Monday, March 1, 2021
Sunday, February 28, 2021
Sutton: The Humanitarian Civilian: How the Idea of Distinction Circulates Within and Beyond International Humanitarian Law
In international humanitarian law (IHL), the principle of distinction delineates the difference between the civilian and the combatant, and it safeguards the former from being intentionally targeted in armed conflicts. This monograph explores the way in which the idea of distinction circulates within, and beyond, IHL. Taking a bottom-up approach, the multi-sited study follows distinction across three realms: the kinetic realm, where distinction is in motion in South Sudan; the pedagogical realm, where distinction is taught in civil-military training spaces in Europe; and the intellectual realm, where distinction is formulated and adjudicated in Geneva and the Hague.
Directing attention to international humanitarian actors, the book shows that these actors seize upon signifiers of 'civilianness' in everyday practice. To safeguard their civilian status, and to deflect any qualities of 'combatantness' that might affix to them, humanitarian actors strive to distinguish themselves from other international actors in their midst. The latter include peacekeepers working for the UN Mission in South Sudan (UNMISS), and soldiers who deploy with NATO missions. Crucially, some of the distinctions enacted cut along civilian-civilian lines, suggesting that humanitarian actors are longing for something more than civilian status - the 'civilian plus'. This special status presents a paradox: the appeal to the 'civilian plus' undermines general civilian protection, yet as the civilian ideal becomes increasingly beleaguered, a special civilian status appears ever more desirable. However disruptive these practices may be to the principle of distinction in IHL, the monograph emphasizes that even at the most normative level there is no bright line distinction to be found.
- The Judicial Function of the ICC and its Territorial Basis
- Introduced by Beatrice I. Bonafé and Alessandro Bufalini
- Michail Vagias, Understanding the judicial function of the ICC as regards territory: A story of prosecution caution
- Alice Riccardi, The Palestine Decision and Territorial Jurisdiction of the ICC: Is the Court Finding its Inner Voice?
- Monique Cormier, Testing the boundaries of the ICC's territorial jurisdiction in the Afghanistan situation
Saturday, February 27, 2021
De Brabandere, Gazzini, & Kent: Public Participation and Foreign Investment Law: From the Creation of Rights and Obligations to the Settlement of Disputes
Public Participation and Foreign Investment Law offers a systematic treatment of public participation from the standpoint of the three main sources of foreign investment law, namely treaties, legislation and contracts. It identifies and critically discusses the different forms of public participation that can be found or envisaged in foreign investment law. From this perspective, the book looks at public participation as vehicle to strike a balance between private and public rights and interests.
This book contributes to the understanding of the current forms, level and impact of public participation. It provides indications on how such participation could be enhanced with a view of improving the balance and legitimacy of the legal instrument related to the promotion and protection of foreign investments.
- Ian Bowers & Henrik Stålhane Hiim, Conventional Counterforce Dilemmas: South Korea's Deterrence Strategy and Stability on the Korean Peninsula
- Megan Turnbull, Elite Competition, Social Movements, and Election Violence in Nigeria
- Andrew Chubb, PRC Assertiveness in the South China Sea: Measuring Continuity and Change, 1970–2015
- Melinda Haas & Keren Yarhi-Milo, To Disclose or Deceive? Sharing Secret Information between Aligned States
- Marc Trachtenberg, The United States and the NATO Non-extension Assurances of 1990: New Light on an Old Problem?
- David De Micheli, Racial Reclassification and Political Identity Formation
- Sarah E. Parkinson, Practical Ideology in Militant Organizations
- Anoop Sarbahi, The Structure of Religion, Ethnicity, and Insurgent Mobilization: Evidence from India
- Ryan Brutger, The Power of Compromise: Proposal Power, Partisanship, and Public Support in International Bargaining
- Robert Jervis, Keren Yarhi-Milo, & Don Casler, Redefining the Debate Over Reputation and Credibility in International Security: Promises and Limits of New Scholarship
- Sung Eun Kim & Yotam Margalit, Tariffs As Electoral Weapons: The Political Geography of the US–China Trade War
- Jordan Branch, What's in a Name? Metaphors and Cybersecurity
- Anton Strezhnev, Judith G. Kelley, & Beth A. Simmons, Testing for Negative Spillovers: Is Promoting Human Rights Really Part of the “Problem”?
- Scott F Abramson & David B. Carter, Systemic Instability and the Emergence of Border Disputes
- Review Essay
- James W. Davis & Rose McDermott, The Past, Present, and Future of Behavioral IR
- Research Notes
- Micha Germann & Nicholas Sambanis, Political Exclusion, Lost Autonomy, and Escalating Conflict over Self-Determination
- Jonathan Stavnskær Doucette & Jørgen Møller, The Collapse of State Power, the Cluniac Reform Movement, and the Origins of Urban Self-Government in Medieval Europe
Understanding exactly how the International Court of Justice applies the remedies of international law is vital in order to determine its prioritisation of remedies and its rationales for resolving inter-state disputes. This analysis also shows whether the framework of remedies of international law, designed by the International Law Commission through the Articles on Responsibility of States for Internationally Wrongful Acts, is strictly observed by the International Court of Justice. This is among the few systemic studies in the field of remedies, contrasting the theoretical controversies with a complete survey of the large set of requests that have been submitted before the ICJ. International lawyers, agents of states and diplomats will be able to identify the relevant case-law for each remedy in order to frame more effective requests to the Court.
