New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 37, no. 3, 2022) is out. Contents include:

• Pradeep A. Singh, The Invocation of the ‘Two-Year Rule’ at the International Seabed Authority: Legal Consequences and Implications
• Pieter Bekker, Clive Schofield, & Robert van de Poll, Transparency and Predictability in the Maritime Delimitation Process: Reverse-engineering the Somalia-Kenya Adjudicated Boundary
• Setyo Widagdo & Syahriza Alkohir Anggoro, Combating Ocean Debris: Marine Plastic Pollution and Waste Regulation in Indonesia
• Luciana Fernandes Coelho, Marine Scientific Research and Small Island Developing States in the Twenty-First Century: Appraising the United Nations Convention on the Law of the Sea
• Ríán Derrig, Inspecting Ships Autonomously under Port State Jurisdiction: Towards Sustainability and Biodiversity in the EU

Sobenes, Íñigo, & Ferrara: Hablemos de Derecho Internacional

Edgardo Sobenes, Laura Íñigo, & Pablo Ferrara have published Hablemos de Derecho Internacional (Vol. 1, 2022). The table of contents is here. Here's the abstract:

Esta obra fomenta la diseminación del derecho internacional en español y contribuye a la consolidación de la educación jurídica con contenido de primera calidad a través de una serie de colaboraciones que analizan diversos aspectos históricos y contemporáneos del derecho internacional público, la correlación entre el derecho internacional y su interpretación en América Latina, el futuro de las Naciones Unidas, el surgimiento del derecho ambiental internacional, así como la justicia y los procesos internacionales, incluyendo aquellos ante la Corte Internacional de Justicia y la Corte Penal Internacional. También incluye cuestiones relativas a los derechos humanos y el derecho internacional humanitario como la reparación de las víctimas de crímenes internacionales, el derecho de los pueblos indígenas, las discusiones jurídicas en torno a la COVID-19, el derecho del mar y la llamada blue economy.

La obra contiene colaboraciones de Philippe Couvreur, Antonio Remiro Brotons, Monique Chemillier-Gendreau, Juan Antonio Travieso, Mónica Feria-Tinta, María del Ángel Iglesias Vázquez, Iñigo de Miguel Beriain, Mario Santisteban Galarza, Juan Nascimbene, Asier Garrido Muñoz, Anne Coulon, Jorge Morales Pedraza, Juan Ramón Martínez Vargas, Carlos Gil Gandía, Laura Íñigo Álvarez, Ángel V. Horna y Pablo Ferrara.

Uraz: Classifying Genocide in International Law: The Substantiality Requirement

Onur Uraz (Univ. of Hacettepe - Law) has published Classifying Genocide in International Law: The Substantiality Requirement (Routledge 2022). Here's the abstract:

This book offers an in-depth examination into genocide law by focusing on one of the lesser examined, yet practically significant, issues: the ‘substantiality requirement’. This refers to the requirement in international law that intended destruction should be directed towards a ‘substantial’ part of a protected group in order for an atrocity to qualify as genocide. This comprehensive and detailed study draws connections between different judicial approaches to ‘substantiality’ and the varying theoretical presumptions about the constitutive concepts of the crime. This prima facia doctrinal problem is used as a springboard to scrutinise the broader theoretical problems underlying the legal conceptualisation of genocide.

The book systematically explores how the individualistic and collectivistic conceptions of the crime have been able to co-exist in case law and how the different approaches to assessing substantiality have played a backdoor role between these two conceptions. The work demonstrates that these two philosophical standpoints are far from effectively representing the reality of the protected groups and fully explaining the harm inherent to group destruction. The book revisits the recent philosophical and sociological studies on the crime and, considering ideas from the emerging ‘relational approaches to genocide’, offers a third way to understand the existing legal representation of the crime and, consequently, the idea of ‘substantiality’. It demonstrates the practical significance of its theoretical debates and applies its novel perspective through a case study on South Sudan.

