Saturday, September 4, 2021

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 21, no. 5, 2021) is out. Contents include:
  • Special Issue: The Politics of Time, Transition, and Justice in Transitional Justice
    • Noha Aboueldahab, The Politics of Time, Transition, and Justice in Transitional Justice
    • Pádraig McAuliffe, Transitional Justice, Institutions and Temporality: Towards a Dynamic Understanding
    • Zinaida Miller, Temporal Governance: The Times of Transitional Justice
    • Thomas Obel Hansen, The Multiple Aspects of ‘Time’ Rendering Justice for War Crimes in Iraq
    • Randle C. DeFalco, Time and the Visibility of Slow Atrocity Violence
    • Maja Davidović, Reconciling Complexities of Time in Criminal Justice and Transitional Justice
    • Jayson S. Lamchek & George B. Radics, Dealing with the Past or Moving Forward? Transitional Justice, the Bangsamoro Peace Agreement and Federalism in the Philippines
    • Eric Wiebelhaus-Brahm & Dylan Wright, Temporal Patterns in Latin American Truth Commission Recommendation Formulation and Implementation

New Issue: Asia-Pacific Journal of Ocean Law and Policy

The latest issue of the Asia-Pacific Journal of Ocean Law and Policy (Vol. 6, no. 1, 2021) is out. Contents include:
  • Jeffrey Sheehy, Law and Diplomacy, Sovereignty and Consent: A Reflection on the First-Ever Compulsory Conciliation under the Law of the Sea
  • Karina Galliford, Scrutinising the Maritime Zones Around Australia’s Sub-Antarctic Islands: Implications of the South China Sea Arbitration and Subsequent State Practice
  • Hai Dang Vu, Improving the Freedom of Repairing Telecommunication Submarine Cables in Southeast Asia: Next Steps for ASEAN
  • Giulia Demontis, The Concept of Freedom of Navigation in Light of ITLOS Interpretation in the Norstar Case

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 36, no. 3, 2021) is out. Contents include:
  • Rob McLaughlin & Natalie Klein, Maritime Autonomous Vehicles and Drug Trafficking by Sea: Some Legal Issues
  • Shani Friedman, The Application of the Law of Occupation in Maritime Zones and Rights to ‘Occupied’ Marine Resources
  • So Yeon Kim, Problems and Processes of Restricting Navigation in Particularly Sensitive Sea Areas
  • Shihui Cheng, Legal Guarantees for the Safety of China’s Offshore Oil and Gas Facilities: Status, Defects and Countermeasures
  • Chen-Hong Liu, Zhang Xu, & Yen-Chiang Chang, Coast Guard Law of the People’s Republic of China and Its Implications in International Law
  • Klaas Willaert, Under Pressure: The Impact of Invoking the Two Year Rule within the Context of Deep Sea Mining in the Area

Wednesday, September 1, 2021

Lee: The Right of Sovereignty: Jean Bodin on the Sovereign State and the Law of Nations

Daniel Lee
(Univ. of California, Berkeley - Political Science) has published The Right of Sovereignty: Jean Bodin on the Sovereign State and the Law of Nations (Oxford Univ. Press 2021). Here's the abstract:
Sovereignty is the vital organizing principle of modern international law. This book examines the origins of that principle in the legal and political thought of its most influential theorist, Jean Bodin (1529/30-1596). As the author argues in this study, Bodin's most lasting theoretical contribution was his thesis that sovereignty must be conceptualized as an indivisible bundle of legal rights constitutive of statehood. While these uniform 'rights of sovereignty' licensed all states to exercise numerous exclusive powers, including the absolute power to 'absolve' and release its citizens from legal duties, they were ultimately derived from, and therefore limited by, the law of nations. The book explores Bodin's creative synthesis of classical sources in philosophy, history, and the medieval legal science of Roman and canon law in crafting the rules governing state-centric politics. The Right of Sovereignty is the first book in English on Bodin's legal and political theory to be published in nearly a half-century and surveys themes overlooked in modern Bodin scholarship: empire, war, conquest, slavery, citizenship, commerce, territory, refugees, and treaty obligations.

Conference: Sustainable Development and the Law: Potential and Challenges of Using Behavioural Insights

On September 23-24, 2021, the ESIL Interest Group on Social Sciences and International Law will host an online conference on "Sustainable Development and the Law: Potential and Challenges of Using Behavioural Insights." The program is here. Registration is here.

