- Alexander E. Kentikelenis, Thomas H. Stubbs & Lawrence P. King, IMF conditionality and development policy space, 1985–2014
- Iain Hardie & Sylvia Maxfield, Atlas constrained: the US external balance sheet and international monetary power
- Adam S. Chilton, The political motivations of the United States’ bilateral investment treaty program
- Stephen B. Kaplan, Banking unconditionally: the political economy of Chinese finance in Latin America
- Mary Anne Madeira, New trade, new politics: intra-industry trade and domestic political coalitions
Saturday, September 17, 2016
Friday, September 16, 2016
- Symposium: All Emperors? On the Constituent Power of Unbound Constitutionalism
- Antje Wiener & Stefan Oeter, Introduction: Who recognizes the emperor’s clothes anymore?
- Markus Patberg, Against democratic intergovernmentalism: The case for a theory of constituent power in the global realm
- Nele Noesselt, Contested global order(s): Rising powers and the re-legitimation of global constitutionalization
- Nico Krisch, Pouvoir constituant and pouvoir irritant in the postnational order
- Hauke Brunkhorst, Constituent power and constitutionalization in Europe
- Mattias Kumm, Constituent power, cosmopolitan constitutionalism, and post-positivist law
Although Scandinavians are often celebrated as the vanguards of human rights and international law, we know little about whether courts and judges in these countries have embraced those international courts and conventions that they themselves helped establish after the Second World War. This article presents original and comprehensive data on three Scandinavian courts’ citation practice. It demonstrates that not only do Scandinavian Supreme Courts engage surprisingly little with international law, but also that there is great variation in the degree to which they have domesticated international law and courts by citing their case law. Building on this author’s previous research, it is argued that Norway sticks out as much more engaged internationally due to a solid judicial review tradition at the national level. It is also argued that Scandinavian legal positivism, has influenced a much more reticent approach to international case law than would normally be expected from this region in the world.
- Eva Kassoti, Beyond State Consent? International Legal Scholarship and the Challenge of Informal International Law-Making
- Gino J. Naldi & Konstantinos D. Magliveras, The New SADC Tribunal: Or the Emasculation of an International Tribunal
- Katharine Fortin, The Application of Human Rights Law to Everyday Civilian Life Under Rebel Control
- Cedric Ryngaert, Non-State Actors: Carving out a Space in a State-Centred International Legal System
Thursday, September 15, 2016
- September 13, 2016: Guy Fiti Sinclair (Victoria Univ. of Wellington), International Social Reform and the Invention of Development
- October 13, 2016: Neil Boister (Univ. of Waikato), The Simplification of the Law of Extradition at a Global Level: Some Reflections on the Implications of the Move towards a no Dress Rehearsal Rule
- November 16, 2016: Nikolas M. Rajkovic (Tilburg Univ.), Constitutional Blasphemy and Liminal Crisis? The International Criminal Court and its Cage of Sacramental Outrages.
- December 1, 2016: Victor Kattan (National Univ. of Singapore), Using International Law to Shape Foreign Policy: How the Obama Administration adopted Bush Preemption Doctrine on Using Force to Combat Terrorism
- December 15, 2016: Anne van Aaken (Univ. of St. Gallen), Framing Proportionality: Rationality and Cognitive Biases
European Society of International Law Research Forum
30 - 31 March 2017
Granada University Law School, Spain
Call for Papers
The Neutrality of International Law: Myth or Reality?
The 2017 ESIL Research Forum will take place on 30-31 March at the Granada University Law School.
The ESIL Research Forum is a scholarly conference that promotes engagement with research in progress by members of the Society. It has a small and intensive format. The Forum targets in particular scholars at an early stage of their careers, especially advanced PhD students and post-doctoral researchers. Approximately 15 - 20 papers will be selected from among the submissions and, during the Forum, paper presenters will receive comments on their papers from members of the ESIL Board and invited experts.
The 2017 Research Forum addresses the contested neutrality of international law. It has often been said that international law should be neutral as regards the political, economic and social systems of States. However, this ideal of neutrality can be critiqued on both normative and empirical grounds. Every legal order is based on a power structure and certain fundamental principles. Is it still possible to speak of the neutrality of international law given the growing body of principles that are said to reflect the values of the international community? And are international legal instruments designed to influence the political, economic and social order of States compatible with such neutrality?
