Joyner: Why I Stopped Believing in Customary International Law

Daniel Joyner (Univ. of Alabama - Law) has posted Why I Stopped Believing in Customary International Law (Asian Journal of International Law, forthcoming). Here's the abstract:

There has been a recent proliferation of scholarly treatment on the development, identification, and determination of customary international law (CIL), in response to the International Law Commission’s work program on this topic, which it began in 2012. Much of this scholarship has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. At the same time, there are influential voices who argue that, notwithstanding these problems, some of which they contend are overstated, CIL nevertheless continues to play a practically useful and necessary role in the international legal system, and that there is nothing fundamentally wrong with the orthodox process for identifying CIL. This article maintains that the problems which have been identified by scholars in the processes of identification and determination of CIL, and their implication for the international legal system, are of such a serious and institutionalized nature as to give rise to a presumptive distrust of any statement about what is or is not a rule of CIL. It argues that if CIL is going to retain its place as a source of international legal obligation, the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.

Jackson & O'Malley: The Institution of International Order: From the League of Nations to the United Nations

Simon Jackson (Univ. of Birmingham - History) & Alanna O'Malley (Leiden Univ. - History and International Relations) have published The Institution of International Order: From the League of Nations to the United Nations (Routledge 2018). Contents include:

• Susan Pedersen, Foreword: From the League of Nations to the United Nations.
• Simon Jackson & Alanna O’Malley, Introduction: Rocking on its Hinges? The League of Nations, the United Nations and the New History of Internationalism in the Twentieth Century.
• Andrew Arsan, ‘He Tampers with the Source of Life itself who Tampers with Freedom’: Personhood, the State, and the International Community in the Thought of Charles Malik.
• José Antonio Sánchez Román, From the Tigris to the Amazon: Peripheral Expertise, Impossible Cooperation and Economic Multilateralism at the League of Nations, 1920-1946.
• Mats Ingulstad & Lucas Lixinski, Pan-American Exceptionalism: Regional International Law as a Challenge to International Institutions.
• Nathan A. Kurz, Jewish Memory and the Human Right to Petition, 1933-1953.
• Florian Hannig, The 1971 East Pakistan Crisis and the Origins of the UN’s Engagement with Humanitarian Aid.
• Nova Robinson, "Women’s point of view was apt to be forgotten": The Liaison Committee of International Women’s Organizations’ Campaign for an International Women’s Convention, 1920-1953.
• Sarah Shields, The League of Nations and the Transformation of Representation: Sectarianism, Consociationalism, and the Middle East.
• Konrad M. Lawson, Reimagining the Postwar International Order: The World Federalism of Ozaki Yukio and Kagawa Toyohiko.
• Miguel Bandeira Jerónimo & José Pedro Monteiro, Internationalism and Empire: The Question of Native Labour in the Portuguese Empire (1929­1962).
• Ryan Irwin, Epilogue

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 25, no. 4, 2018) is out. Contents include:

• Haldun Yalçınkaya, Emre Hatipoglu, Dilaver Arıkan Açar & Mitat Çelikpala, Turkish Efforts in Peacekeeping and the Introduction of the TUBAKOV Dataset: An Exploratory Analysis
• Paolo Foradori, Cops in Foreign Lands: Italy’s Role in International Policing
• Yf Reykers, Holding Accountable UN-Authorized Enforcement Operations: Tracing Accountability Mechanisms
• Megan Bastick & Claire Duncanson, Agents of Change? Gender Advisors in NATO Militaries

Alter: The Contested Authority and Legitimacy of International Law: The State Strikes Back

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Contested Authority and Legitimacy of International Law: The State Strikes Back (in Beyond Anarchy: Rule and Authority in the International System, Christopher Daase & Nicole Dietelhoff eds., forthcoming). Here's the abstract:

