Call for Papers
Sociological Inquiries into International Law
16 May 2014
The aim of this workshop is to help bring contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology. We are convinced that, particularly within the field of international economic law, a deeper and more informed engagement with a range of sociological and social theoretic modes of thinking is necessary for intellectual renewal. We seek innovative and original contributions from scholars whose work is situated at those disciplinary boundaries, broadly understood.
Contributions are particularly welcome in the following areas:
(1) International law and the sociology of knowledge: what frameworks of knowledge circulate in and around institutions of international economic governance? By what complex set of practices are such frameworks produced, contested, and institutionally embedded? What are the sociotechnical forms in which they are constituted? In what senses is law a ‘knowledge practice’, and what might be the implications of conceiving legal practices in this mode? Work which draws inspiration from the concepts, questions and methodologies of science and technology studies, the sociology of knowledge, and social studies of science may be of particular promise in investigating such questions.
(2) International law and economic sociology: if the classic insight of economic sociology is that markets and law are mutually constituted, how might this insight be deployed, illustrated and developed in the context of contemporary international economic law? In what sense, if any, do contemporary practices in international economic law constitute global markets in the classical Polanyian (or any other) sense? In what sense might the rational economic actor herself be socially constituted in international economic relations, and what role do legal and other institutional infrastructures play in those processes?
(3) Sociologically inspired scholarship in international relations: to what extent is the practice and operation of international legal governance shaped by social and idealist factors (such as culture, norms, and values)? How might traditional sociological concepts such as socialization and collective identity formation be productively redeployed in the context of contemporary legal governance? What might the notion of the ‘collective memory of groups’ bring to our understanding of how global problems are constituted and addressed through law? This burgeoning literature often employs sociological tools, emphasizing the influence of social processes and factors (such as socialization and collective identity) on the development of international legal rules as well as actors' behaviour in the legal sphere.
(4) Anthropologically inspired work examining the microlevel of global economic governance, including documentary practices, microsocial interactions, and spatial/architectural relations. How do these practices and processes problematise the boundaries between public international law, private international law, and transnational law? To what extent and in what ways are professional practices in fields of international economic governance constituted and contested at the microlevel of day to day interaction, through the routine and mundane work of rulership in the ‘background’?
The workshop will take place at the London School of Economics, on 16 May 2014. Abstracts of no more than 300w should be sent to Sungjoon Cho email@example.com, by 1 November 2013, and should include the author's name and full contact information. Decisions regarding inclusion in the workshop program will be sent by 1 January 2014. Those presenting will be expected to provide short discussion papers (3,000-4,000 words) by 25 April 2014.
We regret that we are unable to cover participants’ full travel and accommodation expenses. Limited assistance will be available for young scholars who are unable to secure funding from other sources.
Sungjoon Cho, IIT Chicago-Kent College of Law
Moshe Hirsch, Hebrew University of Jerusalem
Andrew Lang, London School of Economics
Saturday, September 14, 2013
Friday, September 13, 2013
Symposium: The Changing Nature of International Environmental Law: Evolving Approaches of the United States and the European Union
International Environmental Law is not in the same space that it occupied in 1972 when it burst forth on the international agenda with the Stockholm Conference on the Human Environment. For some time we have been witnessing a fundamental shift in the nature of international environmental law (IEL) from both theoretical and practical perspectives. Many reasons might lay behind this shift. For a start, IEL has had to innovate its way around the “sovereignty barrier” – foundational principles and norms of general international law that continue to uphold a state-based system of international politics and law that is often seen as counter-productive to solving global and regional environmental problems. IEL has done this, in part, through science driven norms, non-consensus decision-making, and a focus on promoting compliance rather than labeling action wrongful with a view to invoking state responsibility.
Then too, IEL has experienced “bottom up” influence from developments in national approaches to environmental protection. Increasingly, IEL has adopted of “second generation” national regulatory techniques including the use of markets, flexibility mechanisms, and privatization. In addition, the underlying reality, which IEL is trying to co-ordinate and steer, is changing. The reality of significant environmental impacts associated with global markets and international investment flows appears to call for a more normatively expansive and inclusive approach. The increasing influence of host of non-state actors such as transnational corporations and expert non-governmental organizations raise questions about participation in and the legitimacy of decision-making and compliance processes.
An emerging new approach to IEL ought to enable us to understand the way various types of soft norms and non-state action influence (or not) the behavior states and key actors beyond states. In this context, most pollution and conservation problems need to be addressed outside of the traditional state system, in what is increasingly described as a multi-level governance framework, with various types of actors having an influence how these norms develop and are supervised. Environmental law approaches and methods have become globalized in various ways, not only by states borrowing from other jurisdictions, but also because e.g. multilateral environmental agreements MEA’s harmonize the way environmental governance is done in various jurisdictions. These environmental law principles and approaches not only travel between national jurisdictions but they also migrate between various levels of governance.
