CALL FOR PAPERS AND POSTERS
Faculty of Law, University of Ljubljana invites abstract submissions for consideration for a second edition of a two day international interdisciplinary scientific conference entitled Responsibility to Protect in Theory and Practice Conference. This is an opportunity for scholars in fields of law, political science, military and other fields to engage in an interdisciplinary academic debate on the concept of Responsibility to Protect (RtoP). The conference will be held in Ljubljana, Slovenia on April 23 - 24, 2015.
Abstracts for papers must be no longer than 500 words in length and the abstracts for posters should be no longer than 300 words in length.
All abstracts should be submitted by Sunday, September 14, 2014 through email to R2P@pf.uni-lj.si. The submission must include the name and title of the author, position, name and address of the current institution of employment, and a short biography of maximum of ten lines. Please write the abstracts in third person (e.g. “the author believes …” instead of “I believe …” and “the article discusses …” instead of “I will discuss …”).
Successful applicants will be informed by the end of September 2014. The presentation at the conference is subject to the receipt of the paper and panelist registration fee in the amount of 100 EUR. The authors selected for presentation of their papers at the conference will be expected to submit completed papers with maximum 8,000 words in length by Sunday, December 14, 2014. The selected papers will be included in a conference book, published ahead of the conference and available to all the conference participants on April 23, 2015.
Travel and accommodation costs will have to be carried by the authors of the selected papers and poster presentations themselves. Please address any further enquiries to R2P@pf.uni-lj.si.
Conference Chair: Dr Vasilka Sancin, Director of the Institute of International Law and International Relations at the Faculty of Law, University of Ljubljana
Conference Coordinator: Maša Kovič Dine
Saturday, September 13, 2014
La justice transitionnelle vise à tirer les conséquences de violations graves des droits de l’homme commises durant un régime répressif ou un conflit armé, sans remettre en cause l’équilibre instable de la société au moment de la transition, afin de restaurer la confiance dans le droit et les institutions et promouvoir la transformation vers un État de droit démocratique à même de prévenir la récurrence de ces violations. Tandis que la pression (normative et sociétale) est particulièrement forte durant la transition pour que les responsables soient amenés à rendre des comptes, ces États ne sont souvent pas en mesure de remplir leurs obligations liées à la commission de crimes de droit international et de respecter les standards internationaux pertinents. Les paramètres transitionnels sont en effet particulièrement contraignants et dictent la physionomie des stratégies de justice susceptibles d’être déployées.
- Quelle est alors la place du droit international dans la justice transitionnelle ?
- L’équilibre recherché entre la pression normative internationale et les contraintes caractéristiques de cette période a-t-il trouvé une forme de reconnaissance en droit international ?
L’étude de la résolution progressive des problématiques de cette justice révèle la mise en œuvre d’un régime juridique spécifique, reflet d’une approche intérimaire de mise en conformité avec les règles pertinentes du droit international. Elle se concrétise par le recours à des mesures variées (pénales ou alternatives) déployées dans une démarche globale et inclusive, caractéristique d’une méthodologie propre à la justice transitionnelle.
À travers l’analyse des éléments clés de la justice transitionnelle et de ses interactions avec le droit international, l’ouvrage fournit une analyse globale des problématiques de la justice transitionnelle et des difficultés principales rencontrées par les protagonistes de la transition dans la mise en place d’une stratégie de justice destinée à tirer les conséquences du passé.
Friday, September 12, 2014
Talmon: The (Not So) 'Sacred' Word of an Italian Ambassador and Diplomatic Immunity for Contempt of Court
The Enrica Lexie case, concerning the death of two Indian fishermen off the southern Indian coast of Kerala after they were shot by two Italian marines in an alleged anti-piracy action to protect the Italian oil tanker "M.V. Enrica Lexie", has given rise to an interesting question of international diplomatic law: are proceedings for contempt of court permissible against diplomatic agents?
In February 2013, the Italian Ambassador to India submitted an affidavit to the Indian Supreme Court in the proceedings against the marines. A difficult situation arose when a few weeks later the Italian Government expressly announced that it would be acting contrary to the ambassador’s affidavit. The Indian Supreme Court, in response, adopted an order restraining the ambassador from leaving India. Only a last minute decision of the Italian Government to act in line with the ambassador’s sworn statement defused the situation.
The Indian Supreme Court treated the announcement of the Italian Government that it would not act in accordance with the affidavit as a breach of an undertaking given to the Court by the Italian Ambassador giving rise to sanctions for contempt of court.