International standard-setting in the field of export control has been shaped by the presence of non-binding multilateral regimes. Central to international regulatory harmonisation is the Wassenaar Arrangement concerning export controls for conventional arms as well as for dual-use goods and technologies. Institutionalised regulatory coordination through multilateral regimes is essential, in part because the multilateral trade regime accommodates apologetic security exceptions that flexibly allow each member’s own export control practices. Multilateralism in the context of dual-use export control has been subject to various political and normative challenges, however. Various attempts to circumvent the Wassenaar Arrangement have been based not only on national security narratives. The multilateral regime has also been fundamentally challenged by human rights narratives. This paper sheds light on these dual challenges through the analysis of export controls over digital and so-called emerging technologies.
- Amogh Pareek & Gautami Govindrajan, In Sickness and In Health: Navigating Trade in a Post-Pandemic World
- Antony Taubman, Framing a Multilateral Trade and Innovation Agenda to Advance the Sustainable Development Goals: The Intellectual Property Dimension
- Rafael Leal-Arcas, Samuel Balzano, Jakkrit Deethae, Tanvir Singh, & Kristina Skybova, Of International Trade, Climate Change, Investment and a Prosperous Future
- Julia Ya Qin, WTO Reform: Multilateral Control over Unilateral Retaliation – Lessons from the US-China Trade War
- Indira Carr, Preventing Corruption in the Public Sector and the Principal-Agent-Client Model: Whither Integrity?
- Andrew Mitchell & Dean Merriman, Indonesia’s WTO Challenge to the European Union’s Renewable Energy Directive: Palm Oil & Indirect Land-Use Change
- Donatella Alessandrini, The Time that Binds the ‘Trade-Development’ Nexus in International Economic Law
- Delroy Beckford, National Treatment in the WTO: Abandoning Regulatory Purpose or Reinvigorating it?
Friday, February 26, 2021
Thursday, February 25, 2021
Call for Papers: Interpretation of Customary International Law: Methods, Interpretative Choices and the Role of Coherence
Call for Submissions: Rosalyn Higgins Prize of The Law & Practice of International Courts and Tribunals
Martín López: Ampliando el contenido del Derecho Internacional: el rescate de la esencia del derecho de gentes
El término derecho de gentes apenas se utiliza ya en la práctica actual, pero, como es conocido, fue el tradicional para denominar a lo que de manera contemporánea conocemos como derecho internacional. Sin embargo, languideció cuando este último quedó encumbrado y alcanzó ser dominante, lo que ocurrió durante el siglo XIX. En general, la opinión preponderante siempre ha venido considerando que este cambio terminológico fue puramente nominal, sin que tuviera ninguna implicación jurídica efectiva. La continuidad histórica siguió sin que hubiera ruptura alguna. No obstante, esta visión merece, cuanto menos, ser objeto de amplia revisión y, así, es de interés ahondar en los propósitos, ver los detalles y atisbar las repercusiones de dicho cambio, bien sean directas o indirectas. En suma, este será el hilo conductor que vamos a seguir a lo largo del presente trabajo. Fundamentalmente, ello, además, lo haremos con la finalidad principal de identificar cuáles son los ámbitos que pudieran ser rescatados para guiar o, mejor dicho, reorientar este ordenamiento jurídico en aras de que consiga servir mejor a la humanidad en su conjunto.
- Beyond evidence: the use of archives in transitional justice
- Julia Viebach, Dagmar Hovestädt & Ulrike Lühe, Beyond evidence: the use of archives in transitional justice
- Julia Viebach, Transitional archives: towards a conceptualisation of archives in transitional justice
- Ulrike Lühe & Romain Ledauphin, From the forerunners of document collection to the trial of Klaus Barbie and beyond: the transitional justice journey of the Izieu telegram
- Benjamin Thorne, Remembering atrocities: legal archives and the discursive conditions of witnessing
- Dietlinde Wouters, There was this goat: the archive for justice as a remedy for epistemic injustices in truth commissions
- Eliscia Kinder, Non-recurrence, reconciliation, and transitional justice: situating accountability in Northern Ireland’s oral history archive
- Marta Lucía Giraldo & Daniel Jerónimo Tobón, Personal archives and transitional justice in Colombia: the Fonds of Fabiola Lalinde and Mario Agudelo
Wednesday, February 24, 2021
- Thematic Section: ‘Disasters and …: Exploring New Areas of Research’
- Giovanna Adinolfi, Strengthening Resilience to Disasters through International Trade Law: the Role of WTO Agreements on Trade in Goods
- Giulio Bartolini, Global Animal Law and Disasters
- Upendra Baxi, Disasters, Catastrophes and Oblivion: a TWAIL Perspective
- Daniel A. Farber, The Intersection of International Disaster Law and Climate Change Law
- Harald Koch, Disasters and Private International Law: Reasserting Legal Governance beyond the Nation State
- Gabrielle Simm, Disasters and Gender: Sexing International Disaster Law
- Jonathan Todres, Children and Disasters: the Essential Role of Children’s Rights Law
- Simon Whitbourn, ‘I Must Go Down to the Seas Again’: the Evolution of International Maritime Disaster Law and Its Lessons for the Development of a General Disaster Law Framework
- Flavia Zorzi Giustiniani, Protecting World Cultural and Natural Heritage against Climate Change and Disasters: an Assessment of the Effectiveness of the World Heritage Convention System
- General Section
- Gian Luca Burci & Mark Eccleston-Turner, Preparing for the Next Pandemic: the International Health Regulations and World Health Organization during COVID-19
- Sandrine Maljean-Dubois, Was the Global Pact for the Environment a Good Idea?
