Most Interesting 2020: Nollkaemper, d’Aspremont, Ahlborn, Boutin, Nedeski, & Plakokefalos, with Jacobs, Guiding Principles on Shared Responsibility in International Law

The sixteenth (and final submission) in our series "Most Interesting 2020":

André Nollkaemper, Jean d’Aspremont, Christiane Ahlborn, Berenice Boutin, Nataša Nedeski, & Ilias Plakokefalos, with the collaboration of Dov Jacobs, Guiding Principles on Shared Responsibility in International Law (European Journal of International Law, Vol. 31, no. 1, pp. 15–72, February 2020)

This article contains the 15 Guiding Principles on Shared Responsibility in International Law and Commentaries to the Guiding Principles, which are drawn from the main findings of the SHARES research project on shared responsibility in international law, that was conducted at the University of Amsterdam. These Guiding Principles and Commentaries will hopefully provide guidance to practitioners, government officials, and adjudicators, and shape and influence the current scholarly debate in international law on shared responsibility. This is necessary as the existing rules of international responsibility (2001 ARSIWA and 2011 ARIO) leave room for interpretation as to who can be held responsible in case multiple states and/or international organisations contribute to an injury of a third party.

Jessica Schechinger
PhD Candidate in International Law and Tutor
University of Glasgow

Most Interesting 2020: Irving, Multi-Actor Human Rights Protection at the International Criminal Court

The fifteenth in our series "Most Interesting 2020":

Emma Irving, Multi-Actor Human Rights Protection at the International Criminal Court (Cambridge Univ. Press 2020)

This monograph explores the involvement of the ICC, ICC States Parties, and the ICC host State in the protection of individuals, shedding light on ambiguity and uncertainty concerning the protection of individuals. By setting out the relevant obligations of the different actors, the book highlights potential problems in human rights protection of individuals at the ICC and proposes ways to mitigate them. Employing a critical and unique approach, the book is incredibly valuable for scholars and policy-makers interested in human rights and international criminal justice.

Johanna Trittenbach
Research and Teaching Associate
Kalshoven-Gieskes Forum on International Humanitarian Law
Leiden University

Most Interesting 2020: Cotula, (Dis)integration in Global Resource Governance: Extractivism, Human Rights, and Investment Treaties

The fourteenth in our series "Most Interesting 2020":

Lorenzo Cotula, (Dis)integration in Global Resource Governance: Extractivism, Human Rights, and Investment Treaties (Journal of International Economic Law, Vol. 23, No. 2, pp. 431–454, June 2020)

I appreciate this article because it provides a comprehensive discussion of the inconsistencies that exist within and between national and international legal frameworks governing the exploitation of natural resources. The article contextualizes current controversies, for instance concerning the relationship between human rights and investment law, providing broader perspectives on divergent interests existing on the international, domestic and sub-national level, and identifying socio-economic linkages that are easy to miss when one studies legal questions within the boundaries of a single regime of law.

Johannes Hendrik Fahner
Researcher
University of Amsterdam
Attorney-at-Law

Most Interesting 2020: Singh, Indian Princely States and the 19th-century Transformation of the Law of Nations

The thirteenth in our series "Most Interesting 2020":

Prabhakar Singh, Indian Princely States and the 19th-century Transformation of the Law of Nations (Journal of International Dispute Settlement, Vol. 11, no. 3, pp. 365–387, September 2020)

"Indian Princely States and the 19th-century Transformation of the Law of Nations" presents an interesting and never talked about account of the nineteenth century’s 600 Indian princely states in the transformation of "the law of nations" to the "international law." Engaging into the legal and political texts reflecting the semi-sovereign status of the Mughal and Maratha regimes, the claims in the study appears to have reversed the studies in the previous decades that have overlooked, under read and undervalued such bottom-up study in international legal history through native actors. It churns out some fascinating political and financial contributions of the "princely" states (as the "civilised" called it), in universalising the "European" law of nations. The transporting of civilizational values is vehemently refuted and the artificiality of the normative scarcity in the Indian subcontinent is highlighted.

