Thursday, November 9, 2023

Esterling: Cultural Property and International Law: Restitution, Rights and Wrongs

Shea Elizabeth Esterling (Univ. of Canterbury - Law) has published Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs (Routledge 2023). Here's the abstract:

Examining the restitution of cultural property to Indigenous Peoples in human rights law, this book offers a detailed analysis of the opportunities and constraints of international law as a tool of resistance and social transformation for marginalized groups.

In accordance with an increasing insistence on respect for diverse cultures, and through their own international mobilization, Indigenous Peoples have participated in the construction of a distinct human rights framework. Significant academic inquiry has focused on the substantive gains made by Indigenous Peoples in this context, along with its impact on a body of law that had previously denied Indigenous Peoples a basis for claims to their own cultural materials and practices. Accordingly, this book acknowledges that Indigenous Peoples, as non-state actors, have generated greater substantive and procedural legitimacy in human rights law making. Offering normative insights into the participation of non-state actors in international law making, however, it also demonstrates that, despite their significant role in constructing the legal framework of human rights in the 21st century, the participation of Indigenous Peoples continues to be structurally limited.

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 54, no. 3, 2023) is out. Contents include:
  • Camille Goodman, Harnessing the Wind Down Under: Applying the UNCLOS Framework to the Regulation of Offshore Wind by Australia and New Zealand
  • Frances Anggadi, Camille Goodman, Natalie Klein & Donald R. Rothwell, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea: Implications for the Customary International Law of the Sea
  • Angelo Goethals & Frank Maes, Decommissioning Offshore Windfarms and Grid Infrastructure: To Remove or Not to Remove? - A Belgian Law Perspective
  • Alexander Lott, Maritime Security in the Baltic and Japanese Straits From the Perspective of EEZ Corridors
  • Christine Bianco, Zenel Garcia & Bibek Chand, What Is Innocent? Freedom of Navigation Versus Coastal States’ Rights in the Law of the Sea

New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 36, no. 4, December 2023) is out. Contents include:
  • Editorial
    • Joseph Powderly & William A. Schabas, ‘A Plea of Humanity to Law’: In Memoriam for Benjamin Berell Ferencz (1920–2023)
  • International Legal Theory
    • Eric Loefflad, In search of Paulus Vladimiri: Canon, reception, and the (in)conceivability of an Eastern European ‘founding father’ of international law
    • Margot E. Salomon, Emancipating human rights: Capitalism and the common good
    • Dorothea Endres, Conceptualizing legal change as ‘norm-knitting’ through the example of the environmental human right
    • Céline Braumann, The settlement of tax disputes by the International Court of Justice
  • International Law and Practice
    • Thea Coventry, Seizing stateless smuggling vessels on the Mediterranean High Seas
    • Máté Csernus, Might contain traces of Lotus: The limits of exclusive flag state jurisdiction in the Norstar and the Enrica Lexie cases
    • Jelena von Achenbach, The global distribution of COVID-19 vaccines by the public-private partnership COVAX from a public-law perspective
    • Olivier Corten & Vaios Koutroulis, The 2022 Russian intervention in Ukraine: What is its impact on the interpretation of jus contra bellum?
    • Ori Pomson, Methodology of identifying customary international law applicable to cyber activities
    • Martin Lolle Christensen, In someone else’s words: Judicial borrowing and the semantic authority of the African Court of Human and Peoples’ Rights
  • International Court of Justice
    • James Gerard Devaney, A coherence framework for fact-finding before the International Court of Justice
  • International Criminal Courts and Tribunals
    • Patryk I. Labuda, Beyond rhetoric: Interrogating the Eurocentric critique of international criminal law’s selectivity in the wake of the 2022 Ukraine invasion
    • Jochen von Bernstorff & Enno L. Mensching, The dark legacy of Nuremberg: Inhumane air warfare, judicial desuetudo and the demise of the principle of distinction in International Humanitarian Law

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 22, no. 3, September 2023) is out. Contents include:
  • Special Section on the Russia-Ukraine Conflict
    • Xiaohui Wu, Special Section on the Russia-Ukraine Conflict: An Editorial Note
    • Rein Müllerson, On Some Geopolitical and Societal Tendencies Threatening Peace and Stability
    • Peter Hilpold, Justifying the Unjustifiable: Russia’s Aggression against Ukraine, International Law, and Carl Schmitt’s “Theory of the Greater Space” (“Großraumtheorie”)
  • Articles
    • Alexander Orakhelashvili, Multilateral Diplomacy and International Law: 19th Century Great Power Concert and the United Nations in a Comparative Perspective
    • Lucas Clover Alcolea, States as Masters of (Investment) Treaties: The Rise of Joint Interpretative Statements
    • Rutsel Silvestre J Martha & Kit De Vriese, On Their Sovereign’s Secret Service: Special Envoys Detained while in Transit
    • Yong Gan, Antisuit Injunctions in Chinese Courts

Peat & Rose: The Changing Landscape of International Law Scholarship: Do Funding Bodies Influence What We Research?

