This article is the first to identify and analyze the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law (IHL), also known as the Law of Armed Conflict (LOAC). While there was minimal direct state involvement in IHL-making initiatives in the first decade of the 21st century, in recent years states have taken an active part in IHL making. This article analyzes the policies of two states that stand in the middle of this debate – the U.S. and Israel – to provide a detailed account of contemporary state-led IHL-making. It argues that these new initiatives are an attempt by states to regain their influence over IHL from non-state actors. This suggests three broad implications for international lawmaking. First, unilateral lawmaking documents might be adopted more often as an alternative to traditional lawmaking and soft law initiatives when contracting costs are high. Second, the new lawmaking initiatives tend to adopt non-state actors' strategies to influence the debate, as an expression of states’ internalization of the horizontal nature of contemporary international lawmaking. Third, states often cooperate with non-state actors that share their interpretive positions in the international lawmaking process.
Saturday, December 22, 2018
Shereshevsky: Back in The Game: International Humanitarian Law-Making by States
Yahli Shereshevsky (Univ. of Haifa - Law) has posted Back in The Game: International Humanitarian Law-Making by States (Berkeley Journal of International Law, forthcoming). Here's the abstract:
New Issue: Nordic Journal of Human Rights
The latest issue of the Nordic Journal of Human Rights (Vol. 36, no. 4, 2018) is out. Contents include:- Business and Human Rights Research Methods
- Aurora Voiculescu, Intersecting Spheres of Analysis in Business and Human Rights: Developing a New Socio-Legal Research Agenda and Methodology for UN Guiding Principle No 9
- Liliana Lizarazo-Rodríguez, The UN ‘Guiding Principles on Business and Human Rights’: Methodological Challenges to Assessing the Third Pillar: Access to Effective Remedy
- Başak Bağlayan, Searching for Human Rights Norms for Corporate Conduct in Domestic Jurisprudence: A Bottom-Up Approach to International Law
- Karin Buhmann, Analysing OECD National Contact Point Statements for Guidance on Human Rights Due Diligence: Method, Findings and Outlook
- Kendyl Salcito & Mark Wielga, Corporate Human Rights Risk Assessment: Aligning what is Measured and Managed
Conference: 4es journées de la justice pénale internationale
Conference: La Convention de Vienne sur le droit des traités : bilan et perspectives cinquante ans après son adoption
Call for Papers: Exit! Il recesso dai trattati multilaterali Crisi e nuovi slanci nella cooperazione internazionale ed europea
A call for papers has been issued for the XV edizione dell’Incontro fra giovani cultori delle materie internazionalistiche, to take place April 1, 2019, at the Università degli Studi di Milano. The theme is: "Exit! Il recesso dai trattati multilaterali Crisi e nuovi slanci nella cooperazione internazionale ed europea." The call is here.
de Paz González: The Social Rights Jurisprudence in the Inter-American Court of Human Rights
The Inter-American Court of Human Rights continues to build justiciability to determine the social rights of marginalised individuals and groups in the Americas. In this engaging book, Isaac de Paz González unveils the abilities, and the practices of the Inter-American Court’s contribution to human rights policy in the Global South.
This innovative book offers a thorough and complete examination of the Inter-American Court’s jurisprudence over its forty years of existence, within the framework of Economic and Social Rights (ESR). The author offers a concise discussion of both the historic and landmark cases in regards to ESR, and its theoretical basis, as well as giving insight into how to further improve and protect the lives of the most vulnerable people in the Americas. This book also exposes the possibility of enforcing legal remedies for poverty and structural discrimination in order to seek social justice.
New Issue: Transnational Legal Theory
- John Harrington, “We can’t wait for the bugs to spread” rhetorics of time, space and biosecurity in global health law
- Dana Burchardt, The twilight of legal order? On the current challenges faced by the concept of a legal system
- Martine Beijerman, Conceptual confusions in debating the role of NGOs for the democratic legitimacy of international law
New Issue: Journal of International Economic Law
The latest issue of the Journal of International Economic Law (Vol. 21, no. 4, December 2018) is out. Contents include:- Brian McGarry, The Global Pact for the Environment: Freshwater and Economic Law Synergies
- Aaditya Mattoo & Joshua P Meltzer, International Data Flows and Privacy: The Conflict and Its Resolution
- Gabrielle Marceau, Evolutive Interpretation by the WTO Adjudicator
- Devin McDaniels, Ana Cristina Molina, & Erik N Wijkström, A Closer Look At WTO’s Third Pillar: How WTO Committees Influence Regional Trade Agreements
- Federico Ortino, The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?