At the same time these macro changes have been influencing the nature of IEL, the approaches to and practice of IEL by the United States and European states is also shifting. Due to their environmental footprint, their economic and geopolitical power, and their technological and financial resources, the US and the EU have a critical impact on the world’s environment, as well as a distinctive ability to shape global environmental politics. Meanwhile, and despite common interests, these two elephants are often said to have developed different approaches to IEL. Notwithstanding strong support for early environmental agreements, the US position over the past two decades has been described as one of disengagement and withdrawal, shying away from binding environmental commitments and favouring unilateral and domestic environmental policies. In contrast, Europe is commonly thought to be a consistent supporter of multilateralism and of legally binding environmental agreements. Additionally, the US and the EU have exhibited marked differences in relation to key IEL principles, from precaution to differential treatment.
The aim of the Symposium, then, is twofold. First, it aims to engage in a search for more sophisticated, nuanced and complex approaches to environmental problem solving and underlying theory of IEL based on the changing nature of the field. Following last year’s Rio+ 20 Conference, we are well placed to consider potential paradigm changers, including whether the concept of sustainable development is still the best idea around which to organize legal protection of the global environment; whether alternative concepts/models might be more effective in stopping environmental harm and improving environmental quality; whether the current preoccupation with “implementation” best serves global environmental protection; and whether international law is up to the regulatory challenges posed by continuing world population growth and increasing consumption.
Secondly, the Symposium also seeks to intensify the transatlantic debate about these important questions, as well as to bring experts from various disciplines and backgrounds to discuss cutting-edge research in the field of IEL. As President Obama begins his second term in office, it seems an opportune time to not only consider the changing nature of IEL, but also to revisit and explore anew the nature, the extent, and indeed the reality of this transatlantic divide and its significance for the development of IEL. Do IEL scholars make too much of US/EU divergences? How do these divergences manifest in specific environmental regimes? What role, if any, do academic, scholarly or theoretical traditions play in the perception of the EU/US divide? Has the Obama administration worked to widen or narrow this divide?
The International Court of Justice (in French, the Cour internationale de justice), also commonly known as the World Court or ICJ, is the oldest, most important and most famous judicial arm of the United Nations. Established by the United Nations Charter in 1945 and based in the Peace Palace in the Hague, the primary function of the Court is to adjudicate in disputes brought before it by states, and to provide authoritative, influential advisory opinions on matters referred to it by various international organisations, agencies and the UN General Assembly.
This new work, by a leading academic authority on international law who also appears as an advocate before the Court, examines the Statute of the Court, its procedures, conventions and practices, in a way that will provide invaluable assistance to all international lawyers. The book covers matters such as: the composition of the Court and elections, the office and role of ad hoc judges, the significance of the occasional use of smaller Chambers, jurisdiction, the law applied, preliminary objections, the range of contentious disputes which may be submitted to the Court, the status of advisory opinions, relationship to the Security Council, applications to intervene, the status of judgments and remedies. Referring to a wealth of primary and secondary sources, this work provides international lawyers with a readable, comprehensive and authoritative work of reference which will greatly enhance understanding and knowledge of the ICJ.
The book has been translated and lightly updated from the French original, R Kolb, La Cour international de Justice (Paris, Pedone, 2013), by Alan Perry, Solicitor of the Senior Courts of England and Wales.
In most post-conflict states, a strong level of legal pluralism is the norm, particularly in regions of Africa and Asia where between eighty and ninety per cent of disputes are resolved through non-state legal mechanisms. The international community, in particular the United Nations, persistently drives the re-establishment of the rule of law in war-torn areas where, traditionally, customary law is prevalent. Laura Grenfell traces the international community's evolving understanding of the rule of law in such regions, and explores the implications of strong legal pluralism for the rule-of-law enterprise. Using the comparative examples of two unique case studies, South Africa and Timor-Leste, Promoting the Rule of Law provides insight into the relationship between the rule of law and legal pluralism. Alongside these studies, the book offers a comprehensive introduction to the conceptual framework of the rule of law in the context of approaches taken by the international community.
Preferential trade agreements (PTAs) continue to mushroom. New mega agreements are in the pipeline, such as the US-EU Trade and Investment Agreement (TTIP). This year’s World Trade Forum brings together leading academics who have been studying the phenomenon of preferential trade agreements. Over two days we will discuss the design and the impact of PTAs from the perspectives of political science, economics and international law. What are the effects domestically, why do we see so much variation, and what is the relationship to the multilateral system: these are some of the guiding questions.
