New Issue: Legal Issues of Economic Integration

The latest issue of Legal Issues of Economic Integration (Vol. 47, no. 2, 2020) is out. Contents include:

• From the Board: The EU–UK Future Relationship: A Trade or Governance Agreement?
• Ilaria Espa & Gracia Marín Durán, Promoting Green Energy Through EU Preferential Trade Agreements: Potential and Limitations
• Marja-Liisa Öberg, Internal Market Acquis as a Tool in EU External Relations: From Integration to Disintegration
• Arwel Davies, Technology Transfer Contracts and the TRIPS: Interpreting High and Low Consensus Norms

Florou: Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties

Aikaterini Florou has published Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties (Brill | Nijhoff 2020). Here's the abstract:

In Contractual Renegotiations and International Investment Arbitration, Aikaterini Florou explores the sensitive issues of renegotiating state contracts and the relationship between those contracts and the overarching international investment treaties. By introducing novel insights from economics, the author deconstructs the contract-treaty interaction, demonstrating that it is not only treaties that impact the underlying contracts, but also that those contracts have an effect on the way the open-textured treaty standards are interpreted. The originality of the argument is combined with an innovative interpretative methodology based on relational contract theory and transaction cost economics. Departing from the traditional emphasis of international lawyers on the text of investment contracts, Florou shows instead that such contracts are first and foremost “economic animals” and the theory of obsolescing bargaining does not paint a full picture of the contract-treaty interaction.

Karttunen: Transparency in the WTO SPS and TBT Agreements: The Real Jewel in the Crown

Marianna B. Karttunen (OECD) has published Transparency in the WTO SPS and TBT Agreements: The Real Jewel in the Crown (Cambridge Univ. Press 2020). Here's the abstract:

Transparency of trade regulations by all WTO Members is essential for open, fair and predictable trade relations. A myriad of different regulations apply in all WTO Members and have the potential for affecting international trade. The Agreements on the Application of Sanitary and Phytosanitary measures and on Technical Barriers to Trade provide the most comprehensive frameworks in the WTO to address the costs arising from such regulatory diversity, through obligations on regulatory transparency and co-operation. This book gives a detailed account of the legal disciplines of the two Agreements, an in-depth presentation of discussions between WTO Members, and an overview of the few cases that end up in formal dispute settlement. It shows that the strength of the WTO legal and institutional system goes well beyond its dispute settlement system, with transparency enabling implementation of WTO obligations through better information sharing and co-operation among Members themselves, through non-judicial means.

New Issue: Revue trimestrielle des droits de l'homme

The latest issue of the Revue trimestrielle des droits de l'homme (No. 122, 2020) is out. Contents include:

• E. Lambert & A. Stepanova, Les décisions et arrêts de la Cour européenne des droits de l’homme prenant acte d’un règlement amiable ou d’une déclaration unilatérale : un modèle d’homologation judiciaire approfondie
• B. Pastre-Belda, La notion de réinsertion des personnes détenues dans la jurisprudence de la Cour européenne des droits de l’homme
• C. Ruet, Quelle autonomie pour les personnes atteintes de troubles mentaux ? Réflexions relatives à quelques arrêts récents de la Cour européenne des droits de l’homme
• P. Gilliaux, La force obligatoire de la Charte des droits fondamentaux de l’Union européenne
• G. Gonzalez, La liberté de religion à l’épreuve de la jurisprudence de la Cour de justice de l’Union européenne
• A. Gouttenoire, Le Comité des droits de l’enfant des Nations Unies, acteur majeur de la protection effective des droits de l’enfant
• J-P. Marguenaud, L’appréhension du principe de proportionnalité par les juridictions françaises
• C. Rizcallah & V. Davio, L’article 19 du Traité sur l’Union européenne : sésame de l’Union de droit
• O. Nederlandt & L. Descamps, Considérations relatives au service minimum garanti dans les prisons belges en temps de grève des agents pénitentiaires

Hubbard & Mrózek: New Developments in Seeking United States Discovery for Foreign Proceedings and International Arbitration

Jared Hubbard (Fitch Law Partners, LLP) & Malgorzata Mrózek (Fitch Law Partners, LLP) have posted an ASIL Insight on New Developments in Seeking United States Discovery for Foreign Proceedings and International Arbitration.

