Thursday, August 17, 2017

Farah: Trade and Progress: The Case of China

Paolo Davide Farah (West Virginia Univ. - Law) has posted Trade and Progress: The Case of China (Columbia Journal of Asian Law, Vol. 30, no. 1, pp. 51-112, 2016). Here's the abstract:

China’s accession to the WTO is widely understood as an important step towards greater global market liberalization and integration. However, this step has been also perceived in an ambivalent way. On one hand, the global market liberalization would have never been really completed without participation of such a major player as China. On the other hand, many observers articulated concerns about China’s ability to integrate into the WTO system. In order to tackle the issues of concern, attention was paid mainly to technical issues, which were seen as a precondition for China’s successful integration into the WTO system. For this reason, topics related with market integration, such as e.g. liberalization requirements, as well as topics related with transparency and legal and administrative policies, necessary for securing of just and equitable resolution of commercial and trade disputes, were initially addressed.

Still, in the light of the changing and evolving geopolitical climate, it has become more evident that Non-Trade Concerns (NTCs) might be another multifaceted topic requiring special attention. EU and US, becoming increasingly aware of the fact that competition of economies with different level of development might result not only in job losses in developed countries due to relocation of production, but also to general deterioration of environmental, social and health standards, have accentuated the importance of a global consensus on NTCs and their inclusion into EU and US external policies concerning foreign trade and investment. Civil society from the developed world, in general, is afraid that further liberalization may endanger public policies at different levels: environmental protection and sustainable development, good governance, cultural rights, labor rights, public health, social welfare, national security, food security, access to knowledge, consumer protection, and animal welfare.

On the other hand, coalition consisting of China and other BRICS countries as well as other developing countries gaining more influence in the WTO and other international fora has been able to articulate discontent with measures adopted by developed countries to address NTCs. The clash between interests of developed and developing countries reveals potential unfairness and inconsistencies of the international system, including the international trade system, which needs to undergo a deep reform to integrate the developing countries’ needs.

Many of the measures that developed countries introduce to address NTCs were received by developing countries with suspicion, resistance, and even hostility. Developing countries, including China, doubt the authenticity of such considerations and think they might actually hide protectionist purposes. Additionally, developing countries see these measures as an indirect form of western imperialism whereby they will have no choice but to comply with the social, ethical, and cultural values of the developed states. Nonetheless, not only has China undergone serious reforms and adopted new regulations to address the issue of NTCs, but the country has even begun to play an important role in the international negotiations on NTCs—such as those on climate change, energy, culture, and so on.

However, at the same time it provides an opportunity for China and other developing countries to defend their interests in a constructive dialogue with developed countries and restructure the system in order to find a necessary balance between globalization and sustainable development or to shape it according to their interests.

Gray & Potter: Diplomacy and the Settlement of International Disputes

Julia Gray (Univ. of Pittsburgh - Political Science) & Philip B.K. Potter (Univ. of Virginia - Politics) have posted Diplomacy and the Settlement of International Disputes. Here's the abstract:
International legal frameworks exist to formalize interactions between countries, supposedly muting the need for behind-the-scenes bargaining in the event of disagreements. Yet diplomacy persists, and sometimes escalates, even after countries invoke dispute settlement mechanisms. What is the purpose and impact of diplomatic engagement in the presence of international law? To date, the answer to this question has been elusive due to a shortage of both granular, systematic data on diplomatic interaction and precise theories about its effects. This paper redresses these deficits by exploring the relationship between diplomacy and the settlement of international trade disputes prior to a final legal judgment. We argue that even when states resort to international legal mechanisms, they still engage in a considerable amount of diplomacy outside of those processes. But the effects of diplomatic engagement vary depending on pre-existing state affinity. Specifically, we argue that diplomatic interactions help states that have dissimilar policy preferences resolve their disputes before they reach a formal ruling. By contrast, diplomacy has minimal impact on dispute settlement in relationships between countries with higher affinity. To establish this argument, we focus on the diplomatic interactions behind litigation involving the United States (US) at the World Trade Organization (WTO).

