This essay analyzes the outcome of the sixty-ninth session of the U.N. International Law Commission held in the summer of 2017 in Geneva. The session was the first of a new quinquennium of the Commission, consisting of members who will serve from 2017 until 2021. Notably, the Commission completed on first reading a full set of draft articles with commentary on crimes against humanity. Progress was also made in developing draft guidelines on the provisional application of treaties; draft guidelines on protection of the atmosphere; draft articles on the immunity of state officials from foreign criminal jurisdiction; and draft conclusions on peremptory norms of general international law (jus cogens).
The Commission did not make any significant progress with respect to its topic on protection of the environment in relation to armed conflicts, but did appoint a new special rapporteur to carry the work forward. Further, the Commission added a new topic to its agenda on succession of states in respect of state responsibility, and added two new topics to its long-term work program, namely on general principles of law and on evidence before international courts and tribunals. The Commission did not work on two topics that completed their first readings in 2016 and that, after receiving reactions from governments and others, will likely undergo their second readings in 2018: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties.
Sunday, November 26, 2017
Murphy: Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission
d'Aspremont: International Law as a Belief System
International Law as a Belief System considers how we construct international legal discourses and the self-referentiality at the centre of all legal arguments about international law. It explores how the fundamental doctrines (e.g. sources, responsibility, statehood, personality, interpretation and jus cogens etc.) constrain legal reasoning by inventing their own origin and dictating the nature of their functioning. In this innovative work, d'Aspremont argues that these processes constitute the mark of a belief system. This book invites international lawyers to temporarily suspend some of their understandings about the fundamental doctrines they adhere to in their professional activities. It aims to provide readers with new tools to reinvent the thinking about international law and combines theory and practice to offer insights that are valuable for both theorists and practitioners.
New Issue: Virginia Journal of International Law
The latest issue of the Virginia Journal of International Law (Vol. 57, no. 1, Spring 2017) is out. Contents include:- Rosalind Dixon, Constitutional Design Two Ways: Constitutional Drafters as Judges
- Neha Jain, Interpretive Divergence
- Russell A. Miller, Germany’s German Constitution
New Issue: International Peacekeeping
- Peacekeeping and Data
- Roger Mac Ginty, Peacekeeping and Data
- Larissa Fast, Diverging Data: Exploring the Epistemologies of Data Collection and Use among Those Working on and in Conflict
- Allard Duursma & Róisín Read, Modelling Violence as Disease? Exploring the Possibilities of Epidemiological Analysis for Peacekeeping Data in Darfur
- Tanja R. Müller & Zuhair Bashar, ‘UNAMID Is Just Like Clouds in Summer, They Never Rain’: Local Perceptions of Conflict and the Effectiveness of UN Peacekeeping Missions
- Monique J. Beerli, Legitimating Organizational Change through the Power of Quantification: Intra-Organizational Struggles and Data Deviations
- Suda Perera, To Boldly Know: Knowledge, Peacekeeping and Remote Data Gathering in Conflict-Affected States
- Allard Duursma, Counting Deaths While Keeping Peace: An Assessment of the JMAC's Field Information and Analysis Capacity in Darfur
Conference: Cyber Challenges to International Human Rights
In recent years, the digital ecosystem has become an arena for hostile cyber activities on the part of states, terror organizations, and independent or semi-independent hackers, affecting the interests of individuals, organizations and states. At the same, powerful public and private entities are able to exercise broad powers of surveillance, information collection and manipulation of software and hardware, and can utilize such powers for nefarious ends. This emerging scene, which is under-regulated, creates new threats to civil liberties and human rights. Do existing international laws and domestic law instruments and institutions adequately address these new threats to civil liberties and human rights?
This conference aims to bring together an international group of established and young scholars who are studying cybersecurity and its ramifications for civil liberties and human rights. The conference will offer an opportunity to present cutting-edge research addressing these issues, to introduce new projects and thought-provoking initiatives, and to promote exchange among participants that will inform their ongoing research.