This Forum seeks to bring together scholarly work that addresses whether international law is, or should be, neutral towards the internal political, economic and social options available to States or whether it moulds internal systems in a defined direction.
The 2017 ESIL Research Forum calls for papers addressing the theme of the neutrality of international law, including the following set of issues:
- International human rights law as a limit on States’ political choices.
- Multilateral financial assistance and economic sovereignty.
- The extent to which, if any, models of global governance include neutrality.
- Practices to promote democracy and a right to democracy under international law.
- Political, social and environmental conditionality under international economic law.
- (Non-) recognition of governments, insurgents and belligerents.
- The contents and boundaries of the principle of self-determination under present international law.
- Is the regulation of international markets eroding the European social model?
- UN practices to promote the rule of law.
- The current meaning and role of the prohibition of non-intervention.
- How does international law accommodate religious pluralism?
Papers that address any dimensions of the call, including through interdisciplinary research and methods, and through historical, theoretical or empirical approaches, will be given serious consideration. We welcome papers that propose to redefine or re-imagine our understanding of the terms of the call and their meaning in the current context.
Abstracts (of not more than 750 words) should be submitted to ESILRF_UGR2017@UGR.ES by 30 September 2016. Please include your name, email address and a one-page curriculum vitae with your abstract.
Successful applicants will be notified by email by 15 November 2016. Complete drafts of papers will be required by 15 February 2017. Papers may in due course be published in the ESIL SSRN Conference Paper Series.
Successful applicants will be expected to bear the costs of their own travel and accommodation. However, ESIL travel grants will be available to offer partial financial support to participants.
Selected speakers will be informed of several hotels that offer preferential rates to Research Forum participants. Lunch on both days will be provided, and a dinner for presenters, commentators and ESIL Board members will be hosted on the evening of 30 March.
Oxford Reports on International Law in EU Courts (ILEC) compiles and analyses key judgments of EU courts on questions of international law. Each report includes the full text of the judgment, an overview of the facts and the Court’s conclusion, and detailed analysis.
Written by a team of experts in international and European law, the headnotes highlight how EU cases contribute to our understanding and the progressive development of international law. Taken together, they show how the Court of Justice uses international law to underpin its legal reasoning and how its case law helps to shape international practice.
Through the Oxford Law Citator, case reports are seamlessly linked to reports from other jurisdictions, primary materials, and doctrine. Updated regularly with new cases, the module will be invaluable to scholars, students, and practitioners working at the interface of international and EU law. The module is led by the Leuven Centre for Global Governance Studies, KU Leuven, under the supervision of Prof. Jan Wouters and Prof. Geert De Baere.
We are currently looking for contributors in the fields of EU law and international law to participate in the project. Contributors will draft short case notes (around 1000 words) on judgments of the EU courts. Contributors may use case notes for the basis of a subsequent publication provided that it is not identical (in which consent from OUP would be needed) and due reference is made to the earlier OUP case note. Authors are compensated 45 EUR per note from Oxford University Press. In our experience, a case note takes around 2 day’s work.
If you are interested in becoming a contributor, please send us a short description of your background and experience, insofar relevant. Contributors may choose from a list of cases complied by the editors, or may suggest additional cases that fit within the theme of the project.
Thank you in advance and we are at your disposal should you have additional queries. Please email email@example.com
Prof. Dr. Jan Wouters and Prof. Dr. Geert De Baere, Editors
Dr. Jed Odermatt and Thomas Ramopoulos, Managing Editors
- Christof Heyns, Autonomous weapons systems: living a dignified life and dying a dignified death
- Noel Sharkey, Staying in the loop: human supervisory control of weapons
- Giovanni Sartor & Andrea Omicini, The autonomy of technological systems and responsibilities for their use
- Lucy Suchman & Jutta Weber, Human-machine autonomies
- Dieter Birnbacher, Are autonomous weapon systems a threat to human dignity?
