Thomas Kleinlein (Friedrich-Schiller-Universität Jena - Law) has posted Managing the German Debt. Here's the abstract:

This chapter analyses the essential provisions of the Versailles reparations scheme and argues that this scheme, with its concept of reparations and with other features, was unprecedented in the history of peace treaties. The chronology of the management of the German debt – a story of treaty execution and treaty revision from 1920 to 2010 – can be divided into various reparation schemes, most significantly those of the Dawes Plan and the Young Plan. However, the degree to which already the Paris Conference set the basic patterns for this entire history of reparations is striking. Its themes, schemes and devices appeared again and again in one guise or another. The chapter concludes on what these recurrent themes can mean for the legal framework of sovereign debt management beyond the singular experience of the Versailles Treaty.

Jorge Contesse (Rutgers Univ. - Law) has posted Settling Human Rights Violations (Harvard International Law Journal, forthcoming). Here's the abstract:

In the past few decades, human rights courts have been widely established around the world, sparking the interest of legal scholars who devote significant attention to state accountability for human rights violations. Academic centers exclusively dedicated to the study of international courts have appeared, and conferences on the role of international adjudication now abound. International law has become a juricentric discipline.

With the enormous attention afforded to the international human rights judiciary, critical aspects of non-judicial human rights decision-making are often neglected. One understudied mechanism is that of friendly settlements, whereby victims of human rights violations, acting under the “good offices” of regional human rights bodies, enter into direct negotiations with respondent states toward a consensual resolution to a human rights dispute. Despite its prolific use in regional human rights regimes, legal scholars have largely neglected the friendly settlement mechanism. This Article fills that gap. Drawing on a review of all friendly settlements executed before the Inter-American Commission on Human Rights, as well as interviews with Commission personnel (including two of its former presidents), state officials from six Latin American countries, members of non-governmental organizations, and petitioners, this Article comprehensively analyzes the general practice of settling human rights disputes. The Article identifies various motivations underlying the practice: states avoid the “naming and shaming” that comes with human rights litigiousness; victims more quickly obtain reparations; and human rights bodies alleviate their backlog.

But friendly settlements also raise serious—and unnoticed—challenges. The Article unearths both normative and practical concerns with settling human rights violations and considers a novel alternative. It proposes an improved form of friendly settlement that (i) distinguishes between and affords differentiated procedural treatment to disputes concerning individual violations and those seeking structural remedies, and (ii) delegates negotiation and compliance functions to local authorities. With these improvements, the Article concludes, human rights settlements can play a critical role in holding states accountable, along with—and even more than—human rights adjudication.

James Thuo Gathii (Loyola Univ. Chicago - Law) has posted The Agenda of Third World Approaches to International Law (TWAIL) (in International Legal Theory: Foundations and Frontiers, Jeffrey Dunoff & Mark Pollack eds., forthcoming). Here's the abstract:

This chapter examines the first twenty-one years of Third Approaches to International Law Scholarship (TWAIL) from 1997 to 2018. It provides the first comprehensive attempt to count TWAIL articles, book chapters and books in that period and connects this scholarship to prior scholarship on international law from the Third World.

In so doing, it traces TWAIL’s varied origins and discusses its scholarly production in the last 21 years in Part One. In Part two, it discusses the main themes of TWAIL scholarship and the strands within them. Part Three discusses criticisms of TWAIL scholarship and makes responses to them.

The chapter argues that TWAIL scholarship has three major themes. First, how TWAIL scholarship traces the role of international law in constituting order and disorder. The second theme is the centrality of history in international law, and third, TWAIL’s commitment to reforming and remaking international law.

In addition, the chapter critically appraises criticisms of TWAIL scholarship. These are: First, some historians have charged TWAIL scholars with anachronism or ‘presentism’. Second, some mainstream international law scholars have argued that TWAIL scholarship is nihilistic and lacks methodological clarity. A third set of criticisms have argued in favor of expanding the subject of TWAIL scholarship to include themes such as indigenous peoples and hierarchical caste systems, so that TWAIL scholarship can capture other forms of hierarchies, particularly those that predate colonialism. A fourth criticism is that TWAIL’s resistance to international law scholarship and international law itself, occupies the same terrain as international law and as such it cannot offer an alternative.

Most importantly, this chapter shows that TWAIL scholarship provides a substantive critique of both the politics and the scholarship of international law, in addition to exploring the extent to which international law has legitimated global processes of marginalization and domination of the peoples of the third world, as well as how third world peoples and countries can overcome these challenges.

