Climate disasters demand an integration of multilateral negotiations on climate change, disaster risk reduction, sustainable development, human rights and human security. Via detailed examination of recent law and policy initiatives from around the world, and making use of a capability approach, Rosemary Lyster develops a unique approach to human and non-human climate justice and its application to all stages of a disaster: prevention; response, recovery and rebuilding; and compensation and risk transfer. She comprehensively analyses the complexities of climate science and their interfaces with the law- and policy-making processes, and also provides an in-depth analysis of multilateral climate change negotiations under the 1992 United Nations Framework Convention on Climate Change.
Saturday, June 11, 2016
In his new book on how the world is ruled today through expert knowledge, [A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy,] Professor David Kennedy enters this continuing discussion [of knowledge and politics] in brilliant, pathbreaking, and trademark fashion. Slyly presenting himself as a disinterested observer of global governance, Kennedy eclectically draws on twentieth-century perspectives about knowledge, achieving a synthesis all his own. Presented without theoretical encumbrance or jargon, A World of Struggle is a straightforward but sophisticated account that capitalizes on prior insight to achieve a unique and powerful vantage point. The superlative book wins its distinction not only because it constructs a novel theory but also because it applies that theory to how the globe as a whole is ruled — something no one in the canon of social theory has really done.
According to Kennedy, accounts of global governance are themselves typically products of an expertise that does much of the work of immunizing a contestable world from serious critique or change. “Terribly unjust, subject to crisis, environmentally unwise, everywhere politically and economically captured by the few, and yet somehow impossible for anyone to alter or escape” is Kennedy’s description of the contemporary situation. His “hypothesis” in response is that “this stability arises from the relative invisibility and imperviousness of the world of technical management to contestation.” To understand expertise is to grasp how the terms of debate and decision about solutions end up reinstating problems.
Much in the book is vintage Kennedy. There is a sinuous prose cast with enviable lucidity in spite of its high level of complexity. There is, as I will examine later, the structuralist vocation that, from Kennedy’s beginnings, has delighted in providing inventories of options of discourse (and charts graphically illustrating the argumentative choices). Indeed, one of the hallmarks of A World of Struggle is how heavily it focuses on the language that constitutes, in Kennedy’s account, the familiar realities of global governance, from the interstate system to the global economy. There is also, as I will take up later, the extravagant political hope that Kennedy never imposes on his readers but allows to lurk on the margin as an attractive but vague possibility.
Altogether, Kennedy’s new book reminds his old readers and instructs his new ones why he is, without doubt, the single most important innovator in international legal thought of the past several decades, a fact proved not only by his own arguments but also by his extraordinary influence. Inaugurating a “new stream” of scholarship on international law, Kennedy has brought the field out of its doctrinalism and parochialism into conversation with social thought and humanistic inquiry. With few possible contenders, like his close associate Professor Martti Koskenniemi, Kennedy may have done the most to make the “invisible college” of international lawyers visible, or at least interesting, to those outside it in diverse fields of academic pursuit. And this book takes that remarkable achievement to a new level. As a result, this is the rare text occupied with international law that is likely to be legible by — indeed, exhilarating to — outsiders to the field, elsewhere in the legal academy and beyond.
This Review focuses on what is newest in the book: Kennedy’s development of a theory of expertise to map the terrain of contemporary global governance. The Review proceeds in six parts. Part I begins my reconstruction of Kennedy’s theory of expertise by emphasizing the centrality of struggle to his account. Part II then provides an overview of the core of A World of Struggle, rehearsing Kennedy’s argument that endemic struggle explains the role of expertise in global governance. Part III completes my survey of the work by showing how Kennedy applies his general theory of expertise to international law.
From reconstruction, the Review then turns to contextualization and critique. Part IV puts pressure on Kennedy’s theory by placing it in the setting of argument from Bacon to Foucault concerning the relation of knowledge and power. A theory of global power that is discursive in general and structuralist in particular will have the vices of its virtues. Experts do no more than talk, and it is tempting to believe an analysis of their discourse goes further in explaining their role than it does. In particular, it may scant causation outside the frame of language and focus on the processes of rule at the expense of outcomes. Part V takes up Kennedy’s case study on the law of war as an instantiation of how his theory of expert knowledge works. Part VI concludes by examining whether Kennedy is subject to his own analysis and how he hints at the promise of a form of responsible power beyond expertise. Most worrisome about the book is that Kennedy is driven to a skepticism of expertise so withering that the sole alternative he can recommend — a potentially empty one — is what he calls “unknowing.”