- Natalie Baird, Disasters, Human Rights and Vulnerability: Reflections from the Experiences of Older Persons in Post-Quake Canterbury
- Miki Ishimori, Rights-based Approach to Nuclear Damage Compensation: Fukushima Nuclear Disaster Revisited
Tuesday, February 23, 2021
MacNeil: Legality Matters: Crimes Against Humanity and the Problems and Promise of the Prohibition on Other Inhumane Acts
This book examines the way international criminal courts and tribunals have interpreted the crimes against humanity proscription of other inhumane acts. This clause is consistently used in spite of the long list of more specific offences forbidden as crimes against humanity. The volume proposes that the current approach is based on a misunderstanding of the nature of the clause. Properly understood, the clause is an invitation to courts to create and apply retroactive criminal laws. This leads to a problem. A prohibition on the use of retroactive criminal laws, one which admits no exceptions, is deeply embedded in international law. The author argues that it is time to revisit the assumption that retroactive criminal laws can never be deployed in a fair legal system. Drawing lessons from an exploration on the way the prohibition on retroactive laws is applied in practice, she proposes a new framework for understanding the clause proscribing the commission of other inhumane acts.
Reform discourse about the United Nations Security Council gives every reason to believe that flaws in its legal and institutional design prevent the Council from adequately meeting its responsibility to maintain or restore international peace and security - in part by allowing the Council to act in an ad hoc and unprincipled manner. In Towards a more accountable United Nations Security Council, Carolyn Evans argues that enhanced accountability of the Council, and corresponding evolution of practice, are feasible, salutary changes towards the Council better answering its raison d'être. Discussion proceeds by probing the why, to whom, for what, and how, of Council accountability - four corners of concerns central to seeing any actor held accountable.
Call for Papers: Understanding solidarity under international and EU refugee law: between a rock and a hard place?
Monday, February 22, 2021
- Ernst-Ulrich Petersmann & Armin Steinbach, Neo-Liberalism, State-Capitalism and Ordo-Liberalism: ‘Institutional Economics’ and ‘Constitutional Choices’ in Multilevel Trade Regulation
- Evan Gabor, Keeping ‘Development’ in a Multilateral Framework on Investment Facilitation for Development
- Raúl F. Zúñiga Peralta, The Judicialisation of the Social License to Operate: Criteria for International Investment Law
- Berk Demirkol, Reconsideration of Proper Remedies in Investment Arbitration in Light of Recent Cases: Should the Remedy Follow the Primary Obligation?
- Carolyn B. Lamm & Matthew N. Drossos, Procedural Issues in International Investment Arbitration , written by Jeffery Commission and Rahim Moloo
Sunday, February 21, 2021
Shan, Zhang, & Su: China and International Dispute Resolution in the Context of the 'Belt and Road Initiative'
Written by eminent international judges, scholars and practitioners, this book offers a timely study of China's role in international dispute resolution in the context of the construction of the 'Belt and Road Initiative' (BRI). It provides in-depth analysis of the law and practice in the fields of international trade, commerce, investment and international law of the sea, as they relate to the BRI construction. It is the first comprehensive assessment of China's policy and practice in international dispute resolution, in general and in individual fields, in the context of the BRI construction. This book will be an indispensable reading for scholars and practitioners with interest in China and international dispute resolution. It also constitutes an invaluable reference for anyone interested in the changing international law and order, in which China is playing an increasingly significant role, particularly through the BRI construction.
Saturday, February 20, 2021
- Jess Gifkins, Beyond the Veto: Roles in UN Security Council Decision-Making
- Javier A. Vadell & Clarisa Giaccaglia, Brazil’s Role in Latin America’s Regionalism: Unilateral and Lonely International Engagement
- Michelle Morais de Sa e Silva, An Intrastate Approach to the Withdrawal from International Organizations: The Case of Brazil and the Inter-American Commission on Human Rights
- Thurid Bahr, Anna Holzscheiter, and Laura Pantzerhielm, Understanding Regime Complexes through a Practice Lens: Repertoires of Interorganizational Practices in Global Health
- Irene Langran, Challenges to Global Health Governance from the International Trade in Organ Transplants Time for a New Model?
- Rebecca Ray, Who Controls Multilateral Development Finance?
- Justin Alger, Jane Lister, & Peter Dauvergne, Corporate Governance and the Environmental Politics of Shipping
CALL FOR PAPERS
The German Yearbook of International Law is Germany’s oldest yearbook in the field of public international law. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. We aim to provide a platform for scholars of international law – both inside and outside Germany – to publish new research advancing public international legal discourse as well as analysis of current issues. The Yearbook features a ‘Forum’ section wherein prominent scholars are invited to enter into discussion on newly developing topics in international law, and a ‘Focus’ section for which a group of experts are invited to write articles examining in-depth various aspects of a topic chosen in advance by the editors.
The General Articles section of the GYIL is open to submissions from the entire academic community and is independently peer-reviewed by a board of renowned experts. All work submitted will be scrutinised based on its intellectual quality and advancement of academic discourse. The Editors welcome submissions for volume 64 (2021) of the GYIL, inviting interested parties to submit contributions for consideration for inclusion in the forthcoming edition.