Daniel Peat (Leiden Univ. - Law) & Cecily Rose (Leiden Univ. - Law) have posted The Changing Landscape of International Law Scholarship: Do Funding Bodies Influence What We Research? (Yale Journal of International Law, forthcoming). Here's the abstract:
Why does scholarship change? The rise of diverse methods in international legal scholarship has coincided with the creation, in jurisdictions and regions around the world, of individual grant schemes operated by external funding bodies. Studies have shown that securing external funding increases both the likelihood of promotion and the chances that subsequent external funding will be secured. In this article, we explore whether international law scholars exercise “strategic anticipation” by shaping their research projects to fit those they think most likely to be funded. We analyze twenty years of data from the Dutch Research Council (Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO)) and the European Research Council (ERC) to examine whether scholars change what they research in light of funding bodies’ preferences and the character of the panels that evaluate grant proposals. Our findings provide novel insights into how international law research has changed over the past 20 years and what factors may have driven those changes. In doing so, our article contributes to the larger debate regarding the move towards interdisciplinarity and empirical research in international law scholarship, and the appropriate role of external funding bodies.

Wednesday, November 8, 2023

Shany: The Case for a New Right to a Human Decision Under International Human Rights Law

Yuval Shany (Hebrew Univ. of Jerusalem - Law ) has posted The Case for a New Right to a Human Decision Under International Human Rights Law. Here's the abstract:

This article discusses the problem of quality control for new human rights from one specific perspective – review and analysis of the actual justifications provided by norm entrepreneurs and law makers seeking to advance the recognition of new human rights through normative instruments (laws, treaties, declarations etc.) – and considers the application of this particular form of quality control to one putative digital human right – the right to a human decision. The quality control criteria presented here for evaluating the justifications proffered for new human rights - moral claims and considerations, problem analysis and broad political support - are mostly descriptive. They identify and explain how new human rights have been de facto justified in the past. They do not propose a new normative approach for how candidate human rights should be justified. In the same vein, the discussion of the right to a human decision explores mostly how such a right has actually been justified, up until now, and whether such a justification comports to the existing pattern of justificatory structures used in international human rights law.

Following these introductory remarks, Part One of the article introduces a possible framework for evaluating new candidate human rights, which is based on review of actual justifications offered in the past in connection with the recognition of new human rights. Arguably, this framework can help us to evaluate and predict whether new candidate rights are ready to attain full legal recognition as international human rights. Part Two evaluates against this framework the potential justifications for the new candidate right to a human decision (or the right not be subject to automated decision making). Part Three concludes.

Cohen: Toward Best Practices for Trade-Security Measures

Harlan Grant Cohen (Univ. of Georgia - Law) has posted Toward Best Practices for Trade-Security Measures. Here's the abstract:

The global economy is increasingly being weaponized. Citing security concerns from traditional defense to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation and/or rebalancing lack clear answers and seem almost theoretical.

Once, we might have hoped the WTO would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO deliberative processes have ground to a halt.

This essay argues for a new approach, focused less on adjudicating security disputes than on developing best practices for invoking and using trade security measures. It explains why a new approach is necessary, detailing both how the WTO’s deliberative engine broke down and why dispute settlement is ill-suited to develop guidance now needed. It suggests where and how best practices might be developed, before considering an agenda for such a best practice process. In the end, the hope is a process that can develop expectations - expectations that might make a world of economic statecraft a bit less dangerous.

Benvenisti: How the Power of the Idea Disempowered the Law: Understanding the Resilience of the Law of International Organisations

Eyal Benvenisti (Univ. of Cambridge - Law) has posted How the Power of the Idea Disempowered the Law: Understanding the Resilience of the Law of International Organisations. Here's the abstract:
Since the 1920s, international Organisations (IOs) were enthusiastically lauded as the ideal means to resolve international conflicts and promote global welfare. Sharing this enthusiasm, international and national courts adopted a deferential attitude toward IOs. The law they developed was premised on an unquestioning assumption that IOs’ subjection to legal accountability would be unnecessary and even counterproductive. In this Article, I delve into the ideology that inspired this law, and argue that the strong ideological support, expressed in all relevant academic disciplines, has lent seemingly scientific credibility to a law that relieved IOs from the requirements of the rule of law.

