À l’heure où les États sont toujours plus concurrencés par des institutions nombreuses aux pouvoirs divers sur la scène internationale, Samantha Besson invite à re-poser la question institutionnelle en droit international pour contribuer ainsi à reconstruire l’ordre institutionnel mondial.
Les États n’agissent plus seuls sur la scène internationale. Interviennent désormais à leurs côtés, voire parfois à leur place, d’autres institutions comme les organisations internationales, les entreprises multinationales, les organisations non gouvernementales, les régions, ou encore les villes globalisées. Or, on ne dispose d’aucune indication claire, et encore moins d’un « droit international des institutions », permettant de répondre aux trois questions essentielles de l’organisation sociale et politique que sont la représentation, la règlementation et la responsabilité. Quelles institutions peuvent agir pour qui sur le plan international ? À quelles conditions leurs décisions peuvent-elles prétendre lier juridiquement, et avoir la légitimité de le faire ? Et, quelles institutions doivent répondre envers qui, et comment, de la violation du droit international ? Le temps est venu de reconstruire l’ordre institutionnel international.
Saturday, April 17, 2021
Friday, April 16, 2021
Data conveys significant social, economic, and political power. Unequal control over data — a pervasive form of digital inequality — is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This paper takes some steps in this direction by analyzing the extent to which law facilitates unequal control over data and by suggesting ways in which legal interventions might lead to more equal control over data. By unequal control over data, we not only mean having or not having data, but also having or not having power over deciding what becomes and what does not become data. We call this the power to datafy. We argue that data inequality is in turn a function of unequal control over the infrastructures that generate, shape, process, store, transfer, and use data. Existing law often regulates data as an object to be transferred, protected, and shared and is not always attuned to the salience of infrastructural control over data. While there are no easy solutions to the variegated causes and consequences of data inequality, we suggest that retaining flexibility to experiment with different approaches, reclaiming infrastructural control, systematically demanding enhanced transparency, pooling of data and bargaining power, and differentiated and conditional access to data mechanisms may help in confronting data inequality more effectively going forward.
This paper was written as a background paper for the World Development Report 2021: Data for Better Lives.
- Su Bian, Political but incontestable: A review of ‘political constitutionalism’ in China
- Berihun Adugna Gebeye, Global constitutionalism and cultural diversity: The emergence of jurisgenerative constitutionalism in Africa
- Special Issue: Judicial Authority, Legitimacy and the (International) Rule of Law
- Knut Traisbach, Judicial authority, legitimacy and the (international) rule of law as essentially contested and interpretive concepts: Introduction to the special issue
- Jeremy Waldron, The rule of law and the role of courts
- Brian Z. Tamanaha, Always imperfectly achieved rule of law: Comments on Jeremy Waldron
- Andreas Follesdal, International human rights courts and the (international) rule of law: Part of the solution, part of the problem, or both?
- Gianluigi Palombella, Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal
- Geir Ulfstein, Transnational constitutional aspects of the European Court of Human Rights
- Wojciech Sadurski, Quasi-constitutional court of human rights for Europe? Comments on Geir Ulfstein
- Knut Traisbach, A transnational judicial public sphere as an idea and ideology: Critical reflections on judicial dialogue and its legitimizing potential
- Friedrich Kratochwil, Law as an argumentative practice: On the pitfalls of confirmatory research, false necessities, and (Kantian) stupidity – Comments on Knut Traisbach
Thursday, April 15, 2021
This is a book about international criminal justice written by one of its foremost practitioners and academic thinkers, Judge Theodor Meron. For two decades, Judge Meron has been at the heart of the international criminal justice system, serving as President of the International Criminal Tribunal for the former Yugoslavia (ICTY), President of the International Residual Mechanism for Criminal Tribunals, and a Judge of the Appeals Chambers of the ICTY and the International Criminal Tribunal for Rwanda. Drawing on this experience, and his life and career before serving as an international judge, Judge Meron reflects on some of the key questions facing the international criminal justice system.
