In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, which in turn derives from the Latin impune (in[not] + poena [punishment, pain]) originally the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution.
Impunity is a theme that has suffused literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. Within this context, ‘fighting impunity’ for acts of atrocity arises as among the reasons driving the establishment of international criminal courts and tribunals.
Since impunity means freedom from punishment, any conversation about impunity must involve a discussion of poena. How to punish and what does punishment mean? This Chapter undertakes a rapid-fire discourse analysis of press releases from international criminal courts and tribunals, specifically the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), so as to impressionistically gauge how these institutions understand poena. While these press releases and other documents gesture towards a multiplicity of venues that can help fight impunity, they also underscore the central, and I would argue primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. This fight, then, consolidates the courtroom, trial, and jailhouse as a synergized best practice and thereby markedly influences the institutional architecture of post-conflict justice.
This Chapter identifies a challenge to the quest of combating impunity through trials and imprisonment, namely, the reality that reducing impunity for one ‘side’ in a conflict may mean overlooking the abuses inflicted by the other ‘side’. On the other hand, and on a cautionary note, this Chapter questions what it actually would be like to live in a world without any impunity.
This Chapter is normative in that, as a matter of institutional politics, it seeks to further pluralize and diversify the range of actors and entities engaged in the fight against impunity. This Chapter argues that a starting point for this journey would be to re-imagine a broader understanding of poena as one that posits impunity as freedom from harmful consequences, recrimination, reparations, shame, or sanction. This Chapter then speculates how some post-conflict initiatives other than criminal trials might fit within this more capacious conceptualization of poena. These initiatives include informational transparency, forgetting, truth commissions, film, and reclaiming memory.
Monday, November 20, 2017
Drumbl: Impunities
Call for Submissions: Italian Yearbook/Sanctions and Restrictive Measures in International Law
Invitation to submit contributions
Italian Yearbook of International Law, Volume XXVII (2017)
The Board of Editors of the Italian Yearbook of International Law (IYIL) is now considering submissions for Volume XXVII (2017).
The Volume will be composed of a Focus on “Sanctions and Restrictive Measures in International Law”, which will address both theoretical and practical aspects of the current practice regarding sanction regimes; an Articles section, with doctrinal contributions of a general character, and a Notes and Comments section, with timely analysis of recent developments.
Manuscripts shall be submitted to the Editors by 28 February 2018, e-mail address: italianyearbook@gmail.com. Submissions shall indicate the Section (Focus, Articles or Notes and Comments) for which the manuscript should be considered. A half-page CV shall also be included. The maximum length of manuscripts is 12,000 words (including footnotes) for contributions to the Focus and Articles sections and 8,000 words (including footnotes) for the Notes and Comments. All submitted manuscripts will undergo a double-blinded review process.
Prospective contributors are encouraged to inform the Editors as soon as possible of their intention to submit a manuscript, so as to be sure that the Yearbook is still considering submissions.
Call for Papers: Comparative International Law
New Issue: African Journal of International and Comparative Law
- Romola Adeola & Frans Viljoen, The Right Not to Be Arbitrarily Displaced in Africa
- Elimma C. Ezeani & Elizabeth Williams, Regulating Corporate Directors’ Pay and Performance: A Comparative Review
- Patrick Agejo Ageh, Ethical Dilemma with Respect to CBD Regulations in Genetic Modification of Biological Resources in Cameroon
- Gerard Emmanuel Kamdem Kamga, Emergency Regimes in Cameroon: Derogations or Failures of Law?