Some of our most fundamental moral rules are violated by the practices of torture and war. If one examines the concrete forms these practices take, can the exceptions to the rules necessary to either torture or war be justified? Fighting Hurt brings together key essays by Henry Shue on the issue of torture, and relatedly, the moral challenges surrounding the initiation and conduct of war, and features a new introduction outlining the argument of the essays, putting them into context, and describing how and in what ways his position has modified over time. The first six chapters marshal arguments that have been refined over 35 years for the conclusion that torture can never be justified in any actual circumstances whatsoever. The practice of torture has nothing significant in common with the ticking bomb scenario often used in its defence, and weak U.S. statutes have loop-holes for psychological torture of the kind now favoured by CIA in the 'war against terrorism'. The other sixteen chapters maintain that for as long as wars are in fact fought, it is morally urgent to limit specific destructive practices that cannot be prohibited. Two possible exceptions to the UN Charter's prohibition on all but defensive wars, humanitarian military intervention and preventive war to eliminate WMD, are evaluated; and one possible exception to the principle of discrimination, Michael Walzer's 'supreme emergency', is sharply criticized. Two other fundamental issues about the rules for the conduct of war receive extensive controversial treatment. The first is the rules to limit the bombing of dual-use infrastructure, with a focus on alternative interpretations of the principle of proportionality that limits 'collateral damage'. The second is the moral status of the laws of war as embodied in International Humanitarian Law. It is argued that the current philosophical critique of IHL by Jeff McMahan focused on individual moral liability to attack is an intellectual dead-end and that the morally best rules are international laws that are the same for all fighters.
Examining real cases, including U.S. bombing of Iraq in 1991, the Clinton Administration decision not to intervene in the 1994 Rwandan genocide, NATO bombing of Serbia in 1999, and CIA torture after 9/11 and its alternatives, this book is highly accessible to general readers who are interested in the ethical status of American political life, especially foreign policy.
This Article investigates the problematic invocation of unique circumstances as a justification for circumventing international law relating to the use of force and state secession. Borrowing from the teachings of critical sociology, this Article addresses the lessons learned from NATO’s 1999 intervention in Kosovo and Kosovo’s 2008 Declaration of Independence from Serbia; it adapts those teachings to Russia’s 2014 annexation of Crimea. Doctrinal, state-sponsored, and international juridical attempts to conform the Kosovo events to the international rule of law mask internal and unreconciled tensions within the United Nations Charter system. These tensions, which threaten to further weaken the system and expose it to dangerous manipulations, have upset international law’s delicate balance between respect for territorial integrity and the right of self-determination. These weaknesses also help explain why two of the most significant doctrinal developments to emerge from the mist of Kosovo—the Responsibility to Protect and remedial secession—have retreated from earlier enthusiastic assessments of their prospects in international law. Embedded in the recourse to the sui generis claim is the cautionary belief that its invocation may likely mask extra-legal intentions as support for international law’s progressive development.
Friday, June 10, 2016
True-Frost: Weapons of the Weak: The Prosecutor of the ICC's Power to Engage the UN Security Council
Ours is a time of both simmering conflict and critical reflection on prosecutorial discretion. The Rome Statute creates an overlap between the mandate of the UN Security Council and the International Criminal Court (ICC) to address these simmering conflicts. Indeed, thanks to the Rome Statute, prosecutorial discretion is now central to responses to mass atrocity and threats to international peace and security. Yet the UN Security Council has unparalleled power in the international sphere, and the independent ICC Prosecutor has relatively less power to manage the ICC’s Rome Statute-created relationship with the UN Security Council. This relationship matters, however, as it affects global perceptions of the ICC’s legitimacy and effectiveness. Following my recent treatment of the relationship between the UN Security Council and the ICC Prosecutor in The First Global Prosecutor, this Article argues that the current ICC Prosecutor should use her discretion to decline to prosecute future UN Security Council referrals. Two significant but little-noticed recent ICC developments support this argument. The July 2015 Prosecutor’s Strategic Plan for 2016-2018 indicates a shift in the focus of the Office; it will concentrate on those cases it can successfully prosecute rather than attempting to respond quickly and rush into prosecutions. In December 2014, ICC Prosecutor Bensouda proclaimed that she would suspend the ten-year-long investigation and outstanding warrant against Sudan’s President Al-Bashir. President Al-Bashir understandably greeted the news triumphantly, saying that the ICC had “failed” in its mission. The Prosecutor was arguably in fact diplomatically telling the Council that she would no longer do its bidding. Using Professor Yuval Shany’s multi-factorial conceptual framework for the effectiveness of international tribunals, the Article analyzes various positive and negative effects on the ICC of the relationship with the UN Security Council. The Article thus fills a gap in the existing literature about prosecutorial discretion. Few scholars writing about prosecutorial discretion have focused on the question of how the ICC Prosecutor could use her discretion to more effectively manage the critical relationship between the ICC and the Security Council. This Article is particularly important as scholars and practitioners at both the domestic and international levels seek to improve the international and domestic response to lingering international conflicts, and to address the many challenges the ICC presently faces. A preliminary implication of the argument that the ICC Prosecutor should say no to the Council in the case of a referral is that seats of authority in the international sphere are increasingly pluralistic. Increasing fragmentation opens space both for contestation of authority and specialization, and opens the possibility of multiple seats of legitimacy. This may serve as a corrective to the understanding that the UN Charter is the core constitutional document of an international system, and the UN Security Council, with its power to bind Member States, sits at the apex of this system.