Papers should be 10,000-12,500 words inclusive of footnotes and must conform with the house style guide 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 September 2021 to the Assistant Editor of the GYIL via e-mail: firstname.lastname@example.org.
- Forum: The Uighur Population in China and R2P
- Cecilia Jacob, Adrian Gallagher, & Charles T. Hunt, Pursuing Accountability and Protection for the Uighur and Muslim Minorities in China
- Michael Clarke, Settler Colonialism and the Path toward Cultural Genocide in Xinjiang
- Sophie Ryan, Atrocity Crimes in Xinjiang: Moving beyond Legal Labels
- Andrew Garwood-Gowers, China and the Uighurs: Options for Legal Accountability
- Rosemary Foot, R2P Sidelined: The International Response to China’s Repression of Muslim Minorities in Xinjiang
- Nadira Kourt, United Nations’ Response to Mass Atrocities in China
- Thomas Peak, Rescuing Humanitarian Intervention from Liberal Hegemony
- Alexandra Bohm & Garrett Wallace Brown, R2P and Prevention: The International Community and Its Role in the Determinants of Mass Atrocity
Friday, February 19, 2021
- Juan Pablo Bohoslavsky, The Explosion of Household Debt: Curse or Blessing for Human Rights?
- Katharine M.A.Fortin, To be or not to be?: Legal Identity in Crisis in Non-International Armed Conflicts
- Ricardo D. Martinez-Schuldt & Jacqueline Hagan, Abusing Immigrants: An Analysis of Immigrant Enforcement and Mexican Migrant Claims of Human Rights Violations by Agents of the United States
- Zvika Orr, Shifra Unger, & Adi Finkelstein, Localization of Human Rights of People with Disabilities: The Case of Jewish Ultra-Orthodox People in Israel
- Ilias Bantekas, The Linkages Between Business and Human Rights and Their Underlying Root Causes
- William Paul Simmons, Janyce Boynton, & Todd Landman, Facilitated Communication, Neurodiversity, and Human Rights
- Baekkwan Park, Amanda Murddie, & David R. Davis, Turning up the Volume: The Amplification of Shame
The question of why states comply with international law has long been at the forefront of international law and international relations scholarship. The compliance discussion has largely focused on negative incentives for states to comply. We argue that there is another, undertheorized mechanism: rewarding. We provide a typology as well as illustrations of how rewards can be applied. Furthermore, we explore the rationale, the potential, and the limitations of rewarding, drawing on rationalist as well as psychological approaches. Both give ample arguments to make more use of rewarding in international law.
Thursday, February 18, 2021
International Law and Peace Settlements provides a systematic and comprehensive assessment of the relationship between international law and peace settlement practice across core settlement issues, e.g. transitional justice, human rights, refugees, self-determination, power-sharing, and wealth-sharing. The contributions address key cross-cutting questions on the legal status of peace agreements, the potential for developing international law, and the role of key actors – such as non-state armed groups, third-state witnesses and guarantors, and the UN Security Council – in the legalisation and internationalisation of settlement commitments. In recent years, significant scholarly work has examined facets of the relationship between international law and peace settlements, through concepts such as jus post bellum and lex pacificatoria. International Law and Peace Settlements drives forward the debate on the legalisation and internationalisation of peace agreements with diverse contributions from leading academics and practitioners in international law and conflict resolution.
Wednesday, February 17, 2021
McCall-Smith, Birdsall, & Casanas Adam: Human Rights in Times of Transition: Liberal Democracies and Challenges of National Security
This timely book explores the extent to which national security has affected the intersection between human rights and the exercise of state power. It examines how liberal democracies, long viewed as the proponents and protectors of human rights, have transformed their use of human rights on the global stage, externalizing their own internal agendas.
Contextualizing human rights goals, structures and challenges in the immediate post-UDHR era, key chapters analyse the role that national security has played in driving competition between individual rights and rhetoric-laden, democracy-reinforcing approaches to collective rights of security. Internationally diverse authors offer evocative insights into the ways in which law is used to manipulate both intra and interstate relationships, and demonstrate the constant tensions raised by a human rights system that is fundamentally state-centric though defined by individuals’ needs and demands. Acknowledging the challenges in contemporary human rights practice, policy and discourse as features of transitional eras in human rights, this forward-thinking book identifies opportunities to correct past inadequacies and promote a stronger system for the future.
Tuesday, February 16, 2021
- Carlos Fernández de Casadevante Romani, Secession et succession en matière de traités de frontières et de régimes de frontière : hypothèse d’étude sur la frontière franco-espagnole
- Giuseppe Palmisano, La procédure de réclamations collectives en tant qu’instrument de protection internationale des droits sociaux
- Delphine Burriez, La nature équivoque des engagements internationaux des Etats en matière de réinstallation des réfugiés : l’exemple français
With the importance of non-State actors ever increasing, the traditional State-centric approach of international law is being put to the test. In particular, significant accountability lacunae have emerged in the field of human rights protection. To address these challenges, this book makes a case for extraterritorial due diligence obligations of States in international human rights law. It traces back how due diligence obligations evolved on the international plane and develops a general analytical framework making the broad and vague notion of due diligence more approachable. The framework is applied to different fields of international law which provides guidance on how due diligence obligations can be better conceptualized. Drawing inspiration from these developments, the book analyses how extraterritorial human rights due diligence obligations could operate in practice and foster global human rights protection.