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 61, no. 8, September 2017) is out. Contents include:
  • Articles
    • Sebastian Schutte, Violence and Civilian Loyalties: Evidence from Afghanistan
    • Miguel R. Rueda, Popular Support, Violence, and Territorial Control in Civil War
    • Cullen S. Hendrix & Idean Salehyan, A House Divided: Threat Perception, Military Factionalism, and Repression in Africa
    • Michael C. Horowitz, Paul Poast, & Allan C. Stam, Domestic Signaling of Commitment Credibility: Military Recruitment and Alliance Formation
    • Daniel McCormack & Henry Pascoe, Sanctions and Preventive War
    • Timothy M. Peterson, Export Diversity and Human Rights
    • Jeff Carter, The Political Cost of War Mobilization in Democracies and Dictatorships
  • Author Exchange
    • Philip Paolino, Surprising Events and Surprising Opinions: The Importance of Attitude Strength and Source Credibility
    • Christopher Gelpi, The Surprising Robustness of Surprising Events: A Response to a Critique of “Performing on Cue”

Conference: 2017 ASIL Midyear Meeting

On October 26-28, 2017, the American Society of International Law will host its annual Midyear Meeting in St. Louis. The meeting will include a Practitioners' Forum and a Research Forum. Registration is now open.

Droubi: Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations

Sufyan Droubi (Universidade Sao Paulo - Law) has posted Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations (International Organizations Law Review, forthcoming). Here's the abstract:
The paper looks at resolutions and operational activities of the UN as parts of processes of institutionalisation of nascent norms of CIL. It argues that institutionalisation clarifies the scope of the norm and of its application; and improves mechanisms of persuasion and compliance with the norm, thereby increasing social pressure on resilient States. Hence, institutionalised norms have a higher potential to affect both the behaviour and attitude of States than noninstitutionalised norms. Crucially, the paper argues that UN resolutions and activities foster processes of institutionalisation of new norms. Although the work acknowledges that is not possible to foresee whether a norm will crystallise as CIL, it suggests that its potential increases if it matches and draws on the normative framework provided by the UN Charter; if it does not excessively challenge the predominant expectations of States, and if UN organs work together in promoting it.

Inaugural Volume: Asian Yearbook of Human Rights and Humanitarian Law

The inaugural volume of the Asian Yearbook of Human Rights and Humanitarian Law (Vol. 1, 2017) is out. Contents include:
  • Focused Theme: ISIS & Implications for Human Rights and Humanitarian Law
    • Nazir Afzal, Increasing the Civic Society Contribution to Tackling Extremism: We need a new Civic Response to Tackle Extremism
    • Michael Wood, Legal Aspects of the Use of Force against ISIS
    • Mohamed Badar, The Self-Declared Islamic State and Ius ad Bellum under Islamic International Law
    • Ignacio De La Rasilla, An International Counter Terrorism Court in Nuce in the Age of International Adjudication?
    • Silvia Venier, & Denise Venturi, ISIS and the violations of human rights of sexual minorities: Is the international community responding adequately?
  • General Articles
    • Matthias Vanhullebusch, Fighting for Self-Determination: On equality of peoples and belligerents
    • Viviane Weng, Domestication of International Human Rights Norms in Taiwan: A dialogue through conventionality review under construction
    • Maartje de Vissier, Cultivating Judicial Conversations on Human Rights Protection under the Auspices of a Regional Rights Regime
    • Rawa Al-Makky, The League of Arab States and the Arab Charter on Human Rights: an assessment
  • Recent Developments & State Practice
    • Eunwon Yi, Analysis of the Second Universal Periodic Review of the DPRK: Universality and Politicisation of Human Rights
    • Guo Sanzhuan, Independence of National HR Instiutions and linkage between International law and domestic law: A case study of National Human Rights Commission of Korea
    • Alessandra La Vaccara, IHL’s Achilles Heel: Ensuring compliance after the 32nd International Conference of the Red Cross and Red Crescent