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 65, no. 9, October 2021) is out. Contents include:
  • Articles
    • Brandon Bolte, Minnie M. Joo, & Bumba Mukherjee, Security Consolidation in the Aftermath of Civil War: Explaining the Fates of Victorious Militias
    • Philippe Assouline & Robert Trager, Concessions for Concession’s Sake: Injustice, Indignation, and the Construction of Intractable Conflict in Israel–Palestine
    • Gary Uzonyi, Nam Kyu Kim, Nakissa Jahanbani, & Victor Asal, Genocide, Politicide, and the Prospects of Democratization since 1900
    • Bryan R. Early & Erik Gartzke, Spying from Space: Reconnaissance Satellites and Interstate Disputes
    • Nazli Avdan & Mariya Omelicheva, Human Trafficking-Terrorism Nexus: When Violent Non-State Actors Engage in the Modern-Day Slavery
  • Data Set Feature
    • Monica Duffy Toft, Getting Religion Right in Civil Wars

Tuesday, August 31, 2021

Conference: 16th Conference of the European Society of International Law (Reminder)

The 16th Conference of the European Society of International Law will take place September 9-11, 2021, in Stockholm. The format will be hybrid, with panelists present onsite at the conference venue, while other participants can follow onsite or online. The program is here. Registration is open here. The deadline for the on-site registration is September 3, while you can keep registering for the online conference until September 8. The day before the conference, on Wednesday, September 8, ESIL Interest Groups will hold workshops. The schedule and programs for those are here.

de Beco: Disability in International Human Rights Law

Gauthier de Beco
(Univ. of Huddersfield - Law) has published Disability in International Human Rights Law (Oxford Univ. Press 2021). Here's the abstract:

This book examines what international human rights law has gained from the new elements in the UN Convention on the Rights of Persons with Disabilities (CRPD). It explores how the CRPD is intricately bound up with other international instruments by studying the relationship between the Convention rights and those protected by other human rights treaties, as well as the overall objectives of the UN. Using a social model lens on disability, the book shows how the Convention sheds new light on the very notion of human rights.

The book provides a theoretical framework which explicitly integrates disability into international human rights law. It explains how the CRPD challenges the legal subject by drawing attention to distinct forms of embodiment, before introducing the idea of the 'dis-abled subject', which stems from a recognition that all individuals encounter disability-related issues during their lives. The book also shows how to apply this theoretical framework to several rights and highlights the consequences for the implementation of human rights treaties as a whole. It builds upon the literature of disability studies and legal and political theory, as well as drawing upon the recommendations of treaty bodies and reports of UN agencies and disabled people's organisations. This book thereby provides an agenda-setting analysis for all human rights experts, by showing the benefits of placing disabled people at the heart of international human rights law.

Conference: Outer Space Law

On September 3, 2021, Te Piringa Faculty of Law will host a virtual conference on Outer Space Law. Details are here.

Monday, August 30, 2021

Peters: Constitutional Theories of International Organisations: Beyond the West

Anne Peters (Max Planck Institute for Comparative Public Law and International Law) has posted Constitutional Theories of International Organisations: Beyond the West. Here's the abstract:

The paper proposes revisions to the constitutional theory of international organisations in order to address the ‘imbalances in the global governance system’ mentioned in the 2021 Russian-Chinese Declaration on Global Governance and for inspiring legal building blocks for the desired ‘fairer, more democratic and rational multipolar world order’ mentioned therein.

The paper identifies successive waves of constitutional theories that have pursued different goals. The first generation constitutional vocabulary flourishing in the 1960s and 1970s worked to empower international organisations. But multilateral saturation and occasional organisational overreach triggered the quest for the containment and accountability of international organisations.

This phenomenon, which culminated in the 1990s and early millennium, motivated a second wave constitutional theory which - and in line with the political climate of the time - sought to apply the values of liberal constitutionalism (rule of law, human rights, and democracy) to international organisations.

Meanwhile, that second wave has turned out to be selective and one-sided. Shortcomings are a lopsided political-human-rightism, the neglect of social hardship and of stark material inequality of living conditions for individuals across the globe, the de facto or de jure exclusion of actors from the global south in the work of international organisations, and the weakness of institutionalised forums for contestation and dissent.

The paper sketches out a third variant of constitutional theory for international organisations in order to upscale and politicise the proto-democratic practices in their bodies, to rectify to the north-south imbalance that is inter alia rooted in the colonial heritage, and to tackle the global social question upfront.

