Thursday, April 27, 2017
The Military Law and the Law of War Review
Call for Papers
The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. Published since 1962, it is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world.
The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch.
For its 2016-2017 issue (vol. 55/1), the Review’s editorial board welcomes submissions that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). In particular, the editorial board invites scholars and practitioners to submit articles pertaining to the international law of military operations.
The deadline for submission is 15 June 2017.
Submissions should be sent by e-mail to email@example.com and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address.
Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue is scheduled to come out in autumn 2017.
Wednesday, April 26, 2017
The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.
This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.
Linderfalk: What are the Functions of the General Principles? Good Faith and International Legal Pragmatics
To assist current efforts of the academic community to develop a fuller understanding of the function of general principles of international law, this article inquires into the operation of the principle of good faith. As argued, first, good faith serves as a principle of international legal pragmatics. It helps to explain the understanding of conduct in much the same way as, say, the requirement that in a verbal utterance, the first singular pronoun “I” be used to refer to the utterer, and a temporal expression such as “now” to the point in time of the utterance. Second, the principle of good faith does not itself presuppose the good of any particular state of affairs. It helps to ensure the comprehension of communicative behaviour on the part of international law-makers, irrespective of the moral or political agenda that they themselves happen to be pursuing. Third, in international law, there are other norms that share the traits of the principle of good faith. They, too, can be characterised as principle of international legal pragmatics.
The chapter outlines and contextualises the past and current political drivers and effects of investment treaty arbitration.
This paper critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the paper argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the paper shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the turn of the 19th to the 20th century with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the re-emergence of relative normativity. It has prompted a theoretical debate, in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The paper concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law, and human rights are therefore more necessary than ever.
Tuesday, April 25, 2017
- Adam S. Chilton & Galit A. Sarfaty, The Limitations of Supply Chain Disclosure Regimes
- Christopher R. Rossi, The Transboundary Dispute Over the Waters of the Silala/Siloli: Legal Vandalism and Goffmanian Metaphor
- Shruti Rana, The Global Battle Over Copyright Reform: Developing the Rule of Law in the Chinese Business Context
- Part I Thematic Part: Protection of Cultural Property
- Gábor Kardos, Universality, ProgressiveRealization, EconomicCrises –The ICESR Fifty Years on
- György Marinkás, Cultural Rights as a Tool of Protecting the Rights of Indigenous Peoples
- Vanda Vadász, Lessons of Sevso Case – Restitution Challenges of the Illegally Exported Cultural Property
- Mária Mihály & Henrietta Galambos, Hungary’s Place and Role in the International Legal Protection of Cultural Heritage – ‘Les longs souvenirs font les grands peuples’
- Rino Büchel, Change Offers Swiss Cultural Property Protection a Window of Opportunity
- Part II Forum: The Cafeteria Case
- Ernő Várnay, National Interests in the Common Market – SZÉP Card and Erzsébet Voucher before the European Court of Justice
- Réka Somssich, The Hungarian Cold Food Voucher Case – A Somewhat Rigorous Approach of the Court on the Interpretation of Free Movement Provisions
- Part III Developments in International Law
- Péter Darák, Terrorism and Rule of Law
- Marcel Szabó, General Principles of Law in the Practice of International Courts and the European Court of Justice
- Ielyzaveta Lvova, The Concept of Global Constitutionalism as a Road-Trip to Freedom for Local Democracies in Transition Times
- Zsuzsanna Horváth, Transforming Our World – New Agenda and Goals for Sustainable Development
- András Huszár, Preliminary Legal Issues in the Historic Paris Climate Agreement
- Ágnes Bujdos, The ‘Hidden’ Definition of Water Pollution in the UNECE Water Convention
- Sándor Fülöp, In Fairness to Future Generations –Building Effective Public Participation
- Attila Pánovics, The Aarhus Convention Model
- György Andrássy, Article 27 of the International Covenant on Civil and Political Rights – The Wording and Its Implications
- Veronika Szeghalmi, Private Messages at Work – Strasbourg Court of Human Right’s Judgement in Bărbulescu v. Romania Case
- Zoltán Tallódi, The Question of Prison Overcrowding as Reflected in the Decisions of the European Court of Human Rights