In the opening chapter, Judge Meron writes vividly about his childhood experiences in Poland during World War II, his education, career with the Israeli Foreign Ministry, and subsequent move into academia in the United States. The book continues with Meron's reflections on what it means to transform from a law professor into an international criminal judge, and shifts focus to the criminal courtroom, addressing topics such as the judicial function, the rule of law, and the principle of fairness in trying atrocity crimes: genocide, crimes against humanity, and war crimes. Judge Meron discusses judicial independence and impartiality in international criminal courts, shedding light on the mystery of judicial decision-making and deliberations. Notably, he addresses the controversial subjects of acquittals and the early release of prisoners. Although acquittals are often seen as a failure of international justice, Judge Meron argues that legal principle must come before any extraneous purpose, however desirable that purpose may be. Finally, the book looks ahead at the challenges facing the future of international justice and accountability, and discusses the all-important question: does international criminal justice work?
Wednesday, April 14, 2021
- Jordan Bernhardt & Lauren Sukin, Joint Military Exercises and Crisis Dynamics on the Korean Peninsula
- J. Andrés Gannon & Daniel Kent, Keeping Your Friends Close, but Acquaintances Closer: Why Weakly Allied States Make Committed Coalition Partners
- Erin Baggott Carter & Brett L. Carter, Propaganda and Protest in Autocracies
- Anne Meng, Winning the Game of Thrones: Leadership Succession in Modern Autocracies
- Ingrid Vik Bakken & Halvard Buhaug, Civil War and Female Empowerment
- Data Set Feature
- Ryan M. Welch, Jacqueline H. R. DeMeritt, & Courtenay R. Conrad, Conceptualizing and Measuring Institutional Variation in National Human Rights Institutions (NHRIs)
Webinar: European Approaches to International Law in a Historical Perspective: Taking Stock of Some Contemporary Appraisals
Tuesday, April 13, 2021
Despite Africa’s fragmented sub-regional economic regimes, the AfCFTA Agreement represents a significant moment for African States to harness the continent’s international trade and investment opportunities on their own terms. The AfCFTA Agreement initiates a set of complex and lengthy negotiations with a view to reducing tariffs, galvanize industrial production and boost Africa’s trade. The success of Africa’s reinvigorated liberal internationalism embodied in the AfCFTA Agreement depends on a host of factors that primarily includes its effective implementation.
This Chapter situates the AfCFTA Agreement in the historical and contemporary contexts of the mixed performance of sub-regional economic communities and other regimes in which its implementation will be embedded. The Chapter also examines the pre-existing structural deficiencies that the COVID-19 pandemic has brought to the fore and their implications for the AfCFTA Agreement. Building on the foregoing, the Chapter also critically examines the blindspots of the pan-Africanist underpinning of the AfCFTA Agreement for the future of trade regime in Africa.
The Chapter examines the substantive provisions of the AfCFTA Agreement and its institutions focusing on the question of supranationality in the decision-making process. In the third section, I deepen the Chapter’s analysis by examining the promise of the AfCFTA in the shadow of Africa’s mixed record of economic cooperation. Based on the analyses of the systemic deficiencies in African regional trade regimes, as impacted by the COVID-19 pandemic. To illustrate the latter, I draw on the finance sector - debt burden conundrum and digitalisation. The examples are selected to illustrate areas where historical deep-seated challenges exist and emerging sectors that African leaders should capitalise for a better post-pandemic Africa. I contend that a critical understanding of pan-Africanism and in a morphological sense that acknowledges its shortcomings is important to understanding the attitude of African States to the lethargic implementation of regional trade agreements. Operating with such consciousness, I contend, engenders a better understanding of the intrigues of the implementation phase, as opposed to the narrow, lack of political will arguments.
