Sivakumaran & Burne: Making and Shaping the Law of Armed Conflict

Sandesh Sivakumaran (Univ. of Cambridge - Law) & Christian R. Burne (U.S. Military Academy) have published Making and Shaping the Law of Armed Conflict (Oxford Univ. Press 2024). Here's the abstract:

How laws are created, shaped, and applied is a significant but often overlooked component of studies on armed conflict. Almost every contentious legal question involves aspects of law-making and shaping, be it the determination of a rule's scope of application, whether and how to regulate a “new” situation, or determining which sources and materials to take into account. As such, all who operate in this space - whether academic, practitioner, policy-maker, or legal advisor - must appreciate and understand the forces, factors, and actors which converge to make and shape the ever-developing law of armed conflict.

This volume brings together several key contributors to explore this making and shaping in depth. A variety of aspects of law-making and shaping are analyzed, from the methodology behind identifying principles and rules of law, to what weight should be given to the views of particular actors, to the various forums where the law is made and shaped. It examines foundational materials of the law of armed conflict including the 1949 Geneva Conventions and considers the influence of a wide scope of actors, ranging from States, the International Committee of the Red Cross, and international courts and tribunals through to expert groups, commissions of inquiry, and non-state armed groups. This volume also asks us to broaden our gaze beyond spaces where the law is traditionally created to uncover different types of making and unmaking.

McLachlan: The Principle of Systemic Integration in International Law

Campbell McLachlan (Univ. of Cambridge - Law) has published The Principle of Systemic Integration in International Law (Oxford Univ. Press 2024). Here's the abstract:

International law has greatly expanded in reach and density over the past few decades and its fragmented and decentralized nature is causing anxiety among those who need to resolve legal dilemmas in a system that lacks vertical hierarchy. Although the principle of systemic integration is embodied in Article 31(3)(c) of the Vienna Convention 1969, its operation and significance has not been fully assessed.

The Principle of Systemic Integration in International Law fills this research gap by analysing the manner in which the principle has been applied in the judicial decisions of international courts and tribunals, together with the practice of states and international organizations in the framing of international instruments and their application. Building upon the framework he first pioneered in 2005 and the culmination of two decades of academic research and practical experience in international law, the author Campbell McLachlan KC closely examines legislative texts and cases to reflect on the principle's theoretical foundations and actual application in practice.

The book argues that the principle of systemic integration contributes to an orderly framework within which conflicts between institutions and between legal norms may be addressed. It explores how disparate parts of international law are integrated in the development of bilateral and multilateral treaties and, finally, analyses the operation of the principle in international courts and tribunals.

New Issue: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre

The latest issue of the Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (Vol. 62, no. 1, 2024) is out. Contents include:

• Pauline Charlotte Janssens, Internal legitimacy as a benchmark criterion for the inclusion of NSAGs in the making of IHL
• Steven van de Put & Anne-Rixt E Siemensma, A giant leap for humankind: bridging space law and international humanitarian law
• Special Issue: The law applicable to the use of biometrics by armed forces
• Sebastian Cymutta, Steven van de Put, & Marten Zwanenburg, Introduction to the Special issue on the law applicable to the use of biometrics by armed forces
• Rigmor Argren, Protection of biometric private life under the European Convention on Human Rights and the law of armed conflict
• Yang Liu, From Russian filtration operations to the lex ferenda of belligerent occupation: how to protect biometrics and privacy in occupied territories?
• Lauren Sanders & Penny Saultry, Biometrics and new and emerging technologies – future challenges in the use of biometric data in the conduct of military operations

Wentker: Party Status to Armed Conflict in International Law

Alexander Wentker (Max Planck Institute for Comparative Public Law and International Law) has published Party Status to Armed Conflict in International Law (Oxford Univ. Press 2024). Here's the abstract:

The question of what constitutes an armed conflict has featured prominently in international law debates. However, international lawyers have paid less attention to the inextricable question of who is engaged in a conflict, focusing solely on whether there is an armed conflict.