- János Tamás Papp, Liability for Third-Party Comments before the European Court of Human Rights – Comparing the Estonian Delfi and the Hungarian Index-MTE Decisions
- Péter Smuk, The Concept of the European Political Party
- Lilla Berkes, Did Not Lose Their Public Asset Quality
- Petra Lea Láncos, Three Models of Minority Media Participation – A Brief Analysis of Language Related Prescriptions in National Media Laws
- Réka Varga, International Red Cross and Red Crescent Movement and Humanitarian Activities for Migrants
Much contemporary legal scholarship on human rights sees the lapses between rhetoric and reality, symbol and substance, and rights-talk and rights-action, as human rights law’s greatest deficiency. That approach, however, fails to acknowledge the power of the human rights vocabulary to change people’s political commitments, and with them, especially in democratic states, the authority, meaning, and ultimately, effectiveness of human rights law. Yet the power of language cuts both way: it is both constitutive and distortive of rights. This chapter, which is part of an edited collection by Mike Hanne and Robert Weisberg, entitled Narrative and Metaphor in Law (forthcoming, 2017), explores how narrative and metaphor provide the literary, cognitive, and cultural frames for events and issues to be understood as part of human rights law. Metaphor, in particular, is understood not simply as an ornament to language, but as a fundamental scheme by which people conceptualize and organize their moral, social, and legal worlds.
With this contribution in mind, this paper examines a metaphor which frequently accompanies rights talk: the metaphor of “the queue”. The queue, or waiting line or wait list, is ubiquitous in modern, especially urban, life. It distributes resources, usually on a first-come, first-served basis, in conditions of scarcity or where simultaneous provision is not possible. For example, surgery wait lists for health care or waiting lines in the emergency room, housing wait lists or the waiting lines for shelters, or visa entry wait lists for immigration, or for deportation, are all pivotal aspects of human rights law configured by a queue. The common experience of participating in other queues, in transport, recreation, or other contexts, helps to explain the metaphor’s resonance.
And yet, the metaphor’s connection with rights provokes disagreement around notions of entitlement. The queue institutionalizes, but also discredits, the political and social reordering compelled by human rights law. By using examples of “queue talk” around the constitutional right to housing in South Africa, the paper examines how the queue metaphor occupies the doctrinal vacuum of the obligation to “progressively realize” certain human rights, particularly economic and social rights, and particularly when positive obligations are at issue. Moreover, it explores how the metaphor exaggerates the state provision of a good or service, rather than the state’s regulatory, or private law, levers of control. In each respect, the queue metaphor reveals severe limits on what human rights law makes possible.
Conference: The United Nations Security Council and the Sea/Le Conseil de sécurité des Nations unies et la mer
Monday, April 24, 2017
This Article examines international law limitations on the ascription of citizenship in the context of U.S. taxation of non-resident citizens. U.S. citizenship practice is exceptionally generous, extending citizenship to almost all persons in its territory at the moment of birth. At the same time that it is generous at the front end, U.S. citizenship is sticky at the back. Termination of citizenship on the individual’s part involves substantial fees and tax compliance. It is difficult to shed a citizenship one may never have wanted in the first place.
This stickiness would be inconsequential if few costs were associated with the status. But the United States taxes its citizens on a worldwide basis. The 2010 enactment of the Foreign Account Tax Compliance Act has ramped up historically lax enforcement and imposes substantial administrative burdens on even middle-earner citizens abroad.
In this frame, U.S. birthright citizenship and expatriation regimes may violate international norms, especially with respect to those "accidental Americans" who departed the United States as children. Even in the context of extremely relaxed historical constraints on state nationality practice, there were acknowledged nineteenth century limitations on the extension of citizenship to individuals with insufficient connection to a state -- citizenship over-claiming, as it were. The article also describes the historical requirement that naturalization be volitional, a norm now appropriately applied in some cases in the context of birthright citizenship.
To the extent the ascription of U.S. citizenship compromises individual rights, there are tax fixes and there are citizenship fixes. Citizenship fixes include opt-in and opt-out mechanisms for birthright citizenship. The better solution may lie in frictionless exit for those with nominal ties to the national community. Though reform is more likely to be accomplished through the tax regime, the moment highlights the over-inclusiveness of U.S. citizenship and the growing salience of international law to citizenship practices.
