Wednesday, November 22, 2017
Tuesday, November 21, 2017
Various legal approaches have been taken internationally to improve global access to essential medicines for people in developing countries. This book focuses on the millions of people suffering from AIDS, tuberculosis and malaria. Beginning with the AIDS campaign for antiretroviral (ARV) drugs, Sharifah Sekalala argues that a soft law approach is more effective than hard law by critiquing the current TRIPS flexibilities within the World Trade Organization. She then considers how soft law has also been instrumental in the fight against malaria and tuberculosis. Using these compelling case studies, this book explores lawmaking on global health and analyses the viability of current global health financing trends within new and traditional organisations such as the United Nations, the World Health Organization, UNAIDS, UNITAID and The Global Fund. This book is essential reading for legal, development, policy and health scholars, activists and policymakers working across political economy, policy studies and global health studies.
de Wet: Complicity in the Violations of Human Rights and Humanitarian Law by Incumbent Governments Through Direct Military Assistance on Request
The article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter’s request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analyzing the threshold requirements of article 16 of the Articles on State Responsibility (ASR), which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.
Perrone: UNCTAD's World Investment Reports 1991-2015: 25 Years of Narratives Justifying and Balancing Foreign Investor Rights
This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991-2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.
Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies – the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights – to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts – the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish-Kurdish conflict – to illustrate its points.
Sivakumaran: Techniques in International Law-Making: Extrapolation, Analogy, Form and the Emergence of an International Law of Disaster Relief
This article traces the emergence of an international law of disaster relief from a patchwork of norms through to a holistic body of international law. It argues that, for many years, the international law of disaster relief existed in piecemeal fashion. Since there is no overarching treaty on the subject at the global level, a hodgepodge of instruments have been concluded, namely subject-specific and disaster-specific treaties at the global level, regional and sub-regional agreements, bilateral agreements as well as soft law. However, through the work of the International Law Commission and the International Federation of the Red Cross and Red Crescent, a holistic body of international law relating to disaster relief is in the process of emerging. This article argues that this holistic body is in the process of emerging primarily as a result of three techniques that, while unconventional, are used relatively frequently in the making of international law. The three techniques are: (i) extrapolation from a series of piecemeal instruments to form a generalized standard; (ii) the use of analogy and (iii) the conclusion of instruments that are soft in form but contain a mixture of hard law and soft law. The way in which the techniques have been used to develop a body of international law relating to disaster relief is analysed, their use in other fields of international law discussed and limitations on their use in the disaster law context identified.
Monday, November 20, 2017
In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, which in turn derives from the Latin impune (in[not] + poena [punishment, pain]) originally the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution.
Impunity is a theme that has suffused literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. Within this context, ‘fighting impunity’ for acts of atrocity arises as among the reasons driving the establishment of international criminal courts and tribunals.
Since impunity means freedom from punishment, any conversation about impunity must involve a discussion of poena. How to punish and what does punishment mean? This Chapter undertakes a rapid-fire discourse analysis of press releases from international criminal courts and tribunals, specifically the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), so as to impressionistically gauge how these institutions understand poena. While these press releases and other documents gesture towards a multiplicity of venues that can help fight impunity, they also underscore the central, and I would argue primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. This fight, then, consolidates the courtroom, trial, and jailhouse as a synergized best practice and thereby markedly influences the institutional architecture of post-conflict justice.
This Chapter identifies a challenge to the quest of combating impunity through trials and imprisonment, namely, the reality that reducing impunity for one ‘side’ in a conflict may mean overlooking the abuses inflicted by the other ‘side’. On the other hand, and on a cautionary note, this Chapter questions what it actually would be like to live in a world without any impunity.
This Chapter is normative in that, as a matter of institutional politics, it seeks to further pluralize and diversify the range of actors and entities engaged in the fight against impunity. This Chapter argues that a starting point for this journey would be to re-imagine a broader understanding of poena as one that posits impunity as freedom from harmful consequences, recrimination, reparations, shame, or sanction. This Chapter then speculates how some post-conflict initiatives other than criminal trials might fit within this more capacious conceptualization of poena. These initiatives include informational transparency, forgetting, truth commissions, film, and reclaiming memory.
Invitation to submit contributions
Italian Yearbook of International Law, Volume XXVII (2017)
The Board of Editors of the Italian Yearbook of International Law (IYIL) is now considering submissions for Volume XXVII (2017).
The Volume will be composed of a Focus on “Sanctions and Restrictive Measures in International Law”, which will address both theoretical and practical aspects of the current practice regarding sanction regimes; an Articles section, with doctrinal contributions of a general character, and a Notes and Comments section, with timely analysis of recent developments.
Manuscripts shall be submitted to the Editors by 28 February 2018, e-mail address: firstname.lastname@example.org. Submissions shall indicate the Section (Focus, Articles or Notes and Comments) for which the manuscript should be considered. A half-page CV shall also be included. The maximum length of manuscripts is 12,000 words (including footnotes) for contributions to the Focus and Articles sections and 8,000 words (including footnotes) for the Notes and Comments. All submitted manuscripts will undergo a double-blinded review process.
