Kearney & Olejnikova: Researching the United Nations Documents

Janet Kearney (Fordham Univ. - Law Library) & Lucie Olejnikova (Yale Univ. - Law Library) have published Researching the United Nations Documents (GlobaLex, September/October 2020).

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (2020, no. 3) is out. Contents include:

• M. Katsivela, Les moyens de défense de la responsabilité extracontractuelle du fait personnel (droit civil québécois) et de la responsabilité délictuelle en common law au canada : une étude en droit comparé
• T. Garcia, Les activités non liées au domaine militaire des entreprises militaires et de sécurité privées
• M.L. Ndiffo Kemetio, La situation du droit international et du droit communautaire dans les constitutions des États d’Afrique subsaharienne francophone
• J.M. Bikoro, L’initiative constitutionnelle dans le nouveau constitutionnalisme des États d’Afrique noire francophone

Lifshits & Ponamorenko: International Financial Standards in the Global Legal Order and in EU and EAEU Law

Ilya Lifshits (Russian Foreign Trade Academy) & Vladislav Ponamorenko (Russian Foreign Trade Academy) have published International Financial Standards in the Global Legal Order and in EU and EAEU Law (Russian Law Journal, Vol. 8, no. 3, 2020). Here's the abstract:

The global financial crisis strengthened the role of international financial standards in global commercial architecture and outlined the specialization of standard-setting bodies. These standards may be transposed in international agreements or be implemented in the legal order of states and state communities (such as the European Union (EU) and the Eurasian Economic Union (EAEU)). The development of standard-setting bodies and the evolving process of soft law rulemaking have led to the establishment of a specific mechanism, which may be called “the soft law mechanism.” The authors argue that this mechanism includes several components: normative (IFS), institutional (SSBs), controlling (peer reviews), and assuring (implementing incentives) components. However, despite the rising influence of international financial standards, a strict boundary between soft and hard law should be established. This article outlines these boundaries and justifies the use of the term soft law. In post-crisis global financial regulation, the role of soft law has increased not only in the financial market but also in the field of monetary regulation. Along with the traditional mechanisms of financial support from the International Monetary Fund (IMF), states may use alternative bilateral and regional mechanisms. At the level of integration associations, soft law manifests in different ways. In the EU, despite the expansion of its field of action, soft law is purely an auxiliary element of the Union’s legal system. In EAEU law, the mechanism of soft-law regulation can be considered promising, given the peculiarities of the integration model.

Benesch: But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies

Susan Benesch (Harvard Univ. - Dangerous Speech Project) has posted But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies (Yale Journal on Regulation, forthcoming). Here's the abstract:

Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.

To correct this, advocates have proposed that companies follow international human-rights law. That law–by far the world’s best-known rules for governing speech–could improve regulation itself, and would also allow for better transparency and oversight on behalf of billions of people who use social media.

This paper argues that for this to work, the law must first be interpreted to clarify how (and whether) each of its provisions are suited to this new purpose. For example, the law provides that speech may be restricted to protect national security, as one of only five permissible bases for limiting speech. Governments, for which international law was written, may regulate on that basis, but not private companies which have no national security to protect.

To fill some of the gap, the paper explains and interprets the most relevant provisions of international human-rights law–Articles 19 and 20 of the International Covenant on Civil and Political Rights, which pertain to freedom of expression–for use by social media companies, in novel detail.

Giorgetti & Pollack: Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals - Introduction

Chiara Giorgetti (Univ. of Richmond - Law) & Mark A. Pollack (Temple Univ. - Political Science & Law) have posted Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals - Introduction (in Beyond Fragmentation: Cross-Fertilization, Cooperation, and Competition among International Courts and Tribunals, Chiara Giorgetti & Mark A. Pollack eds., forthcoming). Here's the abstract:

The international community in the 21st century is more legalized and more judicialized than at any other period in history. Yet today’s international legal order is also fragmented, leading to concerns about the proliferation of specialized legal regimes, adjudicated by an uncoordinated assemblage of international courts and tribunals. In this volume, we and our fellow authors explore international judicial cooperation, competition, and cross-fertilization “beyond fragmentation.” Existing scholarship on international legal fragmentation, we suggest, has moved through three phases in recent decades. In the first phase, practitioners and scholars reacted with alarm to the judicial proliferation of the post-Cold War years, which they feared would create systemic problems of overlapping and contested jurisdiction, as well as conflicting and divergent interpretations of law. Following this period of “postmodern anxieties,” the new century saw the pendulum swing towards towards a second, more optimistic school of thought, which empirically identified (and normatively championed) a series of techniques whereby international judges could “manage” fragmentation through dialogue and cross-fertilization, producing convergence and unity in international law. Most recently, in the opening salvos of a third wave, skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization.

