Judges and scholars have long debated whether the European Court of Human Rights (the ECtHR or the Court) can only expand, never diminish, human rights protections in Europe. Recent studies have found that political backlashes and national-level restrictions have influenced ECtHR case law. However, analysing whether the ECtHR is shifting in a regressive direction faces an empirical challenge: How can we observe whether the Court is limiting rights over time if the ECtHR has never expressly overturned a prior judgment in a way that favours the government? We gain traction on this question by analysing all separate and minority opinions of the ECtHR Grand Chamber between 1998 and 2018. We focus on opinions asserting that the Grand Chamber has tacitly overturned prior rulings or settled doctrine in a way that favours the respondent state, which we label as ‘walking back dissents’. We find that walking back dissents have become significantly more common in the last decade, revealing that some members of the ECtHR themselves believe that the Grand Chamber is increasingly overturning prior judgments in a regressive direction.
Thursday, July 2, 2020
Helfer & Voeten: Walking Back Human Rights in Europe?
Laurence R. Helfer (Duke Univ. - Law) & Erik Voeten (Georgetown Univ. - Edmund A. Walsh School of Foreign Service) have posted Walking Back Human Rights in Europe? (European Journal of International Law, forthcoming). Here's the abstract:
Carcano: Notable Cases of the European Court of Human Rights on the Right to Life
Since its inception, the European Court of Human Rights has been at the forefront of the interpretative effort to clarify and develop human rights law in controversial factual and political contexts. Given this role, this book discusses some of the most important decisions the Court has issued on the right to life under Article 2 of the European Convention on Human Rights and includes a critical analysis of the judicial developments linked to those judgments.
de la Rasilla: Concepción Arenal and the place of women in modern international law
Ignacio de la Rasilla (Wuhan Univ. - Institute of International Law) has published Concepción Arenal and the place of women in modern international law (Tijdschrift voor Rechtsgeschiedenis, Vol. 88, nos. 1-2, pp. 211–253, 2020). Here's the abstract:
This article examines the long-forgotten first book-length treatise on international law ever published by a woman in the history of international law. The first part places Concepción Arenal’s Ensayo sobre el Derecho de gentes (1879) in the historical context of the dawn of the international legal codification movement and the professionalisation of the academic study of international law. The second part surveys the scattered treatment that women as objects of international law and women’s individual contributions to international law received in international law histories up to the early twentieth century. It then draws many parallels between Arenal’s work and the influential resolutions of the first International Congress of Women in 1915 and surveys related developments during the interwar years. The conclusion highlights the need of readdressing the invisibility of women in international legal history.
Call for Applications: The Hague Academy's Centre for Studies and Research - Online
The Hague Academy of International Law is now accepting applications for the next session of its Centre for Studies and Research in International Law and International Relations, which is to take place September 1, 2020-June 1, 2021. The session will be entirely online. The topic is "Epidemics and International Law." The program is available here, with application guidelines here. The 2020 non-online program on "Applicable Law Issues in International Arbitration" has been postponed until the summer of 2021. Applications for that session have been re-opened.
Call for Headnotes: International Institutional Practice Regarding the COVID-19 Pandemic
Oxford International Organizations (OXIO), a database of annotated documents pertaining to the law of international organizations, has issued a call for headnotes on "International Institutional Practice Regarding the COVID-19 Pandemic." Here's the call:
International organizations have been actively involved in fighting the COVID-19 pandemic, covering issues ranging from governance in the health sector to the sovereign debt payment obligations of countries whose economy has been significantly affected. These actions are producing a rich collection of documents of international organizations. In actively addressing the challenges, the documents have stirred up debates and critiques that are of particular relevance to the law and practice of international organizations. OXIO is seeking to publish new headnotes regarding such new and current institutional practice (including but not limited to that of the World Health Organization) relating to the COVID-19 pandemic.
