Thursday, October 27, 2016

Happold & Eden: Economic Sanctions and International Law

Matthew Happold (Univ. of Luxembourg - Law) & Paul Eden (Univ. of Sussex - Law) have published Economic Sanctions and International Law (Hart Publishing 2016). Contents include:
  • Matthew Happold, Economic Sanctions and International Law: An Introduction
  • Alexander Orakhelashvili, Sanctions and Fundamental Rights of States: The Case of EU Sanctions Against Iran and Syria
  • Pierre-Emmanuel Dupont, Unilateral European Sanctions as Countermeasures: The Case of the EU Measures Against Iran
  • Antonios Tzanakopoulos, State Reactions to Illegal Sanctions
  • Matthew Happold, Targeted Sanctions and Human Rights
  • Clemens A Feinäugle, UN Smart Sanctions and the UN Declaration on the Rule of Law
  • Paul Eden, United Nations Targeted Sanctions, Human Rights and the Office of the Ombudsperson
  • Luca Pantaleo, Sanctions Cases in the European Courts
  • Rachel Barnes, United States Sanctions: Delisting Applications, Judicial Review and Secret Evidence
  • Penelope Nevill, Sanctions and Commercial Law

Wednesday, October 26, 2016

Bradley: The World Reimagined: Americans and Human Rights in the Twentieth Century

Mark Philip Bradley (Univ. of Chicago - History) has published The World Reimagined: Americans and Human Rights in the Twentieth Century (Cambridge Univ. Press 2016). Here's the abstract:
Concerns about rights in the United States have a long history, but the articulation of global human rights in the twentieth century was something altogether different. Global human rights offered individuals unprecedented guarantees beyond the nation for the protection of political, economic, social and cultural freedoms. The World Reimagined explores how these revolutionary developments first became believable to Americans in the 1940s and the 1970s through everyday vernaculars as they emerged in political and legal thought, photography, film, novels, memoirs and soundscapes. Together, they offered fundamentally novel ways for Americans to understand what it means to feel free, culminating in today's ubiquitous moral language of human rights. Set against a sweeping transnational canvas, the book presents a new history of how Americans thought and acted in the twentieth-century world.

Kolb: Theory of International Law

Robert Kolb (Univ. of Geneva -Law) has published Theory of International Law (Hart Publishing 2016). Here's the abstract:
This book seeks to analyse various aspects of international law, the link being how they structure and marshal the different forces in the international legal order. It takes the following approaches to the matter. First, an attempt is made to determine the fundamental characteristics of international law, the forces that delineate and permeate its applications. Secondly, the multiple relations between law and policy are analysed. Politics are a highly relevant factor in the implementation of every legal order (and also a threat to it); this is all the more true in international law, where the two forces, law and politics, have significant links. Thirdly, the discussion focuses on a series of fundamental socio-legal notions: the common good, justice, legal security, reciprocity (plus equality and proportionality), liberty, ethics and social morality, and reason.

New Volume: Austrian Review of International and European Law

The latest volume of the Austrian Review of International and European Law (Vol. 18, 2013) is out. Contents include:
  • Lance Bartholomeusz, Settling Accounts: Could United Nations Humanitarian Agencies Make International Claims for the Relief They Provide?
  • Markus P. Beham & Ralph R.A. Janik, The Jar of Pandora? Striking a Balance between the ‘Responsibility to Protect’ and the Stability of International and Regional Peace and Security in Libya
  • Jane Alice Hofbauer, Foreign Investments Meet Free, Prior and Informed Consent (FPIC) – Whose Sovereignty?
  • Karin Traunmüller, ‘Kin-States’ and ‘Extraterritorial Naturalization’ – Some Reflections Under International Law

Tuesday, October 25, 2016

Peters: Corruption as a Violation of International Human Rights

Anne Peters (Max Planck Institute for Comparative Public Law and International Law) has posted Corruption as a Violation of International Human Rights. Here's the abstract:

It is a fact that states with a high corruption rate (or a high corruption perception) are at the same time those with a poor human rights record. Beyond this coincidence, the paper seeks to identify a concrete legal relationship between corruption and deficient human rights protection. This is in practical terms relevant, because the extant international norms against corruption have so far yielded only modest success; their implementation could be improved with the help of human rights arguments and instruments.