- Qiang Cai & Pengfei Zhang, A Theoretical Reflection on the OECD’s New Statistics Reporting Framework for the Mutual Agreement Procedure: Isolating, Measuring, and Monitoring
- Sherzod Shadikhodjaev, Non-Market Economies, Significant Market Distortions, and the 2017 EU Anti-Dumping Amendment
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. 20, no. 3, 2018) is out. Contents include:- Ingo Venzke, Possibilities of the Past: Histories of the NIEO and the Travails of Critique
- Marta Lorente, Historical Titles v. Effective Occupation: Spanish Jurists on the Caroline Islands Affair (1885)
- Joshua Smeltzer, On the Use and Abuse of Francisco de Vitoria: James Brown Scott and Carl Schmitt
- Chen Li, Professor James Leslie Brierly and His First Chinese Pupil Li Shengwu at Oxford University Faculty of Law (1927–1930)
Radi: Research Handbook on Human Rights and Investment
- Yannick Radi, Introduction: Taking stock of the societal and legal interplay between human rights and investment
- Ursula Kriebaum, Human rights and international investment arbitration
- Rodrigo Polanco & Rodrigo Mella, Investment arbitration and human rights cases in Latin America
- Maria Fanou & Vassilis Tzevelekos, The shared territory of the ECHR and international investment law
- Laurence Boisson de Chazournes & Rukia Baruti, Human rights, international investment law and transparency
- Valentina Vadi, Human rights and investments at the WTO
- Gwen Lehane, Human Rights at the World Bank group
- Eric De Brabandere & Maryse Hazelzet, Corporate responsibility and human rights – Navigating between international, domestic and self-regulation
- Gilles Lhuilier, MNCs obligations in their 'sphere of influence'
- Joanna Kyriakakis, International criminal responsibilities for MNCs violations of human rights
- Antal Berkes, Extraterritorial responsibility of the home States for MNCs violations of human rights
- Jacky Mandelbaum & Jennifer Loutit, Extractive industry investments and human rights
- Kaitlin Cordes, Investments and human rights in the agricultural sector
- Dorothée Baumann-Pauly & Sarah Margaretha Jastram, Assessing human rights issues in the fashion industry – Challenges for investors
- Mara Tignino, Private investments and the human right to water
- Delphia Lim, Investments and human rights in Asia
Friday, December 21, 2018
New Issue: Arbitration International
- Articles
- Klaus Peter Berger, Institutional arbitration: harmony, disharmony and the ‘Party Autonomy Paradox’
- A conversation with Professor William W. (Rusty) Park—as interviewed by Professor Catherine A. Rogers: Institute for Transnational Arbitration Houston, Texas, 13 January 2017
- Julio César Betancourt, Damages for breach of an international arbitration agreement under English arbitration law
- Daniel Kalderimis, International arbitration in a brave new world
- Alexey Vyalkov, Hypothetical release damages: a ‘one-size-fits-all’ way to establish a loss in international investment disputes?
- Susanna Hoe, Pope Gregory the Great and the Disputes of Sardinian Women 591–604
- Recent Developments
- Peng Hou, Financing arbitration in mainland China: Hong Kong’s legislation as a model
New Volume: Chinese (Taiwan) Yearbook of International Law and Affairs
- Essay
- James A.R. Nafziger, Some Personal Reflections about Getting Started as an International Lawyer
- Articles
- Michael Hwang S.C. & Lim Si Cheng, Breaking the Silence of the Executive: The Residual Role of the Common Law Courts in the Determination of Statehood
- Hyun-jin Park, Sovereignty Over Dokdo as Interpreted and Evaluated from the Korean-Japanese Exchanges of Notes Verbales (1952–1965)
- Yasue Mochizuki, Roles and Functions of Transitional Justice Mechanisms in the Asia-Pacific Region in the Development of International Law
- Brian McGarry, Third Parties and Insular Features After the South China Sea Arbitration
- Agata Kleczkowska, “Recognition” of Governments by International Organizations – The Example of the UN General Assembly and Asian States
Thursday, December 20, 2018
New Issue: Review of International Studies
- Misrecognition in World Politics: Revisiting Hegel
- Charlotte Epstein, Thomas Lindemann, & Ole Jacob Sending, Frustrated sovereigns: the agency that makes the world go around
- Charlotte Epstein, The productive force of the negative and the desire for recognition: Lessons from Hegel and Lacan
- Minda Holm & Ole Jacob Sending, States before relations: On misrecognition and the bifurcated regime of sovereignty
- Ayşe Zarakol, Sovereign equality as misrecognition
- Tanja Aalberts, Misrecognition in legal practice: the aporia of the Family of Nations
- Julia Gallagher, Misrecognition in the making of a state: Ghana’s international relations under Kwame Nkrumah
- Catarina Kinnvall & Ted Svensson, Misrecognition and the Indian state: the desire for sovereign agency
- Thomas Lindemann, Agency (mis)recognition in international violence: the case of French jihadism
Wednesday, December 19, 2018
New Issue: Journal of International Peacekeeping
The latest issue of the Journal of International Peacekeeping (Vol. 21, nos. 3-4, 2017) is out. Contents include:- Monica Hirst, Thinking Regional on Peace Missions in Latin America
- Danilo Marcondes, Maíra Siman & Ricardo Oliveira, South-South Cooperation and Training for Peacekeeping Participation: Expertise and Status in Brazil’s Involvement in Africa and Latin America
- Sara Singleton & Anne Holohan, The Case for ‘Trust Awareness’ as a Key Soft-Skill for Peacekeepers: A Study on How Trust Impacts Inter-Organizational Cooperation and Local Ownership with Military Peacekeepers Deployed to UNIFIL
- Conor Foley, Rebuilding the Justice Sector of Afghanistan
- Nicholas Vialle, Managing Expectations: How Have Tensions between the International Community and National Government Impacted the Implementation of Transitional Justice in South Sudan?