Human trafficking has become a critical global issue since the 1990s. At the intersection of human rights, human security, and transnational criminal control, human trafficking is increasingly at the forefront of United States foreign policy. One of the central policy responses to the problem of human trafficking – central both to international law, regional European law, and domestic US law – has been to criminalize it and work to prosecute traffickers. Yet little to nothing is known about the consequences of a prosecutorial approach. We suggest there are at least three theoretical possibilities: (1) criminalization may have no effect on trafficking; (2) criminalization may reduce human trafficking, and/or (3) criminalization may divert human trafficking from one jurisdiction to another, as traffickers seek the path of least resistance toward profiting from the exploitation of potential workers. To test these ideas, we have developed a unique time series dataset that documents trafficking “corridors:” dyads of states between which human trafficking has credibly been observed and reported in the annual United States Trafficking in Persons Reports. We find evidence of a reduction of trafficking within corridors where enforcement has been strengthened, but also diversion of trafficking towards contiguous neighbors of the enforcers. This is important because it suggests the enforcement of criminal law can have transnational negative externalities unless it is approached in a coordinated fashion.
Nollkaemper: Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal
In this article I explore a narrow question that was raised, but not fully addressed, in the Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) case: does a state that has custody over a person who is suspected of the crime of torture, but that is unwilling or unable to prosecute that person itself, have an obligation to extradite that person to a state that seeks extradition, and that is able and willing to prosecute the suspect? The International Court of Justice (ICJ or Court) answered the question in the negative. The Court’s judgment exposes the fundamentally weak legal position of states that may have the strongest links with a suspect, and that may be best capable of prosecuting that person. The emergence of an absolutist obligation to prosecute of the custodial state has annihilated competing claims, whether or not these are based on a stronger link or better enforcement capabilities. Paradoxically, the result may be that a suspect may not be prosecuted at all.
Thursday, September 12, 2013
- Rachel Brewster, Pricing Compliance: When Formal Remedies Displace Reputational Sanctions
- Itamar Mann, Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993-2013
- Molly Land, Toward an International Law of the Internet
- Gregory H. Shill, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States
- Nicholas M. Poulantzas, The status of islands in the international law of the sea: The Megisti Island
- Tarek Majzoub & Fabienne Quilleré-Majzoub, Contribution to the operationalization of the principle of equitable and reasonable utilization of international watercourses through jurimetrics
- Symposium: Markets for Ecosystem Services
- Thoko Kaime, Symposium Foreword: Framing the Law and Policy for Ecosystem Services
- Colin T. Reid, Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity
- Jerneja Penca, Marketing the Market: The Ideology of Market Mechanisms for Biodiversity Conservation
- Robert L. Glicksman & Thoko Kaime, A Comparative Analysis of Accountability Mechanisms for Ecosystem Services Markets in the United States and the European Union
- Rakhyun E. Kim & Klaus Bosselmann, International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements
- Benjamin J. Richardson, Socially Responsible Investing for Sustainability: Overcoming Its Incomplete and Conflicting Rationales
- Julie Ayling, Harnessing Third Parties for Transnational Environmental Crime Prevention
- Emilia Korkea-aho, Laws in Progress? Reconceptualizing Accountability Strategies in the Era of Framework Norms
This chapter of the forthcoming 'Oxford Handbook on International Adjudication' assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or other non-State actors as litigants. Unlike international criminal courts, these courts focus exclusively on issues of State responsibility, generally finding that international law has or has not been violated; if a violation is found, matter is usually negotiated to a resolution by the concerned States. Although reparation in the form of restitution, compensation or satisfaction is possible, criminal sanctions are not. Unlike ad hoc arbitral tribunals formed to address matters of investment or commerce, such as under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) or the International Chamber of Commerce, these judicial bodies are permanent institutions; they are designed to operate for decades, with adjudicators who serve for years on a range of cases, not for just a single claim or group of claims. Unlike processes for mediation or conciliation, these courts or tribunals issue decisions that are legally binding on the parties appearing before them.
Such international judicial bodies have a prominent place in the pantheon of international adjudication; indeed, the ICJ is often viewed — symbolically — as at the pinnacle of international adjudication. Yet with the rise of numerous other dispute resolution bodies, including those before which non-State actors may appear and that may hear hundreds of cases per year, questions have arisen as to whether such ‘old school’ fora still play a dominant or even important role for international law, especially given the relative paucity of their caseloads.
Verdier: Global Regime Divergence: Why the World Trade Regime Has Become More Legalized While the Financial Regime Has Become Less Legalized
The international trade and finance regimes exhibit different levels of legalization. The trade regime is made up of treaties, whereas the financial regime, in contrast, is ruled by agreements that are informal. This difference reflects the different institutional strategies that were successfully pursued by each group of globalists in their respective area over the last fifty years: exporters worked in close relation with their government to build a regime able to contain protectionist opposition at home and provide access to markets abroad; bankers, in contrast, accessed world markets by pressing for the repeal of government regulation at home and intergovernmental regulation abroad. Beyond offering an explanation for the institutional differences between the trade and financial regimes, the study makes three general contributions to the governance literature. First, the formal-informal dimension is shown to be part of a larger list of divergent traits between two broad ideal types of governance, labeled law-based and market-mediated. Second, the factors that account for the divergence between trade and finance also generalize to other regimes in the areas of economics, the environment, human rights, and security. Third, the study offers a typology of informal governance that cuts through the current distinction between trans-governmental networks and private governance.
