Friday, May 13, 2016

Schill: The European Commission’s Proposal of an “Investment Court System” for TTIP

Stephan W. Schill (Univ. of Amsterdam - Law) has posted an ASIL Insight on The European Commission’s Proposal of an “Investment Court System” for TTIP: Stepping Stone or Stumbling Block for Multilateralizing International Investment Law?

King: The Doctrine of Odious Debt in International Law: A Restatement

Jeff King (Univ. College London - Law) has published The Doctrine of Odious Debt in International Law: A Restatement (Cambridge Univ. Press 2016). Here's the abstract:
According to the doctrine of odious debt, loans which are knowingly provided to subjugate or defraud the population of a debtor state are not legally binding against that state under international law. Breaking with widespread scepticism, this groundbreaking book reaffirms the original doctrine through a meticulous and definitive examination of state practice and legal history. It restates the doctrine by introducing a new classification of odious debts and defines 'odiousness' by reference to the current, much more determinate and litigated framework of existing public international law. Acknowledging that much of sovereign debt is now governed by the private law of New York and England, Jeff King explores how 'odious debts' in international law should also be regarded as contrary to public policy in private law. This book is essential reading for practising lawyers, scholars, and development and human rights workers.

Wheatley: The Emergence of New States in International Law: The Insights from Complexity Theory

Steven Wheatley (Lancaster Univ. - Law) has posted The Emergence of New States in International Law: The Insights from Complexity Theory (Chinese Journal of International Law, forthcoming). Here's the abstract:
Doctrinal controversies and the disputed international status of Kosovo and Palestine suggest that it is difficult for us international lawyers to know with any certainty when a new State has emerged in the international community. The contention here is that we should look to systems theory thinking—specifically complexity theory—to make sense of the law on statehood. Systems theory directs us to conceptualize the State in terms of patterns of communications adopted by law and politics actors and institutions and applied to subjects. Complexity tells us that these patterns develop without any central controller or guiding hand and that they exist only as a consequence of the framing of law and politics communications by a third party observer. The argument developed in this article is that these insights can provide the intellectual “scaffold” around which we can build our model of the international law on statehood.

Blome, Fischer-Lescano, Franzki, Markard, & Oeter: Contested Regime Collisions: Norm Fragmentation in World Society

Kerstin Blome (Universität Bremen), Andreas Fischer-Lescano (Universität Bremen), Hannah Franzki (Birkbeck College, Univ. of London), Nora Markard (Universität Hamburg), & Stefan Oeter (Universität Hamburg) have published Contested Regime Collisions: Norm Fragmentation in World Society (Cambridge Univ. Press 2016). Contents include:
  • Kerstin Blome, Andreas Fischer-Lescano, Hannah Franzki, Nora Markard & Stefan Oeter, Contested collisions: an introduction
  • Stefan Oeter, Regime collisions from a perspective of global constitutionalism
  • Jeffrey L. Dunoff, How to avoid regime collisions
  • Sebastian Oberthür, Regime-interplay management: lessons from environmental policy and law
  • Lars Viellechner, Responsive legal pluralism: the emergence of transnational conflicts law
  • Isabell Hensel & Gunther Teubner, Horizontal fundamental rights as conflict of laws rules: how transnational pharma-groups manipulate scientific publications
  • Marcelo Neves, (Dis)solving constitutional problems: transconstitutionalism beyond collisions
  • Larry Catá Backer, Governance polycentrism or regulated self-regulation: rule systems for human rights impacts of economic activity where national, private, and international regimes collide
  • Sebastian Eickenjäger, Non-financial reporting for business enterprises: an effective tool to address human rights violations?
  • Kolja Möller, A critical theory of transnational regimes: creeping managerialism and the quest for a destituent power
  • Christoph Menke, Materialism of form: on the self-reflection of law
  • Sonja Buckel, The dialectic of democracy and capitalism before the backdrop of a transnational legal pluralism in crisis
  • Andreas Fischer-Lescano, Putting proportionality in proportion: whistleblowing in transnational law
  • Hannah Franzki & Johan Horst, On the critical potential of law – and its limits: double fragmentation of law in Chevron Corp. v. Ecuador

Thursday, May 12, 2016

New Issue: Journal of International Wildlife Law & Policy

The latest issue of the Journal of International Wildlife Law & Policy (Vol. 19, no. 2, 2016) is out. Contents include:
  • S.A. Jeanetta Selier, Rob Slotow, Andrew Blackmore & Arie Trouwborst, The Legal Challenges of Transboundary Wildlife Management at the Population Level: The Case of a Trilateral Elephant Population in Southern Africa
  • Rachelle Adam, Finding Safe Passage through a Wave of Extinctions: Israel's Endangered Mountain Gazelle
  • Janina Heim & Michael Böcher, CITES and Science: Using the RIU Model to Analyze Institutionalized Scientific Policy Advice in Germany for the Case of Ivory Trade
  • Geoffrey Wandesforde-Smith, Bracketing Braverman: Thinking and Acting for Wildlife Conservation after Nature