Written to engage IR theory debates, this chapter argues that the crafting, invocation, interpretation and application of international law are a primary means through which states collectively rule and contest politics in international relations today. Yet since international law (IL) draws its legitimacy and authority from public affirmations of and diffuse support for the rule of law, public support for the rule of law is a permissive condition for IL to be politically constraining. After explaining how national and transnational legal practices constitute international law’s de facto authority, the chapter explores both ordinary and extraordinary contestations of IL authority. Ordinary contestation takes place within a legal field, when lawyers, stakeholders, judges and government officials debate and contest over the meaning of international law. Political tactics are also part of ordinary contestation, but because the curators of IL authority are transnational, a state may be unable to impose its preferred IL interpretation. Where states fail to impose a preferred interpretation, three extra-ordinary contestation strategies can be used to escape IL authority: 1) states can seek to replace international law’s authority with domestic law’s authority; 2) states can pit different international laws against each other by maneuvering within and around international regime complexes; and (3) states can attack the legitimacy and authority of international law altogether. Where authority challenges enhance IL accountability, they are to be welcome. But each strategy can also be used to tear at the fabric of IL authority, potentially undermining the permissive conditions that make IL both constraining and effective.

Killean: Victims, Atrocity and International Criminal Justice: Lessons from Cambodia

Rachel Killean (Queen's Univ. Belfast - Law) has published Victims, Atrocity and International Criminal Justice: Lessons from Cambodia (Routledge 2018). Here's the abstract:

While international criminal courts have often been declared as bringing ‘justice’ to victims, their procedures and outcomes historically showed little reflection of the needs and interests of victims themselves. This situation has changed significantly over the last sixty years; victims are increasingly acknowledged as having various ‘rights’, while their need for justice has been deployed as a means of justifying the establishment of international criminal courts. However, it is arguable that the goals of political and legal elites continue to be given precedence, and the ability of courts to deliver ‘justice to victims’ remains contested. This book contributes to this important debate through an examination of the role of victims as civil parties within the Extraordinary Chambers in the Courts of Cambodia. Drawing on a series of interviews with civil parties, court practitioners and civil society actors, the book explores the way in which both the ECCC and the role of victims within it are shaped by specific political, economic and legal contexts; examining the ‘gap’ between the legitimising value of the ‘imagined victim’, and the extent to which victims are able to further their interests within the courtroom.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 94, no. 4, July 2018) is out. Contents include:

• Japan's Pivot in Asia
• Richard J. Samuels & Corey Wallace, Introduction: Japan's pivot in Asia
• Shogo Suzuki & Corey Wallace, Explaining Japan's response to geopolitical vulnerability
• Alexandra Sakaki & Junya Nishino, Japan's South Korea predicament
• Bjørn Elias Mikalsen Grønning, Operational and industrial military integration: extending the frontiers of the Japan–US alliance
• Mayumi Fukushima & Richard J. Samuels, Japan's National Security Council: filling the whole of government?
• Takako Hikotani, The Japanese Diet and defence policy-making
• Tomohiko Satake & John Hemmings, Japan–Australia security cooperation in the bilateral and multilateral contexts
• Rohan Mukherjee, Japan's strategic outreach to India and the prospects of a Japan–India alliance
• James D. J. Brown, Japan's security cooperation with Russia: neutralizing the threat of a China–Russia united front
• Corey Wallace, Leaving (north-east) Asia? Japan's southern strategy
• Masanori Nishi, Reflections of a practitioner: strategic adaptation in Japan since the 1970s

Bacchus: The Willing World: Shaping and Sharing a Sustainable Global Prosperity

James Bacchus (Univ. of Central Florida; formerly, Appellate Body, World Trade Organization) has published The Willing World: Shaping and Sharing a Sustainable Global Prosperity (Cambridge Univ. Press 2018). Here's the abstract:

In this time of unwillingness, the right kinds of global solutions are needed now more than ever. Climate change is here and intensifying. Anxieties over economic globalization grip many in the fear of change. While these fearful have turned inward into unwillingness, the world's willing are working harder than ever for international and other cooperative solutions. James Bacchus explains why most of the solutions we need must be found in local and regional partnerships of the willing that can be scaled up and linked up worldwide. This can only be achieved within new and enhanced enabling frameworks of global and other international rules that are upheld through the international rule of law. To succeed, these rules and frameworks must for the first time see and treat economy and environment as one. The Willing World explains how best we can build the right legal structure to attain our global goals - and summon and inspire the willingness needed to do it.

