Sunday, August 20, 2017

Buzard, Graham, & Horne: Unrecognized States: A Theory of Self-Determination and Foreign Influence

Kristy Buzard (Syracuse Univ. - Economics), Benjamin A.T. Graham (Univ. of Southern California - International Relations), & Ben Horne (Univ. of California, San Diego - Economics) have published Unrecognized States: A Theory of Self-Determination and Foreign Influence (Journal of Law, Economics, and Organization, Vol. 33, no. 3, pp. 578–611, August 2017). Here's the abstract:
Unrecognized states are characterized by stagnant or crumbling economies and political instability, often serve as havens for illicit trade, and challenge the territorial sovereignty of recognized states. Their persistence is both intellectually puzzling and normatively problematic, but unrecognized statehood can be a remarkably stable outcome, persisting for decades. Our dynamic four-player model reveals that unrecognized statehood emerges as an equilibrium outcome when a patron state is willing and able to persistently invest resources to sustain it. We assess options available to actors in the international community who seek to impose their preferred outcomes in these disputes and find that, although sanctions are the most frequently employed, they can often lead to renewed conflict instead of the intended resolution.

Saturday, August 19, 2017

Alschner, Seiermann, & Skougarevskiy: Text-as-Data Analysis of Preferential Trade Agreements: Mapping the PTA Landscape

Wolfgang Alschner (Univ. of Ottawa - Law), Julia Seiermann (Graduate Institute of International and Development Studies), & Dmitriy Skougarevskiy (Graduate Institute of International and Development Studies) have posted Text-as-Data Analysis of Preferential Trade Agreements: Mapping the PTA Landscape. Here's the abstract:
Preferential trade agreements (PTAs) form an intricate web that connects countries across the globe. In this article, we introduce a PTA text corpus and research tools for its fine-grained, automated analysis. Recent computational advances allow for efficient and effective content analysis by treating text as data. We digitize PTA texts and use textual similarity tools to assess PTA design patterns on the global, national, and chapter level. Our descriptive analysis reveals, inter alia, that PTAs are more heterogeneous as a group than, for instance, bilateral investment agreements, but that they converge in regional or inter-regional clusters of similarly worded agreements. Following our descriptive account, we provide three concrete, interdisciplinary examples of how text-as-data analysis can advance the study of trade economics, politics, and law. In trade economics, similarity measures can provide more detailed representations of PTA design differences. These allow researchers to capture more meaningful variation when studying the economic impact of PTAs. In trade politics, scholars can use treaty similarity to trace design diffusion more accurately and test competing explanations for treaty design choices. Finally, in trade law, similarity measures offer new insights into the processes of normative convergence between legal regimes such as trade and investment law.

New Issue: Journal of International Peacekeeping

The latest issue of the Journal of International Peacekeeping (Vol. 20, nos. 3-4, 2016) is out. Contents include:
  • Benjamin Heng, Rain Liivoja, Daniel Ng & Bruce ‘Ossie’ Oswald, Military Justice in a Comparative and International Perspective: A View from the Asia Pacific
  • Bruce ‘Ossie’ Oswald, Sexual Exploitation and Abuse in UN Peace Operations: Challenges and Developments
  • Carlos Augusto de Sousa, Brazilian Federal Military Justice’s Jurisdiction to Prosecute Civilians
  • Joshua Matthew Goh, The Development of Singapore’s Military Justice System
  • Jeffrey Kahn, ‘Unlawful Influence’ and the al-Nashiri Military Commission at Guantánamo Bay
  • Tennille Marsh, Civilian Sentencing Principles in Summary Military Discipline Proceedings
  • Ursula Smith & Daniel J. Lecce, Litigating National Security Cases under The United States Uniform Code of Military Justice
  • Gus Waschefort, Implications of Children’s Rights for Military Justice in the Context of Members of the Armed Forces Younger than the Age of Eighteen

Friday, August 18, 2017

Conference: Peace Through Law: The Versailles Peace Treaty and Dispute Settlement after WWI

On December 6-8, 2017, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law will hold a conference on "Peace Through Law: The Versailles Peace Treaty and Dispute Settlement after WWI." The program is here. Here's the idea:
The conference “Peace Through Law: The Versailles Peace Treaty and dispute settlement after WWI” is designed to investigate both the notion of “peace through law” and the new international framework set up by the Treaty in the aftermath of the Great War. Held a century later, the conference will also offer a unique moment of reflection on the state of the dispute settlement system.