The paper sets out the facts of the incident by way of a detailed diplomatic case study and examines whether the submission of an affidavit by diplomatic agents precludes them from invoking immunity from jurisdiction in respect of contempt proceedings connected with the affidavit and whether submission of an affidavit amounts to a valid waiver of diplomatic immunity. It shows that diplomatic immunity constitutes an absolute shield against contempt proceedings.
The paper also probes the legality of the Indian Supreme Court’s restraining order and concludes that, while the action of the Italian Government showed wanton disregard for the authority of India’s highest court, this did not give the Indian Supreme Court or the Indian Government any right to prohibit the Italian Ambassador from leaving the country. The only remedy available in case of contempt of court is for the Indian Government to declare the diplomatic agent persona non grata.
The principal aim of this book is to address the international legal questions arising from the 'right of visit on the high seas' in the twenty-first century. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas (the freedom, in peacetime, to remain free of interference by ships of another flag). It is this freedom that has been challenged by a recent significant increase in interceptions to counter the threats of international terrorism and WMD proliferation, or to suppress transnational organised crime at sea, particularly the trafficking of narcotics and smuggling of migrants. The author questions whether the principle of non-interference has been so significantly curtailed as to have lost its relevance in the contemporary legal order of the oceans. The book begins with an historical and theoretical examination of the framework underlying interception. This historical survey informs the remainder of the work, which then looks at the legal framework of the right of visit, contemporary challenges to the traditional right, interference on the high seas for the maintenance of international peace and security, interferences to maintain the 'bon usage' of the oceans (navigation and fishing), piracy j'ure gentium'and current counter-piracy operations off the coast of Somalia, the problems posed by illegal, unregulated and unreported fishing, interdiction operations to counter drug and people trafficking, and recent interception operations in the Mediterranean Sea organised by FRONTEX.
The editors welcome submissions from all members of the academic community for consideration for the General Articles and Spanish Practice section, subject to peer review. Our Call for Papers for Vol. 18 is now open. Manuscripts dealing with any topic of interest in the field of Public and Private International Law and International relations should be submitted to the editors by 31 October 2014. The manuscripts shall compulsory conform to the Style Guide of the SYbIL (available here). Please, remember that your manuscript MUST be submitted to the Editor’s email address at email@example.com. Please, do not use any other email address.
- Jena McGill, Survival Sex in Peacekeeping Economies
- Malte Brosig & Dimpho Motsamai, Modeling Cooperative Peacekeeping
- Ashly Adam Townsen & Bryce W. Reeder, Where Do Peacekeepers Go When They Go?
- Abiodun Bashua, Challenges and Prospects of AU-UN Hybrid Operations
- Emily K. Maiden, Transformative Peace in the Democratic Republic of the Congo
This paper analyzes the current problematic discourse on the legality of autonomous weapons system (“killer robots”) under international law, and seeks to offer a novel prism through which to discuss the challenges such systems pose, namely the view that modern warfare is as an exercise of administrative action. Most wars nowadays are fought between state and non-state actors, and armed violence is limited neither spatially nor temporally. In virtually all instances where autonomous weapons are likely to be deployed, advanced militaries will engage non-accountable non-state actors, operating within an unprotected civilian population in failing states or territories. Mainly in such situations, the deployment of autonomous weapons can be analyzed in light of basic principles of administrative law, such as the duty to exercise discretion before acting and the right to a due process. As we demonstrate, these principles are compromised when the power to make “decisions” that affect basic rights are transferred to computer systems.
Thursday, September 11, 2014
- T. Alexander Aleinikoff & Stephen Poellot, The Responsibility to Solve: The International Community and Protracted Refugee Situations
- Matiangai V.S. Sirleaf, Beyond Truth and Punishment in Transitional Justice
- Tomer Broude & Holger P. Hestermeyer, The First Condition of Progess? Freedom of Speech and the Limits of International Trade Law
- James Kraska, Legal Vortex in the Strait of Hormuz
- Julie A. Maupin, Public and Private in International Investment Law: An Integrated Systems Approach
Call for Papers
International Interdisciplinary Conference
Working Group of Young Scholars in Public International Law
The Transnational in International Law
University of Bremen
25 ‒ 27 March 2015
International legal scholarship has since long tried to comprehend the diversifica-tion of actors, rules, and authorities in international law. Almost 60 years ago, Philip Jessup, who was later appointed as a judge at the International Court of Justice, developed the idea of a “transnational law”, including “all law which regulates actions or events that transcend national frontiers”. His approach aimed at substitut-ing and expanding the traditional notion of international law which used to be confined to inter-state relations. Recently, similar approaches have regained significance in analyzing the impact of what is commonly called globalization on the law. It still remains unclear, however, how such approaches affect the conventional concepts, instruments, and methods of international law.