Lattimer & Sands: The Grey Zone: Civilian Protection Between Human Rights and the Laws of War

Mark Lattimer (Ceasefire Centre for Civilian Rights) & Philippe Sands (Univ. College London - Law) have published The Grey Zone: Civilian Protection Between Human Rights and the Laws of War (Hart Publishing 2018). Contents include:

• Emily Crawford, Who Is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities
• Mark Lattimer, The Duty in International Law to Investigate Civilian Deaths in Armed Conflict
• Amichai Cohen, Protection by Process: Implementing the Principle of Proportionality in Contemporary Armed Conflicts
• Stuart Casey-Maslen, Regulating Armed Drones and Other Emerging Weapons Technologies
• Pavle Kilibarda & Gloria Gaggioli, The Globalisation of Non-International Armed Conflicts
• Françoise J Hampson, Administrative Detention in Non-International Armed Conflicts
• Lois Moore & Christine Chinkin, The Crime of Rape in Military and Civilian Jurisdictions
• Carla Ferstman, The Right to Reparation for Victims of Armed Conflict
• Sharon Weill, Arguing International Humanitarian Law Standards in National Courts-A Spectrum of Expectations
• Bill Bowring, The Death of Lex Specialis? Regional Human Rights Mechanisms and the Protection of Civilians in Armed Conflict
• Cedric Ryngaert, Extraterritorial Obligations under Human Rights Law
• Liesbeth Zegveld, What Duties Do Peacekeepers Owe Civilians? Lessons from the Nuhanovic Case
• Blinne Ní Ghrálaigh, Civilian Protection and the Arms Trade Treaty
• Valentin Zellweger & François Voeffray, A Path Towards Greater Respect for International Humanitarian Law
• Jennifer M Welsh, The Responsibility to Protect and Non-State Armed Groups
• Carrie McDougall, Protecting Civilians by Criminalising the Most Serious Forms of the Illegal Use of Force: Activating the International Criminal Court's Jurisdiction over the Crime of Aggression
• Leila Nadya Sadat, Elements and Innovations in a New Global Treaty on Crimes Against Humanity

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 52, no. 4, 2018) is out. Contents include:

• Bradly J. Condon, Captain America and the Tarnishing of the Crown: The Feud Between the WTO Appellate Body and the USA
• Linda J. Allen, Reassessing the ‘Green’ in NAFTA/li>
• Mark S. Langevin, Foot Dragging or Strategic Withdrawal? The Cotton Dispute and Executive Compliance
• Martín Molinuevo, Brexit: Trade Governance and Legal Implications for Third Countries/li>
• Guy Harpaz, The Front Polisario Verdict and the Gap Between the EU’s Trade Treatment of Western Sahara and Its Treatment of the Occupied Palestinian Territories/li>
• Bashar H. Malkawi & Joel Slawotsky, The League of Arab States Trade Boycott of Israel a Passé: Time for Renewed Debate/li>
• Elena Cima, Promoting Renewable Energy Through FTAs? The Legal Implications of a New Generation of Trade Agreements

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 19, no. 4, 2018) is out. Contents include:

• Patrick Dumberry, State Succession to State Contracts: A New Framework of Analysis for an Unexplored Question
• Robert W. Schwieder, Legal Aid and Investment Treaty Disputes: Lessons Learned from the Advisory Centre on WTO Law and Investment Experiences
• Kristen E. Boon, Investment Treaty Arbitration: Making a Place for Small Claims
• Panagiotis A. Kyriakou, Mitigating the Risks Entailed in Shareholders’ Claims for Reflective Loss: Suggestions for Investment Treaty Reform
• Seljan Verdiyeva, The Eurasian Economic Union: Problems and Prospects

Conference: Le traité de Versailles : Regards franco-allemands en droit international à l'occasion du centenaire

On September 28-29, 2018, the Centre des études internationales et européennes at the Université de Strasbourg will hold a conference on "Le traité de Versailles : Regards franco-allemands en droit international à l'occasion du centenaire / The Versailles Treaty: French and German Perspectives in International Law on the Occasion of the Centenary." The program is here. Preceding the conference, on September 26-27, there will be a Young Researchers Workshop on the subject of "Le principe d’autodétermination un siècle après le traité de Versailles : d’hier à aujourd’hui – et demain ? / Das Selbstbestimmungsprinzip ein Jahrhundert nach dem Versailler Vertrag: Von gestern bis heute - und morgen?" The program is here.