- Yann Prisner-Levyne, Trophy Hunting, Canned Hunting, Tiger Farming, and the Questionable Relevance of the Conservation Narrative Grounding International Wildlife Law
- Robert W. B. Greeley, Conservation Territorialization and Sport Hunting in Lebanon’s Shouf Biosphere Reserve
- Claire Saladin, International Environmental Law and Sea Turtles: Anatomy of the Legal Framework and Trade of Sea Turtles in the Lesser Antilles
Burri & Trinidad: The International Court of Justice and Decolonisation: New Directions from the Chagos Advisory Opinion
The 2019 Chagos Advisory Opinion of the International Court of Justice is a decision of profound legal and political significance. Presented with a rare opportunity to pronounce on the right to self-determination and the rules governing decolonization, the ICJ responded with remarkable directness. The contributions to this book examine the Court's reasoning, the importance of the decision for the international system, and its consequences for the situation in the Chagos Archipelago in particular. Apart from bringing the Chagossians closer to the prospect of returning to the islands from which they were covertly expelled half a century ago, the decision and its political context may be understood as part of a broader shift in North/South relations, in which formerly dominant powers like the UK must come to terms with their waning influence on the world stage, and in which voices from former colonies are increasingly shaping the institutional and normative landscape.
Monday, February 15, 2021
Shirlow: Judging at the Interface: Deference to State Decision-Making Authority in International Adjudication
This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.
- Claus Kreß, An Unusual and Extraordinary Assault on International Justice
- Carsten Stahn, Confronting Colonial Amnesia: Towards New Relational Engagement with Colonial Injustice and Cultural Colonial Objects
- Annika Jones, Measuring Performance and Shaping Identity: Performance Indicators and the International Criminal Court
- Priya Urs, Judicial Review of Prosecutorial Discretion in the Initiation of Investigations into Situations of ‘Sufficient Gravity’
- Symposium: Litigating Palestine Before the International Criminal Court
- Triestino Mariniello & Chantal Meloni, Foreword
- Sarah Williams & Hannah Woolaver, The Role of State Amici Curiae in the Article 19(3) ICC Statute Proceedings: Friends or Distraction?
- Ardi Imseis, State of Exception: Critical Reflections on the Amici Curiae Observations and Other Communications of States Parties to the Rome Statute in the Palestine Situation
- Robert Heinsch & Giulia Pinzauti, To Be (a State) or Not to Be? The Relevance of the Law of Belligerent Occupation with regard to Palestine’s Statehood before the ICC
- Yaël Ronen, Palestine in the ICC: Statehood and the Right to Self-determination in the Absence of Effective Control
- Marco Pertile, The Borders of the Occupied Palestinian Territory are Determined by Customary Law: A Comment on the Prosecutor’s Position on the Territorial Jurisdiction of the ICC in the Situation Concerning Palestine
- Micheal G Kearney, The Denial of the Right of Return as a Rome Statute Crime
- Mark Kersten, No Justice Without Peace, But What Peace Is on Offer? Palestine, Israel and the International Criminal Court
- National Prosecution of International Crimes: Legislation and Cases
- Yahli Shereshevsky, The Unintended Negative Effect of Positive Complementarity
Sunday, February 14, 2021
Recent trends in reforms by African states in the field of International Investment Law (IIL) has been dubbed as the Africanization of IIL. These important debates regarding reform of IIL in Africa foreground innovative aspects of International Investment Agreements (IIA) in contrast to the traditional IIL regime. The debates also remind us of the relative lack of African voices in the global IIL reform agenda. There is however little research that critically analyze the Africanization of IIL thesis.
This article undertakes this analysis. Drawing on TWAIL, it characterizes Africanization of IIL into ‘moderate’ and ‘radical’ reforms. The article analyzes the normative features of Africanization of IIL. In this regard, it enriches existing substantive analysis, and advances the debates by interrogating the contours and blind spots of Africanization in IIL. It argues that the Africanization thesis being so far limited to the IIAs between African states, is a ‘moderate’ response from below to the systemic inequities of the IIL regime. Moderate Africanization of IIL – modest and incremental approach to the reform of IIL engenders challenges for African states as they remain nestled in the neoliberal paradigm. To address this deficit and expand the geographies of African centered IIAs to reform and remake IIL, the article makes the case for a cascading of the Africanization thesis in more radical normative form based on a constellation of strategic moderate changes.