- Jonathan Mance, Arbitration: a Law unto itself?
- Klaus Peter Berger, To what extent should arbitrators respect domestic case law? The German experience regarding the Law on Standard Terms
- Hilary Heilbron, Dynamics, discretion, and diversity: a recipe for unpredictability in international arbitration
- Gordon Blanke, Entrusting antitrust issues to arbitration: some personal thoughts and considerations
- Recent Developments
- Csongor István Nagy, Arbitration in standardized consumer contracts: a Hungarian perspective in a European context
- Christophe Guibert de Bruet & Johannes Landbrecht, Cloud computing and US-style discovery: new challenges for European companies
- Bakr A. F. Al-Serhan, The separability of arbitration agreement in the Emirati law
- Giacomo Marchisio, A comparative analysis of consent awards: accepting their reality
- Diego P. Fernández Arroyo & Ezequiel H. Vetulli, The new Argentinian arbitration law: a train in an unknown direction?
The rise of dual citizenship could hardly have been imaginable to a time traveler from a hundred or even fifty years ago. Dual nationality was once considered an offense to nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be an oddity, a condition that, if not quite freakish, was nonetheless vaguely disreputable, a status one could hold but not advertise. Even today, some Americans mistakenly understand dual citizenship to somehow be “illegal”, when in fact it is completely tolerated. Only recently has the status largely shed the opprobrium to which it was once attached.
At Home in Two Countries charts the history of dual citizenship from strong disfavor to general acceptance. The status has touched many; there are few Americans who do not have someone in their past or present who has held the status, if only unknowingly. The history reflects on the course of the state as an institution at the level of the individual. The state was once a jealous institution, justifiably demanding an exclusive relationship with its members. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. This book explains why dual citizenship was once so reviled, why it is a fact of life after globalization, and why it should be embraced today.
It is one of the fundamental and intransgressible principles of international humanitarian law (IHL) that participants in an armed conflict observe the principle of distinction. Parties to the conflict must ‘at all times distinguish between civilians and combatants. Attacks may only be directed against combatants'. Inherent in this principle is the need to define who is considered a combatant – one who is lawfully permitted to take active and direct part in the hostilities. This chapter examines the origins and evolution of combatant status, discusses the current rules regarding who may be considered a combatant under international law and what consequences follow when combatant status is denied. This chapter will also explore whether international law is evolving to include new categories of persons entitled to combatant status.
- John R. Emery, The Possibilities and Pitfalls of Humanitarian Drones
- Roundtable: Human Rights and the Post-2015 Development Agenda
- Malcolm Langford, Lost in Transformation? The Politics of the Sustainable Development Goals
- Sandra Fredman, Jaakko Kuosmanen & Meghan Campbell, Transformative Equality: Making the Sustainable Development Goals Work for Women
- Edward Anderson, Equality as a Global Goal
- Kate Donald & Sally-Anne Way, Accountability for the Sustainable Development Goals: A Lost Opportunity?
- Jacqueline Best, Rethinking Central Bank Accountability in Uncertain Times
- Cristina Lafont, Should We Take the “Human” Out of Human Rights? Human Dignity in a Corporate World
- Democracies and the Power to Revoke Citizenship: Three Views
- Elizabeth F. Cohen, When Democracies Denationalize: The Epistemological Case against Revoking Citizenship
- Ben Herzog, The Democratic Roots of Expatriations
- David Miller, Democracy, Exile, and Revocation
- Patti Tamara Lenard, Patti Tamara Lenard Replies
This book chapter compares the International Monetary and Trade Legal Orders during the inter-war period and the post-cold war period. During the period between the two world wars, the protectionist legacy of the World War I in the form of trade and financial restrictions persisted. National policymakers, several international conferences and the League of Nations failed to prevent the world economy’s monetary disintegration. Multilateral coordination of monetary and exchange rate policy unraveled. This book chapter compares the monetary orders in the interwar period and today, and examines the risk that the current monetary system will suffer a similar fate to multilateral attempts at coordinating macroeconomic policy and crisis resolution triggered by global imbalances as during the interwar period.