Sociologists of law have long emphasized that law is rooted in communities, and laws are considered by these scholars as expressive types of those communities. Sociological analysis casts new light on a significant dimension of international law and enriches our understanding of social factors involved in the creation, interpretation and implementation of international rules. While sociological literature provides valuable tools for analyzing various international legal topics, it does not aim to substitute rational, political or other analyses but rather to complement them. This chapter aims to present the sociological perspective on international investment law and illustrate its practical value with regard to two significant topics in contemporary investment law: the application of human rights law to investment disputes and "precedent" in investment tribunals' jurisprudence.
Section II briefly exposes the central tenets of the sociological perspective and discusses its relevance to international economics, particularly foreign investment relations. Section III briefly delineates the features of the investment community. Sections IV and V illustrate the scholarly and practical value of the sociological perspective by an analysis of two prominent questions in contemporary international investment law. Section IV presents a sociological analysis of the interaction between international investment law and human rights law. The principal argument here is that the socio-cultural distance between the particular branches of international law affects the inclination of relevant decision-makers to incorporate or reject legal rules developed in other branches of international law. Section V addresses the issue of "precedent". Investment tribunals' tendency to follow a series of consistent rulings by other investment tribunals is linked to the concepts of social norms, social control and conformity in the investment arbitration community, as well as the particular role of the influential core-group of frequent arbitrators in the investment social network. Investment tribunals' inclination to accept rulings of the International Court of Justice is linked to the concepts of social status and reference group in sociological literature. Section VI concludes that sociological literature is a valuable tool that broadens our understanding of the social factors involved in the creation and implementation of international investment law, and may bear implications for policy-making as well.
Wednesday, September 11, 2013
Recent years have seen a growing number of discussions about the role of the European Court of Human Rights (ECtHR). Some critics have accused the ECtHR of engaging in judicial activism, using its own notion of evolutionary interpretation to gradually expand the scope of the Convention. Others have argued that by doing so the ECtHR only fulfils its task of providing an up-to-date human rights protection in an increasingly integrated Europe. These debates are in part fuelled by normative differences in the perceived role of the ECtHR in the protection of human rights in Europe. Whether the ECtHR should play a limited constitutional role or not is therefore hardly only a legal matter. It is also a political one, which will have significant implications for European citizens and national democracy, as well as for the very idea of European integration by law.
This conference addresses the question of what the role of the ECtHR should – and could – be in the contemporary and future protection of human rights in Europe. It brings together a distinct group distinguished European judges and renowned scholars from the field of human rights to debate these questions and suggest ways forward for the ECtHR.
Nach Kreta, Rom, Wien, Göttingen, Sevilla, Budapest und Straßburg, den Austragungsorten der bisherigen Kongresse, hat die Societas Iuris Publici Europaei (SIPE) ihren Achten Kongress 2011 in Lissabon mit dem Thema „Der Beitritt der Europäischen Union zur EMRK“ veranstaltet.
Bekanntlich ist die Frage des Beitritts der Europäischen Union zur EMRK nicht neu. Sie stand mehrmals in Wissenschaft und Politik zur Debatte. Während die Kommission in mehreren Anläufen für den Beitritt geworben hatte, erteilte dem der EuGH eine rechtliche Absage. Er vertrat in seinem diesbezüglichen Gutachten 1996 die Meinung, es bedürfe einer Änderung der Verträge, um einen etwaigen Beitritt herbeiführen zu können. Die weiteren Schritten sind wohl bekannt: war der Beitritt der Union zur EMRK ursprünglich im Europäischen Verfassungsentwurf als Option vorgesehen, so stellt er nach dem EUV in der Fassung des Vertrags von Lissabon – ähnlich wie im gescheiterten EVV– keine Option mehr dar, sondern ist er zwingend vorgesehen. Die vielschichtigen und komplizierten Fragen des Beitritts der Europäischen Union zur EMRK und dessen Bedeutung für den Grundrechtsschutz in Europa wurden zwei Tage lang in Lissabon von Fachleuten aus Theorie und Praxis lebhaft diskutiert.
Der vorliegende Band enthält die schriftliche, überarbeitete Fassung der in Lissabon gehaltenen Referate zusammen mit den Beiträgen aus dem „Atelier Junger Wissenschaftler“, ein Forum, auf dem qualifizierte Nachwuchswissenschaftler zu dem Tagungsthema eigene Referate beisteuern und diskutieren. Die Referate sind in der beim Vortrag jeweils verwendeten Sprache – stets eine der drei „offiziellen“ SIPE-Sprachen, d.h. deutsch, englisch und französisch – abgedruckt.
The Societas Iuris Publici Europaei (SIPE) held its Eighth Congress 2011 in Lisbon. The Eighth Congress followed Congresses at Crete, Rome, Vienna, Göttingen, Sevilla, Budapest and Strasbourg. The central topic of the Congress was „The Accession of the European Union to the European Convention of Human Rights“.