Dimitrakos: Greece’s Ratification Procedure of the Final Settlement Agreement Between Greece and FYROM
Dimitrios Dimitrakos (Univ. of the Pacific - McGeorge School of Law) has posted an ASIL Insight on Greece’s Ratification Procedure of the Final Settlement Agreement Between Greece and FYROM.
Guariglia, Batros, Gallmetzer, & Mugwanya: The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence
A comprehensive source of the most authoritative statements of the International Criminal Court's appellate jurisprudence. Its clear format includes commentaries followed by excerpts of the decisions and judgments, carefully selected by lawyers based on their relevance and grouped by topic. It provides a practical background to the International Criminal Court's appellate jurisprudence from experienced current and former Appeals Counsel of the Office of the Prosecutor of the Court, highlighting pertinent issues. In doing so, readers are given the tools to discern the meaning of the case law themselves, while attention is drawn to the most important developments in the jurisprudence. This text presents an authoritative and comprehensive digest of the Appeals Chamber's jurisprudence, bringing the relevant case extracts together for the first time with clear and informative commentary.
Sirleaf: Responsibility for Epidemics
Matiangai V.S. Sirleaf (Univ. of Pittsburgh - Law) has posted Responsibility for Epidemics (Texas Law Review, forthcoming). Here's the abstract:
Epidemics are the result of the actions of multiple actors, which necessitates a comprehensive allocation of responsibility. However, the traditional framework for responsibility, as well as the emerging norm of the responsibility to protect, are inadequate for addressing epidemics. Both perpetuate the fallacy that states can, on their own, cope with the increased incidence of epidemics and fail to adequately allocate responsibility.
Given these limitations, this Article argues for a new vision of responsibility. It develops the theory underlying the norm of common but differentiated responsibility and makes the case for expansion of this framework to the challenges posed by highly-infectious diseases. This Article articulates the distinctive normative bases for differentiating responsibilities based on need, culpability, and capacity. The framework developed herein better distributes responsibility and is less state-centric than rival norms. It accounts for structural inequality in ways that other frameworks do not. Further, it does not reify the false hierarchy between civil and political rights and economic and social rights that exists in other frameworks. It recognizes and accounts for the significant role of non-state actors and provides a basis for holding such actors responsible, as opposed to the non-attribution of responsibility that exists.
There is reason for cautious optimism about the prospects of success of this framework. First, it is consistent with theoretical and existing foundations of law where responsibility is tethered to an actor’s conduct and relationship to the harm through culpability. However, the framework does not treat the culpability model as a legal straitjacket and envisions a broad understanding of causation—direct, indirect, and historical. Additionally, the framework differentiates based on capacity, which is derived from human rights and global public health law. It also draws on extralegal incentives, building on moral and political conceptualizations of responsibility towards those in need. The common but differentiated responsibility framework is likely to gain approval and assist rapidly with the battle against epidemics. In fact, elements of it are already reflected in state practice. In sum, the theoretical framework developed in this Article serves not only to provide useful guidance to actors in the face of epidemics but also to shift extant conceptualizations of responsibility in significant ways.
New Issue: Ocean Development & International Law
The latest issue of Ocean Development & International Law (Vol. 49, no. 4, 2018) is out. Contents include:- Liu Nengye & Xu Qi, How Might the European Union Engage Constructively with China in the South China Sea?