- E. H. Ngwa Nfobin, The Francophone/Anglophone Split over Article 47 of the Constitution of the Federal Republic of Cameroon: An Abiding Malaise with an Explosive Charge
- Aniekan Iboro Ukpe, Trade Integration in a Layered System of International Law
- Richard M. Temple, African Natural Resources Agreements: Stabilisation Tricks and Traps for the Unwary
New Additions to the UN Audiovisual Library of International Law
Saturday, November 18, 2017
New Volume: Yearbook of International Environmental Law
The latest volume of the Yearbook of International Environmental Law (Vol. 26, 2015) is out. Contents include:- Sébastien Duyck, The Paris Climate Agreement and the Protection of Human Rights in a Changing Climate
- Anik Kohli, Making Sense of Transparency and Review in the Paris Agreement
- Paul Latimer & Philipp Maume, Carbon Market Regulation: Markets and Laws
- Sharaban Tahura Zaman, Exploring the Legal Nature of Nationally Determined Contributions (NDCs) under International Law
Friday, November 17, 2017
New Issue: International Journal of Refugee Law
The latest issue of the International Journal of Refugee Law (Vol. 29, no. 3, October 2017) is out. Contents include:- Laura Smith-Khan, Different in the Same Way? Language, Diversity, and Refugee Credibility
- Lindsey N Kingston, Bringing Rwandan Refugees ‘Home’: The Cessation Clause, Statelessness, and Forced Repatriation
- Maja Janmyr, No Country of Asylum: ‘Legitimizing’ Lebanon’s Rejection of the 1951 Refugee Convention
- Lili Song, Refugees or Border Residents from Myanmar? The Status of Displaced Ethnic Kachins and Kokangs in Yunnan Province, China
New Issue: Climate Law
The latest issue of Climate Law (Vol. 7, no. 4, 2017) is out. Contents include:- Maxine Burkett; Jainey Bavishi & Erin Shew, Climate Displacement, Migration, and Relocation—And the United States
- Katrina M. Wyman, United States’ Options for Receiving Cross-Border Climate Migrants
- Elizaveta Barrett Ristroph, When Climate Takes a Village: Legal Pathways toward the Relocation of Alaska Native Villages
- Jennifer J. Marlow & Lauren E. Sancken, Reimagining Relocation in a Regulatory Void: The Inadequacy of Existing US Federal and State Regulatory Responses to Kivalina’s Climate Displacement in the Alaskan Arctic
- Alice Venn, Universal Human Rights? Breaking the Institutional Barriers Facing Climate-Vulnerable Small-Island Developing States
New Issue: Nordic Journal of International Law
The latest issue of the Nordic Journal of International Law (Vol. 86, no. 4, 2017) is out. Contents include:- Vassilis P. Tzevelekos & Elena Katselli Proukaki, Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?
- Ana Lopéz Rodríguez, Robbing Peter to Pay Paul? ISDS and ICS from an EU Law Perspective
- Christophe Deprez, The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective
- Moritz Wüstenberg, Back to the Future: MFN Treatment in an Era of Protectionism
Thursday, November 16, 2017
Call for Submissions: African Yearbook on International Humanitarian Law
Call for Submissions for the African Yearbook on International Humanitarian Law
The Editorial Board of the African Yearbook on International Humanitarian Law (AYIHL), a double-blind peer review journal published by Juta Publishing (South Africa), is pleased to announce the AYIHL is now accepting submissions for the 2017 volume of the Yearbook, to be published mid-2018.
The Board invites articles (7,000-12,000 words), case notes, and shorter pieces for inclusion in the ‘Current Developments’ section (up to 4,500 words). The Board welcomes submissions that engage with the themes of international humanitarian law and policy, and particularly aspects thereof that are of relevance of the African continent, broadly construed. The Yearbook publishes research not only on international humanitarian law stricto sensu, but also international human rights law, international criminal law, and other areas of public international law relevant to the regulation of armed conflict.
All submissions are subject to double-blind peer review before an editorial decision on publication is made. Further information on the Yearbook and instructions for prospective authors are available here.
The closing date for submissions is 1 January 2018. Manuscripts must be submitted via email to Hannah.woolaver@uct.ac.za by the closing date.
Hannah Woolaver
Editor-in-Chief of the African Yearbook on International Humanitarian Law
Hannah.woolaver@uct.ac.za
Ishii: International Law and the Global Forum on Transparency and Exchange of Information for Tax Purposes
Wednesday, November 15, 2017
Mann: Maritime Legal Black Holes: Migration and Rightlessness in International Law
The article explores the trope of the “legal black hole” to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the “war on terror,” but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counter-terrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a typology of instances where persons are rendered rightless. While the two former types are characterized by de-facto rightlessness due to a violation of international law, the latter exposes a seldom-acknowledged yet crucial characteristic of international law: age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de-jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de-jure rightless is ultimately suggested as a broader research agenda for scholars of international law.