To grasp the alleged transformation of international law is all the more difficult since the notion of transnationalism, or transnationalization, is employed in various meanings with regard to the law. At the outset, two conceptions may be dis-tinguished. According to a more comprehensive understanding, transnationalization of law denotes the intertwinement and interaction of different legal actors or orders (state, sub-state, inter-state, supra-state, non-state). Pursuant to narrower conception, by contrast, transnationalization of law only points to the inclusion of non-state actors in regulating cross-border issues. Both notions are not mutually exclusive. They depart from the shared observation that the law regulating cross-border issues has become more complex than ever before. Law-making authority is no longer solely claimed by states, but also by international and supranational organizations as well as non-state actors. In the resulting plurality of actors, fora, norms, and implementation procedures, the relationship of the different constituencies is not always clearly defined.
Against this background, the conference seeks to explore the significance of the concept of transnationalism within and beyond international law. On the one hand, it intends to define and demarcate the potential and limits of the concept of transnationalism in law. On the other hand, it strives to inquire into the conse-quences of a possible transnationalization for international law. From an empirical perspective, it calls upon to ascertain the remaining role of the state in cross-border regulation. From a normative perspective, it invites to argue whether the state deserves any preponderance as a resource of legitimacy in global governance.
The general subject allows for various topics and approaches. Empirical, normative, and legal-dogmatic contributions are equally welcome. Interdisciplinary studies would be particularly helpful, especially from the fields of history, sociology, philosophy, and economics. Possible subjects may include:
What does transnationalism, or transnationalization, mean with regard to inter-national law? How does the transnationalization of law affect the concepts, in-struments, and methods of international law?
Against which rules and principles of law is the action of transnational corpora-tions and arbitration panels to be scrutinized? Are non-state actors bound by human rights?
Under what conditions may the practice of international institutions which inter-pret their competencies and legal instruments dynamically be deemed legitimate? Does the participation of non-governmental institutions enhance or impair the le-gitimacy of law-making processes across borders?
In which way may the interaction of different legal orders and actors be regulat-ed? How can conflicts of norms be solved?
The two-day conference will take place at the Center for Transnational Studies of the University of Bremen from 25 until 27 March 2015. It is supposed to provide a forum of dialogue between junior and senior researchers. Therefore, established professors will comment on the contributions of younger scholars (advanced doc-toral and post-doctoral stages). Proposals for papers of no more than 500 words and a short CV should be submitted to Transnational_Law@gmx.com by 31 October 2014. Selected participants will be notified by 30 November 2014. Elaborated papers of no more than 10.000 words (including footnotes) are expected by 28 February 2015. Expenses for travel and accommodation will be covered to a certain extent.
Organizing committee: Dr. Anuscheh Farahat, LL.M. (Max Planck Institute for Comparative Public Law and International Law Heidelberg), Dr. Birgit Peters, LL.M. (Westfälische Wilhelms-Universität Münster), Dr. Lars Viellechner, LL.M. (Humboldt-Universität zu Berlin).
Submission of abstracts: 31 October 2014 (max. 500 words, to: Transnational_Law@gmx.com)
Notification of participants: 30 November 2014
Submission of papers: 28 February 2015 (max. 10.000 words)
In Status of NGOs in International Humanitarian Law, Claudie Barrat examines the legal framework applicable to NGOs in situations of armed conflict. The author convincingly demonstrates, contrary to convention, that in addition to the ICRC, the National Societies and the IFRC, numerous other NGOs referenced in humanitarian law treaties have a legal status in IHL and therefore legitimate claim to employ IHL provisions to respond to current challenges. On the basis of clear and thorough definitions of these entities, Barrat argues that existing NGOs meeting stringent definition can benefit from customary rights and obligations in both international and non-international armed conflict.
Social legitimacy is central to the effectiveness of international organizations (IOs). Yet, so far, we have little systematic knowledge about what drives citizens to support or oppose IOs. In this article, we isolate and assess three alternative explanations of social legitimacy in global governance, privileging interest representation, institutional performance, and confidence extrapolation. We test these theories in a multi-level analysis of citizen confidence in the United Nations (UN) using World Values Survey and European Values Study data, supplemented by contextual measures. The results grant support to the arguments that institutional performance and confidence extrapolation shape popular confidence in the UN, while offering little support for the explanation of interest representation. These findings challenge the predominant understanding that more democratic procedures lead to greater social legitimacy for IOs. Instead, the UN case suggests that the social legitimacy of IOs is based primarily on the organizations' capacity to deliver, as well as on citizens’ general confidence in political institutions, which IOs may have little to do with and can do little to change.
