The WTO Appellate Body has established itself as a leading international tribunal in the world today. However, Uruguay Round negotiators did not intend to create a court. There is no statute creating the Appellate Body, but only a sparse article in the Understanding on Rules and Procedures Governing the Settlement of Disputes. It is remarkable how international respect for the Appellate Body as a judicial body grew very quickly in its first few years. The founding Appellate Body members were critically aware that they had to establish the reputation of this new judicial body, it had to be earned by the quality of their decisions, their actions, their comportment, and the fairness of their procedures. This is the story, written by the first Director of the Appellate Body Secretariat, of the steps they and their Secretariat took, in the early years, to establish an international judicial body that would earn the trust and respect of WTO Members and the public globally. Independence and impartiality are the sine qua non for credibility, coherency, accountability and legitimacy of any judicial body. In order to protect the independence and impartiality of the Appellate Body in the future, reforms to the terms of appointment of Appellate Body members must be considered.
Friday, August 18, 2017
- Thomas Buergenthal, Human Rights: From San Francisco to The Hague
- “Effectiveness and Legitimacy of International Law” Symposium in Honour of Christian Tomuschat
- Armin von Bogdandy, Anne Peters, & Karl-Peter Sommermann, Symposium in Honour of Christian Tomuschat
- Christian Tomuschat, Effectiveness and Legitimacy in International Law
- Karl-Peter Sommermann, Transformative Effects of the Aarhus Convention in Europe
- Malgosia Fitzmaurice, Legitimacy of International Environmental Law. The Sovereign States Overwhelmed by Obligations: Responsibility to React to Problems Beyond National Jurisdiction?
- Carsten Stahn, Daedalus or Icarus? Footprints of International Criminal Justice Over a Quarter of a Century
- Andreas Buser, Colonial Injustices and the Law of State Responsibility: The CARICOM Claim to Compensate Slavery and (Native) Genocide
- Alessandro Bufalini, On the Power of a State to Waive Reparation Claims Arising from War Crimes and Crimes against Humanity
- Stellungnahmen und Berichte
- Matthias Hartwig, Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahr 2012
CALL FOR AUTHORS
Smit & Herzog on the Law of the European Union
Herzog, Campbell & Zagel eds
This four-volume loose-leaf founded by Prof Hans Smit and Prof Peter Herzog more than 30 years ago was the first English-language and remains the most comprehensive article-by-article commentary of the treaties through which the European Union is established and operates.
The editors seek to refresh Smit & Herzog’s stable of authors on the occasion of the recent or impending retirement of several of the highly regarded academics and practitioners who have contributed to Smit & Herzog for many years. For the relevant (groups of) articles, see here.
We invite expressions of interest from holders of doctoral (or higher) degrees in European Union law (with teaching and research or practice experience).
The parameters for engagement would be (i) to prepare, over the next 12-18 months, updates or rewrites of existing commentary or in some cases submit new manuscripts on articles as yet without commentary and (ii) to commit to update said commentary (at least once) in the ensuing 3-5 years. The publication issues update releases every six months.
A very general template is to be followed in preparing the commentaries, but this still allows ample scope for each author to analyse the provisions according to her or his own expert approach.
For additional information, please contact email@example.com referencing “Smit & Herzog” in the subject line.
