- Volume 381
- Erik Jayme, Les langues et le droit international privé
- George Bermann, Arbitration and Private International Law
Saturday, March 25, 2017
Friday, March 24, 2017
Cardinal & Mégret: The Other 'Other': Moors, International Law and the Origin of the Colonial Matrix
Historiographies of international law highlight as the beginning of this “inter-national” set of binding rules the Reformation and the way it tore at the very fabric of Christian unity by exposing seemingly incommensurable (while hermeneutically similar) world views. Others go further and point to the Renaissance and the early modern periods as at least containing the seeds of an international legal order in the making. In particular the beginning of international law is located in the writings of the Spanish post-scholastics of the Salamanca school, essentially Dominicans and Jesuits reflecting on Aquinas’ rendition of natural law. The “Other” of International Law, therefore, is conceived as being the Indian of the Americas, one whose encounter powerfully contributed to the shaping of an international system becoming aware of his radical difference.
Still, international law’s debt to its encounter with its Muslim Other, despite its evident linkages to early modernity, remains curiously absent from the discipline’s historiography. At no point are the “Re-”Conquista and medieval Europe’s continued dealings with Muslims in its midst and on its frontiers mentioned, as if the “discovery” alone marked a fundamental break in the normative interactions between people. Why is this initial and even foundational hinging moment neglected? What does it say about the writing of the history of international law? That it is conspicuously not a history of the relation of Europe with its Islamic other, perhaps even a tentative erasure of that relation?
This essay seeks to challenge the accepted historiography of the discipline, with specific regard to Europe’s relations with the people of Islam, and those they perceived as the people of Islam. The general guiding thread of the argument is that international law, at its inception, was a discourse that enforced a structure of power for the justification of conquest and control of Europe’s normatively divergent “Other.” Conceptually, we propose to use Peruvian Philosopher Anibal Quijano’s theorization of the “matrix of coloniality” as a reifying structure of power, and thus of the inherent relationship between the project of modernity and the domination of the Other. We claim that the structure of the “matrix of coloniality” arguably emerged long before the “Re-”Conquista, while that event significantly helped shape its unfolding and arguably paved the way for the other conquista, that of the Americas.
- Al-Dulimi and Montana Management Inc. v. Switzerland (Eur. Ct. H.R.), with introductory note by Stefan Kadelbach
- Bédat V. Switzerland (Eur. Ct. H.R.), with introductory note by Dimitrios Kagiaros
- Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, with introductory note by Alexis J. Ortiz
- United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), with introductory note by Kasey McCall-Smith
- United Nations Security Council Resolution 2298, with introductory note by David P. Fidler
The history and theory of international law have been transformed in recent years by post-colonial and post-imperial critiques of the universalistic claims of Western international law. The origins of those critiques lie in the often overlooked work of the remarkable Polish-British lawyer-historian C.H. Alexandrowicz (1902-75). This volume collects Alexandrowicz's shorter historical writings, on subjects from the law of nations in pre-colonial India to the New International Economic Order of the 1970s, and presents them as a challenging portrait of early modern and modern world history seen through the lens of the law of nations.
The book includes the first complete bibliography of Alexandrowicz's writings and the first biographical and critical introduction to his life and works. It reveals the formative influence of his Polish roots and early work on canon law for his later scholarship undertaken in Madras (1951-61) and Sydney (1961-67) and the development of his thought regarding sovereignty, statehood, self-determination, and legal personality, among many other topics still of urgent interest to international lawyers, political theorists, and global historians.
Thursday, March 23, 2017
McCrudden: CEDAW in National Courts: A Case Study in Operationalizing Comparative International Law Analysis in a Human Rights Context
In an article published in the American Journal of International Law (AJIL), I tackled the difficult question of how to explain the pattern of domestic judicial use of the Convention on the Elimination of Discrimination Against Women that I had identified, and I suggested explanations for this pattern. My tentative conclusion was that what similarities and differences were observable resulted, at least in part, from the functions that international human rights law fulfills in domestic jurisdictions, and that these functions may differ from the role that international human rights law plays at the international level. It was suggested that the observable pattern of references to CEDAW in national level courts results, to a significant degree, from the combination of the four elements involved in comparative international human rights law: that it is international law; and that it concerns human rights; and that it is law; and that it is being applied domestically. In this article, I referred to both the methodology I used, and the findings of the study on which this analysis was based, in summary form, promising a fuller account in this book. This chapter seeks to fulfil the promise in my AJIL article to explain my methodology and my basic findings in more detail. The chapter is structured as follows. Part II presents a brief outline of CEDAW in order to locate what follows. Part III provides a detailed analysis of the methodology I adopted in undertaking the study, including a discussion of the sources I used in compiling a detailed dataset of judicial opinions and how I formulated the questions used to analyze this dataset. Part IV presents the basic findings that resulted from this analysis. Part V concludes. There are, in addition, two appendices. Appendix A sets out the electronic and other databases and datasets from which my dataset of domestic cases citing CEDAW was drawn. Appendix B provides citations for each of the cases in the dataset, by jurisdiction.
