Call for Papers: Maritime Actors and Climate Change: Incentives and Strategies for Voluntary Action

TRAMEREN, a joint research venture between the Center for Enterprise Liability (CEVIA), Faculty of Law, University of Copenhagen and the Frank Guarini Center, School of Law, New York University, has issued a call for papers for a conference on "Maritime Actors and Climate Change: Incentives and Strategies for Voluntary Action," to be held June 20-21, 2016, at the University of Copenhagen. The call is here.

Meisenberg & Stegmiller: The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law

Simon M. Meisenberg & Ignaz Stegmiller have published The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law (Asser Press 2016). Contents include:

• Simon M. Meisenberg & Ignaz Stegmiller, Introduction: An Extraordinary Court
• Helen Jarvis, Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide
• Shannon Maree Torrens, Allegations of Political Interference, Bias and Corruption at the ECCC
• Frank Selbmann, The 1979 Trial of the People’s Revolutionary Tribunal and Implications for ECCC
• Jeudy Oeung, Expectations, Challenges and Opportunities of the ECCC
• Viviane E. Dittrich, The Legacy of the ECCC
• Franziska C. Eckelmans, The Duch Case: The ECCC Supreme Court Chamber’s Review of Case 001
• Russell Hopkins, The Case 002/01 Trial Judgment: A Stepping Stone from Nuremberg to the Present?
• Lachezar Yanev, The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship
• Mélanie Vianney-Liaud, Legal Constraints in the Interpretation of Genocide
• Nathan Quick, Forced Transfer and Customary International Law: Bridging the Gap Between Nuremberg and the ICTY
• Valerie Oosterveld & Patricia Viseur Sellers, Issues of Sexual and Gender-Based Violence at the ECCC
• Noëlle Quénivet, The Grave Breaches Charges at the ECCC: An Analysis
• of International Humanitarian Law in the Duch Case
• David Boyle, Past Crimes and the Effect of Statutory Limitations on the ECCC
• Sergey Vasiliev, Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law?
• Anne Heindel, Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment
• Roger L. Phillips, Frail Accused and Fitness to Stand Trial Tobias Thienel, The Admission of Torture Statements into Evidence
• Binxin Zhang, Recognizing the Limits of Victims Participation: A Comparative Examination of the Victim Participation Schemes at the ECCC and the ICC
• Ignaz Stegmiller, Legal Developments of Civil Party Participation at the ECCC

Georgiou: The Russian Gas Deal with Greece and Its Effect on EU Solidarity: Pipe Dream or Diversion?

Natasha A. Georgiou (Univ. of Reading) has posted an ESIL Reflection on The Russian Gas Deal with Greece and Its Effect on EU Solidarity: Pipe Dream or Diversion?

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 50, no. 2, 2016) is out. Contents include:

• Christian Häberli, An International Regulatory Framework for National Employment Policies
• Zhu (Judy) Wang, CFIUS under Review: National Security Review in the US and the WTO
• Lars Nilsson, EU Exports and Uptake of Preferences: A First Analysis
• Sanchita Basu Das, Rahul Sen, & Sadhana Srivastava, Can ASEAN+1 FTAs Be a Pathway towards Negotiating and Designing the Regional Comprehensive Economic Partnership (RCEP) Agreement?
• Dirk De Bièvre, Arlo Poletti, Marcel Hanegraaff, & Jan Beyers, International Institutions and Interest Mobilization: The WTO and Lobbying in EU and US Trade Policy
• Iva Mihaylova, Could the Recently Enacted Data Localization Requirements in Russia Backfire?
• Alua Amirbekova & Ruslan Galyamov, Participation Constraints in the WTO Dispute Settlement: Considering Kazakhstan

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added two lectures to the UN Audiovisual Library of International Law. They were given by Maurice Mendelson on “Customary International Law” and Kimberley Trapp on “State Responsibility for International Terrorism.”