New Issue: Journal on the Use of Force and International Law

The latest issue of the Journal on the Use of Force and International Law (Vol. 10, no. 2, 2023) is out. Contents include:
  • Anne Peters, The war in Ukraine and legal limitations on Russian vetoes
  • Christian Schaller, When aid or assistance in the use of force turns into an indirect use of force
  • Svenja Raube, Anticipatory consent to military intervention: analysis in the wake of the coup d’état in Niger in 2023*
  • Russell Buchan & Nicholas Tsagourias, Intervention by invitation and the scope of state consent
  • Florian Kriener & Leonie Brassat, Quashing protests abroad: The CSTO’s intervention in Kazakhstan
  • Agata Kleczkowska & Seyfullah Hasar, Digest of state practice: 1 January – 30 June 2023

Tuesday, November 7, 2023

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 30, no. 4, 2023) is out. Contents include:
  • Allard Duursma, Corinne Bara, Nina Wilén, Sara Hellmüller, John Karlsrud, Kseniya Oksamytna, Janek Bruker, Susanna Campbell, Salvator Cusimano, Marco Donati, Han Dorussen, Dirk Druet, Valentin Geier, Marine Epiney, Valentin Geier, Linnéa Gelot, Dennis Gyllensporre, Annick Hiensch, Lisa Hultman, Charles T. Hunt, Rajkumar Cheney Krishnan, Patryk I. Labuda, Sascha Langenbach, Annika Hilding Norberg, Alexandra Novosseloff, Daniel Oriesek, Emily Paddon Rhoads, Francesco Re, Jenna Russo, Melanie Sauter, Hannah Smidt, Ueli Staeger & Andreas Wenger, UN Peacekeeping at 75: Achievements, Challenges, and Prospects
  • Stephen McLoughlin, Jess Gifkins & Alex J. Bellamy, The Evolution of Mass Atrocity Early Warning in the UN Secretariat: Fit for Purpose?
  • Alexandra Novosseloff & Richard Gowan, The Security Council Diplomacy and the Strengthened UNIFIL, 2006

Monday, November 6, 2023

New Issue: Journal of the History of International Law / Revue d'histoire du droit international

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 25, no. 3, 2023) is out. Contents include:
  • Raphael Schäfer & Maren Körsmeier, Spotlight Interview 2022: Annabel Brett, Use, War, and Commercial Society. Changing Paradigms of Human Relations with Animals in the Early Modern Law of Nature and of Nations (JHIL 1/2022)
  • Jochen von Bernstorff & Max Mayer, The Historical School and German International Legal Thought in the 19th Century
  • Despina-Georgia Konstantinakou, Past and Present? Greece in International Arbitration in the Twentieth Century
  • Ralph Wilde, Tears of the Olive Trees: Mandatory Palestine, the UK, and Reparations for Colonialism in International Law
  • Pablo del Hierro & Lucas Lixinski, Writing a Transnational (Global?) History of Extradition Law in the Short Twentieth Century: Beyond Western-Centric Approaches

Prieto Rudolphy: War and Coercion

Marcela Prieto Rudolphy (Univ. of Southern California - Law) has posted War and Coercion (Southern California Law Review, forthcoming). Here's the abstract:

Compelled service in hostile forces is prohibited by International Humanitarian Law (IHL). In fact, in the context of an international armed conflict, it is a war crime to compel prisoners of war or other protected persons to serve in the forces of a hostile power and to compel participation in military operations against the person’s own country or forces. However, conscription—or compelled service in military forces—of a state’s own citizens is not prohibited under international law. In fact, conscription, some aspects of which are regulated by International Human Rights Law, is generally legitimate.

This asymmetry—whereby compelling protected persons to fight or serve in the forces of a hostile power is a war crime, but compelling one’s own citizens isn’t—has puzzling implications. Take the example of Russia’s invasion of Ukraine. It is a war crime for Ukraine to compel Russian prisoners of war to fight on behalf of Ukraine, even though Ukraine is fighting a lawful war of self-defense. Yet, it is not a war crime for Russia to compel its own citizens to fight, even though Russia is fighting an unlawful war of aggression.

Can we make moral sense of this asymmetric regime regarding compelled service in armed forces? Is the regime morally coherent? In order to make moral sense of the regime, two arguments must succeed. First, we must argue that it matters greatly whether individuals are compelled to fight in hostile forces or in the armed forces of their own state. Second, we must argue that the nature of the war they are compelled to serve in—whether the war is legal or illegal—does not matter at all.