- Guglielmo Tamburrini, On banning autonomous weapons systems: from deontological to wide consequentialist reasons
- Pablo Kalmanovitz, Judgment, liability, and the risk of riskless warfare
- Sarah Knuckey, Autonomous weapons systems and transparency: towards an international dialogue
- Dan Saxon, A human touch: autonomous weapons, DOD Directive 3000.09 and the interpretation of 'appropriate levels of human judgment over the use of force'
- Geoffrey S. Corn, Autonomous weapons systems: managing the inevitability of 'taking the man out of the loop'
- Eliav Lieblich & Eyal Benvenisti, The obligation to exercise discretion in warfare: why autonomous weapon systems are unlawful
- Nehal Bhuta & Stavros-Evdokimos Pantazopoulos, Autonomy and uncertainty: increasingly autonomous weapons systems and the international legal regulation of risk
- Neha Jain, Autonomous weapons systems: new frameworks for individual responsibility
- Hin-Yan Liu, Refining responsibility: differentiating two types of responsibility issues raised by autonomous weapons systems
- Nehal Bhuta, Susanne Beck & Robin Geiß, Present futures: concluding reflections and open questions on autonomous weapons systems
Alschner & Charlotin: The Growing Complexity of the International Court of Justice's Self-Citation Network
Using state-of-the-art information extraction, this article identifies 1865 references of the International Court of Justice (ICJ) to its own decisions or that of its predecessor between 1948 and 2013. We find that the ICJ self-citation network becomes increasingly complex. Citations are used more frequently and precedents grow more diverse. Two drivers fuel this development. First, jurisprudential specialization clusters citations in “classic” international law areas as the ICJ places increased emphasis on the continuity, expertise and predictability of its “settled jurisprudence” asserting its role among competing adjudicatory venues. Second, issue diversification expands citations as disputants increasingly craft their arguments around precedent making ICJ litigation more common-law like. The growth of citations adds complexity as precedent is predominantly used argumentatively to affect outcomes rather than ritualistically to pay tribute to past decisions. Although the growth of citations is an institutional achievement underscoring the Court’s continued relevance, it also creates new access-to-justice barriers.
Pelc: Making and Bending International Rules: The Design of Exceptions and Escape Clauses in Trade Law
All treaties, from human rights to international trade, include formal exceptions that allow governments to legally break the rules that they have committed to, in order to deal with unexpected events. Such institutional 'flexibility' is necessary, yet it raises a tricky theoretical question: how to allow for this necessary flexibility, while preventing its abuse? Krzysztof Pelc examines how designers of rules in vastly different settings come upon similar solutions to render treaties resistant to unexpected events. Essential for undergraduate students, graduate students, and scholars in political science, economics, and law, the book provides a comprehensive account of the politics of treaty flexibility. Drawing on a wide range of evidence, its multi-disciplinary approach addresses the paradoxes inherent in making and bending international rules.
Wednesday, September 14, 2016
This book addresses the right of indigenous peoples to live, own and use their traditional territories, and analyses how international law addresses this. Through its meticulous examination of the interaction between international law and indigenous peoples’ land rights, the work explores several burning issues such as collective rights, self-determination, property rights, cultural rights and restitution of land. It delves into the notion of past violations and the role of international law in providing for remedies, reparation and restitution. It also argues that there is a new phase in the relationship between States, indigenous peoples and private actors, such as corporations, in the making of territorial agreements.
The first edition of this ground-breaking book was published in 2006, at the time the negotiations for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) were still underway. The adoption of the Declaration in 2007 marks an important moment not only in terms of law-making, but also represents the achievement of long decades of lobbying and advocacy from indigenous peoples’ representatives. This fully revised new edition reflects on the 10 years which have followed the adoption of the UNDRIP and examines its impact regarding indigenous peoples’ land rights. Its aim is not only to assess the importance of the UNDRIP in terms of international standards, but also to reflect on the ‘maturing’ of international law in relation to indigenous peoples’ land rights. Over the last 10 years these have reached a new level of visibility and a voluminous new jurisprudence and doctrine have been developed.