Call for Papers: The Impact of the Law of Armed Conflict on General International Law

A call for papers has been issued for a roundtable on "The Impact of the Law of Armed Conflict on General International Law," to be held September 22-23, 2016, in Exeter. Here's the call:

The Impact of the Law of Armed Conflict

on General International Law

Expert roundtable

22–23 September 2016

Exeter, United Kingdom

Convenors:

Dr Lawrence Hill-Cawthorne (Reading) and Dr Kubo Mačák (Exeter)

Outline and Call for Papers

As one of the oldest substantive areas of international law, the law of armed conflict (LOAC) has played an important part in the development of general international law principles that now apply equally in other areas. For example, the evolution of the rules on State responsibility for the conduct of individuals can in part be traced to the development of rules attributing responsibility for violations of LOAC perpetrated by armed groups. This strong relationship between LOAC and general international law, however, has more recently come under strain as a result of more general concerns over the ‘fragmentation’ of international law, whereby substantive areas of law, including LOAC, have become divorced from general international law. It has been suggested, for example, that it is time to move away from traditional approaches to international law-making in order to ensure that LOAC remains effective at regulating contemporary conflicts. This is illustrated by claims that customary rules of LOAC, in contrast to customary international law more generally, should take account of the practice not only of States but also armed groups. In light of these conflicting perspectives, an assessment of the relationship between LOAC and general international law is both apposite and necessary.

It is on these issues that this roundtable will focus, and its goal is to facilitate in-depth discussion amongst all present. To ensure this is the case, attendees will prepare brief papers of 10-15 minutes that will initiate discussion and debate. Attendance will comprise both senior invited academics and practitioners, as well as those successfully responding to this call for papers. We therefore invite submissions on the topic of the impact of the law of armed conflict on general international law, and more generally on the relationship between LOAC and general international law. These may explore research questions such as the following:

• How do the rules on treaty interpretation in general international law operate in the specific area of LOAC?
• Has the debate on the binding nature of treaties in LOAC for non-State armed groups resonated in other areas of international law?
• To what extent is the practice of non-State armed groups relevant to the formation of customary rules of LOAC, and is the answer the same in other areas of international law in which non-State actors participate (such as investment law)?
• How, if at all, has the law of armed conflict influenced the rules on State responsibility in international law? 
• Has the growth of rights and obligations of individuals and non-State armed groups under LOAC had any impact on the development of general international law?
• How, if at all, has LOAC contributed to the ‘humanization’ of international law? 
• Have international judicial and quasi-judicial bodies which apply LOAC in their jurisprudence had any impact on the development of general international law?
• How does the impact of LOAC on general international law compare with the impact produced by other specialised areas of international law?

Paper proposals going beyond this set of suggested questions are equally welcome, provided they fit the general theme of the roundtable.

After the roundtable and subject to strict criteria of quality and thematic cohesion, the aim is to publish selected papers, following their development in light of the discussion, in an edited, peer-reviewed collection. The publication will provide a systematic and comprehensive examination of the impact of the law of armed conflict on general international law. Several leading academic publishers have already expressed their interest in this project.

Key information

Any questions about these themes or the suitability of a possible paper may be directed by email to the roundtable convenors, Dr Lawrence Hill-Cawthorne (l.hillcawthorne@reading.ac.uk) and Dr Kubo Mačák (k.macak@exeter.ac.uk).

Abstracts of no more than 500 words should be submitted by e-mail to loacimpact@gmail.com no later than 20th May 2016. Abstracts should be accompanied by your name, affiliation, email address and a brief note about your research interests and key relevant publications. A draft programme will be announced as soon as possible after the abstract submission deadline, together with registration details.

We will provide all participants with accommodation and meals in Exeter for the duration of the roundtable and cover reasonable travel expenses within the UK. There will be no registration fee

d'Aspremont: The Decay of Modern Customary International Law in Spite of Scholarly Heroism

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted The Decay of Modern Customary International Law in Spite of Scholarly Heroism (Global Community: Yearbook of International Law and Jurisprudence, 2015). Here's the abstract:

This article sheds light on those conceptual artifices that made international custom – and behaviorally generated normativity – possible in international law and shows how international lawyers’ repeated fixes and sophistications have come to precipitate the decay of the modern way of organizing the behavioral generation of legal normativity in international law. After a few introductory considerations on the notion of custom and behaviorally generated normativity from a jurisprudential perspective, this article describes how the two-element doctrine of custom – that is what is called here ‘modern custom’ – was built by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. On that occasion, this study demonstrates that the traditional derivation of the two-element doctrine of customary law from the Statute of the Court rests on a false genealogy. This article goes on to show how this modern two-element doctrine proved deficient from the start, generating huge argumentative problems. Such problems – and the general inoperability of the two-element doctrine – did not, however, undermine the popularity of custom among international lawyers thanks to a wide array of virtues traditionally associated with customary international law. These virtues explain the impressive resolve and determination of international lawyers to vindicate or patch up the modern two-element doctrine of customary international law. Yet, as the last part of this article argues, the rescue of customary international law by international lawyers may prove counter-productive as it currently is accelerating the decay of the modern two-element doctrine of customary international law. The article ends with a few observations on the life and death of doctrines.

