Yale Journal of International Law, Vol. 34, No. 2: Online Symposium

Yale Journal of International Law, Vol. 34, No. 2: Online Symposium


The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris in our fourth online symposium (previous symposia can be found here). This Monday, Tuesday, and Wednesday we will feature three Articles published by YJIL in Vol. 34, No. 2, which are available for download here. Our sincere thanks to Julian Ku and the rest of the Opinio Juris team for hosting this exciting discussion.

On Monday, Evan J. Criddle (Syracuse University College of Law) and Evan Fox-Decent (McGill University Faculty of Law) will discuss their Article, A Fiduciary Theory of Jus Cogens. Drawing from Immanuel Kant’s account of familial fiduciary relations in The Doctrine of Right, Criddle and Fox-Decent posit that states exercise sovereign authority as fiduciaries of those subject to their power and that compliance with jus cogens norms emerges as a condition of this state-subject fiduciary relationship. The authors then use this framework to develop both formal and substantive criteria for identifying peremptory norms, which they argue will enable national and international courts to better employ peremptory norms in appropriate cases and fill in many of the gaps left by existing accounts of jus cogens. Alexander Orakhelashvili (University of Birmingham) will respond to this piece.

On Tuesday, Anupam Chander (University of California at Davis School of Law) will introduce his Article Trade 2.0. In this piece, Chander uses several recent developments to analyze the new challenges raised by what he calls net-work: the transnational trade in information services made possible by the development of a truly global electronic communications systems. Noting that several unique aspects of net-work trade are not adequately addressed by the established conventions that have arisen around past forms of transnational trade, Chander argues that a similar system of rules and principles will be necessary to effectively balance the national regulation of services with the removal of inefficient barriers to the transnational trade in services. Towards this end, Chander identifies two principles related to the liberalization of net-work trade — technological neutrality and dematerialized architecture — and three principles regarding states’ rights to regulate the transnational trade in services — globalization, harmonization, and “do no evil” — that he maintains will help strike this balance. Mark Wu (Academic Fellow, Columbia Law School) will discuss this piece.

Finally, on Wednesday, Tara Melish (University at Buffalo Law School, State University of New York) will present her Article From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. Melish draws from theories of interest group management to offer a new narrative of the United States’ engagement with international human rights bodies, one that questions traditional descriptions U.S. human rights policies as paradoxically split between outward prodigiousness and inward conservatism. Instead, Melish argues that the United States’ engagement with human rights treaty bodies reflects policymakers’ efforts to mediate between a complex variety of political pressures in a manner that is consistent with the principle of subsidiarity underlying much of international human rights law. Drawing from this perspective, Melish goes on to provide several strategic insights as to how human rights advocacy groups can better embrace this principle of subsidiarity and thus lobby more effectively for the domestic incorporation of human rights principles. Elena Baylis (University of Pittsburgh School of Law) will provide a response to this piece.

We hope that you enjoy what is sure to be a thought-provoking exchange, and encourage you to make your own contributions to the debate in the comments sections!

Print Friendly, PDF & Email
Notify of
Patrick S. O'Donnell

I’m especially interested in the Criddle and Fox-Decent paper and thus look forward to Monday’s symposium, although I was surprised to see no reference (perhaps I missed it) to Larry May’s excellent discussion of jus cogens norms in his recent book, Crimes Against Humanity: A Normative Account (2005).  There’s much in his book relevant to the article’s argument.

Interestingly, in another book, War Crimes and Just War (2007), May uses a fiduciary model as part of a larger discussion of the principle of humane treatment to ground international humanitarian law (and to which the principles of discrimination, proportionality and necessity are, in turn, subordinate). In particular, the model is applied to prisoners of war and (alleged) terrorists, their status as prisoners: confined, dependent and vulnerable, giving rise to fiduciary obligations (in this case, a Grotian or natural law ‘principle of humanity’ applies, which May has usefully distinguished from the related principle of humane treatment).

Patrick S. O'Donnell

As a procedural matter: in the future it would be nice if we could be given a bit more notice about the symposium with links to the papers so as to find time to read (and think about) them. Everyone is so busy these days that a day’s notice would not seem to suffice for mere mortals like most of us.

Thanks so much,