AJIL Unbound Symposium: The BRICS Approach to the Investment Treaty System.

AJIL Unbound has posted a symposium on "The BRICS Approach to the Investment Treaty System." The symposium includes an introduction by Congyan Cai and Anthea Roberts and contributions by Anthea Roberts, Henrique Choer Moraes and Felipe Hees, Dmitry K. Labin and Alena V. Soloveva, Huiping Chen, Engela C. Schlemmer, Congyan Cai, and M. Sornarajah.

New Volume: Asian Yearbook of Human Rights and Humanitarian Law

The latest volume of the Asian Yearbook of Human Rights and Humanitarian Law (Vol. 2, 2018) is out. Contents include:

• Islamic Law and its Implementation in Asia and the Middle East
• Ibrahim M.H. Aljazy & Raneem Asad, Arab Constitutions: Islamic Law and Arab Identity
• Daniel Peterson, Blasphemy, Human Rights, and the Case of Ahok
• Muhammad Munir, The Share of Orphaned Grandchildren under Islamic Law and Pakistani Legal System: A Re-evaluation of Representational Succession in Section 4 and Its (Mis)interpretation by Courts
• Sheharyar Hamid, Drawing a Synergy between Theory and Practice – A Move towards a More Stakeholder-Oriented Regulatory Framework for Modern Islamic Finance Institutions: A Comparative Analysis
• Adnan Trakic, Towards Shariʾah Compliant Dispute Resolution in Islamic Finance
• Clive Walker, Foreign Terrorist Fighters and UK Counter Terrorism Laws
• David Keane & Tenia Kyriazi, The Emergent Right to Human Rights Education in GCC States
• Lawrence Emeka Modeme, The Security Council and the Legal Limits of Humanitarian Military Intervention
• Matthias Vanhullebusch, Patterns and Future Trends of Human Rights Protection in Asia
• Rosa Stella De Fazio, The Incorporation of International Law into the Palestinian Domestic Legal System: Analysis and Perspectives
• Gayathri D. Naik, Groundwater Regulation in India: Applicability of Public Trust Doctrine and Right to Participation in Decision Making to Achieve Right to Water
• Muhammad Abdullah Fazi, Pardis Moslemzadeh Tehrani & Azmi Bin Sharom, A Legal Analysis of the International Crimes Tribunal Bangladesh: A Fair Trial Perspective

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 33, no. 3, 2018) is out. Contents include:

• Alex G. Oude Elferink, Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC
• Youna Lyons; Denise Cheong; Mei Lin Neo & Hiu Fung Wong, Managing Giant Clams in the South China Sea
• Hyun Jung Kim, Governing Fishing Stocks in Northeast Asia’s Disputed Waters: Preventing a ‘Tragedy of the Commons’?
• M.M. Losier, The Conflict between Sovereign Immunity and the Cargo of Sunken Colonial Vessels
• Camille Goodman, Rights, Obligations, Prohibitions: A Practical Guide to Understanding Judicial Decisions on Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone
• Said Mahmoudi, Use of Armed Force against Suspected Foreign Submarines in the Swedish Internal Waters and Territorial Sea

Wuerth: The Future of the Federal Common Law of Foreign Relations

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted The Future of the Federal Common Law of Foreign Relations (Georgetown Law Journal, Vol. 106, p. 1825, 2018). Here's the abstract:

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of the federal common law of foreign relations–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional basis for the federal common law of foreign relations have eroded. In an important new book, The Law of Nations and the United States Constitution, Anthony J. Bellia, Jr. and Bradford R. Clark argue that the Constitution itself requires courts to apply customary international law in these two areas. Their argument fails to convince. A better alternative is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy.

Nouwen & Ten Kate: The Globalisation of Justice: Amplifying and Silencing Voices at the ICC

Sarah Nouwen (Univ. of Cambridge - Law) & Warner Ten Kate (United Nations) have posted The Globalisation of Justice: Amplifying and Silencing Voices at the ICC (in Global Justice, Jeff Handmaker & Karin Arts eds., forthcoming). Here's the abstract:

This chapter argues that the very first situation before the International Criminal Court is illustrative of how the globalisation of international criminal justice amplifies some voices while silencing others. The chapter shows how in northern Uganda the globalisation of criminal justice offered a site for what Martti Koskenniemi has called ‘the politics of re-description’ and we give four examples: (1) the struggle between a military approach and reconciliation efforts in the period prior to ICC intervention; (2) the ICC referral as a way to re-describe the conflict and to continue a military approach; (3) the Juba peace process as a negotiation between legal and other approaches and (4) the post-Juba period, in which a political agreement is approached legalistically.

von Lingen: „Crimes against Humanity“: Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864–1945

Kerstin von Lingen has published „Crimes against Humanity“: Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864–1945 (Ferdinand Schöningh 2020). Here's the abstract:

Transnationale Debatten unter Juristen haben das humanitäre Völkerrecht entscheidend geformt. Die Zivilisierung von Kriegsgewalt stand seit der Mitte des 19. Jahrhunderts im Zentrum und gipfelte im Konzept von „Crimes against Humanity“, das im Internationalen Militärtribunal von Nürnberg erstmals zum Tatbestand erhoben wurde. Kerstin von Lingen zeichnet diesen Weg nach – von den frühen völkerrechtlichen Debatten unter Juristen über die Haager Friedenskonferenzen und die Verhandlungen von Versailles nach dem Ende des Ersten Weltkriegs. Angesichts immer höherer Opferzahlen und ansteigender Massengewalt gegen Zivilisten wirkte der Zweite Weltkrieg wie ein Katalysator: Das Konzept „Crimes against Humanity“ wurde in London in Gremien geschärft, deren Akten für dieses Buch erstmals ausgewertet wurden. „Crimes against Humanity“ wurde nach 1945 neben dem Genozid-Vorwurf zum wichtigsten juristischen Werkzeug unserer Zeit, um Massengewalt gegen Zivilisten zu ahnden.

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 18, no. 4, 2018) is out. Contents include:

• Guénaël Mettraux, John Dugard & Max du Plessis, Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa
• Robert Muharremi, The Concept of Hybrid Courts Revisited: The Case of the Kosovo Specialist Chambers
• Scott Graham, The Non-combatant Casualty Cut-off Value: Assessment of a Novel Targeting Technique in Operation Inherent Resolve
• Mohammad Hadi Zakerhossein, A Concept without Consensus: Conceptualisation of the ‘Situation’ Notion in the Rome Statute
• James Meernik & Josue Barron, Fairness in National Courts Prosecuting International Crimes: The Case of the War Crimes Chamber of Bosnia-Herzegovina

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. 24, no. 2, April-June 2018) is out. Contents include:

• The Global Forum
• Simon Chesterman, How “Public” Is Public International Law? Toward a Typology of NGOs and Civil Society Actors
• Articles
• Carlos A. Pérez Ricart, The Role of the DEA in the Emergence of the Field of Anti-narcotics Policing in Latin America
• Thomas G. Weiss & Rorden Wilkinson, The Globally Governed—Everyday Global Governance
• Kamila Szczepanska, Toward Inclusive Global Governance? Japanese Civil Society, the State, and G7/8 Summitry, 2000–2016
• Lena Partzsch, Take Action Now: The Legitimacy of Celebrity Power in International Relations
• Bernard Hoekman, Reducing Home Bias in Public Procurement: Trade Agreements and Good Governance
• Simon Rushton, Promoting Pro-health Policies Across Regimes: Global AIDS Institutions and the Harm Reduction Debate
• Oisín Tansey, Lowest Common Denominator Norm Institutionalization: The Anti-coup Norm at the United Nations

Conference: Fordham's Thirteenth Annual Conference on International Arbitration and Mediation

On November 2, 2018, Fordham University School of Law will host its Thirteenth Annual Conference on International Arbitration and Mediation, in New York City. The theme is: "Key Issues in International Commercial and Treaty Arbitration."