Thursday, June 9, 2016
- Mikyoung Kim, Memory and Reconciliation in East Asia
- Kimie Hara, Takeshima/Dokdo Problem in the San Francisco System
- Yoonkyeong Nah, Reconciliation within the Frame of International Law and Feminist Perspectives
- Kim D. Reimann, NGOs and Regional Networks Working Towards Peace and Reconciliation in Northeast Asia
- Ted L. McDorman, Thinking the Unthinkable
- Seokwoo Lee, Experiences in Dealing with Maritime Disputes
- Warwick Gullett, Reconciliation in the Timor Sea
- Enrico Milano, Reconciliation in Europe
- Buhm-Suk Baek, Korean Judicial Decisions
Tackling one of the most confusing and controversial issues in the field of international criminal law — i.e., the genocidal intent element, this monograph seeks to develop an account of genocidal intent from a collectivist perspective. Drawing upon the two-layered structure of the crime of genocide composed of the ‘conduct level’ and ‘context level’, it detects the genocidal intent element at the ‘context level’. The genocidal intent found in this manner belongs to a collective, which significantly departs from the prior individualistic understandings of the notion of genocidal intent. The author argues that the crime of genocide is not a ‘crime of mens rea’. Collective genocidal intent at the ‘context level’ operates in a way that renders the crime of genocide itself a criminal enterprise. The idea of genocide as a criminal enterprise also suggests that genocide is a leadership crime in respect of which only the high-level actors can be labeled as principals (as opposed to accessories). The book criticizes the dominant individualistic approaches to genocidal intent (in particular: the knowledge-based approach) which have thus far governed the relevant jurisprudential and academic analysis. It further demonstrates that the hidden notion of ‘collective genocide’ silently governs the relevant international jurisprudence.
- Andrew Lang, Foreword
- Antonio Segura-Serrano, Reforming the trading and financial systems
- Kern Alexander, Global economic governance and banking regulation: redesigning regulation to promote stakeholder interests
- Rosa M. Lastra, Do we need a world financial organization?
- Emilios Avgouleas & Charles Goodhart, Critical reflections on bank bail-ins
- Mika Viljanen, Staying global and neoliberal or going somewhere else? Banking regulation after the crisis
- Vassilis Paliouras, State of necessity and sovereign insolvency
- Friedl Weiss, The WTO - a suitable case for treatment: is it ‘reformable’?
- Chios Carmody, Interdependence and WTO law
- Gregory Messenger, Reforming the law and institutions of the WTO: the dangers of unexpected consequences
- Valentina Vadi, A history of success? Proportionality in international economic law
- Jenya Grigorova, The international trading regime and the regulation of trade in energy resources. Is reform necessary and is a new energy agreement within the WTO framework the way to go?
- Carolina Palma, Multilevel governance in food security regulation - with the example of Costa Rican rice
- Paolo Davide Farah & Elena Cima, WTO and renewable energy: lessons from the case law
- Catharine Titi, Economic crises, sovereign debt restructurings and the shifting landscape of international investment law
- Coastal and Ocean Management
- Nick Harvey, The Combination-lock Effect Blocking Integrated Coastal Zone Management in Australia: The Role of Governance and Politics
- Antonia Zervaki, The Legalization of Maritime Spatial Planning in the European Union and its Implications for Maritime Governance
- Regional Oceans Governance
- Shane Belbin, Atlantic Coral Conservation: Skeleton of International Protection, but no Muscle
- David Freestone & Faith Bulger, The Sargasso Sea Commission: An Innovative Approach to the Conservation of Areas beyond National Jurisdiction
- Alexandros Kailis, Technological, Economic and Natural Knowledge in Managing Environmental Problems: The Experience of Negotiating the Protocol for the Protection of the Mediterranean against Pollution from Land-based Sources and Activities, 1996
- Evangelos Raftopoulos, Conventional Environmental Governance in the Mediterranean and its Evolving Institutional and Fiduciary Aspects in a Pragmatic Perspective
- Vu Hai Dang, National MPA Laws in the South China Sea: A Comparison and Suggestions for MPA Law Reform in China
- Polar Oceans Governance
- Stephanie Boudreau & Lucia Fanning, Nunavut Fisheries Co-management and the Role of the Nunavut Land Claims Agreement in Fisheries Management and Decision Making
- Claudia Cinelli, Law of the Sea, the European Union Arctic Policy and Corporate Ocean Responsibility
- Stefan Kirchner, Multiple Risks and Limited Law: Compensation for Oil Spills in the Context of Long-term Damages to Arctic Coastal Communities
- Katelyn Morton, The Arctic Ocean: Can the Arctic Council be a Competent International Organization?