Prospective contributors are encouraged to inform the Editors as soon as possible of their intention to submit a manuscript, so as to be sure that the Yearbook is still considering submissions.
- Romola Adeola & Frans Viljoen, The Right Not to Be Arbitrarily Displaced in Africa
- Elimma C. Ezeani & Elizabeth Williams, Regulating Corporate Directors’ Pay and Performance: A Comparative Review
- Patrick Agejo Ageh, Ethical Dilemma with Respect to CBD Regulations in Genetic Modification of Biological Resources in Cameroon
- Gerard Emmanuel Kamdem Kamga, Emergency Regimes in Cameroon: Derogations or Failures of Law?
- E. H. Ngwa Nfobin, The Francophone/Anglophone Split over Article 47 of the Constitution of the Federal Republic of Cameroon: An Abiding Malaise with an Explosive Charge
- Aniekan Iboro Ukpe, Trade Integration in a Layered System of International Law
- Richard M. Temple, African Natural Resources Agreements: Stabilisation Tricks and Traps for the Unwary
Friday, November 17, 2017
- Laura Smith-Khan, Different in the Same Way? Language, Diversity, and Refugee Credibility
- Lindsey N Kingston, Bringing Rwandan Refugees ‘Home’: The Cessation Clause, Statelessness, and Forced Repatriation
- Maja Janmyr, No Country of Asylum: ‘Legitimizing’ Lebanon’s Rejection of the 1951 Refugee Convention
- Lili Song, Refugees or Border Residents from Myanmar? The Status of Displaced Ethnic Kachins and Kokangs in Yunnan Province, China
- Maxine Burkett; Jainey Bavishi & Erin Shew, Climate Displacement, Migration, and Relocation—And the United States
- Katrina M. Wyman, United States’ Options for Receiving Cross-Border Climate Migrants
- Elizaveta Barrett Ristroph, When Climate Takes a Village: Legal Pathways toward the Relocation of Alaska Native Villages
- Jennifer J. Marlow & Lauren E. Sancken, Reimagining Relocation in a Regulatory Void: The Inadequacy of Existing US Federal and State Regulatory Responses to Kivalina’s Climate Displacement in the Alaskan Arctic
- Alice Venn, Universal Human Rights? Breaking the Institutional Barriers Facing Climate-Vulnerable Small-Island Developing States
- Vassilis P. Tzevelekos & Elena Katselli Proukaki, Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?
- Ana Lopéz Rodríguez, Robbing Peter to Pay Paul? ISDS and ICS from an EU Law Perspective
- Christophe Deprez, The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective
- Moritz Wüstenberg, Back to the Future: MFN Treatment in an Era of Protectionism
Thursday, November 16, 2017
Call for Submissions for the African Yearbook on International Humanitarian Law
The Editorial Board of the African Yearbook on International Humanitarian Law (AYIHL), a double-blind peer review journal published by Juta Publishing (South Africa), is pleased to announce the AYIHL is now accepting submissions for the 2017 volume of the Yearbook, to be published mid-2018.
The Board invites articles (7,000-12,000 words), case notes, and shorter pieces for inclusion in the ‘Current Developments’ section (up to 4,500 words). The Board welcomes submissions that engage with the themes of international humanitarian law and policy, and particularly aspects thereof that are of relevance of the African continent, broadly construed. The Yearbook publishes research not only on international humanitarian law stricto sensu, but also international human rights law, international criminal law, and other areas of public international law relevant to the regulation of armed conflict.
All submissions are subject to double-blind peer review before an editorial decision on publication is made. Further information on the Yearbook and instructions for prospective authors are available here.
The closing date for submissions is 1 January 2018. Manuscripts must be submitted via email to Hannah.email@example.com by the closing date.
Editor-in-Chief of the African Yearbook on International Humanitarian Law
Ishii: International Law and the Global Forum on Transparency and Exchange of Information for Tax Purposes
Wednesday, November 15, 2017
The article explores the trope of the “legal black hole” to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the “war on terror,” but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counter-terrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a typology of instances where persons are rendered rightless. While the two former types are characterized by de-facto rightlessness due to a violation of international law, the latter exposes a seldom-acknowledged yet crucial characteristic of international law: age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de-jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de-jure rightless is ultimately suggested as a broader research agenda for scholars of international law.
Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court’s judgment urging the Chávez administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive’s 2013 petition to have Colombia’s acceptance of the ICJ’s jurisdiction under the Pact of Bogotá declared unconstitutional (a court legitimated treaty exit), and the Dominican Republic (DR) Constitutional Tribunal’s 2014 judgment holding that the DR’s acceptance of the jurisdiction of the Inter-American Court had been unconstitutional (a court-led treaty exit).
Each of the domestic rulings to be discussed were issued in response to an adverse judgment from an international court, and each reflects an effort to quell the international court’s impact by attacking the instrument granting jurisdiction to the court. The essay describes the episodes in context and then analyzes them as a single phenomenon. Taken together, the cases show that in the realm of treaty exit the region’s constitutional courts are drawing on constitutional law to take on a surprisingly prominent foreign affairs role.