Chadwick F. Alger Prize
The Chadwick F. Alger Prize recognizes the best book published in the previous calendar year on the subject of international organization and multilateralism. The Prize is awarded annually by the International Organization Section of the International Studies Association. The Award Committee is particularly interested in works dealing with the United Nations and/or with how international organizations interact with nongovernmental organizations and other local civil society actors, as reflected in the writings of Chadwick F. Alger.
Recipients must meet the Following Criteria
1. Recipients must be a current member of ISA
2. The recipient may be at any stage of his or her career and from any country.
3. Edited volumes are not eligible for this award.
4. Self-nominations are also welcome.
The recipient receives a $250.00 (USD) cash prize from the International Organization account and a certificate.
The recipient is selected by a committee appointed by the International Organization Section.
The recipient will be announced at the International Organization Section Business Meeting at the ISA Annual Convention and will be recognized at the IO Section reception.
Apply For This Award
Publishers are asked to limit their submissions to no more than three (3) works, and to send a copy of the nominated work(s) directly to each of the committee members. Publishers should also notify the Committee Chair of submissions by email.
Nominated books should be sent to the committee members by October 1st. Books appearing later in 2014 can be sent as page proofs by October 1st
The idea of the “responsibility to protect” has received enormous attention in recent years — so much attention that it now goes simply by R2P. R2P posits that, when a state fails to protect its population from mass atrocities, the broader international community should step in to help. The vision here is of outside states banding together and doing everything possible to protect the at-risk population. But for all the attention that this vision receives, its effect on international law or on the ultimate goal of protecting people from atrocities is unclear.
This Article critiques that vision and offers an alternative. I argue that R2P is unlikely to become legally operative so long as it presents a single, daunting duty that falls either on all outside states simultaneously or on states’ collective organizations, like the United Nations. Instead, R2P should present a bundle of more discrete duties, and responsibility for each duty should attach to specific outside states at a time. In particular, responsibility should attach to states on the basis of their own conduct or relationships. This alternative vision is preferable to the now dominant one because this vision builds on existing international law and follows the law’s current trajectory. It thus has the potential to gain legal traction going forward.
Wednesday, September 10, 2014
The arbitration-litigation process respecting international commercial arbitration can be divided into three principal stages. Stage One occurs before a national court where a primary issue is whether the court should decide the merits of the dispute or refer the parties to arbitration. This decision turns on whether the parties have entered a binding and enforceable agreement to arbitrate their dispute -- in other words, whether the dispute is arbitrable. Stage Two occurs before the arbitrators, once they have been chosen and have initiated arbitral proceedings. Here again, an opposing party may challenge the arbitrability of the dispute by petitioning the arbitrators to dismiss the case because they do not have good jurisdiction or the claim is not admissible. Stage Three occurs after the arbitrators have rendered an award and the parties are disputing before a national court whether the award is enforceable. A ground for not enforcing the award is that the dispute was not arbitrable. This book chapter discusses the principal issues, doctrines, and approaches that arise concerning the arbitrability decision at each of these three stages of the arbitration-litigation process. The discussion takes a transnational approach, focusing on several of the leading arbitration jurisdictions, including especially the U.S. and France.
Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory immediately and unconditionally. International law has long recognized the illegality of occupation that results from an unlawful use of force by the occupying state. An emerging approach among international lawyers holds that occupation resulting from a lawful use of force by a state, in self-defense, may also become illegal. Proponents of this approach link the illegality of the occupation to violations on the part of the occupant of the prohibition on the use of force or of the right of peoples to self-determination. These violations are the result of policies carried out by the occupant amounting to de facto annexation of the occupied territory, manifested in refusal to engage in good-faith negotiations to end the occupation or in actions on the ground aimed at perpetuating the occupation (e.g., enabling the settlement of the occupant’s citizens in the occupied territory). Arguments that such conduct renders the occupation illegal have largely focused on the occupation of Arab territories by Israel.
This article argues that the purview of the notion of illegal occupation in international law does not extend to occupation resulting from the lawful use of force by a state in self-defense ("lawfully created occupation"). The article reviews the various theories presented in support of such an extension, but shows that state practice does not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal.
The author subscribes to the view that a policy of de facto annexation pursued by an occupant violates the right to self-determination, and possibly the prohibition on the use of force. Such violation leads to legal consequences, but these do not include the illegality of occupation. This article examines the rules of international law that determine the legal consequences of state conduct that violates international law, and shows that these rules do not accommodate an extension of the notion of illegal occupation to lawfully created occupation.
The article proceeds to argue that the introduction of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal is inadvisable because such a norm would be full of uncertainty.