Steger: The Founding of the Appellate Body

Debra P. Steger (Univ. of Ottawa - Law) has posted The Founding of the Appellate Body. Here's the abstract:
The WTO Appellate Body has established itself as a leading international tribunal in the world today. However, Uruguay Round negotiators did not intend to create a court. There is no statute creating the Appellate Body, but only a sparse article in the Understanding on Rules and Procedures Governing the Settlement of Disputes. It is remarkable how international respect for the Appellate Body as a judicial body grew very quickly in its first few years. The founding Appellate Body members were critically aware that they had to establish the reputation of this new judicial body, it had to be earned by the quality of their decisions, their actions, their comportment, and the fairness of their procedures. This is the story, written by the first Director of the Appellate Body Secretariat, of the steps they and their Secretariat took, in the early years, to establish an international judicial body that would earn the trust and respect of WTO Members and the public globally. Independence and impartiality are the sine qua non for credibility, coherency, accountability and legitimacy of any judicial body. In order to protect the independence and impartiality of the Appellate Body in the future, reforms to the terms of appointment of Appellate Body members must be considered.

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 77, no. 2, 2017) is out. Contents include:
  • Thomas Buergenthal, Human Rights: From San Francisco to The Hague
  • “Effectiveness and Legitimacy of International Law” Symposium in Honour of Christian Tomuschat
    • Armin von Bogdandy, Anne Peters, & Karl-Peter Sommermann, Symposium in Honour of Christian Tomuschat
    • Christian Tomuschat, Effectiveness and Legitimacy in International Law
    • Karl-Peter Sommermann, Transformative Effects of the Aarhus Convention in Europe
    • Malgosia Fitzmaurice, Legitimacy of International Environmental Law. The Sovereign States Overwhelmed by Obligations: Responsibility to React to Problems Beyond National Jurisdiction?
    • Carsten Stahn, Daedalus or Icarus? Footprints of International Criminal Justice Over a Quarter of a Century
  • Abhandlungen
    • Andreas Buser, Colonial Injustices and the Law of State Responsibility: The CARICOM Claim to Compensate Slavery and (Native) Genocide
    • Alessandro Bufalini, On the Power of a State to Waive Reparation Claims Arising from War Crimes and Crimes against Humanity
  • Stellungnahmen und Berichte
    • Matthias Hartwig, Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahr 2012

Call for Authors: Smit & Herzog on the Law of the European Union

The editors of Smit & Herzog on the Law of the European Union have issued a call for authors. Here's the call:

CALL FOR AUTHORS

Smit & Herzog on the Law of the European Union

Herzog, Campbell & Zagel eds

This four-volume loose-leaf founded by Prof Hans Smit and Prof Peter Herzog more than 30 years ago was the first English-language and remains the most comprehensive article-by-article commentary of the treaties through which the European Union is established and operates.

The editors seek to refresh Smit & Herzog’s stable of authors on the occasion of the recent or impending retirement of several of the highly regarded academics and practitioners who have contributed to Smit & Herzog for many years. For the relevant (groups of) articles, see here.

We invite expressions of interest from holders of doctoral (or higher) degrees in European Union law (with teaching and research or practice experience).

The parameters for engagement would be (i) to prepare, over the next 12-18 months, updates or rewrites of existing commentary or in some cases submit new manuscripts on articles as yet without commentary and (ii) to commit to update said commentary (at least once) in the ensuing 3-5 years. The publication issues update releases every six months.

A very general template is to be followed in preparing the commentaries, but this still allows ample scope for each author to analyse the provisions according to her or his own expert approach.

For additional information, please contact christian.campbell@cils.org referencing “Smit & Herzog” in the subject line.

Workshop: Transformative Constitutionalism in Latin America and International Economic Law

On August 28-29, 2017, the Fundação Getulio Vargas and the Max Planck Institute for Comparative Public Law and International Law will hold a workshop on "Transformative Constitutionalism in Latin America and International Economic Law: Avoiding Conflict and Fostering Dialogue," in Rio de Janeiro. The program is here.

