An ever greater part of our national law is determined by international and supranational law. I will argue that in present circumstances, existing frameworks and practices concerning international treaty-making on European Union (EU) and national levels, and the underlying concept of separation of powers, are no longer adequate to secure the democratic character of governance by international treaty-making.
The inappropriateness of current practices is best illustrated by treaties such as TTIP, the ‘Transatlantic Trade and Investment Partnership’, a free trade and investment protection agreement currently negotiated between the EU and the USA. I will therefore give an outline of what TTIP and related free trade agreements (FTAs) are about, and of the rules and practices governing the negotiation and conclusion of such agreements, before I come to explain why some of these rules and practices are untenable, and why and how they ought to be changed.
Thursday, January 19, 2017
The 1948 Universal Declaration of Human Rights has been called one of the most powerful documents in human history. Today, the mere accusation of violations of the rights outlined in this document cows political leaders and riles the international community. Yet as a nonbinding document with no mechanism for enforcement, it holds almost no legal authority. Indeed, since its adoption, the Declaration's authority has been portrayed not as legal or political but as moral. Rather than providing a set of rules to follow or laws to obey, it represents a set of standards against which the world's societies are measured. It has achieved a level of rhetorical power and influence unlike anything else in modern world politics, becoming the foundational myth of the human rights project.
Seeing the Myth in Human Rights presents an interdisciplinary investigation into the role of mythmaking in the creation and propagation of the Universal Declaration. Pushing beyond conventional understandings of myth, which tend to view such narratives as vehicles either for the spreading of particular religious dogmas or for the spreading of erroneous, even duplicitous, discourses, Jenna Reinbold mobilizes a robust body of scholarship within the field of religious studies to help us appreciate myth as a mode of human labor designed to generate meaning, solidarity, and order. This usage does not merely parallel today's scholarship on myth; it dovetails in unexpected ways with a burgeoning body of scholarship on the origin and function of contemporary human rights, and it puts the field of religious studies into conversation with the fields of political philosophy, critical legal studies, and human rights historiography. For Reinbold, myth is a phenomenon that is not merely germane to the exploration of specific religious narratives but is key to a broader understanding of the nature of political authority in the modern world.
Wednesday, January 18, 2017
- Axel Marx, The Public-Private Distinction in Global Governance: How Relevant is it in the Case of Voluntary Sustainability Standards?
- Irene I. Hadiprayitno, Development Hazard: A Violation-based Approach to the Right to Development
- Qingjiang Kong, Emerging Rules in International Investment Instruments and China’s Reform of State-owned Enterprises
This book explores the right to democracy in international law and contemporary democratic theory, asking whether international law encompasses a substantive or procedural understanding of the notion. The book considers whether there can be considered to be a basis for the right to democracy in international customary law through identification of the relevant State practice and opinio juris,as well as through an evaluation of the Universal Declaration of Human Rights and whether the relevant provisions might be interpreted as forming customary law. The book then goes on to explore the relevant provisions in international treaties including the International Covenant on Civil and Political Rights before looking at the role of regional organizations and human rights regimes including the European Court of Human Rights and the Arab human rights regime. Khalifa A. Alfadhel draws on the work of John Rawls in order to put forward a theoretical basis for the right to democracy.
Tuesday, January 17, 2017
It is well known that David Lloyd George declared his intent to try the Kaiser for starting World War I, but it is not known that British lawyers embarked on detailed behind-the-scenes plans for prosecuting him — plans now brought to light in newly uncovered archival documents.
At the end of the First World War, Lloyd George declared: ‘The Kaiser must be prosecuted. The war was a crime.’ This was a radical departure from the traditional approach to war, advancing the then-novel ideas that starting an aggressive war was a crime, and that national leader could be held criminally responsible.
After the signing of the Versailles Treaty in June 1919, the British Attorney General, Sir Gordon Hewart, quietly began laying the groundwork for Wilhelm II’s prosecution, in case the latter fell into entente hands. These plans – unheralded then and overlooked since – were set in motion in August 1919, when Hewart convened a meeting between himself, the Solicitor General, the Procurator General, and two senior barristers, Frederick Pollock and George Branson.
As it turned out, the ex-Kaiser never faced trial. Six days after the Versailles Treaty came into force, the entente powers requested that the Netherlands, where Wilhelm II had sought asylum, deliver him for trial. The Dutch refused, and Hewart pulled the plug on the British prosecution project.