As is well known, the issue of the EU Accession to the European Convention on Human Rights is not a new one. It has been the subject of debate many times among scholars and politicians. While the Commission endorsed the accession in many instances, the ECJ argued in its opinion of 28 March 1996 that accession could be brought only by way of Treaty amendment. The next steps of the accession issue are well known: initially the EU accession to the ECHR was optional according to the Draft Treaty establishing a Constitution for Europe. Then, it became a legal obligation under the Treaty of Lisbon – as it had also been under the failed Constitutional Treaty. The multi-layered and complicated issues of the EU accession to the ECHR and its importance for the human rights protection in Europe were discussed intensively by experts from both a theoretical and practical background for two days in Lisbon.
The present volume puts the revised editions of the presentations together with the contributions presented in the „Workshop of Junior Scholars“, a forum, in which qualified young academics present and discuss their own papers within the theme of the Congress. The contributions are published in the respective language used for each presentation, which may be one of the three „official“ languages of the SIPE, namely English, French and German.
Après la Crète, Rome, Vienne, Göttingen, Séville, Budapest et Strasbourg, les villes hôtes des précédents Congrès, la Societas Iuris Publici Europaei (SIPE) a organisé son huitième congrès 2011 à Lisbonne sur le thème de «l'adhésion de l'Union européenne à la CEDH».
Comme on le sait, la question de l'adhésion de l'Union européenne à la CEDH n'est pas nouvelle. Elle a été plusieurs fois à l’ordre du jour du débat scientifique et politique. La Commission avait entrepris plusieurs tentatives, mais la Cour de justice avait posé des limites avec son avis du 28 mars 1996, requérant une modification des traités afin de permettre une adhésion éventuelle.
Les autres étapes sont bien connues: l'adhésion de l'Union à la CEDH a été initialement conçue comme une option dans le projet de la Convention européenne ; avec le traité de Lisbonne – comme dans c’était déjà le cas avec le traité constitutionnel, il ne s’agit plus d’une option, mais d’une obligation. Les problématiques à niveaux multiples et complexes de l'adhésion de l'Union européenne à la CEDH et de son importance pour la protection des droits fondamentaux en Europe ont été discutées pendant deux jours avec vivacité à Lisbonne par des experts de la théorie et de la pratique. Le présent volume contient la version écrite révisée des conférences et exposés présentés à Lisbonne avec les contributions à l’ « Atelier des jeunes scientifiques », un forum où jeunes universitaires présentent et discutent leur propres travaux relatifs à la thématique de la conférence. Les textes sont publiés dans la langue utilisée à l’origine, une des trois langues "officielles" de la SIPE, allemand, anglais ou français.
- Ozan O. Varol, The Military as the Guardian of Constitutional Democracy
- Timothy Webster, China’s Human Rights Footprint in Africa
- James Thuo Gathii, Beyond China’s Human Rights Exceptionalism in Africa: Leveraging Science, Technology and Engineering for Long-Term Growth
- Special Section: Disability and Development
- Michael Ashley Stein, Mainstreaming and Accountability: (Really) Including Persons with Disabilities in Development Aid and Humanitarian Relief Programming
- Mitchell Loeb, Disability Statistics: An Integral but Missing (and Misunderstood) Component of Development Work
- Francisco J Bariffi & Matthew S Smith, Same Old Game but with Some New Players - Assessing Argentina’s National Mental Health Law in Light of the Rights to Liberty and Legal Capacity under the UN Convention on the Rights of the Persons with Disabilities
- Patrick Ojok, Beyond Legislation: Implementing the Employment Provisions of the Persons with Disabilities Act of Uganda 2006
- Saskia C van Veen, Barbara J Regeer & Joske G F Bunders, Meeting the Challenge of the Rights-based Approach to Disability: The Changing Role of Disability-Specific NGOs and DPOs
- Additional Articles
- Hans-Otto Sano, Human Rights and Development: Human Rights Principles and Their Indicators av
- Elisabeth I Karlsen, Kristine Stray Aurdal, Laura Terragni, Wenche Barth Eide & Per O Iversen, A Human Rights-Based Approach to Challenges and Opportunities in the Process of Fulfilling Nursing Home Residents’ Right to Adequate Food
- Alf Butenschøn Skre & Asbjørn Eide, The Human Right to Benefit from Advances in Science and Promotion of Openly Accessible Publications
Subsequent agreements and practices are important mechanisms by which treaty parties can assert their continued interpretive authority over treaties without having to amend those treaties. However, when states delegate power to international courts and tribunals to resolve disputes, they also delegate some interpretive authority to these judicial bodies. This delegation is typically implied and partial rather than express and exclusive. As a result, the claim of treaty parties to interpretive authority over their treaties exists in tension with the claim of international courts and tribunals to interpretive authority over the same treaties.