New Issue: Global Environmental Politics

The latest issue of Global Environmental Politics (Vol. 16, no. 2, May 2016) is out. Contents include:
  • Special Section: Accountability in Global Environmental Governance
    • Teresa Kramarz & Susan Park, Accountability in Global Environmental Governance: A Meaningful Tool for Action?
    • Matthew Hoffmann, The Analytic Utility (and Practical Pitfalls) of Accountability
    • Cristina M. Balboa, Accountability of Environmental Impact Bonds: The Future of Global Environmental Governance?
    • Lars H. Gulbrandsen & Graeme Auld, Contested Accountability Logics in Evolving Nonstate Certification for Fisheries Sustainability
    • Jonathan W. Kuyper & Karin Bäckstrand, Accountability and Representation: Nonstate Actors in UN Climate Diplomacy
    • David J. Gordon, The Politics of Accountability in Networked Urban Climate Governance
  • Forum
    • Scott Moore & Dale Squires, Governing the Depths: Conceptualizing the Politics of Deep Sea Resources
  • Research Article
    • Michael Byron Nelson, Africa’s Regional Powers and Climate Change Negotiations

Travel Grants for the 12th Annual ESIL Conference/Bourses de voyage pour la 12e conférence annuelle de la SEDI

The European Society of International Law offers travel grants to encourage and facilitate attendance at its Annual Conferences and Research Forums. Travel grants are awarded under two different schemes: the Early Career Scheme and the Developing/Emerging Economies Scheme. While travel grants are normally awarded to applicants presenting a paper, limited support may also be available to non-presenting participants. Applications for the 2016 Annual Conference in Riga are now open and will close on June 6, 2016 (notification of decisions by June 27, 2016). Details are here (English/Français).

Hurd: The Permissive Power of the Ban on War

Ian Hurd (Northwestern Univ. - Political Science) has posted The Permissive Power of the Ban on War (European Journal of International Security, forthcoming). Here's the abstract:
The ban on inter-state war in the UN Charter is widely identified as central to the modern international order ― Michael Byers calls it “one of the twentieth century’s greatest achievements.” Even if it is only imperfectly observed, it is often seen as a constraint on state autonomy and an improvement on the pre-legal, unregulated world before 1945. In response to this conventional view, this article shows that the laws on war in the Charter are better seen as permissive rather than constraining. I make two points. First, by creating a legal category around ‘self-defense,’ the laws on war authorize the recourse to force, in addition to forbidding it in other instances. The Charter authorizes, and thus legitimates, wars that are motivated by the security needs of the state. Second, state practice since 1945 has expanded the scope of this authorization, extending it in both time and space beyond the black-letter text of the Charter. The permissive effect of law on war has therefore been getting larger. These two effects suggest a relation between international law and power politics that is missed by both realists and liberal interationalists: when legal justification legitimates state decisions, international law is a resource which increases state power.

Gunneflo: Targeted Killing: A Legal and Political History

Markus Gunneflo (Lund Univ. - Law) has published Targeted Killing: A Legal and Political History (Cambridge Univ. Press 2016). Here's the abstract:
Looking beyond the events of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft, and in the problematic relationship between sovereign authority and lawful violence underpinning the modern state system. It details the legal and political issues raised in targeted killing as it has emerged in practice, including questions of domestic constitutional authority, the use of force in international law, the law of belligerent occupation, the law of targeting and human rights law. The distinctive nature of Israeli and US targeted killing is analysed in terms of the compulsion of legality characteristic of the liberal constitutional state, a compulsion that demands the ability to distinguish between legal 'targeted killing' and extra-legal 'political assassination'. The effect is a highly legalized framework for the extraterritorial killing of designated terrorists that may significantly affect the international law of force.

Carlarne, Gray, & Tarasofsky: The Oxford Handbook of International Climate Change Law

Cinnamon P. Carlarne (Ohio State Univ. - Law), Kevin R. Gray (Trade Law Bureau, Government of Canada), & Richard Tarasofsky (Chatham House) have published The Oxford Handbook of International Climate Change Law (Oxford Univ. Press 2016). Contents include:
  • Cinnamon P. Carlarne, Kevin R. Gray & Richard G. Tarasofsky, International Climate Change Law - Mapping the Field
  • Alan Boyle & Navraj Singh Ghaleigh, Climate Change and International Law beyond the UNFCCC
  • Navraj Singh Ghaleigh, Science and Climate Change Law - The Role of the IPPC in International Decision-Making
  • Navraj Singh Ghaleigh, Economics and International Climate Change Law
  • David Freestone, The United Nations Framework Convention on Climate Change - The Basis for the Climate Change Regime
  • Sebastian Oberthür, Compliance under the Evolving Climate Regime
  • Alexander Thompson, The Global Regime for Climate Finance: Political and Legal Challenges
  • Jonathan B. Wiener, Precaution and Climate Change
  • Catherine Redgwell, Principles and Emerging Norms in International Law - Intra- and Inter-generational Equity
  • Friedrich Soltau, Common Concern of Humankind
  • John H. Knox, Human Rights Principles and Climate Change
  • Shi-Ling Hsu, International Market Mechanisms
  • Michael A. Mehling, Legal Frameworks for Linking National Emissions Trading Systems
  • Andrew Shoyer, Jung-ui Sul & Colette van der Ven, Carbon Leakage and the Migration of Private CO2 Emitters to other Jurisdictions
  • Francesco Sindico, National Measures and WTO Consistency - Border Measures and other Instruments to Prevent Carbon Leakage and Level the Carbon Playing Field
  • Harro van Asselt, The Design and Implementation of Greenhouse Gas Emmissions Trading
  • Martijn Wilder Am & Lauren Drake, International Law and the Renewable Energy Sector
  • Joshua D. Sarnoff, Intellectual Property and Climate Change, with an Emphasis on Patents and Technology Transfer
  • Roda Verheyen & Cathrin Zengerling, International Dispute Settlement
  • Timothy Meyer, Institutions and Expertise: The Role of Science in Climate Change Lawmaking
  • Christina Voigt, Climate Change and Damages
  • Philippe Cullet, Human Rights and Climate Change - Broadening the Right to Environment
  • Jane McAdam, Climate Change-related Displacement of Persons
  • Josh Eagle & U. Rashid Sumaila, Climate, Oceans, and the Law of Special and General Adaptation
  • Charlotte Streck & Darragh Conway, Forestry and Agriculture under the UNFCCC: A Jigsaw Waiting to be Assembled?
  • Daniel Farber, Climate Change & Disaster Law
  • Michael B. Gerrard, United States Climate Change Law
  • Alex L. Wang, Climate Change Policy and Law in China
  • Sanja Bogojević, Climate Change Law and Policy in the European Union
  • Deepa Badrinarayana, Climate Change Law and Policy in India
  • Anna Korppoo, Max Gutbrod, & Sergei Sitnikov, Russian Law on Climate Change
  • Karen Alvarenga de Oliveira, Brazilian Climate Change Law
  • Joyeeta Gupta, The Least Developed Countries and Climate Change Law
  • Espen Ronneberg, Small Islands and the Big Issue: Climate Change and the Role of the Alliance of Small Island States