- Jerome A. Cohen, Establish Yourself at Thirty: My Decision to Study China’s Legal System
- Mizushima Tomonori, Law-Making Process concerning State Jurisdiction over Artworks Loaned from Abroad: Implications of the Exhibition of Treasured Masterpieces from Taipei
- Yann-huei Song, U.S. Practice Regarding Article 121(3) of UNCLOS and the South China Sea Arbitration Case
- Michael Sheng-ti Gau, The 2015 Award on Jurisdiction and Admissibility of the South China Sea Arbitration and the Insurmountable Thresholds
- Yuka Fukunaga, Infrastructure Investment in Asia and Protection under International Investment Agreements
- Michelle Dy, Coordinating Games: The Challenge of Pursuing a Financial Integration Project in ASEAN
- Special Reports
- Nigel N.T. Li, Amicus Curiae Submission by the Chinese (Taiwan) Society of International Law in the South China Sea Arbitration: An Introductory Note
- Der-Chin Horng, Taiwan Practices in the WTO Main Activities: 2002-2015
- Pasha L. Hsieh & Pei-Lun Tsai, The 2015 Ma-Xi Meeting in Singapore
Thursday, August 17, 2017
China’s accession to the WTO is widely understood as an important step towards greater global market liberalization and integration. However, this step has been also perceived in an ambivalent way. On one hand, the global market liberalization would have never been really completed without participation of such a major player as China. On the other hand, many observers articulated concerns about China’s ability to integrate into the WTO system. In order to tackle the issues of concern, attention was paid mainly to technical issues, which were seen as a precondition for China’s successful integration into the WTO system. For this reason, topics related with market integration, such as e.g. liberalization requirements, as well as topics related with transparency and legal and administrative policies, necessary for securing of just and equitable resolution of commercial and trade disputes, were initially addressed.
Still, in the light of the changing and evolving geopolitical climate, it has become more evident that Non-Trade Concerns (NTCs) might be another multifaceted topic requiring special attention. EU and US, becoming increasingly aware of the fact that competition of economies with different level of development might result not only in job losses in developed countries due to relocation of production, but also to general deterioration of environmental, social and health standards, have accentuated the importance of a global consensus on NTCs and their inclusion into EU and US external policies concerning foreign trade and investment. Civil society from the developed world, in general, is afraid that further liberalization may endanger public policies at different levels: environmental protection and sustainable development, good governance, cultural rights, labor rights, public health, social welfare, national security, food security, access to knowledge, consumer protection, and animal welfare.
On the other hand, coalition consisting of China and other BRICS countries as well as other developing countries gaining more influence in the WTO and other international fora has been able to articulate discontent with measures adopted by developed countries to address NTCs. The clash between interests of developed and developing countries reveals potential unfairness and inconsistencies of the international system, including the international trade system, which needs to undergo a deep reform to integrate the developing countries’ needs.
Many of the measures that developed countries introduce to address NTCs were received by developing countries with suspicion, resistance, and even hostility. Developing countries, including China, doubt the authenticity of such considerations and think they might actually hide protectionist purposes. Additionally, developing countries see these measures as an indirect form of western imperialism whereby they will have no choice but to comply with the social, ethical, and cultural values of the developed states. Nonetheless, not only has China undergone serious reforms and adopted new regulations to address the issue of NTCs, but the country has even begun to play an important role in the international negotiations on NTCs—such as those on climate change, energy, culture, and so on.
However, at the same time it provides an opportunity for China and other developing countries to defend their interests in a constructive dialogue with developed countries and restructure the system in order to find a necessary balance between globalization and sustainable development or to shape it according to their interests.
International legal frameworks exist to formalize interactions between countries, supposedly muting the need for behind-the-scenes bargaining in the event of disagreements. Yet diplomacy persists, and sometimes escalates, even after countries invoke dispute settlement mechanisms. What is the purpose and impact of diplomatic engagement in the presence of international law? To date, the answer to this question has been elusive due to a shortage of both granular, systematic data on diplomatic interaction and precise theories about its effects. This paper redresses these deficits by exploring the relationship between diplomacy and the settlement of international trade disputes prior to a final legal judgment. We argue that even when states resort to international legal mechanisms, they still engage in a considerable amount of diplomacy outside of those processes. But the effects of diplomatic engagement vary depending on pre-existing state affinity. Specifically, we argue that diplomatic interactions help states that have dissimilar policy preferences resolve their disputes before they reach a formal ruling. By contrast, diplomacy has minimal impact on dispute settlement in relationships between countries with higher affinity. To establish this argument, we focus on the diplomatic interactions behind litigation involving the United States (US) at the World Trade Organization (WTO).