Eliav Lieblich (Tel Aviv Univ. - Law) has posted At Least Something: The UN Special Committee on the Problem of Hungary, 1957–1958 (European Journal of International Law, forthcoming). Here's the abstract:

In late 1956, The UN faced a remarkable test, as the USSR invaded and crushed a burgeoning rebellion in Hungary, then a Soviet satellite. After the USSR disregarded repeated UN calls to withdraw, the UN General Assembly established, in January 1957, a Commission of Inquiry (COI) to investigate the crisis.

This Article explores the forgotten story of the Special Committee on Hungary as a case study for the effects of commissions of inquiry. This commission is of special interest for several reasons. Namely, it was one of the first mandated by a UN body to investigate a specific conflict, not least a Cold War struggle, in which a superpower was directly involved. Furthermore, it was clear from the beginning that the Committee was not likely to compel, in itself, the USSR to change its behavior. Moreover, 1956 was a time of global political transformation, as the non-aligned movement emerged as a key player in UN politics, and, accordingly, became a target in the Cold War battle for influence. Under such circumstances, the effects of COIs are complex and difficult to gauge.

While the Committee did not lead to the USSR's withdrawal from Hungary, it had many unforeseen and conflicting effects. These are grouped, in the Article, into two categories – effects relating mainly to times of ideological conflict and political transformation; and effects that relate to parallel multilateral efforts and institutional dynamics. Among other effects, the Article demonstrates how, under such political circumstances, COIs can create new points of contention, and cause backlash precisely from those that they seek to influence. Having cascading and conflicting effects, the central conclusion is that COIs do not lend themselves easily to clean and linear theories. A recognition of the field’s inherent complexity is therefore needed in any attempt to study this international phenomenon.

Christine Schwöbel-Patel (Univ. of Warwick - Law) has posted Populism, International Law, and the End of Keep Calm and Carry on Lawyering (Netherlands Yearbook of International Law, forthcoming). Here's the abstract:

The relationship between populism and international law is mostly conveyed as one of populist-problem versus international law-solution. International lawyers feel called upon to respond to the rise in populism with multilateralism and liberal internationalism in a ‘keep calm and carry on lawyering’ fashion. However, this attitude of us (the internationalists) versus them (the populists) tends to present a geographically Western-centric and epistemologically euro-centric view of populism and international law. Two crucial aspects about populism and international law are overlooked in this narrow understanding: First, the role that international lawyers and institutions have played in institutionalising and upholding neoliberalism and therefore in creating a specific type of nationalist populist backlash; and second, the progressive forms of populism which may be compatible with a radical internationalism of solidarity.

Steven R. Ratner (Univ. of Michigan - Law) has posted International Law and Political Philosophy: Uncovering New Linkages (Philosophy Compass, forthcoming). Here's the abstract:

Despite a common agenda of normative analysis of the international order, philosophical work on international political morality and international law and legal scholarship have, until recently, worked at a distance from one another. The mutual suspicion can be traced to different aims and methodologies, including a divide between work on matters of deep structure, on the one hand, and practical institutional analysis and prescription, on the other. Yet international law is a key part of the normative practices of states, has a direct effect on state behavior, and, as a methodological matter, can contribute to good theorizing on matters of international ethics. Recently, philosophical work has demonstrated a greater engagement with the moral aspects of international law. One strand of scholarship has treated the rules of international law as a proper subject for philosophical inquiry. Another has used international legal rules to support moral arguments about aspects of the international order. Future dialogue and cooperation would benefit both fields, in particular on the challenges to global cooperation from nationalism and on strategies for allocating responsibilities among global actors for rectifying global harms.

Leon Trakman (Univ. of New South Wales - Law) has published Domestic Courts Declining to Recognize and Enforce Foreign Arbitral Awards: A Comparative Reflection (Chinese Journal of Comparative Law, Vol. 6, no. 2, pp. 174–227, December 2018). Here's the abstract:

The article examines the ‘public policy exception’ by which domestic judges decline to recognize and enforce international arbitration awards under Article V(2)(b) of the 1958 New York Convention. It explores litigation in China and New York to identify reasons invoked by domestic courts, viewed comparatively, to decline to enforce foreign arbitration awards on localized public policy grounds. It examines the nature and operation of public policy and due process defences, and considers the difficulties faced by domestic courts in delineating the concept of substantive and procedural justice clearly and reliably. The article examines the prospect of domestic courts refining shared norms of transnational public policy and due process of law that transcend their differences.