Ostřanský: From a Fortuitous Transplant to a Fundamental Principle of Law?: The Doctrine of Legitimate Expectations and the Possibilities of a Different Law

Josef Ostřanský (FGV Direito Rio; PUC-Rio Law) has posted From a Fortuitous Transplant to a Fundamental Principle of Law?: The Doctrine of Legitimate Expectations and the Possibilities of a Different Law (in Contingency in the Course of International Law, Ingo Venzke & Keven Jon Heller eds., forthcoming). Here's the abstract:

The doctrine of legitimate expectations (LEs) is now considered a backbone principle of international investment law (IIL), particularly of the fair and equitable treatment standard (FET). Investors argue virtually all investment claims by reference to this notion, and many tribunals refer to it as the most important principle under FET. The mainstream IIL literature has spilled a lot of ink on doctrinally justifying its pride of place in IIL. Open any recent textbook of IIL and you will find discussion on LEs as one of the core principles. However, if one takes a step back, one may see that the notion of legitimate expectations simply appeared in early investment cases ’out of thin air.’ After that, it was picked up and rationalised by later arbitral tribunals and scholarship. In this contribution, I adopt this perspective on the emergence of LEs; not as logical and necessary, but rather as a contingent event.

This contribution will argue that, while LEs’ appearance in IIL practice may be viewed as contingent, its ascendance into the principal doctrine of substantive IIL with specific parameters is neither entirely accidental nor random. The use and parameters of the doctrine have been allowed and facilitated by a specific historical context in which the notion became prominent. In this specific historical context it is: first, the indeterminate and semantically ambiguous legal form of IIL obligations which allows for a multiplicity of legal contents ascribed to those obligations; second, it is a particular political economy that the important actors project at the given historical period through the IIL practice, which fosters a particular version of substantive IIL.

The consequence of this argument can be appreciated at two levels. First, it can be argued that even without the contingent ascendance of the notion of LEs, the field of IIL would likely have taken up a similar substantive trajectory. Second, this argument sheds light on questions about how a more substantial change in the regime might be effected, instead of merely reforming certain aspects of the regime without affecting its current premises, structure, substance, and teleology.

By looking at the micro-level of a technical legal doctrine, this contribution seeks to explain the contingent emergence of the doctrine of LEs without siding with either the formalist accounts stressing the legal necessity and correctness of the turn to LEs or the anti-formalist realist accounts reducing the law to the projection of extra-legal power relations. By doing so, the contribution underlines the difficulties in articulating plausibly what would have made a difference in a particular legal regime. It questions whether some of the current reform initiatives will bear fruit in substantially changing the regime. The efforts must be equally directed at the change of the prevailing political economy and its ideational and material structures and practices. This is, of course, no small feat, but other reform attempts will most likely merely accommodate the critique and reproduce the existing underlying politico-economic arrangements.

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 19, no. 2, April 2020) is out. Contents include:

• Chad P. Bown & Petros C. Mavroidis, It Ain't Over ‘Til It's Over: The WTO Case Law of 2018
• Thomas J. Prusa & Edwin A. Vermulst, Indonesia – Safeguard on Certain Iron or Steel Products: If it looks like a duck, swims like a duck, and quacks like a duck, then it is not a duck
• Dukgeun Ahn & Philip I. Levy, US–OCTG (Korea): Legal Boundary of ‘Political’ Remedy
• Rodney Ludema & Mark Wu, What is Price Suppression in Abnormal Economic Times? Reflections in Light of the Russia–Commercial Vehicles Ruling
• Elisa Baroncini & Claire Brunel, A WTO Safe Harbour for the Dolphins: The Second Compliance Proceedings in the US–Tuna II (Mexico) case
• Eugene Beaulieu & Denise Prévost, Subsidy Determination, Benchmarks, and Adverse Inferences: Assessing ‘Benefit' in US–Coated Paper (Indonesia)
• Arevik Gnutzmann-Mkrtchyan & Isabelle Van Damme, Expired Measures, Excess Duty Drawbacks and Causation: The Appellate Body Report in EU–PET (Pakistan)
• Emanuel Ornelas & Laura Puccio, Reopening Pandora's Box in Search of a WTO-Compatible Industrial Policy? The Brazil–Taxation Dispute
• Kristy Buzard & Tania Voon, How Trade-Restrictive Is Standardized Packaging? Economic and Legal Implications of the WTO Panel Reports in Australia–Tobacco Plain Packaging
• Maria Alcover & Meredith Crowley, China–Broiler Products (Article 21.5 – United States) – can the sum of the parts be less than the whole?
• Carolyn Fischer & Timothy Meyer, Baptists and Bootleggers in the Biodiesel Trade: EU–Biodiesel (Indonesia)
• Pramila Crivelli & Luca Rubini, ‘Flying High in a Plane’ Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 69, 2020) is out. Contents include:

• WTO security exceptions: A landmark Panel report in times of crisis
• Introduced by Loris Marotti and Giovanna Adinolfi
• Viktoriia Lapa, The WTO Panel Report in Russia – Traffic in Transit: Cutting the Gordian Knot of the GATT Security Exception?
• Laura Magi, The effect of the WTO dispute settlement crisis on the development of case law on national security exceptions: A critical scenario

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 27, no. 3, 2020) is out. Contents include:

• Corinne Bara & Lisa Hultman, Just Different Hats? Comparing UN and Non-UN Peacekeeping
• Monalisa Adhikari, Breaking the Balance? The Impact of Peacekeeping Deployments on Civil–Military Relations
• Metin Ersoy & Leon Monroe Miller, Peace Journalism Strategy for Creating a Public Value Sphere
• Jung Jae Kwon,Red under Blue: Chinese Humanitarian Action in UN Peacekeeping Missions
• B. K. Greener, Championing the WPS Agenda?
• Abdulaziz G. Almuslem, Post Conflict Justice, Peacekeeping, and Civil Conflict Recurrence

Cai & Chen: The BRICS in the New International Legal Order on Investment: Reformers or Disruptors

Congyan Cai (Fudan Univ. - Law) & Huiping Chen (Xiamen Univ. - Law) have published The BRICS in the New International Legal Order on Investment: Reformers or Disruptors (Brill | Nijhoff 2020). Contents include:

• Congyan Cai & Yifei Wang, Introduction
• Felipe Hees & Henrique Choer Moraes, Investment Facilitation and the Contribution of the Brazilian Approach to the Reform of the Investment Treaties Regime
• Dmitry K. Labin & Alena V. Soloveva, Russia’s Foreign Investment Policy: Recent Developments and Future Trends in Terra (In)Cognita
• Xiaoxia Lin, India’s Investment Treaties: How an Emerging Economic Giant Makes International Commitments
• Huiping Chen, The “Belt & Road” Initiative and the New Landscape of China’s ISDS Policy and Practice
• Engela C. Schlemmer, Investor Protection in South Africa – Eroded Bit by Bit?
• Andreas Buser, Recalibrating Policy Space in Bilateral Investment Treaties: Is There a Common B(R)ICS Approach?
• Xiuyan Fei, Investment Barriers, Investment Facilitation and the BRICS Countries’ Investment Treaty Policies and Practice
• Congyan Cai, Conclusion

Neuman: Human Rights in a Time of Populism: Challenges and Responses

Gerald L. Neuman (Harvard Univ. - Law) has published Human Rights in a Time of Populism: Challenges and Responses (Cambridge Univ. Press 2020). Contents include:

• Gerald L. Neuman, Populist Threats to the International Human Rights System
• Stephen Pomper & Daniel Levine-Spound, U.S. Human Rights Policy and the Trump Administration
• Jeremy Waldron, Rule-of-Law Rights and Populist Impatience
• Wojciech Sadurski, Populism and Human Rights in Poland
• Jamie O'Connell, Representation, Paternalism, and Exclusion: The Divergent Impacts of the AKP's Populism on Human Rights in Turkey
• Helena Alviar García, The Legal Architecture of Populism: Exploring Antagonists in Venezuela and Colombia
• Richard Javad Heydarian, Penal Populism in Emerging Markets: Human Rights and Democracy in the Age of Strongmen
• Yee Htun, The Populist Threat to Democracy in Myanmar
• Douglas A. Johnson, In Defense of Democratic Populism
• Laurence R. Helfer, Populism and International Human Rights Law Institutions: A Survival Guide
• Gerald L. Neuman, Human Rights Responses to the Populist Challenge

Support the Work of ILR with Your Donation

The International Law Reporter is a free service but that doesn't mean there aren't costs associated with its production. A few times a year I ask that you show your support by making a donation to help defray these costs. Today would be a particularly appropriate day, as it marks thirteen years since ILR's first post. Those able and so inclined can donate by clicking on the "Donate" button to the right. Any amount is appreciated. Thanks.