Call for Papers: CyCon 2023

The NATO Cooperative Cyber Defence Centre of Excellence has issued a call for papers for the legal track of the 15th International Conference on Cyber Conflict (CyCon), to be held May 30-June 2, 2023 in Tallinn. CyCon is a multidisciplinary conference, combining academic research with high-level policy and strategy perspectives on cyber defence and security. The deadline is October 15, 2022. The call is here.

New Volume: Netherlands Yearbook of International Law

The latest volume of the Netherlands Yearbook of International Law (Vol. 51, 2020) is out. Contents include:

• Global Solidarity and Common but Differentiated Responsibilities
• Maarten den Heijer & Harmen van der Wilt, Global Solidarity and Common but Differentiated Responsibilities
• Volker Roeben & Mark Amakoromo, Responsibility, Solidarity and Their Connections in International Law: Towards a Coherent Framework
• Lonneke Peperkamp, Differentiating in the Distribution of Responsibilities: A Philosophical Analysis
• Francesca Romanin Jacur, Solidarity and Differentiation: Moral and Legal Obligations of States in Addressing Global Challenges - The Case of Climate Change
• Richard Barnes, Global Solidarity, Differentiated Responsibilities and the Law of the Sea
• Tara Davenport, Differentiated Rights and Responsibilities in Activities in the Area – From Wealth Redistribution to Marine Environmental Protection
• Ingo Venzke & Geraldo Vidigal, Are Unilateral Trade Measures in the Climate Crisis the End of Differentiated Responsibilities? The Case of the EU Carbon Border Adjustment Mechanism (CBAM)
• Owen McIntyre, Embedding ‘Solidarity’ in International Water Law: Framing ‘Equity’ in Transboundary Water Governance
• Chenguang Wang & Yi Zhang, Common but Differentiated Responsibilities and Respective Capabilities as a Guiding Principle in International Health Law in Times of Pandemics
• Yvonne Donders, The Flexibility Device in the International Covenant on Economic, Social and Cultural Rights
• Elizabeth Mavropoulou & Lilian Tsourdi, Solidarity as Normative Rationale for Differential Treatment: Common but Differentiated Responsibilities from International Environmental to EU Asylum Law?
• Terry D. Gill, Reconciling the Irreconcilable: Some Thoughts on Belligerent Equality in Non-international Armed Conflicts

Conference: Socialisms and International Law in the Contemporary World

On September 15-16, 2022, the National University of Political Studies and Public Administration, supported by the Romanian Research Council, will host a conference on "Socialisms and International Law in the Contemporary World," in Bucharest. The program is here.

McIntyre: Procedural Values in the Intervention Procedure at the International Court of Justice

Juliette McIntyre (Univ. of South Australia - Law) has posted Procedural Values in the Intervention Procedure at the International Court of Justice (Ukrainian Law Review, forthcoming). Here's the abstract:

This paper undertakes a re-examination of the Court’s practice in intervention. It contends that the common or popular tendency to ascribe the values of harmonization and efficiency to intervention creates a mirage, which disguises other values that are influential. Efficiency was not a particular motivation for the drafters of the Court’s procedure, and the Court’s jurisprudence gives little weight to efficiency values. The situation is more complex in respect of harmonization. The drafters of the Court’s Statute explicitly acknowledged the potential for intervention to hasten harmonious development of the law, and intervention can be perceived as a panacea for fragmentation. Yet rarely, if ever, has a perceived need for (or the potential normative benefits of) harmonization of the law driven the Court’s approach to intervention. Rather, this paper identifies the values of transparency, party autonomy, confidentiality, representation, and participation at work. It explores how these underlying values drive the Court’s procedural decision-making in respect of intervention, although such value-driven decision-making is at times disguised behind reference to the notion of the ‘sound administration of justice’.