Yahli Shereshevsky (Univ. of Haifa - Law) has posted Back in The Game: International Humanitarian Law-Making by States (Berkeley Journal of International Law, forthcoming). Here's the abstract:

This article is the first to identify and analyze the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law (IHL), also known as the Law of Armed Conflict (LOAC). While there was minimal direct state involvement in IHL-making initiatives in the first decade of the 21st century, in recent years states have taken an active part in IHL making. This article analyzes the policies of two states that stand in the middle of this debate – the U.S. and Israel – to provide a detailed account of contemporary state-led IHL-making. It argues that these new initiatives are an attempt by states to regain their influence over IHL from non-state actors. This suggests three broad implications for international lawmaking. First, unilateral lawmaking documents might be adopted more often as an alternative to traditional lawmaking and soft law initiatives when contracting costs are high. Second, the new lawmaking initiatives tend to adopt non-state actors' strategies to influence the debate, as an expression of states’ internalization of the horizontal nature of contemporary international lawmaking. Third, states often cooperate with non-state actors that share their interpretive positions in the international lawmaking process.

Matiangai V.S. Sirleaf (Univ. of Pittsburgh - Law) has posted Responsibility for Epidemics (Texas Law Review, forthcoming). Here's the abstract:

Epidemics are the result of the actions of multiple actors, which necessitates a comprehensive allocation of responsibility. However, the traditional framework for responsibility, as well as the emerging norm of the responsibility to protect, are inadequate for addressing epidemics. Both perpetuate the fallacy that states can, on their own, cope with the increased incidence of epidemics and fail to adequately allocate responsibility.

Given these limitations, this Article argues for a new vision of responsibility. It develops the theory underlying the norm of common but differentiated responsibility and makes the case for expansion of this framework to the challenges posed by highly-infectious diseases. This Article articulates the distinctive normative bases for differentiating responsibilities based on need, culpability, and capacity. The framework developed herein better distributes responsibility and is less state-centric than rival norms. It accounts for structural inequality in ways that other frameworks do not. Further, it does not reify the false hierarchy between civil and political rights and economic and social rights that exists in other frameworks. It recognizes and accounts for the significant role of non-state actors and provides a basis for holding such actors responsible, as opposed to the non-attribution of responsibility that exists.

There is reason for cautious optimism about the prospects of success of this framework. First, it is consistent with theoretical and existing foundations of law where responsibility is tethered to an actor’s conduct and relationship to the harm through culpability. However, the framework does not treat the culpability model as a legal straitjacket and envisions a broad understanding of causation—direct, indirect, and historical. Additionally, the framework differentiates based on capacity, which is derived from human rights and global public health law. It also draws on extralegal incentives, building on moral and political conceptualizations of responsibility towards those in need. The common but differentiated responsibility framework is likely to gain approval and assist rapidly with the battle against epidemics. In fact, elements of it are already reflected in state practice. In sum, the theoretical framework developed in this Article serves not only to provide useful guidance to actors in the face of epidemics but also to shift extant conceptualizations of responsibility in significant ways.

Catharine Titi (Centre national de la recherche scientifique) has posted The Evolution of Substantive Investment Protections in Recent Trade and Investment Treaties. Here's the abstract:

Over the years, the substantive content of international investment agreements (IIAs) has shifted to reflect political change and to respond to lessons learnt in investor-state dispute settlement (ISDS). With a focus on eight IIAs, selected with a view to geographical representativeness, this think piece explores substantive standards in recent treaty practice. It finds that new IIAs converge to a large extent with respect to their substantive standards. Old generation IIAs will probably remain dominant for some time as they represent the bulk of existing agreements. But there is a clear trend towards displacing them with the conclusion of new generation IIAs.

Rossana Deplano (Univ. of Leicester - Law) has posted The Riddle of Custom: General Assembly Resolutions (in International Organizations, Non-State Actors, and the Formation of Customary International Law, Sufyan Droubi & Jean d’Aspremont eds., forthcoming). Here's the abstract:

This chapter examines the role of resolutions in the International Law Commission (ILC) Conclusions on Identification of Customary International Law. The analysis unfolds along three lines of inquiry. The first one critically analyses the methodology devised by the ILC to ascertain the existence of a customary rule with a view to understanding how it works in the institutional setting of international organizations. The second one examines the definition of resolution contained in the Conclusions and compares it with the mainstream literature on the concept of resolution. The third one evaluates the practical implications of the ILC conclusions by using the resolutions of the United Nations General Assembly as a case study. An argument is made that the ILC Conclusions do not add either certainty or sophistication to the process of ascertaining customary rules, thus failing to provide authoritative guidance to practitioners in the field of international organizations’ practice.

Sean D. Murphy (George Washington Univ. - Law) has posted Obligations of States in Disputed Areas of the Continental Shelf (in New Knowledge and Changing Circumstances in the Law of the Sea, forthcoming). Here's the abstract:

Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves, which raises important issues as to how such States must conduct themselves prior to resolution of their dispute. This chapter advances eight basic rules that every State is expected to follow in such a situation. Inevitably, such rules are general in nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding their overall duty to resolve disputes peacefully.