- Sebastian Schutte, Violence and Civilian Loyalties: Evidence from Afghanistan
- Miguel R. Rueda, Popular Support, Violence, and Territorial Control in Civil War
- Cullen S. Hendrix & Idean Salehyan, A House Divided: Threat Perception, Military Factionalism, and Repression in Africa
- Michael C. Horowitz, Paul Poast, & Allan C. Stam, Domestic Signaling of Commitment Credibility: Military Recruitment and Alliance Formation
- Daniel McCormack & Henry Pascoe, Sanctions and Preventive War
- Timothy M. Peterson, Export Diversity and Human Rights
- Jeff Carter, The Political Cost of War Mobilization in Democracies and Dictatorships
- Author Exchange
- Philip Paolino, Surprising Events and Surprising Opinions: The Importance of Attitude Strength and Source Credibility
- Christopher Gelpi, The Surprising Robustness of Surprising Events: A Response to a Critique of “Performing on Cue”
Droubi: Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations
The paper looks at resolutions and operational activities of the UN as parts of processes of institutionalisation of nascent norms of CIL. It argues that institutionalisation clarifies the scope of the norm and of its application; and improves mechanisms of persuasion and compliance with the norm, thereby increasing social pressure on resilient States. Hence, institutionalised norms have a higher potential to affect both the behaviour and attitude of States than noninstitutionalised norms. Crucially, the paper argues that UN resolutions and activities foster processes of institutionalisation of new norms. Although the work acknowledges that is not possible to foresee whether a norm will crystallise as CIL, it suggests that its potential increases if it matches and draws on the normative framework provided by the UN Charter; if it does not excessively challenge the predominant expectations of States, and if UN organs work together in promoting it.
- Focused Theme: ISIS & Implications for Human Rights and Humanitarian Law
- Nazir Afzal, Increasing the Civic Society Contribution to Tackling Extremism: We need a new Civic Response to Tackle Extremism
- Michael Wood, Legal Aspects of the Use of Force against ISIS
- Mohamed Badar, The Self-Declared Islamic State and Ius ad Bellum under Islamic International Law
- Ignacio De La Rasilla, An International Counter Terrorism Court in Nuce in the Age of International Adjudication?
- Silvia Venier, & Denise Venturi, ISIS and the violations of human rights of sexual minorities: Is the international community responding adequately?
- General Articles
- Matthias Vanhullebusch, Fighting for Self-Determination: On equality of peoples and belligerents
- Viviane Weng, Domestication of International Human Rights Norms in Taiwan: A dialogue through conventionality review under construction
- Maartje de Vissier, Cultivating Judicial Conversations on Human Rights Protection under the Auspices of a Regional Rights Regime
- Rawa Al-Makky, The League of Arab States and the Arab Charter on Human Rights: an assessment
- Recent Developments & State Practice
- Eunwon Yi, Analysis of the Second Universal Periodic Review of the DPRK: Universality and Politicisation of Human Rights
- Guo Sanzhuan, Independence of National HR Instiutions and linkage between International law and domestic law: A case study of National Human Rights Commission of Korea
- Alessandra La Vaccara, IHL’s Achilles Heel: Ensuring compliance after the 32nd International Conference of the Red Cross and Red Crescent
Wednesday, August 16, 2017
- Josef Braml, Die Geoökonomie der USA: Globales Wettrüsten gegen China
- Abhandlungen: Freihandel – Chance und / oder Risiko für eine Nachhaltige Weltordnung?
- David Betge, Nahrung, Sicherheit und Freihandel: Wie globale Paradigmen und Interdependenzen den Policy Space nationaler Akteure einschränken
- Bernhard Rinke, Die „Transatlantische Handels- und Investitionspartnerschaft“ (TTIP) und Freihandelszonen in der Kontroverse – Instrumente des Friedens oder Förderung des Krieges?