Calvert: The Politics of Investment Treaties in Latin America

Julia Calvert (Univ. of Edinburgh) has published The Politics of Investment Treaties in Latin America (Oxford Univ. Press 2022). Here's the abstract:

International investment law is at a crossroads. Civil society groups, prominent think tanks, and international organisations are calling for widespread reform. At the centre of controversy are international investment agreements (IIAs) and investor-state dispute settlement (ISDS). Over 1,000 legal claims have been brought by foreign investors under IIAs since the mid-1990s, resulting in multi-million dollar fines imposed against governments for policies related to the environment, natural resource governance, and access to basic services among other areas of public concern. Governments targeted by investor claims are pursuing a variety of reforms that range from the incremental to paradigm-shifting. These different responses raise important questions about the politics of infringement and reform: Why do governments infringe on IIAs despite the costs of doing so? Why do some governments heavily targeted by investor claims pursue more substantive reforms than others? This book provides a timely examination of infringement and reform in Latin America, where governments felt the sting of investor claims sooner and with greater frequency than in other regions. It focuses on Peru, Argentina, and Ecuador, countries that responded very differently to waves of investor claims. Based on interviews with government officials, and international lawyers as well as an extensive analysis of legal transcripts, detailed case study chapters examine the conditions that prompted investor claims and the factors that inform country's reform agendas. In doing so, the book illustrates the conditions under which IIAs constrain state behaviour and how different belief systems produce different responses to external pressures for treaty compliance.

Guymon: Digest of United States Practice in International Law, 2021

CarrieLyn D. Guymon (Office of the Legal Adviser, U.S. Department of State) has published Digest of United States Practice in International Law, 2021. Congratulations to CarrieLyn on completing eleven years as Digest editor!

Dienelt: Armed Conflicts and the Environment: Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law

Anne Dienelt (Universität Hamburg - Law) has published Armed Conflicts and the Environment: Complementing the Laws of Armed Conflict with Human Rights Law and International Environmental Law (Springer 2022). Here's the abstract:

The book rethinks the means of harmonization of prima facie norm conflicts in light of the multitude of international agreements across regimes. The methodology deployed in this book, which is referred to as complementation or complementary application, represents a novel approach by focusing on commonly shared objectives and a unifying ordre public transnational across fields of public international law that allow for a harmonization beyond traditional treaty interpretation. Fields of public international law, mainly the laws of armed conflict, international environmental law, and human rights law, apply simultaneously to questions regarding the environment and war. Such a coexistence challenges the unity of the international legal order, and it also challenges the means of harmonization across fields of public international law. However, eventually, the co-existence of several fields of public international law can result in a refinement of international law and enhanced legal protection. Diversification can also contribute to clarification or normative intensification in areas of parallel application of various fields and multilayered legal protection, demonstrating a counter-option to fragmentation.

Conference: 51th Annual Conference of the Canadian Council on International Law

The Canadian Council on International Law will hold its 51th Annual Conference on October 27-28, 2022, in Ottawa. The theme is: "Solidarity and Enlightened Self-Interest in International Law: Relic or Aspiration?" The program is here. Registration is here.

New Issue: Business and Human Rights Journal

The latest issue of the Business and Human Rights Journal (Vol. 7, no. 2, June 2022) is out. Contents include:

• Scholarly Articles
• Thomas Donaldson, Intrinsic Values and Human Rights: Corporate Duties Depend on Industry Values
• Melisa N Handl, Sara L Seck & Penelope Simons, Gender and Intersectionality in Business and Human Rights Scholarship
• Vivek Krishnamurthy, With Great (Computing) Power Comes Great (Human Rights) Responsibility: Cloud Computing and Human Rights
• Fiona McGaughey, Hinrich Voss, Holly Cullen & Matthew C Davis, Corporate Responses to Tackling Modern Slavery: A Comparative Analysis of Australia, France and the United Kingdom
• Andi Baaij, The Potential of Arbitration as Effective Remedy in Business and Human Rights: Will the Hague Rules be Enough?
• Developments in the Field
• Christopher Patz, The EU’s Draft Corporate Sustainability Due Diligence Directive: A First Assessment
• Shannon Marcoux, Coca-Cola’s Cape Town Crisis: Examining Companies’ Water Rights Obligations in a Changing Climate
• Chia-Yun Po, Vietnam Marine Life Disaster: A Test Case of a Home State’s Jurisdiction in Taiwan
• David Alfrey, Lucy Amis, Steve Nickelsburg & William Rook, Candidate City Human Rights Proposals for the 2026 World Cup: The Promise of a Positive Legacy
• Mustafa Qadri, Qatar Labour Reforms Ahead of the FIFA 2022 World Cup