Building on this debate, this volume interrogates the record of cross-fertilization, cooperation, and competition among international courts and tribunals. In doing so, we address three important themes. First, we examine the phenomenon of cross-fertilization in the area of procedural law, finding that that courts do indeed learn and borrow from each other in establishing procedural rules, which show signs of convergence. Second, we examine the more complex experience of cross-fertilization in substantive international law, where we find greater variation among international courts and tribunals in their willingness to refer and defer to others. Third and finally, we investigate the agents of cross-fertilization, including not only judges but also international governmental organizations, international court registries and arbitral secretariats, member states, litigants, and counsel. Each of these actors, we suggest, possesses mixed motives, weighing their (perhaps weak) interest in the coherence of the international legal system against their (perhaps dominant) interests in their own regional or substantive legal order or values, or indeed with simply winning their current dispute. The picture that emerges is one in which international judicial cross-fertilization is both real and important, but also highly variable and asymmetric across courts and issue-areas, and likely to remain so.

Guidi & Maisley: A Trillion Dollar Question: Who Should Pay for COVID-19?

Sebastian Guidi (Yale Univ. - Law) & Nahuel Maisley (Univ. of Buenos Aires - Law; New York Univ. - Law) have posted A Trillion Dollar Question: Who Should Pay for COVID-19? (New York University Law Review, forthcoming). Here's the abstract:

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit-approach” draws on a deep-seated conception of international law: states have a sovereign “right to be left alone;” the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.

In this Article, we explore this lawsuit-approach; not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic, while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.

Specifically, we make three novel claims. The first is that the arguments of the lawsuit-approach (based on the International Health Regulations and on the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit-approach faces difficulties stemming from the lack of deep normative agreement, in international law, on how to deal with unprecedented challenges such as COVID-19.

Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit-approach is led back to the global conversation about the allocation of losses it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”) making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids, and therefore requires complex reconstructions of what states owe to one another.

Our third claim further extends the foregoing reasoning. The lawsuit-approach relies on international law as a means to achieve “corrective justice,” while denying its implications for “distributive justice.” We argue that this is conceptually impossible: The general understandings we need to allocate responsibility for the pandemic are inherently distributive: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independently of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit-approach might be unpleasantly surprised of where that road may lead them.

Call for Submissions: Yearbook of International Disaster Law

A call for submissions has been issued for volume three of the Yearbook of International Disaster Law. The call is here. The deadline is October 31, 2020.

New Issue: International Affairs

The latest issue of International Affairs (Vol. 96, no. 5, September 2020) is out. Contents include:

• Special Section: Sexual Violence in the Wrong(ed) Bodies: Moving Beyond the Gender Binary in International Relations
• Paula Drumond, Elizabeth Mesok, & Marysia Zalewski, Sexual violence in the wrong(ed) bodies: moving beyond the gender binary in International Relations
• Chris Dolan, Maria Eriksson Baaz, & Maria Stern, What is sexual about conflict-related sexual violence? Stories from men and women survivors
• Philipp Schulz & Heleen Touquet, Queering explanatory frameworks for wartime sexual violence against men
• Billy Holzberg & Priya Raghavan, Securing the nation through the politics of sexual violence: tracing resonances between Delhi and Cologne
• Paul Kirby, Sexual violence in the border zone: the EU, the Women, Peace and Security agenda and carceral humanitarianism in Libya
• Articles
• Sara E Davies & Clare Wenham, Why the COVID-19 response needs International Relations
• Simon Reich & Peter Dombrowski, The consequence of COVID-19: how the United States moved from security provider to security consumer
• Carla Norrlöf, Is COVID-19 the end of US hegemony? Public bads, leadership failures and monetary hegemony
• Michael Chertoff, Patrick Bury, & Daniela Richterova, Bytes not waves: information communication technologies, global jihadism and counterterrorism
• Kai Liao, The future war studies community and the Chinese revolution in military affairs
• Marwa Daoudy, Water weaponization in the Syrian conflict: strategies of domination and cooperation
• Ann-Kathrin Rothermel, Global–local dynamics in anti-feminist discourses: an analysis of Indian, Russian and US online communities
• Kjølv Egeland, Who stole disarmament? History and nostalgia in nuclear abolition discourse

