- 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
Saturday, February 13, 2021
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.