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 126, no. 2, 2022) is out. Contents include:

• Carlo Santulli, La neutralité de l’analyse juridique, l’utilisation des concepts de «droits de l’homme» et «démocratie» a des fins militaires et l’extension de la souveraineté de l’Etat: Observations à partir du livre de Robert Charvin, Répliques. Droit internaitonal. Relations internationales
• Daniel Ventura, Le gel des avoirs d’individus dans l’ordre juridique international: Caractérisation et qualification d’une voie d’exécution en mutation

McIntyre, Ivanaj, & Ivanaj: The Role of Multinational Enterprises in Supporting the United Nations' SDGs

John R. McIntyre (Georgia Institute of Technology), Silvester Ivanaj (ICN Business School), & Vera Ivanaj (École nationale supérieure des industries chimiques) have published The Role of Multinational Enterprises in Supporting the United Nations' SDGs (Edward Elgar Publishing 2022). The table of contents is here. Here's the abstract:

The Role of Multinational Enterprises in Supporting the United Nations’ SDGs is an exploration of the place of the private sector in implementing select Sustainable Development Goals. Beyond the abundant literature published by the United Nations and journal articles, there are few book-length treatments of the unique role that multinationals play as facilitators of goal implementation and agents of change. This volume aims to stimulate debate and research on MNEs’ best practices, fleshing out many of the seventeen goals through the lens of corporate strategic choices.

Sixteen carefully selected chapters present research advances in both study and best practices format, linking disciplines, knowledge systems, and stakeholders' perspectives to support a more sustainable business model and address the varied challenges on the road to the 2030 Agenda. They comprise a balanced mix of research methodologies: comprehensive literature reviews, theoretical frameworks, empirical studies, integrative reviews, and case studies.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 91, no. 3, 2022) is out. Contents include:

• Astrid Kjeldgaard-Pedersen & Rasmus Grønved Nielsen, Case Note on the Supreme Court of Denmark’s Judgment in Green Desert
• Elena Katselli Proukaki, Forced Displacement, Prevention from Returning and the Jurisdiction of the International Criminal Court
• Bernard Ntahiraja, The Legality and Scope of Universal Jurisdiction in Criminal Matters: Is There Any Question to Answer?
• Aoife Daly, Rebecca Thorburn Stern, & Pernilla Leviner, UN Convention on the Rights of the Child, Article 2 and Discrimination on the Basis of Childhood: The CRC Paradox?
• Nicolas Ojeda-Zavala, Erring on the Side of Indigenous peoples: Traditional Knowledge, Scientific Uncertainty, and Indigenous Participation in Decision-Making
• Sebastian Machado, Towards an Aesthetic Epistemology of International Law

New Issue: Journal of the History of International Law / Revue d'histoire du droit international

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international (Vol. 24, no. 3, 2022) is out. Contents include:

• Special Issue: The United Nations War Crimes Commission (UNWCC), 1943-1948, and the Codification of International Criminal Law
• Sabina Ferhadbegović, Kerstin von Lingen, & Julia Eichenberg, The United Nations War Crimes Commission (UNWCC), 1943–1948, and the Codification of International Criminal Law: An Introduction to the Special Issue
• Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC
• Julia Eichenberg, Crossroads in London on the Road to Nuremberg: The London International Assembly, Exile Governments and War Crimes
• Valentyna Polunina, The Absent Player: The Soviet Union and the Genesis of the Allied War Crimes Trials Program, 1941–1943
• Sabina Ferhadbegović, The United Nations War Crimes Commission and the Prosecution of War Criminals in Yugoslavia
• Sara Weydner, A Lawyer in Exile: Johannes M. de Moor and the Circulation of Legal Knowledge in Wartime London
• Ann-Sophie Schoepfel, The Imperial Precipice: Jurists and Diplomats of the French Empire at the United Nations War Crimes Commission
• Narrelle Morris, Australian Representatives to the UNWCC, 1943–1948