Wednesday, May 11, 2016

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 23, no. 3, 2016) is out. Contents include:
  • Articles
    • Steffen Eckhard, Political guidance or autonomy in peacebuilding? EU police reform in Afghanistan and Kosovo
    • Adriana Erthal Abdenur, Rising powers in stormy seas: Brazil and the UNIFIL maritime task force
    • Benjamin Zyla, Who is free-riding in NATO’s peace operations in the 1990s?
    • Gráinne Kelly & Máire Braniff, A dearth of evidence: tackling division and building relationships in Northern Ireland
    • Marina E. Henke, Great powers and UN force generation: a case study of UNAMID
  • Review Essays
    • A. Walter Dorn & Christoph Semken, Blue Mission Tracking: Real-Time Location of UN Peacekeepers
    • Barbara J. Falk & Sara M. Skinner, The Responsibility to Protect: A Normative Shift from Words to Action?
    • Roberta Holanda Maschietto, Problematizing the ‘Local’ in Peacebuilding

Job Opening: Max Planck Group Leader in Bogotá (Reminder)

The Max Planck Institute for Comparative Public Law and International Law and Universidad de Los Andes are looking to hire a Principal Investigator to lead a newly established Max Planck Tandem Group in Transformations of Public Law. Other than research, responsibilities include supervision of two doctoral students at Universidad de Los Andes. There is no mandatory teaching load. The Group will be located in Bogotá, and the Leader will be expected to reside in that city. The initiative will provide funding for at least one extended research stay per year of the Group at the Max Planck Institute for Comparative Public Law and International Law. The deadline for applications is May 15, 2016. The full announcement is here.

New Additions to the UN Audiovisual Library of International Law

The Codification Division of the UN Office of Legal Affairs recently added to the UN Audiovisual Library of International Law a mini-series on “Droit de la responsabilité internationale” by Mathias Forteau. The mini-series consists of four lectures: “Sources et évolution du droit de la responsabilité internationale,” “La réclamation en responsabilité internationale,” “Les conditions d'engagement de la responsabilité internationale,” and “Le contenu et la mise en œuvre de la responsabilité internationale.”

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 11, no. 5, 2016) is out. Contents include:
  • Edwin Vermulst, Juhi Dion Sud, & Simon J. Evenett, Normal Value in Anti-Dumping Proceedings against China Post-2016: Are Some Animals Less Equal Than Others?
  • Li Zhenghao, Interpreting Paragraph 15 of China’s Accession Protocol in Light of the Working Party Report',
  • Matthew R. Nicely, Brian Gatta, U.S. Trade Preferences Extension Act (TPEA) of 2015 Could Lead to Increased Use of “Particular Market Situation” in Calculating Normal Value in Anti-Dumping Cases
  • Jorge Miranda, More on Why Granting China Market Economy Status after December 2016 Is Contingent upon Whether China Has in Fact Transitioned into a Market Economy

Meyer: Explaining Energy Disputes at the World Trade Organization

Timothy Meyer (Vanderbilt Univ. - Law) has posted Explaining Energy Disputes at the World Trade Organization. Here's the abstract:

The WTO and the broader international trade regime have seen an explosion of challenges to government support for renewable energy in the last seven years, while no country has brought a formal dispute challenging fossil fuel subsidies in the GATT/WTO’s history. This pattern is puzzling because global fossil fuel subsidies dwarf global renewable energy subsidies. Moreover, it suggests that WTO rules may slow the transition to clean energy. Renewable energy technology must compete with highly subsidized fossil fuels, while trade rules as actually applied restrict subsidization only for the former. Existing explanations for the absence of trade challenges to fossil fuels have focused primarily on the lack of a mandate within the WTO. Major fossil fuel exporters have not historically been GATT/WTO members; WTO rules allegedly do not apply to energy or are inadequate to deal with the specifics of energy trade; or even if they do, nations have developed separate institutions, such as the IEA or the Energy Charter Treaty, to govern energy.