Call for Presentations: ESIL Law of the Sea Interest Group Workshop

The Law of the Sea Interest Group of the European Society of International Law has issued a call for papers for a workshop for Ph.D. students and recent Ph.D.s on September 7, 2016, immediately preceding the 12th Annual ESIL Conference, in Riga. The theme is: "Enforcement at Sea: Legal and Operational Challenges in Maritime Security." Here's the call:

Call for presentations

Enforcement at Sea:

Legal and Operational Challenges in Maritime Security

PhD and Research Forum

organised by

ESIL Interest Group on the Law of the Sea

Riga, Wednesday 7 September 2016

The topic Piracy, drugs and arms trafficking, migrant smuggling, traffic of human beings, maritime pollution, illegal fishing, protests at sea, are some of the many activities, which threaten maritime security and safety. States but also international organisations (e.g., NATO, EU) and private actors (e.g., insurance companies, ship owners) are increasingly involved in enforcement operations at sea. The legal framework of enforcement activities relies on well-established customary and treaty-based norms, such as the rights of the coastal state in its maritime zones, and the right of visit and the right of hot pursuit on the high seas. The application of those rights to some of the current security threats has highlighted also their limits under the current legal regime, in particular in relation to the protection of fundamental rights and the use of force.

Eligible speakers and event format

This call for presentations is only open to PhD students who are writing their dissertation on the above described topics or related issues, or PhD holders who have defended their PhD thesis in the last 4 years and have been researching on one of the above described topics or related issues. The four selected PhD students and young researchers will have the opportunity to present their current research and to receive feedback by an expert of the field who will act as commentator.

The Application Process

Please submit a 500 words abstract proposal via email to Seline Trevisanut (s.trevisanut@uu.nl) by 1 June 2016. Successful applicants will be informed by 30 June 2016 and will be required to submit a detailed outline of their research (min. 2000 words, max. 4000 words) by 15 August 2016.

In addition to the abstract, the following information must be provided on the submission:

• The author’s name and affiliation
• The author’s contact details
• Whether the author is an ESIL member

Speakers will be selected by the co-convenors of the Interest Group (Miguel Garcia, Maria Gavouneli, and Seline Trevisanut), on the basis of abstracts submitted. Only one abstract per author will be considered.

The working languages of the panel are English and French. Since no translation will be provided, participants should have passive understanding of both languages and active understanding of at least one of them.

In order to participate in the Interest Group event, speakers must be members of ESIL. The membership can be formalised once abstracts have been accepted. Unfortunately, the ESIL LAWSEA IG is not in a position to cover expenses for travelling and accommodation, or to waiver the ESIL conference fee. Information on the 12th ESIL Annual Conference is available here. For further information about the LAWSEA IG, please visit the interest group's website.

New Issue: Les Cahiers de l'Arbitrage

The latest issue of Les Cahiers de l'Arbitrage (2015, no. 4) is out. Contents include:

• Doctrine – Débats
• Diego P. Fernández Arroyo & Ezequiel H. Vetulli, The Two Faces of the New Argentinian Arbitration 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. 18, nos. 2-3, 2016) is out. Contents include:

• Yi Ping, Swan Song, or a Phoenix Rising
• Vincent Genin, L’institutionnalisation du droit international comme phénomène transnational (1869–1873). Les réseaux européens de Gustave Rolin-Jaequemyns
• Ignacio de la Rasilla del Moral, In the General Interest of Peace? British International Lawyers and the Spanish Civil War
• Imprints of Colonialism in Public International Law
• Jörn Axel Kämmerer, Introduction. Imprints of Colonialism in Public International Law: On the Paradoxes of Transition
• Martti Koskenniemi, Colonial Laws: Sources, Strategies and Lessons?
• Harald Kleinschmidt, The Family of Nations as an Element of the Ideology of Colonialism
• Fabian Klose, Human Rights for and against Empire – Legal and Public Discourses in the Age of Decolonisation
• Richard P. Boast, The Waitangi Tribunal in the Context of New Zealand’s Political Culture and Historiography