Wednesday, August 16, 2017

New Issue: Die Friedens-Warte

The latest issue of Die Friedens-Warte (2016, no. 1) is out. Contents include:
  • Debatte
    • Josef Braml, Die Geoökonomie der USA: Globales Wettrüsten gegen China
  • Abhandlungen: Freihandel – Chance und / oder Risiko für eine Nachhaltige Weltordnung?
    • David Betge, Nahrung, Sicherheit und Freihandel: Wie globale Paradigmen und Interdependenzen den Policy Space nationaler Akteure einschränken
    • Bernhard Rinke, Die „Transatlantische Handels- und Investitionspartnerschaft“ (TTIP) und Freihandelszonen in der Kontroverse – Instrumente des Friedens oder Förderung des Krieges?
    • Andreas Eibelshäuser, Pragmatismus und Gerechtigkeit der Internationalen Investitions-Schiedsgerichtsbarkeit
  • Abhandlungen: Flucht und Zuflucht – Friedenswissenschaftliche Perspektiven
    • Claus Dieter Classen, Rückkehr der Grenzkontrollen in Europa – Sicherung der nationalen Identität oder Zeichen von nationalem Egoismus?
    • André Bank, Christiane Fröhlich, & Andrea Schneiker, Migration aus der Gewalt, als Gewalt und in die Gewalt Konzeptionelle Überlegungen zum Zusammenhang von menschlicher Mobilität und politischer Gewalt
    • Norbert Frieters-Reermann, Die Nicht-Teilhabe von Geflüchteten als strukturelle und kulturelle Gewalt Analysen und Anregungen für die umfassende Inklusion von Geflüchteten

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 24, no. 4, 2017) is out. Contents include:
  • Articles
    • Dong Jin Kim, Building Relationships Across the Boundaries: The Peacebuilding Role of Civil Society in the Korean Peninsula
    • Kristian Hoelscher, Jason Miklian & Håvard Mokleiv Nygård, Conflict, Peacekeeping, and Humanitarian Security: Understanding Violent Attacks Against Aid Workers
  • Special Section: African Peace Efforts: Norms and Structures
    • Bridget Conley, The ‘Politics of Protection’: Assessing the African Union’s Contributions to Reducing Violence Against Civilians
    • Allard Duursma, Partnering to Make Peace: The Effectiveness of Joint African and Non-African Mediation Efforts
    • Ann Fitz-Gerald, Towards a common doctrine for African Standby Force-led peace operations
    • Solomon Ayele Dersso, Defending Constitutional Rule as a Peacemaking Enterprise: The Case of the AU’s Ban of Unconstitutional Changes of Government
    • Mulugeta Gebrehiwot Berhe, The Norms and Structures for African Peace Efforts: The African Peace and Security Architecture

New Issue: International Security

The latest issue of International Security (Vol. 42, no. 1, Summer 2017) is out. Contents include:
  • Valerie M. Hudson & Hilary Matfess, In Plain Sight: The Neglected Linkage between Brideprice and Violent Conflict
  • Scott D. Sagan & Benjamin A. Valentino, Revisiting Hiroshima in Iran: What Americans Really Think about Using Nuclear Weapons and Killing Noncombatants
  • Jacqueline L. Hazelton, The “Hearts and Minds” Fallacy: Violence, Coercion, and Success in Counterinsurgency Warfare
  • Geoffrey Swenson, Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed
  • Ariane M. Tabatabai & Annie Tracy Samuel, What the Iran-Iraq War Tells Us about the Future of the Iran Nuclear Deal
  • Correspondence
    • Mark Kramer & Joshua R. Itzkowitz Shifrinson, NATO Enlargement—Was There a Promise?
    • Brendan Rittenhouse Green, Austin Long, Matthew Kroenig, Charles L. Glaser, & Steve Fetter, The Limits of Damage Limitation

Deeks: A (Qualified) Defense of Secret Agreements

Ashley Deeks (Univ. of Virginia - Law) has posted A (Qualified) Defense of Secret Agreements (Arizona State Law Journal, forthcoming). Here's the abstract:

Secret international agreements have a bad reputation. Ever since states misused secret agreements during World War I, commentators have condemned these agreements as pernicious and destabilizing to international peace and security. The concerns triggered by these agreements were so salient that states crafting the League of Nations Covenant and then the United Nations Charter included provisions intended to eliminate their use. Conventional wisdom holds that the Charter largely achieved this goal - that secret agreements are rare, and that we should celebrate this. But the story is wrong, descriptively and normatively. Secret international commitments are pervasive today, and they are not always problematic.