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 57, nos. 3-4, December 2017) is out. Contents include:

• Sreenivasa Rao Pemmaraju, The identification of Customary International Law: a process that defies prescription
• Helmut Tuerk, The common heritage of mankind after 50 years
• Graham Melling & Anne Dennett, The Security Council veto and Syria: responding to mass atrocities through the “Uniting for Peace” resolution
• Sai Ramani Garimella & Poomintr Sooksripaisarnkit, Jurisdiction under the Hague Convention on choice of court agreements: a critique
• Sujith Xavier, Top heavy: beyond the Global North and the justification for global administrative law
• Anurag Dubey, The Jadhav Case Before the International Court of Justice
• Michael James Polak, The Jadhav case and the right to consular assistance: ‘confessions’, spies, and remedies in international law
• Haris Jamil, Critical evaluation of India’s position on the Rome Statute
• Abhimanyu George Jain, Indian practice relating to international law

Casey-Maslen, Homayounnejad, Stauffer, & Weizmann: Drones and Other Unmanned Weapons Systems under International Law

Stuart Casey-Maslen (Univ. of Pretoria - Law), Maziar Homayounnejad (Kings College London - Law), Hilary Stauffer (United Nations Office for the Coordination of Humanitarian Affairs), & Nathalie Weizmann (United Nations Office for the Coordination of Humanitarian Affairs) have published Drones and Other Unmanned Weapons Systems under International Law (Brill | Nijhoff 2018). Here's the abstract:

Drone strikes have become a key feature of counterterrorism operations in an increasing number of countries. This work explores the different domestic and international legal regimes that govern the manufacture, transfer, and use of armed drones. Chapters assess the legality of armed drones under jus ad bellum, the law of armed conflict, the law of law enforcement, international human rights law, international criminal law and domestic civil and criminal law. The book also discusses the application of law to fully autonomous weapons systems where computer algorithms decide who or what to target and when to fire.

Doyle: Strange Fruit at the United Nations

Ursula Doyle (Northern Kentucky Univ. - Law) has posted Strange Fruit at the United Nations (Howard Law Journal, Vol. 61, 2018). Here's the abstract:

The UN was founded, in 1945, to rid the world of the scourge of war but also to recognize and to vindicate the rights of every human in virtue of their humanity. At the time of the organization’s founding, “Jim Crow” -- a scheme designed to repress African Americans -- reigned throughout the American South. Jim Crow was especially characterized by the act of lynching, the extrajudicial killing, often, of African American males. Frequently the lynching was committed by hanging its subject from a tree. Some came to know the persons hanged from the tree as “strange fruit.” During the UN’s early years, the civil rights organizations the National Negro Congress, the National Association for the Advancement of Colored People and the Civil Rights Congress sought UN assistance in vindicating African Americans’ fundamental rights. But even during some of the worst days of Jim Crow, the UN was largely silent on matters expressly related to African Americans. In 1946, four African Americans were shot execution-style by Caucasian men after one of the African Americans alleged rape against one of the soon-to-be executioners. This event received substantial international attention. In 1955, Emmett Till. This 14-year-old boy was shot, mutilated and drowned, after reportedly whistling at a Caucasian woman. This case, too, was broadcast internationally. The world was well-aware of events in the United States regarding its largest racial minority. This article explores and evaluates the opportunities taken -- and not -- by each relevant UN organ to address Jim Crow practices, during the period 1945 to 1965. Part I, “the United Nations,” discusses the UN’s founding. It also explores the reasons for creating this body and how the Charter reflects the interests of powerful stakeholders. Additionally, it discusses the functions, powers and limitations of each of its principal organs. Part II, “the United States,” discusses African American history and the laws designed to circumscribe African American life. Part III, “Strange Fruit at the United Nations,” considers the efforts within some UN entities to combat racial segregation and discrimination. It also considers the avenues that the UN might have taken to specifically address Jim Crow. This section especially focuses on the opportunities posed by the International Court of Justice.

Janik: How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis

Ralph R.A. Janik (Univ. of Vienna - Law) has posted How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis (Austrian Review of International and European Law, Vol. 25, p.125). Here's the abstract:

This paper is a response to Karl Zemanek's article on "Court-Generated State practice" and his elaborations on the dogmatic questions arising from instances when the European Court of Human Rights (ECtHR) goes beyond states' actual interpretation and application of the European Convention on Human Rights (ECHR). After all, the Court may thereby itself induce state practice. The relationship between state practice and jurisprudential application of the ECHR is thus turned upside down. Apart from the examples identified by professor Zemanek, this article elaborates on the tension between the ECtHR's judicial powers and the states' willingness to adhere to its judgments in sensitive matters. While the court has emphasized the absoluteness of Article 3 on torture, inhumane or degrading treatment and the resulting non-refoulement obligations, it has been more reluctant to interfere with states' rights to regulate Islamic clothing or invoke a state of emergency. Oscillating between non-compliance and overstretching its powers, the impact of the current political crises on European human rights standards will keep lawyers busy for the unforeseeable future.