The article scrapes off the layer that glossed the (European) international legal history and reveals a consciously glorified argument of European "law of nations" to have transformed into "universal" international law resting on the pillars of political and financial costs that the semi-sovereign states bore. An ingenious claim that is made through a novel style of reading international legal history through the "imperial jurisdiction," native litigations and petitions is an unsettling line of enquiry. The tightly placed arguments in a sharp tone is novel and seems to have taken Antony Anghie’s argument in Imperialism, Sovereignty, and the Making of International Law to one step ahead. The research, the style of writing and the thought provoking arguments are sure to make the reader see the imprudence of the previous Eurocentric scholarship.

Swati Singh Parmar
Assistant Professor
Dharmashastra National Law University, Jabalpur

Most Interesting 2020: Roger, The Origins of Informality: Why the Legal Foundations of Global Governance are Shifting, and Why It Matters

The twelfth in our series "Most Interesting 2020":

Charles B. Roger, The Origins of Informality: Why the Legal Foundations of Global Governance are Shifting, and Why It Matters (Oxford Univ. Press 2020)

I consider Charles B. Roger’s book The Origins of Informality to be not only most the most interesting, but also the most important book on international law that was published in 2020. Above all, Roger’s book makes perfectly clear that any account of global governance that does not take informal international organizations into account is inherently incomplete. Especially given that most of IR scholarship on international law is still focused on formal international organizations, this is a powerful message which is bound to change our thinking about global governance. Roger’s book is so compelling because it combines clear conceptualizations and straightforward theorizing with a rigorous and systematic empirical analysis. His theory convincingly locates the origins of (the proliferation of) informal international organizations within the domestic political arenas of powerful states. By arguing that the growth of political polarization over the last decades and the emergence of the regulatory state can account for the rise of informal international organizations, Roger enables us to understand how important political trends in Western societies have been affecting the shape of global governance. Important is also that Roger’s empirical findings challenge the functionalist approach to informal international organizations which has hitherto been dominating the IR literature on this topic. In sum, my expectation is that, in a few years, The Origins of Informality will be considered to be a milestone in the literature on global governance and international law not only by me, but by the scholarly community at large.

Dr. Benjamin Faude
LSE Fellow in Global Politics
Department of Government and Department of International Relations
London School of Economics and Political Science (LSE)

Most Interesting 2020: Vanhonnaeker, Shareholders' Claims for Reflective Loss in International Investment Law

The eleventh in our series "Most Interesting 2020":

Lukas Vanhonnaeker, Shareholders' Claims for Reflective Loss in International Investment Law (Cambridge Univ. Press 2020)

The book by Lukas Vanhonnaeker puts a spotlight on a different type of “atypical” investor: shareholders. In particular, the book makes a strong case for allowing shareholders' claims for reflective loss under international investment law. It analyses the policy implications of protecting shareholders within the investment treaty regime and conducts a detailed review of the landmark cases and instruments that tackle the issue. It explains the legal and policy reasons why investment law recognizes and protects against reflective loss, and the means by which it does so. Some States, such as South Africa, have advocated restricting the availability of the investment treaty regime only for claims by the directly injured companies, which would precluding shareholders from raising claims. Indeed, many of these objections behind this position – including creating a disincentive to settle and the perils of parallel proceedings – are addressed by the author. The importance of the book stems from Vanhonnaeker’s meticulous attention to detail in laying out these objections, but also making concrete proposals as to if, and how, they can be overcome. Despite several recent tribunals that have addressed the matter, this book is among the first to comprehensively treat claims for reflective loss. Indeed, it is a must-read item for scholars and practitioners that are involving in researching or litigation such claims.

Dilini Pathirana
Faculty of Law
University of Colombo

Most Interesting 2020: McLaughlin, Defining a State-Owned Enterprise in International Investment Agreements

The tenth in our series "Most Interesting 2020" (the cover date is 2019, but the article was published in 2020):

Mark McLaughlin, Defining a State-Owned Enterprise in International Investment Agreements (ICSID Review - Foreign Investment Law Journal, Vol. 34, no. 3, pp. 595–625, Fall 2019)