This contribution to the Australian Year Book of International Law’s agora on the South China Sea case assesses its treatment of fisheries and environmental issues. These matters might seem only second or third order concerns given the sovereignty and security issues also at stake. However, the South China Sea is one of the world’s most ecologically diverse marine bioregions and sustains an array of coral reef systems and highly productive and valuable fisheries. Contrary to popular perceptions access to these fisheries is more central to the disputes between the littoral states of the region than control over oil and gas resources. The arbitral Tribunal’s merits award clearly recognises this and addresses environmental protection and living resource questions in great length and detail.
- Natalie Y. Morris-Sharma, The ILC’s Draft Articles Before the 69th Session of the UNGA: A Reawakening?
- Andreas Schloenhardt & Hamish Macdonald, Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants
- Tom Obokata, The Value of International Law in Combating Transnational Organized Crime in the Asia-Pacific
- Jinyuan Su, Space Arms Control: Lex Lata and Currently Active Proposals
- Douglas MacFarlane, The Slave Trade and the Right of Visit Under the Law of the Sea Convention: Exploitation in the Fishing Industry in New Zealand and Thailand
- David Price, Indonesia’s Bold Strategy on Bilateral Investment Treaties: Seeking an Equitable Climate for Investment?
- Bassina Farbenblum, Governance of Migrant Worker Recruitment: A Rights-Based Framework for Countries of Origin
- Benoit Mayer, Climate Change Reparations and the Law and Practice of State Responsibility
Recent scholarship in international law has studied the phenomenon of deterritorialization and, in this context, has framed territoriality and functionality as competing modes of organizing the global political order. In this article, we challenge this vision by exploring the hypothesis that territoriality and functionality, rather than mere substitutes or competitors, impart meaning to each other. To test this hypothesis, we identify different modes by which functionality and territoriality interact in the reconfiguration of the international legal space, and in particular in the trade and investment regimes.
In the context of international trade law, we show how territoriality is multiplied, and how it gives meaning to functionality at the intersection of the trade regime and regimes for the protection of health and environment. We further develop the idea of the emergence of techno-territoriality, where norms allegedly promoting global technocracy are being shaped by territoriality.
The analysis of the international investment regime engages with the threats that contractual clauses exert on territoriality in the context of investment operations, the significance of the territorial nexus requirement in the definition of investment, when intangible financial instruments are involved, as well as the ‘international-territoriality’ mode conveyed by the activities of sovereign investors abroad. We conclude by arguing that territoriality is not subsumed by functionality, but is rather undergoing a process of transformation into ‘non-modern’ territoriality: the reassertion of territoriality in investment and trade regimes, albeit in different forms, should be looked at as a positive development to keep alive the ‘public’ core of international law.
Monday, January 16, 2017
- January 20, 2017: Philip Allott (Univ. of Cambridge – Law), Welcome to Eutopia!
- January 27, 2017: Antje Wiener (Universität Hamburg – Political Science), The Rule of Law in Inter-national Relations: Contestation despite Diffusion - Diffusion through Contestation
- February 3, 2017: Lauge Poulsen (Univ. College London - Political Science), The Politics of Investment Treaties in Developing Countries
- February 17, 2017: Stephan Wittich (Univ. of Vienna – Law), Spoilt for Choice? The Reparation of Non-Material Damage in International Law
- February 24, 2017: Tom Dannenbaum (University College London – Political Science), The Criminalisation of Aggression and Soldiers' Rights
Europeans have long justified a right to something or other by invoking ‘prescription’ (that is, the creation of a legal entitlement by the passage of time). Yet for all the importance of prescription in the creation of international geopolitical order, no genealogy of the idea has emerged from historical or legal scholarship. This article will explore the relationship between prescription and empire within private, public, corporate, and ecclesiastical legal contexts. The idea of prescription is then considered within the specific ideological context of European imperialism between 1580 and 1640, when a series of diplomatic disputes and intellectual debates were had in Europe principally regarding maritime navigation and foreign dominion by ‘donation’. The metamorphosis of prescription in legal and political thought from Justinian (483–565) to Hugo Grotius (1583–1645) is therefore explored. Additional colour is given to this intellectual history by contrasting how corporate interests in North America attempted to justify their foreign land holdings in forts, ports, and hinterland by invoking ‘prescription’ during the early stages of colonial expansion. The case will be made for historians of early modern imperialism and international law to take closer notice of the opportunism of those prepared to justify prescription in theory and practice.