Coco & de Souza Dias: 'Cyber Due Diligence': A Patchwork of Protective Obligations in International Law

Antonio Coco (Univ. of Essex - Law) & Talita de Souza Dias (Univ. of Oxford - Jesus College) have posted 'Cyber Due Diligence': A Patchwork of Protective Obligations in International Law (European Journal of International Law, forthcoming). Here's abstract:
With a long history in international law, the concept of due diligence has recently gained traction in the cyber context, as a promising avenue to hold states accountable for harmful cyber operations originating from, or transiting through, their territory, in the absence of attribution. Nonetheless, confusion surrounds the nature, content and scope of due diligence. It remains unclear whether it is a general principle of international law, a self-standing obligation or a standard of conduct, and whether there is a specific rule requiring diligent behaviour in cyberspace. This has created an ‘all-or-nothing’ discourse: either states have agreed to a rule or principle of ‘cyber due diligence’, or no obligation to behave diligently would exist in cyberspace. We propose to shift the debate from label to substance, asking whether states have duties to protect other states and individuals from cyber harms. By revisiting traditional cases, as well as surveying recent state practice, we contend that – whether or not there is consensus on ‘cyber due diligence’ – a patchwork of different protective obligations already applies, by default, in cyberspace. At their core is a flexible standard of diligent behaviour requiring states to take reasonable steps to prevent, halt and/or redress a range of online harms.

Hughes-Gerber: Diplomatic Asylum: Exploring a Legal Basis for the Practice Under General International Law

Laura Hughes-Gerber
(Lancaster Univ. - Law) has published Diplomatic Asylum: Exploring a Legal Basis for the Practice Under General International Law (Springer 2021). Here's the abstract:
Following the vexed codification attempts of the International Law Commission and the relevant jurisprudence of the International Court of Justice, this book addresses the permissibility of the practice of diplomatic asylum under general international law. In the light of a wealth of recent practice, most prominently the case of Julian Assange, the main objective of this book is to ascertain whether or not the practice of granting asylum within the premises of the diplomatic mission finds foundation under general international law. In doing so, it explores the legal framework of the Vienna Convention on Diplomatic Relations 1961, the regional treaty framework of Latin America, customary international law, and a possible legal basis for the practice on the basis of humanitarian considerations. In cases where the practice takes place without a legal basis, this book aims to contribute to bridging the legal lacuna created by the rigid nature of international diplomatic law with the absolute nature of the inviolability of the mission premises facilitating the continuation of the practice of diplomatic asylum even where it is without legal foundation. It does so by proposing solutions to the problem of diplomatic asylum. This book also aims to establish the extent to which international law relating to diplomatic asylum may presently find itself within a period of transformation indicative of both a change in the nature of the practice as well as exploring whether recent notions of humanity are superseding the traditional fundaments of the international legal system in this regard.

Johnstone & Ratner: Talking International Law: Legal Argumentation Outside the Courtroom

Ian Johnstone
(Tufts Univ. - Fletcher School) & Steven Ratner (Univ. of Michigan - Law) have published Talking International Law: Legal Argumentation Outside the Courtroom (Oxford Univ. Press 2021). The table of contents is here. Here's the abstract:

Examining legal argumentation by states and other actors in the settings where it mostly transpires - outside of courts, Talking International Law challenges the realist assumption that legal argumentation is largely inconsequential. Addressing a gap in scholarship within international law and international relations theory, this book provides a comprehensive analysis of why it occurs, how, where, and to what effect by exploring the phenomenon in a range of issue areas, from security and human rights, to the environment, trade, and intellectual property.

Diplomats and other governmental actors are the principal participants in international legal discourse, but intergovernmental officials, non-governmental organizations, academics, corporations, and even non-state armed groups also engage in "law talk." Through close examination of legal arguments in political and other settings, the authors uncover various motives these actors have for making legal claims - including persuasion, strategic calculations, assertions of identity, and the felt need to legitimate one's actions - or to delegitimate those of an adversary. Legal argumentation can have short-term and long-term effects, both intended and unintended, on immediate participants or a wider net of actors. By bringing together distinguished scholars with diverse perspectives and senior practitioners from around the world who engage in such argumentation themselves, the book offers a unique exposure to the multi-faceted practice of legal argumentation and thereby deepens our understanding of how international law actually operates in international affairs.

Wei: Decoding Chinese Bilateral Investment Treaties

Shen Wei
(Shanghai Jiao Tong Univ. - Law) has published Decoding Chinese Bilateral Investment Treaties (Cambridge Univ. Press 2021). Here's the abstract:
This is a major work investigating China's bilateral investment treaties (BITs) regime through various approaches including textual analysis, case study, comparative study and empirical study. This book tries to unveil some of the puzzles in Chinese BITs. The general consensus is that the evolution of China's BIT regime has its underlying logic, which follows an investment liberalization trend and fits China's changing role from a key capital-importing state to a major capital-exporting state. A similar trend is evident in Chinese BIT-making and BIT policy. This book investigates these theoretical assumptions and looks into some of the loopholes in Chinese BITs.