This article argues that, although these explanations have some explanatory power, they cannot fully or satisfactorily account for the pattern of WTO energy disputes in light of the recent focus on some forms of energy in the WTO but not others. Instead, I hypothesize that the economic diversification of energy-producing countries plays a major role in driving challenges to renewable energy subsidies and support policies, but not fossil fuel subsidies. It does so in two ways. First, domestic political economy considerations within fossil fuel exporting countries produce fossil fuel policies less amenable to challenge before the WTO. Second, states challenging energy subsidies expect to have greater success in changing the respondent’s behavior when the respondent has diversified exports. Renewable energy technologies tend to be produced in countries with diversified economies, while fossil fuel reserves are located overwhelmingly in countries with little diversification in their exports. The major implication is that WTO rules and dispute resolution practices may disadvantage new technologies that compete with incumbent natural resource commodities.

New Issue: Journal of International Organizations Studies

The latest issue of the Journal of International Organizations Studies (Vol. 7, no. 1, Spring 2016) is out. Contents include:
  • Göran Ahrne, Nils Brunsson, & Dieter Kerwer, The Paradox of Organizing States: A Meta-Organization Perspective on International Organizations
  • Diana Panke, Living in an Imperfect World?: Incomplete Contracting and the Rational Design of International Organizations

Daum: Das Völkerrecht der Seeblockade

Oliver Daum has published Das Völkerrecht der Seeblockade: Ein Beitrag zur dogmatischen Kategorisierung konkreter Konflikthandlungen (Nomos 2016). Here's the abstract:
In der Studie wird das Völkerrecht der Seeblockade dargestellt. Praxisgemäß wird zwischen den Rechtsregimen der Seeblockade eines zwischenstaatlichen internationalen und eines nicht-internationalen bewaffneten Konflikts, sprich sog. Bürger- und Befreiungskriege, unterschieden. Der Leser erfährt, welche völkerrechtlichen Regeln ein Staat zu beachten hat, wenn dieser eine Seeblockade errichtet und durchsetzt. Insbesondere werden die von den neutralen Staaten hierbei in Kauf zu nehmenden Beeinträchtigungen ihrer Schifffahrts- und Handelsfreiheiten aufgezeigt. Dennoch steht keinem Staat ein Recht zu, wonach neutrale Staaten die Seeblockade zu befolgen hätten. Vielmehr sind die Rechtsverhältnisse der betreffenden Parteien durch nicht-verbotene Handlungen des Völkerrechts charakterisiert.

Tuesday, May 10, 2016

McGee & Steffek: The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law

Jeffrey McGee (Univ. of Tasmania - Law) & Jens Steffek (Technische Universität Darmstadt - Institut für Politikwissenschaft) have published The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law (Journal of Environmental Law, Vol. 28, no. 1, pp. 37-63, March 2016). Here's the abstract:
The 2009 Copenhagen Accord marked a significant shift in global climate governance which has been substantially adopted in the 2015 Paris Agreement. At Copenhagen, binding targets for states to reduce emissions were replaced by voluntary pledges. We argue that the Polanyian ‘double movement' offers a useful lens to understand the Copenhagen shift in global climate governance as part of ongoing contestation in the international law system between principles of economic liberalisation and redistributive intervention. In the second half of the 20th century, redistributive design of international legal institutions became evident in a number of issue areas including trade law, oceans law and the seminal climate treaties. However, there has been ongoing US lead opposition to ‘redistributive multilateralism’ (RM), particularly over the last decade of climate negotiations. The Copenhagen model of voluntary pledges, therefore, needs to be viewed as an outcome of this opposition to RM and a related weakening of differentiation in international environmental law.

New Issue: Manchester Journal of International Economic Law

The latest issue of the Manchester Journal of International Economic Law (Vol. 13, no. 1, 2016) is out. Contents include:
  • Ming Du & Qingjiang Kong, EC—Seal Products: A New Baseline for Global Economic Governance and National Regulatory Autonomy Debate in the Multilateral Trading System
  • Bruce Wardhaugh, Buying Competition: Developing Competition Regimes through a WTO-Compliant Generalised System of Preferences
  • Ioannis Glinavos, Public Interests, Private Disputes: Investment Arbitration and the Public Good
  • Gbenga Oduntan, The ‘Reimaginarium’ of Lex Mercatoria: Critique of the Geocentric Theory about the Origins and Episteme of the Lex Mercatoria
  • Ravindra Pratap, The First WTO Appellate Body Report on Regional Adaptation under the SPS Agreement

Nordquist, Moore, & Long: Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries

Myron H. Nordquist (Univ. of Virginia - Law), John Norton Moore (Univ. of Virginia - Law), & Ronán Long (National Univ. of Ireland, Galway - Law) have published Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Brill | Nijhoff 2016). Contents include:
  • Liv Holmefjord, Notes on Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries
  • Hans Corell, The Arctic and the Present Geopolitical Situation
  • Larry Mayer, The Arctic Continental Shelf and Its Evolving Morphologic Context
  • Michael Byers, The Law and Politics of the Lomonosov Ridge
  • Alex G. Oude Elferink, The Delimitation of the Continental Shelf Beyond 200 Nautical Miles in the Arctic Ocean: Recent Developments, Applicable Law and Possible Outcomes
  • Dennis Bley, Probabilistic Risk Assessment: Concepts and Applications
  • Kuen-chen Fu, Russia’s Energy Policy in the Arctic Region and China’s Opportunities
  • Erik Haaland, A Sustainable Approach to the Arctic
  • Stephen A. Macko, Environmental Aspects of Hydrocarbon Exploration in the Arctic
  • Knut Einar Skodvin, Arctic Shipping - Still Icy
  • Sung Woo Lee, Necessary Conditions for the Commercialization of Arctic Shipping
  • J. Ashley Roach, Arctic Navigation: Recent Developments
  • Leilei Zou, Comparison of Arctic Navigation Administration between Russia and Canada
  • Elizabeth Whitsitt, Finding Refuge in the Exceptional: Using Public Morality as a Basis for Managing Natural Resources in the Arctic
  • Guifang (Julia) Xue & Yu Long, The Changing Arctic and an Adaptive Approach to the Protection of Arctic Marine Ecosystems
  • Ronán Long, Arctic Governance: Reflections on the Evolving Tableau of EU Law and Policy Measures
  • Ted L. McDorman, A Note on Arctic Ocean Regional Governance
  • Jóhann Sigurjónsson, Changes in Distribution and Migration of Fish Stocks in the Northeast Atlantic Ocean Due to Climate Variations
  • Erik J. Molenaar, International Regulation of Central Arctic Ocean Fisheries
  • Bjørn Kunoy, Assertion of Entitlement to Shared Fish Stocks
  • Stefán Ásmundsson, Freedom of Fishing on the High Seas, and the Relevance of Regional Fisheries Management Organisations (RFMOs)
  • Tore Henriksen, Allocation of Fishing Rights: Principles and Alternative Procedures
  • Rögnvaldur Hannesson, Managing Shared Migratory Stocks: the Case of the Atlantic Mackerel
  • Robert Beckman, UNCLOS Dispute Settlement Regime and Arctic Legal Issues
  • James Kraska, Russian Maritime Security Law along the Northern Sea Route: Giving Shape to Article 234 in the Law of the Sea Convention
  • Chuanxiang Sun, Comments on the Three-stage Approach of Maritime Delimitation

Broude, Haftel, & Thompson: Who Cares About Regulatory Space in BITs? A Comparative International Approach

Tomer Broude (Hebrew Univ. of Jerusalem - Law), Yoram Z. Haftel, & Alexander Thompson (Ohio State Univ. - Political Science) have posted Who Cares About Regulatory Space in BITs? A Comparative International Approach (in Comparative International Law, Anthea Roberts, Pierre-Hugues Verdier, Mila Versteeg & Paul B. Stephan eds., forthcoming). Here's the abstract:
Regulatory space has become one of the buzzwords of the debate on international investment protection law. Critics claim that investment law unduly constrains states’ regulatory space. Proponents contend that claim. This article analyzes state sensitivity to constraints on regulatory space from a comparative perspective, on the basis of quantitative analysis of textual coding of investor-state dispute settlement provisions in renegotiated bilateral investment treaties.

Hovell: Due Process in the United Nations

Devika Hovell (London School of Economics - Law) has posted Due Process in the United Nations (American Journal of International Law, forthcoming). Here's the abstract:
The legitimacy of the United Nations is essential to its effectiveness in carrying out its mandate. As UN organs exercise an increasing array of ‘governmental’ powers, it should come as no surprise that repeated failures by the UN to provide adequate due process to those affected by its decision-making has had a detrimental effect on the Organization and its activities. Yet UN organs continue to resist procedural reform, seemingly unpersuaded by reform proposals insisting that due process is unquestionably ‘a good thing’. The aim of this article is to develop procedural principles for the UN context using a normatively rich rather than formalistic approach. The problem in relying on traditional international law source methodology – drawing on ‘universally-recognized’ procedural standards from customary international human rights law or ‘general principles’ of domestic public law – is that it ignores the contextual nature of due process. The article lays the foundations of a ‘value-based’ approach to the development of due process principles for the UN context, with a focus on two sites in which the choice of procedural framework is both problematic and unresolved: the targeted sanctions context and the Haiti cholera controversy.

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

The latest volume of the Chinese (Taiwan) Yearbook of International Law and Affairs (Vol. 32, 2014) is out. Contents include:
  • Articles
    • Helmut Tuerk, The Advisory Jurisdiction of the International Tribunal for the Law of the Sea
    • Chang-fa Lo, A Private Initiative of Codification in International Law – Some Ideas of the Draft “Convention on Cross-Border Enforcement of International Mediated Settlement Agreements”
    • Walter Woon, Idealism and Realpolitik – Building the ASEAN Community
    • Jonathan Hafetz, China and the International Criminal Court: Power and Justice Revisited
    • Joshua Root, Castles in the Sand: Engineering Insular Formations to Gain Legal Rights over the Oceans
    • Takemasa Sekine, Competition Related Provisions in East Asian FTAs: Their Trends and the Possible Impact of Mega FTAs
  • Special Reports
    • Hsu-Hua Chou, Regulatory Transparency in the FTA between New Zealand and Taiwan: Text, Context and Implications
    • Man Yip, Singapore International Commercial Court: A New Model for Transnational Commercial Litigation
    • Pasha L. Hsieh, Taiwan’s WTO Trade Policy Review Reports

Monday, May 9, 2016

Tzevelekos: Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (Their) Ideology in Custom Making