This article discusses the use of digital evidence as a means of proof before the International Court of Justice (ICJ). The absence of specific Court rules and procedures for digital evidence (with the exception of Practice Direction IXbis) is not necessarily an obstacle to its production and evaluation before the ICJ, as the general evidentiary rules can also be applied to digital evidence. The article first looks at the rules on the production of documentary evidence and then examines the specific issues related to audiovisual evidence. Finally, it examines the admissibility of digital evidence unlawfully obtained by a litigant through unilateral transborder access to data. The article concludes that, even if specific regulation may be needed as to the specific way in which authenticity and accuracy of digital evidence are to be established, the particular facts of the case and the grounds of challenge can vary widely, and it is doubtful that any regulation could be suffi- ciently flexible to deal with this in advance.
Davidson: Shifting the Lenses on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos
This article revisits the seminal Alien Tort Statute (ATS) cases Filártiga v. Peña-Irala and In re Marcos Human Rights Litigation. Setting aside the dominant framework of accountability, the article explores the historical narratives produced in those cases. It exposes how Filártiga and Marcos recast as entirely foreign violence in which the U.S. executive was deeply involved, due to a combination of legal and political constraints in the exercise of a controversial form of jurisdiction. Moreover, it shows that these constraints have persisted in subsequent ATS litigation, creating a tradeoff between individual accountability and narratives about US hegemony. By offering an alternative account of ATS litigation and exposing hitherto ignored costs of familiar legal developments, this article challenges the assumption that broad assertions of jurisdiction are necessarily beneficial in human rights struggles, and urges international lawyers to pay more attention to the interplay between doctrine, political circumstances and historical narrative when considering and comparing human rights mechanisms.
When is the EU responsible under international law? Is the EU a 'special case' international organisation? The UN General Assembly's adoption of the ILC articles on the International Responsibility of International Organisations was only the catalyst for debate on this topic. In this book, the author examines the legal personality of the EU, how - if at all - its responsibility under international agreements is shared between Member States, and how the international responsibility of the EU relates to its internal responsibilities under EU law. By exploring how in practice such legal regimes as the ILC, UNCLOS, and the WTO have held the EU responsible, this book provides an innovative analysis of a fundamental aspect of the relationship between the EU and international law.
- Research Articles
- José Antonio Ocampo & Natalie Gómez-Arteaga, Accountability in International Governance and the 2030 Development Agenda
- Yew-Kwang Ng, The Importance of Global Extinction in Climate Change Policy
- Pauline Eadie, Counter-terrorism, Smart Power and the United States
- Chris Jenkins, Marta Lomazzi, Heather Yeatman & Bettina Borisch, Global Public Health: A Review and Discussion of the Concepts, Principles and Roles of Global Public Health in Today's Society
- Markus Fraundorfer, How to Confront the Threat of Ebola? Arguing for Reinforced Efforts to Promote Transnational Solidarity
- Bernard Hoekman, Subsidies, Spillovers and WTO Rules in a Value-chain World
- Catherine Long, The Opportunity Space of Overlapping Trade Regimes: Turkey, the Customs Union, and TTIP
- Denise Garcia & Monica Herz, Preventive Action in World Politics
- Civil Society, Humanitarianism and Nuclear Weapons
- Matthew Bolton & Elizabeth Minor, The Humanitarian Initiative on Nuclear Weapons: An Introduction to Global Policy's Special Section
- Matthew Bolton & Elizabeth Minor, The Discursive Turn Arrives in Turtle Bay: The International Campaign to Abolish Nuclear Weapons’ Operationalization of Critical IR Theories
- Emily Welty, The Theological Landscape of the Nuclear Nonproliferation Treaty: the Catholic Church, the World Council of Churches and the Bomb
- Ray Acheson, Foregrounding Justice in Nuclear Disarmament: A Practitioner Commentary
- Maritza Chan, Non-Nuclear Weapons States Must Lead in Shaping International Norms on Nuclear Weapons: A Practitioner Commentary
- Survey Article
- Maria Ivanova, Good COP, Bad COP: Climate Reality after Paris
- Practitioner's Special Section
- Jean-Marc Coicaud, Evaluation, International Organizations, and Global Policy: An Introduction
- Deborah Rugg, The Role of Evaluation at the UN and in the new Sustainable Development Goals: Towards the Future We Want
- Practitioners' Special Section
- Kristinn Sv. Helgason, The 2030 Agenda for Sustainable Development: Recharging Multilateral Cooperation for the Post-2015 Era
- Juha I. Uitto, The Environment-poverty Nexus in Evaluation: Implications for the Sustainable Development Goals
- Practitioner Commentaries
- Christiana Figueres, The Power of Policy: Reinforcing the Paris Trajectory
- Janos Pasztor, The Role of United Nations Secretary-General in the Climate Change Process
- Gareth Evans, Finding Common Ground: Negotiating Across Cultures on Peace and Security Issues
- Giuliana Ziccardi Capaldo, Global Law as a Constitutional Phenomenon
- Jean d’Aspremont, The Decay of Modern Customary International Law in Spite of Scholarly Heroism
- Frank J. Garcia, Globalization’s Law: Transnational, Global or Both?