New Volume: Chinese (Taiwan) Yearbook of International Law and Affairs

The latest volume of the Chinese (Taiwan) Yearbook of International Law and Affairs (Vol. 33, 2015) is out. Contents include:
  • Essay
    • Jerome A. Cohen, Establish Yourself at Thirty: My Decision to Study China’s Legal System
  • Articles
    • Mizushima Tomonori, Law-Making Process concerning State Jurisdiction over Artworks Loaned from Abroad: Implications of the Exhibition of Treasured Masterpieces from Taipei
    • Yann-huei Song, U.S. Practice Regarding Article 121(3) of UNCLOS and the South China Sea Arbitration Case
    • Michael Sheng-ti Gau, The 2015 Award on Jurisdiction and Admissibility of the South China Sea Arbitration and the Insurmountable Thresholds
    • Yuka Fukunaga, Infrastructure Investment in Asia and Protection under International Investment Agreements
    • Michelle Dy, Coordinating Games: The Challenge of Pursuing a Financial Integration Project in ASEAN
  • Special Reports
    • Nigel N.T. Li, Amicus Curiae Submission by the Chinese (Taiwan) Society of International Law in the South China Sea Arbitration: An Introductory Note
    • Der-Chin Horng, Taiwan Practices in the WTO Main Activities: 2002-2015
    • Pasha L. Hsieh & Pei-Lun Tsai, The 2015 Ma-Xi Meeting in Singapore

Thursday, August 17, 2017

Farah: Trade and Progress: The Case of China

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

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

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

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

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

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

Gray & Potter: Diplomacy and the Settlement of International Disputes

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

New Issue: Journal of Conflict Resolution

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

Conference: 2017 ASIL Midyear Meeting

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

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

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

Inaugural Volume: Asian Yearbook of Human Rights and Humanitarian Law

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

Wednesday, August 16, 2017

New Issue: Die Friedens-Warte

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

New Issue: International Peacekeeping

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

New Issue: International Security

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

Deeks: A (Qualified) Defense of Secret Agreements

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

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

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

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

Tuesday, August 15, 2017

Fortin: The Accountability of Armed Groups under Human Rights Law

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

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

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

Monday, August 14, 2017

New Volume: Recueil des Cours

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

Sunday, August 13, 2017

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

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

Saturday, August 12, 2017

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

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

New Issue: International Review of the Red Cross

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

New Issue: Review of International Studies

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

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

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

Friday, August 11, 2017

Call for Submissions: Business, Human Rights and Security

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

Alter: The Future of International Law

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

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

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

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

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

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

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

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

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

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

Nouwen: The International Criminal Court

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

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

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

Thursday, August 10, 2017

New Issue: European Journal of International Security

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

New Issue: Global Constitutionalism

The latest issue of Global Constitutionalism (Vol. 6, no. 2, July 2017) is out. Contents include:
  • Special Issue: Independence in a World of Intersecting Legal and Political Regimes
    • K.M. Fierke, Introduction: Independence, global entanglement and the co-production of sovereignty
    • Silvia Suteu, The Scottish independence referendum and the participatory turn in UK constitution-making: The move towards a constitutional convention
    • Luis Moreno, Europeanisation and Catalonia’s in(ter)dependence
    • Alexander Orakhelashvili, Kosovo and intersecting legal regimes: An interdisciplinary analysis
    • Pablo Rueda-Saiz, Indigenous autonomy in Colombia: State-building processes and multiculturalism
    • Hung-Jen Wang, Traditional empire–modern state hybridity: Chinese tianxia and Westphalian anarchy
    • Noé Cornago, Beyond self-determination: norms contestation, constituent diplomacies and the co-production of sovereignty

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 18, no. 4, 2017) is out. Contents include:
  • N. Jansen Calamita, The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime
  • Thomas Cottier, Roberto Echandi, Rachel Liechti-McKee, Tetyana Payosova & Charlotte Sieber, The Principle of Proportionality in International Law: Foundations and Variations
  • Gonzalo Villalta Puig & Sabrina Leung Tsam Tai, China (Shanghai) Pilot Free Trade Zone Investor-State Dispute Settlement: An Uncertain Experiment
  • Ori Pomson, The Clean Hands Doctrine in the Yukos Awards: A Response to Patrick Dumberry
  • Jan Ole Voss & Barbara von Gayling-Westphal, A Swiss Perspective on Contract Claims vs. Treaty Claims
  • Joshua Paine, Failure to Take Reasonable Environmental Measures as a Breach of Investment Treaty?

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law. They were given by Olivier Corten on “La légitime défense préventive : un oxymore?” and by Vaios Koutroulis on “The Beginning and End of Occupation” and “Le début et la fin de l'application du droit de l'occupation.”