- Aoife Nolan, Rosa Freedman & Thérèse Murphy, Introduction
- Elvira Domínguez-Redondo, The History of the Special Procedures: A ‘Learning-by-Doing’ Approach to Human Rights Implementation
- Jane Connors, Special Procedures: Independence and Impartiality
- Felice Gaer, Picking and Choosing? Country Visits by Thematic Special Procedures
- Najat Maalla M’jid,The UN Special Procedures System: The Role of the Coordination Committee of Special Procedures
- Marc Limon, Strengthening Cooperation: The Key to Unlocking the Potential of the Special Procedures
- Ahmed Shaheed & Rose Parris Richter, Coping Mechanisms for State Non-Cooperation
- Inga T. Winkler & Catarina de Albuquerque, Doing It All and Doing It Well? A Mandate’s Challenges in terms of Cooperation, Fundraising and Maintaining Independence
- Olivier de Frouville, Working Out a Working Group: A View from a Former Working Group Member
- Ella McPherson & Thomas Probert, Special Procedures in the Digital Age
- Jessie Hohmann, Principle, Politics and Practice: The Role of UN Special Rapporteurs in the Development of the Right to Housing in International Law
- Surya Subedi, Life as a UN Special Rapporteur: The Experience of the UN Special Rapporteur for Human Rights in Cambodia
- Daria Davitti, Business and Human Rights in the United Nations Special Procedures System
- Paul Hunt, The Challenge of Non-State Actors: The Experience of the UN Special Rapporteur on the Right to the Highest Attainable Standard of Health (2002–08)
- Malcolm Evans, The UN Special Rapporteur on Torture in the Developing Architecture of UN Torture Protection
- Danielle Beswick & Jonathan Fisher, The African State and Special Procedures: Agency, Leverage and Legitimacy
- Rosa Freedman & François Crépeau, Supporting or Resisting? The Relationship between Global North States and Special Procedures
- Phil Lynch, Ending Reprisals: The Role and Responsibilities of the Special Procedures of the UN Human Rights Council
This is the second volume of a projected five-volume series charting the causes of war from 3000 BCE to the present day, written by a leading international lawyer, and using as its principal materials the documentary history of international law, largely in the form of treaties and the negotiations which led up to them. These volumes seek to show why millions of people, over thousands of years, slew each other. In departing from the various theories put forward by historians, anthropologists and psychologists, Gillespie offers a different taxonomy of the causes of war, focusing on the broader settings of politics, religion, migrations and empire-building. These four contexts were dominant and often overlapping justifications during the first four thousand years of human civilisation, for which written records exist. - See more at:
- January 19, 2017: Sophia Kopela (Lancaster Univ.), Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration
- January 26, 2017: Eric Fripp (Lamb Building, Temple), Nationality and Statelessness in the International Law of Refugee Status
- February 2, 2017: Elisa Morgera (Univ. of Strathclyde), Under the Radar: Fair and Equitable Benefit-Sharing and the Human Rights of Indigenous Peoples and Local Communities Related to Natural Resources
- February 9, 2017: Kate O’Regan (Univ. of Oxford), Adjudicating International Law in a Domestic Context: Reflections on the Experience of the South African Constitutional Court
- February 16, 2017: Orna Ben-Naftali (Haim Striks School of Law), The ABC of the OPT (Occupied Palestinian Territory): A Legal Scrabble
- February 23, 2017: Jean-Marie Henckaerts (International Committee of the Red Cross), The Updated Commentary on the First Geneva Convention: Relevance and Evolution of the Convention in the Light of 60 Years of Practice
- March 2, 2017: Verity Robson (Foreign and Commonwealth Office), Recent Developments in the Law of Diplomatic Immunities
- March 9, 2017: Benjamin Samson (Université Paris Ouest Nanterre La Défense), Advocacy before the International Court of Justice
Sunday, January 15, 2017
In The Protection of Water During and After Armed Conflicts: What Protection in International Law?, Mara Tignino offers an analysis of the principles and rules protecting water in situations of armed conflicts. The monograph also gives insights on the legal mechanisms open to individuals and communities after a conflict. Practice of international organizations and judicial decisions are examined in order to define the contours of the norms dealing with armed conflicts and post-conflict situations.