This article sets out to describe and defend — with certain qualifications — the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are — counter-intuitively, perhaps — consistent with the U.N. Charter, and in some cases actually advance the Charter’s purposes.

Certain secret commitments remain troubling or deeply opaque, however, and so this article also identifies various existing dynamics in the U.S. system that might assuage concerns about the abuse of secret commitments and proposes procedural protections that all states might develop to minimize the democratic challenges posed by secret commitments. Further, a more complete understanding of secret commitments provides new insights into the literature on executive power and lawmaking, government secrecy, and compliance with international agreements. In particular, the fact that the secret commitments studied here largely respect the limits of international and domestic law sheds light on the debate about the extent to which the Executive is bound — and perceives itself to be bound — by law in the national security realm.

Tuesday, August 15, 2017

Fortin: The Accountability of Armed Groups under Human Rights Law

Katharine Fortin (Utrecht Univ. - Law) has published The Accountability of Armed Groups under Human Rights Law (Oxford Univ. Press 2017). Here's the abstract:

Today the majority of the armed conflicts around the world are fought between States and armed groups, rather than between States. This changed conflict landscape creates an imperative to clarify the obligations of armed groups under international law. While it is generally accepted that armed groups are bound by international humanitarian law, the question of whether they are also bound by human rights law is controversial. This book brings significant new understanding to the question of whether and when armed groups might be bound by human rights law. Its conclusions will benefit international law academics, legal practitioners, and political scientists and anthropologists working on issues related to rebel governance and civil wars.

This book addresses the debate on this topic by employing a theoretical, historical, and comparative analysis that spans international humanitarian law, international criminal law, and international human rights law. Embedding these different perspectives in public international law, this book brings several key points of clarification to the legal framework. Firstly, the book draws upon social science literature on armed conflict to present a new viewpoint on the role that human rights law plays vis-à-vis international humanitarian law in non-international armed conflicts. Secondly, the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. It brings illumination to these topics by combining historical and comparative research on belligerency, insurgency, and international humanitarian law with a theoretical analysis of legal personality under international law. In the final part of the book, the author tests the four most utilised theories of how armed groups are bound by human rights law, examining whether armed groups can be bound by virtue of (i) treaty law (ii) control of territory (iii) international criminal law and (iv) customary international law. In the book's conclusions, the author presents final remarks that are designed to provide concrete guidance on how the issue of armed groups and human rights law can be dealt with more thoroughly in practice.

Monday, August 14, 2017

New Volume: Recueil des Cours

Volume 385 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:
  • Volume 385
    • Franklin Berman, Why Do We Need a Law of Treaties? Inaugural Lecture
    • Fabrizio Marrella, Protection internationale des droits de l’homme et activités des sociétés transnationales

Sunday, August 13, 2017

Morin, Pauwelyn, & Hollway: The Trade Regime as a Complex Adaptive System: Exploration and Exploitation of Environmental Norms in Trade Agreements