New Issue: Journal of International Dispute Settlement
The latest issue of the Journal of International Dispute Settlement (Vol. 8, no. 4, December 2017) is out. Contents include:- Alec Stone Sweet, Michael Yunsuck Chung, & Adam Saltzman, Arbitral Lawmaking and State Power: An Empirical Analysis of Investor–State Arbitration
- Stavros Brekoulakis, Rethinking Consent in International Commercial Arbitration: A General Theory for Non-signatories
- Ginevra Le Moli, Parthan S Vishvanathan, & Anjali Aeri, Whither the Proof? The Progressive Reversal of the Burden of Proof in Environmental Cases before International Courts and Tribunals
- Nicolás M Perrone, The Emerging Global Right to Investment: Understanding the Reasoning behind Foreign Investor Rights
- Javier García Olmedo, Claims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?
New Issue: Global Trade and Customs Journal
The latest issue of Global Trade and Customs Journal (Vol. 12, no. 10, 2017) is out. Contents include:- Laura Carola Beretta & Davide Rovetta, An Overview of the Swiss Trade Sanctions and Dual-Use System,
- Zia Akhtar, NAGPRA and Commodification of Cultural Property: A Legal Mechanism to Prevent Its Transfer to Europe and Return to the Native Nations
- Amir Ahmadi & Alireza Milani, Trade and IPR in Iran: TRIPS Issues and Challenges
- Jeong Cheol Cho, Appeal Process in Korea and Appeal Strategies
New Issue: International Affairs
- Christian Bueger & Timothy Edmunds, Beyond seablindness: a new agenda for maritime security studies
- Colin McInnes & Anne Roemer-Mahler, From security to risk: reframing global health threats
- Jessica Auchter, Forced male circumcision: gender-based violence in Kenya
- Marcin Kaczmarski, Non-western visions of regionalism: China's New Silk Road and Russia's Eurasian Economic Union
- Kristen Hopewell, The BRICS—merely a fable? Emerging power alliances in global trade governance
- Damien Van Puyvelde, Stephen Coulthart, & M. Shahriar Hossain, Beyond the buzzword: big data and national security decision-making
- Jan Pospisil, ‘Unsharing’ sovereignty: g7+ and the politics of international statebuilding
- Kristoffer Kjærgaard Christensen & Karen Lund Petersen, Public–private partnerships on cyber security: a practice of loyalty
Kjeldgaard-Pedersen: Nordic Approaches to International Law
- Astrid Kjeldgaard-Pedersen, Introduction: Nordic Approaches to International Law?
- Gregor Noll, Nostalghia: A Nordic International Law
- Martti Koskenniemi, Diplomats, Professors, and then Some: Notes for a History of International Law in 20th Century Finland
- Ove Bring, Dag Hammarskjöld and the “Ambetsmanna” Approach to UN Cooperation
- Astrid Kjeldgaard-Pedersen, Nordic Judges of the Permanent Court of International Justice and the International Court of Justice
- Jens Elo Rytter, A Nordic Approach to the Interpretation of the European Convention on Human Rights?
- Marlene Wind, Who Cares about International Law? A Study of how Scandinavian Judges’ Cite International Law and Courts
- David Thor Björgvinsson, The Effect of the Judgments of the ECtHR before the National Courts – A Nordic Approach?