- Maritime Dispute (Peru v. Chile) (I.C.J.), with introductory note by David P. Riesenberg
- Prosecutor v. Laurent Koudou Gbagbo (Int’l Crim. Ct.), with introductory note by Inbal Djalovski
- Hay v. Crédit Agricole Mutuel de Charente-Maritime et des Deux-Sèvres (E.C.J.), with introductory note by Emily MacKenzie
- The Netherlands v. Nuhanović & The Netherlands v. Mustafić-Mujić et al. (Sup. Ct. Neth.), with introductory note by Amir Čengić
- Jones and Others v. United Kingdom (Eur. Ct. H.R.), with introductory note by Chimène I. Keitner
- Committee on the Rights of the Child Concluding Observations on the Second Periodic Report of the Holy See, with introductory note by Ioana Cismas
- Brigit Toebes, Healthcare on the Battlefield
- Jean-Marie Kamatali, The Application of International Human Rights Law in Non-International Armed Conflicts
- Eva Küblbeck, The Immunity of Civilians
- Agnieszka Szpak, The Eritrea-Ethiopia Claims Commission and Customary International Humanitarian Law
- Lisa-Marie Komp, How the Responsibility to Protect Influences the Security Council’s Powers, Limits and Dynamic
- Martijn Jurgen Keeman, Is Formalism a Friend or Foe?
- Harlan G. Cohen, International Law in a Time of Scarcity: An Introduction
- Jose Cuesta, Resource Scarcity from an Applied Economic Perspective
- Anastasia Telesetsky, Fishing Moratoria and Securing TURFS: Creating Opportunities for Future Marine Resource Abundance in the Face of Scarcity in Western Africa
- Barbara Lynch, River of Contention: Scarcity Discourse and Water Competition in Highland Peru
- Aparna Polavarapu, Reconciling Indigenous and Women's Rights to Land in Sub-Saharan Africa
CALL FOR SUBMISSIONS
Special Issue on Government Procurement
Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. In keeping with these ideals, the Board of Editors is pleased to announce Government Procurement as the theme for its next Special Issue (Vol. VII, No. 1).
The Plurilateral Agreement on Government Procurement (‘GPA’) aims to promote transparency, integrity and competition in the purchase of goods and services by government agencies. Preferential treatment for domestic goods and services are envisaged as trade barriers. Participating governments are also required to put in place domestic procedures by which aggrieved private bidders can challenge procurement decisions and obtain redress in the event of inconsistency with the GPA. However, States have political and economic interests in promoting their own small and medium scale industries. Therefore, the attempt to harmonize these objectives raises issues with reference to market access and the benefits of “good governance” under the GPA. These subjects have not received sufficient analysis from mainstream academia yet. Consequently, existing literature is inadequate to effectively equip policymakers to deal with such issues.
The revised GPA entered into force on April 6, 2014 and enabled parties to realise gains in market access to the tune of billions of dollars annually. This Special Issue, currently scheduled for publication in July, 2015, will provide an ideal platform to deliberate on Government Procurement initiatives at the WTO. Accordingly, the Board of Editors is pleased to invite original and unpublished submissions for the Special Issue on Government Procurement for publication as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.
Manuscripts may be submitted via e-mail, ExpressO, or the TL&D website. For further information and submission guidelines, please visit the Journal’s website: www.tradelawdevelopment.com.
In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.
LAST DATE FOR SUBMISSIONS: FEBRUARY 15, 2015
Eric Helleiner's new book provides a powerful corrective to conventional accounts of the negotiations at Bretton Woods, New Hampshire, in 1944. These negotiations resulted in the creation of the International Monetary Fund and the World Bank—the key international financial institutions of the postwar global economic order. Critics of Bretton Woods have argued that its architects devoted little attention to international development issues or the concerns of poorer countries. On the basis of extensive historical research and access to new archival sources, Helleiner challenges these assumptions, providing a major reinterpretation that will interest all those concerned with the politics and history of the global economy, North-South relations, and international development.
The Bretton Woods architects—who included many officials and analysts from poorer regions of the world—discussed innovative proposals that anticipated more contemporary debates about how to reconcile the existing liberal global economic order with the development aspirations of emerging powers such as India, China, and Brazil. Alongside the much-studied Anglo-American relationship was an overlooked but pioneering North-South dialogue. Helleiner’s unconventional history brings to light not only these forgotten foundations of the Bretton Woods system but also their subsequent neglect after World War II.
This book provides an article-by-article commentary on the text of the Chemical Weapons Convention (CWC) and its Annexes, one of the cornerstone disarmament and arms control agreements. It requires the verified elimination of an entire category of weapons of mass destruction and their means of production by all its States Parties within established time lines, and that prohibits any activities to develop or otherwise acquire such weapons.
