will Shape the Next 25 Years
    • Mohammed Ayoob, The UN and North-South Relations in the Security Arena
    • Antonio Donini, Crashing Waves and Rising Tides: The Case for UN 2.0
    • Courtney B. Smith, Every Silver Lining Has a Cloud: Working Methods in the UN Security Council
    • Carrie Booth Walling, The United Nations Security Council and Human Rights
    • Maria Ivanova, Coloring the UN Environmental: The Catalytic Role of the UN Environment Programme
    • Bob Reinalda, Institutional Development of the United Nations Secretariat
    • Katie Verlin Laatikainen, Regional Practices in UN Multilateralism

Keitner: Foreign Election Interference and International Law

Chimène Keitner (Univ. of California - Hastings College of the Law) has posted Foreign Election Interference and International Law (in Election Interference: When Foreign Powers Target Democratic Institutions, Duncan Hollis & Jens David Ohlin eds., forthcoming). Here's the abstract:
This draft chapter explores the possibilities, and limitations, of international law in regulating states’ attempts to influence each other’s elections. It begins by tracing attempts to further codify the non-intervention principle in the 1960’s and 1970’s. It then examines the tension produced by states’ conflicting desires to preserve the greatest possible freedom of action for themselves and to constrain the behavior of others. To date, this dynamic has impeded the ability to formulate explicit treaty-based solutions to the problem of foreign election interference. Identifying customary international law in this area requires inferring specific conduct-regulating rules from general principles, which can yield contested results. States are unlikely to agree to more granular, binding international rules as long as regimes currently in power benefit from constructive ambiguity. Although agreement on more concrete rules and enforcement mechanisms might remain elusive, like-minded states should continue to emphasize the importance of supporting peoples’ abilities to determine their own political destinies. This requires, at a minimum, promoting an anti-deception norm as a matter of both domestic and international law.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 71, 2020) is out. Contents include:
  • Renewable energy investment cases against Italy and Spain: Same issues, different scenarios?
    • Introduced by Gian Maria Farnelli and Marco Pertile
    • Sondra Faccio, The assessment of the FET standard between legitimate expectations and economic impact in the Italian solar energy investment case law
    • Amélie Noilhac, Renewable energy investment cases against Spain and the quest for regulatory consistency