Mohamed: Abuse by Authority: The Hidden Harm of Illegal Orders

Saira Mohamed (Univ. of California, Berkeley - Law) has posted Abuse by Authority: The Hidden Harm of Illegal Orders (Iowa Law Review, forthcoming). Here's the abstract:

When a leader orders a subordinate to commit a crime—to kill anything that moves, as at My Lai; to extract information no matter what it takes, as at Abu Ghraib; to execute prisoners of war, as at Biscari—how should the law and a society respond? Often we ignore the leader and blame the “bad apple” subordinate who failed to do the right thing. Or, when a leader is punished, domestic and international criminal law regard them in relation to their subordinate’s offense, either as an accomplice or perhaps a perpetrator; the order simply offers the pathway to rendering the superior a party to the crime. The law says nothing, however, about an entire dimension of wrongdoing that this Article highlights: The illegal order is an abuse of the authority the leader holds over their subordinates, a misuse of control over another, a betrayal of what was supposed to be a relationship of protection, an infliction of suffering on those who—even if they themselves become perpetrators legitimately subject to punishment—are also victims of their leaders’ violation of the duty to ask of them only what is right.

This Article urges a new framing of the illegal order as a wrong by the superior against the subordinate. Focusing on the military, and drawing on fields of knowledge within the law and beyond it, the Article argues that international and domestic law should acknowledge the superior’s order not only as a link to the crimes of the subordinate, but also as an abuse of the superior’s relationship of authority over the subordinate. Explaining that the military obligation of the superior toward the subordinate is both legally founded and legally protected, the Article exposes the legal and cultural obsession with the subordinate’s ostensible autonomy as but a convenient distraction, one that relies on traditional (and contested) criminal-law assumptions of individual choice and insistence that no person has obligations to another. Further, scholars’ and practitioners’ accounts of the law of war increasingly acknowledge that soldiers are not mere instruments, but individuals, separate from the state and the superiors they serve. This shift opens the door to this Article’s proposed recognition of the harms subordinates experience when they are ordered to commit a crime.

Global in its reach and immediate in its application, this Article aims to reorient conceptions of the relationship between superior and subordinate, to elucidate how perpetrators of crimes can also suffer injuries by those who exert control over them, and to excavate and upend conventional assumptions about authority and autonomy.

AJIL Unbound Symposium: J. Benton Heath's “Making Sense of Security”

AJIL Unbound has posted a symposium on J. Benton Heath's article “Making Sense of Security.” The symposium includes an introduction by Antony T. Anghie and contributions by Alejandro Rodiles, Maryam Jamshidi, Jaya Ramji-Nogales, Craig Martin, and Gina Heathcote.

New Issue: International Environmental Agreements: Politics, Law and Economics

The latest issue of International Environmental Agreements: Politics, Law and Economics (Vol. 22, no. 3, September 2022) is out. Contents include:

• Lynda Goldsworthy, Consensus decision-making in CCAMLR: Achilles’ heel or fundamental to its success?
• Miguel Borrero & Santiago J. Rubio, An adaptation-mitigation game: does adaptation promote participation in international environmental agreements?
• Linda Mederake, Barbara Saerbeck, & Nina Kolleck, Cultivated ties and strategic communication: do international environmental secretariats tailor information to increase their bureaucratic reputation?
• Tobias Böhmelt, Environmental-agreement design and political ideology in democracies
• Chaewoon Oh, Evaluation of the UNFCCC Technology Mechanism’s contribution to an international climate policy framework
• Richard Meissner, eThekwini’s green and ecological infrastructure policy landscape: research paradigms, theories and epistocrats
• Jenna Dodson, Patricia Dérer, Philip Cafaro & Frank Götmark, Population growth, family planning and the Paris Agreement: an assessment of the nationally determined contributions (NDCs)
• Kirsten Davies, Michelle Lim, Tianbao Qin & Philip Riordan, CHANS-Law: preventing the next pandemic through the integration of social and environmental law
• Olusola Joshua Olujobi, Daniel E. Ufua, Uchechukwu Emena Okorie & Mercy E. Ogbari , Carbon emission, solid waste management, and electricity generation: a legal and empirical perspective for renewable energy in Nigeria
• Gulnara Balgimbekova, Roza Zhamiyeva, Abzal Serikbayev, Bulatbek Shnarbayev & Amanbek Mashabayev , International legal aspects of countering environmental terrorism in the context of modern trends in radical environmentalism