Pollack: The New, New Sovereigntism (Or, How the Europe Union Became Disenchanted with International Law and Defiantly Protective of Its Domestic Legal Order)
Over the past several decades, it has become commonplace in both scholarly and political circles to contrast the positions of the US and the European Union EU toward the rule of international law. Critics have argued that the US had abandoned its post-war role as the champion of the international legal order, being instead characterized by a "new sovereigntism" that seeks to protect the US from unwelcome intrusions of international law into the domestic legal order. By contrast, the EU has been seen as inherently committed to the rule of law and a strong international legal order. The aim of this paper is not to attack, much less to debunk, the conventional dichotomy between a scofflaw America one the one hand and an international law-loving Europe on the other. The more limited aim of this paper, rather, is to suggest that European attitudes towards international law may be changing, and that the EU is developing a European variant of the American new sovereigntism, in which a growing number of critics – concentrated primarily, though not only, among the pro-European left and center-left – have raised fundamental procedural and substantive objections to international rules and norms, which they depict as hostile to European laws and values, and against which they champion a defiant resistance. In a growing number of areas of international law, including international trade, economic regulation, food safety, data privacy, and national security, the European center-left has moved towards a sharply critical view of international law, alternatively resisting consent to unwelcome agreements, compliance with unwelcome international judicial decisions, and internalization of international laws perceived to be in tension with domestic EU rules and rights. These changing attitudes towards international law, in turn, have been magnified and translated into policy outcomes through the EU’s “hyper-consensus” political institutions, which have created multiple veto points empowering European critics to defy and deflect the intrusion of unwelcome international legal norms, rules, and agreements.
The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council’s agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process.
This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council’s decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions.
- April 28, 2017: Wouter G Werner (Vrije Universiteit Amsterdam - Law), Screening International Criminal Justice: A Study of Four Documentary Films on the International Criminal Court
- May 5, 2017: Ola Mestad (Univ. of Oslo - Law), Global governance on the ground: the development and implementation of the OECD Guidance
- May 12, 2017: Elies van Sliedregt (Leeds Univ. - Law), The Malabo Protocol and the African Court of Justice and Human Rights: model for the future?
Sunday, April 23, 2017
Discussion: Supreme Law of the Land? Debating the Contemporary Effects of Treaties Within the United States Legal System
- The Editors, Preface
- Javad Zarif, Foreword
- Yves Daudet, Brèves remarques sur la contribution de l’Académie de droit international de la Haye au développement du droit international
- Pierre Michel Eisemann, Quelques remarques sur la place du droit au sein des organisations internationales
- Said Mahmoudi, The Iran Nuclear Deal: Some International-law Aspects
- Shinya Murase, Scientific Knowledge and the Progressive Development of International Law: with Reference to the ILC Topic on the Protection of the Atmosphere
- Sundhya Pahuja & Cait Storr, Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited
- Anicée Van Engeland, Statehood, Proto States and International Law: New Challenges, Looking at the Case of ISIS
- Mohamed Bennouna, La Cour internationale de Justice et le traitement du contentieux dans la durée : Le temps retrouvé
- James Crawford, The Place of the International Court in International Dispute Settlement
- Jean d’Aspremont, International Lawyers and the International Court of Justice: Between Cult and Contempt
- Marie-Françoise Labouz, Le règlement des différends investisseur/État (RIDE) : brève revue de doctrine avant réforme
- W. Michael Reisman & Mahnoush H. Arsanjani, Legal Decisions and Their Implementation in International Law
- Jamal Seifi, Peremptory Norms and the Jurisdiction of the International Court of Justice
- Sienho Yee, Some Comments on the Temple (Interpretation) Judgment and the Impact of Possible Mistakes on the Temple Saga
- Mohsen Abdollahi, Alleged Support of Terrorism as a Ground for Denying State Immunity
- Hirad Abtahi, Types of Injury in Inter-States Claims: Direct Injury to the State
- Lucius Caflisch, Réflexions sur l’immunité des États en matière civile
- Alain Pellet, Responsibility of States in Cases of Human-rights or Humanitarian-law Violations
- Mariano J. Aznar, Exporting Environmental Standards to Protect Underwater Cultural Heritage in the Area
- Ida Caracciolo, Migration and the Law of the Sea: Solutions and Limitations of a Fragmentary Regime
- Rafael Casado Raigón, La dimension internationale de la compétence de l’Union européenne en matière de pêche
- Emmanuel Dupont & Alexia Solomou, Provisional Measures in Maritime Delimitation Cases Pierre-
- Víctor L. Gutiérrez Castillo, The Contribution of the States of Central America to the Evolution of the New Law of the Sea
- Gerhard Hafner, Does the Freedom of the Seas Still Exist?