Macak: Internationalized Armed Conflicts in International Law

Kubo Macak (Univ. of Exeter - Law) has published Internationalized Armed Conflicts in International Law (Oxford Univ. Press 2018). Here's the abstract:

This book provides the first comprehensive analysis of factors that transform a prima facie non-international armed conflict (NIAC) into an international armed conflict (IAC) and the consequences that follow from this process of internationalization. It examines in detail the historical development as well as the current state of the relevant rules of international humanitarian law. The discussion is grounded in general international law, complemented with abundant references to case law, and illustrated by examples from twentieth and twenty-first century armed conflicts.

In Part I, the book puts forward a thorough catalogue of modalities of conflict internationalization that includes outside intervention, State dissolution, and recognition of belligerency. It then specifically considers the legal qualification of complex situations that feature more than two conflict parties and contrasts the mechanism of internationalization of armed conflicts with the reverse process of de-internationalization.

Part II of the book challenges the conventional wisdom that members of non-State armed groups do not normally benefit from combatant status. It argues that the majority of fighters belonging to non-State armed groups in most types of internationalized armed conflicts are in fact eligible for combatant status.

Finally, Part III turns to belligerent occupation, traditionally understood as a leading example of a notion that cannot be transposed to armed conflicts occurring in the territory of a single State. By contrast, the book argues in favour of the applicability of the law of belligerent occupation to internationalized armed conflicts.

Ruiz Abou-Nigm, McCall-Smith, & French: Linkages and Boundaries in Private and Public International Law

Veronica Ruiz Abou-Nigm (Univ. of Edinburgh - Law), Kasey McCall-Smith (Univ. of Edinburgh - Law), & Duncan French (Univ. of Lincoln - Law) have published Linkages and Boundaries in Private and Public International Law (Hart Publishing 2018). Contents include:

• Verónica Ruiz Abou-Nigm, Kasey McCall-Smith & Duncan French, Introduction: Systemic Dialogue: Identifying Commonalities and Exploring Linkages in Private and Public International Law
• Alex Mills, Connecting Public and Private International Law
• Jean d'Aspremont & Francesco Giglio, Windows in International Law
• Kirsty J Hood, 'International' Rules in an Internal Setting
• Duncan French & Verónica Ruiz Abou-Nigm, Jurisdiction: Betwixt Unilateralism and Global Coordination
• Richard Collins & María Mercedes Albornoz, On the Dwindling Divide between the Public and Private: The Role of Soft Law Instruments in Global Governance
• María Blanca Noodt Taquela & Ana María Daza-Clark, The Role of Global Values in the Evaluation of Public Policy in International Investment and Commercial Arbitration
• Kasey McCall-Smith & Andreas Rühmkorf, Reconciling Human Rights and Supply Chain Management through Corporate Social Responsibility
• Elisa Morgera & Lorna Gillies, Realising the Objectives of Public International Environmental Law through Private Contracts: The Need for a Dialogue with Private International Law Scholars
• Sharon E Foster, International Investment Arbitration and the Arduous Route to Transparency
• Dimitrios Kagiaros & Amanda Wyper, Protecting Whistleblowers: The Roles of Public and Private International Law

Chehtman: International Law and Constitutional Law in Latin America

Alejandro Chehtman (Universidad Torcuato Di Tella - Law) has posted International Law and Constitutional Law in Latin America (in The Oxford Handbook of Constitutional Law in Latin America, Conrado Hübner Mendes & Roberto Gargarella eds., forthcoming). Here's the abstract:

This contribution examines the relationship between international law and domestic law in Latin America. It assesses whether international norms can be validly invoked before local authorities, what the hierarchy conferred upon them is, as well as the status of decisions and other pronouncements by supranational bodies, most notably those of the Inter-American System. All in all, it documents the increasing importance that international law has achieved within Latin American legal systems since the wave of Constitutional reforms that started in the mid-1980s. In this context, it highlights the privileged status generally conferred upon international human rights law, within domestic constitutional systems, by means of its constitutionalization. However, on the basis of three cases-studies on Argentina, Mexico and Colombia, this contribution shows that in practice domestic authorities have had a zigzagging attitude vis-à-vis the hierarchy and applicability of international human rights norms, particularly with respect to the decisions of the Inter-American Court of Human Rights. Ultimately, I argue that this particular feature can be explained neither by the relevant legal provisions in the American Convention on Human Rights or in the national Constitutions, nor through the expansive jurisprudence of the Inter-American Court of Human Rights. Rather, the best explanation for it is through the political needs of local high courts at different times. Nevertheless, this ultimately shows that despite what all of these courts state in their jurisprudence, we lack an adequate model to regulate the specific terms of the relationship between domestic courts and their supranational counterparts.

Shaffer: Retooling Trade Agreements for Social Inclusion

Gregory Shaffer (Univ. of California, Irvine - Law) has posted Retooling Trade Agreements for Social Inclusion (University of Illinois Law Review, forthcoming). Here's the abstract:

International trade law has been oblivious to social inclusion. It is not the reason for the weakening of the U.S. economy and entrenchments of poverty, but it is nevertheless blamed for them, including the shuttering of factories, joblessness, and even homelessness. Although it is not primarily to blame, it is not wholly innocent either. International trade law plays a powerful role in fomenting the conditions under which people may thrive, implicating social equality and inclusion. This Article addresses why international trade law needs to be structured in ways that support social inclusion if society is to turn the tide against rising neo-nationalism, racism, and authoritarianism. The impacts of trade and rapid technological change on income inequality and the security of work have become politically salient issues in the United States and Europe. They have led to the rise of nativist political parties that threaten to upset the international institutional framework. The outcome could be dire. The Article shows how international economic law can and should be retooled. By doing so, it can: (i) help combat harmful tax competition, avoidance, and evasion; (ii) aid domestic social security and job retraining; (iii) support labor protection; (iv) deter social dumping; and (v) enable industrial policy experimentation for development.

Ambos: Wirtschaftsvölkerstrafrecht: Grundlagen der völkerstrafrechtlichen Verantwortlichkeit von Unternehmen

Kai Ambos (Universität Göttingen - Law) has published Wirtschaftsvölkerstrafrecht: Grundlagen der völkerstrafrechtlichen Verantwortlichkeit von Unternehmen (Duncker & Humblot 2018). Here's the abstract:

Die Frage der strafrechtlichen Haftung transnationaler Wirtschaftsunternehmen für völkerrechtliche Verbrechen gewinnt zunehmend an Bedeutung. Nach begrifflichen Vorbemerkungen werden zunächst die Formen der Unternehmensbeteiligung an solchen Verbrechen sowie die Praxis seit Nürnberg dargestellt. Dieser lässt sich eine Tendenz zur Unternehmungshaftung entnehmen. Aus diesem Grund und weil Unternehmen letztlich durch ihre Mitarbeiter handeln, kann die Haftung nicht rein kollektiv – im Sinne eines reinen Organisationsmodells –, sondern nur auf der Grundlage des Zurechnungsmodells überzeugend begründet werden, und zwar als derivative, auf Aufsichts- bzw. Organisationsverschulden beruhende Unternehmenshaftung. Der individualstrafrechtliche Ansatz des Zurechnungsmodells verweist auf die bekannten Formen strafbarer Beteiligung, wobei insbesondere eine Beihilfehaftung in Betracht kommt. Alles in allem wird jedoch vor zu hohen Erwartungen an eine (völker)strafrechtliche Unternehmenshaftung gewarnt. Das Strafrecht kann auch hier nur als Teil eines ganzheitlichen Ansatzes (beschränkte) präventive Wirkungen entfalten.

