De Pooter: The Snow Crab Dispute in Svalbard

Hélène De Pooter has posted an ASIL Insight on The Snow Crab Dispute in Svalbard.

Irving: Multi-Actor Human Rights Protection at the International Criminal Court

Emma Irving (Leiden Univ. - Law) has published Multi-Actor Human Rights Protection at the International Criminal Court (Cambridge Univ. Press 2020). Here's the abstract:

Conversations about the involvement of States in the workings of the International Criminal Court often focus on the role of State cooperation in enabling the ICC to carry out criminal trials. However, there is a dimension to this cooperation that is underexplored. Whenever the ICC relies on the assistance of States, or States otherwise become involved in its functioning, the human rights of accused and witnesses involved in proceedings may be adversely affected. The simultaneous involvement of the ICC, ICC States Parties, and the ICC host State - whilst essential and unavoidable - can insert ambiguity and uncertainty into the protection of individuals, leaving the door open for human rights violations. This book explores this phenomenon of multi-actor human rights protection at the ICC. By setting out the relevant obligations of the different actors, the book highlights potential problems in human rights protection and proposes ways to mitigate them.

Koh: Building a New Legal Order for the Oceans

Tommy Koh has published Building a New Legal Order for the Oceans (NUS Press 2019). Here's the abstract:

The most important of Tommy Koh’s writings on the Law of the Sea are brought together in Building a New Legal Order for the Oceans. As President of the Third United Nations Conference on the Law of the Sea, Koh shares his perspective on the history of the United Nations Convention on the Law of the Sea (UNCLOS), the concepts, tensions and intentions that underlie many of the new legal concepts, and the unique negotiating process of the UNCLOS.

The UNCLOS has been called a constitution for the oceans and is critically important today in a world rocked by climate change and biodiversity loss, and where deep seabed resources are potentially of vital strategic importance. It is absolutely crucial to find new ways to manage the common heritage of mankind, while navigating the priorities and expectations of those who depend on the oceans. Equally, peace at sea is made possible by the UNCLOS. Koh discusses current threats to maritime security. He explains the intricacies of the disputes in the South China Sea and the success of maritime boundary conciliation between Australia and Timor-Leste.

What can be learned from the success of UNCLOS? How can we build on that success, and manage the new tensions that arise in the Law of the Sea?

Sparks: The Place of the Environment in State of Nature Discourses: Reassessing Nature, Property and Sovereignty in the Anthropocene

Tom Sparks (Max Planck Institute for Comparative Public Law and International Law) has posted The Place of the Environment in State of Nature Discourses: Reassessing Nature, Property and Sovereignty in the Anthropocene. Here's the abstract:

International environmental law, and in particular climate change law, are topics of keen interest in modern international law. Yet even in their modern forms, they depend upon and are governed by principles which derive from much earlier periods of international law and political thought. This chapter identifies sovereignty, as it has been interpreted and applied, as a key obstacle to achieving substantive environmental protection through the means of law, and traces that concept back to the roots of sovereignty in State of Nature theory. It analyses three prominent State of Nature theories, those of Thomas Hobbes, John Locke, and David Hume, in order to show that although their understandings of nature differ, each treats the natural world primarily as a resource. It then turns to modern international environmental law, taking as its case study the whaling regime, and argues that through the continued use of concepts drawn from the State of Nature tradition, an understanding of the environment as a resource to be maximally exploited is continuously re-entrenched. These conceptual foundations continue to restrain progress and development in modern environmental law.

Orentlicher: 'Worth the Effort'? Assessing the Khmer Rouge Tribunal

Diane Orentlicher (American Univ. - Law) has posted 'Worth the Effort'? Assessing the Khmer Rouge Tribunal. Here's the abstract:

Every international war crimes court has attracted controversy, but none more than the Extraordinary Chambers in the Courts of Cambodia (ECCC). Now in its twilight years, the ECCC has sparked robust debate since the late 1990s, before it was even launched. During negotiations aimed at creating a tribunal to address crimes of the Khmer Rouge, United Nations (UN) officials and others debated whether a court acceptable to Cambodia would be worthy of UN support. Today, the fulcrum of debate is whether the ECCC was ‘worth the effort’ it has required.

While myriad aspects of the ECCC’s performance are crucial to its legacy, this Article explores one question of overarching importance: whether the court’s performance has justified a central risk the UN assumed when it agreed to support the court — that case selection would be improperly influenced by the Cambodian government. More particularly, it assesses performance against two criteria: How well have safeguards against such interference worked? Are survivors of Khmer Rouge atrocities and other Cambodian citizens satisfied with ECCC justice?