Mavroidis & Wolfe: Private Standards and the WTO: Reclusive No More

Petros C. Mavroidis (Columbia Univ. - Law) & Robert Wolfe (Queen's Univ., Canada - School of Policy Studies) have posted Private Standards and the WTO: Reclusive No More. Here's the abstract:

Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime — that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself in endless discussions regarding mundane, legalistic issues, and has not moved at all towards addressing the real concerns of developing countries. We discuss one aspect of the problem: How reclusive should the WTO allow product standards to be? We argue that the WTO should adopt a “Reference Paper” that would encourage its members to apply WTO rules for adopting those standards that already come under the aegis of the WTO to private standards. In the absence of centralized enforcement, utopia in the WTO legal paradigm, transparency disciplines imposed on standard-setters is the best the WTO could offer to those who are negatively affected by private standards.

Keitner: Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity (Duke Journal of Comparative & International Law, forthcoming). Here's the abstract:

During the late nineteenth and early twentieth centuries, jurists elaborated principles of attribution in the context of the international law of State responsibility. State practice in the late nineteenth and early twentieth centuries was divided on the question of whether to attribute ultra vires acts to the State for the purposes of State responsibility. Faced with these divided views, the International Law Commission (ILC) ultimately chose to adopt a broad attribution rule in order to promote clarity and facilitate recovery. The ILC did not consider the potential implications of attributing an official’s ultra vires act to the State for the doctrine of foreign official immunity. This article explores the genesis of the ILC’s decision to codify a broad attribution rule in the Draft Articles on State Responsibility, and its unintended consequences for the doctrine of foreign official immunity. Understanding the origins and implications of the ILC’s broad approach to attribution in the law of State responsibility can help us move beyond an overly simplistic reliance on attribution as the sole criterion for delineating the scope of foreign official immunity in two ways: first, by encouraging decision-makers to differentiate explicitly between acts that fall into what I call Category One, in which attribution to the State discharges the individual from personal responsibility, and those that fall into what I call Category Two, in which attribution to the State does not discharge the individual from personal responsibility; and, second, by emphasizing that the trade-offs involved in developing principles of responsibility and immunity for States may overlap with, but are not identical to, the trade-offs involved in developing principles of responsibility and immunity for individuals. Only by unpacking these categories — which are not monolithic — can we move towards a more conceptually and doctrinally coherent account of conduct-based immunity.

Cassese: Research Handbook on Global Administrative Law

Sabino Cassese (formerly, Justice, Constitutional Court of Italy) has published Research Handbook on Global Administrative Law (Edward Elgar Publishing 2016). Contents include:

• Sabino Cassese with Elisa D’Alterio, Introduction: The Development of Global Administrative Law
• Lorenzo Casini, The Expansion of the Material Scope of Global Law
• Stefano Battini, The Proliferation of Global Regulatory Regimes
• Santiago Villalpando, Managing International Civil Servants
• Elisabetta Morlino, International Public Procurement
• Christoph Möllers, Constitutional Foundations of Global Administration
• Mario Savino, Linkages Between Global Regimes and Interactions with Civil Society
• Paul Craig, Global Networks and Shared Administration
• Richard B Stewart, Global Standards for National Societies
• Jan Wouters, Government by Negotiation
• Fabrizio Cafaggi, Transnational Private Regulation: Regulating Private Regulators
• Barbara Marchetti, The Enforcement of Global Decisions
• Marco Macchia, The Rule of Law and Transparency in the Global Space
• Mikael Rask Madsen, Judicial Globalization: The Proliferation of International Courts
• Elisa D’Alterio, Judicial Regulation in the Global Space
• Francesca Bignami, Theories of Civil Society and Global Administrative Law: The Case of the World Bank and International Development
• Marta Infantino, Global Indicators
• Giulio Vesperini, Europe and Global Law
• René Fernando Urueña Hernandez, Global Administrative Law and the Global South
• Philipp Dann, The Global Administrative Law of Development Cooperation
• Edoardo Chiti, Bringing Global Law Home
• Emma Dunlop, Globalization and Sovereignty: Global Threats and International Security
• Eyal Benvenisti, The Future of Sovereignty: The Nation State in the Global Governance Space
• Sabino Cassese, Governing the World
• Robert Howse, The Globalization Debate – A Mid-decade Perspective
• Antoine Vauchez, The Disputed Field of Global Lawyering
• Lorenzo Casini, The Global Administrative Law Scholarship