Huneeus & Urueña: Treaty Exit and Latin America's Constitutional Courts
Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court’s judgment urging the Chávez administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive’s 2013 petition to have Colombia’s acceptance of the ICJ’s jurisdiction under the Pact of Bogotá declared unconstitutional (a court legitimated treaty exit), and the Dominican Republic (DR) Constitutional Tribunal’s 2014 judgment holding that the DR’s acceptance of the jurisdiction of the Inter-American Court had been unconstitutional (a court-led treaty exit).
Each of the domestic rulings to be discussed were issued in response to an adverse judgment from an international court, and each reflects an effort to quell the international court’s impact by attacking the instrument granting jurisdiction to the court. The essay describes the episodes in context and then analyzes them as a single phenomenon. Taken together, the cases show that in the realm of treaty exit the region’s constitutional courts are drawing on constitutional law to take on a surprisingly prominent foreign affairs role.
New Issue: Review of International Studies
- Lauren Wilcox, Practising gender, queering theory
- Luca Mavelli, Governing populations through the humanitarian government of refugees: Biopolitical care and racism in the European refugee crisis
- Brieg Powel, The soldier’s tale: Problematising Foucault’s military foundations
- Roger Mac Ginty, A material turn in International Relations: the 4x4, intervention and resistance
- Jason Ralph, Jack Holland, & Kalina Zhekova, Before the vote: UK foreign policy discourse on Syria 2011–13
- Mathias Albert & Barry Buzan, On the subject matter of International Relations
- Meirav Jones & Yossi Shain, Modern sovereignty and the non-Christian, or Westphalia’s Jewish State
- Tobias Lenz & Lora Anne Viola, Legitimacy and institutional change in international organisations: a cognitive approach
- Rajan Menon & Jack L. Snyder, Buffer zones: Anachronism, power vacuum, or confidence builder?
Tuesday, November 14, 2017
AJIL Unbound Symposium: Jeffrey L. Dunoff & Mark A. Pollack's "The Judicial Trilemma"
Monday, November 13, 2017
New Issue: European Journal of International Law
The latest issue of the European Journal of International Law (Vol. 28, no. 3, August 2017) is out. Contents include:- Editorial
- JHHW, Those Who Live in Glass Houses ...; In this Issue
- Articles
- Andrew D Mitchell & James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements
- Gracia Marín Durán, Untangling the International Responsibility of the European Union and Its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model
- Sergio Puig & Anton Strezhnev, The David Effect and ISDS
- Focus: Human Rights and the ECHR
- Merris Amos, The Value of the European Court of Human Rights to the United Kingdom
- Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights
- Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights
- Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee
- Thomas Kleinlein, Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control
- Roaming Charges
- Emma Nyhan, A Window Apart
- EJIL: Debate!
- Jonathan Bonnitcha & Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights
- John Gerard Ruggie & John F Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale
- Jonathan Bonnitcha & Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Rejoinder to John Gerard Ruggie and John F. Sherman, III
- A Fresh Look at Old Cases
- William Phelan, The Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt
- Critical Review of International Governance
- Ekaterina Yahyaoui Krivenko, The ICJ and Jus Cogens through the Lens of Feminist Legal Methods
Basedow: The EU in the Global Investment Regime
The European Union (EU) has emerged as a key actor in the global investment regime since the 1980s. At the same time, international investment policy and agreements, which govern international investment liberalisation, treatment and protection through investor-to-state dispute settlement, have become increasingly contentious in the European public debate.
This book provides an accessible introduction to international investment policy and seeks to explain how the EU became an actor in the global investment regime. It offers a detailed analysis of the EU’s participation in all major trade and investment negotiations since the 1980s and EU-internal competence debates to identify the causes behind the EU’s growing role in this policy domain. Building on principal-agent and historical institutionalist models of incremental institutional change, the book shows that Commission entrepreneurship was instrumental in the emergence of the EU as a key actor in the global investment regime. It refutes business-centred liberal intergovernmental explanations, which suggest that business lobbying made the Member States accept the EU’s growing role and competence in this domain. The book lends support to supranational and challenges intergovernmental thinking on European Integration.