Tuesday, November 14, 2017
Monday, November 13, 2017
- JHHW, Those Who Live in Glass Houses ...; In this Issue
- Andrew D Mitchell & James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements
- Gracia Marín Durán, Untangling the International Responsibility of the European Union and Its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model
- Sergio Puig & Anton Strezhnev, The David Effect and ISDS
- Focus: Human Rights and the ECHR
- Merris Amos, The Value of the European Court of Human Rights to the United Kingdom
- Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights
- Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights
- Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee
- Thomas Kleinlein, Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control
- Roaming Charges
- Emma Nyhan, A Window Apart
- EJIL: Debate!
- Jonathan Bonnitcha & Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights
- John Gerard Ruggie & John F Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale
- Jonathan Bonnitcha & Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Rejoinder to John Gerard Ruggie and John F. Sherman, III
- A Fresh Look at Old Cases
- William Phelan, The Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt
- Critical Review of International Governance
- Ekaterina Yahyaoui Krivenko, The ICJ and Jus Cogens through the Lens of Feminist Legal Methods
The European Union (EU) has emerged as a key actor in the global investment regime since the 1980s. At the same time, international investment policy and agreements, which govern international investment liberalisation, treatment and protection through investor-to-state dispute settlement, have become increasingly contentious in the European public debate.
This book provides an accessible introduction to international investment policy and seeks to explain how the EU became an actor in the global investment regime. It offers a detailed analysis of the EU’s participation in all major trade and investment negotiations since the 1980s and EU-internal competence debates to identify the causes behind the EU’s growing role in this policy domain. Building on principal-agent and historical institutionalist models of incremental institutional change, the book shows that Commission entrepreneurship was instrumental in the emergence of the EU as a key actor in the global investment regime. It refutes business-centred liberal intergovernmental explanations, which suggest that business lobbying made the Member States accept the EU’s growing role and competence in this domain. The book lends support to supranational and challenges intergovernmental thinking on European Integration.
Sunday, November 12, 2017
- Editorial Comment
- Zhang Xinbao, China's Strategy for International Cooperation on Cyberspace
- Chris Whomersley, The Award on the Merits in the Case Brought by the Philippines against China Relating to the South China Sea: A Critique
- Dire Tladi, The International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters: Codification, Progressive Development or Creation of Law from Thin Air?
- Matthew Seet, Finding Reprieve: Should the Global Movement Against Capital Punishment Embrace China's Suspended Death Sentence As a Model for Other Retentionist States to Emulate?
- Asif Hameed, Some Misunderstandings about Legislation and Law
- Wenliang Zhang, Sino-Foreign Recognition and Enforcement of Judgments: A Promising "Follow-Suit" Model?
- Chronology of Practice
- Xiaohui Wu, Chronology of Practice: Chinese Practice in Public International Law in 2016
The most important climate agreement in history, the Paris Agreement on Climate Change represents the commitment of the nations of the world to address and curb climate change.Signed in December 2015, it entered into force on 4th November 2016. Countries are moving into implementation, and efforts at all levels will be needed to fulfill its ambitious goals.
The Paris Climate Agreement: Commentary and Analysis combines a comprehensive legal appraisal and critique of the new Agreement with a practical and structured commentary to all its Articles. Part I discusses the general context for the Paris Agreement, detailing the scientific, political, and social drivers behind it, providing an overview of the pre-existing regime, and tracking the history of the negotiations. It examines the evolution of key concepts such as common but differentiated responsibilities, and analyses the legal form of the Agreement and the nature of its provisions. Part II comprises individual chapters on each Article of the Agreement, with detailed commentary of the provisions which highlights central aspects from the negotiating history and the legal nature of the obligations. It describes the institutional arrangements and considerations for national implementation, providing practical advice and prospects for future development. Part III reflects on the Paris Agreement as a whole: its strengths and weaknesses, its potential for further development, and its relationship with other areas of public international law and governance.
Saturday, November 11, 2017
For many years, it seemed almost a truism to state that EU law and the law of international arbitration were two very distinct areas of law that did not intersect. Most believed each area pursued its own course without impacting on the other. However, a series of matters on which the international arbitral regime and the European Union part ways and, indeed, enter into serious conflict have emerged. The chapters in The Impact of EU Law, which were initially presented at a conference hosted by NYU’s Center for Transnational Litigation, Arbitration and Commercial Law, show that these areas of law are becoming ever more interconnected and that the impact of EU law on the law of international arbitration can be felt over the course of all stages of an international arbitration, from the pre-award stage to the post-award stage--an influence further exacerbated by the dilemma of arbitral tribunals and national courts when facing conflicting mandates from the law of international arbitration and the law of the European Union. Furthermore, and the contributions in this volume make this abundantly clear, EU law has not only impacted international arbitrations seated in EU Member States, but has also influenced arbitrations seated around the world, a fact that makes The Impact of EU Law required reading for all practitioners, arbitrators and all other stakeholders in the arbitration process world-wide.