Monday, April 12, 2021
Tamada & Zou: Implementation of the United Nations Convention on the Law of the Sea: State Practice of China and Japan
This book analyses he implementation of the United Nations Convention on the Law of the Sea (UNCLOS) in the light of state practices of China and Japan. The special character of the book can be found in its structure of comparative analysis of the practices of China and Japan in each part. The focus is on historical aspects (Part I), implementation of the UNCLOS (Part II), navigation (Part III), mid-ocean archipelagos (Part IV), the marine environment (Part V), and dispute settlement (Part VI). By taking this approach, the book elucidates a variety of aspects of history, difficulties, problems, and controversies arising from the implementation of the UNCLOS by the two nations. Furthermore, contributors from China and Japan tend to show different perspectives on the UNCLOS, which, by clarifying the need for further debate, are expected to contribute to the continuing cooperation between the academics of the two states.
Providing in-depth coverage of each article of the Paris Agreement, this Commentary offers a comprehensive, legal analysis of this most recent and important international instrument on climate change. This provision-by-provision textual analysis examines the commitments that parties to the Agreement have made to undertake ambitious efforts to combat climate change and adapt to its effects, whilst providing additional support to developing countries.
Describing the history, implementation and operation of the Paris Agreement, this Commentary is indispensable for obtaining a deep and nuanced understanding of the way in which the global community seeks to intensify its efforts to address climate change. Written by internationally renowned contributors, it discusses recent examples of implementation of the Agreement and nationally determined contributions (NDCs).
Akinkugbe: Reflections on the Value of Socio-Legal Approaches to International Economic Law in Africa
In their introductory essay to the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.”
This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of informal cross-border trade phenomenon. It argues that, by conceptualizing IEL in Africa as a social phenomenon, socio-legal approaches open IEL in Africa to the application of other social science methods, which enable us to understand the context in which African regional trade agreements are implemented and their contribution to the scholarly field of IEL.
Sunday, April 11, 2021
Cultural heritage is a feature of transitioning societies, from museums commemorating the end of a dictatorship to adding places like the Auschwitz-Birkenau concentration camp to the World Heritage List. These processes are governed by specific laws, and yet transitional justice discourses tend to ignore law's role, assuming that memory in transition emerges organically. This book debunks this assumption, showing how cultural heritage law is integral to what memory and cultural identity is possible in transition. Lixinski attempts to reengage with the original promise of transitional justice: to pragmatically advance societies towards a future where atrocities will no longer happen. The promise in the UNESCO Constitution of lasting peace through cultural understanding is possible through focusing on the intersection of cultural heritage law and transitional justice, as Lixinski shows in this ground-breaking book.
Despite their exponential growth in number and activities, there is not an established legal concept of an international organization. This book tackles the topic by examining the nature of the legal systems developed by international organizations. It is the first comprehensive study of the concepts by which international organizations' legal systems are commonly understood: functionalism, constitutionalism, exceptionalism, and informalism. Its purpose is threefold: to trace the historical origins of the different concepts of an international organization, to describe four groups under which these different notions can be aligned, and to propose a theory which defines international organizations as 'dual entities'. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of 'dual legal nature' describes how organizations create particular legal systems that derive from international law. This situation affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are considered by analysing international responsibility, the law of treaties, and the validity of organizations' acts.
This chapter offers accounts of three feminist “success stories,” each of which has invoked a sense of crisis to call for carceral and militarized international legal responses. We argue that these projects have reinforced many dangerous aspects of both feminism and international law, as they have used a focus on harm to women – particularly sexual harm – to aid in the legitimization and extension of legal, military and economic institutional arrangements that exacerbate the precarity of marginalized individuals, communities, and states. Their use of crisis has participated in the crowding out of a variety of alternative feminist (and other) perspectives, particularly those that take aim at the often quotidian forms of violence based in the overlapping structures of colonialism, racism, gender normativity, and gross economic inequality. We contend that anti-imperial and sex-positive feminisms as well as queer theory offer important vehicles for challenging the dominant approaches. We gesture toward how they might even consider invoking crisis (such as the often everyday and unnoticeable crises of neocolonial, neoliberal, carceral, and militarized dimensions of global governance) to foster transformative feminist, queer, and redistributive ends.