Beyond international humanitarian law, the author suggests that other areas of international law should be taken into account such as human rights law and international water law. This comprehensive view aims at preventing damage to water resources and ensuring access to safe drinking water. Given the fragmentation of instruments and norms dealing with water in times of armed conflicts, it requires an in-depth examination of what means of international law may be developed to ensure a better protection to water.
A prize has been established by the Society of International Economic Law (SIEL), Journal of International Economic Law (JIEL) and Oxford University Press (OUP) for the best essay submitted on any topic in any field of international economic law. Entries for the 2016-17 competition were due to close on January 15, 2017 but this submission deadline has now been extended until January 31, 2017.
The competition is open annually to all current undergraduate and graduate students of any university or other tertiary education institution, and those who have graduated from a university or other tertiary education institution no earlier than five years before the submission deadline. Co-authorship is permitted provided all authors meet the stated conditions. Members of the SIEL Executive Council may not submit entries. The essay must not have been previously published.
The essay prize comprises three parts. The prize consists of £200, as well as £400 of Oxford University Press book vouchers and a three year subscription to the Journal of International Economic Law. The winner will receive free entry to the BIICL/IIEL/SIEL WTO Conference and will be given the opportunity to present on a panel or poster presentation. The winning essay will be submitted to the JIEL for publication, subject to the JIEL’s review and decision procedure.
The prize will be awarded by the SIEL Executive Council on the recommendation of a Prize Committee drawn from its members and the Editorial Board of the JIEL. Any queries should be addressed by email to Dr Gracia Marin Duran, University of Edinburgh (Gracia.Marin-Duran@ed.ac.uk).
- Ben Czapnik, Will the Trade Facilitation Agreement’s Novel Architecture and Flexibilities Have Unforeseen Consequences? An Analysis in the Context of World Trade Organization Accessions
- Minyou Yu & Jian Guan, The Non-Market Economy Methodology Shall Be Terminated After 2016
- Lila Rose, Free Trade Is Not Free: The Costs of Trade Compliance for Businesses
- Jeong Cheol Cho, Korea’s Customs Valuation Method for Transaction Value Between Related Parties
- Alex Davis, The Shochu Conundrum: Economics and the General Agreement on Tariffs and Trade Article III
- Jon Truby, International Investment Law, Trade in Services and Customs: Legislative Strategies for States Hosting International Competitive Events
The emergence of new international criminal courts in the 1990s intensified an existing professional contest to define international crime. This ongoing competition concerned which crimes should be termed international and consequently become the subject of international institution-building and prosecution. The article draws upon Pierre Bourdieu’s analytical tool of the ‘field’ in order to investigate successive phases how legal professionals located in different fields of practice crafted and promoted specific crimes as international. The focus of the analysis is on two stages of this development: The first is the protracted emergence of a field of ‘core crimes’ centred on a specific set of crimes: genocide, crimes against humanity, and war crimes. The second focal point is an emergent contestation of this focus on ‘core crimes’ embedded in the careers of legal professionals engaged in the field of anti-corruption. By adapting the impactful narratives developed around core crimes, this second phase of contestation becomes a new frontline in the wider endeavour to define the role of criminal law in a larger international space of governance and politics.
Over the past few decades, a few thousand international investment agreements have been concluded. One cornerstone of those treaties has been a straightforward model of foreign investment: an investor based in a home State that has made an investment located in the territory of a host State. Under that model, treaty protections operate reciprocally, protecting the investments of each treaty party’s nationals made in the territory of another treaty party.
The foreign investment model on which investment treaties have been based — and which, in turn, supports the reciprocal structure of the treaties — often does not capture current economic reality. Foreign investments by multinational enterprises today routinely involve multiple jurisdictions in which inputs are traded (as part of international production networks known as global or regional value chains) and through which capital is channeled (as transit investment).
The reliance by multinational enterprises on international production networks and transit investment has challenged the reciprocal foundation of investment treaties. This article responds to that risk by developing strategies for policymakers and decision-makers to preserve the reciprocal foundation of investment treaties in a 21st century global economy.