Against this backdrop, Alexander Wentker's Party Status to Armed Conflict in International Law explores why it matters and how it is established that a State, international organization, or armed group is a party to an armed conflict. The first part of the book demonstrates that party status is central at all levels of the international legal regulation of armed conflicts, with parties to armed conflict being both key addressees of international law and central reference points for regulating individuals and third parties. In response to increasingly widespread cooperation practices, the book's second part advances an analytical framework for identifying parties to conflicts with multiple parties on the same side (or 'co-parties').

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. 26, no. 2, 2024) is out. Contents include:

• León Castellanos-Jankiewicz, A New History for Human Rights: Conflict of Laws as Adjacent Possibility
• Işıl Aral, International Lawyers as Hope Mongers: How Did We Come to Believe That Democracy Was Here to Stay?
• Benoît Saint-Cast, The Twilight of the Law of the Fairs: Inventing International Cooperation on Bankruptcies in Early Modern Europe (Lyon, 1660–1710)

Dothan: Standards of Review in International Courts

Shai Dothan (Univ. of Copenhagen - Law) has posted Standards of Review in International Courts (in Research Handbook on Accountability for Human Rights Violations, Kristin Henrard & Michelle Duin eds., forthcoming). Here's the abstract:

International human rights courts review applications brought before them by victims and these courts need to determine whether the facts they describe constitute violations of human rights norms. They fulfill this task in a world of scarce resources, under a potential threat of backlash, and without being immune from error. The decision processes of human rights courts like the European Court of Human Rights (ECtHR) take these conditions into account. Not all cases are treated the same way. The margin of appreciation doctrine allows the ECHR to defer to some state actions, and this margin can be narrowed or widened by the court. This is a doctrine of subsidiarity: it allows the ECHR to defer in some cases and intervene in others. Similar doctrines are available for other international courts. For example, the Court of Justice of the European Union (CJEU) adopted a similar doctrine of deference. There are also cases in the Inter-American Court of Human Rights (IACtHR) and the African Court of Human and Peoples’ Rights (ACtHPR) that follow the ‘margin of appreciation logic’. Even the United Nations Human Rights Committee (UN HRC) that officially rejected the margin of appreciation doctrine has ended up using similar legal techniques. The literature has investigated different ways to adjust the margin of appreciation to the standards of review that are proper in particular circumstances. Among the techniques investigated in this chapter are widening the margin of appreciation when the procedures of adjudication and legislation in the state have been adequately conducted and narrowing the margin in cases that involve a potential democratic failure — situations in which social groups are expected not to have sufficient power in representative bodies. The chapter will discuss the normative desirability as well as the political feasibility of different techniques and some criticism on the ways in which courts have applied these techniques in the past.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 28, no. 6, 2024) is out. Contents include:

• Bahram Soltani, Human rights in international law, state responsibilities and accountability mechanisms: a case study of Iran
• Haonan Yang, The social public interest in China's employment anti-discrimination laws and its realisation paths
• Elif Yazıcı Başar, How safe is the zone, and how voluntarily are the returnees? Turkey’s project for a ‘safe and dignified’ voluntary repatriation of Syrian refugees and the potential implementation of R2P on behalf of returnees
• Juan J. Garcia Blesa, Neoliberal rationality and the rhetoric of sacrifice in the construction of proportionality discourse: a case-study from the European Court of Human Rights
• Richard Middleton IV & Lauren Sullivan, Silencing the ‘Guapinol Eight’: abuse of the Honduran criminal justice system to unjustly criminalise and punish human rights defenders
• Alissa Koski, Manahil Siddiqi & Margaret E. Greene, Re-emphasizing the individual components of ‘child, early, and forced marriage’
• Johanna Nelles, Losing sight of the abuse: how and why women’s and children’s rights are violated in child contact decisions after intimate partner violence in Europe

Guntrip: Counterclaims in Investment Arbitration: Holding Foreign Investors Accountable for Violations of International Law

Edward Guntrip (Univ. of Sussex - Law) has published Counterclaims in Investment Arbitration: Holding Foreign Investors Accountable for Violations of International Law (Brill | Nijhoff 2024). Here's the abstract:

Foreign investors benefit from investment protection standards in international investment law which are enforceable in investment arbitration. However, international law does not directly bind foreign investors and investment arbitration struggles to address foreign investor misconduct. Thus, host States cannot easily claim against foreign investors for breaches of international law in investment arbitration. In Counterclaims in Investment Arbitration, Edward Guntrip illustrates how host States can use counterclaim procedures in investment arbitration to hold foreign investors accountable for misconduct that breaches international law. Based on arbitral practice, the book sets out how host States can amend their State practice and litigation strategies to enhance the effectiveness of counterclaim procedures and assesses when host States should take this course of action.