Schill: Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law
This paper discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional and multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It addresses, first, the importance of bilateral treaties in international investment law (IIL) and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime of IIL. Second, the paper turns to the preeminent importance arbitral decisions assume in determining and developing the content of IIL. Third, the paper addresses the increasing influence of comparative law in IIL and its impact on its understanding of sources. Fourth, the paper discusses how soft law instruments influence IIL, even though they are not binding law. It argues that the particular ‘sources-mix’ in IIL is chiefly a product of the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of the field.
Reydams: Politics or Pragmatism? The ICTR and the Burying of the Investigation into the Assassination of President Juvénal Habyarimana
A persistent rumor about the International Criminal Tribunal for Rwanda (ICTR) is that ‘politics’ played a role in the decision in 1997 of then Chief Prosecutor Louise Arbour to end the investigation into the assassination of Rwandan President Juvénal Habyarimana. The article examines whether there is any truth to this rumor and, alternatively, whether more mundane reasons may explain the burying of the investigation. On the basis of interviews and email correspondence with the persons who might have pressured Arbour and with the former Chief-Prosecutor herself, the article concludes that there is no evidence that the US Government or the UN Secretariat intervened. Arbour’s decision seems to have been based on an assessment of the concrete conditions at the time. These were such that any responsible Prosecutor would have concluded that pursuing the investigation would be futile and dangerous. Because the truth about the assassination remains unknown, the article ends by suggesting a way to finish the ICTR’s unfinished business.
Wednesday, March 22, 2017
Gurmendi Dunkelberg: There and Back Again: The Inter-American Human Rights System's Approach to International Humanitarian Law
The Inter-American Court of Human Rights is constantly deciding cases that relate to the conduct of States in times of armed conflict. However, while a trailblazer in the field of human rights, the Court’s record with regard to the advancement of international humanitarian law is less stellar. In this article I will offer an explanation for this disconnect between the Inter-American System and international humanitarian law. Through the analysis of the court’s humanitarian law case-law, I argue that the Inter-American Court has gone through a long process of adaptation to international humanitarian law, starting with promising beginnings in the late-nineties at the Inter-American Commission, continuing through a philosophical shift in the early 2000s that drove the Inter-American Court away from direct application of humanitarian law, and ultimately returning to humanitarian law-friendly causeways in the 2010s. I also point to the risks entailed by a human rights system not well connected to humanitarian law and the reasons why I believe the Court’s disassociation with international humanitarian law seems to be slowly but steadily tending towards a positive evolution.
- Thomas Lundmark & Helen Waller, Using statutes and cases in common and civil law
- Machiko Kanetake, The dual vulnerability of transnational, science-based standards in the national legal order
- Alexis Galán & Stephanie Law, The emergence of European private law and the plurality of authority
- Christoph B. Graber, Bottom-up constitutionalism: the case of net neutrality
- Chaewoon Oh & Shunji Matsuoka, The genesis and end of institutional fragmentation in global governance on climate change from a constructivist perspective
- R. Guarino, F. Cutaia, A. L. Giacopelli, P. Menegoni, F. Pelagallo, C. Trotta, & G. Trombino, Disintegration of Italian rural landscapes to international environmental agreements
- Rishikesh Ram Bhandary, Coalition strategies in the climate negotiations: an analysis of mountain-related coalitions
- Magdalena Kuchler, Stakeholding as sorting of actors into categories: implications for civil society participation in the CDM
- Linda Wallbott & Andrea Schapper, Negotiating by own standards? The use and validity of human rights norms in UN climate negotiations
- Jennifer S. Bansard, Philipp H. Pattberg, & Oscar Widerberg, Cities to the rescue? Assessing the performance of transnational municipal networks in global climate governance
- Katharina Michaelowa & Axel Michaelowa, The growing influence of the UNFCCC Secretariat on the clean development mechanism
- Mark Zeitoun, Ana Elisa Cascão, Jeroen Warner, Naho Mirumachi, Nathanial Matthews, Filippo Menga, & Rebecca Farnum, Transboundary water interaction III: contest and compliance
- Alexandros Kailis, The influential role of consensual knowledge in international environmental agreements: negotiating the implementing measures of the Mediterranean Land-Based Sources Protocol (1980)
- Djemila Carron, Transnational Armed Conflicts
- Astrid Kjeldgaard-Pedersen, A Ghost in the Ivory Tower: Positivism and International Legal Regulation of Armed Opposition Groups
- Andres B. Munoz Mosquera & Sascha Dov Bachmann, Lawfare in Hybrid Wars: The 21st Century Warfare
- Tamar Meshel, A Decade Later and Still on Target: Revisiting the 2006 Israeli Targeted Killing Decision
- Camille Marquis Bissonnette, The Definition of Civilians in Non-International Armed Conflicts
- Alon Margalit, Recent Trends in the Application of Human Rights and Humanitarian Law
- Sam Pack, Targeting Child Soldiers: Striking a Balance between Humanity and Military Necessity
Inspired in part by 'A History of the World in a 100 Objects', the volume interrogates international law's material culture and everyday life. My chosen object or 'thing' is AIDS. The essay opens by explaining the reason for this potentially controversial choice, before using AIDS to challenge how international law frames the following: crisis; human rights; and law itself.