In this Chapter, I argue that fights over the relevance of subsequent agreements and practice of the treaty parties before international courts and tribunals should be understood as representing a battle over interpretive power. On one level, this battle results in a dialogue between treaty parties and international courts and tribunals over the proper interpretation of those treaties. On another level, it represents a power play between two rival sources of interpretive authority that exist in tension with one another. This battle over interpretive power plays out differently before different types of courts, such as inter-state and transnational courts and tribunals.
Tuesday, September 10, 2013
China is frequently singled out for defying international law and disregarding international institutions. This paper examines one key stratum of China’s compliance: its implementation of World Trade Organization rulings. China shows a strong record of compliance, and has reformed its domestic legal system to accommodate the WTO. Ultimately, however, I argue these efforts amount to paper compliance. The mere phenomenon of legislative change does not guarantee compliance. First, China has not fully implemented several rulings, leaving in place many inconsistent regulations. Second, China’s political and legal systems permit various manners of non-compliance. Paper compliance captures the contradictions between stated behavior and demonstrated conduct, and shows that regulatory revision, even if impressive on paper, imperfectly reflects the broader context of compliance.
Call for Papers: 2014 Barcelona Workshop on Global Governance: Networks in Global Governance
IBEI (Institut Barcelona d’Estudis Internacionals) and ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) are organizing the second edition of the Barcelona Workshop on Global Governance, an international workshop to discuss the institutional design of global governance, on 9 & 10 January 2014. The workshop will focus on networks in global governance. The aim is to examine the potential and limitations of network approaches, as well as the challenges that networked governance at the global level can pose in terms of effectiveness, accountability and democracy. Confirmed keynote speakers include Deborah Avant (University of Denver), Miles E. Kahler (University of California San Diego) and Magnus Thor Torfasson (Harvard Business School) as well as Narcís Serra (former Spanish Minister of Defense and Deputy Prime Minister) and Javier Solana (former NATO Secretary General and EU High Representative for Common Foreign and Security Policy). Abstracts of up to 500 words should be sent by 27 September 2013 to firstname.lastname@example.org. Further information is available here.
- Alejandro Chehtman, Developing Local Capacity for War Crimes Trials: Insight from BiH, Sierra Leone, and Colombia
- Amitai Etzioni, A Liberal Communitarian Paradigm for Counterterrorism
- Guglielmo Verdirame, A Normative Theory of Sovereignty Transfers
- Wentong Zheng, Counting Once, Counting Twice: The Precarious State of Subsidy Regulation
Roberts: State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority
The 1990s witnessed the signing of thousands of investment treaties, while the 2000s saw the launch of hundreds of investor-state arbitrations. But a new development is on the horizon that has the potential to reshape our understanding of the field: the re-emergence of state-to-state investment treaty arbitration in cases like Peru v Chile, Italy v Cuba, and Ecuador v United States. This development is highly controversial because it implicates fundamental but unresolved questions about what rights have been given to investors and what rights have been retained by states. This Article argues that state-to-state arbitration provides an important mechanism for treaty parties to re-engage with the investment treaty system. Moreover, based on the co-existence of investor-state and state-to-state arbitration, I develop a hybrid theory about the interdependent nature of investment treaty rights and the shared allocation of interpretive authority.
Kendall & Nouwen: Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood
In the context of a special issue on ‘practices’ at the International Criminal Court, this article focuses on the practice of representation, and in particular on the practice of representing victims. As political and social theorists such as Pitkin and Bourdieu have argued with respect to politics, representation does not merely reflect reality, it is constitutive of it. In the ICC, two practices of victim representation have been prevalent. The first is the rather novel and widely welcomed practice of representing victims as participants in ICC proceedings. The second is the older practice of the discursive invocation of victims as the telos of international criminal law. But these two practices lead in different directions. Victim participation in court proceedings has led to the juridification of victimhood — the legal categorisation of victims — and as a result of this juridification, very few individuals are actually personally represented in the Court’s proceedings. The discursive invocation of victims as the telos of the Court’s work has created a deity-like and seemingly sovereign entity — ‘The Victims’ — that transcends all actual victims and corresponds to no individual victim in their particularity. The result of the two practices is an increasing gap between the limited role that victims play in international criminal proceedings due to the juridification of victimhood and the continued presentation of ‘The Victims’ as the raison d’être of international criminal law. The overdetermined presence of the figure of ‘The Victims’ as a rhetorical construct obscures the representative challenges faced by conflict-affected individuals in accessing the form of justice that is practiced in their (abstract) name.