This article examines the international legal protections for UN humanitarian assistance and other civilian facilities during armed conflict, including both general international law setting forth the immunities of the United Nations and the law of armed conflict (LOAC), the relevant legal framework during wartime. Recent conflicts highlight three primary issues: 1) collateral damage to UN facilities as a consequence of strikes on military objectives nearby and military operations in the immediate vicinity; 2) the misuse of UN facilities for military purposes; and 3) direct attacks on fighters, weapons or other equipment that cause damage to such facilities.
UN facilities around the world enjoy protections enshrined in the 1946 Convention on the Privileges and Immunities of the United Nations, which helps to enable the UN — and its many components, agencies and other offshoots — to carry out the critical work of protecting, feeding and supporting individuals and communities around the world in tense and violent situations. At the same time, in situations of armed conflict, the LOAC governs the conduct of hostilities, including the targeting of persons and objects and the protection of civilians, the civilian population, civilian objects, and specially-designated objects from attack. The interplay between these two legal frameworks provides the foundation for understanding the protection of UN premises during armed conflict — and the limits of that protection.
To identify the appropriate parameters for, and limits of, protection for such facilities, this article therefore focuses on what inviolability of UN premises — the term used in privileges and immunities law — means within the context of armed conflict and the law of armed conflict. Part II addresses the question of which law governs for the purposes of determining the scope of protection for UN facilities and analyzing actions during armed conflict to assess whether damage to UN facilities violated that law. In particular, this section first explores the meaning of “inviolability” in the CIPUN to understand if and how it applies in the context of military operations, and demonstrates that inviolability does not encompass harm from military operations during armed conflict. Second, this section applies the principle of lex specialis to demonstrate that even if one extends the principle of inviolability beyond its accepted understanding, LOAC is the appropriate legal framework for analyzing harm to UN facilities during armed conflict if there is a conflict between general international law on immunities of the UN and LOAC. Part III then examines how the LOAC’s rules on military objectives, specially-protected objects, proportionality and precautions apply in practice when UN facilities located in areas of combat operations face direct or collateral consequences from those operations.
Human rights in general and the international human rights system in particular have come under increasing attack in recent years. Quite apart from the domestic and global political events of 2016 including an apparent retreat from international institutions, the human rights system has also come in for severe criticism from academic scholars. Amongst the various criticisms levelled have been: (1) the ineffectiveness and lack of impact of international human rights regimes (2) the ambiguity and lack of specificity of human rights standards (3) the weakness of international human rights enforcement mechanisms and (4) the claim to universalism of human rights standards coupled with the hegemonic imposition of these standards on diverse parts of the world. This article responds to several of those criticisms by surveying a body of recent empirical scholarship on the effectiveness of human rights treaties, and interpreting key aspects of the functioning of those treaties from the perspective of experimentalist governance theory. Contrary to the depiction of international human rights regimes as both ineffective and top-down, the article argues that they function at their best as dynamic, participatory and iterative systems. The experimentalist governance perspective offers a theory of the causal effectiveness of human rights treaties, brings to light a set of features and interactions that are routinely overlooked in many accounts, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in practice.
Saturday, January 14, 2017
- Special Section on Shadow Banking
- Cornel Ban & Daniela Gabor, The political economy of shadow banking
- Oddný Helgadóttir, Banking upside down: the implicit politics of shadow banking expertise
- Dick Bryan, Michael Rafferty & Duncan Wigan, Politics, time and space in the era of shadow banking
- Daniela Gabor, The (impossible) repo trinity: the political economy of repo markets
- Cornel Ban, Leonard Seabrooke & Sarah Freitas, Grey matter in shadow banking: international organizations and expert strategies in global financial governance
- Other Research Articles
- Jan Fichtner, The anatomy of the Cayman Islands offshore financial center: Anglo-America, Japan, and the role of hedge funds
- Benjamin Braun, Speaking to the people? Money, trust, and central bank legitimacy in the age of quantitative easing
This contribution seeks to describe briefly two innovations in the Polish law from the international law, especially UNCLOS, perspective. These are: (a) the adoption of new and more precise regulations concerning the Polish baselines and (b) the establishment by Poland of its Contiguous Zone. Hence, the structure of the paper is as follows. The two main parts of this paper are devoted to the analysis of baselines and the Contiguous Zone, respectively. Each of them is divided into two main subsections. One describes a given issue from the international law perspective; the other presents the ‘other side of the coin’, namely: the Polish national regulations in that respect. Finally, some concluding remarks are offered in the final section.