Barnes & Tzevelekos: Beyond Responsibility to Protect: Generating Change in International Law

Richard Barnes (Univ. of Hull - Law) & Vassilis Tzevelekos (Univ. of Hull - Law) have published Beyond Responsibility to Protect: Generating Change in International Law (Intersentia 2016). Contents include:

• Andre Nollkaemper, Foreword
• Richard A. Barnes & Vassilis P. Tzevelekos, Beyond Responsibility to Protect: Ceci n’est pas une pipe
• Henry Jones, The Kantian Defence of Murder
• Markus P. Beham & Ralph R.A. Janik, A ‘Responsibility to Democratise’? The ‘Responsibility to Protect’ in Light of Regime Change and the ‘Pro-Democratic’ Intervention Discourse
• Tony Ward, Commentary: Between Kant and Al-Shabaab
• Nabil Hajjami, The Institutionalisation of the Responsibility to Protect
• John Heieck, The Responsibility Not to Veto Revisited. How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council
• Julia Schmidt, The EU and the Responsibility to Protect: The Case of Libya, Mali and Syria
• Nigel D. White, Commentary: International Institutions and their Role in R2P
• Antal Berkes, De Facto Regimes and the Responsibility to Protect
• Jennifer Dee Halbert, ‘Guilty’ Governments and ‘Legitimate’ Leadership: The Concept of ‘National Authorities’ under the R2P
• Hitoshi Nasu, Commentary: Who Cares? The Primary Bearer of the Responsibility to Protect
• Humberto Cantu Rivera, On the Responsibility to Protect and the Business and Human Rights Agenda
• Kasey L. McCall-Smith, Tides of Change – The State, Business and the Human
• Lucas Lixinski, Commentary: The Responsibility to Protect and Non-State (Corporate) Actors – More of the Same?
• Sophie Rondeau, The Responsibility to Protect Doctrine, and the Duty of the International Community to Reinforce International Humanitarian Law and its Protective Value for Civilian Populations
• Raphael van Steenberghe, The Responsibility to Protect in Armed Conflict: A Step Forward for the Protection of Civilians?
• David Turns, Commentary: On the Intersection of the Responsibility to Protect, the Protection of Civilians and International Humanitarian Law in Contemporary Armed Conflicts
• Vito Todeschini, The Place of Aggression in the Responsibility to Protect Doctrine
• Barbara Sonczyk, The Impact of the Responsibility to Protect on the Protection of Peacekeeping Missions under the Rome Statute of the International Criminal Court
• Lindsay Moir, Commentary: R2P and its Consequences for International Criminal Law: Crimes as a Justification for the Use of Force
• Ludovica Poli, The ICJ Judgment in the Genocide Convention Case: Is R2P Drawing New Horizons for the Law on State Responsibility?
• Tomoko Yamashita, Responsibility to Protect as a Basis for ‘Judicial Humanitarian Intervention’
• Lenneke Sprik, Military Commanders as Bystanders to International Crimes: A Responsibility to Protect?
• Elena Katselli, Commentary: R2P as a Transforming and Transformative Concept in the Context of Responsibility as Liability
• Nicholas Tsagourias, R2P: An Inquiry into its Transformative Potential
• Jean d’Aspremont, The Transformative Agendas of R2P Discourses in International Law

Meyer: Instrumentalism

Timothy Meyer (Vanderbilt Univ. - Law) has posted Instrumentalism (in Fundamental Concepts for International Law: The Construction of a Discipline, Jean d’Aspremont & Sahib Singh eds., forthcoming). Here's the abstract:

The tension between power and principle has long been central to international legal dis-course. Instrumentalism—the idea that international law can change behavior, but only by creating constraints and opportunities that affect state interests—straddles this tension. This chapter chronicles the rise, role, and contestation of instrumentalism in international legal thought. On its own terms, instrumentalism is a descriptive tool to explain how power and norms interact to shape state behavior. Critics, however, worry that instrumen-talism legitimates power politics by clothing them in the trappings of principled legal ar-guments. Arguments that international law is not “law” or is widely ineffective—arguments that critics fear are aimed at delegitimizing international law as a normative system—have fueled these fears. The chapter argues that instrumentalist thinking has largely survived these critiques. To be sure, instrumentalist scholarship often does aim for policy relevance, and it does view law’s effectiveness as contingent on political and so-cial factors. But instrumentalism continues to flourish in both academic work and interna-tional legal practice, in large part because its usefulness as a descriptive tool has been used to understand how to make international law more effective.