- Donna-Lee Frieze, New approaches to Raphael Lemkin
- Thomas M. Butcher, A ‘synchronized attack’: On Raphael Lemkin's holistic conception of genocide
- Douglas Irvin-Erickson, Genocide, the ‘family of mind’ and the romantic signature of Raphael Lemkin
- Mira L. Siegelberg, Unofficial men, efficient civil servants: Raphael Lemkin in the history of international law
- Hilary Earl, Prosecuting genocide before the Genocide Convention: Raphael Lemkin and the Nuremberg Trials, 1945–1949
Monday, September 9, 2013
- Prosecutor v. Callixte Mbarushimana: Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled "Decision on the Conﬁrmation of Charges" (Int'l Crim. Ct.), with introductory note by Ruth Frolich
- Ahmad and Others v. The United Kingdom (Eur. Ct. H.R.), with introductory note by John T. Parry
- Othman (Abu Qatada) v. The United Kingdom (Eur. Ct. H.R.), with introductory note by Bruce Zagaris
- El-Masri v. The Former Yugoslav Republic of Macedonia (Eur. Ct. H.R.), with introductory note by Christina M. Cerna
- Rubin v. Euroﬁnance SA (U.K. Sup. Ct.), with introductory note by Charles Camp and Theresa Bowman
- Adrian M. Johnston & Michael J. Trebilcock, Fragmentation in international trade law: insights from the global investment regime
- Jean-Jacques Hallaert, The future of Aid for Trade: challenges and options
- Eric Neumayer, Strategic delaying and concessions extraction in accession negotiations to the World Trade Organization: an analysis of Working Party membership
- Gaëlle Balineau & Jaime De Melo, Removing barriers to trade on environmental goods: an appraisal
- Sébastien Miroudot, Jehan Sauvage & Ben Shepherd, Measuring the cost of international trade in services
- September 5, 2013: Luis Moreno Ocampo, "Gaddafi's Case: How the UN Security Council Defined the Norms on Global Security"
- September 19, 2013: Gary Bass, "The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide"
- October 3, 2013: Rick Pildes & Sam Issacharoff, "Targeted Warfare: The Individuation of Enemy Responsibility"
- October 17, 2013: David B. Carter, TBA
- October 24, 2013: Fionnuala Ní Aoláin, "Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication"
- October 31, 2013: Eyal Benvenisti, "War as Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective"
- November 7, 2013: Page Fortna, "Choosing Terror: Efficacy and Legitimacy Costs in Rebel Groups' Use of Terrorism in Civil Wars"
- November 14, 2013: Barbara Koremenos, "The Continent of International Law"
- November 21, 2013: Robert Chesney, TBA
- Alan Khee-Jin Tan, Antitrust Immunity for Trans-Pacific Airline Alliances Agreements: Singapore and China as ‘Beyond’ Markets
- Ruwantissa Abeyratne, The 6th Air Transport Conference of ICAO: A Critical Analysis
- Michael Jennison The Future of Aviation Safety Regulation: New US-EU Agreement Harmonizes and Consolidates the Transatlantic Regime, but What is the Potential for Genuine Regulatory Reform?
- Jae Woon Lee, Revisiting Freedom of Overflight in International Air Law: Minimum Multilateralism in International Air Transport
- Debra Erni & Niels van Antwerpen, Olympic Airlines SA v. ACG Acquisition XX LLC
Over the years, Martti Koskenniemi has drawn upon other disciplines to illuminate and resolve certain puzzles in legal thought. But close examination of Koskenniemi’s approach to interdisciplinarity itself raises several puzzles. What is the logic that drives Koskenniemi’s embrace of certain disciplines and rejection of others – particularly in light of his claim that it is not possible to sensibly choose among scholarly methods? Why does Koskenniemi view the turn to international relations (IR) as so problematic – particularly given that he sometimes criticizes IR approaches as being too Kantian, and other times criticizes IR theory for not being Kantian enough?
To address these puzzles, this paper explores the links between Koskenniemi’s understanding of the nature and purposes of law, and the methods appropriate to study of the law. It does so by analyzing his use of structuralism and linguistics in early writings, his more recent turn to history, and his memorable claim that the turn to IR can be understood as an effort to colonize law. The paper then turns from Koskenniemi’s understanding of law’s purpose to his understanding of law’s promise. Koskenniemi’s writings on interdisciplinarity suggest that lawyers should engage in a particular form of critique – namely, unmasking "false universals," by identifying the particular that lies behind every claim of the universal. But these writings also suggest an equally important affirmative task for law and lawyers – namely, to understand and justify particular decisions in universal terms. Understanding how lawyers can simultaneously find the particular in the universal and the universal in the particular presents, perhaps, the most difficult puzzle of all. I offer a reading of Koskenniemi’s writings that suggests a resolution to this puzzle.
The modern tendency to restrict international arbitration to matters of commerce and investment is succumbing to a renewed recognition of the original impetus for dispute resolution by arbitration – i.e., matters of public international law, most importantly the settlement of disputes that pose a threat of international conflict. Recent developments suggest a renaissance of public international arbitration, most clearly manifested in the present flourishing of the Permanent Court of Arbitration (PCA), the oldest existing dispute settlement institution in international law.
As the calls for the development of new and more appropriate methods for dispute settlement in international law increased during the 1990s, the PCA undertook a structural reform and is today a vital forum for dispute settlement, with scores of arbitrations currently pending under its auspices. This book – the most comprehensive study of the institution to date, covering its history, its present status, and its future prospects – proves the PCA’s contemporary relevance within the international dispute settlement framework.