Despite the growing presence of state capitalism in the global economy, a unified definition of a state-owned enterprises (SOE) continues to elude regulators and academics. McLaughlin has made a well-reasoned attempt to establish a five-criteria framework by which States can distinguish SOEs from private investors, as well as other forms of sovereign investments. The value of the contribution is in recognizing that defining SOEs is an issue of great complexity due to the difficulty in neatly expressing their characteristics in terms of the orthodox dichotomy between the private interests of foreign investors and the public interests of host States. This dilemma has already raised questions as to the legitimacy of SOEs being able to access the conventional investment regime and the potential security concerns when they pursue non-commercial policy objectives. Formulating a shared framework for defining SOEs is highly significant for both substantive and procedural issues at national and international levels. The article exposes the inherent grey areas where SOEs are defined by the “effective influence” that home governments wield over enterprises operating overseas, while also convincingly arguing that “ownership” is no longer a suitable criterion to measure state influence. He does not impose a rigid definition, nor propose reactionary solutions to a growing US/EU-China divide but provides criteria through which states can meaningfully express their different perspectives. For this reason, this article contributes to legal discourse on the protection of sovereign investments, while addressing lack of a universal definition of SOEs. Therefore, it addresses a critical gap in international investment law created by the unprecedented rise of State capitalism.

Dilini Pathirana
Faculty of Law
University of Colombo

Most Interesting 2020: Pinto, Historical Trends of Human Rights Gone Criminal

The ninth in our series "Most Interesting 2020":

Mattia Pinto, Historical Trends of Human Rights Gone Criminal (Human Rights Quarterly, Vol. 42, no. 4, pp. 729-761, 2020)

Perpetrators of human rights violations must be held criminally responsible for their conduct. How many times do we read this sentence as international lawyers? Probably too many that we do not even think of questioning it. But maybe we should. For anyone who wants to embark on this challenge, “Historical Trends of Human Rights Gone Criminal” by Mattia Pinto becomes a must-read starting point.

The article explores how, since 1970s, human rights have been used as drivers of penalty. Through a careful analysis of the interactions between the international, regional and domestic levels in this context, Pinto guides the reader through an extremely fascinating and complex historical, legal and sociological path. In doing so, he invites to reflect on the current normalisation of criminal law as one of the main tools for the protection of human rights. This paper will surely be one of those that cannot but be taken into account in dealing with the relationship between penalty and human rights.

Giulia Bosi
Ph.D. Candidate in Human Rights and Global Politics
Sant'Anna School of Advanced Studies

Most Interesting 2020: Tzouvala, Capitalism as Civilisation: A History of International Law

The eighth in our series "Most Interesting 2020":

Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge Univ. Press 2020)

This book is a true tour de force. It shows Tzouvala's admirable breadth of knowledge and sharpness of critical reflection. Tzouvala masterfully combines her fluency in cogent theoretical and critical thinking, with detailed technical understanding of ins and outs of law, and, additionally, with careful parsing of a wealth of historical materials.

This book is not only an important contribution to the critical tradition in international law, but, more importantly, to the theorizing of international law and our understanding of international law as a discipline in a historical context, more broadly. It bridges not only Marxist and TWAIL approaches, but also mainstream theorizing of international law. Her theoretical work is not, however, idealist or abstract but it is carried out through a careful and detailed historically materialist approach which is always attuned to the structures and mechanism of oppression and exploitation. This book productively updates the common disciplinary understanding of indeterminacy of international law in showing its deep links with global capitalism and imperialism. This gives the work an immense explanatory edge. Finally, Capitalism as Civilisation shows a possibility, and usefulness, of a Marxist approach to international law that does not fall prey to rigid structuralist or determinist assumptions and explanations.

The book deserves to be right up next to the other great defining works of international law of the last few decades.

Josef Ostřanský
Max Weber Fellow
European University Institute

Most Interesting 2020: Corradetti, Kant, Global Politics and Cosmopolitan Law

The seventh in our series "Most Interesting 2020":

Claudio Corradetti, Kant, Global Politics and Cosmopolitan Law: The World Republic as a Regulative Idea of Reason (Routledge 2020)

Kant, Global Politics, and Cosmopolitan Law. The World Republic as a Regulative Idea of Reason is an enlightening book for understanding the huge complexity of our contemporary political world. The book generously offers a unique lens by brilliantly reconstructing the development of international law through the fruitful key of Kant’s cosmopolitan thought and especially by proposing a novel focus on Kant’s notion of the world republic as a way of thinking in the form of ‘as if’ paradigm about international politics where the possibility of progression towards peace results from its use as a regulative idea.