This paper therefore discusses a dual question: Can corrupt behaviour be conceptualised as a human rights violation? Should it be categorised and sanctioned as a human rights violation? My answer is that such a reconceptualization is legally sound, and that its normative and practical benefits outweigh the risk of reinforcing the anti-Western skepticism towards the fight against corruption. This assessment leads to the practice recommendation of a mutual mainstreaming of the international anti-corruption and human rights procedures. I conclude that the re-framing of corruption not only as a human right issue but as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments.

Carreau & Marrella: Diritto internazionale

Dominique Carreau (Université Paris 1 Panthéon-Sorbonne - Law) & Fabrizio Marrella (Università Ca’ Foscari Venezia - Law; European Inter-University Center for Human Rights and Democratisation) have published Diritto internazionale (Giuffrè Editore 2016). Here's the abstract:
Questo libro esamina,con un taglio teorico-pratico, le principali tematiche del diritto internazionale contemporaneo consentendo agli operatori giuridici di varia estrazione professionale un approccio di immediata comprensione per la ricerca e l'applicazione delle norme della vita di relazione internazionale, norme utili anche e soprattutto per la trattazione delle controversie dinanzi alle Magistrature superiori o in un arbitrato internazionale. L'analisi giuridica viene integrata da vari esempi tratti dalla prassi vigente in materia di formazione, accertamento e applicazione del diritto internazionale e transnazionale con riferimento alle principali caratteristiche delle organizzazioni internazionali e dei non State actors. In tale ottica, vengono esaminate varie questioni circa - tra l'altro- i trattati internazionali, il trattamento degli stranieri e le loro attività economiche, i diritti umani, le immunità giurisdizionali, il divieto dell'uso della forza, i meccanismi di soluzione delle controversie internazionali. Il volume è corredato da tavole analitiche per consentire ogni approfondimento dottrinale e giurisprudenziale nonché da schede di sintesi per facilitare l'apprendimento della materia. Per queste sue peculiari caratteristiche, il libro si rivolge, sia agli studenti per una efficace preparazione dell'esame o di un concorso, sia ad ogni operatore giuridico, compresi gli avvocati d'affari, i magistrati, i dottori commercialisti ed i notai che intendano affinare la loro cultura giuridica o aggiornare la loro preparazione professionale.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 31, no. 3, Fall 2016) is out. Contents include:
  • Special Focus Issue: Procedural Issues in Investment Treaty Arbitration
    • Gabriel Bottini & Chester Brown, Introductory Note: Procedural Issues in Investment Treaty Arbitration
    • Silvina S. González Napolitano, Medidas provisionales en la solución de controversias de inversión
    • Koh Swee Yen, The Use of Emergency Arbitrators in Investment Treaty Arbitration
    • Daniel Kalderimis, The Authority of Investment Treaty Tribunals to Issue Orders Restraining Domestic Court Proceedings
    • Hanno Wehland, The Regulation of Parallel Proceedings in Investor-State Disputes
    • Sam Luttrell, Testing the ICSID Framework for Arbitrator Challenges
    • Esmé Shirlow, Dawn of a new era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration
    • Nigel Blackaby & Alex Wilbraham, Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration
    • Audley Sheppard, The Approach of Investment Treaty Tribunals to Evidentiary Privileges
    • Lars Markert, Summary Dismissal of ICSID Proceedings
    • Gabriel Bottini, Present and Future of ICSID Annulment: The Path to an Appellate Body?
  • Note
    • Christoph Schreuer, The Development of International Law by ICSID Tribunals

New Issue: International Affairs

The latest issue of International Affairs (Vol. 92, no. 5, September 2016) is out. Contents include:
  • Sara E. Davies & Belinda Bennett, A gendered human rights analysis of Ebola and Zika: locating gender in global health emergencies
  • Alice Hills, Off-road policing: communications technology and government authority in Somaliland
  • Kristan Stoddart, UK cyber security and critical national infrastructure protection
  • Robert Falkner, The Paris Agreement and the new logic of international climate politics
  • Niv Farago, Washington's failure to resolve the North Korean nuclear conundrum: examining two decades of US policy
  • Michele Acuto & Steve Rayner, City networks: breaking gridlocks or forging (new) lock-ins?
  • Robin Allers, The framework nation: can Germany lead on security?
  • Kristof Titeca & Daniel Fahey, The many faces of a rebel group: the Allied Democratic Forces in the Democratic Republic of Congo
  • Ruike Xu, Institutionalization, path dependence and the persistence of the Anglo-American special relationship