Delev: Going Forward by Staying Put: The Political Economy of Stabilizing Trade Agreements and Initiatives

Christian Delev (Univ. of Bristol - Law) has posted Going Forward by Staying Put: The Political Economy of Stabilizing Trade Agreements and Initiatives. Here's the abstract:

Increasingly, States are entering into trade agreements or negotiating initiatives which sustain Parties’ existing market access commitments and ‘behind-the-border’ regulatory barriers to trade. This article examines the political economy of such stabilizing trade agreements or initiatives (STAIs). First, it provides a functional account of what STAIs are as legal instruments and maps the formal diversity of such arrangements. Second, the article addresses how they may meaningfully support the welfare-enhancement and international security protection objectives typically pursued by international trade agreements. Finally, it shows how, unlike liberalizing trade agreements, STAIs rely on three core governance functions: i) stabilize economic actor expectations when liberalization commitments between trade partners are rebalanced, ii) facilitate regulatory and political cooperation between trade partners, and iii) create a first mover’s advantage for (coalitions of) trade partners in setting new rules of economic governance.

New Issue: Review of European, Comparative & International Environmental Law

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 33, no. 2, July 2024) is out. Contents include:

• Special Issue: Law in a hyperconnected world: Joining the dots for sustainable futures
• Katherine Owens & Hannah James, Embedding technology at the grassroots: Strategies for localising technology transfer under the UNFCCC technology mechanism
• Pasha L. Hsieh, Shaping green regionalism: New trade law approaches to environmental sustainability
• Ying Zhu, A quasi-normative conflict: Resolving the tension between investment treaties and climate action
• Tien Dat Hoang, Reassessing environmental protection in international investment agreements: The case of Vietnam
• Rachel Phang & Yaru Chia, Sustainability and the sunlight of disclosure: ESG disclosure in three Asian financial centres
• Asanka Edirisinghe & Sandie Suchet-Pearson, Nature as a sentient being: Can rivers be legal persons?
• General Articles
• Clemens Kaupa, Is it still permissible under EU law to issue new permits for oil and gas extraction?
• Mingzhe Zhu & Liyuan Fan, A comparative study of the judicial construction of scientific credibility in climate litigation
• Michael Kalis & Anna-Lena Priebe, The right to climate protection and the essentially comparable protection of fundamental rights: Applying Solange in European climate change litigation?
• Pontian Okoli & Etisang Abraham, In search of a sustainable future: A comparative assessment of climate change regimes in Nigeria and Kenya
• Lovleen Bhullar, Green public procurement of pharmaceuticals as a regulatory response to antimicrobial resistance and its compatibility with the WTO Agreement on Government Procurement
• Wen Duan & Luoyi Shen, The role of environmental impact assessments in the establishment and management of marine protected areas under the UNCLOS and the BBNJ Agreement
• Jinyuan Su & Yanan Shi, The precautionary approach and challenges posed by mega-constellations
• Case Note
• Louise du Toit, Caiphas Soyapi, & Louis J. Kotzé, David versus Goliath? Indigenous people, carbon majors and climate litigation in South Africa

Tucker: Global Discord: Values and Power in a Fractured World Order

Paul Tucker has published Global Discord: Values and Power in a Fractured World Order (Princeton Univ. Press 2024). Here's the abstract:

Can the international economic and legal system survive today’s fractured geopolitics? Democracies are facing a drawn-out contest with authoritarian states that is entangling much of public policy with global security issues. In Global Discord, Paul Tucker lays out principles for a sustainable system of international cooperation, showing how democracies can deal with China and other illiberal states without sacrificing their deepest political values. Drawing on three decades as a central banker and regulator, Tucker applies these principles to the international monetary order, including the role of the U.S. dollar, trade and investment regimes, and the financial system.