Simona Tiribelli
Fulbright Fellow in Ethics of Technology
MIT Media Lab | MIT
Ph.D. candidate in Global Studies. Justice, Rights, Politics
University of Macerata | Unimc

Most Interesting 2020: Bassetti, Human Rights Bodies' Adjudication of Trans People's Rights: Shifting the Narrative from the Right to Private Life to Cruel and Inhuman or Degrading Treatment

The sixth in our series "Most Interesting 2020":

Matteo E. Bassetti, Human Rights Bodies' Adjudication of Trans People's Rights: Shifting the Narrative from the Right to Private Life to Cruel and Inhuman or Degrading Treatment (European Journal of Legal Studies, Vol. 12, no. 2, pp. 291-325, November 2020)

This article shows a beautiful and groundbreaking analysis of how human rights bodies can and must step up their game to support transgender people in their fight for legal gender recognition and how the current processs for legal gender recognition can be classified as inhuman and degrading treatment.

Juliette Wyss
CIVICUS

Most Interesting 2020: Cançado Trindade, Reflections on the Realization of Justice in the Era of Contemporary International Tribunals

The fifth in our series "Most Interesting 2020":

Antônio Augusto Cançado Trindade, Reflections on the Realization of Justice in the Era of Contemporary International Tribunals (Recueil des cours de l'Académie de La Haye, vol. 408, pp. 9-87, 2020)

Judge Cançado Trindade has always taken a somehow unconventional position regarding international justice and its theoretical foundations, object and purpose. The abovementioned Special Lecture delivered by him perfectly summarises his core ideas about that subject, as reflected in the numerous separate and dissenting opinions he had appended to the ICJ's decisions. The State-centric voluntarist positivism, as he aptly points out, is flawed and the raison d'État should undoubtedly be replaced by the raison d'humanité as the focal point of international justice (cf. pp. 67, 86, and passim). The undersigned considers that the abovementioned Special Lecture once again raises the alarm, for the sake of humanity, to reminds us that international law should, in fine, serve human values. In this regard, Judge Cançado notes the urgent need for the more enlarged "access to justice by distinct subjects of international law" (p. 85) and the further move towards compulsory jurisdiction (p. 56 and passim).

Amirhooshang Mostarshedi
PhD Student in International Law
Université Paris Nanterre

Most Interesting 2020: Sands, The Ratline: Love, Lies and Justice on the Trail of a Nazi Fugitive

The fourth in our series "Most Interesting 2020":

Philippe Sands, The Ratline: Love, Lies and Justice on the Trail of a Nazi Fugitive (Weidenfeld & Nicolson 2020)

Philippe Sands’ The Ratline: Love, Lies and Justice on the Trail of a Nazi Fugitive is a book by an international lawyer that is not exactly about international law. At least not ostensibly. Instead, it is about what international law is about. The reader follows Sands around the world, often along with Horst von Wächter, the youngest son of Otto von Wächter, the Nazi Brigadeführer who disappears following the War and whose life Sands traces and tries to understand. Sands leads readers on three journeys. First, from Austria where von Wächter was when the War ended, through the Alps where he hid for three years, and then as he continued to Rome and prepared to abscond to Argentina. Next, it is a journey that traces the final days and death of the would-be escapee, the clouded circumstances of which are set amongst an oscillating commitment to post-War accountability and the dawn of Cold War realpolitik. And finally, it is a human journey that tells the tale of a son who is unable to comprehend the totality of his father’s crimes and of the descendant of the victims who works to reconcile the fate of his own family members and so many like them. In each of these journeys we see the enduring influence of international law. Sands provides the context that is so often missing from the texts and cases that document the origins of the institutions that give international law its contemporary shape. If the mechanisms that emerged following the Second World War and now constitute the architecture of international criminal law are, in some significant part, intended to create a historical narrative, to document a horrific truth that causes so many — perpetrator, victim, witness — to avert their eyes, to misremember, or to deny, Sands tells the stories that exist in the gaps where formal accountability falls short and that are often lost to history’s willful ignorance. The Ratline raises profound legal questions about complicity and responsibility. Through the art of storytelling, it pushes beyond international law’s formal boundaries to show our discipline’s broader purpose, its persistent flaws, but also its continued relevancy and potential.