- Rafael Nieto- Navia, Are Those Norms Truly Peremptory? With Special Reference to Human Rights Law and International Humanitarian Law
- Dan Plesch, Thomas G. Weiss, & Leah Owen, UN War Crimes Commission and International Law: Revisiting World War II Precedents and Practice
- Notes and Comments
- Pablo Antonio Fernández Sánchez, From Totus Orbis to Global Law
- Karen C. Sokol, East Meets West in Civil Disobedience Theory and Beyond: Lessons From Mohandas K. Gandhi and Martin Luther King, Jr.
- In Focus: Global Policies and Law
- Jeffrey Haynes, Human Rights and the Politics of Religious Freedom in Europe
- Vesselin Popovski, Win-Win Formula for Reforming the UN Security Council
- Ramesh Thakur, Balancing Competing Interests and Values: Drone Strikes as National Policy but International Crime?
- Forum - Jurisprudential Cross-Fertilization: An Annual Overview
- Antônio Augusto Cançado Trindade, Contemporary International Tribunals: Jurisprudential Cross-Fertilization in Their Common Mission of Realization of Justice
- Malgosia Fitzmaurice, A Human Right to a Clean Environment: A Reappraisal
- Francesco Seatzu, Enhancing a Principled Justificatory Model of Adjudication for the Protection of Human Rights in the Socio- Economic Sphere: The Impact of the European Social Charter on the Case Law of the European Court of Human Rights
- Joanna Jemielniak, Pressure for Transparency and the Use of Arbitration Mechanisms in International Economic Dispute Resolution,
- Cedric Ryngaert, Universal Jurisdiction over International Crimes and Gross Human Rights Violations: The Role of the Principle of Subsidiarity
Tuesday, September 13, 2016
Perrone: The International Investment Regime after the Global Crisis of Neoliberalism: Rupture or Continuity?
This article aims to show that the tools being used to recalibrate the international investment regime, in particular proportionality and corporate social responsibility, constitute continuity rather than rupture with neoliberalism and neoliberal legality. Neoliberalism has been discredited, and few actors suggest a return to self-regulation after the 2008 global economic crisis. This call for regulation, however, finds international economic law scholarship divided between those who claim that standards of review and corporate social responsibility can solve the crisis of neoliberalism, and those who believe that the problem is more profound. In the case of the international investment regime, this article suggests that the current strategy to balance this regime consists only of marginal adjustments to state’s regulatory authority, leaving intact the legal techniques that foreign investors use to control local resources. The contractualization of foreign investment relations remains today as important as it was during the neoliberal era. In this way, this article concludes that the current balancing strategy marginally changes the means and does not change the purpose provided by neoliberalism.
Constitutionalism-bashing has been en vogue for some time in international legal scholarship. International legal scholars have deployed an incredible amount of energy to discredit any pattern of argument, structure of thought, or conceptual framework that comes with constitutionalist overtones. In many respects, such anti-constitutionalist fury among international lawyers is rather bewildering given the inflated importance and weight granted to international legal constitutionalism on these occasions. Such ferocity is also questionable in the light of the reasonable awareness by most constitutionalist thinkers of the limits of their projects. What is more, variants of constitutionalism are so numerous that it is not sure that the idea really means the same for all those who are determined to repudiate it. It is against this backdrop that this chapter ventures into the origins and causes of international lawyers’ unbridled furry against what seems a rather marginal movement in international legal thought. This chapter particularly makes the argument that it is the attachment to some legal forms that has fuelled the passionate crusade against constitutionalism and that contemporary debates on international constitutionalism are nothing more than the continuation of a more fundamental discussion on the concept of international law.