Kreß & Barriga: The Crime of Aggression: A Commentary

Claus Kreß (Universität zu Köln - Law) & Stefan Barriga (Ministry for Foreign Affairs, Principality of Liechtenstein) have published The Crime of Aggression: A Commentary (Cambridge Univ. Press 2016). Here's the abstract:
The 2010 Kampala Amendments to the Rome Statute empowered the International Criminal Court to prosecute the 'supreme crime' under international law: the crime of aggression. This landmark commentary provides the first analysis of the history, theory, legal interpretation and future of the crime of aggression. As well as explaining the positions of the main actors in the negotiations, the authoritative team of leading scholars and practitioners set out exactly how countries have themselves criminalized illegal war-making in domestic law and practice. In light of the anticipated activation of the Court's jurisdiction over this crime in 2017, this work offers, over two volumes, a comprehensive legal analysis of how to understand the material and mental elements of the crime of aggression as defined at Kampala.

Saul: Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights

Matthew Saul (Univ. of Oslo - Pluricourts) has posted Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights (International Journal of Human Rights, forthcoming). Here's the abstract:
The quality of parliamentary process has been a relevant factor for the European Court of Human Rights (ECtHR or the Court) in a number of recent judgments. This article asks: to what extent could the technical purpose for assessing parliamentary process – margin of appreciation and/or proportionality analysis – structure the assessment? The analysis combines study of the ECtHR’s practice with theory on the margin of appreciation and the proportionality test. Four cases are selected to represent different ways in which parliamentary process has been dealt with by the Court: Animal Defenders International v. UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; and Parrillo v. Italy. The main argument is that the Court has been hazy about the technical purpose that reference to parliamentary process is serving in its reasoning. This has affected the coherence of reasoning within cases and the development of a general doctrine on the assessment of parliamentary process. Judges interested in the legitimacy of the Court and in favour of placing value in parliamentary process should work towards clearer explanation of the technical purpose it serves within the Court’s reasoning.

Murphy: The Eritrean-Ethiopian War (1998-2000)

Sean D. Murphy (George Washington Univ. - Law) has posted The Eritrean-Ethiopian War (1998-2000) (in International Law and the Use of Force: A Case-Based Approach, Olivier Corten & Tom Ruys eds., forthcoming). Here's the abstract:

The Eritrean-Ethiopian War of 1998-2000 was a tragic conflict that resulted in a widespread loss of life, as well as other injury and damage, for these two developing countries in the Horn of Africa. A unique feature of this incident is that the December 2000 Algiers agreement ending the conflict provided for the establishment of an Eritrea-Ethiopia Claims Commission (claims commission), charged with deciding claims for loss, damage or injury resulting from a violation of international law committed by either country. One of Ethiopia’s claims was that Eritrea initiated the armed conflict by an illegal use of force. Thus, the facts and legal positions advanced by the two sides were formally litigated before, and decided by, a five-member arbitral commission of arbitrators of third-country nationalities, which concluded that Eritrea’s conduct at the outbreak of the armed conflict constituted a violation of Article 2(4) of the UN Charter.

This chapter in a volume containing a series of case studies argues that the claims commission’s jus ad bellum findings are of considerable precedential value. The commission considered and addressed several important and complicated issues concerning law on the resort to force, self-defense, and reparation. Rarely have such claims been litigated and rarer still have decisions been issued on these matters. There are various aspects of the claims commission’s findings that can be questioned, if not criticized, but given the limited resources and time frame under which the commission operated, the commission performed extremely well.

The claims commission concluded that a large-scale, transborder military operation constituted a violation of Article 2(4) of the UN Charter, a finding that confirms conventional jus ad bellum doctrine. Further, the commission made important findings with respect to the law on self-defense, specifically that: (1) a State may not use armed force to seize disputed territory peacefully occupied by another State; (2) a State may not use armed force in response to geographically-limited clashes between patrols along an unmarked and disputed border; and (3) a State may not use armed force solely in reaction to another State’s declaration that it will act in self-defense. Finally, the commission analyzed the conditions under which reparation should be provided for a violation of the jus ad bellum, advancing a proximate cause standard as well as other standards when calculating compensation for various categories of harm.

The most limiting feature of the claims commission’s findings ultimately may be their parsimony; it is not easy to ascertain from the awards the scope and nature of the evidence upon which the commission’s conclusions were based, which in turn may cause difficulties for future tribunals that attempt to rely upon those conclusions with respect to entirely different fact patterns and evidentiary foundations.