Saturday, February 13, 2021
- Erik J. Molenaar, Multilateral Creeping Coastal State Jurisdiction and the BBNJ Negotiations
- Michael Tsimplis, Regulatory Systems Supporting Innovation: Lessons from the Development of the 2004 Ballast Water Management Convention
- Vasco Becker-Weinberg, Time to Get Serious about Combating Forced Labour and Human Trafficking in Fisheries
- Dikdik Mohamad Sodik, Marine Pollution in Indonesia and the Regulatory Framework
- Klaas Willaert, On the Legitimacy of National Interests of Sponsoring States: A Deep Sea Mining Conundrum
- Richard Barnes, Framework Agreement on Fisheries between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Norway
- Nengye Liu, China’s Regulation of its Distant Water Fishing Fleets
- Hai Dang Vu, ASEAN Guidelines for Strengthening Resilience and Repair of Submarine Cables
These Keynote Remarks were prepared for the Santander Roundtable Discussions on International Economic Law, co-hosted by Kenyatta University School of Law, (Nairobi); Riara Law School, (Nairobi); and the International Investment Law Center, at University of Cologne, January 13, 2021. The main claim is that the ISDS-centric focus of the current UNCITRAL Working Group III and ICSID Rule processes do not deal with some of the most fundamental challenges international investment law poses. These challenges are: How rights conferred on investors by international investment law effectively undermine domestic regulatory choices; How international investment law creates an asymmetrical private system of justice in which only investors have rights, whereas States are duty-bearers with no rights; How ISDS cases, and even the threat of investors bringing ISDS claims, creates a regulatory chilling effect; and how reform processes overlook market failures arising from the incentive structure of the international investment law system, allowing investors to externalize massive environmental, human rights and other costs. Perhaps therefore, the ISDS centric nature of the reforms raises the possibility that this reform process has the hallmarks of the most organized constituencies that benefit from its continuation.
Corporations are significant global actors that are continuing to gain international legal status. Regulatory efforts have closely followed persistent claims that various forms of corporate activity are adversely affecting individual welfare and societal objectives. Such observations are perhaps most acute during instances of armed conflict. The history of corporate misdeeds occurring within or contributing to the perpetuation of warfare is now well-documented. However, the relationship between international humanitarian law—the legal field governing the conduct of war—and corporations receive less attention than other areas of international law where the treatment of business entities have made important advancements. This article considers the particularities that affect how accountability is imposed for corporate behavior that implicates IHL. Accordingly, the article has three purposes. First, it describes the (indirect) doctrinal methods through which accountability for corporate conduct implicating IHL may be pursued. Second, it identifies structural challenges and features of the corporate form that compromise the efficacy of these methods and result in accountability gaps. Third, through a series of case studies—addressing the conduct of Blackwater in Iraq, Facebook in Myanmar, and Airbnb in the West Bank—the article categorizes disparate forms of corporate conduct that implicate IHL in previously unforeseen ways and present unidentified regulatory challenges. Collectively, the article suggests that if international law is to contribute to the process of narrowing accountability gaps, if it is to provide an agreeable and accurate vocabulary for determining standards and adjudging conduct, regulatory efforts must begin by embracing those features that differentiate the corporation from those other entities that have traditionally held international law’s attention.
Thursday, February 11, 2021
In 1917, the October Revolution and the adoption of the revolutionary Mexican Constitution shook the foundations of the international order in profound, unprecedented and lasting ways. These events posed fundamental challenges to international law, unsettling foundational concepts of property, statehood and non-intervention, and indeed the very nature of law itself. This collection asks what we might learn about international law from analysing how its various sub-fields have remembered, forgotten, imagined, incorporated, rejected or sought to manage the revolutions of 1917. It shows that those revolutions had wide-ranging repercussions for the development of laws relating to the use of force, intervention, human rights, investment, alien protection and state responsibility, and for the global economy subsequently enabled by international law and overseen by international institutions. The varied legacies of 1917 play an ongoing role in shaping political struggle in the form of international law.
Wednesday, February 10, 2021
Call for Applications: Lund University Faculty of Law (Doctoral Students in Human Rights Law, Specializing in Migration Law)
Tuesday, February 9, 2021
Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution, and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.
- Kathryn McNeilly, The Temporal Ontology of the Human Rights Council’s Universal Periodic Review
- Luka Glušac, A Critical Appraisal of the Venice Principles on the Protection and Promotion of the Ombudsman: An Equivalent to the Paris Principles?
- Bríd Ní Ghráinne, Complementary Protection and Encampment
- Dimitri Van Den Meerssche, A Legal Black Hole in the Cosmos of Virtue—The Politics of Human Rights Critique Against the World Bank
- Antonio Moreira Maués, Breno Baía Magalhães, Paulo André Nassar, & Rafaela Sena, Judicial Dialogue Between National Courts and the Inter-American Court of Human Rights: A Comparative Study of Argentina, Brazil, Colombia and Mexico
- Marie-Catherine Petersmann, Contested Indigeneity and Traditionality in Environmental Litigation: The Politics of Expertise in Regional Human Rights Courts
- Charles O’Sullivan & Donna McNamara, The ‘Necessity' of Austerity and its Relationship with the UN Convention on the Rights of Persons with Disabilities: A Case Study of Ireland and the United Kingdom
- Paweł Łącki, Consensus as a Basis for Dynamic Interpretation of the ECHR—A Critical Assessment
- Giulia Ciliberto, A Brand-New Exclusionary Clause to the Prohibition of Collective Expulsion of Aliens: The Applicant’s Own Conduct in N.D. and N.T. v Spain
- Lewis Graham, Jeanty v Belgium: Saving Lives Provides (another) Exception to Article 3 ECHR
- Stewart Manley, Critical Speech in Southeast Asian Grey Literature During the COVID-19 Pandemic
- Editorial: The UK Taken in Adultery. Who Will Cast the First Stone?; A Modest Proposal on Zoom Teaching; In This Issue
- Laurence R Helfer & Erik Voeten, Walking Back Human Rights in Europe?