Grey: Reproductive Crimes in International Criminal Law

Rosemary Grey (Univ. of Sydney - Law) has posted Reproductive Crimes in International Criminal Law (in Gender and International Criminal Law, I. Rosenthal, V. Oosterveld, & S. SáCouto eds., forthcoming). Here's the abstract:

This chapter seeks to incentivize greater attention to reproductive violence in international criminal law. The author recognizes that reproductive autonomy is a controversial issue, and has seldom been high on the international community’s agenda. As a result, there is no prospect of an international instrument that expressly criminalizes further reproductive crimes in the foreseeable future. The more practical route is to make creative use of existing legal frameworks, which as this chapter shows, have untapped potential when it comes to reproductive crimes. To illustrate this argument, the chapter examines the crimes of genocide, forced pregnancy, enslavement, sexual violence, persecution, outrages on personal dignity, torture, and inhumane acts.

Butchard: The Responsibility to Protect and the Failures of the United Nations Security Council

P M Butchard (Edge Hill Univ. - Law) has published The Responsibility to Protect and the Failures of the United Nations Security Council (Hart Publishing 2020). Here's the abstract:

What can be done if the United Nations Security Council fails to protect people from mass atrocities? At a time of inaction and political paralysis at the United Nations, this book explains the legality of alternative action beyond the Security Council.

This book takes a fresh look at the responsibility to protect and offers new and compelling insights into the powers and limits of the UN Security Council. It argues that the Security Council's responsibility to maintain international peace and security, and its responsibility to protect, do not die with its own failures. Other actors can and must take up responsibility to save those in need. In a persuasive and detailed examination of the legal framework, this research identifies options for coercive measures to be taken beyond the Council that could be used to break the deadlock, including through the General Assembly and regional organisations.

Call for Submissions: International Law and the Internet

The Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law has issued a call for submissions for a special issue on "International Law and the Internet." The call is here.

AJIL Unbound Symposium: Art, Aesthetics, and International Justice

AJIL Unbound has posted a symposium on "Art, Aesthetics, and International Justice." The symposium includes an introduction by Marina Aksenova and contributions by Karima Bennoune, Mark A. Drumbl, Tanja Aalberts and Sofia Stolk, Rachel Kerr, Maria Elander, and Emiliano J. Buis.

New Issue: Questions of International Law

The latest issue of Questions of International Law / Questioni di Diritto Internazionale (no. 67, 2020) is out. Contents include:

• Testing the legitimacy, consistency and credibility of the International Criminal Court
• Introduced by Béatrice Bonafé & Micaela Frulli
• Andrea Carcano, On the exercise of the judicial function at the International Criminal Court: Issues of credibility and structural design
• Gabrielle McIntyre, The impact of a lack of consistency and coherence: How key decisions of the International Criminal Court have undermined the Court’s legitimacy

Renz: State Responsibility and New Trends in the Privatization of Warfare

Frauke Renz has published State Responsibility and New Trends in the Privatization of Warfare (Edward Elgar Publishing 2020). Here's the abstract:

Contracts with private military and security companies are a reality of modern conflicts. This discerning book provides nuanced insights into the international legal implications of these contracts, and establishes an in-depth understanding of the impacts for contracting states, home states and territorial states under the current state responsibility regime.

Focussing on the Articles on State Responsibility (ASR) the author considers under which conditions states are, or should be, responsible for the acts of private contractors given new trends towards remote warfare involving drones and increasingly autonomous weapon systems. Rigorous academic research and case studies, combined with insights from numerous interviews with practitioners, serve to highlight the challenges to applying the ASR. These challenges range from the relativity of key concepts of attribution to the issue of when reliance on private contractors becomes a violation of the principle of distinction under International Humanitarian Law and also illustrate where the current state responsibility regime needs to be modified to adequately address evolutions in warfare.