Pillai: The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability

Priya Pillai has posted an ASIL Insight on The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability.

Conference: Knowledge Production and International Law

On September 7-8, 2018, the International Law Department of the Graduate Institute of International and Development Studies will hold a conference on "Knowledge Production and International Law." The program is here.

Conference: Managing International Economic (Dis)Integration: Challenges and Opportunities

On September 21-22, 2018, the American Society of International Law’s International Economic Law Interest Group, the Canadian Council on International Law, and the Centre for International Governance Innovation, together with McGill University Faculty of Law, will hold a Joint North American Conference on International Economic Law, at McGill. The theme is: "Managing International Economic (Dis)Integration: Challenges and Opportunities." The program is here.

Runavot: La démocratie appliquée au droit international : de quoi parle-t-on ?

Marie-Clotilde Runavot (Université Cergy-Pontoise - Law) has published La démocratie appliquée au droit international : de quoi parle-t-on ? (Pedone 2018). Contents include:

• Marie-Clotilde Runavot, Rapport introductif
• Pierre-Marie Raynal, Préliminaire conceptuel : à propos de la démocratie (nationale)
• Michèle André, L’Union interparlementaire, instrument de la diplomatie parlementaire
• Marie-Clotilde Runavot, L’Union interparlementaire et la parlementarisation de l’ONU
• Martin Quesnel, Les parlements internationaux et l’exercice du pouvoir normatif international
• Patrick Jacob, Démocratie et participation aux institutions internationales
• Olivier de Frouville, Vers une théorie démocratique du droit international
• Makane Moïse Mbengue, La démocratie comme outil de réforme des organisations internationales ?
• Niki Aloupi, Une rhétorique de la mondialisation ?

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law. They were given by Georg Nolte on “The International Law Commission and Community Interests” and Nilüfer Oral on “Climate Change and the Protection of the Ocean.”

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 145, no. 3, Juillet-Août-Septembre 2018) is out. Contents include:

• Doctrine
• Syméon Karagiannis, À propos des droits de l’homme dans la Charte des Nations Unies
• Renan Le Mestre, Des îles dans les plis de la Bannière étoilée : les territoires et États associés de l’Océan Pacifique dépendant des États-Unis
• Ludovic Pailler, L’applicabilité spatiale du Règlement général sur la protection des données (RGPD) - Commentaire de l’article 3
• Variétés
• Nicolas Nord, L’aéroport de Bâle – Mulhouse et le contrat de travail international. La mise en évidence d’une nécessaire refonte des solutions de droit international privé

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 122, no. 2, 2018) is out. Contents include:

• Maurice Kamto, La question de la responsabilité de l’Etat dans les contentieux frontaliers et territoriaux
• Benjamin Juratowitch & Alejandra Del Portillo, Les réserves aux clauses restircitives
• Delphine Burriez, Sahara occidental : internationalisation et institutionnalisation du conflit

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 39, no. 2, Spring 2018) is out. Contents include:

• Reuven S. Avi-Yonah & Haiyan Xu, A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits
• Shai Dothan, International Courts Improve Public Deliberation
• Yahli Shereshevsky, Targeting the Targeted Killings Case - International Lawmaking in Domestic Contexts

Alter: The Empire of International Law?

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Empire of International Law? (American Journal of International Law, forthcoming). Here's the abstract:

This review essay examines three intellectual histories focused on fundamental transformations of international law in the early twentieth century. The transformations reflect power shifts in the international system, and the change from a colonial to a multilateral international legal order. I use the histories (authored by Juan Pablo Scarf, Arnulf Becker Lorca, and Oona Hathaway/Scott Shapiro) to investigate four fundamental issues of both historical and contemporary relevance.

1) How does one construct a global history of international law, and in particular how do intellectual histories help us understand international legal transformations?

2) How do legal scholars and communities of practice contribute to international legal change?

3) How is power encoded into international law?

4) Can great powers escape imperial dominance, or the charge that their actions and their invocations of international law are imperial?

In addition to critically engaging the three books, the essay also examines how contestation over international law by powerful and weaker actors is often overlooked, yet this contestation shapes international law’s trajectory.