New Issue: Business and Human Rights Journal

The latest issue of the Business and Human Rights Journal (Vol. 2, no. 2, July 2017) is out. Contents include:
  • Articles
    • Robert McCorquodale, Lise Smit, Stuart Neely, & Robin Brooks, Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises
    • Björn Fasterling, Human Rights Due Diligence as Risk Management: Social Risk Versus Human Rights Risk
    • Louise J Obara, ‘What Does This Mean?’: How UK Companies Make Sense of Human Rights
    • Tomaso Ferrando, Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and ‘Legal Chokeholds’
    • Nien-hê Hsieh, Business Responsibilities for Human Rights: A Commentary on Arnold
    • Denis G. Arnold, On the Division of Moral Labour for Human Rights Between States and Corporations: A Reply to Hsieh
  • Developments in the Field
    • Sandra Cossart, Jérôme Chaplier, & Tiphaine Beau de Lomenie, The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All
    • Mahdev Mohan, A Domestic Solution for Transboundary Harm: Singapore’s Haze Pollution Law
    • Samentha Goethals, Joe Bardwell, Mariam Bhacker, & Bahaa Ezzelarab, Business Human Rights Responsibility for Refugees and Migrant Workers: Turning Policies into Practice in the Middle East
    • Stéphane Brabant & Elsa Savourey, From Global Toolbox to Local Implementation: The IBA Practical Guide on Business and Human Rights for Business Lawyers
    • Stefanie Lemke, The UN Guiding Principles and the Legal Profession: Quo Vadis?
    • Joanne Bauer, Equipping Professionals for the Next Challenges: The Design and Results of a Multidisciplinary Business and Human Rights Clinic
    • Carlos Lopez, Struggling to Take Off?: The Second Session of Intergovernmental Negotiations on a Treaty on Business and Human Rights
    • Irit Tamir & Sarah Zoen, Human Rights Impact Assessments in a Brazil Land Conflict: Towards a Hybrid Approach

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 144, no. 3, Juillet-Août-Septembre 2017) is out. Contents include:
  • Doctrine
    • Nathalie Ros, La gouvernance des mers et océans, entre mythes et réalités juridiques
    • Hélène Peroz, Les lois applicables au régime primaire, Incidences du règlement (UE) 2016/1103 sur le droit applicable au régime primaire en droit international privé français
    • Lucie Lorenzini, Gestation pour autrui : entre ordre public et intérêt supérieur de l’enfant. – Analyse de droit comparé (droit français et droit italien) au regard de la position de la CEDH
  • Variétés
    • Mahutodji Jimmy Vital Kodo, Sur un conflit inédit de juridictions entre la Cour commune de justice et d’arbitrage de l’OHADA et la Cour suprême du Congo

Berlin & Dancy: The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

Mark S. Berlin (Marquette Univ.) & Geoff Dancy (Tulane Univ.) have posted The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions (Law & Society Review, forthcoming). Here's the abstract:
This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in postauthoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.

New Issue: Global Governance: A Review of Multilateralism and International Institutions

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 23, no. 3, July-September 2017) is out. Contents include:
  • John W. Holmes Memorial Lecture
    • Margaret P. Karns, A Pivotal Moment in Global Governance? Looking Back to Look Forward
  • The Global Forum
    • Ben Majekodunmi, Prevention Crisis: The Need for New Consensus at the United Nations
  • Articles
    • Chung-in Moon & Chae-Kwang You, The ASEAN Regional Forum’s Experts and Eminent Persons Group: Achievements, Limitations, Prospects
    • Lisa MacLeod, China’s Security Council Engagement: The Impact of Normative and Causal Beliefs
    • Oleg Korneev, International Organizations as Global Migration Governors: The World Bank in Central Asia
    • Andrea M. Collins, Goal Setting and Governance: Examining the G8 New Alliance for Food Security and Nutrition with a Gender Lens
    • Ellen Jenny Ravndal, “A Force for Peace”: Expanding the Role of the UN Secretary-General Under Trygve Lie, 1946-1953
    • Carolina Milhorance & Folashade Soule-Kohndou, South-South Cooperation and Change in International Organizations
    • Matthew D. Stephen, Emerging Powers and Emerging Trends in Global Governance
    • Markus Fraundorfer, Brazil’s Organization of the NETmundial Meeting: Moving Forward in Global Internet Governance

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 56, no. 3, June 2017) is out. Contents include:
  • Vasiliauskas v. Lithuania (Eur. Ct. H.R.), with introductory note by Robert Cryer
  • Actions pour la Protection des Droits de l'Homme (APDH) v. Republic of Côte d'Ivoire (Afr. Ct. H.P.R.), with introductory note by Marie Joseph Ayissi
  • Suresh v. Canada (Inter-Am. Comm'n H.R.), with introductory note by Christina M. Cerna
  • United Nations Security Council Resolution 2270, with introductory note by Victoria Sutton
  • United Nations Security Council Resolution 2334, with introductory note by Brian McGarry

Wednesday, August 9, 2017

Bodansky: The Role of the International Court of Justice in Addressing Climate Change

