The nullum crimen sine lege principle is a fundamental principle of human rights, prohibiting both retroactive application of crimes as well as expansive interpretations and extensions by analogy. Yet throughout its historical evolution, from the emergence of novel crimes in the Charters of the International Military Tribunals at Nuremberg and Tokyo, to the expansive interpretations of such crimes by contemporary jurisdictions such as the ICTY, ICTR and ICC, international criminal law has been characterized by a privileging of substantive justice over the principle of legality. From filling normative lacunae to evolutionary adaptation of existing norms, the humanitarian interests underlying the criminalization of atrocities is often invoked to justify progressive jurisprudence. The paper considers whether this sensibility is a cause for celebration or a cause for concern, and whether the nullum crimen sine lege principle should be applied less strictly in the context of international criminal law.
Saturday, December 10, 2022
Akhavan: The Perils of Progressive Jurisprudence: The Nullum Crimen Sine Lege Principle in International Criminal Law
Payam Akhavan (Univ. of Toronto) has published The Perils of Progressive Jurisprudence: The Nullum Crimen Sine Lege Principle in International Criminal Law (Current Legal Problems, Vol. 75, pp. 45–70, 2022). Here's the abstract:
Devika Hovell (London School of Economics - Law) has published The Elements of International Legal Positivism (Current Legal Problems, Vol. 75, pp. 71–109, 2022). Here's the abstract:
This article contains a plea for continuing attention to the elements of international legal positivism. Using the language of ‘elements’ deliberately plays on the positivist tendency to describe the legal discipline as a legal science. Yet law’s elements differ in important ways from the usual objects of scientific inquiry. Law’s method does not seek to address the structure and behaviour of the physical world, but that of a particular society with its own political polarities, structure and functions. The fact that international law inherits its positivist method from the domestic legal context therefore presents complications. While the adoption of positivism as international law’s predominant legal method was animated in part by a desire to provide international law with the imprimatur it needs to claim credibility as a legal system, it has also served as an impediment to international law’s development in a distinctive fashion from domestic law. International law’s attachment to the positivist method has at times extended to an attachment to certain presuppositions more closely associated with the development of the modern European state. This article takes the position that it is important to engage with international legal positivism on its own terms. Part I traces the lineage of three important traditions of international legal positivism (‘social thesis’ positivism, ‘system-based’ positivism and ‘teleological’ positivism) highlighting their different emphases and in doing so identifying key elements. Part II interrogates certain presuppositions sometimes associated with these traditions and considers whether it is appropriate to rethink or re-engineer these aspects in their application to the international legal system. While positivism is sometimes associated with ‘purifying’ law as a discipline, the article takes the position that the positivist method can only endure if complemented by a rich legal, political and social discourse focused on understanding its relationship to the elements of the international legal system, in particular, international law’s community, authority and functions.
On December 13, 2022, the NUS Centre for International Law will host a webinar on “Investment Protection and Climate Change Regulatory Reform in Asia.” Details are here.
Thursday, December 8, 2022
Australian Year Book of International Law (Vol. 40, 2022) is out. Contents include:
- Fleur Johns, International Law and the Provocations of the Digital: The 2021 Annual Kirby Lecture in International Law
- Special Issue In Honour of Judge James Crawford
- Douglas Guilfoyle, Donald R Rothwell, & Margaret A Young, James Crawford: His Legacy and Impact on International Law in Australia and Globally
- Roman Kwiecień, The Formal Sources of International Law, the Relationship between Treaties and Custom, and the International Law-Making Process
- Alex Green, The Creation of States as a Cardinal Point: James Crawford’s Contribution to International Legal Scholarship
- Chhaya Bhardwaj & Abhinav Mehrotra, Crawford, TWAIL, and Sovereign Equality of States: Similarity and Differences
- Cameron Miles, James Crawford and the Law of State Immunity
- Chester Brown, The Award in Waste Management v Mexico (No 2) and Its Influence on the Minimum Standard of Treatment
- Bill Campbell & Stephanie Ierino, James Crawford and the Australian Government
- Rose Cameron & Julia Sherman, Reflections on Judge Crawford’s Contributions to the International Court of Justice
- Matthew E.K. Neuhaus & Jarrod M. Jolly, A Race and Rage for Order: Judge James Crawford’s Legacy at the International Court of Justice
- Juliette McIntyre, Crawford’s Multilateralism and the International Court of Justice
- Amy Maguire, Alexandra Garnham, Amy Elton, & Jessica Heaney, Delivering International Criminal Justice through Domestic Law? The Case of Flight MH17
Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted Digital Rights and the Outer Limits of International Human Rights Law (German Law Journal, forthcoming). Here's the abstract:
This article explores the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, the article claims that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL. Following an introduction, Part One of the article will describe the development of digital human rights, using a “three generations” typology. The Second Part will explain how new developments in the field of digital human rights coincide with broader developments in IHRL, including: the extra-territorial application of human rights, obligations on governments to actively regulate private businesses and the erosion of normative boundaries separating specific human rights treaties from other parts of IHRL and international law. These two segments are followed by concluding remarks.
TWAIL Review (no. 3, 2022) is out. Contents include:
- Yilin Wang, The Dissociation of Chinese International Law Scholars from TWAIL
- Robert Knox, Imperialism, Hypocrisy and the Politics of International Law
- Asma Atique, The Story of Masdar: ‘Sustainable Development’ for Migrant Justice?