- Andreas Eibelshäuser, Pragmatismus und Gerechtigkeit der Internationalen Investitions-Schiedsgerichtsbarkeit
- Abhandlungen: Flucht und Zuflucht – Friedenswissenschaftliche Perspektiven
- Claus Dieter Classen, Rückkehr der Grenzkontrollen in Europa – Sicherung der nationalen Identität oder Zeichen von nationalem Egoismus?
- André Bank, Christiane Fröhlich, & Andrea Schneiker, Migration aus der Gewalt, als Gewalt und in die Gewalt Konzeptionelle Überlegungen zum Zusammenhang von menschlicher Mobilität und politischer Gewalt
- Norbert Frieters-Reermann, Die Nicht-Teilhabe von Geflüchteten als strukturelle und kulturelle Gewalt Analysen und Anregungen für die umfassende Inklusion von Geflüchteten
- Dong Jin Kim, Building Relationships Across the Boundaries: The Peacebuilding Role of Civil Society in the Korean Peninsula
- Kristian Hoelscher, Jason Miklian & Håvard Mokleiv Nygård, Conflict, Peacekeeping, and Humanitarian Security: Understanding Violent Attacks Against Aid Workers
- Special Section: African Peace Efforts: Norms and Structures
- Bridget Conley, The ‘Politics of Protection’: Assessing the African Union’s Contributions to Reducing Violence Against Civilians
- Allard Duursma, Partnering to Make Peace: The Effectiveness of Joint African and Non-African Mediation Efforts
- Ann Fitz-Gerald, Towards a common doctrine for African Standby Force-led peace operations
- Solomon Ayele Dersso, Defending Constitutional Rule as a Peacemaking Enterprise: The Case of the AU’s Ban of Unconstitutional Changes of Government
- Mulugeta Gebrehiwot Berhe, The Norms and Structures for African Peace Efforts: The African Peace and Security Architecture
- Valerie M. Hudson & Hilary Matfess, In Plain Sight: The Neglected Linkage between Brideprice and Violent Conflict
- Scott D. Sagan & Benjamin A. Valentino, Revisiting Hiroshima in Iran: What Americans Really Think about Using Nuclear Weapons and Killing Noncombatants
- Jacqueline L. Hazelton, The “Hearts and Minds” Fallacy: Violence, Coercion, and Success in Counterinsurgency Warfare
- Geoffrey Swenson, Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed
- Ariane M. Tabatabai & Annie Tracy Samuel, What the Iran-Iraq War Tells Us about the Future of the Iran Nuclear Deal
- Mark Kramer & Joshua R. Itzkowitz Shifrinson, NATO Enlargement—Was There a Promise?
- Brendan Rittenhouse Green, Austin Long, Matthew Kroenig, Charles L. Glaser, & Steve Fetter, The Limits of Damage Limitation
Secret international agreements have a bad reputation. Ever since states misused secret agreements during World War I, commentators have condemned these agreements as pernicious and destabilizing to international peace and security. The concerns triggered by these agreements were so salient that states crafting the League of Nations Covenant and then the United Nations Charter included provisions intended to eliminate their use. Conventional wisdom holds that the Charter largely achieved this goal - that secret agreements are rare, and that we should celebrate this. But the story is wrong, descriptively and normatively. Secret international commitments are pervasive today, and they are not always problematic.
This article sets out to describe and defend — with certain qualifications — the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are — counter-intuitively, perhaps — consistent with the U.N. Charter, and in some cases actually advance the Charter’s purposes.
Certain secret commitments remain troubling or deeply opaque, however, and so this article also identifies various existing dynamics in the U.S. system that might assuage concerns about the abuse of secret commitments and proposes procedural protections that all states might develop to minimize the democratic challenges posed by secret commitments. Further, a more complete understanding of secret commitments provides new insights into the literature on executive power and lawmaking, government secrecy, and compliance with international agreements. In particular, the fact that the secret commitments studied here largely respect the limits of international and domestic law sheds light on the debate about the extent to which the Executive is bound — and perceives itself to be bound — by law in the national security realm.