Monday, October 24, 2016

Meisenberg: Auf dem Wege zu einem Unternehmensvölkerstrafrecht?

Simon M. Meisenberg has published Auf dem Wege zu einem Unternehmensvölkerstrafrecht?: Eine kritische Würdigung der "New TV S.A.L."-Entscheidung des Sondergerichtshofs für den Libanon (Lit-Verlag 2016). Here's the abstract:
The Appeals Chamber of the Special Tribunal for Lebanon has issued a controversial decision in the New TV S.A.L./Al Khayat case in October 2014, holding that it may prosecute cooperations for contempt of court under its rules of procedure and evidence. This is the first decision of an international criminal tribunal to accept corporate criminal responsibility before an international tribunal. Meisenberg critically examines the reasoning of this decision and assesses whether the decision will have an impact on any future discussion of corporate liability in international criminal law.

Job Opening: Tilburg (Postdoctoral Researcher)

The Department of Public Law, Jurisprudence and Legal History at Tilburg University is seeking for a full-time postdoctoral researcher who will be one of the main researchers in the project "Analyzing Coherence in Law Through Legal Scholarship" (CLLS), funded by the European Research Council. The advertisement is here.

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 33, no. 5, 2016) is out. Contents include:
  • Catharine Titi, Most-Favoured-Nation Treatment: Survival Clauses and Reform of International Investment Law
  • Dalma R. Demeter & Kayleigh M. Smith, The Implications of International Commercial Courts on Arbitration
  • William Kenny, Transparency in Investor State Arbitration
  • Steven C. Young, Foreign Direct Investment Disputes with Unrecognized States: FDI Arbitration in Kosovo
  • José Alberro, Should Expropriation Risk Be Part of the Discount Rate?
  • Louise Reilly, Recent Developments in International Arbitration in Ireland and the United Kingdom
  • Joseph C. Ifebunandu, Settling Disputes in the Nigerian Banking Sector: Why Not Arbitration?

Sunday, October 23, 2016

Hague Academy of International Law 2017 Summer Program

The course of study for the Hague Academy of International Law's 2017 Summer Program is now available. Registration will open on November 1. Here are the courses:

Public International Law

  • Jean Combacau (l’Université Paris II (Panthéon-Assas)), Inaugural Lecture: How the Law Operates in the International Legal Order: Doing Something and Having Something Done
  • Edith Brown Weiss (Georgetown Univ.), General Course: Establishing Norms in a Kaleidoscopic World
  • Atsuko Kanehara (Sophia Univ.), “Acts of the State” in the Law of Responsibility: A Reassessment
  • Mojtaba Kazazi (formerly, United Nations Compensation Commission), Compensation for Environmental Damage and Depletion of Natural Resources: The Practice of the United Nations Compensation Commission
  • Georg Nolte (Humboldt Univ.), Treaties and their Practice
  • Fabián Novak (Pontifical Catholic Univ. of Peru), The System of Reparations in the Jurisprudence of the Inter-American Court of Human Rights
  • Stelios Perrakis (Panteion Univ.), The International Protection of Vulnerable Persons under International Human Rights Law
  • Jean-Marc Thouvenin (l’Université Paris Ouest Nanterre La Défense), Economic Sanctions Decided and Implemented Outside the United Nations

Private International Law

  • Michael Joachim Bonell (Sapienza – Università di Roma), Inaugural Lecture: The Law Governing International Commercial Contracts: Soft Law v. Hard Law
  • Horatia Muir Watt (Sciences Po), General Course: Frontiers and Distributions: Discourse on the Methods of Private International Law
  • Burkhard Hess (Max Planck Institute Luxembourg for Procedural Law), The Private-Public Law Divide in International Dispute Resolution
  • Michael Karayanni (Hebrew Univ. of Jerusalem), The Private International Law of Class Actions
  • Alan Scott Rau (Univ. of Texas), The Proper Allocation of Power Between Arbitral Tribunals and Courts
  • Andrés Rodríguez-Benot (Pablo de Olavide Univ.), The Property Regime of Marriages and Registered Partnerships in Private International Law
  • Francesco Salerno (Univ. of Ferrara), The Identity and Continuity of Personal Status in Contemporary Private International Law
  • Carmen Tiburcio (Univ. of the State of Rio de Janeiro), The Current Practice of International Cooperation in Civil Matters
  • Patrick Wautelet (l’Université de Liège), The Use of Empirical Methods in Private International Law