Milanovic & Papic: The Applicability of the ECHR in Contested Territories

Marko Milanovic (Univ. of Nottingham - Law) & Tatjana Papic (Union Univ. Belgrade - Law) have posted The Applicability of the ECHR in Contested Territories (International and Comparative Law Quarterly, forthcoming). Here's the abstract:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Conference: 16° Congresso Brasileiro de Direito Internacional

On August 22-25, 2018, the Academia Brasileira de Direito Internacional will hold the 16° Congresso Brasileiro de Direito Internacional, in Foz do Iguaçu. The theme is: "O Direito Internacional: Democracia, multilateralismo e diversidade."

Call for Papers: 11th Melbourne Doctoral Forum on Legal Theory

The Melbourne Doctoral Forum on Legal Theory has issued a call for papers for this year’s forum, which will take place December 4-5, 2018. Here's the call:

Facts, Law and Critique

The 11th Melbourne Doctoral Forum on Legal Theory will take place on 4 and 5 December 2018. The Forum brings together graduate researchers and early career scholars from a range of disciplines and backgrounds to think methodologically, theoretically and critically about law and legal theory. The theme for this year’s Forum is ‘Facts, Law and Critique’.

Facts sustain law and legal institutions. Contesting, debating, and then, ‘finding’ or establishing facts is seen as essential to the process of law-making that follows. But, far from acting on or applying to a set of pre-existing facts, law produces, writes and determines its own facts, knowledges and truths. And the politics, procedures and histories of legal facts, unlike the law itself, are often taken as given, establishing a dichotomy between contesting the legal and accepting what remains outside of, or prior to, law. The recent unsettling of our contemporary faith in facts, objectivity, and transparency as a form of public knowledge and a precondition for politics provides us with an opportunity to revisit the relationship between law and facts.

In this Forum, we invite papers critically examining the relationship between facts and law as it relates to your own research. How can understanding the way in which facts — as well as institutions, procedures and methods for finding facts — have been established and contested over time and throughout history shed new light on the present moment? How does law develop and reach out for technologies which establish facts through particular means? How does selecting and assembling facts in particular ways use law to establish and embed particular narratives? What is the place of critique in a time in which facts are ‘alternative’, or in struggles over who is authorised to produce truth? How does examining processes of fact-finding highlight the politics of legal facts and the exercise of power they represent? What is seen, and what lives become unseen, as law and law’s facts come to constitute a way of experiencing the world?

Possible ways of addressing the topic might include, but are not limited to:

• Facts and institutions, including legal procedures of establishing facts such as international fact-finding missions, commissions of inquiry and truth commissions
• Facts and representation, including the role of media, art and the image in law and legal analysis
• Facts and empirics, such as work critiquing the role of data, technology, and the turn to economic and quantitative analysis in law
• Facts and courts, agreed and disputed facts, evidential processes and the judgment as public record
• Facts and governance, including the place of, and challenges to, objectivity, publicity, and transparency in contemporary forms of legal governance and law
• Facts and epistemologies, including indigenous forms of knowledge, fact and law, as well as epistemologies of the South
• Custom as law and the translation of fact and practice into law
• Facts and imperialism, and the role of history in critiquing or recreating imperialist narratives and knowledges
• Queer theory, ontology and the selectivity of law’s facts
• Feminist critiques of the divide between law and fact
• The craft of the lawyer: lawyers’ agency in and responsibility for the making of law and fact.

Please submit abstracts of up to 500 words and biographies of up to 200 words to Melbourne Doctoral Forum on Legal Theory by 5 September 2018. Applicants will receive a response by late September.

We particularly invite applications from those interested in exploring methodological questions within the collegial and supportive environment of the Forum. Depending on interest, we may organise sessions specifically focusing on questions of method. If you are interested in participating in one of these sessions, please indicate this and address these questions in your abstract.

A limited number of travel bursaries are available for interstate and international presenting participants who are unable to claim sufficient funding from their home institution. Please indicate in your application whether you wish to be considered for a bursary.