Cross-cutting chapters alongside the detailed commentary, by those intimately involved in the development of the Convention, assess the history of the efforts to prohibit chemical weapons, the adoption of the Convention and the work of the Preparatory Commission, the entry into force of the Convention to the Second Review Conference, and the need for a new approach for the governance of chemical weapons.
Written by those involved in its creation and implementation, this book critically reviews the practices adopted in implementing the Convention, as well as the challenges ahead, and provides legal commentary on, and guidance for, its future role. It assesses how to adapt its implementation to advances in science and technology, including the discovery of new chemicals and the development of biochemical 'non-lethal' compounds that influence behaviour. It addresses the legal framework within which the Organization for the Prohibition of Chemical Weapons (OPCW) takes decisions, both with regard to the OPCW's own regulatory framework and regarding wider international norms, accepted principles, and practices. The Commentary draws conclusions on how the prohibitions against chemical weapons can be strengthened and the stature of the OPCW protected. It highlights the involvement of industry and academia in this prohibition, creating a symbiosis between effective governance and the legal framework of the Convention.
- Kenneth Keith, 100 Years of International Arbitration and Adjudication
- Tom de Boer & Marjoleine Zieck, From Internment to Resettlement of Refugees: On US Obligations towards MeK Defectors in Iraq
- Ross P Buckley, Douglas W Arner & Rebecca L Stanley, Trade Finance in East Asia: Potential Responses to the Shortfall
- Catherine O'Rourke, 'Walk[ing] the Halls of Power'? Understanding Women's Participation in International Peace and Security
- Laura Smyth, Country-Specific Mandate-Holders: The Role of the Special Rapporteur on the Situation of Human Rights in Cambodia
- Paul Behrens, 'None of Their Business'? Diplomatic Involvement in Human Rights
Tuesday, September 9, 2014
In the United States, a statute enacted in the late eighteenth century confers on federal courts jurisdiction over civil suits alleging violations of “the law of nations.” Whereas scholars and lower courts alike have assumed that customary international law is the modern equivalent of the law of nations, this Article reveals that this conflation is mistaken. The term “the law of nations,” as commonly used at the time of the statute’s enactment, was considered to include laws deriving from the implicit consent of nations (the modern equivalent of customary international law), but primarily reflected the dominant view at the time that the law of nations was an extension of natural law. The implication is that “the law of nations” encompasses rules that are better conceptualized as peremptory rules of international law (jus cogens), rather than customary international law. This understanding is of critical importance under the Supreme Court’s instruction that modern suits brought pursuant to the statute rest on a norm that is comparable to the features of the eighteenth century paradigms. By developing what I term the “revisionist historical paradigm,” this Article provides a workable framework to evaluate modern Alien Tort Statute litigation that is in line with recent Supreme Court jurisprudence developed under Sosa and Kiobel.
- Gro Nystuen & Stuart Casey-Maslen, Introduction
- Nobuo Hayashi, Using force by means of nuclear weapons and requirements of necessity and proportionality ad bellum
- Nobuo Hayashi, Legality under jus ad bellum of the threat of use of nuclear weapons
- Jasmine Moussa, Nuclear weapons and the separation of jus ad bellum and jus in bello
- Stuart Casey-Maslen, The use of nuclear weapons under rules governing the conduct of hostilities
- Simon O'Connor, Nuclear weapons and the unnecessary suffering rule
- Gro Nystuen, Threats of use of nuclear weapons and international humanitarian law
- Stuart Casey-Maslen, The use of nuclear weapons as a reprisal under international humanitarian law
- Stuart Casey-Maslen, Use of nuclear weapons as genocide, a crime against humanity, or a war crime
- Annie Golden Bersagel, Use of nuclear weapons as an international crime and the Rome Statute of the International Criminal Court
- Erik V. Koppe, Use of nuclear weapons and protection of the environment during international armed conflict
- Martina Kunz & Jorge E. Viñuales, Environmental approaches to nuclear weapons
- Don MacKay, The testing of nuclear weapons under international law
- Marco Roscini, International law, nuclear weapon-free zones, and the proposed zone free of weapons of mass destruction in the Middle East
- Cecilie Hellestveit & Daniel Mekonnen, Nuclear weapon-free zones: the political context
- Gro Nystuen & Torbjørn Graff Hugo, The Nuclear Non-Proliferation Treaty
- Daniel H. Joyner, The legal meaning and implications of Article VI of the Non-Proliferation Treaty
- Stuart Casey-Maslen, Armed non-state actors and 'nuclear terrorism'
- Louise Doswald-Beck, Human rights law and nuclear weapons
- Stuart Casey-Maslen, The right to a remedy and reparation for the use of nuclear weapons
- Gro Nystuen, Conclusions on the status of nuclear weapons under international law
Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.