Saturday, October 22, 2016

New Issue: Chinese Journal of Global Governance

The latest issue of the Chinese Journal of Global Governance (Vol. 2, no. 2, 2016) is out. Contents include:
  • Dirk Messner, Alejandro Guarin & Daniel Haun, Putting Behavior into International Cooperation
  • Weihuan Zhou & Andrew Percival, Panel Report on EU —Biodiesel: A Glass Half Full?—Implications for the Rising Issue of “Particular Market Situation”
  • Shuai Guo, A Story of Convergence of IPR Regimes: The IPR Chapter in the China-Korea Free Trade Agreement

Friday, October 21, 2016

New Issue: International Journal of Transitional Justice

The latest issue of the International Journal of Transitional Justice (Vol. 10, no. 3, November 2016) is out. Contents include:
  • Editorial Note
    • Hugo van der Merwe & M. Brinton Lykes, Transitional Justice Processes as Teachable Moments
  • Articles
    • Andrea Durbach, Towards Reparative Transformation: Revisiting the Impact of Violence against Women in a Post-TRC South Africa
    • Michael Broache, Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case
    • Aoife Duffy, Searching for Accountability: British-Controlled Detention in Southeast Iraq, 2003–2008
    • Mijke de Waardt, Naming and Shaming Victims: The Semantics of Victimhood
    • Arnaud Kurze, #WarCrimes #PostConflictJustice #Balkans: Youth, Performance Activism and the Politics of Memory
    • Eliza Garnsey, Rewinding and Unwinding: Art and Justice in Times of Political Transition
    • Louise Mallinder & Catherine O’Rourke, Databases of Transitional Justice Mechanisms and Contexts: Comparing Research Purposes and Design
  • Notes from the Field
    • Stef Vandeginste, Museveni, Burundi and the Perversity of Immunité Provisoire
    • Yasmine Ahmed, Sara Duddy, Claire Hackett, Patricia Lundy, Mary McCallan, Gemma McKeown, Andrée Murphy, Catherine O'Rourke, Emma Patterson-Bennet, Leah Wing, & Philipp Schulz, Developing Gender Principles for Dealing with the Legacy of the Past
  • Review Essay
    • Sarah Williams, Hybrid Tribunals: A Time for Reflection

Hakimi & Cogan: A Role for the Security Council on Defensive Force?

Over at EJIL: Talk!, Monica Hakimi (Univ. of Michigan - Law) and I have a post on A Role for the Security Council on Defensive Force?

Deprez: L'applicabilité des droits humains à l'action de la Cour pénale internationale

Christophe Deprez (Université de Liège) has published L'applicabilité des droits humains à l'action de la Cour pénale internationale (Bruylant 2016). Here's the abstract:

Entre instrument de protection des libertés fondamentales et menace à l’égard des mêmes libertés, l’activité pénale est un phénomène cerné de paradoxes. Les règles de protection des droits humains ont notamment pour ambition de contenir ces paradoxes : en encadrant le pouvoir de contrainte que l’autorité répressive est susceptible d’exercer sur les individus, ces normes essentielles doivent permettre de garantir une justice pénale qui demeure fidèle aux principes qu’elle entend défendre.

Mais, dès lors que le droit international des droits humains a été pensé et conçu pour circonscrire l’autorité des États, qu’en reste-t-il lorsqu’on cherche à l’appliquer à la Cour pénale internationale ? Dans quelle mesure et sur la base de quel(s) fondement(s) juridique(s) cet acteur répressif d’un genre nouveau est-il tenu au respect de règles auxquelles il n’a pas expressément souscrit ? Les spécificités de la justice pénale internationale – telles que la gravité des crimes ayant favorisé son émergence – réclament-elles une adaptation du niveau de protection accordé aux suspects et accusés internationaux ?

Cet ouvrage vise à apporter un éclairage sur ces questions et, ainsi, à cerner les contours de l’applicabilité des droits humains à l’action de la Cour pénale internationale.

Priemel: The Betrayal: The Nuremberg Trials and German Divergence

Kim Christian Priemel (Univ. of Oslo - History) has published The Betrayal: The Nuremberg Trials and German Divergence (Oxford Univ. Press 2016). Here's the abstract:
At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of 'genocide' and 'crimes against humanity' had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany's divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a 'civilised' nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler's rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today's courtrooms from Arusha to The Hague.