The chapter concludes by considering a challenge to instrumentalism from closer to home. Borrowing from behavioralist studies in domestic law, scholars have begun to argue that the assumption of rationality often associated with instrumentalism is flawed. Instead, these writers emphasize the role of psychological biases in decision-making by international actors. This behavioral turn is promising. It remains to be seen, though, whether it will be more successful than prior critiques in modifying the basic instrumentalist framework.

Krupiy: A Toolbox for the Application of the Rules of Targeting

Tetyana (Tanya) Krupiy (McGill Univ.) has published A Toolbox for the Application of the Rules of Targeting (Cambridge Scholars Publishing 2016). Here's the abstract:

How military commanders interpret the rules of targeting impacts not only on whether civilians and civilian objects are harmed in the course of a military operation, but also on the scale of harm that ensues. Commentators have queried whether military commanders observed the law even when parties to a conflict acted in accordance with mandates to protect civilians, as was the case when a coalition of states bombed targets in Libya in 2011. However, limited guidance is publicly available on how military commanders apply these rules on the battlefield. In order to allow military commanders to exercise judgment in determining what steps they are required to take to spare civilians in a specific set of circumstances, the rules of targeting are formulated in an open-ended fashion, which complicates one’s ability to evaluate whether a particular military operation complies with the law. By examining case studies ranging from Operation Desert Storm in 1991 to Operation Protective Edge in 2014, this book addresses lacunae in current scholarship. It puts forward principles which capture how military commanders deliberate while interpreting what the rules of targeting require in particular scenarios. International humanitarian law, this book contends, places a duty on attackers to assume risk in order to mitigate danger to civilians. Drawing on the field of psychology, this study provides an explanation of how military commanders assess when circumstances do not permit them to inform civilians about a forthcoming attack.

Deeks: Multi-Part Tests in the Jus Ad Bellum

Ashley Deeks (Univ. of Virginia - Law) has posted Multi-Part Tests in the Jus Ad Bellum (Houston Law Review, forthcoming). Here's the abstract:

As the U.N. Charter’s drafters might have predicted, various categories of cases have arisen since 1945 in which states have sought to use force in situations not expressly contemplated by the treaty text. Those who view the Charter as a “living instrument” urge flexibility in interpretation when approaching these nonstandard cases. But they also recognize that allowing excessive flexibility will destabilize the Charter. As a result, some states and scholars seek to promote constrained flexibility by proposing multi part tests to guide state decision making in these nontraditional cases. The MPTs propound on the meaning of sparse texts by articulating specific, legalistic elements or factors against which states may evaluate their contemplated actions.

This Article identifies the common use of MPTs in the jus ad bellum to structure and assess state uses of force in nontraditional contexts. Analytically, it explores why states and scholars turn to MPTs, arguing that MPTs emerge where treaty amendments or Security Council authorization are unlikely. Although not binding on states that have not adopted them, MPTs promote law specification and development and offer a way to reduce interstate conflict. The Article also argues that an MPT will garner more support when it is more rule like and when it closely tracks the underlying Charter or customary rule on which the MPT expounds. Using that analysis, it predicts that MPTs in the area of humanitarian intervention are likely to encounter continued skepticism, at least in the near term.

Singh: The Fundamental Rights of States in Neoliberal Times

Sahib Singh (Univ. of Cambridge) has posted The Fundamental Rights of States in Neoliberal Times (Cambridge Journal of International & Comparative Law, forthcoming). Here's the abstract:

This is a critical introduction to the symposium on “The Fundamental Rights of States”. Whether such rights exist, the bounds of their existence, or whether they ought to be striven towards are questions of considerable import in the wake of the Greek sovereign debt crisis or even given the ongoing Palestinian struggle for permanent sovereignty over their natural resources. I briefly outline how we might consider the question: is there any progressive political value in buttressing the state and its autonomy, through the doctrine of fundamental rights, in today's neoliberal world? First, I examine how we may progressively look at fundamental rights - as doctrine, narrative, memory or discourse. Second, I question the extent to which it is useful to see competing subjectivities, i.e. the maligned state against technocratic institutions, in a time where neoliberal logic has come to structure the workings of the state. It becomes quickly apparent that the discourse of fundamental rights may be used to both resist neoliberalism and enable it.