- Perpetua Akoth Adar, Space and the Future of Humanity: A TWAIL Critique of International Space Law and Space Discourse
- Pushkar Reddy, Breaking Away from Binaries: Can TWAIL Enrich Normative Views of the ‘Race to the Bottom’?
- Jake Okechukwu Effoduh, Regulating Self-driving Cars: An African Perspective
- Vasanthi Venkates, International Casteist Governance and the Dalit Radical Tradition: Reimagining a Counter-hegemonic Transnational Legal Order
- Haris Jamil & Sujith Koonan, The State, State Practice and International Law: A Critical Examination
Wednesday, December 7, 2022
Call for Submissions: Most Interesting/Important/Influential Articles/Books of 2022 (Junior Scholars) (Reminder)
As in 2020 and 2021, I am issuing a call for submissions directed to junior scholars only (advanced PhD students and junior academics/practitioners) asking for their views on the most "interesting, important, or influential" article or book published in 2022. I will post on this blog a selection from the submissions received. The deadline is Friday, December 9. Thanks in advance to all who participate. Some rules:
- One submission per person
- The submission may recommend both an article and a book, but not more than one article and not more than one book
- The article/book must pertain to international law, though it need not have been written by a lawyer
- The article/book must have been published in the year 2022
- Include the article/book title and an internet link to the publication
- The article/book may be in any language, but the submission recommending the article/book must be in English
- Include an explanation for your choice, but not more than two paragraphs per article/book
- Self-nominations will not be accepted
- Deadline: December 9, 2022, 5:00pm Eastern Time
- Not all submissions will be posted on the ILR blog
- By submitting, you consent to the posting of your submission on the ILR blog, subject to editing
- Successful submissions will be posted the week of December 12, 2022
- Include your name, current position, and current affiliation with your submission
- Submissions should be emailed to firstname.lastname@example.org with the subject line: "ILR 2022 Interesting Article/Book Submission"
Monday, December 5, 2022
Tania Voon (Univ. of Melbourne - Law) has posted Multilateral Rules on Trade in Goods - Exceptions and Regulatory Autonomy (in The International Law of Economic Integration, Julien Chaisse & Christoph Hermann eds., forthcoming). Here's the abstract:
Focusing on the agreements on trade in goods of the World Trade Organization (WTO), Multilateral Rules on Trade in Goods – Exceptions and Regulatory Autonomy outlines various provisions that grant WTO Members discretion in conforming with WTO rules. These include general exceptions (such as Article XX of the General Agreement on Tariffs and Trade 1994 (GATT)), security exceptions (such as GATT Article XXI), exceptions for regional integration (such as GATT Article XXIV), and special and differential treatment for developing countries (eg through the Enabling Clause). These kinds of provisions are found across WTO agreements, sometimes through cross-references, and they are often strictly construed in WTO disputes. Nevertheless, together, they grant significant leeway to WTO Members in pursuing legitimate regulatory objectives while complying with WTO obligations. A final form of flexibility contained in these agreements is through interpretation (such as the interpretation of the non-discrimination obligation in Article 2.1 of the Agreement on Technical Barriers to Trade (TBT)). However, the WTO Appellate Body has provided only limited possibilities for regulatory sovereignty through this kind of interpretation.
Stone Sweet & Andenas: The Law and Politics of the General Principles of Law in the Twenty-First Century
Alec Stone Sweet (Univ. of Hong Kong - Law) & Mads Andenas (Univ. of Oslo - Law) have posted The Law and Politics of the General Principles of Law in the Twenty-First Century. Here's the abstract:
The paper argues for the centrality of GPLs [GPLs] as a primary source of international law. GPLs constitute basic building blocks of systemic coherence, both internally and between regimes. Focus on principles casts a bright light on judicial interpretation and lawmaking, the fate of the “fragmentation” of international law, and inter-court dialogue, revealing defining differences between “traditionalist” and “progressive” camps within the field of general public international law (Part II). Meanwhile the courts and tribunals of regional and specialized treaty regimes have constructed semi-autonomous domains of inter-locking principles, transcending jurisdictional boundaries and deeply altering the nature and scope of international law, and the decision-making of powerful domestic apex courts (Part V). In recent years, the law and politics of GPLs have become prominent, as the International Court of Justice (Part III) and the International Law Commission (Part IV) have joined in the process of recognizing, and contributing to, the development of principles of the international legal system. In the conclusion, we address an intractable dilemma: in developing GPLs as a means of enhancing the effectiveness of international legal systems, judges reveal gaps between state consent and control, potentially undermining their own support.
Sunday, December 4, 2022
Goettingen Journal of International Law (Vol. 12, no. 1, 2022) is out. Contents include:
- Caroline Omari Lichuma, Of Dark Clouds and Their Silver Linings: Crisis as Opportunity in the Economic and Social Rights Jurisprudence of the European Court of Human Rights
- Francis Maxwell, Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue
- Chiara Redealli, Military Intervention on Request in Jus Ad Bellum and Jus In Bello and the question of recognition of governments
- Focus Section: Regionalism in International Law
- Mattias Guyomar, Interpretation and application of the ECHR: between universalism and regionalism
- Janina Barkholdt, Is the International Law Commission Taking Regionalism Seriously (Enough)?
- Dan Yao & Mingzhe Zhu, Dynamic Belt and Road Initiative and the Global South’s Approach to Sustainability
- Lucas Carlos Lima & Loris Marotti, An Unlikely Duo? Regionalism and Jus Cogens in International Law