Goldmann: Contesting Austerity: Genealogies of Human Rights Discourse

Matthias Goldmann (Goethe-Universität Frankfurt am Main - Law) has posted Contesting Austerity: Genealogies of Human Rights Discourse. Here's the abstract:

The dominant understanding of the role of human rights in the context of austerity induced by sovereign debt crises has shifted markedly over time. It reflects, and may have influenced, the genealogies of human rights law in the postwar era. Four different paradigms emerge. During the 1970s, the decade preceding the debt crisis of the 1980s, the idea of austerity as a response to debt crises was contested by the basic (human) needs approach and by the proposal of a New International Economic Order. Both strands of thought showed some affinity with human rights law, although not without ambiguity, understanding self-determination as a structural requirement for ESC rights enjoyment. Counterintuitively, though, the debt crisis beginning in the 1980s silenced, rather than provoked, any form of human rights-based critique. The IMF managed to shift the focus of the debate from human needs to human capital, in line with the emerging Washington Consensus. When the Iron Curtain fell, sovereign debt restructuring became more generous, but debtor states had to pay with ever more intrusive forms of austerity, including structural conditions such as respect for civil and political rights. This “governance paradigm” of human rights was countered by a transformative paradigm of human rights in which civil society articulated its critique of austerity. The IFIs avoided the issue of human rights, but reacted by adding “social” components to austerity that aligned with their focus on efficiency and growth and further entrenched sufficiency. The impact of austerity on the European periphery led to lots of human rights litigation, but a number of structural obstacles prevented its success. Instead, the crisis aftermath saw enormous progress in the political recognition of human rights as a relevant standard for austerity. This has given rise to a new political paradigm of human rights. While this genealogy shows the contingency of human rights discourse in relation to austerity, it reveals their potential for challenging economic expertise and empowering progressive views. The limits of human rights discourse are the limits of our imagination.

Shirlow & Waibel: The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration

Esme Shirlow (Australian National Univ. - Law) & Michael Waibel (Univ. of Vienna - Law) have posted The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration (British Yearbook of International Law, forthcoming). Here's the abstract:

How investment arbitral tribunals use preparatory materials varies significantly. In particular, they have differed in defining the rationale for referring to travaux; when to have recourse to travaux; how to use these materials; and even more fundamentally, what materials to classify as travaux. This article examines each of these issues to consider the opportunities and risks associated with the growing transparency of investment treaty negotiations for arbitral interpretations of investment treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the potential advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby a treaty interpreter casts a wide net but differentiates the weight given to materials depending on their propensity to shed light on the joint intention of the States parties. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production. Section V concludes.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 89, no. 1, 2020) is out. Contents include:

• Shorena Nikoleishvili, Waiting for Abkhazia: Secession and Borders as International Legal Instruments in Contested Sovereignty
• Tero Lundstedt, Inherited National Questions: The Soviet Legacy in Russia’s International Law Doctrine on Self-determination
• Miriam Bak McKenna, Contesting Self-determination in the Wake of Empire: Sovereignty, Human Rights and Economic Justice
• Inger Österdahl, Deployment of Armed Forces: Swedish Constitutional Considerations
• Amanda Bills, The Relationship between Third-party Countermeasures and the Security Council’s Chapter VII Powers: Enforcing Obligations erga omnes in International Law

Peters, Gless, Thomale, & Weller: Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law

Anne Peters (Max Planck Institute for Comparative Public Law and International Law), Sabine Gless (Univ. of Basel), Chris Thomale (Universität Heidelberg), & Marc-Philippe Weller (Universität Heidelberg) have posted Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law. Here's the abstract:

The paper’s starting point is the United Nations Human Rights Council working group’s revised draft of a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises of July 2019. The paper examines the draft treaty’s potential to activate and operationalize public law, private law, and criminal law for enforcing human rights. It conceptualizes a complementary approach of these three branches of law in which private and criminal legal enforcement mechanisms stand in the foreground. It argues for linking civil (tort) and criminal liability for harm caused by hands-off corporate policies, complemented by the obligation to interpret managerial duties in conformity with the human rights standards of public international law. The combination of public, private, and criminal law allows effective enforcement of human rights vis-à-vis global corporations.

von Bogdandy & Villarreal: International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis

Armin von Bogdandy (Max Planck Institute for Comparative Public Law and International Law) & Pedro Villarreal Max Planck Institute for Comparative Public Law and International Law) have posted International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis. Here's the abstract:

The coronavirus (SARS-CoV-2) pandemic is currently raging throughout the world. The ensuing crisis has acquired a multidimensional nature, affecting all levels of society. Measures adopted by domestic authorities have included a broad spectrum of restrictions: from general alerts to mandatory quarantines and isolations of individuals, to blanket travel bans and cordoning-off of cities and, in some cases, countries. Many governments have declared states of emergency, thereby assuming exceptional powers. This dire crisis leads to our core questions: What are the relevant obligations, powers and procedures under public international law? Have they been complied with? What role, if any, has international law, via its institutions, played so far?

