- Jennifer Hasselgård-Rowe & Emmanuel Kabengele Mpinga, Justiciability of the Right to Health in South Africa and Switzerland through the Lens of its Normative Components
- Mohamed Elewa Badar, ElSayed M.A. Amin, & Noelle Higgins, The International Criminal Court and the Nigerian Crisis
- Ronagh JA McQuigg The European Convention on Human Rights Act 2003 – Ten Years On
- J. Ife Ogbonna, Protecting Human Rights as Public Morals under the General Agreement on Tariffs and Trade (gatt) 1994
- Triestino Mariniello, International Criminal Court: Selected Developments in 2013
- Saidat Nakitto, South Africa’s Exercise of Universal Jurisdiction
- Ilias Bantekas, The Emergence of an International Law of Sovereign Debt and Insolvency
Monday, September 1, 2014
This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.
Sunday, August 31, 2014
Giladi: A ‘Historical Commitment’? Identity and Ideology in Israel's Attitude to the Refugee Convention 1951–4
The paper examines and debunks the conventional wisdom that Israeli foreign policy incorporates a ‘historical commitment’ to the 1951 UN Refugee Convention. Particular Jewish interests and universal values, it is argued, led the newfound Jewish state to initiate the Convention, participate in its formulation, and promote its acceptance; Israel was, additionally, among the first states to sign and ratify the Convention. Against the backdrop of present-day discourse and competing perspectives on the Jewish motif in Israel's foreign policy, the paper traces the process of Israel's ratification of the Refugee Convention. Israel's attitude to the Convention, it finds, was characterised by delay, disinterest, indifference, even hostility. Moreover, neither particular interests nor universal values satisfactorily explain Israel's attitude. Rather, this attitude was the outcome of competing visions of Israel's identity and ideological interpretations of Jewish nationalism. Ideologically, the Convention validated yet at the same time also undermined Israel's particular identity as the state of refuge of the Jewish people and its ideological raison d’être in the world system. This ambivalence allowed Israeli diplomats to construct a logic of exemption under which the particularity of Israel's very existence as the state of refuge of the Jewish people represented complete performance of its universal obligations under the Convention.
Le mécanisme de règlement des différends de l’O.M.C. se distingue des autres juridictions internationales en ce qu’il comporte un ensemble sophistiqué de procédures spécifiquement et exclusivement destinées à traiter les désaccords pouvant surgir au cours de l’exécution de l’obligation qui résulte pour un Membre de la décision juridictionnelle qui déclare sa responsabilité. Leur existence même et la façon dont les organes de jugement s’acquittent de leur mission témoignent de ce que l’exécution des obligations résultant des actes juridictionnels dans l’ordre international n’échappe pas fatalement au droit. Ainsi, le système de l’O.M.C. exprime mais aussi réalise une ambition singulière en droit international : renforcer la garantie de la légalité en habilitant la juridiction à encadrer, contrôler, et, en définitive, participer à assurer l’exécution de ses propres décisions.
Saturday, August 30, 2014
The system of optional clause declarations is a unique regime of compulsory jurisdiction based on the two World Courts’ Statutes. This timely book offers a wide-ranging academic survey of the developments of that system, the theoretical and procedural aspects of the unilateral declarations of acceptance and the reservations added to these declarations.
The author critically examines those reservations which undermine the system of compulsory jurisdiction and discusses the major controversies. She considers the various aspects of compulsory jurisdiction giving special attention to the States’ practice, the Courts’ jurisprudence and both Courts’ relevant case law. The book contains a unique comparative analysis of all the declarations of acceptance made since the establishment of the Permanent Court of International Justice while also debating the shortcomings and the future of the system.
Friday, August 29, 2014
- A Century after Sarajevo: Reflections on World War I
- Ja Ian Chong & Todd H. Hall, The Lessons of 1914 for East Asia Today: Missing the Trees for the Forest
- Etel Solingen, Domestic Coalitions, Internationalization, and War: Then and Now
- Jack Snyder, Better Now Than Later: The Paradox of 1914 as Everyone's Favored Year for War
- Tanisha M. Fazal, Dead Wrong?: Battle Deaths, Military Medicine, and Exaggerated Reports of War's Demise
- Jerry Mark Long & Alex S. Wilner, Delegitimizing al-Qaida: Defeating an “Army Whose Men Love Death”
- Liam Anderson, Ethnofederalism: The Worst Form of Institutional Arrangement…?