Sunday, August 29, 2021

New Volume: Recueil des Cours

Volume 418 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 418
    • Sylvain Bollée, Les pouvoirs inhérents des arbitres internationaux
    • Dire Tladi, The Extraterritorial Use of Force Against Non-State Actors

Mahaseth & Subramaniam: Binding or Non-Binding: Analysing the Nature of the Asean Agreements

Harsh Mahaseth (Jindal Global Law School) & Karthik Subramaniam (NALSAR Univ. of Law) have published Binding or Non-Binding: Analysing the Nature of the Asean Agreements (International and Comparative Law Review, Vol. 21, no. 1, June 2021). Here's the abstract:
ASEAN has gradually attempted to assert itself as a diplomatic force to reckon with. However, over the recent past, it’s ability to deal with regional issues and situations has come under scrutiny. This paper argues that the reason behind such lack of clear decision making arises from the large presence of Soft Law nomenclature in ASEAN agreements, resulting in the lack of any Hard Law obligations on these nations. The paper attempts to highlight the lack of clarity in the nomenclature used in ASEAN agreements, the problems that arise from the same, and the possible reasoning behind the usage of such nomenclature. In conclusion, the paper provides a few solutions and recommendations that could be adopted by the ASEAN community of nations to estab-lish themselves as an economic community.

Dingwall: International Law and Corporate Actors in Deep Seabed Mining

Joanna Dingwall
(Univ. of Glasgow) has published International Law and Corporate Actors in Deep Seabed Mining (Oxford Univ. Press 2021). Here's the abstract:

The deep seabed beyond national jurisdiction (known as the Area) comprises almost three-quarters of the entire surface area of the oceans, and is home to an array of prized commodities including valuable metals and rare earth elements. In recent years, there has been a marked growth in deep seabed investment by private corporate actors, and an increasing impetus towards exploitation. This book addresses the unresolved legal challenges which this increasing corporate activity will raise over the coming years, including in relation to matters of common management, benefit-sharing, marine environmental protection, and investment protection.

Acting under the United Nations Convention on the Law of the Sea (UNCLOS), the International Seabed Authority is responsible for regulating the Area for the benefit of humanity and granting mining contracts. A product of its history, the UNCLOS deep seabed regime is an unlikely hybrid of capitalist and communist values, embracing the role of private actors while enshrining principles of resource distribution. As technological advances begin to outstrip legal developments, this book assesses the tension between corporate commercial activity in the Area and the achievement of the common heritage.

Imseis: On membership of the United Nations and the State of Palestine: A critical account

Ardi Imseis (Queen’s Univ., Canada - Law) has posted On membership of the United Nations and the State of Palestine: A critical account (Leiden Journal of International Law, forthcoming). Here's the abstract:
Against the context of pending judicial proceedings between the State of Palestine and the United States of America (US) at the International Court of Justice (ICJ), this article critically examines the United Nations (UN) commitment to the international rule of law through an examination of its consideration of Palestine’s 2011 application for membership in the organization. The universality of membership of the UN is a foundation upon which the organization rests. The international law governing UN admission has accordingly been marked by a liberal, flexible and permissive interpretation of the test for membership contained in the UN Charter. In contrast, an assessment of the UN’s consideration of Palestine’s application for membership demonstrates that it was subjected to an unduly narrow, strict and resultantly flawed application of the membership criteria. An examination of the contemporaneous debates of the Council demonstrates that the main driver of this was the US, which used its legal authority as a permanent member of the Council to block Palestine’s membership. The principle argument used against membership was the US’s view that Palestine does not qualify as a state under international law. Notwithstanding, the State of Palestine has been recognized by 139 member states of the UN and has acceded to a number of treaties that furnish it with access to the ICJ. While a number of articles have been written about Palestine’s statehood, little has been written on the UN’s consideration of Palestine’s 2011 application for membership. Palestine v. USA provides a renewed opportunity to do so.