Oxford International Organizations (OXIO) is a database of annotated documents pertaining to the law of international organizations. The database is a unique and important repository, and the first of its kind, for acts and practices of international organizations which are of central importance to enquiries into international law, including international institutional law, and which have never been consolidated in one single tool. Learn more about the database on the About OXIO page.
Replies to the call should be addressed to oxio.editors@gmail.com and n.rusli@rug.nl.
Wednesday, July 1, 2020
Hague Academy of International Law 2021 Winter Courses
- Malcolm N. Shaw (Univ. of Leicester), Inaugural Lecture: A House of Many rooms: The Rise, Fall and Rise Again of Territorial Sovereignty
- Maurice Kamto (Université de Yaoundé), Cours général : Le droit international et le polycentrism normatif
- Alan Boyle (Univ. of Edinburgh), International Law-Making for the Environment
- Chester Brown (Univ. of Sydney), Evidence in International Adjudication
- Olivier de Schutter (Université catholique de Louvain), L'émergence de la souveraineté alimentaire en droit international
- Jose Angelo Estrella Faria (United Nations), La protection des biens culturels religieux en droit international public et en droit international privé
- Anne Orford (Univ. of Melbourne), Civil War and the Transformation of International Law
- William Schabas (Middlesex Univ. London; Leiden Univ.), Relationships Between International Criminal Law and Other Branches of International Law
New Podcast: Hablemos de Derecho Internacional
HDI es un podcast jurídico en español donde se abordan temas de derecho internacional, y de relevancia mundial, en compañía de expertos. El formato es conversacional, va dirigido a la audiencia hispanohablante, y el objetivo es que en cada episodio los oyentes puedan aprender, a través de la palabra de nuestros invitados, sobre el complejo mundo del derecho internacional.
New Issue: International Legal Materials
- Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination (Ukraine v. Russian Federation) (Preliminary Objections) (I.C.J.), with introductory note by Iryna Marchuk
- United Nations Security Council Resolution 2498, with introductory note by Milena Sterio
- Google LLC v. Commission Nationale de l'Informatique et des Libertés (CNIL) and Eva Glawischnig-Piesczek v. Facebook Ireland Ltd. (C.J.E.U.), with introductory note by Kenneth Propp
- Joined Cases A. K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy (C.J.E.U.), with introductory note by Joelle Grogan
- Resolution 2300 (Council of Eur. Parl. Assembly), with introductory note by David Lewis
- Ilias and Ahmed v. Hungary (Eur. Ct. H.R.), with introductory note by Vladislava Stoyanova
New Issue: Climate Law
- Phillipa C. McCormack, Jan McDonald & Kerryn A. Brent, Governance of Land-based Negative-emission Technologies to Promote Biodiversity Conservation: Lessons from Australia
- Rolf H. Weber & Andreas Hösli, Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law
- Alena V. Kodolova & Alexander M. Solntsev, Application of the Polluter-pays Principle in Russian Legislation on Climate Change: Problems and Prospects
- Morten Broberg, State of Climate Law: The Third Pillar of International Climate Change Law: Explaining ‘Loss and Damage’ after the Paris Agreement
Tuesday, June 30, 2020
New Issue: Revista Iberoamericana de Derecho Internacional y de la Integración
Tzevelekos & Berkes: Sociological Objectivism: Still Relevant?
Vassilis P Tzevelekos (Univ. of Liverpool - Law) & Antal Berkes (Brunel Univ. London - Law) have posted Sociological Objectivism: Still Relevant? (in Research Methods in International Law: A Handbook, R Deplano & N Tsagourias eds., forthcoming). Here's the abstract:
The sociological objectivism school of thought situates itself within legal positivism but squarely rejects the key principles and assumptions of the voluntarist conceptualization of international law. Sociological objectivism denies state sovereignty and considers law as stemming, not from sovereign will, but from social necessity. For objectivists, positive law cannot produce normative effects unless it is aligned with an ideal, namely objective law. This raises questions regarding the interrelationship between objective law and natural law. Although the reality of contemporary international law disproves the extreme and ‘full-bodied’ version of sociological objectivism, certain precepts of this theory remain fairly germane. The chapter situates sociological objectivism within the broader design of legal positivism, discusses the key tenets of objectivism and explores how, outside of a ‘philosophy’ of international law, this theory can be translated into (a set of) method(s).