Kihara-Hunt: Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel
Ai Kihara-Hunt’s Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel analyzes whether the mechanisms that address criminal accountability of United Nations police personnel serving in peace operations are effective, and if there is a problem, how it can be mitigated. The volume reviews the obligations of States and the UN to investigate and prosecute criminal acts committed by UN police, and examines the jurisdictional and immunity issues involved. It concludes that these do not constitute legal barriers to accountability, although immunity poses some problems in practice. The principal problem appears to be the lack of political will to bring prosecutions, as well as a lack of transparency, which makes it difficult accurately to determine the scale of the problem.
Tuesday, March 21, 2017
- Jorge L. Contreras & Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey
- Rodolfo D. Saenz, Confronting Mexico’s Enforced Disappearance Monsters: How the ICC Can Contribute to the Process of Realizing Criminal Justice Reform in Mexico
- Michal Saliternik, Expanding the Boundaries of Boundary Dispute Settlement: International Law and Critical Geography at the Crossroads
- Frédéric Gilles Sourgens, Supernational Law
Galbraith: From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law
Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich understanding of the various processes for making international commitments and of the circumstances under which a particular process will be used. This approach also has important implications for separation-of-powers concerns. From a constitutional law perspective, the rise of international commitments outside the Treaty Clause registers as an unvarnished increase in presidential power. Factoring in international law and administrative law reveals a far more nuanced reality. While direct congressional checks on presidential power have weakened, alternative checks have arisen from administrative agencies, the international legal structure, and even to some degree from U.S. states. This Article describes the reconfigured landscape of checks and balances, which are spread across the negotiation, domestic approval, and implementation of international commitments. It then offers a qualified normative defense of this system and proposes several structural and doctrinal improvements. The Article closes with a case study applying its approach to the 2015 Paris Agreement on climate.
- Adam S. Chilton & Eric A. Posner, The Influence of History on States’ Compliance with Human Rights Obligations
- John D. Ciorciari & Anne Heindel, Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands
- Nienke Grossman, Shattering the Glass Ceiling in International Adjudication
- William Partlett, The Elite Threat to Constitutional Transitions
- Kevin L. Cope & Cosette D. Creamer, Disaggregating the Human Rights Treaty Regime
- Yonatan Lupu, Explaining Human Rights Abuses: Comparing Contemporary Factors and Historical Factors
- Mila Versteeg, History, Geography, and Rights: A Response to Chilton and Posner
The performance of global governance regimes across issue areas is increasingly beset by what scholars have termed the “governance dilemma” (Keohane 2001). As noted in Gridlock (Hale, Held and Young 2013), second-order trends, brought on by deepening global interdependence are combining to undermine international cooperation where it is needed most. The governance dilemma is particularly acute in a human rights domain characterized more by distributive costs than easily resolved cooperation problems. Drawing on the introduction to this book, the chapter surveys the current state of human rights scholarship and practice through an exploration of four potential pathways “through” or even “beyond” gridlock in the human rights domain, with particular attention to: (1) autonomous and adaptive institutions, and (2) plurality and diversity of actors and agencies around common goals/norms. In so doing, it highlights how human rights governance is emblematic of certain exit options from gridlock, especially mobilization of willing and able transgovernmental and transnational networks of non-state actors. This includes both civil society actors, as well as networks of national human rights institutions (NHRIs) and other official regulatory bodies, which have received growing attention of late. The chapter begins with an outline of governance arrangements in the human rights domain, including a survey of the many challenges human rights governance confronts. It then evaluates the extent to which the pathways out of gridlock identified in this project are evident in human rights governance and with what effect. The chapter concludes by reflecting on what the analysis means for advancing human rights policy objectives and overcoming multilateral gridlock more generally.