Daniel Bodansky (Arizona State Univ. - Law) has posted The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections (Arizona State Law Journal, forthcoming). Here's the abstract:
What role might international adjudication play in addressing climate change? Thus far, the international climate change regime has developed primarily through negotiations, marked most recently by the adoption of the Paris Agreement and decisions by the Montreal Protocol parties and the International Civil Aviation Organization to address hydrofluorocarbons (HFCs) and aviation emissions respectively, two very rapidly growing sources of greenhouse gas emissions. Despite the Trump Administration's repudiation of the Paris Agreement, it remains our best hope of addressing climate change internationally. But adjudication could also play a constructive role, not as a substitute for the negotiations but as a complement. The essay explores the relationship between adjudication and negotiation, and how an ICJ advisory opinion could work with rather than against the grain of the negotiations.

New Issue: Global Responsibility to Protect

The latest issue of Global Responsibility to Protect (Vol. 9, no. 3, 2017) is out. Contents include:
  • Responsibility to Protect and the International Human Rights Agenda: Tensions and Opportunities
    • Sara E. Davies, Responsibility to Protect and the International Human Rights Agenda: Tensions and Opportunities
    • Kirsten Ainley, From Atrocity Crimes to Human Rights: Expanding the Focus of the Responsibility to Protect
    • Amanda Murdie, R2P, Human Rights, and the Perils of a Bad Human Rights Intervention
    • Brooke Coe, Regional Human Rights Institutions and R2P: The Role of State Monitoring in Atrocity Prevention
    • Veronika Haász, R2P and National Human Rights Institutions

Happold: Who Benefits from Human Rights Treaties?

Matthew Happold (Université du Luxembourg - Law) has posted Who Benefits from Human Rights Treaties? (in Liber Amicorum Rusen Ergeç, Isabelle Riassetto, Luc Heuschling, & Georges Ravarani eds., 2017). Here's the abstract:

This chapter examines how the question of whether legal persons (in particular corporations) enjoy human rights has been answered under a number of human rights treaties. Most human rights treaties have been interpreted as conferring rights upon natural, but not on legal, persons. And most international human rights bodies will only entertain complaints from individuals and not from corporations. But the European Court of Human Rights and the Court of Justice of the European Union have taken a quite different approach from that of other regional and sub-regional courts and the UN Human Rights Committee, viewing corporations as rights-holders under the treaties they administer. They have done so, however, largely on the basis not of any expressed philosophical disagreements but by reference to the relevant treaty texts. Grander arguments have tended to be supportive, even when extensive. This is unsurprising. If such an important distinction is to be made, it should be undertaken by the treaty drafters.

But saying that legal persons can be rights-holders under human rights treaties is only a beginning. Corporations are not individuals, even though they can be analogised as such. Which leads back to the original question: when should they benefit from the same rights as individuals? Two issues arise here. The first concerns what rights corporations should enjoy: the second the extent to which they should enjoy them. In contrast to the initial question, these two issues have been left to the judges alone to determine.

The justification given by the European Court of Human Rights for precluding governmental bodies or entities from bringing claims is to prevent States parties to the Convention from acting both as applicants and respondents, because it is the State itself which is obliged to guarantee respect for fundamental rights within its territory. Drilling down further, one might say that different categories of entity are holders of rights and bearers of obligations under human rights treaties. Increasingly, given the decline of the State and the rise of the corporation, we are told that human rights should serve directly to regulate corporate behaviour. Might not the same consideration lead to a need to reconsider the circumstances in which it is appropriate for corporations themselves to enjoy such rights?

Messenger: The Development of International Law, Perception, and the Problem of Time

Gregory Messenger (Univ. of Liverpool - Law) has posted The Development of International Law, Perception, and the Problem of Time (in International Law and Time: Narratives and Techniques, L. Pasquet, K. Polackova Van der Ploeg, & L. Castellanos Jankiewicz eds., forthcoming). Here's the abstract:
‘International law develops over time’ – an uncontroversial statement. Yet the mechanism of this development is not entirely clear. This paper suggests that the conceptual foundations of both rule-identification and rule-interpretation in international law are problematic, specifically due to ignoring the temporal dimension as we experience it. The argument set out here is as follows: discussions over the development of international law are necessarily related to the concept of change; that the concept of change necessarily contains a temporal element; and the principal tools for rule-identification and rule-interpretation in international law fail to acknowledge this temporal element and thus distort the findings of the aforementioned exercises.