Combining history, economics, and political and legal philosophy, Tucker offers a new account of international relations. Rejecting intellectual traditions that go back to Hobbes, Kant, and Grotius, and deploying instead ideas from David Hume, Bernard Williams, and modern mechanism-design economists, Tucker describes a new kind of political realism that emphasizes power and interests without sidelining morality. Incentives must be aligned with values if institutions are to endure. The connecting tissue for a system of international cooperation, he writes, should be legitimacy, creating a world of concentric circles in which we cooperate more with those with whom we share the most and whom we fear the least.

Saliternik & Shlomo Agon: Proactive International Law

Michal Saliternik (Netanya Academic College - Law) & Sivan Shlomo Agon (Bar Ilan Univ. - Law) have published Proactive International Law (UC Law Journal, Vol. 75, no. 3, pp. 661-712). Here's the abstract:

International law is notably reactive in nature. For the most part, international norms and institutions have been devised in response to previously observed crises and incidents—be they wars, pandemics, environmental disasters, economic breakdowns, or technological advances. This Article challenges the centuries-old reactive and past-oriented approach of international law. It suggests that while the reactive paradigm has facilitated practical solutions to the concrete problems faced by the international community, this paradigm has also led international law to become backward-looking and short-sighted, thereby hindering the discipline from acting in anticipation of long-term problems and developments.

Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.

This Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda.

Draghici: Procreative Rights in International Law: Insights from the European Court of Human Rights

Carmen Draghici (City Univ. London - Law) has published Procreative Rights in International Law: Insights from the European Court of Human Rights (Cambridge Univ. Press 2024). Here's the abstract:

Draghici contends that the advent of assisted reproductive technologies has given rise to new fundamental, albeit not unqualified, rights. They include the right to use medically assisted procreation (e.g. artificial insemination, in vitro fertilisation, potentially gamete donation, posthumous conception or surrogacy) in order to become a parent (typically where natural procreation is hindered by infertility, sexual orientation, relationship status or adverse life events), the recognition of intention-based parenthood in relation to donor-conceived children jointly planned and raised with the genetic parent, and the right to pursue the conception of a healthy child (e.g. through recourse to preimplantation genetic diagnosis and embryo selection to avoid severe illness in future offspring). To substantiate this claim, the book relies on a comprehensive analysis of international case-law on procreative autonomy, contextualised by a discussion of highly divisive bioethical controversies, from the status of embryos to the morality of genetic screening and third-party reproduction.

Yip: To Call a Spade a Spade: Use of Force Depriving a People of their Right to Self-Determination as Violation of Jus Contra Bellum

Ka Lok Yip (Hamad Bin Khalifa Univ.) has posted To Call a Spade a Spade: Use of Force Depriving a People of their Right to Self-Determination as Violation of Jus Contra Bellum (Journal on the Use of Force and International Law, forthcoming). Here's the abstract:

This article argues that a use of force which deprives a self-determination entity (‘SDE’) of its right to self-determination is prohibited under both Article 2(4) of the UN Charter and customary international law, even if there may not be sufficient practice accepted as law (opinio juris) to establish that such forcible deprivation of a SDE’s right to self-determination constitutes an armed attack that entitles the SDE to the right of self-defence. The obfuscation between a prohibited use of force and an armed attack triggering the right to self-defence often fans the escalation of conflict involving a SDE which claims the right to use force in self-defence (an issue discursively over-emphasized but not actually regulated under jus contra bellum) against the original use of force which deprives the SDE of its right to self-determination (an issue discursively under-emphasized but actually prohibited by jus contra bellum).

The article also argues that a State’s use of force to occupy or subjugate a SDE to permanently prevent an armed attack from emanating from that SDE does not qualify as lawful self-defence in the absence of an actual or imminent armed attack. Even when a State uses force in the name of self-defence against attacks emanating from a SDE, such use of force cannot satisfy the necessity requirement for lawful self-defence if the State could have taken non-forcible means to avert or stop the attack that emanates from the SDE, notably by relinquishing control over the SDE in discharge of its duty to respect the SDE’s right to self- determination. Where attacks by an armed group originating from a SDE involve serious violations of international humanitarian law (‘IHL’), an argument could be made that the attacks are simply unconcerned with the SDE’s right to self-determination, could not have been averted or stopped by the State relinquishing its control over the SDE and therefore render forcible self-defence necessary. While this argument cannot be precluded upfront, neither IHL provisions nor historical precedents suggest that IHL violations per se would sever the nexus between attacks by an armed group originating from a SDE and the pursuit of the SDE’s right to self-determination.