- Thordis Ingadottir, The implementation of the Rome Statute of the International Criminal Court in the Nordic Countries: A New Comprehensive Criminalization of Serious Crimes
- Anders Henriksen, In the Line of Fire: Denmark and Law and Legitimacy in 21st Century War of Choice
- Julie Gjørtz Howden, Communities of Interest in the Nordic Management of International Watercourses
- Cecilia M. Bailliet, A Nordic Approach to Promoting Women’s Rights within International Law: Internal v. External Perspectives
- Jakob v.H. Holtermann, Conspicuous Absence and Mistaken Presence - A Note on the Ambiguous Role of Scandinavian Legal Realism in Nordic Approaches to International Law
New Issue: Review of International Political Economy
The latest issue of the Review of International Political Economy (Vol. 24, no. 6, 2017) is out. Contents include:- Mattias Vermeiren, One-size-fits-some! Capitalist diversity, sectoral interests and monetary policy in the euro area
- Jikon Lai, Lena Rethel & Kerstin Steiner, Conceptualizing dynamic challenges to global financial diffusion: Islamic finance and the grafting of sukuk
- Juergen Braunstein, The domestic drivers of state finance institutions: evidence from sovereign wealth funds
- Sylvia Maxfield, W. Kindred Winecoff & Kevin L. Young, An empirical investigation of the financialization convergence hypothesis
- Fumihito Gotoh & Timothy J. Sinclair, Social norms strike back: why American financial practices failed in Japan
- David Ciplet, Subverting the status quo? Climate debt, vulnerability and counter-hegemonic frame integration in United Nations climate politics – a framework for analysis
Block-Lieb & Halliday: Global Lawmakers: International Organizations in the Crafting of World Markets
Global lawmaking by international organizations holds the potential for enormous influence over world trade and national economies. Representatives from states, industries, and professions produce laws for worldwide adoption in an effort to alter state lawmaking and commercial behaviors, whether of giant multi-national corporations or micro, small and medium-sized businesses. Who makes that law and who benefits affects all states and all market players. Global Lawmakers offers the first extensive empirical study of commercial lawmaking within the United Nations. It shows who makes law for the world, how they make it, and who comes out ahead. Using extensive and unique data, the book investigates three episodes of lawmaking between the late 1990s and 2012. Through its original socio-legal orientation, it reveals dynamics of competition, cooperation and competitive cooperation within and between international organizations, including the UN, World Bank, IMF and UNIDROIT, as these IOs craft international laws. Global Lawmakers proposes an original theory of international organizations that seek to construct transnational legal orders within social ecologies of lawmaking. The book concludes with an appraisal of creative global governance by the UN in international commerce over the past fifty years and examines prospective challenges for the twenty-first century.
Call for Papers: Seventh International Four Societies Conference
New Volume: Chinese (Taiwan) Yearbook of International Law and Affairs
- Special Section: The South China Sea Arbitration
- Gerhard Hafner, Some Remarks on the South China Sea Award: Itu Aba versus Clipperton
- Dustin Kuan-Hsiung Wang, From Dangerous Ground to Safe Playground: A Revisit to Fishery Co-operation in the South China Sea
- Nguyen Thi Lan Anh, The July 12 Award on the Historic Titles, Historic Rights and Impacts on State Practices in the South China Sea
- Yen-Chiang Chang, China’s Non-Participation Approach toward the South China Sea Arbitration
- Julian Ku, The Significance of China’s Rejection of the South China Sea Arbitration for Its Approach to International Dispute Settlement and International Law
- Articles
- Alonso E. Illueca, Enforcing the United Nations Security Council’s Arms Embargo on the Democratic People’s Republic of Korea: A Case Study of the Legal Consequences of the Chong Chon Gang Incident
- Stephen Allen, Dean v. Lord Advocate and the Non-Refoulement Principle at the Margins
- Bo-jiun Jing, “Go South” Going South? Assessing Taiwan’s “New Southbound” Policy and the China Factor in Southeast Asia
Saturday, November 25, 2017
Arajärvi: The Rule of Law in the 2030 Agenda
While the rule of law is the cornerstone of the international legal order, the analysis of intergovernmental instruments, statements made by States, and negotiation records, indicates that within the UN the rule of law has grown increasingly contested in the past years, culminating at the post-2015 process leading to the Sustainable Development Goals (SDGs). This research article, first, sets out the background of the rule of law debate at the UN, followed by analysis of the rule of law elements in the 2030 Agenda, and finally, explores whether the rule of law is a universal concept that carries normative authority, in particular within the SDGs framework. Reflections drawn from the post-2015 process illustrate that the rule of law - or at least the “thick” understanding of the concept - is in decline in institutional and normative contexts. Simultaneously with the broadening of the rule of law - with more substance and interpretations attached to it - its normative specificity is being diluted, which creates uncertainty and disagreement among States on its core content. This conceptual weakness impacts also the implementation of the rule of law elements in the 2030 Agenda, and can be perceived as symptomatic of a broader crisis of the international legal order.