David Hughes
Trebek Postdoctoral Fellow
University of Ottawa, Faculty of Law

Most Interesting 2020: Yildiz, A Court with Many Faces: Judicial Characters and Modes of Norm Development in the European Court of Human Rights

The third in our series "Most Interesting 2020":

Ezgi Yildiz, A Court with Many Faces: Judicial Characters and Modes of Norm Development in the European Court of Human Rights (European Journal of International Law, Vol. 31, no. 1, 2020)

It is always great to read ambitious work that manages to balance a multitude of complex aspects, and still stick the landing by actually being enjoyable to read. This is one such article. Using a conceptual framework that consists both of a typology of different judicial characters, and different modes of norm development, Ezgi Yildiz shows how the European Court of Human Rights has expanded and adjusted the norms of the European Convention on Human Rights over several decades. The article combines interviews with large-scale coding and analysis of the jurisprudence of the European Court and uses a case study on the prohibition of torture case law, to show how norms change, and how these changes are affected by altering institutional features, external context, and interpretative dynamics. It is a noteworthy article that contributes to the understanding of the role international courts have in developing international law.

Martin Lolle Christensen
4th Year Doctoral Researcher in Law
European University Institute

Most Interesting 2020: d’Aspremont & Singh eds., Concepts for International Law – Contributions to Disciplinary Thought

Published in 2019, but the paperback edition came out in 2020, so on a technicality I'll allow it. (It doesn't hurt that I have a chapter in this volume.) The second in our series "Most Interesting 2020":

Jean d’Aspremont & Sahib Singh eds., Concepts for International Law – Contributions to Disciplinary Thought (Edward Elgar Publishing 2019)

Although Concepts for International Law was initially released as a hardback in 2019, the paperback has been released in 2020 and for the people who desire a physical copy to peruse, 50£ is more financially acceptable than 250£, so I think it deserve a mention. It is one of the most useful edited books on international law I have ever read, containing an inexhaustible treasure of insights on prominent concepts used in international law. It can be a daunting task for new researchers to familiarize themselves with the countless concepts being thrown around by established scholars in international legal academia. This book helps with that task. It will undoubtably become a starting point for many theses in the days to come.

Martin Lolle Christensen
4th Year Doctoral Researcher in Law
European University Institute

Most Interesting 2020: Kurz, “Hide a Fact Rather than State it”: The Holocaust, the 1940s Human Rights Surge, and the Cosmopolitan Imperative of International Law

Many thanks to all those who submitted their choices for most "interesting, important, or influential" article or book published in 2020! As a reminder, the call was open exclusively to junior scholars. Beginning today, I will post the submissions, in the order I received them. Each post will include the article and/or book and a statement from the recommender explaining the reason why they believe the article/book is interesting, important, or influential. The full series will be available at the label "Most Interesting 2020." Here's the first submission:

Nathan A. Kurz, “Hide a Fact Rather than State it”: The Holocaust, the 1940s Human Rights Surge, and the Cosmopolitan Imperative of International Law (Journal of Genocide Research, forthcoming)

The travaux préparatoires are one of the most studied documents in international legal scholarship. They are used as a means to study treaties, custom, and historical development. At the same time, we know very little about how they were produced, to what ends, and what is left out of them. Nathan Kurz makes a persuasive and powerful case for a more rigorous and critical analysis of the travaux as international legal documents - through the lens of human rights and the Holocaust in the 1940s. He demonstrates why scholars of international law need revise their understanding of the travaux as representing 'facts' and legal knowledge, and why these documents are historically problematic, with critical consequences for how we see international law today. This article, published in the Journal of Genocide Research, is highly original, innovative, and very well-researched. Highly recommended.

Boyd van Dijk
McKenzie Fellow
Melbourne Law School

Call for Submissions: Most Interesting/Important/Influential Articles/Books of 2020 (Junior Scholars) (Reminder)

A reminder: As a year-end review, 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 2020. I will post on this blog a selection from the submissions received. Thanks in advance to all who participate. Some guidelines:

• 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 2020
• 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 7, 2020, 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 14, 2020
• Include your name, current position, and current affiliation with your submission
• Submissions should be emailed to jacob.cogan@uc.edu with the subject line: "ILR 2020 Interesting Article/Book Submission"

Call for Submissions: Most Interesting/Important/Influential Articles/Books of 2020 (Junior Scholars)

As a year-end review, 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 2020. I will post on this blog a selection from the submissions received. Thanks in advance to all who participate. Some guidelines:

• 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 2020
• 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 7, 2020, 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 14, 2020
• Include your name, current position, and current affiliation with your submission
• Submissions should be emailed to jacob.cogan@uc.edu with the subject line: "ILR 2020 Interesting Article/Book Submission"