EUROPEAN SOCIETY OF INTERNATIONAL LAW
NON-UN SANCTIONS AND INTERNATIONAL LAW
5 May 2017: Institute of International Relations, Prague
10 November 2017: Nottingham International Law and Security Centre, University of Nottingham
CALL FOR PAPERS FOR THE PRAGUE EVENT:
LEGALITY AND LEGITIMACY OF NON-UN SANCTIONS
In 2017, an ESIL symposium will take place, co-organized by the Institute of International Relations in Prague, Czech Republic, and the Nottingham International Law and Security Centre, University of Nottingham, United Kingdom. The symposium will consist of two oneday events, one organized on 5 May 2017 in Prague, the other on 10 November 2017 in Nottingham. The overall topic of the symposium is Non-UN Sanctions and International Law. The idea is to consider various aspects of sanctions adopted outside the UN context, by individual States, groups of States, regional organizations or other actors.
- The Prague event will focus on the legality and legitimacy of Non-UN Sanctions.
- The Nottingham event will concentrate on the effectiveness of Non-UN Sanctions and the monitoring of such sanctions by States or Non-state actors.
The ESIL Symposium is a scholarly event that promotes an intensive and targeted discussion of a selected topic of international law. Approximately 8-12 papers will be selected from among the submissions for each of the one-day events. The most original papers may be considered for publication in a special issue of the Journal of Conflict and Security Law (published by Oxford University Press) in 2018.
Call for Papers for the Prague event: Legality and Legitimacy of Non-UN Sanctions
Papers discussing any dimension of the topic of Legality and Legitimacy of Non-UN Sanctions, taking a theoretical or more policy-oriented approach, will be given serious consideration.
The organizers particularly welcome papers addressing one of the following set of issues:
- the legal ground(s) for Non-UN Sanctions under current international law;
- the relationship between UN and Non-UN Sanctions;
- the legitimate aims pursued by Non-UN Sanctions;
- the legality of Non-UN Sanctions adopted to promote fundamental interests of the international community (sanctions in reaction to the use of force or to gross human rights violations);
- the role of non-state (private) actors in Non-UN Sanctions;
- sanctions as a tool of the Common Foreign and Security Policy of the EU;
- the legality of counter-sanctions;
- potential conflicts with human rights law, trade and investment law
Abstracts (of not more than 750 words) should be submitted to firstname.lastname@example.org by 25 October 2016. Please include your name, email address and a one-page curriculum vitae with your abstract.
Successful applicants will be notified by email by 15 December 2016. Complete drafts of papers (of not more than 10,000 words) will be required by 1 April 2017.
Successful applicants will be expected to bear the costs of their own travel and accommodation. However, ESIL travel grants will be made available to offer partial financial support to participants. Speakers and participants in the symposium will be informed of hotels that offer preferential rates. Lunch and coffee breaks will be provided.
N.B. The Call for Papers for the Nottingham event will be issued in May 2017.
- B. Mcgonigle Leyh, E. Jackson, The Netherlands Institute of Human Rights (SIM) at 35: Ready to Take on New Challenges
- B. Lewis, Human Rights Duties Towards Future Generations and the Potential for Achieving Climate Justice
- I. Yordan Nugraha, Embryonic Stem Cells in an International Human Rights Framework
- H. Morten Haugen, The Right to Veto or Emphasising Adequate Decision-Making Processes? Clarifying the Scope of the Free, Prior and Informed Consent (FPIC) Requirement
What is the relationship between international law’s sources and its theories of interpretation? Challenging assumptions that the two concepts are, at best, casual acquaintances, this chapter reveals and explores a much deeper, interdependent relationship. Sources set the nature and scope of international legal interpretation by delineating its appropriate objects. Interpretation, meanwhile, operates existentially to identify what constitutes the sources of international law in the first place. The two concepts thus appear mutually constitutive across a range of doctrines, theories and authorities. Understanding these ties may offer a more nuanced image of the current international legal order. At the same time, they highlight future instrumental opportunities where efforts to change one concept might become viable via changes to the other. This chapter concludes with calls for further research on whether and how such changes might occur and asks if international lawyers should embrace (or resist) such a mutually constitutive relationship.