Jean-Frederic Morin (Laval Univ. - Political Science), Joost Pauwelyn (Graduate Institute of International and Development Studies), & James Hollway (Graduate Institute of International and Development Studies) have posted The Trade Regime as a Complex Adaptive System: Exploration and Exploitation of Environmental Norms in Trade Agreements (Journal of International Economic Law, forthcoming). Here's the abstract:
While the trade regime is often analyzed under the metaphoric assumptions of Newtonian mechanics, we propose an alternative, more organic representation. We argue that the trade regime seems to evolve as a complex adaptive system, at the edge of order and chaos. Drawing from a dataset of 280 different types of environmental provisions found in 680 trade agreements, we show how both the trade regime and the norms contained therein unfold by remaining stable (but not static) and dynamic (but not chaotic). Trade negotiators simultaneously explore new grounds by introducing legal innovations and exploiting known territories by adopting existing norms. Our analysis suggests that, even as the regime grows in the number and length of agreements, there are exploratory and exploitative processes at work. These twin processes can explain that the trade regime appears neither more fragmented/heterogeneous nor more centralized/homogenous than it was fifty years ago, despite its substantial expansion. This hypothesis is at the core of the research agenda that this paper lays out.

Saturday, August 12, 2017

Rowen: “We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia

Jamie Rebecca Rowen (Univ. of Massachusetts, Amherst - Political Science and Legal Studies) has published “We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia (Law & Social Inquiry, Vol. 42, no. 3, pp. 622–647, Summer 2017). Here's the abstract:
This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 97, no. 901, April 2016) is out. The theme is: "War in Cities." Contents include:
  • Life in a war-torn city: Residents of Aleppo tell their stories
  • Interview with Eyal Weizman: Professor at Goldsmiths, University of London, Director of the Centre for Research Architecture and Director of Forensic Architecture*
  • Michael Evans, Future war in cities: Urbanization's challenge to strategic studies in the 21st century
  • Mark Zeitoun & Michael Talhami, The impact of explosive weapons on urban services: Direct and reverberating effects across space and time
  • Antônio Sampaio, Before and after urban warfare: Conflict prevention and transitions in cities
  • ICRC Q&A on the issue of explosive weapons in populated areas
  • Isabel Robinson & Ellen Nohle, Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas
  • Eric Talbot Jensen, Precautions against the effects of attacks in urban areas
  • Nathalie Durhin, Protecting civilians in urban areas: A military perspective on the application of international humanitarian law
  • The ICRC's approach to urban services during protracted armed conflict: Q & A with Evaristo de Pinho Oliveira
  • Lucy Earle, Addressing urban crises: Bridging the humanitarian–development divide
  • Sahr Muhammedally, Minimizing civilian harm in populated areas: Lessons from examining ISAF and AMISOM policies
  • Samuel Longuet, Permitted for law enforcement purposes but prohibited in the conduct of hostilities: The case of riot control agents and expanding bullets
  • Jeanne Ward, It's not about the gender binary, it's about the gender hierarchy: A reply to “Letting Go of the Gender Binary”
  • Christoph Hensch, Twenty years after Novye Atagi: A call to care for the carers

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 43, no. 3, July 2017) is out. Contents include:
  • Chris Hesketh, Passive revolution: a universal concept with geographical seats
  • Matthew S. Weinert, Grounding world society: Spatiality, cultural heritage, and our world as shared geographies
  • Ryder McKeown, International law and its discontents: Exploring the dark sides of international law in International Relations
  • Stefan Borg, The politics of universal rights claiming: Secular and sacred rights claiming in post-revolutionary Tunisia
  • Keith Smith, The realism that did not speak its name: E. H. Carr’s diplomatic histories of the twenty years’ crisis
  • Björn Jerdén, Security expertise and international hierarchy: the case of ‘The Asia-Pacific Epistemic Community’
  • Mark Beeson, Alternative realities: Explaining security in the Asia-Pacific
  • Steven Bernstein & Hamish van der Ven, Best practices in global governance
  • Michelle Bentley, The intervention taboo(s): Strategy and normative invalidation