Margariti: Defining International Terrorism: Between State Sovereignty and Cosmopolitanism

Stella Margariti has published Defining International Terrorism: Between State Sovereignty and Cosmopolitanism (Asser Press 2017). Here's the abstract:
This book is an attempt to approach the issue of defining international terrorism, proposing that the most workable way to do so is to achieve due balance between the two principal driving forces of international law developments: State sovereignty interests and cosmopolitan ideals. All those who aspire to the promotion of international criminal justice and the fight against impunity agree that the formulation of a universal definition of international terrorism will further enhance the fight against terrorism and offer a universally acceptable legal framework within which this fight can be conducted. Discussed in an in-depth manner are, for instance, the UN Charter Provisions, the Rome Statute and the principle of complementarity, the Kampala amendments on the crime of aggression, the paradigms of aggression and terrorism, and prominent anti-terrorist Security Council Resolutions such as Resolution 1368 and Resolution 1373. The volume broadens the reader’s understanding on how State sovereignty interests and priorities as well as ideals of cosmopolitanism have influenced the development of international law in general and international criminal law in particular. Furthermore, it simplifies the complicated picture of defining international crimes by expla ining how the ‘State sovereignty’ and ‘Cosmopolitanism’ dynamics have also been of relevance throughout the drafting process of the definition of the crime of aggression for the purposes of the Rome Statute for the International Criminal Court. In addition, it equips the reader with an understanding of the reasons behind the lack of an international definition for terrorism and suggests an appropriate context within which such a definition can take shape.

Stoyanova: Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR

Vladislava Stoyanova (Lund Univ. - Law) has posted Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR (Human Rights Law Review, forthcoming). Here's the abstract:
The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.

Shikhelman: Diversity and Decision-Making in International Judicial Institutions

Vera Shikhelman (Univ. of Chicago - Law) has posted Diversity and Decision-Making in International Judicial Institutions: The United Nations Human Rights Committee as a Case Study (Berkeley Journal of International Law, forthcoming). Here's the abstract:

The lack of diversity in the background of the decision-makers in international judicial and quasi-judicial institutions has been widely criticized in recent years. It has been argued that the background of the decision-makers is too homogeneous and not representative of the international community as a whole. However, there is little empirical evidence on whether the background of the decision-makers actually influences their decision-making processes in the international context. This article uses the United Nations Human Rights Committee as a case study for testing empirically the influence on decisions of geographical origin, gender, domestic legal system and professional background.

The article finds certain voting patterns that are associated with geographical origin, domestic legal systems, professional background and possibly gender. This is especially true in cases where the Committee Members (CMs) want to protect the interests of their states, since the most significant voting pattern was found for CMs from Western states voting in favor of states from their regions in immigration cases. However, it is safe to say that on most issues the article did not find that the background of the CMs had significant influence on their voting patterns. The article also uses the United Nations Human Rights Committee as a case study to demonstrate the importance of diversity to the legitimacy of international institutions, beyond the practical implications of diversity on the decision-making process.

Call for Papers: Conference on Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology

The Laureate Program in International Law has issued a call for papers for a conference on "Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology," to take place May 31-June 1, 2018. Here's the call:

Conference Humanitarianism and the Remaking of International Law: History, Ideology, Practice, Technology

Call for Papers: Deadline 1 September 2017

The language and logic of humanitarianism occupy an increasingly central place in international law. Humanitarian reason has shaped the ideology, practice, and technologies of international law over the past century, including through the redescription of the laws of war as international humanitarian law, the framing of mass displacement and armed conflict as ‘humanitarian’ crises, the use of humanitarian justifications for intervention, occupation, and detention, and the representation of international law as an expression of the conscience of humanity.

For some, this trend is clearly positive – international law is reimagined as humanity’s law, humanity as the alpha and omega of international law. Yet critics have pointed to the dark side of these developments and of the humanitarian logic operating within international law, arguing that consolidation of the laws of war has served the interests of powerful groups and states at key moments of potential challenge to existing systems of rule, humanitarianism has been taken up as a language to rationalise the violence of certain forms of occupation, intervention, and warfare, international humanitarian law has displaced other more constraining forms of law as the world becomes imagined as a global battlefield, humanitarian NGOs have served as a fifth column that has enabled particular forms of social transformation and constrained others, and a supposedly impartial humanitarianism has displaced politics.

This conference will bring together scholars working in law, history, international relations, and political theory to think critically about the ideology, institutions, practices, and technologies that condition modern humanitarianism and its relation to international law. Confirmed speakers include Amanda Alexander, Leila Brännström, Markus Gunneflo, Helen Kinsella, Martti Koskenniemi, Dino Kritsiotis, Frédéric Mégret, Naz Modirzadeh, Gregor Noll, Rose Parfitt, Hani Sayed, Ntina Tzouvala, Boyd van Dijk, and Fabia Veçoso. Selected papers will be published in an edited collection by a leading publisher.