- Suk Kyoon Kim, The Expansion of and Changes to the National Coast Guards in East Asia
- Timothy Perry, The PSI as a Shared Good: How the Proliferation Security Initiative Both Challenges and Reinforces a Prevailingly Mare Liberum Regime
- Finn Mørk, Classification of Seafloor Highs in Accordance With Article 76 of UNCLOS—Consequences of the Commission on the Limits of the Continental Shelf Recent Modifications of Its Interpretations
Tuesday, December 18, 2018
Call for Papers: EU Law, Trade Agreements, and Dispute Resolution Mechanisms: Contemporary Challenges
A call for papers has been issued for the III LAwTTIP Joint Conference, which will be held March 21-22, 2019, in London. The theme is: "EU Law, Trade Agreements, and Dispute Resolution Mechanisms: Contemporary Challenges." The call is here.
New Issue: Human Rights & International Legal Discourse
- E. Guntrip, International Investment Law in an Isolationist World: A Human Rights Perspective
- C. Sim, Strategies for Addressing Human Rights Violations in Investment Arbitration. Substantive Principles and Procedural Solutions
- F. Capone, A Reflection on the Transformative Potential of Reparations. The Approach of the Regional Human Rights Courts
- L. Lyra Jubilut & A. Sanctis, Human Rights at the International Court of Justice: The Construction of a Conversation from Judges’ Individual Opinions
New Additions to the UN Audiovisual Library of International Law
The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law. They were given by Patrícia Galvão Teles on “Obligations and Rights Erga Omnes in the case-law of the International Court of Justice” and Ki-Gab Park on “Lex Ferenda in International Law.”
New Issue: International Human Rights Law Review
The latest issue of the International Human Rights Law Review (Vol. 7, no. 2, 2018) is out. Contents include:
- Paul Harpur & Michael Ashley Stein, Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?
- Kirsten Campbell, Building National and Regional Accountability for Conflict Related Sexual Violence: From Prosecutions in the Former Yugoslavia to the African Court of Justice and Human and Peoples’ Rights
- Taygeti Michalakea, Article 46C of the Malabo Protocol: A Contextually Tailored Approach to Corporate Criminal Liability and Its Contours
- Isobel Renzulli, Strengthening the Preventive Role of the Committee for the Prevention of Torture in Africa
Alvarez: Boundaries of Investment Arbitration
The Boundaries of Investment Arbitration analyses references to European human rights and WTO law in investor-state rulings, advances reasons for these resorts to “non-investment” law, and puts these “boundary crossings” in broader context. It enumerates the legal gateways for these “public law” references and considers what engagement with human rights and trade law tells us about the motivations of investor-state arbitrators, scholars, and civil society. Exploring when and how arbitrators or litigants reach into other international law regimes to interpret the content of international investment law says a great deal about what that law is—and is not.
Titi: The Evolution of Substantive Investment Protections in Recent Trade and Investment Treaties
Catharine Titi (Centre national de la recherche scientifique) has posted The Evolution of Substantive Investment Protections in Recent Trade and Investment Treaties. Here's the abstract:
Over the years, the substantive content of international investment agreements (IIAs) has shifted to reflect political change and to respond to lessons learnt in investor-state dispute settlement (ISDS). With a focus on eight IIAs, selected with a view to geographical representativeness, this think piece explores substantive standards in recent treaty practice. It finds that new IIAs converge to a large extent with respect to their substantive standards. Old generation IIAs will probably remain dominant for some time as they represent the bulk of existing agreements. But there is a clear trend towards displacing them with the conclusion of new generation IIAs.
New Issue: Human Rights Law Review
The latest issue of the Human Rights Law Review (Vol. 18, no. 4, December 2018) is out. Contents include:- Sandra Liebenberg, Participatory Justice in Social Rights Adjudication
- Kay Wilson, The Call for the Abolition of Mental Health Law: The Challenges of Suicide, Accidental Death and the Equal Enjoyment of the Right to Life
- Andrea Nicholson, Minh Dang & Zoe Trodd, A Full Freedom: Contemporary Survivors’ Definitions of Slavery
- Laurens Lavrysen, Causation and Positive Obligations Under the ECHR: A Reply to Vladislava Stoyanova
- Charilaos Nikolaidis, Unravelling the Knot of Equality and Privacy in the European Court of Human Rights and the US Supreme Court: From Isonomia to Isotimia
- Mark Simpson, Assessing the Compliance of the United Kingdom’s Social Security System with its Obligations under the European Social Charter
- Andrew Novak, The ‘Judicial Dialogue’ in Transnational Human Rights Litigation: Muruatetu & Anor v Republic and the Abolition of the Mandatory Death Penalty in Kenya
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