Akande & Tzanakopoulos: Treaty Law and ICC Jurisdiction Over the Crime of Aggression

Dapo Akande (Univ. of Oxford - Law) & Antonios Tzanakopoulos (Univ. of Oxford - Law) have posted Treaty Law and ICC Jurisdiction Over the Crime of Aggression (European Journal of International Law, forthcoming). Here's the abstract:

This article examines the question of who will be subject to ICC jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations regarding the crime of aggression was whether the Court would have jurisdiction over nationals of a state that does not ratify the aggression amendments, but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. The question is examined here against the background of the rules in the law of treaties regarding amendments and treaty interpretation. The article considers the legal effect that the resolution of the ICC Assembly of States Parties (ASP), adopted in New York in December 2017 and activating ICC jurisdiction over aggression, will have in determining this jurisdictional question. A resolution of an international conference adopted by consensus can, in principle, be regarded as subsequent practice or a subsequent agreement of the parties to the Rome Statute that establishes the authentic interpretation of the Statute within the meaning of the Vienna Convention on the Law of Treaties. It is argued however that this particular resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. Despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is further argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala. We argue that the key to addressing this issue is to understand how the amendment provisions of the Rome Statute work in conjunction with basic principles of the law of treaties.

Munro: Emissions Trading Schemes under International Economic Law

James Munro has published Emissions Trading Schemes under International Economic Law (Oxford Univ. Press 2018). Here's the abstract:

The announcement by China that it will implement a national emissions trading scheme confirms the status of this instrument as the pre-eminent policy choice for mitigating climate change. China will join the dozens of existing and emerging schemes around the world - from the EU to California, South Korea to New Zealand - that use carbon units (otherwise known as emissions permits or carbon credits) to trade in greenhouse gas emissions in a multi-billion dollar global carbon market.

However, to date, there has been no consensus about this pre-eminent policy instrument being regulated by international economic law through the World Trade Organization, international investment agreements, and free trade agreements. Munro addresses this issue by evaluating whether carbon units qualify as 'goods', 'services', 'financial services', and 'investments' under international economic law and showing how international economic law applies to emissions trading scheme in diverse and unexpected ways. Further, by engaging in a comparative assessment of schemes around the world, his book illustrates how and why all emissions trading schemes engage in various forms of violations of international economic law which would not, in most instances, be justified by environmental or other exceptions. In doing so, he demonstrates how such schemes can be designed or reformed in ways to ensure their future compliance.

Nicholson: Strengthening the Validity of International Criminal Tribunals

Joanna Nicholson (Univ. of Olso - Pluricourts) has published Strengthening the Validity of International Criminal Tribunals (Brill | Nijhoff 2018). Contents include:

• Joanna Nicholson, Introduction
• Marieke de Hoon, The Future of the International Criminal Court. On Critique, Legalism and Strengthening the icc’s Legitimacy
• Geoff Dancy, Searching for Deterrence at the International Criminal Court
• Mikkel Jarle Christensen, The Symbolic Economy of International Criminal Justice: Shaping the Discourse of a New Field of Law
• Joanna Nicholson, Strengthening the Effectiveness of International Criminal Law through the Principle of Legality
• Carola Lingaas, Enhancing the Effectiveness of the Law of Genocide
• Franziska Oehm, From Nuremberg to Malabo: A Re-evaluation of the Tradition of Impunity of Economic Actors in International Criminal Law
• Yvonne McDermott, Strengthening the Evaluation of Evidence in International Criminal Trials
• Hemi Mistry, The Significance of Institutional Culture in Enhancing the Validity of International Criminal Tribunals
• Avidan Kent & Jamie Trinidad, The Management of Third-party Amicus Participation before International Criminal Tribunals: Juggling Efficiency and Legitimacy
• Kïrsten Bowman, The International Criminal Court and the Security Council: The Power of Politics and the Undermining of Justice
• Marialejandra Moreno Mantilla, Do too Many Cooks Spoil the Broth? A Proposal for a Joint Strategy between the Office of the Prosecutor and the Inter-American Commission on Human Rights
• Mandiaye Niang, Africa and the Legitimacy of the icc in Question
• Dorothy Makaza, African States and International Criminal Law: Rethinking the Narrative and Contextualising the Discourse
• Kerstin Bree Carlson, Trying Hissène Habré ‘On Behalf of Africa’: Remaking Hybrid International Criminal Justice at the Chambres Africaines Extraordinaires