New Issue: Review of European, Comparative & International Environmental Law

The latest issue of the Review of European, Comparative & International Environmental Law (Vol. 26, no. 2, July 2017) is out. Contents include:
  • Special Issue: Environmental Crimes
    • Lorraine Elliott, Cooperation on Transnational Environmental Crime: Institutional Complexity Matters
    • Giovanni Broussard, Building an Effective Criminal Justice Response to Wildlife Trafficking: Experiences from the ASEAN Region
    • Gregory Rose, Australian Law to Combat Illegal Logging in Indonesia: A Gossamer Chain for Transnational Enforcement of Environmental Law
    • Michael Faure, The Development of Environmental Criminal Law in the EU and its Member States
    • Ricardo Pereira, Towards Effective Implementation of the EU Environmental Crime Directive? The Case of Illegal Waste Management and Trafficking Offences
  • Regular Article
    • Joonas Alaranta & Topi Turunen, Drawing a Line between European Waste and Chemicals Regulation
  • Case Note
    • Fernando Dias Simões, Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy

Friday, August 11, 2017

Call for Submissions: Business, Human Rights and Security

The Business and Human Rights Journal has issued a call for submissions for a special issue on "Business, Human Rights and Security." The deadline is August 15, 2017. The call is here.

Alter: The Future of International Law

Karen J. Alter (Northwestern Univ. - Political Science) has posted The Future of International Law (in The New Global Agenda, Diana Ayton-Shenker ed., forthcoming). Here's the abstract:
This essay addresses three related questions about international law’s future: Will the world continue to seek multilateral solutions and promote global integration? What is the future of highly contested areas of international law, such as the promotion of human rights and the accountability of states and individuals for atrocities? And will issues that are as yet unregulated or poorly guided by international law – cyber-security, the use of drones, and global climate change – present new frontiers for international law? These questions provide different ways to investigate whether the international liberal order – the political a commitment to multilateralism, human rights and the rule of law – can survive if America turns its back on these values. Invoking John Ruggie’s argument that international regimes fuse power and social purpose, I argue that international law can survive the removal of US support, but it cannot survive if the social purpose of the international liberal order loses support. Based on an analysis of international law’s history, and drawing on numerous social science studies, I argue that the policy positions of President Trump are a neither a major break from past US politics, nor is the Trump Administration likely to meaningfully affect existing or future prospects for international law. The larger threat would be a decline in popular support for the rule of law, which is why global populism more than the policy positions of the current US Administration present the greater threat to the international liberal order.

Chen: Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice

Helena Hsi-Chia Chen has published Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice (Wolters Kluwer 2017). Here's the abstract:
Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice, as the name suggests, focuses on the Chinese courts’ application of the ‘public policy’ exception stipulated in Article V of the New York Convention. Whether a foreign arbitral award can be recognised and enforced by the Chinese courts has always been on the top of foreign parties’ list of concerns. As the ‘public policy’ exception is more uncertain than most other legal concepts, it tends to be argued when other points fail. This book – a major contribution to understanding theory and practice related to the public policy exception – provides a comprehensive understanding on how the term ‘public policy’ specified in Article V of the New York Convention has been interpreted and applied by the Chinese courts.

Holthoefer: Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period

Anne Holthoefer (Saint Anselm College - Politics) has published Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period (Law & Social Inquiry, Vol. 42, no. 3, pp. 711–743, Summer 2017). Here's the abstract:
This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.

Calamita: The Challenge of Establishing a Multilateral Investment Tribunal at ICSID

N. Jansen Calamita (National Univ. of Singapore - Centre for International Law) has posted The Challenge of Establishing a Multilateral Investment Tribunal at ICSID (ICSID Review, forthcoming). Here's the abstract:

In its recent treaties with Canada and Vietnam, the European Union has established a new model of investor-state dispute settlement (ISDS). It entails a reworking of existing structures of investor-state arbitration through, inter alia, the replacement of ad hoc arbitral tribunals with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. It further provides for the establishment of a two-tiered system of tribunals, comprising first-instance and appellate bodies, and allows for appellate review as of right on issues of law and fact.

The new EU model of ISDS does not appear to be compatible with the ICSID Convention. The changes made by the EU and its counterparties are simply too fundamental and too many for the awards produced by this new process of ISDS to be classified properly as ICSID Convention arbitral awards. Moreover, it is not within the power of groups of states or disputing parties to modify among themselves fundamental proscriptions of the ICSID Convention, such as the Convention’s express prohibition on the appellate review of ICSID Convention arbitral awards.