Appel à contribution : La crise sanitaire de la covid-19 (AFDI 2020)

L’Annuaire français de droit international lance un appel à contribution pour son numéro portant sur l’année 2020 (publié en 2021) dans le cadre du dossier qui sera consacré à la crise sanitaire de la covid-19. La date limite est le jeudi 15 octobre 2020. Télécharger.

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 19, Supplement, July 2020) is out. Contents include:

• The Trade Impacts of Fossil Fuel Subsidies
• Tom Moerenhout, Trade Impacts of Fossil Fuel Subsidies
• Elizabeth L. Roos & Philip D. Adams, The Economy-Wide Impact of Subsidy Reform: A CGE Analysis
• Manal Shehabi, Is Energy Subsidy Reform in an Oil-Exporting Small Economy Beneficial to Trade? Illustrations from Kuwait
• Joerg Beutel, Analysing Fuel Subsidy and Taxation Reform with Input–Output Data
• Habtamu Fuje, Transportation Cost, Fuel Subsidies, and Commodity Prices
• Ronald P. Steenblik & Mark Mateo, Western Europe's Long Retreat from Coal and Implications for Energy Trade

Gray: First Indictment Announced at the Kosovo Specialist Chambers

Kevin W. Gray has posted an ASIL Insight on First Indictment Announced at the Kosovo Specialist Chambers.

Alter: Contracting v. Multilateralism in Global Economic Governance: Before, during and after the WTO

Karen J. Alter (Northwestern Univ. - Political Science; Univ. of Copenhagen - iCourts) has posted Contracting v. Multilateralism in Global Economic Governance: Before, during and after the WTO (in International Economic Dispute Settlement: Demise or Transformation?, Manfred Elsig, Rodrigo Polanco & Peter van den Bossche eds., forthcoming). Here's the abstract:

This chapter, for a book focused on the future of the World Trade Organization, discusses three ways that global economic law and corresponding transnational dispute settlement systems have been constructed across time: via private contracting, inter-state contracting, or through principled multilateralism. Offering a global capitalism and law perspective, the chapter compares the ideal type of each model to the historical practice, identifying what multilateralism provides that contracting does not. The larger argument is that all three modes of law-making should and will co-exist. We should therefore be thinking about which mode of law-making is best for a particular issue or context, and how we might use the other modes to address problems that arise in each approach. The chapter then considers how contracting can supplant the WTO, and the tradeoffs associated with such an outcome.

Ninth Annual Junior Faculty Forum for International Law

The Ninth Annual Junior Faculty Forum for International Law will be held in virtual format starting today. The Forum will take place over five closed sessions on September 10, October 1, October 2, October 8, and October 9, 2020, and is convened by J.H.H. Weiler (New York Univ. - Law), Sarah M.H. Nouwen (European Univ. Institute - Law) and Dino Kritsiotis (Univ. of Nottingham - Law), with guest convenors HAN Lyu and ZHU Jingwen (both of Renmin Law School, Beijing). Thirteen junior scholars have been selected to present their work. The program is here.

Conference: 49th Annual Conference of the Canadian Council on International Law

The Canadian Council on International Law will hold its 49th Annual Conference virtually on October 29-30, 2020. The theme is "International Law in 2020: Fit for Purpose?" In addition, two webinars will precede the conference, on October 1 and October 15, and two will follow, on November 12 and November 26. The full program will be available here.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 34, no. 3, Fall 2019) is out. Contents include:

• Article
• Emmanuel Gaillard, 2018 Lalive Lecture: The Myth of Harmony in International Arbitration
• Case Comment
• Gabriel M Lentner, Bridgestone v Panama: When Are Trademarks Covered Investments?
• Jeffrey Cohen, Edi Grgeta, & Federico Temerlin, In All Probability: An Economic Reading of Damages Under Factory at Chorzów
• Constantinos Salonidis & Sudhanshu Roy, Union of India v Vodafone Group plc: One Step Closer to Reconciling the Jurisdictional Competence of Domestic Courts and Investment Treaty Tribunals?
• Articles
• Mark McLaughlin, Defining a State-Owned Enterprise in International Investment Agreements 
• Gary Born & Stephanie Forrest, Amicus Curiae Participation in Investment Arbitration
• Kathryn Khamsi, Investments in Unsettled Maritime Boundary Contexts: The Role of Bilateral Investment Treaties in Delivering Certainty 
• Asaf Niemoj, The Limitations on Article 43 ICSID Convention: An (Un)limited Instrument of the Tribunal? 
• Ridhi Kabra, Return of the Inconsistent Application of the ‘Essential Security Interest’ Clause in Investment Treaty Arbitration: CC/Devas v India and Deutsche Telekom v India

New Issue: Diritti umani e diritto internazionale

The latest issue of Diritti umani e diritto internazionale (Vol. 14, no. 2, 2020) is out. Contents include:

• Studi
• Eduardo Savarese, ‘What Is Done, Is Done’: come non espugnare la filiazione internazionalprivatistica, ma armonizzarla con i diritti umani
• Gabriele Della Morte, Quanto Immuni? Luci, ombre e penombre dell’app selezionata dal Governo italiano
• Francesca Maoli, Giovanni Sciaccaluga, Sara Lembrechts, Tine Van Hof, Laura Carpaneto, Thalia Kruger, & Wouter Vandenhole, Understanding the Best Interests of the Child in EU Child Abduction Proceedings: Perspectives from the Case Law
• CRC and Its Friends: 30 Years of Outsourcing Interpretation of Children’s Rights
• Giacomo Biagioni, The Convention on the Rights of the Child and the EU Judicial Cooperation in Civil Matters
• Brigida Varesano, The Controversial Condition of Child-Soldiers: The Quest For Consistency Through the Lens of the Child’s Best Interests in the Light of the Convention on the Rights of the Child
• La riforma della prescrizione: diritto costituzionale, diritto penale e Convenzione europea dei diritti umani
• Margherita Cassano, Introduzione
• Marcello Cecchetti, Simone Pajno, Il problema della prescrizione penale alla prova del costituzionalismo ‘per principi’
• Gian Luigi Gatta, Prescrizione del reato, ragionevole durata del processo e tutela dei beni giuridici
• Maria Luisa Padelletti, La riforma della prescrizione tra diritti dell’imputato e della persona offesa: riflessioni dal punto di vista della Convenzione europea dei diritti dell’uomo
• Interventi
• Marcello Di Filippo, Walking the (Barbed) Wire of the Prohibition of Collective Expulsion: An Assessment of the Strasbourg Case Law
• Maria Ferrara, L’ordinanza cautelare della Corte internazionale di giustizia nel caso Gambia c. Myanmar: la prova dell’intento genocidario tra giurisdizione prima facie e test di plausibilità della pretesa
• Pasquale Pirrone, I primi pareri pregiudiziali della Corte europea dei diritti umani: aspetti procedurali
• Gianpaolo Maria Ruotolo, A Little Hate, Worldwide! Di libertà d’opinione e discorsi politici d’odio on-line nel diritto internazionale ed europeo
• Giovanni Zarra, Sulla compatibilità di misure restrittive, adottate in Italia e nella Regione Campania per contenere l’epidemia di COVID-19, con gli articoli 5 e 2 del Protocollo n. 4 CEDU

Stahn & Iverson: Just Peace After Conflict: Jus Post Bellum and the Justice of Peace

Carsten Stahn (Leiden Univ. - Law) & Jens Iverson (Leiden Univ. - Law) have published Just Peace After Conflict: Jus Post Bellum and the Justice of Peace (Oxford Univ. Press 2020). The table of contents is here. Here's the abstract:

The interplay between peace and justice plays an important role in any contemporary conflict. Peace can be described in a variety ways, as being 'negative' or 'positive', 'liberal' or 'democratic'. But what is it that makes a peace just? This book draws together leading scholars to study this concept of a 'just peace', analysing different elements of the transition from conflict to peace.