This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.
This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.
- Andreas Paulus, Zusammenspiel der Rechtsquellen aus völkerrechtlicher Perspektive
- Nina Dethloff, Zusammenspiel der Rechtsquellen aus privatrechtlicher Sicht
- Thomas Giegerich, Internationale Standards – aus völkerrechtlicher Perspektive
- Ingeborg Schwenzer, Hybridisierung der Rechtsordnungen – Internationale privatrechtliche
- Heike Krieger, Immunität: Entwicklung und Aktualität als Rechtsinstitut
- Andreas R. Ziegler, Immunität der Staaten – unter besonderer Berücksichtigung der Praxis in der Schweiz
- Stefan Talmon, Immunität von Staatsbediensteten
- Haimo Schack, Zugriff auf Potentatengelder – zwischen Vollstreckungsimmunität und Opferschutz
- Harald Bauder, Why We Should Use the Term ‘Illegalized’ Refugee or Immigrant: A Commentary
- Ana Beduschi, Detention of Undocumented Immigrants and the Judicial Impact of the CJEU’s Decisions in France
- Sandesh Sivakumaran, Exclusion from Refugee Status: The Purposes and Principles of the United Nations and Article 1F(c) of the Refugee Convention
- Eric Fripp, International Humanitarian Law and the Interpretation of ‘Persecution’ in Article 1A(2) CSR51
- Matthew Scott, Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights?
- Forum: Conflicts in the South China Sea
- Zou Keyuan, China and the South China Sea Conundrum: Any Prospective Solution in Future?
- Ted L. McDorman, The South China Sea: The U-Shaped Line, Islands and the Philippine-China Arbitration
- Focus: International Energy Law
- Sergei Vinogradov & Gokce Mete, Cross-Border Oil and Gas Pipelines in International Law
- Tara Davenport, The Installation of Submarine Power Cables under UNCLOS: Legal and Policy Issues
- Kaj Hobér & Joel Dahlquist, International Investment Protection Regimes in the Energy Sector
- Andrey Konoplyanik, Russia and the Energy Charter: Long, Thorny and Winding Way to Each Other
- Patrick Reyners, The International Nuclear Energy Law Framework: An Outlook
- Peter Kayode Oniemola, International Law on Renewable Energy: The Need For a Worldwide Treaty
- Alexandra Xanthaki, Rights of Indigenous Peoples under the Light of Energy Exploitation
- General Articles
- Ulf Linderfalk, All the Things That You Can Do with Jus Cogens – A Pragmatic Approach to Legal Language
- Martin Borowski, Absolute Rights and Proportionality
- Jasmine Coppens, Interception of Seaborne Migrants: The Applicability of the Non-Refoulement Principle at Sea
- Dagmar Richter & Patrick Uhrmeister, Returning ›Politically Exposed Persons‹ Illicit Assets from Switzerland – International Law in the Force Field of Complexity and Conditionality
- German Practice
- Christophe Eick, The German-Gabonese Initiative on Poaching and Illegal Wildlife Trafficking: Is There a Role for the UN Security Council?
- Berenike Schriewer, Shining a Light on the Human Rights Situation in Germany – The Human Rights Council's Report on Germany in the Second Cycle of the Universal Periodic Review
- Marlitt Brandes, Germany's Secret Arms Deals: Compliance of German Arms Export Licensing with International Law
- Nicholas English & Tim Rauschning, The Procurement and Use of Armed UAVs by the German Military in International and German Law
- Jule Siegfried & Marieke Lüdecke, 50th Anniversary of the Élysée Treaty
- Katrin Kohoutek, The Swiss-German Treaty on the Effects of the Operation of Zurich Airport on German Territory
- Julia Müller, The Hamburg Piracy Trial – A Contribution to the International Aim of Combating Piracy?
- Andrea Meyer, The 2011 EU Directive on Preventing and Combating Trafficking: Non-Implementation by Germany?
Monday, September 8, 2014
- Rahul Rao, The locations of homophobia
- Gregor Noll, Weaponising neurotechnology: international humanitarian law and the loss of language
- Campbell A. O. Munro, Mapping the vertical battlespace: towards a legal cartography of aerial sovereignty
- Justin Desautels-Stein, Chiastic law in the crystal ball: exploring legal formalism and its alternative futures
- Books etc.