Paine: The Functions of International Adjudication and International Environmental Litigation

Joshua Paine (Univ. of Bristol - Law) has published The Functions of International Adjudication and International Environmental Litigation (Cambridge Univ. Press 2024). Here's the abstract:

This book uses environmental disputes as a focus to develop a novel comparative analysis of the functions of international adjudication. Paine focuses on three challenges confronting international tribunals: managing change in applicable legal norms or relevant facts, determining the appropriate standard and method of review when scrutinising State conduct for compliance with international obligations, and contributing to wider processes of dispute settlement. The book compares how tribunals manage these challenges across four key sites of international adjudication: adjudication in the World Trade Organization and under the United Nations Convention on the Law of the Sea, International Court of Justice litigation, and investment treaty arbitration. It shows that while international tribunals perform several key functions in the contemporary international legal order, they are subject to significant constraints. Paine makes a genuine addition to literature on the role of international adjudication in international law which will benefit academics, practitioners, and policymakers.

Dzah: Sustainable Development, International Law, and a Turn to African Legal Cosmologies

Godwin Eli Kwadzo Dzah (Univ. of Alberta - Law) has published Sustainable Development, International Law, and a Turn to African Legal Cosmologies (Cambridge Univ. Press 2024). Here's the abstract:

This original book analyses and reimagines the concept of sustainable development in international law from a non-Western legal perspective. Built upon the intersection of law, politics, and history in the context of Africa, its peoples and their experiences, customary law and other legal cosmologies, this ground-breaking study applies a critical legal analysis to Africa's interaction with conceptualising and operationalising sustainable development. It proposes a turn to non-Western legal normativity as the foundational principle for reimagining sustainable development in international law. It highlights eco-legal philosophies and principles in remaking sustainable development where ecological integrity assumes a central focus in the reimagined conceptualisation and operationalisation of sustainable development. While this pioneering book highlights Africa as its analytical pivot, its arguments and proposals are useful beyond Africa. Connecting global discourses on nature, the environment, rights and development, Godwin Eli Kwadzo Dzah illuminates our current thinking on sustainable development in international law.

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 24, no. 1, March 2024) is out. Contents include:

• Special Issue: Supply-Side Climate Policy: Emerging Lessons and Next Steps
• Peter Newell & Angela Carter, Introduction: What next for supply-side policy?
• Peter Newell & Angela Carter, Understanding supply-side climate policies: towards an interdisciplinary framework
• Amanda Slevin & John Barry, Reconciling Ireland’s climate ambitions with climate policy and practice: challenges, contradictions and barriers
• Supply-side climate policy and fossil fuels in developing countries: a neo-Gramscian perspective Augusto Heras
• Pedro Alarcón, What next for supply-side policy in the south: emerging lessons from Ecuador’s Yasuní initiative
• Choyon Kumar Saha, Least developed countries versus fossil fuel incumbents: strategies, divisions, and barriers at the United Nations climate negotiations
• Sarah Greene & Angela V. Carter, From national ban to global climate policy renewal: Denmark’s path to leading on oil extraction phase out
• Harro van Asselt, Panagiotis Fragkos, & Kostas Fragkiadakis, The environmental and economic effects of international cooperation on restricting fossil fuel supply
• Clara McDonnell, Pension funds and fossil fuel phase-out: historical developments and limitations of pension climate strategies
• Alessandra Arcuri, Kyla Tienhaara, & Lorenzo Pellegrini, Investment law v. supply-side climate policies: insights from Rockhopper v. Italy and Lone Pine v. Canada
• Matthias KrollKjell Kühne, “Climate Bailout”: a new tool for central banks to limit the financial risk resulting from climate change
• Joyeeta Gupta, Yang Chen, & Lisa Jacobson, Applying earth system justice to phase out fossil fuels: learning from the injustice of adopting 1.5 °C over 1 °C