The World Health Organization, a specialized agency of the United Nations, is the international institution with a core mandate in issues of global health. Moreover, the International Health Regulations (IHR) is the main legally binding instrument laying down rules for the cross-border spread of disease. Against this backdrop, in order to address the core questions, this paper provides an overview of the IHR in light of current issues and disputes. The paper then evaluates those issues and disputes under other regimes of international law, such as human rights, trade law, peace and security law, and the law of development finance. Lastly, the paper offers conclusions by way of answers to the research questions.

Hayashi: Military Necessity: The Art, Morality and Law of War

Nobuo Hayashi (United Nations Interregional Crime and Justice Research Institute) has published Military Necessity: The Art, Morality and Law of War (Cambridge Univ. Press 2020). Here's the abstract:

What does it mean to say that international humanitarian law (IHL) strikes a realistic and meaningful balance between military necessity and humanity, and that the law therefore 'accounts for' military necessity? To what consequences does the law 'accounting for' military necessity give rise? Through real-life examples and careful analysis, this book challenges received wisdom on the subject by devising a new theory that not only reaffirms Kriegsräson's fallacy but also explains why IHL has no reason to restrict or prohibit militarily unnecessary conduct on that ground alone. Additionally, the theory hypothesises greater normative significance for humanitarian and chivalrous imperatives when they conflict with IHL rules. By combining international law, jurisprudence, military history, strategic studies, and moral philosophy, this book reveals how rational fighting relates to ethical fighting, how IHL incorporates contrasting values that shape its rules, and how law and theory adapt themselves to war's evolutions.

New Issue: Ethics & International Affairs

The latest issue of Ethics & International Affairs (Vol. 34, no. 1, Spring 2020) is out. Contents include:

• Essays
• Luke Glanville, Hypocritical Inhospitality: The Global Refugee Crisis in the Light of History
• Mathias Risse, On American Values, Unalienable Rights, and Human Rights: Some Reflections on the Pompeo Commission
• Julia Gray, Life, Death, Inertia, Change: The Hidden Lives of International Organizations
• Roundtable: World Peace (And How We Can Achieve It)
• Alex J. Bellamy, Introduction: Taking World Peace Seriously
• Alex J. Bellamy, Thinking about World Peace
• Pamina Firchow, World Peace Is Local Peace
• Nils Petter Gleditsch, Toward a Social-Democratic Peace?
• A. C. Grayling, Toward Peace
• Jacqui True, Continuums of Violence and Peace: A Feminist Perspective
• Review Essay
• Adam Henschke, Why Would I Be a Whistleblower?

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 23, nos. 1-2, March 2020) is out. Contents include:

• Shirin Syed, Incorporation of competition‐related TRIPS flexibilities in the domestic law: A case study of India
• Johan Rochel, Intellectual property and its foundations: Using Art. 7 and 8 to address the legitimacy of the TRIPS
• Gregory D. Graff & Philip G. Pardey, Inventions and patenting in Africa: Empirical trends from 1970 to 2010
• Pratik P. Dixit, Dynamic injunctions against Internet intermediaries: An overview of emerging trends in India and Singapore
• Ankita Aseri, Commercializing religion via trademarking God
• Teshome H. Mulesa & Ola T. Westengen, Against the grain? A historical institutional analysis of access governance of plant genetic resources for food and agriculture in Ethiopia
• Carlos M. Correa, Juan I. Correa, & Bram De Jonge, The status of patenting plants in the Global South

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 17, no. 5, December 2019) is out. Contents include:

• Articles
• Alexandre Skander Galand, The Nature of the Rome Statute of the International Criminal Court (and its Amended Jurisdictional Scheme)
• Rosemary Grey, Jonathan O’Donohue, Indira Rosenthal, Lisa Davis & Dorine Llanta, Gender-based Persecution as a Crime Against Humanity: The Road Ahead
• Thijs B. Bouwknegt, Beyond ‘African Solutions to African Problems’ at the Extraordinary African Chambers and ‘Distant Justice’ at the International Criminal Court
• Sarah Nimigan, The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’
• Cheah W.L., Culture-specific Evidence before Internationalized Criminal Courts: Lessons from Asian Jurisdictions
• Cases Before International Courts and Tribunals
• Naomi Roht-Arriaza & Santiago Martínez, Grand Corruption and the International Criminal Court in the ‘Venezuela Situation’
• Caroline Sweeney, Accountability for Syria: Is the International Criminal Court Now a Realistic Option?
• National Prosecution of International Crimes: Legislation and Cases
• Linde Bryk & Miriam Saage-Maa, Individual Criminal Liability for Arms Exports under the ICC Statute: A Case Study of Arms Exports from Europe to Saudi-led Coalition Members Used in the War in Yemen