In this paper, the author argues that investment arbitrators should not see themselves as law-makers, an attitude that otherwise manifests itself in attempts to advance the rule of law, which in turn may take the form of following prior decisions in order to consolidate rules. There is a high risk that as law-makers they do more harm than good, given that creating law, filing gaps, furthering the rule of law, pursuing predictability is not necessarily a good thing to do, a moral positive. Precise, consistent rules, forming a regime that meets the requirements of the rule of law, are not inherently preferable to vague, inconsistent rules forming a regime that does not meet the standards of regulative quality which partake of the rule of law. There is nothing inherently good in furthering the rule of law. A bad rule applied consistently, in a predictable way, in highly regularized patterns, may do more harm than the same rule applied inconsistently, occasionally, in an unpredictable way.
- Marc Fallon & Thalia Kruger, The Spatial Scope of the EU’s Rules on Jurisdiction and Enforcement of Judgments: From Bilateral Modus to Unilateral Universality?
- Pierre Mayer, Conflicting Decisions in International Commercial Arbitration
- Horatia Muir Watt, A Semiotics of Private International Legal Argument
- Thomas Kadner Graziano, Solving the Riddle of Conflicting Choice of Law Clauses in Battle of Forms Situations: The Hague Solution
- Sirko Harder, Recognition of a Foreign Judgment Overturned by a Non-Recognisable Judgment
- Marta Requejo Isidro, The Use of Force, Human Rights Violations and the Scope of the Brussels I Regulation
- A General Part for European Private International Law?
- Stefan Leible & Michael Müller, The Idea of a “Rome 0 Regulation”
- Luís de Lima Pinheiro, The Methodology and the General Part of the Portuguese Private International Law Codification: A Possible Source of Inspiration for the European Legislator?
- Protection of Personality Rights
- William Bennett, New Developments in the United Kingdom: The Defamation Act 2013
- Laura E. Little, Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States
- Michel Reymond, Jurisdiction in Case of Personality Torts Committed over the Internet: A Proposal for a Targeting Test
- Thomas Thiede, A Topless Duchess and Caricatures of the Prophet Mohammed: A Flexible Conflict of Laws Rule for Cross-Border Infringements of Privacy and Reputation
- The Chinese Private International Law Acts: Some Selected Issues
- Jin HUANG Creation and Perfection of China’s Law Applicable to Foreign-Related Civil Relations
- Yujun Guo, Legislation and Practice on Proof of Foreign Law in China
- Yong Gan, Mandatory Rules in Private International Law in the People’s Republic of China
- Qisheng He, Changes to Habitual Residence in China’s lex personalis
- Guangjian Tu, The Codification of Conflict of Laws in China: What Has/Hasn’t Yet Been Done for Cross-Border Torts?
- Wenwen Liang, The Applicable Law to Rights in rem under the Act on the Law Applicable to Foreign-Related Civil Relations of the People’s Republic of China
- Weidong Zhu, The New Conflicts Rules for Family and Inheritance Matters in China
Sunday, September 8, 2013
Stahn: On 'Red Lines' and 'Blurred Lines': Syria and the Semantics of Intervention, Aggression and Punishment
One of the most striking features of discussion concerning the legality of strikes against Syria is the mixture of semantics relating to intervention. Vocabularies relating to the use of force have generally been distinct from the realm of International Humanitarian Law and International Criminal Law. The Syria debate folds criminal justifications into the rhetoric of intervention. Intervention is regarded as a means to achieves rationales and objectives of retribution. This essay examines arguments relating to (i) regime accountability under existing doctrines (R2P, 'humanitarian intervention,' 'protection of civilians,' (ii) the ‘punitive’ and deterrence-based justification of intervention, and (iii) the semantics of 'aggression.' It argues that use of force cannot and should not serve as a short-cut to international justice or as a means of punishment.
- Symposium Papers
- Andrew Bell, The Future of Private International Law in Australia
- Megan Davis, To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On
- Stephen Tully, Protecting Australian Cyberspace: Are our International Lawyers Ready?
- David Rolph, Splendid Isolation? Australia as a Destination for ‘Libel Tourism’
- Lisa Toohey, Barriers to Universal Membership of the World Trade Organization
- Catherine Stubberfield, Lifting the Organisational Veil: Positive Obligations of the European Union Following Accession to the European Convention on Human Rights
- Ben Saul & Tim Stephens, Not Yet Out of the Woods: Australia’s Attempt to Regulate Illegal Timber Imports and World Trade Organization Obligations
- Sirko Harder, Recent Judicial Aberrations in Australian Private International Law
- Albert Monichino, Luke Nottage & Diana Hu, International Arbitration in Australia: Selected Case Notes and Trends
- Tim Poisel, Deep Seabed Mining: Implications of Seabed Disputes Chamber’s Advisory Opinion
- Andrew Dickinson,
The Future of Private International Law in Australia