Powderly: Judges and the Making of International Criminal Law
In Judges and the Making of International Criminal Law Joseph Powderly explores the role of judicial creativity in the progressive development of international criminal law. This wide-ranging work unpacks the nature and contours of the international criminal judicial function. Employing empirical, theoretical, and doctrinal methodologies, it interrogates the profile of the international criminal bench, judicial ethics, and the interpretative techniques that judges have utilized in their efforts to progressively develop international criminal law.
Drawing on the work of Hersch Lauterpacht, it proposes a conception of the international criminal judicial function that places judicial creativity at its very heart. In doing so it argues that international criminal judges have a central role to play in ensuring that modern international criminal law continues to adapt to a volatile global environment, where accountability for crimes that shock the conscience of humanity is as much needed as at any moment in recent history.
Monday, June 29, 2020
Davidson: American Transitional Justice: Writing Cold War History in Human Rights Litigation
Natalie Davidson offers an alternative account of Alien Tort Statute litigation by revisiting the field's two seminal cases, Filártiga (filed 1979) and Marcos (filed 1986), lawsuits ostensibly concerned with torture in Paraguay and the Philippines, respectively. Combining legal analysis, archival research and ethnographic methods, this book reveals how these cases operated as transitional justice mechanisms, performing the transition of the United States and its allies out of the Cold War order. It shows that US courts produced a whitewashed history of US involvement in repression in the Western bloc, while in Paraguay and the Philippines the distance from US courts allowed for a more critical narration of the lawsuits and their underlying violence as symptomatic of structural injustice. By exposing the political meanings of these legal landmarks for three societies, Davidson sheds light on the blend of hegemonic and emancipatory implications of international human rights litigation in US courts.
New Issue: Global Trade and Customs Journal
The latest issue of Global Trade and Customs Journal (Vol. 15, no. 7, 2020) is out. Contents include:- Michelle Limenta, Palm Oil for Fuels: WTO Rules and Environmental Protection
- Viktoriia Lapa, GATT Article XXI as a Way to Justify Food Prohibitions Adopted as a Response to COVID-19?
- Jayant Raghu Ram, From the Locker Room: Some Observations on Training Programmes in International Trade
- William A. Kerr & Crina Viju-Miljusevic, Why Has GATS Failed to Deliver Substantial Trade in Medical Services?
Gaffield: The Racialization of International Law after the Haitian Revolution: The Holy See and National Sovereignty
Julia Gaffield (Georgia State Univ. - History) has published The Racialization of International Law after the Haitian Revolution: The Holy See and National Sovereignty (American Historical Review, Vol. 125, no. 3, pp. 841–868, June 2020). Here's the abstract:
The Haitian state shaped international definitions of sovereignty and national legitimacy after the Declaration of Independence in 1804. Haiti’s nineteenth century was not a period of isolation and decline; its first six decades were globally connected because the country’s leaders challenged their postcolonial inequality with diplomacy and state formation. This strategy aimed to establish Haiti’s membership in the “family of nations,” a central metaphor in European and American diplomatic, legal, and religious decision-making. In doing so, the Haitian state forced the Atlantic powers to redefine the boundaries of international relations. Haiti’s decades-long negotiations with the Catholic Church were tied to the racialization of the global hierarchy. After its Declaration of Independence, the Haitian state began clearing a theoretical path toward recognized sovereignty based on the dominant narrative that a society must be considered “civilized” on the world stage. But, as it cultivated internal policies and practices that rejected the dominant racist assumptions, these discriminatory ideologies became increasingly more explicit in international law.