- Anthony Carty & Mairianna Clyde, Scotland and England from a union of parliaments to two independent kingdoms
- Deborah Whitehall, People in glass houses: lessons for international law from Margarethe von Trotta’s Hannah Arendt
- Amr A. Shalakany, The day the graffiti died
Are the best international agreements products of mutual understanding? The conventional wisdom in economics, sociology, and political science is that accurate perceptions of others' interests, beliefs, and ideologies promote cooperation. Obstacles to international cooperation therefore emerge from misperception and misunderstanding. In Constructive Illusions, Eric Grynaviski challenges this conventional wisdom by arguing that when nations wrongly believe they share a mutual understanding, international cooperation is actually more likely, and more productive, than if they had a genuine understanding of each other's position.
Mutual understanding can lead to breakdowns in cooperation by revealing intractable conflicts of interest, identity, and ideology. Incorrectly assuming a mutual understanding exists, in contrast, can enhance cooperation by making actors confident that collaborative ventures are in both parties’ best interest and that both parties have a reliable understanding of the terms of cooperation. Grynaviski shows how such constructive misunderstandings allowed for cooperation between the United States and the Soviet Union between 1972 and 1979.
During détente, the superpowers reached more than 150 agreements, established standing consultative committees, regularly held high-level summit meetings, and engaged in global crisis management. The turn from enmity to cooperation was so stark that many observers predicted a permanent end to the Cold War. Why did the superpowers move from confrontation to cooperation? Grynaviski’s theory of the role of misunderstanding in cooperation provides an explanation that is significantly different from liberal institutionalist and constructivist approaches. This book’s central claim is that states can form what French president Valéry Giscard d’Estaing called "a superb agreement based on complete misunderstanding."
- Mark Osiel, Who Are Atrocity's “Real” Perpetrators, Who Its “True” Victims and Beneficiaries?
- Roundtable: The Facts, Fictions, and Future of Climate Change
- Stephen M. Gardiner, A Call for a Global Constitutional Convention Focused on Future Generations
- Scott Russell Sanders, The Dawning of an Earth Ethic
- Paul Wapner, Ethical Enhancement in an Age of Climate Change
- Clive Hamilton, Moral Collapse in a Warming World
- Clare Palmer, Three Questions on Climate Change
- Daniel Mittler, The Changing Ethics of Climate Change
- Thomas E. Lovejoy, A “Natural” Proposal for Addressing Climate Change
- Christian Enemark, Drones, Risk, and Perpetual Force
- Review Essay
- Richard Jolly, Western Pessimism, Asian Optimism: Three Perspectives on Global Governance
Durbach & Chappell: Leaving Behind the Age of Impunity: Victims of Gender Violence and the Promise of Reparations
As sexual violence in conflict – predominantly affecting women and girls – appears to increase in prevalence, gender justice advocates are calling for a reparations model that is not only restorative, but also, and more critically, preventative or transformative. This article asks whether the reparations mandate of the International Criminal Court (ICC) and the Trust Fund for Victims has the potential to address the pre-conflict structural inequalities that often contribute to the sexual violence and harm experienced during and post-conflict. Drawing on social theorist Nancy Fraser's model of trivalent justice and the ICC's first reparations decision in Lubanga, this article argues that the design of the ICC's court-ordered reparations mandate, and the unrealistic expectations it raises, may make it untenable to support the key transformative elements of recognition, representation and redistribution essential to addressing structural inequities contributing to conflict-related sexual violence. It suggests however, that modifying initiatives of the ICC's Trust Fund for Victims and a greater emphasis by the ICC on the notion of member state “reparative complementarity” may provide mechanisms for transforming conditions that trigger and perpetuate gender violence during conflict.
The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a “moralistic legalistic approach to international relations” remains little studied. A survey of the rise of international legal literature in the U.S. from the mid-19th century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the U.S. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed.by the realist founders of the field of “international relations” to the “moralistic legalistic approach to international relations”.
Sunday, September 7, 2014
The International Criminal Court (ICC) is surrounded by controversies and criticisms. Rather than engaging in any particular controversy, this article surveys the discourse at a more panoramic level, highlighting some patterns in the arguments about the ICC. I will show that many plausible criticisms reflect underlying inescapable dyads. For any position that Court might take, one or more powerful criticisms can inevitably be advanced. My point is not reducible to “you can’t please everyone”: I show the contradictory expectations for the Court, and how the same powerful terms (“political”, “legitimacy”, “interests of victims”) are recruited for opposite meanings, making them inescapable. Awareness of these patterns can (1) provide a typology to help situate and appreciate arguments, (2) reveal the deeper complexity of the problems, and (3) help us to evaluate and improve upon the arguments.