Novic: The Concept of Cultural Genocide: An International Law Perspective

Elisa Novic (Max Planck Foundation for International Peace and the Rule of Law) has published The Concept of Cultural Genocide: An International Law Perspective (Oxford Univ. Press 2016). Here's the abstract:

Cultural genocide is the systematic destruction of traditions, values, language, and other elements that make one group of people distinct from another. Cultural genocide remains a recurrent topic, appearing not only in the form of wide-ranging claims about the commission of cultural genocide in diverse contexts but also in the legal sphere, as exemplified by the discussions before the International Criminal Tribunal for the Former Yugoslavia and also the drafting of the UN Declaration on the Rights of Indigenous Peoples. These discussions have, however, displayed the lack of a uniform understanding of the concept of cultural genocide and thus of the role that international law is expected to fulfil in this regard.

The Concept of Cultural Genocide: An International Law Perspective details how international law has approached the core idea underlying the concept of cultural genocide and how this framework can be strengthened and fostered. It traces developments from the early conceptualisation of cultural genocide to the contemporary question of its reparation. Through this journey, the book discusses the evolution of various branches of international law in relation to both cultural protection and cultural destruction in light of a number of legal cases in which either the concept of cultural genocide or the idea of cultural destruction has been discussed. Such cases include the destruction of cultural and religious heritage in Bosnia and Herzegovina, the forced removals of Aboriginal children in Australia and Canada, and the case law of the Inter-American Court of Human Rights in relation to Indigenous and tribal groups' cultural destruction.

Thirlway: The International Court of Justice

Hugh Thirlway (formerly, Principal Legal Secretary, International Court of Justice) has published The International Court of Justice (Oxford Univ. Press 2016). Here's the abstract:

In recent years States have made more and more extensive use of the International Court of Justice for the judicial settlement of disputes. Despite being declared by the Court's Statute to have no binding force for States other than the parties to the case, its decisions have come to constitute a body of jurisprudence that is frequently invoked in other disputes, in international negotiation, and in academic writing.

This jurisprudence, covering a wide range of aspects of international law, is the subject of considerable ongoing academic examination; it needs however to be seen against the background, and in the light, of the Court's structure, jurisdiction and operation, and the principles applied in these domains. The purpose of this book is thus to provide an accessible and comprehensive study of this aspect of the Court, and in particular of its procedure, written by a scholar who has had unique opportunities of close observation of the Court in action. This distillation of direct experience and expertise makes it essential reading for all those who study, teach or practise international law.

Thursday, October 20, 2016

Meyer: Saving the Political Consensus in Favor of Free Trade

Timothy Meyer (Vanderbilt Univ. - Law) has posted Saving the Political Consensus in Favor of Free Trade (Vanderbilt Law Review, forthcoming). Here's the abstract:

2016 is the year that the political consensus in favor liberalized international trade collapsed. Across the world, voters’ belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains made under existing arrangements. In the United States, both presidential candidates in this fall’s election have denounced the most recent effort to liberalize trade rules, the Trans-Pacific Partnership (TPP). The United Kingdom voted to pull out of the European Union, one of the world’s largest and most important free trade zones. Europe’s top trade negotiator has declared European trade policy “close to death” after Germany and France held up ratification of a free trade agreement with Canada.

In the face of this onslaught, trade’s defenders have run out of ideas. They point out that trade makes nations wealthier; that trade plays a minor role in creating economic inequality when compared with technological innovation; and that domestic policies unconnected to trade rules can more efficiently address economic inequality, and can do so without the need for international obligations that might be construed as limiting national sovereignty in matters of social policy. These views are right as a matter of economics. But politicians make trade rules, not economists. Right or wrong, voters’ belief that liberalizing trade leads to economic inequality creates a political constraint on trade liberalization.