Vassilis P. Tzevelekos (Univ. of Liverpool - Law) has posted Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (Their) Ideology in Custom Making (in Power of Legality: Practices of International Law and their Politics, Nikolas M. Rajkovic, Tanja Aalberts, & Thomas Gammeltoft-Hansen eds., forthcoming). Here's the abstract:
The paper suggests two arguments in relation to the role played by international courts and judges in international custom making. First, scholarship has extensively debated the methods that courts shall apply to identify the existence of custom. However, little attention has been paid to the fact that, while identifying customary rules, judges (re-)define custom as a “matrix”, i.e. the process leading to the customary rule, that is, the definition of custom as a source of law. Because interpretation is inherently subjective, custom as a source of international law may be exposed to and even be dependent on the theoretical and ideological preferences of courts/judges. As a consequence, these agents may be also proven to be influencing the content of the customary rule, that is, affect the normative output of that source. Second, de facto, judges/courts have the authority to act as a substitute to the absence of formalism in custom making. They have the authority to formally recognise the existence (i.e. legal validity) of a customary rule. In the absence of the Hartian rule of recognition in international law, we resort to agents, such as international courts, having the authority to juris dicere, i.e. to tell what the law is. Thereby, customary rules acquire an objective content and existence, irrespective of the subjective perception and understanding states may have of them.

Cataleta: Les droits de la défense devant la Cour Pénale Internationale

Maria Stefania Cataleta has published Les droits de la défense devant la Cour Pénale Internationale (L'Harmattan 2016). Here's the abstract:
Le présent ouvrage – qui se fonde principalement sur l'analyse des droits énoncés et des règles contenues dans les textes officiels de la Cour Pénale Internationale, notamment le Statut de Rome – vise à approfondir les aspects historiques et juridiques concernant les droits de la défense dans le cadre du procès devant la C.P.I. D'ailleurs, les droits de la défense ont valeur de principes inhérents à toute société démocratique car ils participent à la « découverte de la vérité ».

Newton: How the International Criminal Court Threatens Treaty Norms

Michael A. Newton (Vanderbilt Univ. - Law) has posted How the International Criminal Court Threatens Treaty Norms (Vanderbilt Journal of Transnational Law, Vol. 49, no. 2, March 2016). Here's the abstract:
This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court’s constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim nemo plus iuris transferre potest quam ipse habet, states cannot transfer jurisdictional authority to the supranational court that they themselves do not possess at the time of the alleged offenses. Upon ratification of the Rome Statute, both Afghanistan and Palestine conveyed jurisdiction to the Court, but the scope of that delegation is limited by their preexisting treaty-based constraints. American forces and Israelis remain subject to the exclusive criminal jurisdiction of their own states for criminal offenses committed on the territory covered by those binding bilateral agreements so long as those treaties remain applicable. Hence, the Rome Statute by its own terms does not automatically extend territorial jurisdiction over American forces in Afghanistan or over Israeli citizens suspected of offenses in the Occupied Territory of the West Bank or in the Gaza Strip. Yet, the Office of the Prosecutor uncritically accepts the premise that ratification of the multilateral treaty conveyed indivisible territorial jurisdiction. The ICC is not empowered to sweep aside binding bilateral agreements between sovereign states. By asserting that it has power to abrogate underlying bilateral treaties, the Court undermines ancient precepts of international law and harms the principles of treaty law. The ICC is not constructed as an omnipotent super-court with self-proclaimed universal jurisdiction based upon the presumption that the Rome Statute operates in isolation from other treaty-based constraints on sovereign prerogatives. This Article examines the conflicts between current Court assumptions and the tenets of the Rome Statute. Its final Parts dissect the foreseeable damage caused by the present policy. The conclusion asserts that the Court cannot unilaterally override the validity of existing jurisdictional treaties. The assertion of such powers would violate the Vienna Convention on the Law of Treaties and muddy the existing debates related to resolving conflicts between equally binding treaty norms.

New Issue: Climate Law

The latest issue of Climate Law (Vol. 6, nos. 1-2, 2016) is out. Contents include:
  • Special Issue: The Paris Agreement
    • Meinhard Doelle, The Paris Agreement: Historic Breakthrough or High Stakes Experiment?
    • M.J. Mace, Mitigation Commitments Under the Paris Agreement and the Way Forward
    • Sebastian Oberthür & Ralph Bodle, Legal Form and Nature of the Paris Outcome
    • Christina Voigt & Felipe Ferreira, Differentiation in the Paris Agreement
    • Alexander Zahar, The Paris Agreement and the Gradual Development of a Law on Climate Finance
    • Harro van Asselt, The Role of Non-State Actors in Reviewing Ambition, Implementation, and Compliance under the Paris Agreement
    • Benoit Mayer, Human Rights in the Paris Agreement
    • Maxine Burkett, Reading Between the Red Lines: Loss and Damage and the Paris Outcome
    • Francesco Sindico, Paris, Climate Change, and Sustainable Development
    • Torbjørg Jevnaker & Jørgen Wettestad, Linked Carbon Markets: Silver Bullet, or Castle in the Air?
    • David A. Wirth, Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement
    • Joyeeta Gupta, The Paris Climate Change Agreement: China and India
    • Marjan Peeters, An EU Law Perspective on the Paris Agreement: Will the EU Consider Strengthening its Mitigation Effort?
    • Marjan Peeters; Huizhen Chen & Zhiping Li, Contrasting Emission Trading in the EU and China: An Exploration of the Role of the Courts

Çalı: The Disciplinary Account of the Authority of International Law: Does It Stand Firm against Its External Critics?