Tuesday, August 15, 2017
Today the majority of the armed conflicts around the world are fought between States and armed groups, rather than between States. This changed conflict landscape creates an imperative to clarify the obligations of armed groups under international law. While it is generally accepted that armed groups are bound by international humanitarian law, the question of whether they are also bound by human rights law is controversial. This book brings significant new understanding to the question of whether and when armed groups might be bound by human rights law. Its conclusions will benefit international law academics, legal practitioners, and political scientists and anthropologists working on issues related to rebel governance and civil wars.
This book addresses the debate on this topic by employing a theoretical, historical, and comparative analysis that spans international humanitarian law, international criminal law, and international human rights law. Embedding these different perspectives in public international law, this book brings several key points of clarification to the legal framework. Firstly, the book draws upon social science literature on armed conflict to present a new viewpoint on the role that human rights law plays vis-à-vis international humanitarian law in non-international armed conflicts. Secondly, the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. It brings illumination to these topics by combining historical and comparative research on belligerency, insurgency, and international humanitarian law with a theoretical analysis of legal personality under international law. In the final part of the book, the author tests the four most utilised theories of how armed groups are bound by human rights law, examining whether armed groups can be bound by virtue of (i) treaty law (ii) control of territory (iii) international criminal law and (iv) customary international law. In the book's conclusions, the author presents final remarks that are designed to provide concrete guidance on how the issue of armed groups and human rights law can be dealt with more thoroughly in practice.
Monday, August 14, 2017
- Volume 385
- Franklin Berman, Why Do We Need a Law of Treaties? Inaugural Lecture
- Fabrizio Marrella, Protection internationale des droits de l’homme et activités des sociétés transnationales
Sunday, August 13, 2017
Morin, Pauwelyn, & Hollway: The Trade Regime as a Complex Adaptive System: Exploration and Exploitation of Environmental Norms in Trade Agreements
While the trade regime is often analyzed under the metaphoric assumptions of Newtonian mechanics, we propose an alternative, more organic representation. We argue that the trade regime seems to evolve as a complex adaptive system, at the edge of order and chaos. Drawing from a dataset of 280 different types of environmental provisions found in 680 trade agreements, we show how both the trade regime and the norms contained therein unfold by remaining stable (but not static) and dynamic (but not chaotic). Trade negotiators simultaneously explore new grounds by introducing legal innovations and exploiting known territories by adopting existing norms. Our analysis suggests that, even as the regime grows in the number and length of agreements, there are exploratory and exploitative processes at work. These twin processes can explain that the trade regime appears neither more fragmented/heterogeneous nor more centralized/homogenous than it was fifty years ago, despite its substantial expansion. This hypothesis is at the core of the research agenda that this paper lays out.
Saturday, August 12, 2017
Rowen: “We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia
This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.