Stroup & Wong: The Authority Trap: Strategic Choices of International NGOs
Not all international nongovernmental organizations (INGOs) are created equal, Some have emerged as "leading INGOs" that command deference from various powerful audiences and are well-positioned to influence the practices of states, corporations, and other INGOs. Yet Sarah S. Stroup and Wendy H. Wong make a strong case for the tenuous nature of this position: in order to retain their authority, INGOs such as Greenpeace, Oxfam, and Amnesty International refrain from expressing radical opinions that severely damage their long-term reputation. Stroup and Wong contend such INGOs must constantly adjust their behavior to maintain a delicate equilibrium that preserves their status.
Activists, scholars, and students seeking to understand how international organizations garner and conserve power—and how this affects their ability to fulfill their stated missions—will find much of value in The Authority Trap. The authors use case studies that illuminate how INGOs are received by three main audiences: NGO peers, state policymakers, and corporations. In the end, the authors argue, the more authority an INGO has, the more constrained is its ability to affect the conduct of world politics.
Special Section: Authority Building in Internationally Administered Territories
- Special Section: Authority Building in Internationally Administered Territories
- Thorsten Bonacker & André Brodocz, Introduction: Authority Building in International Administered Territories
- Dominik Zaum, International Transitional Administrations and the Politics of Authority Building
- Werner Distler, The Authority–Identity Relation: Symbolic References and Interpretative Authority in Postwar Kosovo
- Katrin Travouillon, Moderator or Manipulator? How International–Local Relations Emerged as a Function of UN Authority-Building in Cambodia
- Nicolas Lemay-Hébert, Exploring the Effective Authority of International Administrations from the League of Nations to the United Nations
New Issue: International Security
- Barbara F. Walter, The Extremist's Advantage in Civil Wars
- Nicholas L. Miller, Why Nuclear Energy Programs Rarely Lead to Proliferation
- Michael Beckley, The Emerging Military Balance in East Asia: How China's Neighbors Can Check Chinese Naval Expansion
- Amanda J. Rothschild, Rousing a Response: When the United States Changes Policy toward Mass Killing
- Kevin Narizny, On Systemic Paradigms and Domestic Politics: A Critique of the Newest Realism
- Correspondence
- Michael Poznansky, Alexander B. Downes, & Lindsey A. O'Rourke, Friends, Foes, and Foreign-Imposed Regime Change
- Richard J. Harknett & Joseph S. Nye Jr., Is Deterrence Possible in Cyberspace?
Rudolph: Power and Principle: The Politics of International Criminal Courts
On August 21, 2013, chemical weapons were unleashed on the civilian population in Syria, killing another 1,400 people in a civil war that had already claimed the lives of more than 140,000. As is all too often the case, the innocent found themselves victims of a violent struggle for political power. Such events are why human rights activists have long pressed for institutions such as the International Criminal Court (ICC) to investigate and prosecute some of the world's most severe crimes: genocide, war crimes, and crimes against humanity.