- Kristoffer Svendsen, Compensation for Harm to the Marine Natural Environment Caused by Petroleum Spills in the Barents Sea: An Analysis of Norwegian and Russian Law
- Yoshifumi Tanaka, Four Models on Interaction between Global and Regional Legal Frameworks on Environmental Protection against Marine Pollution: The Case of the Marine Arctic
- Renewable Energy
- Nicolas Boillet & Gaëlle Guéguen-Hallouët, A Comparative Approach of Offshore Renewable Energy Legal Frameworks between France and the United Kingdom
- Catherine Boulatoff & Carol Marie Boyer, Performance of Offshore Renewable Energy (ORE) Firms: An International Perspective
- Aldo Chircop & Peter L’Esperance, Functional Interactions and Maritime Regulation: The Mutual Accommodation of Offshore Wind Farms and International Navigation and Shipping
- Annie Cudennec, The European Legal Framework for Marine Renewable Energies
- Maritime Transport
- Peter L’Esperance, In the Wake of the Erika: Flag State Responsibility for the International Obligations under the Law of the Sea
- Joan Mileski, Cassia Bömer Galvão & Wyndylyn Von Zharen, Port Sophistication and Country Economic Status: Seaports as Indicators of Economic Development
- Kana Mutombo & Aykut Ölçer, A Three-Tier Framework for Port Infrastructure Adaptation to Climate Change: Balancing Breadth and Depth of Knowledge
- Zou Keyuan, Implementation of the United Nations Law of the Sea Convention in China
- Chie Kojima, Implementation of the United Nation’s Law of the Sea Convention in Japan
- Young Kil Park & Seokwoo Lee, Implementation of the United Nations Law of the Sea Convention in Korea
- Mary George, Implementation of the United Nations Law of the Sea Convention in Malaysia
- Zhen Sun, Implementation of the United Nations Law of the Sea Convention in Singapore
- Nguyen Thai Giang, Implementation of the United Nations Law of the Sea Convention in Vietnam
- Warwick Gullett, Implementation of the United Nations Law of the Sea Convention in Australia
- Jeffrey J. Smith, Implementation of the United Nations Law of the Sea Convention in Canada
- Anastasia Telesetsky, Implementation of the Law of the Sea in the United States: Can the US become Exceptional in Affirming the United Nations Law of the Sea Convention?
Wednesday, June 8, 2016
Hoffmann: An Eternal Promise? – Three Sketches on the Universality of International Humanitarian Law
Since time immemorial, humankind has sought to create a regulatory framework that could mitigate the destruction of war. Many international lawyers emphasize that the very character of the law of armed conflict (LOAC) has undergone a profound transformation as signalled by the increasingly prevalent use of the expression “international humanitarian law” (IHL), a term that in itself implies universality and equal application to tame the horrors of armed conflict. Such “humanized” humanitarian law seems to be the pinnacle of progress, the fulfilment of the ancient dream of humanity. Still, this pristine image is marred by a history of racism, exclusion and lethal inclusion. In this chapter I would like to reflect on these blemishes and examine whether international humanitarian law can move beyond its past and present to finally truly deserve such lofty label.
- Alex G. Oude Elferink, Arguing International Law in the South China Sea Disputes: The Haiyang Shiyou 981 and USS Lassen Incidents and the Philippines v. China Arbitration
- Mary George, Johan Shamsuddin Hj Sabaruddin & Ving Ching Chong, Marine Spatial Planning: What Does It Have to Offer Malaysia?