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 37, no. 2, June 2021) is out. Contents include:
  • Articles
    • Rusty Park, Johnny Veeder QC 1948–2020 From the General Editor
    • Jack Beatson, The Final Chapter of the Demise of the Pure Absolute Doctrine of State Immunity in English Law: A Swedish vignette
    • Andrea K Bjorklund, Arbitration, the World Trade Organization, and the Creation of a Multilateral Investment Court
    • Rodman Bundy, Johnny Veeder and the Barcelona Traction Case
    • Lawrence Collins, Captain Duff, the Sultan of Kelantan and Their Legacy in the Law of State Immunity and International Arbitration
    • Toby Landau, Johnny Veeder QC: 14 December 1948–8 March 2020
    • Loretta Malintoppi, Don’t Shoot the Sheriff: the Threat of Legal Claims Against Arbitrators and Arbitral Institutions
    • Pierre Mayer, Must Justice be a Goal for the Arbitrator?
    • William W Park, Swords into Plowshares: A Pilgrimage for the CSS Alabama
    • Laurence Shore & Monique Sasson, A Tribute to Johnny Veeder
    • Audley Sheppard, The Lawyer's Duty to Arbitrate in Good Faith and with Civility
    • Ruth Teitelbaum, From Lena Goldfields to Crystallex: A Proposal For Collective Financing Of Sovereign Award Debt

David, Ronen, Shany, & Weiler: Strengthening Human Rights Protections in Geneva, Israel, the West Bank and Beyond

Joseph E. David
(Sapir Academic College), Yaël Ronen (Academic Center for Science and Law), Yuval Shany (Hebrew Univ. of Jerusalem - Law), & J.H.H. Weiler (New York Univ. - Law) have published Strengthening Human Rights Protections in Geneva, Israel, the West Bank and Beyond (Cambridge Univ. Press 2021). The table of contents is here. Here's the abstract:
This collection of essays is written by some of the world's leading experts in international human rights law, and corresponds to the main junctures in the professional life of Professor David Kretzmer, a leading human right academic and practitioner. The different essays focus on contemporary human rights protection challenges. They address conceptual problems such as differences between limits and restrictions, and application of human rights standards to businesses and international organisations; legal doctrinal responses to changing realities in the field of surveillance and identity politics; the weakness of monitoring institutions engaged in standard setting; and the practical difficulties in applying international human rights law to the Israeli-Palestinian conflict in a manner sensitive to gender dimensions and the particular political dynamics of the situation. Collectively, the essays offer a rich picture of the current potential shortcomings of international human rights law in addressing complex problems of law, politics and ethics.

New Volume: Recueil des Cours

Volume 417 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 417
    • Pierre d’Argent, Les obligations internationales
    • William A. Schabas, Relationships Between International Criminal Law and Other Branches of International Law

Brinsmead: Essential Interoperability Standards: Interfacing Intellectual Property and Competition in International Economic Law

Simon Brinsmead (Office of International Law, Attorney-General’s Department, Australia) has published Essential Interoperability Standards: Interfacing Intellectual Property and Competition in International Economic Law (Cambridge Univ. Press 2021). Here's the abstract:
A new international instrument is needed to address access to interoperability standards and standards-essential intellectual property, which are critical to maintaining technological advancement and promoting cost-effective solutions for consumers. Applying law and economics methodologies, Simon Brinsmead systematically explores how international and domestic law deals with these matters. This important book includes an examination of the technical and economic nature of interoperability standards; a detailed analysis of the issues arising under intellectual property and competition law; an analysis of whether liability or exclusive property rules should apply with respect to interoperability standards and SEIP; and consideration of feasible international approaches. Finally, Brinsmead includes a draft of his proposed international soft law instrument as a starting point for future discussions in the field. Of interest to lawyers, regulators and scholars, this work offers a meaningful contribution to international governance, harmonization of laws and technological advancement.

New Volume: Recueil des Cours

Volume 416 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 416
    • Rüdiger Wolfrum, Solidarity and Community Interests: Driving Forces for the Interpretation and Development of International Law; General Course on Public International Law

Mohan & Brown: The Asian Turn in Foreign Investment

Mahdev Mohan
(Google LLC) & Chester Brown (Univ. of Sydney - Law) have published The Asian Turn in Foreign Investment (Cambridge Univ. Press 2021). The table of contents is here. Here's the abstract:
This collection critically discusses the increasing significance of Asian States in the field of international investment law and policy. Consisting of contributions authored by a leading team of scholars and practitioners of international investment law, this volume contains analyses of both national and multilateral investment law rule-making in Asia, including a critical discussion of certain States' approaches to balancing the different tension between investment protection and the preservation of States' regulatory sovereignty. It also contains thematic chapters on cutting-edge developments which are of relevance to Asia as well as the global community, such as investors' obligations of due diligence, additional transparency in treaty-based investment arbitration responses by ASEAN member States to transboundary haze pollution, and the relevance of human rights obligations in international investment law. It also contemplates future possibilities for investor-State dispute settlement, including the use of investor-State mediation in view of the Singapore Convention on Mediation.