While proponents extol the creation of the ICC as a transformative victory for principles of international humanitarian law, critics have often characterized it as either irrelevant or dangerous in a world dominated by power politics. Christopher Rudolph argues in Power and Principle that both perspectives are extreme. In contrast to prevailing scholarship, he shows how the interplay between power politics and international humanitarian law have shaped the institutional development of international criminal courts from Nuremberg to the ICC. Rudolph identifies the factors that drove the creation of international criminal courts, explains the politics behind their institutional design, and investigates the behavior of the ICC. Through the development and empirical testing of several theoretical frameworks, Power and Principle helps us better understand the factors that resulted in the emergence of international criminal courts and helps us determine the broader implications of their presence in society.
Viñuales: International Investment Proceedings: Converging Principles?
This is the text of my Morelli Lectures delivered at the University of Rome in June of 2016. In these lectures, I advance two theses. Firstly, the legal analysis of the international investment law should focus not on treaties, rules or cases, but on certain ‘stances’ or ‘positions’ that are important – perhaps the most important – ‘micro drivers’ of the dynamics of the entire investment law system. Secondly, these stances should be analysed in the light of their implications not only for investment proceedings or even the overall relation between foreign investors and host States but as one part of a larger context, involving other stakeholders, values and legal systems.
Sharman: The Despot's Guide to Wealth Management
An unprecedented new international moral and legal rule forbids one state from hosting money stolen by the leaders of another state. The aim is to counter grand corruption or kleptocracy ("rule by thieves"), when leaders of poorer countries—such as Marcos in the Philippines, Mobutu in the Congo, and more recently those overthrown in revolutions in the Arab world and Ukraine—loot billions of dollars at the expense of their own citizens. This money tends to end up hosted in rich countries. These host states now have a duty to block, trace, freeze, and seize these illicit funds and hand them back to the countries from which they were stolen. In The Despot's Guide to Wealth Management, J. C. Sharman asks how this anti-kleptocracy regime came about, how well it is working, and how it could work better. Although there have been some real achievements, the international campaign against grand corruption has run into major obstacles. The vested interests of banks, lawyers, and even law enforcement often favor turning a blind eye to foreign corruption proceeds. Recovering and returning looted assets is a long, complicated, and expensive process.
Sharman used a private investigator, participated in and observed anti-corruption policy, and conducted more than a hundred interviews with key players. He also draws on various journalistic exposés, whistle-blower accounts, and government investigations to inform his comparison of the anti-kleptocracy records of the United States, Britain, Switzerland, and Australia. Sharman calls for better policing, preventative measures, and use of gatekeepers like bankers, lawyers, and real estate agents. He also recommends giving nongovernmental organizations and for-profit firms more scope to independently investigate corruption and seize stolen assets.
d'Aspremont: Non-State Actors and the Formation of International Customary Law
This paper returns to the last decade of scholarly reflections on the question of non-state actors and customary international law and revisits some of the specific argumentative constructions and presuppositions that have informed — and continue to inform — discourses on the contribution of non-state actors and international law. This paper is specifically premised on the idea that international legal thought and practice on non-state actors and customary international law have remained chained by certain modes of reasoning and category of thoughts which have been precluding any renewal of scholarly reflection on the matter. It is submitted in this paper that, in order to make a chance of novelty and creative thinking, any new wave of scholarly reflections on the contribution of non-state actors to custom-forming processes must reinvent the very categories around which international legal discourses are currently articulated. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-state actors and customary law and must be confronted for scholarly reflections to have any potential to generate new insights.
These constructions can be summarised as follows:
- The idea that the two-element variant of the doctrine of customary international law originates in article 38 of the Statute of the Permanent Court of International Justice (hereafter the PCIJ);
- The continuous attachment of international lawyers — including the ILC — to the distinction between practice and opinio juris; and
- The understanding of the concept of non-state actors as a plain and innocent descriptive category.