- Ilja Van Hespen, Developing the Concept of Maritime Piracy: A Comparative Legal Analysis of International Law and Domestic Criminal Legislation
- V.V. Gavrilov, The LOSC and the Delimitation of the Continental Shelf in the Arctic Ocean
- Chris Whomersley, Regional Cooperation in the North Sea under Part IX of the Law of the Sea Convention
- Daniela Diz, The Sargasso Sea
- Richard Happ & Sebastian Wuschka, Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories
- Patrick Dumberry, The Role and Relevance of Awards in the Formation, Identification and Evolution of Customary Rules in International Investment Law
- Justin P. Lee, Lessons from Cuba: Case Commentary on Exemption from Damages and the Right to Interest under the CISG
- James Menz & Anya George, How Much Assistance Is Permissible? A Note on the Swiss Supreme Court’s Decision on Arbitral Secretaries and Consultants
- Jayant Raghu Ram, Pitching outside the DSU: Preliminary Rulings in WTO Dispute Settlement
- Laura Puccio & Aksel Erbahar, Circumvention of Anti-dumping: A Law and Economics Analysis of Proportionality in EU Rules
- Heng Wang, The Challenges of China’s Recent FTA: An Anatomy of the China-Korea FTA
- Guy Harpaz & Gadi Heimann, Sixty Years of EU-Israeli Trade Relations: The Expectations-Delivery Gap
- Yong-Shik Lee, The Eagle Meets the Dragon—Two Superpowers, Two Mega RTAs, and So Many in Between: Reflections on TPP and RCEP
- Vicki Waye, Regulatory Coherence and Pathways towards Global Wine Regulation
- Laura Páez, A Continental Free Trade Area: Imperatives for Realizing a Pan-African Market
- Special Focus Issue: The Intersection Between Investment Arbitration and Public International Law
- Laurence Boisson de Chazournes & Campbell McLachlan, Preface: The Intersection of Investment Arbitration and Public International Law
- Campbell McLachlan, Is There an Evolving Customary International Law on Investment?
- Tomoko Ishikawa, Provisional Application of Treaties at the Crossroads between International and Domestic Law
- Nick Gallus, Article 28 of the Vienna Convention on the Law of Treaties and Investment Treaty Decisions
- Christian J. Tams, State Succession to Investment Treaties: Mapping the Issues
- Alexander Orakhelashvili, Article 30 of the 1969 Vienna Convention on the Law of Treaties: Application of the Successive Treaties Relating to the Same Subject-Matter
- Hervé Ascensio, Article 31 of the Vienna Conventions on the Law of Treaties and International Investment Law
- Makane Moïse Mbengue, Rules of Interpretation (Article 32 of the Vienna Convention on the Law of Treaties)
- Tania Voon & Andrew D. Mitchell, Denunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Law
- Kate Parlett, Claims under Customary International Law in ICSID Arbitration
- Simon Olleson, Attribution in Investment Treaty Arbitration
- Martins Paparinskis, Circumstances Precluding Wrongfulness in International Investment Law
Negishi: The Pro Homine Principle's Role in Regulating the Relationship between Conventionality Control and Constitutionality Control
This paper conducts a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts. First, the analysis negates the monist pyramid model by pointing out the limits of the supremacy of international law and constitution. Given the integration of conventionality control into constitutionality control in practice, this study instead presents the normative framework of the trapezium model, crowning the common values recognized by both national constitutions and international law. This research also contributes to clarifying the pro homine principle, a fitting concept to the trapezium schema, focusing on the most favorable treatment for individuals. Specifically, it proves the principle’s double function to offensively pierce or defensively safeguard the boundary between international and domestic legal orders. Finally, it argues that in cases of conflicting rights between different individuals, the pro homine principle relativizes an absolute protection of certain rights to strike balance between them. In essence, conventionality control and constitutionality control should be coordinated by the open-minded, substance-oriented, pro homine principle within the pluralist trapezium, in lieu of the principle of the closed, formal supremacy of international law or constitution within the monist pyramid.
Tuesday, June 7, 2016
Gas: we breathe it, we burn it, we weaponise it, we control it. Whether banned, regulated or free-flowing, gas is our immediate environment, connecting us, keeping us warm, keeping us cool, creeping through the cracks. Explosive or sedative, it facilitates killing and curing alike. Gas leaks, escapes, and traverses boundaries, including legal boundaries. Certain gases are subject to international law, but even the most regulated gases may escape, or be unleashed.
The London Review of International Law invites submissions on the subject of gas. These may touch on specific regimes regulating particular gases or groups of gases, they might look at historical processes centring on the control or release of (manufactured or natural) gases, or they might focus on the background role gas has played behind international legal processes, whether in relation to energy, climate, war, or simply the conditions of lawmaking, law enforcement, or legal speculation.
Guidelines for submissions can be found under ‘Instructions to Authors’. In addition to articles, proposals for review essays and photographic (or other image-based) essays will be very welcome. Abstracts of no more than 500 words should be sent to Aaron Wu (firstname.lastname@example.org) not later than 15 June 2016. Respondents will be notified of the outcome of their proposal not later than 1 July 2016.