Zhu: China and the International Criminal Court

Dan Zhu (Fudan Univ. - Law) has published China and the International Criminal Court (Palgrave 2018). Here's the abstract:

This book focuses on the evolving relationship between China and the International Criminal Court (ICC). It examines the substantive issues that have restricted China’s engagement with the ICC to date, and provides a comprehensive assessment of whether these Chinese concerns still constitute a significant impediment to China’s accession to the ICC in the years to come. The book places the China-ICC relationship within the wider context of China’s interactions with international judicial bodies, and uses the ICC as an example to reflect China’s engagement with international institutions and global governance in general. It seeks to offer a thought-provoking resource to international law and international relations scholars, legal practitioners, government legal advisers, and policy-makers about the nature, scope, and consequences of the relationship between China and the ICC, as well as its impact on both global governance and order. This book is the first of its kind to explore China’s engagement with the ICC primarily from a legal perspective.

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

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 27, no. 2, July 2018) is out. Contents include:

• Original Articles
• Vito De Lucia, A critical interrogation of the relation between the ecosystem approach and ecosystem services
• Shawkat Alam & Sheikh Noor Mohammad, Applying the ecosystem approach to the Sundarbans of Bangladesh: Possibilities and challenges
• Benoit Mayer, Obligations of conduct in the international law on climate change: A defence
• Edwin Alblas, Conflicting goals and mixed rationales: A closer look at the objectives of EU environmental law in light of the Anthropocene
• Viktor Weber, Uncertain liability and stagnating CCS deployment in the European Union: Is it the Member States’ turn?
• Janja Hojnik, Ecological modernization through servitization: EU regulatory support for sustainable product–service systems
• Maria Chochorelou & Carlos Espaliu Berdud, Sustainable development in new generation FTAs: Could arbitrators further the principle through ISDS?
• Andrew Craig Blackmore, Rediscovering the origins and inclusion of the public trust doctrine in South African environmental law: A speculative analysis
• Case Note
• Melissa Powers, Juliana v United States: The next frontier in US climate mitigation?

Dumberry: A Guide to State Succession in International Investment Law

Patrick Dumberry (Univ. of Ottawa - Law) has published A Guide to State Succession in International Investment Law (Edward Elgar Publishing 2018). Here's the abstract:

A Guide to State Succession in International Investment Law provides a comprehensive analysis of State succession issues arising in the context of international investment law. The author examines whether a successor State is bound by the investment treaties and State contracts which the predecessor State had signed with other States and foreign investors before the date of succession. Actors who are called upon to apply rules of State succession in investment arbitration cases will find this book a valuable source of practical guidance with strong theoretical foundations.

Call for Submissions: Trade, Law and Development

The journal Trade, Law and Development has issued a call for submissions for its Winter 2018 issue (Vol. 10, no. 2). The call is here.

Call for Papers: Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?

The European Research Council Project "Transnational Private-Public Arbitration as Global Regulatory Governance: Exploring The Lex Mercatoria Publica" at the Amsterdam Center of International Law has issued a call for papers for a workshop on "Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?" to take place February 27-March 1, 2019, at the University of Amsterdam. Here's the call:

Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?

Organised by the ERC Project 'Transnational Private-Public Arbitration as Global Regulatory Governance: Exploring The Lex Mercatoria Publica', Amsterdam Center of International Law (ACIL)

1. Theme of the Workshop

International law today is marked by ‘judicialization’ as a result of the unprecedented proliferation of international courts and tribunals. Great emphasis in this context has been put on how international courts and tribunals engage with – interpret, apply and further develop – international law, both general and specific, such as human rights, foreign investment or international trade law. Scholars have analyzed this engagement from various theoretical and methodological angles. One conclusion they share is that international courts and tribunals do more than passively find and apply international law; they actively make international law.

By contrast, what is often neglected, is that international courts and tribunals regularly engage with domestic law. This can concern incidental questions, such as the determination of nationality, the validity of domestic property rights, or the legality under domestic law of government conduct. In some cases, domestic law even constitutes (or forms part of) the applicable law to an international dispute. Under Article 42(1) of the ICSID Convention, for example, the law of the respondent state is the default option. However, even when the applicable law is exclusively international law,  international courts and tribunals regularly have to engage with domestic law to assess whether States have breached their international obligations. This is the case in all international dispute settlement fora. The assessment of (the exhaustion or non-exhaustion of) domestic legal remedies by the International Court of Justice (ICJ), the review of domestic trade regulations by the WTO Dispute Settlement System, the scrutiny of domestic legal proceedings by the European Court of Human Rights (ECtHR) and the examination of domestic fisheries legislation (and related enforcement actions) by the International Tribunal for the Law of the Sea (ITLOS) are but a few examples.