Sunday, June 28, 2020
Mann: Border Crimes as Crimes against Humanity
Itamar Mann (Univ. of Haifa - Law) has posted Border Crimes as Crimes against Humanity (in The Oxford Handbook for International Refugee Law, Cathryn Costello, Michelle Foster & Jane McAdam eds., forthcoming). Here's the abstract:
What does it mean to cast border violence as a crime against migrants, specifically as an international crime? Some instances of border violence satisfy the legal definition of crimes against humanity. However, so far, almost no investigations or prosecutions have been brought forth to hold the perpetrators of such crimes accountable. The Chapter therefore elucidates the moral and political assumptions required for international criminal law to do just that. These are divided into three groups: (1) interpretations focused on the way that border policies employ violence against migrants to send a message to other would-be migrants; (2) interpretations revealing that prosecuting border crimes allows criminal law to address ‘structural violence’; (3) interpretations stressing the social desirability of porous borders and the harms of hermetic separations between national groups. The Chapter concludes by a call to make explicit the moral and political commitments undergirding advocacy through international criminal law.
Bradford: The Brussels Effect: How the European Union Rules the World
For many observers, the European Union is mired in a deep crisis. Between sluggish growth; political turmoil following a decade of austerity politics; Brexit; and the rise of Asian influence, the EU is seen as a declining power on the world stage.
Columbia Law professor Anu Bradford argues the opposite in her important new book The Brussels Effect: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. And in contrast to how superpowers wield their global influence, the Brussels Effect - a phrase first coined by Bradford in 2012- absolves the EU from playing a direct role in imposing standards, as market forces alone are often sufficient as multinational companies voluntarily extend the EU rule to govern their global operations.
The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU's role as the world's regulator is likely to outlive its gradual economic decline, extending the EU's influence long into the future.
Blank: Irreconcilable Differences: The Thresholds for Armed Attack and International Armed Conflict
Laurie R. Blank (Emory Univ. - Law) has posted Irreconcilable Differences: The Thresholds for Armed Attack and International Armed Conflict (Notre Dame Law Review, forthcoming). Here's the abstract:
This article explores the gap between the definition of armed attack and the threshold for international armed conflict to identify possible consequences of the different definitions for the application of either or both bodies of law and to consider whether efforts to reconcile the different meanings are feasible and, more importantly, desirable or problematic. Although the dangers of conflating jus ad bellum and LOAC are well-known and thoroughly examined in jurisprudence and academic literature, the interplay between these two foundational concepts in the two bodies of law remains unexplored. These two definitions or concepts are the building blocks on which much of the international law authority regarding the use of force resides. Armed attack is the threshold for the use of force in self-defense and therefore forms an essential component of the jus ad bellum and, in effect, serves as a gatekeeper for the acceptable use of force. The existence of an international armed conflict triggers the application of LOAC, with all of its attendant authorities, obligations, rights and protections. Both terms are central to understanding the parameters for the use of force in various ways — and yet each has a different meaning, a different pedigree, and potentially consequential effects on the ability of the other term to serve its purpose. The interplay and different thresholds for armed attack and for international armed conflict raise challenging questions about the co-existence of the two bodies of law, namely the consequences of an international armed conflict triggered by acts or force that lie below the threshold for armed attack or other triggering of jus ad bellum. Can force be used and how should it be judged in such circumstances?
The first section briefly presents the definition of armed attack and the threshold for international armed conflict, with a focus on the purpose of the particular thresholds and definitions for the two terms in order to provide a foundation for the main comparisons and discussion in the rest of the article. Part II examines the gap between the respective meanings of the two concepts and the potential legal consequences. In particular, this section analyzes two primary, but opposing, interpretive effects of the gap between the meanings of armed attack and international armed conflict: first, the use of force in situations falling below the threshold of armed attack; and second, the possibility that an international armed conflict could exist without the states engaged in such conflict having the authority to use force against the adversary. Each of these possibilities raises a red flag within one body of law but at the same time hews closely to the basic concept or goals of the other, raising the question of whether this gap matters and, if so, whether some reconciliation is appropriate. The third section addresses this final question, that of reconciliation between the two definitions and examines what such reconciliation might look like. More important, attempts at reconciliation could cause a severely damaging blow to one or the other body of law, such that preserving the gap — that is, agreeing to disagree, in effect — is the better course of action.