- Zalmaï Haquani, Les pays sans littoral et droit de la mer
- Maurice Kamto, Considérations actuelles sur la méthode de délimitation maritime devant la Cour internationale de Justice. De charybde en scylla ?
- Mariko Kawano, Compulsory Jurisdiction under the Law of the Sea Convention: Its Achievements and Limits
- Ahmed Mahiou, L'Algérie et la Méditerranée
- Bernard H. Oxman, Judicial Application of Environmental Standards under the Law of the Sea Convention
- Jean-François Pulvenis de Séligny-Maurel, The Future of the High Seas Fisheries Legal and Institutional Framework
- Natalino Ronzitti, Sunken Warships and Cultural Heritage
- Emmanuel Roucounas, Users of the Law of the Sea: Some Recent Developments
- Tullio Scovazzi ,The Relationship between Two Conventions Applicable to Underwater Cultural Heritage
- Roberto Virzo, The Dispute Concerning the Enrica Lexie Incident and the Role of International Tribunals in Provisional Measure Proceedings Instituted Pursuant to the United Nations Convention on the Law of the Sea
- Ricardo Abello-Galvis, La jurisprudence de la Cour Interaméricaine des Droits de l’Homme et le jus cogens (2013-fevrier 2016)
- Ove Bring, The Notion of Human Rights and the Issue of Cultural Relativism
- Jorge Cardona, Droit a l’éducation et diversité : le droit à une éducation inclusive et équitable de qualité
- Giuseppe Cataldi, Immunités juridictionnelles des États étrangers et droit de l’homme : quel équilibre entre les valeurs fondamentales de l’ordre national et le droit international coutumier ?
- Nasrin Mosaffa, Protecting Children in and at War: From Legally Protected Subjects to ‘Others’ in the Conflict
- Amir Hossein Ranjbarian, A propos de quelques éclaircissements jurisprudentiels dans le ciel gris de la lutte contre la torture
- Linos-Alexandre Sicilianos, Les relations entre droits de l’homme et droit international humanitaire dans la jurisprudence de la Cour européenne des droits de l’homme
- Joe Verhoeven, Brèves remarques sur la répression du génocide
- Michael Bothe, Protection of the Environment in Relation to Armed Conflicts - A Preliminary Comment on the Work of the International Law Commission
- Zakaria Daboné, Regards sur le contenu des qualifications des principaux acteurs des conflits armés
- Knut Dörmann & Tilman Rodenhäuser, Contemporary Challenges for International Humanitarian Law
- Yves Sandoz, Le droit international humanitaire à l’épreuve des conflits contemporains
- Sandra Szurek, L’espace humanitaire : un passage souhaitable de la pratique au droit ?
- Paul Tavernier, L’évolution du droit international humanitaire au XXIème siècle : une nécessité ?