Paper proposals related to the conference theme are now invited. Possible topics for papers include:

  • laws of war and the social question
  • international humanitarian law and revolution
  • decolonisation and the remaking of international humanitarian law
  • humanitarian intervention and occupation in international law and history
  • humanitarian and securitisation responses to dispossession, displacement, and refugees
  • international humanitarian law and the framing of civil war
  • international humanitarian law and national liberation movements
  • incidents and events in the history of international humanitarian law-making
  • humanitarian law and human rights law in the 'global' battle space
  • humanitarian organisations and the politics of intervention
  • the relation of humanitarianism and counter-terrorism in international law
  • knowledge production and international humanitarian law
  • humanitarian law and visual culture 
  • international humanitarian law and practices of distinction
  • the technologies of humanitarian law and war
  • humanitarian law and algorithmic warfare
  • humanitarianism and the penal turn in international law
  • the meanings of humanitarian law across time and space
  • the political economy of international humanitarianism
  • critical geographies of international humanitarian law
  • international law after humanity

Those proposing papers for presentation at the Conference should submit a one page abstract and brief bio by email to Professor Anne Orford at laureate-intlaw@unimelb.edu.au by 1 September 2017.

Tuesday, August 8, 2017

Su: The Rise and Fall of Universal Civil Jurisdiction

Anna Su (Univ. of Toronto - Law) has posted The Rise and Fall of Universal Civil Jurisdiction. Here's the abstract:
The paper asks the question why universal civil jurisdiction declined relative to its criminal counterpart. For a long time, universal jurisdiction is largely understood only in the criminal context and to the extent that its civil version is separately recognized, it is argued that it likewise suffered the same misfortune as the Alien Tort Statute in the wake of the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum in 2013. The aim would be to explain how and why universal civil jurisdiction took the historical trajectory it did and in doing so, confer it an existence separate from universal criminal jurisdiction. In the past two decades, universal aspirations to global justice have become almost synonymous with the pursuit of international criminal accountability. This preoccupation with and the privileging of international criminal law has mistakenly subsumed certain historical events as within the progressive history of ICL and it obscures the distinctive and complementary role that international civil liability can play in addressing human rights violations. It argues that the fall of universal civil jurisdiction is rooted in the reluctance of domestic courts to challenge the position of their national governments in view of the increasing number of complex human rights claims.

New Issue: European Journal of International Relations

The latest issue of the European Journal of International Relations (Vol. 23, no. 3, June 2017) is out. Contents include:
  • Luca Mavelli, Governing the resilience of neoliberalism through biopolitics
  • Vicki Squire, Governing migration through death in Europe and the US: Identification, burial and the crisis of modern humanism
  • Adrian Little & Nick Vaughan-Williams, Stopping boats, saving lives, securing subjects: Humanitarian borders in Europe and Australia
  • Sandy Brian Hager, A global bond: Explaining the safe-haven status of US Treasury securities
  • Lene Hansen, Reading comics for the field of International Relations: Theory, method and the Bosnian War
  • Felix Rösch & Atsuko Watanabe, Approaching the unsynthesizable in international politics: Giving substance to security discourses through basso ostinato?
  • Jason Ralph & Jess Gifkins, The purpose of United Nations Security Council practice: Contesting competence claims in the normative context created by the Responsibility to Protect
  • Tobias Lenz & Alexandr Burilkov, Institutional pioneers in world politics: Regional institution building and the influence of the European Union
  • Laura Considine, The ‘standardization of catastrophe’: Nuclear disarmament, the Humanitarian Initiative and the politics of the unthinkable
  • Jamie M. Johnson, Beyond a politics of recrimination: Scandal, ethics and the rehabilitation of violence

Benvenisti & Shlomo Agon: The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication

Eyal Benvenisti (Univ. of Cambridge - Law) & Sivan Shlomo Agon (Bar-Ilan Univ. - Law) have posted The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication. Here's the abstract:
The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third-states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account, and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps towards globally affected others by (1) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies, and (2) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.