Lott: Hybrid Threats and the Law of the Sea: Use of Force and Discriminatory Navigational Restrictions in Straits

Alexander Lott (Univ. of Tromsø - Norwegian Centre for the Law of the Sea) has published Hybrid Threats and the Law of the Sea: Use of Force and Discriminatory Navigational Restrictions in Straits (Brill | Nijhoff 2022). Here's the abstract:

Hybrid Threats and the Law of the Sea debates the practice of states that have resorted to discriminatory navigational restrictions or aggression against foreign ships and aircraft in densely navigated straits. The book explores both widely acknowledged and lesser-known maritime incidents that meet the characteristics of hybrid warfare or hybrid conflict. This research approaches hybrid threats from the perspective of the interrelationship between navigational restrictions, law enforcement, armed attack, and the legal regime of straits. It provides guidance for determining whether the rules of armed conflict or law enforcement are applicable to various naval incidents.

Chambers & Martin: Reimagining Corporate Accountability: Moving Beyond Human Rights Due Diligence

Rachel Chambers (Univ. of Connecticut - Business) & Jena Martin (West Virginia Univ. - Law) have posted Reimagining Corporate Accountability: Moving Beyond Human Rights Due Diligence (New York University Journal of Law & Business, Vol. 18, no. 3, Summer 2022). Here's the abstract:

The global movement towards the adoption of human rights due diligence laws is gaining momentum. Starting in France, moving to Germany, and now at the European Union level, lawmakers are heeding the call to mandate that companies conduct human rights due diligence throughout their global operations. The situation in the United States is very different: although ESG (environmental, social, and governance) has received increasing national attention, there is currently no law that mandates corporate human rights due diligence.

Recognizing this disparity and acknowledging the specific context for ESG-related issues in the United States, we consider how the United States could provide clarity and direction to corporate America and global leadership on business and human rights. Our assessment reveals that while due diligence models have rapidly become the global standard for increasing corporate human rights accountability, there is concern that the legislative frameworks being adopted in Europe fail to live up to their promise.

We assess a bold and novel legislative proposition for the United States: a human rights due diligence law that is patterned after the influential anti-bribery statute, the Foreign Corrupt Practices Act. The proposal—which we coin as the due diligence + model—provides a unique response to corporate human rights abuses by combining an outright prohibition on certain serious human rights violations with due diligence and record-keeping obligations. We offer a first-of-its-kind analysis that provides crucial insight to lawmakers in the United States and around the world as they seek to craft new regulatory regimes for corporate accountability.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 26, no. 7, 2022) is out. Contents include:

• Special Issue: Judicial Activism in an Age of Populism
• Zoltán Szente & Fruzsina Gárdos-Orosz, The impact of populism on constitutional interpretation in the EU Member States
• Michal Kovalčík, The instrumental abuse of constitutional courts: how populists can use constitutional courts against the opposition
• Jan Petrov, (De-)judicialization of politics in the era of populism: lessons from Central and Eastern Europe
• Max Steuer, Authoritarian populism, conceptions of democracy, and the Hungarian Constitutional Court: the case of political participation
• Hubert Smekal, Jaroslav Benák & Ladislav Vyhnánek, Through selective activism towards greater resilience: the Czech Constitutional Court's interventions into high politics in the age of populism
• Oscar Gakuo Mwangi, Judicial activism, populism and counterterrorism legislation in Kenya: coalition for Reform and democracy (CORD) & 2 others v Republic of Kenya & 10; others [2015]
• Tarun Arora, Pandemic and community’s sense of justice through suo motu in India
• Victor Molina, Abortion, same-sex marriage, and gender identity during the Pink Tide: Venezuela compared to Latin American trends