Mortenson: Snowflakes in a Blizzard: Treaty Interpretation in International Investment Law

Julian Davis Mortenson (Univ. of Michigan - Law) has posted Snowflakes in a Blizzard: Treaty Interpretation in International Investment Law (in Perspectives on the Modern Law of Treaties, forthcoming). Here's the abstract:

Taken as a body of treaty law, the signal characteristic of the international investment regime is its peculiar combination of pervasive similarity and relentless variation. Thousands of bilateral investment treaties have similar concerns, similar substance, similar enforcement structure, and similar terms. And yet the widely varying permutations of substantive guarantees, dispute resolution mechanics, and covered activities means that very few are exactly alike.

As a result, interpreters must regularly navigate a deep tension between (on one hand) the need for individualized and contextually sensitive treatment and (on the other) the demands of a systemically sensible administrative apparatus. It is a measure of the sometimes awkward fit between the modern law of treaties and the modern law of investment protections that the latter seriously complicates at least three important aspects of the former: (1) the rules governing third-party beneficiaries; (2) the project of consistent interpretation in a decentralized system and (3) the distinction between multilateral and bilateral regimes.

This paper describes how the BIT ecosystem’s peculiar combination of pervasive similarity and relentless variation -- its swirl of snowflakes in a blizzard -- plays out in each of these three areas.

New Issue: Humanity

The latest issue of Humanity (Vol. 7, no. 1, Spring 2016) is out. Contents include:

• Human rights and Humanitarianism on the African Continent
• Amal Hassan Fadlalla & Omolade Adunbi, Introduction
• Amal Hassan Fadlalla, Humanitarian Dispossession: Celebrity Activism and the Fragment-Nation of the Sudan
• Lisa Ann Richey, Alexandra Cosima Budabin, Celebritizing Conflict: How Ben Affleck Sells the Congo to Americans
• Robert Wyrod, When Rights Come Home: The Intimate Politics of Women's Rights in Urban Uganda
• Nadine Naber & Atef Said, The Cry for Human Rights: Violence, Transition, and the Egyptian Revolution
• Bilal Butt, Conservation, Neoliberalism, and Human Rights In Kenya's Arid Lands
• Yepoka Yeebo, Photo Essay: Suame Magazine
• Keith Hart, Reflections On Ghana's Informal Economy At Fifty Years
• Joseph Morgan Hodge, Writing The History of Development (Part 2: Longer, Deeper, Wider)

Milanovic: Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences

Marko Milanovic (Univ. of Nottingham - Law) has posted Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences (Georgetown Journal of International Law, forthcoming). Here's the abstract:

In an earlier piece, forthcoming in the American Journal of International Law, I discussed the findings of a series of public opinion surveys in the former Yugoslavia probing the attitudes of the respondent populations regarding the mass atrocities committed during the Yugoslav wars of the 1990s, such as the Srebrenica genocide. That article concluded that the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first modern, post-Nuremberg international criminal jurisdiction, failed to persuade the target audiences in the former Yugoslavia that the findings in its judgments are true. The surveys show that denialism is widespread and governed by ethnic bias – for example, only 10% of the Serbian population accept the facts about the Srebrenica genocide, the greatest crime committed in Europe since World War II, as they were established by the ICTY.

While that companion piece addressed the empirical, “what” question, this one looks at the equally, if not even more important, “why” question – why has the ICTY proven to be so ineffectual in inducing attitude change? In answering this question I proceed primarily from the theoretical standpoint of social psychology, enabling a more sophisticated understanding of how the target audiences in the former Yugoslavia have so persistently resisted internalizing the ICTY’s factual findings. I argue that the causes of the ICTY’s ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal’s own work.

For example, average citizens normally lack any immediate experience of the event, which necessitates the mediation of information by third parties, e.g. the media and political and intellectual elites, while they similarly lack the time, expertise and resources to rigorously examine the information by themselves. Remoteness from the event also facilitates the avoidance of revising previously acquired beliefs about the event, for instance through discrediting certain sources of information, such as the ICTY. Crucially, ethnic nationalism continues to play a central role in the politics of the region, providing key political actors with both the opportunity and the incentive to engage in the deliberate manipulation of the (already heavily mediated) information that citizens receive about specific atrocities and the ICTY. These objective limitations then feed into the numerous cognitive biases which shape the processing of any information about mass atrocities, essentially pushing individuals (at an unconscious level) to believe what they want to believe and reason about the ICTY and its work in a way that is most protective of their own sense of identity.