Upcher: Neutrality in Contemporary International Law

James Upcher (Newcastle Univ. - Law) has published Neutrality in Contemporary International Law (Oxford Univ. Press 2020). Here's the abstract:

The law of neutrality - the corpus of legal rules regulating the relationship between belligerents and States taking no part in hostilities - assumed its modern form in a world in which the waging of war was unconstrained. The neutral State enjoyed territorial inviolability to the extent that it adhered to the obligations attaching to its neutral status and thus the law of neutrality provided spatial parameters for the conduct of hostilities. Yet the basis on which the law of neutrality developed - the extra-legal character of war - no longer exists. Does the law of neutrality continue to survive in the modern era? If so, how has it been modified by the profound changes in the law on the use of force and the law of armed conflict?

This book argues that neutrality endures as a key concept of the law of armed conflict. The interaction between belligerent and nonbelligerent States continues to require legal regulation, as demonstrated by a number of recent conflicts, including the Iraq War of 2003 and the Mavi Marmara incident of 2010. By detailing the rights and duties of neutral states and demonstrating how the rules of neutrality continue to apply in modern day conflicts, this restatement of law of neutrality will be a useful guide to legal academics working on the law of armed conflict, the law on the use of force, and the history of international law, as well as for government and military lawyers seeking comprehensive guidance in this difficult area of the law.

Zou: The Belt and Road Initiative and the Law of the Sea

Keyuan Zou (Univ. of Central Lancashire - Law) has published The Belt and Road Initiative and the Law of the Sea (Brill | Nijhoff 2020). The table of contents is here. Here's the abstract:

The Belt and Road Initiative and the Law of the Sea offers insightful discussions on the use of oceans in the context of the Belt and Road Initiative covering navigational safety, marine energy and sea ports, maritime law enforcement and access of landlocked states to the sea.

New Issue: World Politics

The latest issue of World Politics (Vol. 72, no. 2, April 2020) is out. Contents include:

• Katrina Kosec & Tewodaj Mogues, Decentralization Without Democracy
• Tom Long, Historical Antecedents and Post-World War II Regionalism in the Americas
• Mads Andreas Elkjær & Torben Iversen, The Political Representation of Economic Interests: Subversion of Democracy or Middle-Class Supremacy?
• Elizabeth R. Nugent, The Psychology of Repression and Polarization

New Issue: International Security

The latest issue of International Security (Vol. 44, no. 4, Spring 2020) is out. Contents include:

• Risa Brooks, Paradoxes of Professionalism: Rethinking Civil-Military Relations in the United States
• Iain D. Henry, What Allies Want: Reconsidering Loyalty, Reliability, and Alliance Interdependence
• Wu Riqiang, Living with Uncertainty: Modeling China's Nuclear Survivability
• Assaf Moghadam, The Political Power of Proxies: Why Nonstate Actors Use Local Surrogates
• Arman Grigoryan, Selective Wilsonianism: Material Interests and the West's Support for Democracy

New Volume: Recueil des Cours

Volume 405 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:

• Volume 405
• Jan Paulsson, Issues arising from Findings of Denial of Justice
• Jutta Brunnée, Procedure and Substance in International Environmental Law

Payne, Pereira, & Bernal-Bermúdez: Transitional Justice and Corporate Accountability from Below: Deploying Archimedes' Lever

Leigh A. Payne (Univ. of Oxford - Sociology), Gabriel Pereira (Consejo Nacional de Investigaciones Científicas Técnicas of Argentina), & Laura Bernal-Bermúdez (Pontificia Universidad Javeriana - Law) have published Transitional Justice and Corporate Accountability from Below: Deploying Archimedes' Lever (Cambridge Univ. Press 2020). Here's the abstract:

Bruno Tesch was tried and executed for his company's Zyklon B gas used in Nazi Germany's extermination camps. This book examines this trial and the more than 300 other economic actors who faced prosecution for the Holocaust's crimes against humanity. It further tracks and analyses similar transitional justice mechanisms for holding economic actors accountable for human rights violations in dictatorships and armed conflict: international, foreign, and domestic trials and truth commissions from the 1970s to the present in every region of the world. This book probes what these accountability efforts are, why they take place, and when, where, and how they unfold. Analysis of the authors' original database leads them to conclude that 'corporate accountability from below' is underway, particularly in Latin America. A kind of Archimedes' lever places the right tools in weak local actors' hands to lift weighty international human rights claims, overcoming the near absence of international pressure and the powerful veto power of business.