Başak Çalı (Koç Univ. - Law) has posted an ESIL Reflection on The Disciplinary Account of the Authority of International Law: Does It Stand Firm against Its External Critics?

Bergmann: Versinkende Inselstaaten: Auswirkungen des Klimawandels auf die Staatlichkeit kleiner Inselstaaten

Nina Bergmann has published Versinkende Inselstaaten: Auswirkungen des Klimawandels auf die Staatlichkeit kleiner Inselstaaten (Duncker & Humblot 2016). Here's the abstract:
Der Klimawandel wird die Basis der modernen Territorialstaaten grundlegend verändern. Für kleine Inselstaaten wirft die Verringerung der Landmasse durch den Meeresspiegelanstieg und die Küstenerosion existenzielle Fragen auf. Die Unbewohnbarkeit infolge extremer Wetterbedingungen und fehlender Süßwasserreserven sowie die erforderliche externe Unterstützung führen erst zu einem Verlust der Hoheitsgewässer und schließlich zum völkerrechtlichen Untergang des Staates, bevor ein faktischer Untergang der Landmasse erfolgt. Die Staatengemeinschaft trifft aufgrund ihrer gemeinsamen Verantwortung für die Folgen des Klimawandels eine Fürsorgepflicht für das Inselvolk. Die zur Verfügung stehenden Völkerrechtssubjekte tragen den Interessen des Volkes nach einem Fortbestand ihrer souveränen Rechte nicht hinreichend Rechnung. Es bedarf der Schaffung eines neuen, aus einem souveränen Personenverband bestehenden Völkerrechtssubjektes – dem entterritorialisierten souveränen Personenverband (ESPV).

Voigt: Research Handbook on REDD+ and International Law

Christina Voigt (Univ. of Oslo - Law) has published Research Handbook on REDD+ and International Law (Edward Elgar Publishing 2016). Contents include:
  • Christina Voigt, Introduction: The Kaleidoscopic World of REDD+
  • Antonio G. M. La Viña, Alaya De Leon & Reginald Rex Barrer, History and Future of REDD+ in the UNFCCC: Issues and Challenges
  • Christina Voigt & Felipe Ferreira, The Warsaw Framework for REDD+: Implications for National Implementation and Results-Based Finance
  • Harro Van Asselt & Constance L. McDermott, The Institutional Complex for REDD+: A ‘Benevolent Jigsaw’?
  • Margaret A. Young, REDD+ and Interacting Legal Regimes
  • Annalisa Savaresi, The Legal Status and Role of Safeguards
  • Sébastien Jodoin, The Human Rights of Indigenous Peoples and Forest-Dependent Communities in the Complex Legal Framework for REDD+
  • Andrew Long, The Convention on Biological Diversity and REDD+
  • Charlotte Streck & Michaela Schwedeler, Addressing Drivers of Deforestation and Forest Degradation Through International Law
  • Kirsty Gover, REDD+, Tenure and Indigenous Property: The Promise and Peril of a ‘Human Rights-Based Approach’
  • Ernesto Roessing Neto & Joyeeta Gupta, REDD+ and Multilevel Governance Beyond the Climate Negotiations
  • Peter Horne, Seeing the Forest for the Trees: Getting Post-Earth Summit Forest Protection Back on Track
  • Paul Keenlyside, John Costenbader & Charlie Parker, Managing Fiduciary Risk in REDD+
  • Marie-Claire Cordonier Segger, Markus Gehring & Andrew Wardell, REDD+ Instruments, International Investment Rules and Sustainable Landscapes
  • Patricia Elias, Rediscovering Ambition, Implementation and Operationalization
  • Kristen Hite, Adjudicating Disputes Across Scales: Global Administrative Law Considerations for REDD+

Call for Papers: State Socialism, Legal Experts and the Genesis of International Criminal and Humanitarian Law after 1945

The University of Exeter, the Leipzig Centre for the History and Culture of East-Central Europe (GWZO), and the Humboldt University of Berlin have issued a call for papers for a conference on "State Socialism, Legal Experts and the Genesis of International Criminal and Humanitarian Law after 1945." Here's the call:

The University of Exeter, the Leipzig Centre for the History and Culture of East-Central Europe (GWZO), and the Humboldt University of Berlin

24 – 26 November 2016

Call for Papers Deadline: 15 June 2016

State Socialism, Legal Experts and the Genesis of International Criminal and Humanitarian Law after 1945

In the history of international law, the socialist bloc has been generally relegated to the role of roadblock to the fulfillment of the ideals of Western liberalism. Scholars of international criminal law (ICL) and international humanitarian law (IHL) have often dismissed the contributions of socialist legal initiatives as little more than Cold War propaganda and thus irrelevant to understanding the historical evolution of judicial norms and the modern international system. The establishment of different international tribunals since the collapse of the Soviet Union has only reinforced the notion that the socialist world was little more than an impediment to progress. Nevertheless, the American-led global war on terror has done much to call into question Western commitment to the laws of war.