Weber famously described formally rational law as the highest form of modern law, where ‘definitely fixed legal concepts in the form of highly abstract rules are formulated and applied.’ Formally rational law facilitated economic development by providing continuous, predictable, and efficient administration of justice. Modern disputes having to do with ‘equality before the law’ or ‘legal guarantees against arbitrariness’ demanded formal and objective decision-making, Weber maintained. Formally rational law also ensured that substantive elements exogenous to the legal system, those ‘directed against the dominance of a mere business morality,’ were kept at a safe distance. In this paper, I trace how the norm entrepreneurs promoting investment law’s disciplines conceive of this regime as exhibiting features of formally rational law. They also are resisting the substantively irrational – pejoratively labeled as ‘politics’ – from entering into investment law’s domains. I argue that keeping substantive justice at bay is impossible, not only because of pressures that are at present being generated by states and citizens alike, but because the system itself is saturated with substance, in much the same way as was Weber’s higher form of law.
Helfer, Land, Okediji, & Reichman: The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled is a watershed development in the fields of intellectual property and human rights. As the first international legal instrument to establish mandatory exceptions to copyright, the Marrakesh Treaty uses the legal and policy tools of copyright to advance human rights. The World Blind Union Guide to the Marrakesh Treaty offers a comprehensive framework for interpreting the Treaty in ways that enhance the ability of print-disabled individuals to create, read, and share books and cultural materials in accessible formats. The Guide also provides specific recommendations to government officials, policymakers, and disability rights organizations involved with implementing the Treaty's provisions in national law.
This article builds from original fieldwork to show what lies behind China’s remarkably successful use of international trade law to take on the United States and Europe. The World Trade Organization (WTO) is unique in China’s international relations as it is the only forum where China, with its anti-legalist traditions, has resolved its disputes through law and the use of third party dispute settlement. After China acceded to the WTO in 2001, it invested massively in building trade law capacity to transform itself and defend itself externally. Through these investments and its increased market power, China became a serious rival to the U.S. and Europe in the development and enforcement of international trade law. This article provides the most complete account of this important development, which has had significant political impacts within the United States and Europe. The article first explains China’s significant trade law capacity-building efforts in government, academia, law firms, and business. It then assesses the broader implications for the international trade legal order. It shows that global economic order itself is at stake, affecting citizens around the globe. The article builds from research involving over a decade of original fieldwork in China, Washington D.C., Brussels, and Geneva.
Schill: Authority, Legitimacy, and Fragmentation in the (Envisaged) Dispute Settlement Disciplines in Mega-Regionals
This chapter analyzes the inter-state and investor-state dispute settlement disciplines included in mega-regionals, with a specific focus on the already finalized Comprehensive Economic and Trade Agreement and the Trans-Pacific Partnership. It argues that dispute settlement disciplines increasingly assume a pivotal role in trade and investment negotiations and raise fundamental questions about the authority and legitimacy of international dispute resolution and concerns of fragmentation. While preferences of states participating in mega-regionals coincide in agreeing on inter-state arbitration as a compliance mechanism that minimizes both the authority of dispute resolvers and negative effects of fragmentation in respect of the World Trade Organization, starker differences arise on investor-state dispute settlement. Whereas the European Union (EU) pushes for the creation of permanent judicial bodies, the United States seemingly prefer a reformed version of investor-state arbitration. The underlying clash of ideologies shapes what may turn into a constitutional moment for international economic law more generally, as the EU and US positions directly clash in the negotiations of the Transatlantic Trade and Investment Partnership.
Monday, March 20, 2017
- Patrick Weil, Can a Citizen Be Sovereign?
- Mark Goodale, UNESCO and the United Nations Rights of Man Declaration: History, Historiography, Ideology
- Alden Young, African Bureaucrats and the Exhaustion of the Developmental State: Lessons from the Pages of the Sudanese Economist
- Erik Ropers, Debating History and Memory: Examining the Controversy Surrounding Iris Chang’s The Rape of Nanking
- Photo Essay
- Jean-Philippe Dedieu, Working with the Frames of War
- A Lens on Mohamedou Slahi at Guantánamo: A Conversation
- Debi Cornwall, Gitmo at Home, Gitmo at Play
- Dossier on Gunnar Myrdal
- Maribel Morey & Jamie Martin, Introduction
- Nils Gilman, The Myrdals’ Eugenicist Roots
- Lauri Tähtinen, Will Myrdal’s America Show Up?
- Maribel Morey, Gunnar Myrdal’s An American Dilemma (1944) as a Swedish Text: A Further Analysis
- Jamie Martin, Gunnar Myrdal and the Failed Promises of the Postwar International Economic Settlement
- Samuel Moyn, Welfare World
- Isaac Nakhimovsky, An International Dilemma: The Postwar Utopianism of Gunnar Myrdal’s Beyond the Welfare State
- Benjamin Siegel, Asian Drama Revisited
- Simon Reid-Henry, From Welfare World to Global Poverty