Sunday, November 12, 2017
New Issue: Chinese Journal of International Law
The latest issue of the Chinese Journal of International Law (Vol. 16, no. 3, September 2017) is out. Contents include:- Editorial Comment
- Zhang Xinbao, China's Strategy for International Cooperation on Cyberspace
- Articles
- Chris Whomersley, The Award on the Merits in the Case Brought by the Philippines against China Relating to the South China Sea: A Critique
- Dire Tladi, The International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters: Codification, Progressive Development or Creation of Law from Thin Air?
- Matthew Seet, Finding Reprieve: Should the Global Movement Against Capital Punishment Embrace China's Suspended Death Sentence As a Model for Other Retentionist States to Emulate?
- Asif Hameed, Some Misunderstandings about Legislation and Law
- Wenliang Zhang, Sino-Foreign Recognition and Enforcement of Judgments: A Promising "Follow-Suit" Model?
- Chronology of Practice
- Xiaohui Wu, Chronology of Practice: Chinese Practice in Public International Law in 2016
Klein et al.: The Paris Agreement on Climate Change: Analysis and Commentary
The most important climate agreement in history, the Paris Agreement on Climate Change represents the commitment of the nations of the world to address and curb climate change.Signed in December 2015, it entered into force on 4th November 2016. Countries are moving into implementation, and efforts at all levels will be needed to fulfill its ambitious goals.
The Paris Climate Agreement: Commentary and Analysis combines a comprehensive legal appraisal and critique of the new Agreement with a practical and structured commentary to all its Articles. Part I discusses the general context for the Paris Agreement, detailing the scientific, political, and social drivers behind it, providing an overview of the pre-existing regime, and tracking the history of the negotiations. It examines the evolution of key concepts such as common but differentiated responsibilities, and analyses the legal form of the Agreement and the nature of its provisions. Part II comprises individual chapters on each Article of the Agreement, with detailed commentary of the provisions which highlights central aspects from the negotiating history and the legal nature of the obligations. It describes the institutional arrangements and considerations for national implementation, providing practical advice and prospects for future development. Part III reflects on the Paris Agreement as a whole: its strengths and weaknesses, its potential for further development, and its relationship with other areas of public international law and governance.
Saturday, November 11, 2017
Ferrari: The Impact of EU Law on International Commercial Arbitration
For many years, it seemed almost a truism to state that EU law and the law of international arbitration were two very distinct areas of law that did not intersect. Most believed each area pursued its own course without impacting on the other. However, a series of matters on which the international arbitral regime and the European Union part ways and, indeed, enter into serious conflict have emerged. The chapters in The Impact of EU Law, which were initially presented at a conference hosted by NYU’s Center for Transnational Litigation, Arbitration and Commercial Law, show that these areas of law are becoming ever more interconnected and that the impact of EU law on the law of international arbitration can be felt over the course of all stages of an international arbitration, from the pre-award stage to the post-award stage--an influence further exacerbated by the dilemma of arbitral tribunals and national courts when facing conflicting mandates from the law of international arbitration and the law of the European Union. Furthermore, and the contributions in this volume make this abundantly clear, EU law has not only impacted international arbitrations seated in EU Member States, but has also influenced arbitrations seated around the world, a fact that makes The Impact of EU Law required reading for all practitioners, arbitrators and all other stakeholders in the arbitration process world-wide.