Viterbo: Sovereign Debt Restructuring: The Role and Limits of Public International Law
The monograph “Sovereign Debt Restructuring: The Role and Limits of Public International Law” fills in a gap in recent literature focussing on the most important rules of public international law applicable to sovereign indebtedness. After providing a brief overview of the main debt restructuring vehicles that have been developed over time, the book traces a distinction between the rules of public international law that are relevant for debtor States (State succession in respect of debts, the odious debt doctrine, sovereign immunity and economic necessity) and creditor States (diplomatic protection and the conclusion of treaties specifically aimed at providing debt relief to a country). The book not only covers in detail the law and practice of the two international organisations that are mostly involved in sovereign debt issues (the IMF and the United Nations), but also examines the increasing role played by financial industry associations in the field (IIF, ICMA, ISDA).
Eslava & Hill: Cities, Post-Coloniality and International Law
Luis Eslava (Univ. of Kent - Law) & George Hill (Univ. of Cambridge) have posted Cities, Post-Coloniality and International Law (in Elgar Research Handbook on International Law and Cities, Helmut Aust & Janne Nijman eds., forthcoming). Here's the abstract:
In recent decades, the local, the municipal and the city have emerged as virtuous spaces where development and global integration can finally be achieved in the postcolony. In this chapter, we locate this emergence within a broader history of international attempts to organise and regularise urban life through multi-scalar governance structures. We identify these structures as having developed from a paradigm of direct imperial control over colonial cities, to a moment in which local life came to be organised through national logics, to the present resurgence of the local and municipal in more decentralised and indirect ordering processes. These transformations, which remind us that global governance has always been a hands-on project, have been fuelled by the intensification of the global economic order and the concomitant need to discipline lands, peoples and their fellow non-humans accordingly. The resurgence of the city as a locus of international discourse has created a dynamic interaction between international and local urban laws and development policies, which we identify in this chapter as ‘international urban law’. Our analysis points, however, not only to hegemonic forces in this interaction between the international and the local but also to the counter-hegemonic voices of resistance that have always punctuated debates about colonialism, decolonisation and cities in international law. As we demonstrate through a series of case studies, from Bogotá to Rio de Janeiro, and from Ulaanbaatar to Nairobi, today’s development programmes revive the colonial typology of cities as key nodes in global governance networks through euphemistically diverse yet still quite standardised patterns of disciplining. These case studies illuminate the socio-political (dis)arrangements underlying the present impetus towards making urban life legible and amenable to international prescriptions and the global economic order. Here we show how this reinvented brand of localised disciplining, and the resistance to it, are part and parcel of a post-colonial normative order that struggles to leave its imperial origins behind.
Todres & King: The Oxford Handbook of Children's Rights Law
Children's rights law is a relatively young but rapidly developing discipline. The U.N. Convention on the Rights of the Child, the field's core legal instrument, is the most widely ratified human rights treaty in history. Yet, like children themselves, children's rights are often relegated to the margins in mainstream legal, political, and other discourses, despite their application to approximately one-third of the world's population and every human being's first stages of life. Now thirty years old, the Convention on the Rights of the Child (CRC) signalled a definitive shift in the way that children are viewed and understood—from passive objects subsumed within the family to full human beings with a distinct set of rights. Although the CRC and other children's rights law have spurred positive changes in law, policies, and attitudes toward children in numerous countries, implementation remains a work in progress. We have reached a state in the evolution of children's rights in which we need more critical evaluation and assessment of the CRC and the large body of children's rights law and policy that this treaty has inspired. We have moved from conceptualizing and adopting legislation to focusing on implementation and making the content of children's rights meaningful in the lives of all children. This book provides a critical evaluation and assessment of children's rights law, including the CRC. With contributions from leading scholars and practitioners from around the world, it aims to elucidate the content of children's rights law, explore the complexities of implementation, and identify critical challenges and opportunities for children's rights law.