This Essay proposes a way to save the political consensus in favor of free trade. In order to preserve and extend the international trade regime and the extraordinary gains it has produced since the end of World War II, the next generation of preferential trade agreements should include international obligations binding on developed countries to address domestic economic inequality. In other words, trade agreements must include obligations to redistribute the gains from trade within countries. This approach differs dramatically from that taken in existing trade agreements. Since the North America Free Trade Agreement (NAFTA), trade agreements have tried to protect those who stand to lose from free trade – principally labor interests – by including labor provisions in trade agreements. These provisions are outward-looking, however. They seek to raise labor and environmental standards in developing countries (e.g., Mexico) in order to limit the loss of jobs in developed countries (e.g., the United States). Critics of trade agreements have inadvertently bought into this orientation. They argue for removing investor-state dispute settlement (ISDS) from trade agreements. But removing ISDS does nothing to help those suffering economically in developed countries, and it hurts developed countries’ businesses’ when they operate overseas. The removal of ISDS thus would be both a major concession to trade’s critics and yet not one that advances their core objective of ensuring that trade agreements advance economic equality.

To be sure, governments do have domestic programs to help those negatively impacted by liberalized trade rules. Trade adjustment assistance (TAA) programs offer financial assistance to those who lose their jobs due to international trade. But recent studies in the United States suggest that TAA is ineffective. Moreover, unlike trade agreements, which are in force indefinitely, TAA expires every few years unless Congress reauthorizes it – a fight each time.

To put it bluntly, these approaches have failed. They have failed to staunch the loss of jobs and they have failed to persuade voters in developed countries that international trade is not a primary cause of economic inequality. An “Economic Development” chapter in future preferential trade agreements would commit developed countries to addressing their own economic inequality problems at home. An Economic Development chapter would create international obligations for member states to establish fiscal programs, such as educational and infrastructure spending, designed to boost economic opportunity for those left behind by growing inequality. These spending obligations would be indexed, so that they would rise and fall with the economic losses attributable to trade agreements. If such losses do not occur or taper off, nations’ spending commitments would naturally sunset.

These obligations would be enforced through reporting and monitoring requirements, similar to human rights treaties, and dispute settlement provisions that could lead to a loss of market access, the norm in trade agreements. Tying measures designed to address economic inequality directly into trade agreements would create political coalitions in favor of continuing efforts to liberalize trade. Those who do not benefit from trade agreements could still support them as a way to obtain greater domestic benefits. And those who benefit most from the liberalized trade rules could support redistribution as the price of further globalization. Trade agreements would create a commitment device allowing those who gain from trade to commit in advance to provide those who do not with a share of the spoils.

Conference: L’exécution des décisions juridictionnelles internationales

Today and tomorrow, October 20-21, 2016, the Institut des Hautes Etudes Internationales at the Université Paris II Panthéon-Assas is hosting a conference on "L’exécution des décisions juridictionnelles internationales." The program is here. Here's the idea:
Si d’importants travaux ont été consacrés à l’exécution des arrêts et jugements d’une juridiction internationale particulière, au premier chef la Cour internationale de Justice, aucune étude de la question de l’exécution de leurs décisions n’a jusqu’à aujourd’hui été entreprise pour l’ensemble de ces juridictions, alors même que leur multiplication dans les domaines les plus variés du droit international en renouvelle considérablement l’importance et l’intérêt, tant dans l’ordre juridique international que dans les ordres juridiques nationaux. C’est à cet aspect délaissé du droit du contentieux international que s’attache le présent colloque de l’IHEI, qui réunit universitaires et praticiens, français et étrangers, pour en décliner les différentes facettes dans la matière du contentieux international général et dans celles de la protection des droits de l’homme, des échanges et de la concurrence, et de l’arbitrage transnational.

Rössler: Politische Freiheit im Völkerrecht

Julian Rössler has published Politische Freiheit im Völkerrecht (Mohr Siebeck 2016). Here's the abstract:
Der Internationale Pakt für politische und bürgerliche Rechte ist der wichtigste völkerrechtliche Vertrag zur Garantie universeller Menschenrechte und damit für die politische Betätigungsfreiheit. Politische Parteien nehmen für die Verwirklichung dieser Freiheit eine entscheidende Rolle ein, da sie individuelle Meinungen in staatliche Entscheidungen hineintragen können. Unter Bezugnahme auf die Vereinigungsfreiheit, das Wahlrecht, das Selbstbestimmungsrecht der Völker und den Minderheitenschutz zeigt Julian Rössler, dass die Parteienfreiheit auf universeller Ebene umfassend gewährleistet wird. Die völkerrechtliche Parteienfreiheit ist als Garant für eine Pluralität von Parteien und damit auch für politische Meinungsvielfalt in den Vertragsstaaten zu verstehen. Der Zivilpakt ist Grundlage für eine internationale Gemeinschaft von pluralistisch demokratischen Staaten.