New Issue: Global Constitutionalism
The latest issue of Global Constitutionalism (Vol. 6, no. 3, November 2017) is out. Contents include:- Oliviero Angeli, Global constitutionalism and constitutional imagination
- Alec Stone Sweet & Eric Palmer, A Kantian system of constitutional justice: Rights, trusteeship, balancing
- Claudio Corradetti, Constructivism in cosmopolitan law: Kant’s right to visit
- John D Feldmann, The avoidance of monetary system conflict: A role for recognition theory in reconstituting the global monetary system
- William Smith, Civil disobedience as transnational disruption
Raz: The Future of State Sovereignty
Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will breed, and to the advantages of relatively sovereign political societies. The paper identifies the advantages of the legalisation of international relations, and the growth of international bodies. The dilemma of internationalisation is that its advantages can be obtained only if international organs acquire some of the characteristics of successful sovereign political societies, in attracting the loyalty and shaping the sense of identity of their members – a faraway prospect. The best we can hope for is a mix international regime of relatively sovereign states subject to extensive regulation by international organisations and laws. That requires a pluralistic jurisprudence of international organisations, allowing for great local diversity, of which we have so far seen only small beginnings.
New Issue: Homa Publica: Revista Internacional de Direitos Humanos e Empresas
- Melik Özden, Las normas aplicables a las empresas transnacionales en el marco del Derecho Internacional
- Daniel Maurício de Aragão, Controvérsias da política mundial em Direitos Humanos: o contexto em que se discute o tratado sobre corporações transnacionais
- Esteban Iglesias, Los movimientos sociales en América Latina contemporánea: los alcances de su protagonismo político
- Juan Hernández Zubizarreta, Pedro Ramiro, & Erika González, Las Naciones Unidas y el tratado vinculante sobre empresas transnacionales y Derechos Humanos. Un análisis desde los movimientos sociales
- Luis Espinosa Salas, The way ahead for the treaty process on transnational corporations with respect to human rights
- Leigh A. Payne, Gabriel Pereira, Josefina Doz Costa, & Laura Bernal-Bermúdez, Can a Treaty on Business and Human Rights help Achieve Transitional Justice Goals?
- Pedro Villardi & Felipe Fonseca, Acesso a medicamentos e patentes farmacêuticas: a luta da sociedade civil pelo direito à saúde frente às corporações farmacêuticas transnacionais
- Julio Prieto Mendez & Gabriela Espinoza Plua, A binding treaty on corporate responsability: a global solution to address the problem of corporate impunity – Lessons learned from Aguinda vc Chevron
- Denise de Castro Pereira, Emilene Kareline Marciano dos Santos, & Patrícia Generoso Thomaz Guerra, Desenvolvimento, mineração e comunidades atingidas: a face visível dos conflitos socioambientais
- Felipe Rodrigues Siston, Práticas de transparência do financiamento ao desenvolvimento nas Américas: BNDES, BID e Banco Mundial
New Issue: Human Rights Law Review
The latest issue of the Human Rights Law Review (Vol. 17, no. 4, December 2017) is out. Contents include:- Linda C Reif, The UN Guiding Principles on Business and Human Rights and Networked Governance: Improving the Role of Human Rights Ombudsman Institutions as National Remedies
- Gauthier de Beco, Protecting the Invisible: An Intersectional Approach to International Human Rights Law
- Robert Spano, Intermediary Liability for Online User Comments under the European Convention on Human Rights
- Neil Graffin, Gäfgen v Germany, the Use of Threats and the Punishment of Those Who Ill-treat During Police Questioning: A Reply to Steven Greer
- Valentina Milano, The European Court of Human Rights’ Case Law on Human Trafficking in Light of L.E. v Greece: A Disturbing Setback?
- Jaclyn L Neo, Realizing the Right to Freedom of Thought, Conscience and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration
- Rosa Freedman & Ruth Houghton, Two Steps Forward, One Step Back: Politicisation of the Human Rights Council
- Ka Lok Yip, The Weakest Link: From Non-Derogation to Non-Existence of Human Rights
- Mark Bell, Leaving Religion at the Door? The European Court of Justice and Religious Symbols in the Workplace