Fox-Decent: Transnational Law's Legality
Evan Fox-Decent (McGill Univ. - Law) has posted Transnational Law's Legality. Here's the abstract:
In this essay, I argue that transnational law does indeed have formal legal character. To do so, I depart from the trend of socio-legal scholarship, instead applying a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain both the nature of authority evoked by transnational legal orders, and the broader character of the law these orders purport to represent. This theory claims that the fiduciary character of an organization, namely its other-regarding purpose and adherence to certain procedural standards, is necessary for its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory enables the formulation of a persuasive rebuttal vis-à-vis scholars who deny transnational law its formal legal character. Ultimately, I argue that despite the private constitution of transnational law-making bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority which either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond state regulation, either national or international, as well as denying coercion to be an essential element of law.
Perez-Leon-Acevedo & Nicholson: Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights
This volume considers a variety of key issues pertaining to the rights of defendants and victims at International Criminal Courts (ICTs) and explores how best to balance and enhance the rights of both in order to ensure the effectiveness and efficiency of international criminal proceedings.
The rights of victims are becoming an increasingly important issue at ICTs. Yet, at the same time, this has to be achieved without having a detrimental impact upon on the rights of the defence and the efficiency of the courts. This book provides analyses of issues on the rights of both the accused and the victims. By discussing matters concerning these two pivotal actors in international criminal justice within the same volume, the work highlights that there are intrinsic and intense conflicting and converging relationships between victims and the accused, particularly in terms of their rights. While most of the chapters focus mainly on either the accused or the victims, others discuss both at the same time. The work strikes a fine balance between, on the one hand, classic topics on the rights of the accused and the rights of the victims and, on the other, topics which have been largely unexplored and/or which require new angles or perspectives. Additionally, there are some chapters which approach both the rights of the accused and the rights of the victims in new contexts and/or under novel perspectives. The book as a whole provides a discussion of the two sides of this important coin of international criminal justice.
Kassoti: The Extraterritorial Applicability of the EU Charter of Fundamental Rights: Some Reflections in the Aftermath of the Front Polisario Saga
Eva Kassoti (T.M.C. Asser Institute - Centre for the Law of European External Relations) has posted The Extraterritorial Applicability of the EU Charter of
Fundamental Rights: Some Reflections in the Aftermath of
the Front Polisario Saga (European Journal of Legal Studies, forthcoming). Here's the abstract:
The Front Polisario cases before the Court of Justice of the European Union (CJEU) brought to the forefront the question of whether the EU is bound by the Charter of Fundamental Rights when it concludes trade agreements with third states that may affect the enjoyment of fundamentalrights abroad.This isclosely linked to the broader issue of the extraterritorial application of the Charter. In light of these developments, the article purports to revisit this question with a view to ascertaining the current state of the law. It examines and rejects the argument in favour of transposing the extraterritoriality standard developed by the European Court of Human Rights. Against this backdrop, the article continues by focusing on Article 51 of the Charter, which prescribes the Charter's field of application. The main argument advanced is that territorial considerations are immaterial in the context of determining the Charter's applicability; what seems to matter in this context is whether the situation in question is covered by an European Union (EU) competence.
New Blog: Blog – Droit International Pénal (BDIP)
Nous avons l'honneur et le plaisir de vous annoncer la mise en ligne du Blog – Droit International Pénal (BDIP), premier blog en langue française entièrement dédié à la justice pénale internationale.
L'objectif du blog est d’offrir aux professionnels du droit, enseignants, chercheurs, étudiants et experts francophones un forum d’information, d'échange et de discussion en droit international pénal.
Le blog vise également à contribuer à l’avancement du droit international pénal en offrant la possibilité aux experts intéressés de publier leur analyse de la justice pénale internationale.
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