Monday, September 12, 2016
Executive branch officials rest the President’s authority in today’s war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 “Authorization for Use of Military Force” (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call “co-belligerency.” Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered by the statute, but also new groups that “join the fight.”
In relying on “co-belligerency,” executive branch officials maintain that the President’s authority is bound by a clearly constraining rule with an established legal pedigree, but the co-belligerency theory does not in fact deliver on either. Instead, the Executive’s position is fluid, evolving, internally contested, and – contrary to the assurance that it has a firm foundation in international law – rests on shaky doctrinal grounds. In fact, the record suggests that executive branch officials are not even unified themselves on what the concept means or where it comes from. And yet the existence of this contested idea nevertheless acts as some impediment if not a barrier to executive action. It is, in effect, a grey-ish legal space, dangerously close to what David Dyzenhaus has called a “legal grey hole,” a mere “façade” of legal constraint. This article presents a story of a creative idea that became entrenched law, but in the process lost much of its shape. The result has been neither a clear limit on Presidential power, nor an executive branch run completely amok, but rather an amorphously-defined pool of discretionary authority for the President that few if any fully understand.
- Dinah Shelton & Isabelle Cutting, If you Break it, do you own it?
- Jeroen van den Boogaard, Proportionality and Autonomous Weapons Systems
- Peter Hilpold, Jus Post Bellum and the Responsibility to Rebuild – Identifying the Contours of an Ever More Important Aspect of R2P
- Anurag Deb, Jus ad Bellum and R2P
- Ronan McDermott & Patrick Gibbons, Risk and Compliance with Normative Frameworks Relating to Disaster Management
- Laura Hofmann, Strengthening the Principle of Distinction?
- Kuyang Harriet Logo Mulukwat, Challenges of Regulating Non-International Armed Conflicts – an Examination of Ongoing Trends in South Sudan’s Civil War
- Liesbeth Zegveld, Body Counts and Masking Wartime Violence
On January 22, 2013, the Philippines submitted to arbitration its dispute with China regarding the interpretation and application of the UN Convention on the Law of the Sea in the South China Sea. China declined to participate, but did communicate its position on jurisdiction and certain other matters. On July 12, 2016, the arbitral Tribunal rendered its unanimous award. It concluded that China’s claim of historic rights to the maritime areas of the South China Sea encompassed by China’s “nine-dash line” is contrary to the Convention. Without addressing the competing claims to sovereignty over the islands, the Tribunal also determined that all of the Spratly Islands features that emerge above high tide are “rocks” that do not generate entitlement to an exclusive economic zone or continental shelf beyond a 12-mile territorial sea. In addition, the Tribunal found that China’s island-building activities in the Spratly’s, commenced after the dispute was submitted to arbitration, caused extensive damage to coral reefs that violated the environmental provisions of the Convention, and also aggravated and extended the dispute. The Tribunal held that failure to control fishing for internationally protected endangered species and failure to respect international collision regulations violated the Convention. The award also protected traditional artisanal fishing in the territorial sea of Scarborough Shoal. The perceptions of those that border and use the South China Sea will unquestionably be affected by the award’s authoritative contribution to the law of the sea. Among the award’s long term effects may be a tempering of disputes over small features at sea and the entitlements they generate, as well as a decline in gratuitous environmental disruption occasioned by attempts to artificially enhance such features to reinforce claims to maritime jurisdiction.
Have investment treaty arbitrators responded to the so-called ‘legitimacy crisis’ that has beleaguered the international investment regime in the past decade? There are strong rational choice and discursive-based reasons for thinking that arbitrators would be responsive to the prevailing ‘stakeholder mood.’ However, a competing set of legalistic and attitudinal factors may prevent arbitrators from bending towards the arc of enhanced sociological legitimation. This article draws upon a newly created investment treaty arbitration database to analyze the extent and causes of a shift in treaty-based arbitration outcomes. The evidence suggests that arbitrators are conditionally reflexive: sensitive to both negative and positive signals from states, especially vocal, influential and developed states.
Sunday, September 11, 2016
The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.
Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.
This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.
The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.
Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.