New Issue: Climate Law

The latest issue of Climate Law (Vol. 10, no. 1, 2020) is out. Contents include:

• Special Issue: Polluter Pays Principle and Climate Law
• Suzanne Kingston, The Polluter Pays Principle in EU Climate Law: an Effective Tool before the Courts?
• Nicolas de Sadeleer, Consistency between the Granting of State Aid and the Polluter-Pays Principle: Aid Aimed at Mitigating Climate Change
• Paul A. Barresi, The Polluter Pays Principle as an Instrument of Municipal and Global Environmental Governance in Climate Change Mitigation Law: Lessons from China, India, and the United States
• Dirk Heine, Michael G. Faure & Goran Dominioni, The Polluter-Pays Principle in Climate Change Law: an Economic Appraisal

Strezhnev, Simmons, & Kim: Rulers or Rules? International Law, Elite Cues and Public Opinion

Anton Strezhnev (Harvard Univ), Beth A. Simmons (Univ. of Pennsylvania), & Matthew Kim (Univ. of St. Thomas) have posted Rulers or Rules? International Law, Elite Cues and Public Opinion (European Journal of International Law, forthcoming). Here's the abstract:

One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on a proposed or ongoing restrictive refugee policy that was endorsed by the government but also likely contravened international refugee law. Respondents were randomly exposed to messages highlighting the policy’s illegality and/or the elite endorsement. The results show that, on average, the international law messages had a small but significant persuasive effect in reducing support for the restrictive policy – at most 10 percentage points. Surprisingly, there was no evidence that the countervailing elite endorsement was a significant moderator of this effect. However, in the case of the United States and among Republican co-partisans of the President, the elite endorsement independently increased respondents’ beliefs that the restriction was legal under international law while having no effect on support for the policy. The results suggest that cues from domestic elites do not strictly trump those from international sources and that despite cues about national leaders’ policy advocacy, international law can affect the attitudes of some voters even on an issue as heavily politicized as refugee policy.

Call for Papers: American Society of Comparative Law 2020 Annual Meeting

The American Society of Comparative Law has issued a call for papers for its 2020 Annual Meeting, which will take place October 15-17, at Boston University School of Law. The theme is: "Comparative Legal History." The call is here.

New Issue: Journal of Human Rights and the Environment

The latest issue of the Journal of Human Rights and the Environment (Vol. 11, no. 1, March 2020) is out. Contents include:

• Editorial
• Anna Great & Julia Dehm, Frames and contestations: environment, climate change and the construction of in/justice
• Articles
• M Joel Voss, Contesting human rights and climate change at the UN Human Rights Council
• Gavin Byrne, Climate change denial as far-right politics: How abandonment of scientific method paved the way for Trump
• Sabina Cardenas & Esteban Angulo, Human rights vs. Eco-justice: conflicts and other futures in urban open spaces in Cali, Colombia
• Sumudu Atapattu, Climate change and displacement: protecting 'climate refugees' within a framework of justice and human rights
• Matilda Arvidsson, The swarm that we already are: artificially intelligent (AI) swarming 'insect drones', targeting and international humanitarian law in a posthuman ecology

Kaoutzanis: The UN Security Council and International Criminal Tribunals: Procedure Matters

Christodoulos Kaoutzanis has published The UN Security Council and International Criminal Tribunals: Procedure Matters (Springer 2020). Here's the abstract:

The book explains why and how the UN Security Council authorizes international criminal investigations into mass atrocities. In doing so, it tackles head-on the obvious double standards of global justice, where few atrocities get investigated and most slip below the headlines. The book argues that the Council’s decision-making procedure is central to understanding the Council’s decisions. This procedure is broken into three distinct steps, namely the role of diplomats at the Council, the Council’s reliance on third parties and the Council’s resort to precedent. The volume documents that the Council authorized international criminal investigations only into the handful of mass atrocities for which the Council’s deliberations successfully completed each of these three steps.

Written for both scholars and practitioners, the book combines insights from the fields of international relations, international law and human rights. Through archival research and interviews with UNSC diplomats who took part in deliberations on atrocities, the volume presents evidence that supports its argument across cases and across time. In doing so, the book avoids the yes/no (or 0 vs 1) tendency of many social science projects, thereby acknowledging that there is no silver bullet to explain the work of the Council’s five permanent and ten elected members.