Mallory: Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights

Conall Mallory (Newcastle Univ. - Law) has published Human Rights Imperialists: The Extraterritorial Application of the European Convention on Human Rights (Hart Publishing 2020). Here's the abstract:

To what extent do a state's obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state's obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention's extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those 'imperialists' who have interpreted European human rights law to extend beyond a state's borders, as it is with them that any lasting solution to the challenge will be found.

d'Aspremont: Comparativism and Colonizing Thinking in International Law

Jean d'Aspremont (Sciences Po - Law; Univ. of Manchester - Law) has posted Comparativism and Colonizing Thinking in International Law. Here's the abstract:

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called Comparative International Law (‘the comparativist project’). The comparativist project has attracted enormous attention and enthusiasm in the international legal literature. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a dangerous thought-colonizing enterprise. The article ends with some observations on the need to promote counter-comparability thinking as a guarantee against colonizing thinking in international legal studies.

Saul & Akande: The Oxford Guide to International Humanitarian Law

Ben Saul (Univ. of Sydney - Law) & Dapo Akande (Univ. of Oxford - Law) have published The Oxford Guide to International Humanitarian Law (Oxford Univ. Press 2020). Here's the abstract:

International humanitarian law is the law that governs the conduct of participants during armed conflict. This branch of law aims to regulate the means and methods of warfare as well as to provide protections to those who do not, or who no longer, take part in the hostilities. It is one of the oldest branches of international law and one of enduring relevance today.

The Oxford Guide to International Humanitarian Law provides a practical yet sophisticated overview of this important area of law. Written by a stellar line up of contributors, drawn from those who not only have extensive practical experience but who are also regarded as leading scholars of the subject, the text offers a comprehensive and authoritative exposition of the field. The Guide provides professionals and advanced students with information and analysis of sufficient depth to enable them to perform their tasks with understanding and confidence. Each chapter illuminates how the law applies in practice, but does not shy away from the important conceptual issues that underpin how the law has developed. It will serve as a first port of call and a regular reference work for those interested in international humanitarian law.

Conference: Virtual 114th ASIL Annual Meeting (Program/Registration)

The program for the American Society of International Law's postponed 114th Annual Meeting, now a virtual event on June 25-26, is available here. The Society has reduced all registration fees by 25 percent and has eliminated the fee for students altogether. Current registrants may request a refund of 25 percent of the fee they paid, but the Society hopes that those who are able will choose to donate that amount as a charitable contribution to help defray the costs the Society has incurred in creating the Virtual Annual Meeting.

Lahmann: Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution

Henning Lahmann (ESMT Berlin - Digital Society Institute) has published Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution (Cambridge Univ. Press 2020). Here's the abstract:

Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 96, no. 3, May 2020) is out. Contents include:

• Violence, Visuality and World Politics
• Helen Berents & Constance Duncombe, Introduction: violence, visuality and world politics
• Manni Crone, It's a man's world: carnal spectatorship and dissonant masculinities in Islamic State videos
• Helen Berents, Politics, policy-making and the presence of images of suffering children
• Constance Duncombe, Social media and the visibility of horrific violence
• Tim Aistrope & Stefanie Fishel, Horror, apocalypse and world politics
• Helle Malmvig, Soundscapes of war: the audio-visual performance of war by Shi'a militias in Iraq and Syria
• George Karavas, How images frame China's role in African development
• Original Articles
• Ruth Blakeley & Sam Raphael, Accountability, denial and the future-proofing of British torture
• Lesley Pruitt, Rethinking youth bulge theory in policy and scholarship: incorporating critical gender analysis
• Galia Press-Barnathan & Naama Lutz, The multilevel identity politics of the 2019 Eurovision Song Contest
• André Barrinha & Thomas Renard, Power and diplomacy in the post-liberal cyberspace
• Milan Babic, Let's talk about the interregnum: Gramsci and the crisis of the liberal world order
• Zheng Chen & Hang Yin, China and Russia in R2P debates at the UN Security Council

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 36, no. 1, March 2020) is out. Contents include:

• Articles
• Saar A Pauker, Substance and procedure in international arbitration
• Mushegh Manukyan, Hidden in the curtain of Article 44: formation rules of arbitration agreements and ICSID Arbitration Rules
• Case Notes
• Jonathan J Tompkins, There is no impending crisis: a look beyond the Sixth Circuit’s decision to permit Section 1782 discovery for use in international commercial arbitration
• Jay Tseng, Fiona Trust in context: interpreting arbitration clauses following Rinehart v Hancock
• Recent Developments
• Marcel Carvalho Engholm Cardoso, Impecunious parties in international commercial arbitration
• Morten Broberg & Niels Fenger, Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’