The article argues that the second argument cannot but fail, but it is possible to argue that compelled service in hostile forces is morally wrong and often morally worse than compelled service in the armed forces of one’s own state. It is morally worse because it is morally worse to harm those who are vulnerable and defenseless, like those who have fallen into the hands of a party to the conflict. And it is morally wrong because non-citizens lack duties to fight on behalf of other states. However, what makes compelled service in hostile forces morally wrong also makes conscription morally wrong. That is, what is wrong about compelled service in hostile forces is also present in the state’s conscription of its own citizens.

This article thus argues that the current regime concerning compelled service in armed forces is, in fact, morally incoherent. To render the regime morally coherent, international law should (1) appropriately distinguish between conscription to serve in legal wars and conscription to serve in illegal wars, and (2) generally prohibit compelled service in armed forces.

Conference: Sustainable Development as Fundamental Pillar of Economic Governance and Public Affairs

On November 9-10, 2023, a conference on "Sustainable Development as Fundamental Pillar of Economic Governance and Public Affairs" will take place in Ravenna. The program is here.

Call for Papers: Asian Society of International Law Intersessional Conference 2024

The Asian Society of International Law Intersessional Conference 2024 will be co-hosted by Narxoz University and KIMEP University, in Almaty, on May 24-25, 2024. The theme is: "Asia and International Law: Historical Legacy and Progressive Development." The Conference will be preceded by an online Junior Scholar Workshop on May 23, 2024. The call is here.

Sunday, November 5, 2023

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 23, no. 4, 2023) is out. Contents include:
  • Rosemary Grey & Rachel Killean, Communicating Justice: Cambodian Press Coverage of the ECCC’s Final Judgment
  • Giel Verhagen, Brothers in Arms? The Selection and Prioritisation of Core International Crimes and Terrorism in the Netherlands
  • Robert Muharremi, From Organ Trafficking to the Kosovo Specialist Chambers: A Case Study on How Strategic Narratives Influence International Criminal Justice
  • Megumi Ochi, Taking Illegal Amnesties Seriously: Threefold Approach to the Admissibility Test before the International Criminal Court
  • Windell Nortje, The Sexual Abuse of African Boy Soldiers by Male and Female Offenders: the Need for an International Criminal Law Response
  • Volodymyr A. Shatilo, Sergiy O. Kharytonov, Volodymyr M. Kovbasa, Andrii V. Svintsytskyi, & Andrii M. Lyseiuk, Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia’s Armed Aggression Against Ukraine
  • Destaw A. Yigzaw, The Case for Removing the Security Council’s Powers from the International Criminal Court

Donders & Plozza: Look before You Leap: States’ Prevention and Anticipation Duties under the Right to Science

Yvonne Donders (Univ. of Amsterdam - Law) & Monika Plozza (Univ. of Lucerne) have posted Look before You Leap: States’ Prevention and Anticipation Duties under the Right to Science (International Journal of Human Rights, forthcoming). Here's the abstract:
States have under the right to science an obligation to prevent or mitigate harm of scientific progress and its applications. This obligation is derived from the right to be protected against the harmful effects of scientific progress and its applications, a dimension of the right to science. However, preventing the harmful effects of scientific progress and its applications can sometimes conflict with other human rights or with scientific freedom, which is also part of the right to science. In such cases, limitations on one right might be required to protect another, whereby the different interests need to be properly balanced. While the duty to prevent harm is well established in international human rights law, it is yet obscure if the anticipation of potential harms to come is possible under the existing framework of international law. While not a legal concept, entry points for anticipation are already covered under the current international law and can be drawn together by a cross-fertilisation of the obligation to prevent, the precautionary principle and due diligence. The precautionary principle and due diligence can provide guidance on when and under what circumstances situations for anticipation are triggered and conducted. Both concepts involve a necessity and proportionality test, which is also inherent to limitations under international human rights law.

Wasiński: Three Lives of International Lawyers and the War Unleashed

Marek Jan Wasiński (Univ. of Lodz - Law) has posted Three Lives of International Lawyers and the War Unleashed (Myśl Polityczna. Political Thought, no. 1(17)/2023). Here's the abstract:
The article encourages self-refection on the teaching, research, and practice of international law. Three alternative biographies of the main character in Das Glasperlenspiel (The Glass Bead Game) by Hermann Hesse provide starting points for considering the possible ways in which international lawyers contributed to the Russian aggression against Ukraine. The author argues that transformation, deformalization, and instrumentalization have led to the weaponization of ius contra bellum. Russian aggression against Ukraine has also been interpreted as part of broader opposition against international institutions, internationalization and globalization.