- Abdelwahab Biad, Le droit international au défi de « l’exceptionnalisme nucléaire »
- Farideh Shaygan, Intervention by Invitation as a Tool of New Colonialism
- Yvenson St-Fleur, L’intervention par invitation d’un État tiers : le consentement au recours à la force contre des combattants étrangers terroristes
International organizations (IOs) play a vital role in enforcing international law. Many treaties are built on transnational enforcement, in which private actors challenge and litigate possible legal violations. Others feature international enforcement, in which only states can challenge possible violations. Some feature centralized enforcement, in which an IO has its own authority to challenge possible violations. I argue that collective action problems drive decisions about whether to enforce international law, and hence affect the optimal design of enforcement regimes. When cooperation generates concentrated benefits --- such as compensation for the expropriation of foreign investment --- transnational enforcement can work well because the cost and benefit of enforcement are both fully internalized by the litigant. However, when cooperation generates diffuse benefits --- like a cleaner environment --- individuals and even governments have incentive to free-ride on enforcement, avoiding the cost of litigation in the hopes that another actor will step up. In such circumstances, supranational enforcement is necessary to uphold international law. Finally, hybrid regimes, which contain multiple forms of enforcement, are most needed when an IO has members that vary in their ability to enforce, or regulates issue areas that vary in their diffuseness. I assess my argument by examining litigation in the European Court of Justice, and provide inductive evidence that the European Union is more likely to enforce EU laws that generate diffuse benefits, while private actors and governments are more likely to enforce EU laws that generate concentrated benefits.
Saturday, April 22, 2017
Rossi: Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood
For more than two decades, the Minsk Group, co-chaired by Russia, the United States, and France, has served as a steward over the dispute resolution process involving Nagorno-Karabakh, a tiny enclave of ethnic Armenians belonging to Azerbaijan. Although described as a frozen conflict, the conflict is fluid, dangerous, and increasingly complicated by overlapping interests and spheres of influence. This Article concentrates on the power-shifting attempts to facilitate a solution via use of the soft law forum of the Minsk Group, problematizing the perceived theoretical advantages found in the literature that instantiate soft law's superior potential for solutions. That powerful countries may utilize informal processes and forums to pursue parochial interests while forestalling peaceful settlement suggests a need to examine critically efforts to use soft law as an expedient to norm development.
Ratner: Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
When a state expropriates a foreign investment in violation of a bilateral or other treaty on investment protection and a foreign investor sues, where should a tribunal look for the standard of compensation -- to the amount specified in the treaty, to an external standard for violations of internationally law generally, or elsewhere? Investor-state tribunals have offered wildly different answers to this question, trapped in a paradigm set by the Permanent Court of International Justice ninety years ago that distinguishes between so-called lawful and unlawful expropriations. This article evaluates and criticizes the caselaw of tribunals and proposes a new framework for compensation grounded in five key purposes of a remedy in the context of contemporary investor-state relations. It also clarifies the economic and legal significance of valuing expropriated investments using information available at the date of expropriation as opposed to the date of the award. The article proposes that, instead of the current lawful/unlawful distinction, compensation take account of specific aspects of the expropriatory act, including whether the state's failure to pay was based on a bona fide disagreement with the investor and whether the state violated the procedural criteria spelled out in an investment treaty. It concludes with a consideration of the implications of this approach for violations of other provisions of investment treaties.
Friday, April 21, 2017
- April 27, 2017: Anne van Aaken (Univ. of St. Gallen), Behavioral Economics and Global Public Goods and Global Commons
- May 4, 2017: Marie Jacobsson (Legal Admiser, Ministry of Foreign Affairs, Sweden), Protecting the Environment in Relation to Armed Conflict: Are Legal Measures Possible? Some Reflections on the Work of the ILC
- May 11, 2017: Matthew Happold (Univ. of Luxembourg), Immunity from Execution of Military and Cultural Goods
- May 18, 2017: James Harrison (Univ. of Edinburgh), “Judicial Review” of Coastal State Enforcement Action by International Courts and Tribunals: The Emergence of Dynamic and Expansive Interpretations of UNCLOS Safeguards
- Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement
- Clotilde Jourdain-Fortier, Le TTIP : Fenêtre sur rue
- Hanns Ullrich, The Transatlantic Trade and Investment Partnership (TTIP) : Extending Trade Policy to Domestic Markets
- Ernst-Ulrich Petersmann, Transatlantic Free Trade Agreements : Lack of EU Leadership for Reforming Trade and Investment Law ?
- Pierre Defraigne, Trois objections fondamentales contre le TTIP (Traité commercial transatlantique)
- Vassilis Hatzopoulos, Les techniques de libéralisation de la prestation de services sous le TTIP
- Clotilde Jourdain-Fortier, Vers un marché transatlantique de la santé ou les enjeux de la coopération réglementaire du projet de Partenariat transatlantique de commerce et d’investissement (TTIP) dans le domaine pharmaceutique