A pivotal, yet underexplored question is how international courts and tribunals engage with domestic law and what effect that engagement has on the domestic law in question. Do international courts and tribunals only passively ‘find’ the law by treating it itself as a fact and apply it to the facts of the case at hand? Or do international courts and tribunals creatively work with, perhaps even further develop it? Moreover, when engaging with domestic law, do international courts and tribunals try to mimic the engagement with domestic law of the courts of the state in question? Or do they approach the interpretation, application and further development of the law independently, perhaps even by looking beyond the legal system, jurisprudence and scholarship of the State in question and examining how similar issues are dealt with in other domestic legal systems? Do they, in other words, adopt a transnational and comparative approach in relation to domestic legal issues?

Beyond the empirical question concerning the how, the why is of interest. If international courts and tribunals take a transnational approach, what are the reasons for it? Does it reflect the fact that –more often than not – international adjudicators often lack the legal expertise and qualification in the domestic law they apply? Or does this have to do more with the fact that international courts have consent-based rather than compulsory jurisdiction, and form part of a different (nondomestic) public international legal order?

Finally, normative questions as to what the appropriate approach to dealing with domestic law is impose themselves. Is it appropriate for international courts and tribunals to take a transnational approach, perhaps even further develop the law in question by setting precedent? Or is there a duty to treat domestic law as a fact and to exercise deference towards the views on the interpretation and application of international law of domestic actors? Similarly, what is the role of experts on domestic law for the engagement of international courts and tribunals with domestic law?

Seeking to further explore and shed light on these empirical, analytical and normative questions, the Workshop will focus on the approach(es) adopted by international and regional courts and tribunals in dealing with issues of domestic law, or certain aspects of it. We therefore invite proposals for papers that can either deal with the approaches of specific international courts and tribunals to domestic law, such as the ICJ, the WTO Dispute Settlement System, ITLOS, the ECtHR, the Court of Justice of the European Union (CJEU), international criminal courts or tribunals, investment tribunals, or commercial arbitral tribunals, or that take approaches that deal with the engagement with domestic law, or certain aspects of it, from a cross-cutting perspective.

2. Submission of proposals and timeline

Scholars, practitioners, international judges or arbitrators, and state- and international organization officials are invited to submit proposals addressing issues falling within the scope of the Workshop’s theme.

Proposals including abstracts of no more than 500 words and the speaker’s contact details and CV (including affiliation, relevant experience and publications) or inquiries regarding the  workshop should be sent to lex-merc-pub-fdr@uva.nl.

The deadline for the submission of paper proposals is 15 September 2018.

Successful applicants will be informed by 30 September 2018 and must submit papers (between 5,000 and 10,000 words, including footnotes) by 1 February 2019. The Workshop itself will take place during the last week of February 2019.

Limited funding is available to support travel expenses on a needs basis. Selected papers will be included in an edited volume to be published by a leading academic publisher in the course of 2019. All submissions and finalised papers must be written in English.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 57, no. 3, June 2018) is out. Contents include:

• Ingabire v. Rwanda (Afr. Ct. H.P.R.), with introductory note by Yakaré-Oulé (Nani) Jansen Reventlow
• Chiragov and Others v. Armenia & Sargsyan v. Azerbaijan (Eur. Ct. H.R.), with introductory note by Ramute Remezaite
• Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (Eur. Ct. H.R.), with introductory note by Jonathan McCully
• Waldman v. Palestine Liberation Organization (U.S. Ct. App. Second Circuit), with introductory note by William Slomanson
• Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression (Int’l Crim. Ct.) & Resolution ICC-ASP/16/RES.5 on the Activation of the Jurisdiction of the Court over the Crime of Aggression, with introductory note by Carrie McDougall