This paper proceeds from the premise that a system of ISDS like the EU model is not compatible or compliant with the ICSID Convention and asks whether, nevertheless, a new multilateral system based broadly on that model can be designed to work at ICSID without amending the Convention. Is it possible, in other words, for ICSID to serve as a forum for the negotiation of an instrument that would create a new multilateral ISDS mechanism outside of the ICSID Convention? Or, considered differently, in the event that negotiations for a new mechanism occur in some other forum or in an ad hoc way, can ICSID and its secretariat nevertheless serve as the international organisation onto which the new mechanism might be docked? If so, what limits might there be on the role the Centre could properly play? These questions are of existential importance to ICSID as an institution. For if states agree to establish a multilateral investment tribunal to replace ICSID Convention arbitration (and all other forms of ad hoc investor-state arbitration for that matter), the question must be asked as to what will be left for ICSID as an institution to do, at least with respect to disputes arising under investment treaties.

Nouwen: The International Criminal Court

Sarah M.H. Nouwen (Univ. of Cambridge - Law) has posted The International Criminal Court (Oxford Bibliographies). Here's the introduction:
The International Criminal Court (ICC or “the Court”) is the world’s first permanent international court enforcing international criminal law. The ICC has attracted enormous scholarly attention from both lawyers and non-lawyers. Entire journals have been filled with commentaries on its legal framework—primarily the Rome Statute by which it was created—and the case-law developing that framework. But as the breadth of research on the ICC in non-legal disciplines demonstrates, the Court’s relevance goes far beyond the application and development of international criminal law; even without much judicial activity, it produces wide-ranging consequences in the world. Much material on the ICC is subsumed in literature on international criminal tribunals or international criminal law generally. This entry focuses on literature that is ICC-specific. Even though the Rome Statute’s provisions and its case law on substantive international criminal law are in some instances ICC-specific, this article leaves substantive criminal law (for instance genocide, modes of liability, or defenses) for Oxford Bibliographies entries on those topics.

Rao: The Jadhav case (2017): India and Pakistan before the International Court of Justice

Pemmaraju Sreenivasa Rao has posted The Jadhav case (2017): India and Pakistan before the International Court of Justice (Indian Journal of International Law, forthcoming). Here's the abstract:
This paper examines the Jadhav case filed by India before the ICJ. Kulbhushan Jadhav, an Indian national, was arrested by Pakistan on charges of espionage, sabotage and terrorism. Pakistan denied several requests from India seeking consular access to Jadhav after his arrest preventing it from rendering him necessary assistance. A military court of Pakistan sentenced him to death. Under the circumstances, India filed a case before the ICJ seeking its jurisdiction under Article 36(1) of its Statute to assert its right of consular access. Pakistan contested the jurisdiction of the ICJ. The ICJ stayed the death sentence and called for memorials to be filed by the Parties to decide first on issues of jurisdiction and later concerning merits as appropriate. This case also offers an opportunity to take an overview of India’s policy and practice concerning peaceful settlement of disputes through judicial means.

Thursday, August 10, 2017

New Issue: European Journal of International Security

The latest issue of the European Journal of International Security (Vol. 2, no. 2, July 2017) is out. Contents include:
  • Richard Caplan & Anke Hoeffler, Why peace endures: an analysis of post-conflict stabilisation
  • John Gledhill, When state capacity dissolves: Explaining variation in violent conflict and conflict moderation
  • Andrew Judge & Tomas Maltby, European Energy Union? Caught between securitisation and ‘riskification’
  • Robert J. Downes & Christopher Hobbs, Nuclear terrorism and virtual risk: Implications for prediction and the utility of models
  • Campbell Craig, When the whip comes down: Marxism, the Soviet experience, and the nuclear revolution
  • Benoît Pelopidas, The unbearable lightness of luck: Three sources of overconfidence in the manageability of nuclear crises