New Issue: Human Rights Review

The latest issue of the Human Rights Review (Vol. 23, no. 3, September 2022) is out. Contents include:

• Kirstin Wagner, Susan A. Bartels, Sanne Weber & Sabine Lee, UNsupported: The Needs and Rights of Children Fathered by UN Peacekeepers in the Democratic Republic of Congo
• Evan W. Sandlin, The Trump Administration Versus Human Rights: Executive Agency or Policy Inertia?
• Madeline Baer, Beyond Consensus: Contesting the Human Rights to Water and Sanitation at the United Nations
• Alexander Zahar, Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions
• Armando Aliu & Dorian Aliu, The EU’s Hospitality and Welcome Culture: Conceiving the “No Human Being Is Illegal” Principle in the EU Fundamental Freedoms and Migration Governance

Haque: Peremptory Norms and Fundamental Values

Adil Ahmad Haque (Rutgers Univ. - Law) has posted Peremptory Norms and Fundamental Values. Here's the abstract:

The International Law Commission recently adopted a set of draft conclusions and commentaries on peremptory norms of general international law (jus cogens). It’s quite likely that the ILC’s work will be widely viewed as a definitive restatement of the law in this area. But the conclusions are at best ambiguous about what holds this area of law together. And, on balance, the commentaries tend to favor the view that non-derogability lies at the center of it all, explaining characteristics like hierarchical superiority and universal applicability, as well as consequences like the invalidity of conflicting rules. That’s the view I will reject.

My basic claim will be that peremptory norms—their characteristics, their consequences, and their content—are best explained by their moral function of reflecting and protecting the fundamental values of the international community. In contrast, the formal characteristic of non-derogability is a consequence of this moral function, rather than a basic or fundamental feature. This understanding makes us better positivists, because we better understand what this human artifact is for, how its various features enable it to perform its function, and why the dynamic process through which international law navigates its own uncertainties invites normative argument into legal reasoning. Since peremptory norms underwrite the unity of the international legal order, this understanding places consensus and contestation over fundamental values at the very heart of international law.

Helfer & Land: The Facebook Oversight Board's Human Rights Future

Laurence R. Helfer (Duke Univ. - Law) & Molly K. Land (Univ. of Connecticut - Law) have posted The Facebook Oversight Board's Human Rights Future. Here's the abstract:

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or protect the rights of the platform’s users because of its narrow jurisdiction and nonexistent enforcement power. We argue that the skeptics incorrectly compare the Board to a domestic court. The central dilemmas and challenges that the Oversight Board faces—as a body of consent-based jurisdiction and constrained authority—are similar to those confronted by international human rights tribunals.

Viewing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of the Board’s structure, decision-making, and potential future trajectory. Key design features that observers have criticized are, we argue, strengths the Board can use to expand its authority over time, develop human rights norms, and influence other efforts to regulate social media platforms. In fact, when compared to human rights tribunals, the Board’s achievements are impressive. In just two years, it has issued decisions on issues ranging from hate speech to misinformation, pushed Meta to give more consideration to the context of speech, and obtained important concessions from the company regarding transparency, government take-down requests, and the impact of content moderation on marginalized communities.

This Article is the first to examine the human rights origins of the Oversight Board, its strategies for pressuring Meta to improve its content moderation policies, and how it is extending human rights norms to private social media companies. We complement this analysis with a range of recommendations for the Board to be even more effective, as well as explore possible risks and challenges, including backlash, whitewashing, and negative spillover. Our sanguine vision of the Board’s future is thus by no means assured. Nonetheless, when viewed in light of the experience of international human rights tribunals, the Board has the potential to serve as an important check on Meta and to significantly advance the promotion and protection of human rights online.