- Life in a war-torn city: Residents of Aleppo tell their stories
- Interview with Eyal Weizman: Professor at Goldsmiths, University of London, Director of the Centre for Research Architecture and Director of Forensic Architecture*
- Michael Evans, Future war in cities: Urbanization's challenge to strategic studies in the 21st century
- Mark Zeitoun & Michael Talhami, The impact of explosive weapons on urban services: Direct and reverberating effects across space and time
- Antônio Sampaio, Before and after urban warfare: Conflict prevention and transitions in cities
- ICRC Q&A on the issue of explosive weapons in populated areas
- Isabel Robinson & Ellen Nohle, Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas
- Eric Talbot Jensen, Precautions against the effects of attacks in urban areas
- Nathalie Durhin, Protecting civilians in urban areas: A military perspective on the application of international humanitarian law
- The ICRC's approach to urban services during protracted armed conflict: Q & A with Evaristo de Pinho Oliveira
- Lucy Earle, Addressing urban crises: Bridging the humanitarian–development divide
- Sahr Muhammedally, Minimizing civilian harm in populated areas: Lessons from examining ISAF and AMISOM policies
- Samuel Longuet, Permitted for law enforcement purposes but prohibited in the conduct of hostilities: The case of riot control agents and expanding bullets
- Jeanne Ward, It's not about the gender binary, it's about the gender hierarchy: A reply to “Letting Go of the Gender Binary”
- Christoph Hensch, Twenty years after Novye Atagi: A call to care for the carers
- Chris Hesketh, Passive revolution: a universal concept with geographical seats
- Matthew S. Weinert, Grounding world society: Spatiality, cultural heritage, and our world as shared geographies
- Ryder McKeown, International law and its discontents: Exploring the dark sides of international law in International Relations
- Stefan Borg, The politics of universal rights claiming: Secular and sacred rights claiming in post-revolutionary Tunisia
- Keith Smith, The realism that did not speak its name: E. H. Carr’s diplomatic histories of the twenty years’ crisis
- Björn Jerdén, Security expertise and international hierarchy: the case of ‘The Asia-Pacific Epistemic Community’
- Mark Beeson, Alternative realities: Explaining security in the Asia-Pacific
- Steven Bernstein & Hamish van der Ven, Best practices in global governance
- Michelle Bentley, The intervention taboo(s): Strategy and normative invalidation
- Special Issue: Environmental Crimes
- Lorraine Elliott, Cooperation on Transnational Environmental Crime: Institutional Complexity Matters
- Giovanni Broussard, Building an Effective Criminal Justice Response to Wildlife Trafficking: Experiences from the ASEAN Region
- Gregory Rose, Australian Law to Combat Illegal Logging in Indonesia: A Gossamer Chain for Transnational Enforcement of Environmental Law
- Michael Faure, The Development of Environmental Criminal Law in the EU and its Member States
- Ricardo Pereira, Towards Effective Implementation of the EU Environmental Crime Directive? The Case of Illegal Waste Management and Trafficking Offences
- Regular Article
- Joonas Alaranta & Topi Turunen, Drawing a Line between European Waste and Chemicals Regulation
- Case Note
- Fernando Dias Simões, Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy
Friday, August 11, 2017
This essay addresses three related questions about international law’s future: Will the world continue to seek multilateral solutions and promote global integration? What is the future of highly contested areas of international law, such as the promotion of human rights and the accountability of states and individuals for atrocities? And will issues that are as yet unregulated or poorly guided by international law – cyber-security, the use of drones, and global climate change – present new frontiers for international law? These questions provide different ways to investigate whether the international liberal order – the political a commitment to multilateralism, human rights and the rule of law – can survive if America turns its back on these values. Invoking John Ruggie’s argument that international regimes fuse power and social purpose, I argue that international law can survive the removal of US support, but it cannot survive if the social purpose of the international liberal order loses support. Based on an analysis of international law’s history, and drawing on numerous social science studies, I argue that the policy positions of President Trump are a neither a major break from past US politics, nor is the Trump Administration likely to meaningfully affect existing or future prospects for international law. The larger threat would be a decline in popular support for the rule of law, which is why global populism more than the policy positions of the current US Administration present the greater threat to the international liberal order.
Chen: Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice
Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice, as the name suggests, focuses on the Chinese courts’ application of the ‘public policy’ exception stipulated in Article V of the New York Convention. Whether a foreign arbitral award can be recognised and enforced by the Chinese courts has always been on the top of foreign parties’ list of concerns. As the ‘public policy’ exception is more uncertain than most other legal concepts, it tends to be argued when other points fail. This book – a major contribution to understanding theory and practice related to the public policy exception – provides a comprehensive understanding on how the term ‘public policy’ specified in Article V of the New York Convention has been interpreted and applied by the Chinese courts.