The article thus argues that even had the ICTY been run perfectly – and it was not – it would not have been able to overcome the many barriers insulating the peoples of the former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral, the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. In other words, as a mechanism of transitional justice the Tribunal was from the outset doomed to fail. Valuable lessons can, however, be learned from that failure, and not every other international criminal court and tribunal will necessarily find itself in the same unenviable position.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 20, no. 4, 2016) is out. Contents include:

• Ezequiel González-Ocantos, Evaluations of human rights trials and trust in judicial institutions: evidence from Fujimori's trial in Peru
• Anna Arstein-Kerslake & Eilionóir Flynn, The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: a roadmap for equality before the law
• Katherine Tonkiss, Contesting human rights through institutional reform: the case of the UK Equality and Human Rights Commission
• Malayna Raftopoulos, REDD+ and human rights: addressing the urgent need for a full community-based human rights impact assessment
• Lisa Forman, Luljeta Caraoshi, Audrey R. Chapman & Everaldo Lamprea, Conceptualising minimum core obligations under the right to health: How should we define and implement the ‘morality of the depths’
• George Riach & Zoe James, Strengthening the rule of law on the margins: experiences from Za'atari refugee camp, Jordan
• Jennifer Bond & Michele Krech, Excluding the most vulnerable: application of Article 1F(a) of the Refugee Convention to child soldiers

New Issue: International Journal of Refugee Law

The latest issue of the International Journal of Refugee Law (Vol. 28, no. 1, March 2016) is out. Contents include:

• Matthew Seet, The Origins of UNHCR’s Global Mandate on Statelessness
• Nicolás Rodríguez Serna, Fleeing Cartels and Maras: International Protection Considerations and Profiles from the Northern Triangle
• Cynthia Orchard, The Almaty Process: Improving Compliance with International Refugee Law in Central Asia
• Seunghwan Kim, Lack of State Protection or Fear of Persecution? Determining the Refugee Status of North Koreans in Canada

New Issue: Journal of Conflict & Security Law

The latest issue of the Journal of Conflict & Security Law (Vol. 21, no. 1, Spring 2016) is out. Contents include:

• Special Issue: Law, Justice and the Security Gap
• Christine Chinkin, Mary Kaldor, Iavor Rangelov, & Sharon Weill, Special Issue: Law, Justice and the Security Gap
• Iavor Rangelov, Justice as a Security Strategy? International Justice and the Liberal Peace in the Balkans
• Rogier Bartels & Katharine Fortin, Law, Justice and a Potential Security Gap: The ‘Organization’ Requirement in International Humanitarian Law and International Criminal law
• Sharon Weill, Reducing the Security Gap through National Courts: Targeted Killings as a Case Study
• Jeffrey Davis, Equality of Arms: Complying with International Human Rights Law in Cases Against Alleged Terrorists
• C.R.G. Murray, Nudging or Fudging? The UK Courts’ Counterterrorism Jurisprudence Since 9/11
• Tilmann Altwicker & Nuscha Wieczorek, Bridging the Security Gap through EU Rule of Law Missions? Rule of Law Administration by EULEX
• Deval Desai, Putting Security Culture and Experimentation into Context: Towards a View from the Field(s) of Rule of Law Reform

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 50, no. 1, 2016) is out. Contents include:

• Edwin Vermulst, In Memory of Professor John H. Jackson
• Petros C. Mavroidis, John H. Jackson: A Mentor and a Friend
• Lorand Bartels, The Relationship between the WTO Agreement on Agriculture and the SCM Agreement: An Analysis of Hierarchy Rules in the WTO Legal System
• Shin-yi Peng, GATS and the Over-the-Top Services: A Legal Outlook
• Gary Winslett, How Regulations Became the Crux of Trade Politics
• Tsai-yu Lin, Inter-Mingling TRIPS Obligations with an FET Standard in Investor-State Arbitration: An Emerging Challenge for WTO Law?
• Nohyoung Park & Myung-Hyun Chung, Analysis of a New Mediation Procedure under the WTO SPS Agreement
• Zhongmei Wang, Negative List in the SHPFTZ and Its Implications for China’s Future FDI Legal System
• Chang-fa Lo, Coordinative Approach to Resolve Normative and Operational Conflicts between Inner and Outer-FTAs