In recent years regional human rights courts have been increasingly viewed, and sought to act, not only as dispensers of individual justice but also as engines of wholesale societal transformation in young democracies. Yet, while various scholars appear to present these courts as key actors in successful democratisation processes and the pursuit of social justice, the true reality appears less positive. In particular, a recent article by Alexandra Huneeus raises serious concerns regarding the legitimacy and effectiveness of regional human rights courts’ ambitious attempts to effect ‘structural reform’ at the State level. This paper builds on Huneeus’ critique by interrogating the claims made for regional human rights courts as agents of democratisation and social justice, and by locating these claims and her critique within a wider conceptual, historical, institutional and comparative context. In doing so, the paper argues that the expansion of these courts’ ambitions forms just part of a century-long constitutional story that has pushed law’s transformational ambitions to its limits, and that this increase in ambition appears to raise acute dangers for regional human rights courts when viewed against wider trends.
Domestic lawmakers have at their disposal a repertory of techniques for reversing textual drifts that occur as a result of applications. It is more challenging for treaty parties. The paper reviews three methods for reversing textual drift and also examines the recent CETA dispute resolution procedure in these terms.
- Theo Van Boven, 50 Years of the UN Human Rights Covenants
- François Crépeau & Idil Atak, Global Migration Governance: Avoiding Commitments on Human Rights, Yet Tracing a Course for Cooperation
- Atabongawung Tamo, New Thinking on Transnational Corporations and Human Rights: Towards a Multi-Stakeholder Approach
- Jukka Viljanen & Heta-Elena Heiskanen, The European Court of Human Rights: A Guardian of Minimum Standards in the Context of Immigration
Paddeu: Self-Defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles on State Responsibility
This study considers self-defence in its function as a circumstance precluding wrongfulness, as codified in Article 21 of the ILC’s Articles on State Responsibility. The study examines the development of this provision in the work of the ILC and considers relevant practice by States and international tribunals in relation to the defence. The study explains that self-defence has two functions in international law. The right of self-defence, codified in Article 51 of the UN Charter and recognised in customary international law, is an exception to the prohibition of force. In the ILC terminology, the right of self-defence is a primary rule. The circumstance precluding wrongfulness of self-defence, contained in Article 21 ARS, serves to preclude the wrongfulness of potential breaches of obligations (other than the prohibition of force) binding the States involved in an armed conflict, so long as the breach of those obligations is a collateral effect of self-defensive forcible measures adopted in conformity with the requirements of the right of self-defence under international law. In the ILC terminology, this is self-defence in its function as a secondary rule.
Whomersley: The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China—A Critique
The Tribunal in the case brought by the Philippines against China in relation to the South China Sea has recently given its decision on whether it has jurisdiction to entertain the claims. Although it only found unequivocally that it has jurisdiction over three of the fifteen claims, this paper explains why in a number of respects the argumentation used by the Tribunal is weak. In particular it questions whether the Tribunal was right to proceed when issues of maritime delimitation and disputes over territorial sovereignty are outside its jurisdiction. The paper also criticizes the manner in which the Tribunal reached the conclusion that there was no undertaking to solve any disputes in the South China Sea through other means.
Monday, June 6, 2016
While extractive industries (mining, oil and gas) contribute significantly to the economy in many countries of the global South, their activities often have a considerable negative effect on the human rights of the local population and on domestic and international peace and stability. The conference “Human Rights in Extractive Industries: Conflicts and Regulatory Responses” provides an overview of the potentialhuman rights violations arising in the context of theextractive industries and assesses different regulatory responses ranging from host and home country measures to international law and from binding rules to voluntary guidelines. The conference is organised along three main themes: It begins with analyses of the main human rights challenges by looking at the rights of the local population and the impact of extractive industries on local and international conflicts. It then moves to a first set of regulatory responses at the home and host state level. Subsequently, international law developments and soft law instruments are discussed. The last part of the conference looks at a set of case studies which illustrate the challenges and responses discussed previously.
As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends a particular role for the Supreme Court in the area of foreign relations law, which is to act as a filter between international law and the American constitutional system. In such a role, the Court does not act as an impermeable barrier to international law but rather ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with the structure and values of the constitutional system. This filtering role is appropriate, the essay contends, because international law is generated through processes that often make it ill-suited for direct application in the U.S. legal system, and because international law is frequently designed to perform functions different from the ones demanded of domestic law. Using a number of the cases discussed in Justice Breyer’s book, the essay provides examples of the Supreme Court’s filtering role in four scenarios: First, the intersection of treaties and individual constitutional rights; second, the relationship between the treaty power and American federalism; third, delegations of authority to international institutions; and fourth, the domestic application of customary international law.