This conference seeks to explore the role of state-socialist intellectuals, experts and governments in shaping the evolution of ICL and IHL since the end of the Second World War. Actors from Eastern Europe, the USSR, and East Asian and African socialist states actively participated in international debates regarding international legal norms, the meaning of state sovereignty, and in the negotiation of all major ICL and IHL conventions after 1945. In various cases the socialist bloc was often more enthusiastic, and timely, in supporting and ratifying international legal agreements than Western governments, even if these initiatives were inseparable from political agendas. Although they systematically opposed the creation of international tribunals, experts from socialist countries led the way in many areas, such as the codification of crimes against peace and Apartheid or the elimination of statutory limitations for major ICL offences. The socialist world participated also in debates over the international legal status of drug conflicts and revolutionary groups funded by narcotics trafficking. Deliberations on the criminalization of terrorism and the regulation of armed conflicts were closely linked to the politics of “wars of liberation” by socialist forces in Africa, South-East Asia, and Latin America. Socialist legal experts were active participants in transnational epistemic communities and engaged in broader global projects, initiatives, and mobilizations across the Cold War divide.

We encourage proposals on the following topics, and from scholars working on socialist regimes, experts and movements across the world. You are welcome to submit proposals on other themes related to this topic.

  • The contributions of the socialist countries and experts to debates on the general principles of ICL and IHL (the relationship between municipal and international law; the sources of ICL; the relationship between state sovereignty, ICL and IHL etc.).
  • Socialist challenges to western liberal humanitarian doctrines and conventions (i.e. Peace proposals as alternative to new Geneva conventions, rejection of equality of nations before the law in cases of aggressive war, etc.)
  • The role of socialist elites, legal experts, and courts in the development of specific fields of international crimes such as war crimes, genocide, crimes against humanity, and to acts of transnational criminality, such as terrorism, illicit drug trafficking, the arms trade, smuggling of nuclear materials, and trafficking in persons and slavery. The evolution of ICL and IHL discourse, ideas, and initiatives in state-socialist countries.
  • The role of the Red Cross and other humanitarian NGOs in the socialist world (i.e. North Vietnamese rejection of ICRC protection for US POWs, the creation of local Red Cross organizations in the Eastern Bloc, etc.)
  • Assessments of the continuing legacies and contributions of state socialist traditions of engagement with ICL and IHL on justice processes after 1989/91.

Abstracts of 300-500 words, together with an accompanying short CV should be submitted to Natalie Taylor ( by 15th June 2016.

The selected participants will be notified by 1st July 2016. They are then expected to submit their papers by 1st November 2016.


Funding opportunities for travel and accommodation are available, but we ask that potential contributors also explore funding opportunities at their home institutions.

The conference is organized by the University of Exeter, the Leipzig Centre for the History and Culture of East-Central Europe (GWZO), and the Humboldt University of Berlin.

This event is kindly supported by Exeter University’s Leverhulme Trust-funded project 1989 after 1989: Rethinking the Fall of State Socialism in Global Perspective, and the German Federal Ministry of Education and Research (BMBF).

Organizers: Raluca Grosescu (Exeter), Dietmar Müller (Leipzig), Marcus Payk (Berlin), Ned Richardson-Little (Exeter), Stefan Troebst (Leipzig), and Natalie Taylor (Exeter).

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 16, no. 2, 2016) is out. Contents include:
  • Special Issue: Ethics & International Criminal Law
    • Anja Matwijkiw, Introduction: Ethics in the Making – From Controversy to Criterion for International Criminal Law
    • Antonio Franceschet, The International Criminal Court’s Authority Crisis and Kant’s Political Ethics
    • Edwin Bikundo, Carl Schmitt as a Subject and Object of International Criminal Law: Ethical Judgment in Extremis
    • Kirsten J. Fisher & Cristina G. Stefan, The Ethics of International Criminal ‘Lawfare’
    • Tyler Fagan, William Hirstein & Katrina Sifferd, Child Soldiers, Executive Functions, and Culpability
    • Stefania Negri, Transplant Ethics and the International Crime of Organ Trafficking
    • Anna Oriolo, The ‘Inherent Power’ of Judges: An Ethical Yardstick to Assess Prosecutorial Conduct at the ICC
    • Anja Matwijkiw & Bronik Matwijkiw, The Value Question and Legal Doctrine: The Inescapability of Ethics
    • Leo Zaibert, Rules, Games, and the Axiological Foundations of (International) Criminal Law

Sunday, May 8, 2016

New Issue: International Affairs

The latest issue of International Affairs (Vol. 92, no. 3, May 2016) is out. Contents include:
  • Richard G. Whitman, Brexit or Bremain: what future for the UK's European diplomatic strategy?
  • Thierry Chopin & Christian Lequesne, Differentiation as a double-edged sword: member states’ practices and Brexit
  • Tim Oliver & Michael John Williams, Special relationships in flux: Brexit and the future of the US–EU and US–UK relationships
  • Matthew R.H. Uttley & Benedict Wilkinson, A spin of the wheel? Defence procurement and defence industries in the Brexit debates
  • Manni Crone, Radicalization revisited: violence, politics and the skills of the body
  • Mikael Wigell & Antto Vihma Geopolitics versus geoeconomics: the case of Russia's geostrategy and its effects on the EU
  • Sarah G. Phillips, When less was more: external assistance and the political settlement in Somaliland
  • Thomas Juneau, Iran's policy towards the Houthis in Yemen: a limited return on a modest investment
  • Yaniv Voller, The Egyptian Muslim Brotherhood and the South Sudan question: reconsidering moderation
  • Amir M. Kamel, Trade and peace: the EU and Gaddafi's final decade
  • Alex Danchev, Bug splat: the art of the drone