Christensen & Levi: International Practices of Criminal Justice: Social and Legal Perspectives
- Mikkel Jarle Christensen & Ron Levi, Introduction: An internationalized criminal justice: paths of law and paths of police
- Mikkel Jarle Christensen, Reunited Europe and the internationalization of criminal law: the creation and circulation of criminal law as an international governance tool
- Antoine Mégie, Displacing and replacing the criminal law within the European space
- Jamie Rowen, The transformation of legal ideas: the globalization and politicization of transitional justice in the Middle East
- Valsamis Mitsilegas, The global governance of transnational crime: implications for justice and the rule of law
- Ron Levi, Sara Dezalay & Michael Amiraslani, Prosecutorial strategies and opening statements: justifying international prosecutions from the International Military Tribunal at Nuremberg through to the International Criminal Court
- Nicola Langille & Frédéric Mégret, Red Notices and transnational police practices
- Kerstin Bree Carlson, Trading on guilt: the judicial logic of plea bargains at the ICTY and its transplant to Serbia and Bosnia
- Kirsten Campbell, The making of international criminal justice: towards a sociology of the ‘legal field’
- Mark A. Drumbl, Extracurricular international criminal law
- Michiel Luchtman & John Vervaele, Criminal investigation and prosecution by a European public prosecutor’s office in the EU: shared enforcement without procedural safeguards and judicial protection?
- Victor Peskin, Virtual trials revisited: the shifting politics of state cooperation from the UN ad hoc tribunals to the International Criminal Court
- Sigall Horovitz, Rwanda’s Kabgayi Trial between international justice and national reconciliation
- Mark Kerseten, As the pendulum swings – the revival of the hybrid tribunal
Seminar: The Gabčíkovo-Nagymaros Judgment and its Contribution to the Development of International Law
In the year of the judgment’s twentieth anniversary, the seminar aims at reassessing the way in which the case was managed, including as regards the post-judgment phase, and exploring the judgment’s impact on the Law of Sustainable Development, the Law of Treaties and the Law of International Responsibility.
New Issue: Journal on the Use of Force and International Law
- Guest Editorial Comment
- Claus Kreß & Benjamin Nußberger, Pro-democratic intervention in current international law: the case of The Gambia in January 2017
- Articles
- Matteo Tondini, The use of force in the course of maritime law enforcement operations
- Chris O’Meara, The relationship between national, unit and personal self-defence in international law: bridging the disconnect
- Francis Grimal & Jae Sundaram, Cyber warfare and autonomous self-defence
- Tobias Kliem, You can’t cyber in here, this is the War Room! A rejection of the effects doctrine on cyberwar and the use of force in international law
New Issue: Global Governance: A Review of Multilateralism and International Institutions
The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 23, no. 4, October-December 2017) is out. Contents include:- The Global Forum
- Robert C. Johansen, Developing a Grand Strategy for Peace and Human Security: Guidelines from Research, Theory, and Experience
- Abiodun Williams, The Responsibility to Protect and Institutional Change
- Articles
- Maria Beatriz Bonna Nogueira, The Promotion of LGBT Rights as International Human Rights Norms: Explaining Brazil’s Diplomatic Leadership
- Melanie H. Ram, International Organization Autonomy and Issue Emergence: The World Bank’s Roma Inclusion Agenda
- Jeremy Youde, Global Health Governance in International Society
- Hylke Dijkstra, Collusion in International Organizations: How States Benefit from the Authority of Secretariats
Friday, November 10, 2017
Lane & Hesselman: Governing Disasters: Embracing Human Rights in a Multi-Level, Multi-Duty Bearer, Disaster Governance Landscape
Abstract International and national disaster governance faces multiple challenges given the large variety and amounts of resources, skills and expertise that adequate disaster response commands. Moreover, disasters do not necessarily respect territorial boundaries, or may overwhelm the capacity of any one nation. They may therefore need a truly collective, joint, or even global effort to be overcome. Not seldom, reducing disaster risks and responding to disasters as they occur requires a sustained, concerted and coordinated effort of a broad range of actors, both public and private, acting nationally and internationally, and across the full ‘disaster cycle’. Unfortunately, disaster governance is commonly characterized as patchy, fragmented and inadequate, leading to essential protection gaps for affected communities. In order to strengthen disaster governance, this article first aims to further conceptualize the practice and challenges of ‘disaster governance’, mostly through the lens of ‘Multi-Level Governance’. Secondly, it proposes that disaster governance will greatly benefit from relevant actors more firmly embracing human rights-based approaches, particularly in the context of so-called, emerging ‘multi-duty bearer human rights regimes’.