In theory, certain forms of remote warfare are ideal for compliance with the principle of distinction. Technologically advanced weaponry, such as unmanned aerial vehicles (also known as UAVs, or drones), are able to conduct precision attacks, eliminating targets with a degree of exactness and surety unmatched by previous technologies such as missiles or bombs. In the realm of cyber-hostilities, precisely engineered software or computer code can target and disable very specific objectives, ensuring that only specific objectives are affected by the attack, leaving other systems untouched. Equally, however, the remoteness of such warfare can make distinction assessments and distinction-compliant targeting a harder task. This chapter therefore examines certain questions that arise regarding the principle of distinction and remote warfare. What impact does the remoteness of these means and methods of warfare have on the principle of distinction? Does the fundamental ‘remoteness’ of these kinds of attacks – drone attacks and cyber-attacks – mean that compliance with the principle of distinction is made easier or harder? That is to say, does the physical removal of the attacker from the immediate or proximate vicinity of the target make respecting the principle of distinction more or less achievable? And if compliance with the principle of distinction is facilitated by these remote means and methods of war, how much of that is due to the ‘remoteness’ of the weapons? Is the remoteness of the drone pilot or the cyber-attacker fundamentally linked to distinction-compliant warfare?
Paddeu: Use of Force Against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence
The right of self-defence against non-State actors is increasingly invoked and accepted in the practice of States. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host State, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, States invoking self-defence against non-State actors rely on the involvement of the host State with those actors to justify the use of force in that State’s territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host State’s due diligence obligation to protect the rights of other States in its territory. All of these solutions are deficient in some way, and have failed to receive generalized endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non- State actors.
European Society of International Law Research Forum
30 - 31 March 2017
Granada University Law School, Spain
Call for Papers
The Neutrality of International Law: Myth or Reality?
The 2017 ESIL Research Forum will take place on 30-31 March at the Granada University Law School.
The ESIL Research Forum is a scholarly conference that promotes engagement with research in progress by members of the Society. It has a small and intensive format. The Forum targets in particular scholars at an early stage of their careers, especially advanced PhD students and post-doctoral researchers. Approximately 15 - 20 papers will be selected from among the submissions and, during the Forum, paper presenters will receive comments on their papers from members of the ESIL Board and invited experts.
The 2017 Research Forum addresses the contested neutrality of international law. It has often been said that international law should be neutral as regards the political, economic and social systems of States. However, this ideal of neutrality can be critiqued on both normative and empirical grounds. Every legal order is based on a power structure and certain fundamental principles. Is it still possible to speak of the neutrality of international law given the growing body of principles that are said to reflect the values of the international community? And are international legal instruments designed to influence the political, economic and social order of States compatible with such neutrality?
This Forum seeks to bring together scholarly work that addresses whether international law is, or should be, neutral towards the internal political, economic and social options available to States or whether it moulds internal systems in a defined direction.
The 2017 ESIL Research Forum calls for papers addressing the theme of the neutrality of international law, including the following set of issues:
- International human rights law as a limit on States’ political choices.
- Multilateral financial assistance and economic sovereignty.
- The extent to which, if any, models of global governance include neutrality.
- Practices to promote democracy and a right to democracy under international law.
- Political, social and environmental conditionality under international economic law.
- (Non-) recognition of governments, insurgents and belligerents.
- The contents and boundaries of the principle of self-determination under present international law.
- Is the regulation of international markets eroding the European social model?
- UN practices to promote the rule of law.
- The current meaning and role of the prohibition of non-intervention.
- How does international law accommodate religious pluralism?
Papers that address any dimensions of the call, including through interdisciplinary research and methods, and through historical, theoretical or empirical approaches, will be given serious consideration. We welcome papers that propose to redefine or re-imagine our understanding of the terms of the call and their meaning in the current context.
Abstracts (of not more than 750 words) should be submitted to ESILRF_UGR2017@UGR.ES by 30 September 2016. Please include your name, email address and a one-page curriculum vitae with your abstract.
Successful applicants will be notified by email by 15 November 2016. Complete drafts of papers will be required by 15 February 2017. Papers may in due course be published in the ESIL SSRN Conference Paper Series.
Successful applicants will be expected to bear the costs of their own travel and accommodation. However, ESIL travel grants will be available to offer partial financial support to participants.
Selected speakers will be informed of several hotels that offer preferential rates to Research Forum participants. Lunch on both days will be provided, and a dinner for presenters, commentators and ESIL Board members will be hosted on the evening of 30 March.
Sunday, June 5, 2016
- Alexander K.A. Greenawalt, Foreign Assistance Complicity
- Érica Gorga, Is U.S. Law Enforcement Stronger than that of a Developing Country? The Case of Securities Fraud by Brazilian Corporations and Lessons for the Private and Public Enforcement Debate
- Matiangai V.S. Sirleaf, Regionalism, Regime Complexes, and the Crisis in International Criminal Justice