Monday, August 7, 2017

Xu: Beyond US Hegemony in International Development: The Contest for Influence at the World Bank

Jiajun Xu (Peking Univ. - Centre for New Structural Economics) has published Beyond US Hegemony in International Development: The Contest for Influence at the World Bank (Cambridge Univ. Press 2017). Here's the abstract:
China's initiative to establish the Asian Infrastructure Investment Bank (AIIB), attracting membership from G7 countries against the vocal opposition of the United States, has been recognised as a significant moment in an ongoing hegemonic transition. This book examines how power transitions have played out in the World Bank over the last five decades, offering the first authentic account of the international diplomacy behind donor financing of the World Bank's International Development Association (IDA). Jiajun Xu decodes how the United States amplified its influence at the World Bank despite its flagging financial contributions to IDA. She further demonstrates that the widening influence-to-contribution disparity provoked other donors into taking 'exit/voice' measures, contesting the hegemon's legitimacy. A rising China initially decided to become an IDA donor, seeking influence from within. However, the entrenched hegemonic position of the United States in World Bank governance drove China to initiate the AIIB and New Development Bank, putting competitive pressures on the US-centred multilateral institutions to adapt.

Hepburn & Kabra: India's New Model Investment Treaty: Fit for Purpose?

Jarrod Hepburn (Univ. of Melbourne - Law) & Ridhi Kabra (Univ. of Cambridge) have posted India's New Model Investment Treaty: Fit for Purpose? (Indian Law Review, forthcoming). Here's the abstract:
In December 2015, India released a new model bilateral investment treaty. The development of such models typically serves four purposes: facilitating negotiations with partner states; constituting state practice which may contribute to the formation of customary international law; providing interpretive guidance to tribunals; and promoting uniformity in international law. However, despite some innovative provisions, the new Indian model displays a lack of drafting clarity in some respects, and a degree of redundancy in other respects. These deficiencies make it doubtful whether the model can achieve any of its purposes. India appears to remain committed to (a reformed version of) the investment treaty system, not least on behalf of the burgeoning numbers of outward Indian investors. The model’s failings are therefore all the more acute, and pose challenges for India’s ambitions to play a greater role in the system, while also potentially representing a missed opportunity for India’s broader role in the ‘Asian century’.

Special Issue: The Transformation of Targeted Killing and International Order

The latest issue of Contemporary Security Policy (Vol. 38, no. 2, 2017) focuses on "The Transformation of Targeted Killing and International Order." Contents include:
  • Special Issue: The Transformation of Targeted Killing and International Order
    • Martin Senn & Jodok Troy, Introduction
    • Thomas Gregory, Targeted killings: Drones, noncombatant immunity, and the politics of killing
    • Betcy Jose, Not completely the new normal: How Human Rights Watch tried to suppress the targeted killing norm
    • Mathias Großklaus, Friction, not erosion: Assassination norms at the fault line between sovereignty and liberal values
    • Michael Carl Haas & Sophie-Charlotte Fischer, The evolution of targeted killing practices: Autonomous weapons, future conflict, and the international order
    • Ian Hurd, Targeted killing in international relations theory: Recursive politics of technology, law, and practice

New Issue: Human Rights Quarterly

The latest issue of the Human Rights Quarterly (Vol. 39, no. 3, August 2017) is out. Contents include:
  • Paul Hunt, Configuring the UN Human Rights System in the "Era of Implementation": Mainland and Archipelago
  • Isabel Marcus, Compensatory Women's Rights Legal Education in Eastern Europe: The Women's Human Rights Training Institute
  • Christof Heyns & Willem Gravett, "To Save Succeeding Generations from the Scourge of War": Jan Smuts and the Ideological Foundations of the United Nations
  • Ahmed Khanani, Decentering the Human: Moroccan Islamism and Rights
  • Lorenza B. Fontana & Jean Grugel, Deviant and Over-Compliance: The Domestic Politics of Child Labor in Bolivia and Argentina
  • Abby Kendrick, Measuring Compliance: Social Rights and the Maximum Available Resources Dilemma
  • Paloma Soria Montañez, Viviana Waisman, & Keina Yoshida, The Prosecution of Sexual and Gender Crimes in the National Courts of Argentina
  • Catherine Renshaw, Global or Regional?: Realizing Women's Rights in Southeast Asia

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 12, no. 3, September 2017) is out. Contents include:
  • David Bulman, Walter Kolkma & Aart Kraay, Good countries or good projects? Comparing macro and micro correlates of World Bank and Asian Development Bank project performance
  • Catherine Z. Worsnop, Domestic politics and the WHO’s International Health Regulations: Explaining the use of trade and travel barriers during disease outbreaks
  • George E. Mitchell & Sarah S. Stroup, The reputations of NGOs: Peer evaluations of effectiveness
  • A. Burcu Bayram & Erin R. Graham, Financing the United Nations: Explaining variation in how donors provide funding to the UN
  • Jan Beyers & Marcel Hanegraaff, Balancing friends and foes: Explaining advocacy styles at global diplomatic conferences