The volume covers six core themes: conceptual approaches towards just peace, macro-principles, the nexus to security and stability, protection of persons and public goods, rule of law, and economic reform and accountability. Contributions engage with understudied issues, such as the pros and cons of robust UN mandates, the link between environmental protection and indigenous peoples, the treatment of illegal settlements, the feasibility of vetting practices, and the protection of labour rights in post-conflict economies. Overall, the book puts forward a case that just peace requires not only negotiation, agreement, and compromise, but contextual understandings of law, multiple dimensions of justice, and strategies of prevention.

New Volume: Recueil des Cours

Volume 407 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:

• Volume 407
• Jan Wouters, Le statut juridique des standards publics et privés dans les relations économiques internationales
• Sandrine Maljean-Dubois, Le droit international de la biodiversité

Fikfak: War, International Law and the Rise of Parliament - The Influence of International Law on UK Parliamentary Practice with Respect to the Use of Force

Veronika Fikfak (Univ. of Copenhagen - Law) has posted War, International Law and the Rise of Parliament - The Influence of International Law on UK Parliamentary Practice with Respect to the Use of Force. Here's the abstract:

In foreign relations law, the power to wage war is inherently an executive power. It is the government that declares war or sends the military forces into battle. Yet, increasingly, the prerogative to engage in military action has been open to scrutiny by domestic parliaments. These are more and more frequently asked to provide support for the Government in its decisions and to the military personnel on the ground. The votes in national parliaments provide legitimacy to the decision made and give the impression of the Government having been held to account by the people’s representatives. In some cases, ie when national parliaments had effectively vetoed the Government’s plans for military actions, there is even talk of a quasi-sharing of powers between the Executive and the Legislature. The paper tracks the decline of ‘government’ and the rise of the ‘house’ in the language used in the debates in the UK Parliament. It reveals how the terminology used in the debates has shifted from the power of the Government to the responsibility of the House. It maps out how this shift is mirrored in the increased relevance of international law and specifically the legality of the military intervention. It is this question – and particularly the experience of Iraq – that has reshaped the position of the UK Parliament vis-à-vis the Government. The investigation also reveals that as more and more MPs become involved and informed on issues of war, the deference shown to international institutions and their evaluation of the situation declines. MPs become more confident and more competent to make these decisions themselves.

ESIL Interest Group Workshops This Week

Though the European Society of International Law's annual conference that was to occur this week has been postponed, some of the Society's Interest Groups will be holding workshops in the coming days, as they would have had the conference been taking place. Here's the schedule:

• September 9, 2020
• Interest Group on International Economic Law
• Interest Group on International Business & Human Rights
• Interest Group on International Law of Culture
• September 10, 2020
• Interest Group on International Courts and Tribunals

Call for Papers: Practising Reflexivity in International Law

The Law Department of the European University Institute, with the support of the European Society of International Law, has issued a call for papers for a Doctoral Forum on International Law, to be held in Florence, on November 23–24, 2020. The topic is "Practising Reflexivity in International Law." The call is here. The deadline is September 13, 2020.

Event: Covid-19 and international law: science and disinformation, exceptions and emergencies

On September 10, 2020, the European Society of International Law and the Stockholm Center for International Law and Justice will hold a joint event, consisting of two panels: "Covid-19 and International Law: Science, Tech, Trolls and the Role of Information" and "Covid-19 and International Law: Emergencies, Exceptions and Regime Contestation." Details, including registration information, can be found here.

Call for Submissions: Migration and Culture: Implementation of Cultural Rights of Migrants

A call for submissions has been issued for a volume on "Migration and Culture: Implementation of Cultural Rights of Migrants," to be edited by Giovanni Carlo Bruno (National Research Council of Italy), Fulvio Maria Palombino (Univ. of Naples “Federico II”), Adriana Di Stefano (Univ. of Catania), and Gianpaolo Maria Ruotolo (Univ. of Foggia). The call is here.

Longobardo: State Immunity and Judicial Countermeasures

Marco Longobardo (Univ. of Westminster - Law) has posted State Immunity and Judicial Countermeasures (European Journal of International Law, forthcoming). Here's the abstract:

This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.

Webinars: International Disaster Law

The Yearbook of International Disaster Law and the American Society of International Law's Disaster Law Interest Group have organized a series of webinars. Participation is free of charge. The schedule is here.