- Ríán Derrig, Educating American Lawyers: The New Haven School’s Jurisprudence of Personal Character
- Rémi Bachand, What’s Behind the WTO Crisis? A Marxist Analysis
- Merijn Chamon, Provisional Application of Treaties: The EU’s Contribution to the Development of International Law
- Focus: Foreign Cyberattacks Against Civilians
- Herbert Lin & Joel Trachtman, Diagonal Export Controls to Counter Diagonal Transnational Attacks on Civil Society
- Nicholas Tsagourias & Michael Farrell, Cyber Attribution: Technical and Legal Approaches and Challenges
- Martha Finnemore & Duncan B Hollis, Beyond Naming and Shaming: Accusations and International Law in Cybersecurity
- EJIL: Exchange!
- Henri de Waele, A New League of Extraordinary Gentlemen? The Professionalization of International Law Scholarship in the Netherlands, 1919–1940
- Janne E Nijman, Marked Absences: Locating Gender and Race in International Legal History
- Roaming Charges: Visible Absences
- EJIL: Debate!
- Ardi Imseis, Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020
- David Hughes, Of Tactics, Illegal Occupation and the Boundaries of Legal Capability: A Reply to Ardi Imseis
- Changing the Guards - Part III
- Sara Hagemann, Politics and Diplomacy: Lessons from Donald Tusk’s Time as President of the European Council
- Review Essays
- Patryk I Labuda, The International Criminal Tribunal for Rwanda and Post-Genocide Justice 25 Years On
- Leonardo Borlini, On Financial Nationalism and International Law: Sovereignty, Cooperation and Hard/Soft Governance in International Finance
- Books Reviews
- Sophie Rigney, reviewing Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics
- Ingo Venzke, reviewing Anne Saab, Narratives of Hunger in International Law: Feeding the World in Times of Climate Change
- Ntina Tzouvala, reviewing Alvaro Santos, Chantal Thomas and David Trubek (eds), World Trade and Investment Law Reimagined: A Progressive Agenda for an Inclusive Globalization
- Jarrod Hepburn, reviewing Daniel Peat, Comparative Reasoning in International Courts and Tribunals
- Alexandre Skander Galand, reviewing Claus Kreß and Stefan Barriga (eds), The Crime of Aggression: A Commentary
- The Last Page
- Valentin Jeutner, The Last Page
- Benedikt Pirker & Jennifer Smolka, International Law and Linguistics: Pieces of an Interdisciplinary Puzzle
- Zheng Tang, International Judicial Cooperation in Game Theory
- Esmé Shirlow, E-Discovery in Investment Treaty Arbitration: Practice, Procedures, Challenges and Opportunities
- Ksenia Polonskaya, Frivolous and Abuse of Process Claims in Investor–State Arbitration: Can Rules on Cost Allocation Become Solution?
- Wenliang Zhang & Guangjian Tu, The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague
- Current Developments
- Natalia Gallardo-Salazar & Jaime Tijmes-Ihl, Dispute Settlement at the World Trade Organization, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the Pacific Alliance
- Rashri Baboolal-Frank, An Analysis of Sectional Title Dispute Resolution in South Africa
Call for Applications: Academy for European Human Rights Protection (Postdoctoral Position; PhD Positions)
- Minna Lyytikäinen, Punam Yadav, Annick TR Wibben, Marjaana Jauhola, & Catia Cecilia Confortini, Unruly wives in the household: Toward feminist genealogies for peace research
- Ayşe Betül Çelik, Agonistic peace and confronting the past: An analysis of a failed peace process and the role of narratives
- Catherine Hecht, When democratic governance unites and divides: Social status and contestation in the Organization for Security and Co-operation in Europe
- David Mitchell, Comparative consultation: The theory and practice of ‘sharing lessons’ between peace processes
- Arash Heydarian Pashakhanlou & Felix Berenskötter, Friends in war: Sweden between solidarity and self-help, 1939–1945
- Laura Luciani, The EU’s hegemonic interventions in the South Caucasus: Constructing ‘civil’ society, depoliticising human rights?
Monday, February 8, 2021
In these extraordinary times, dramatic shifts in global health, the global economy, and geopolitical power structures are forcing human beings to adapt and evolve. These shifts require us to revisit the operation of the legal, political, and conceptual structures of our international order, and to examine the possibility — and perhaps necessity — of creating new norms, tools, and paradigms.
Today's health, economic, and racial justice crises are having a profound impact on the rule of law, human security, and the environment; human rights and gender equality; international business and trade; and virtually all other aspects of society. These effects are being exacerbated by the differing approaches that governments, international organizations, and private actors have taken toward international problem-solving. Although some may hope for a return to "normalcy" in all these areas, the current moment offers both the challenge and the opportunity to reconsider and potentially to reshape international law and international institutions.
The 2021 Annual Meeting of the American Society of International Law will provide a forum to think critically and creatively about all fields of international law. Sessions will present a broad range of perspectives on innovative ways to address emerging issues, to improve global governance, and to tackle international problems. More than ever, it is a time to come together as international law scholars and practitioners, and to challenge ourselves to imagine a new way forward.
Aust: Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission
The paper deals with the legal consequences of serious breaches of peremptory norms under general international law. After setting out some aspects of the complex relationship between jus cogens and the law of state responsibility, the contribution presents the recent work of the UN International Law Commission (ILC) on these questions. This work is contextualised in the light of the debates in the Sixth Committee of the UN General Assembly. The contribution discusses to what extent the Commission has offered the international community of States merely an ‘effort to imagine’ hypothetical consequences of breaches of jus cogens – or whether the special consequences for serious breaches of peremptory norms of general international law are now indeed firmly accepted in international law. In particular, the paper assesses recent practice with respect to the three additional consequences that the ILC included in the Articles on State Responsibility in 2001 – the obligation of cooperation as well as the obligations to refrain from recognizing situations brought about by serious breaches of peremptory norms as lawful and to render aid or assistance for maintaining such situations.
- Zou Keyuan & Jin Jing, The Question of Pirate Trials in States Without a Crime of Piracy
- G Le Moli, From “Is” to “Ought”: The Development of Normative Powers of UN Investigative Mechanisms
- Bing Bing Jia, The Question of Jurisdiction in the 2019 Arbitration between Ukraine and Russia
- Pracitice and Documents
- Xiaohui Wu, Chronology of Practice: Chinese Practice in Public International Law in 2019
- Letters to the Journal
- James Kraska, China and Canada are Unlikely to Collaborate on Unlawful Straight Baselines: A Response to Michael Byers and Emma Lodge, “China and the Northwest Passage”
- Xinxiang Shi, The Status of Northwest Passage and the Position of China in the US-Canada Dispute: Some Comments in Partial Response to the Exchange of Views between Michael Byers and Emma Lodge on the One Hand and James Kraska on the Other
Sunday, February 7, 2021
The Right to a Fair Trial in International Lawbrings together the diverse sources of international law that define the right to a fair trial in the context of criminal (as opposed to civil, administrative or other) proceedings. The book provides a comprehensive explanation of what the right to a fair trial means in practice under international law and focuses on factual scenarios that practitioners and judges may face in court.
Each of the book's fourteen chapters examines a component of the right to a fair trial as defined in Article 14 of the International Covenant on Civil and Political Rights and reviews the case law of regional human rights courts, international criminal courts as well as UN human rights bodies. Highlighting both consensus and divisions in the international jurisprudence in this area, this book provides an invaluable resource to practitioners and scholars dealing with breaches of one of the most fundamental human rights.
Saturday, February 6, 2021
Schimmelfennig, Winzen, Lenz, Rocabert, Crasnic, Gherasimov, Lipps, & Mumford: The Rise of International Parliaments: Strategic Legitimation in International Organizations
International parliaments are on the rise. An increasing number of international organizations establishes 'international parliamentary institutions' or IPIs, which bring together members of national parliaments or - in rare cases - elected representatives of member state citizens. Yet, IPIs have generally remained powerless institutions with at best a consultative role in the decision-making process of international organizations.
Why do the member states of international organizations create IPIs but do not vest them with relevant institutional powers? This study argues that neither the functional benefits of delegation nor the internalization of democratic norms answer this question convincingly. Rather, IPIs are best understood as an instrument of strategic legitimation. By establishing institutions that mimic national parliaments, governments seek to ensure that audiences at home and in the wider international environment recognize their international organizations as democratically legitimate. At the same time, they seek to avoid being effectively constrained by IPIs in international governance.
The Rise of International Parliaments provides a systematic study of the establishment and empowerment of IPIs based on a novel dataset. In a statistical analysis covering the world's most relevant international organizations and a series of case studies from all major world regions, we find two varieties of international parliamentarization. International organizations with general purpose and high authority create and empower IPIs to legitimate their region-building projects domestically. Alternatively, the establishment of IPIs is induced by the international diffusion of democratic norms and prominent templates, above all that of the European Parliament.
This book provides the first comprehensive account of post-crisis international regulation of derivatives by bringing together the international relations literature on regime complexity and the international political economy literature on financial regulation.
It addresses three questions: What factors drove international standard-setting on derivatives post-crisis? Why did international regime complexity emerge? And how was it managed and with what outcomes? This research innovatively combines a state-centric, a transgovernmental, and business-led explanations. It examines all the main sets of standards (or elemental regimes) concerning various aspects of derivatives markets, namely: trading, clearing, and reporting of derivatives; resilience, recovery and resolution of central counterparties; capital requirements for bank exposures to central counterparties and derivatives; margins for derivatives non-centrally cleared. It is argued that regime complexity in derivatives ensued from the multi-dimensionality and the interlinkages of the problems to tackle, especially given the fact that it was a new policy area without a focal international standard-setter. Despite these challenges, international cooperation resulted in relatively precise, stringent, and consistent rules, even though there was variation across standards. The main jurisdictions played an important role in managing regime complexity, but their effectiveness was constrained by limited domestic coordination. Networks of regulators gathered in international standard-setting bodies deployed a variety of formal and informal coordination tools to deal with regime complexity. The financial industry, at times, lobbied for less precise and stringent rules and engaged in 'venue shopping', whereas, other times, it contributed to the quest for regulatory consistency.
- Radu Bogdan Bobei, O analiză preliminară a diverselor sensuri ale termenului „drept transnațional”
- Andreea Zalomir, Implicații juridice ale conflictelor în spațiul cosmic (Partea I)
- Studii și comentarii de jurisprudență și legislație
- Ion Gâlea, Relația dintre tratate și Constituția României: jurisprudența recentă a Curții Constituționale din România
- Contribuţia doctorandului şi masterandului
- Adrian-Nicușor Popescu, Primul refugiat climatic recunoscut?
- Recenzie de carte
- Elena Lazăr, “La construcción jurídica de un espacio marítimo común europeo”