As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing law to meet those challenges.
Rather than seeking to impose, up front, a new set of prohibitory rules or seeking to suspend development of autonomous weapon systems pending a comprehensive agreement on rules to govern them, international regulation of autonomous weapons systems should begin with the premise that the law of armed conflict provides an appropriate general framework. States should work to build on that framework through continually-improving interpretive standards and agreed-upon best practices. We propose a three-tiered approach to emerging automation and autonomous weapon technologies: (i) an international agreement that makes clear the applicability of baseline law of armed conflict rules and that codifies standards, practices, and interpretations that states have converged upon over a long period of actual development of systems, in tandem with discussion among states informally, and informed by sufficiently transparent and open sharing of relevant information; (ii) state-level development and inter-state discussion of weapon review practices, tailored to these specific weapons and their battlefield environments; and (iii) close coordination among weapons designers, developers, manufacturers, and military end-users of these systems, with lawyers responsible for legal weapons review, at each granular stage of design, development, and testing. The integration of these three levels can assist to appropriately and realistically shape advancing military technologies while improving adherence to core law of armed conflict principles.
As the world’s coastal states go about dividing up the ocean floor, the work of the Commission on the Limits of the Continental Shelf plays an increasingly important role. The Commission on the Limits of the Continental Shelf: Law and Legitimacy examines the Commission from two different but interrelated perspectives: a legal analysis of the Commission’s decision-making; and a study of normative legitimacy related to the Commission and its procedures. Insights into the history of the development of the concept of the continental shelf in the law of the sea are offered, including an explanation of how the institutionalized method for ascertaining continental shelf limits in the UN Convention on the Law of the Sea came into being. Through a deep-ranging analysis of the Commission and its work, the book introduces a framework for assessing best practices, and will serve as a useful reference for academics, scientists and policymakers alike.
The question of what status the precautionary principle enjoys in international law has once again reared its head; most recently in the Indus Water Treaty dispute between India and Pakistan before the Permanent Court of Arbitration, where the claim for customary status was advanced by Pakistan only to be countered by India. This paper assesses the current state of play in respect to the precautionary principle and its status in international law. The paper does this by identifying what it terms the two camps of precaution, the custom camp and the no custom camp, which find themselves on opposing sides in the debate. The paper argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In doing so the paper relies on the concepts of ‘precaution spotting’ and what is elsewhere termed the ‘rule v. standard’ dialectic. These two concepts help us understand the different claims advanced by the two camps and alert us to the fact that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.
This contribution examines the international legal relevance of the recent Crimean referendum, starting from the premise that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua non for any territorial re-apportionment. It concludes that the referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status.
- Bart Legum & Anna Crevon, An Outline of Procedure in an Investment Treaty Arbitration – Strategy and Choices
- O. Thomas Johnson & David Pinsky, Representing Claimant: Pre-Arbitration Considerations
- Jeremy K. Sharpe, Representing a Respondent State in Investment Arbitration
- Eloise Obadia & Frauke Nitscheke, The Role of the Secretariat
- Chiara Giorgetti, The Arbitral Tribunal: Selection And Replacement Of Arbitrators
- Andrea Carlevaris, Preliminary matters: Objections, Bi-Furcation, Request for Provisional Measures
- Mark Clodfelter, Written Proceedings
- Catherine Amirfar, Oral Proceedings
- Andrea Kay Bjorklund, Applicable Law in International Investment Disputes
- Rahim Moloo, Evidentiary Issues Arising in the Investment Arbitration Context
- Brooks Daly & Fiona Poon, Technical and Legal Experts in International Investment Disputes
- Neale Bergman, Transparency of the Proceedings and Third Party Participation
- Michelle Bradfield & Guglielmo Verdirame, Costs in International Investment Arbitration
- John Crook, The Award and Discontinuance of the Proceeding
- Carolyn B. Lamm & Eckhard R. Hellbeck, The Enforcement of Awards
- Veijo Heiskanen & Laura Halonen, Post-Award Remedies
Thursday, August 28, 2014
- Editorial Comments
- Sienho Yee, The Competition between and among Intrinsic and Instrumental Values in Selected Competing Visions of the World
- Agnieszka Szpak, What to Do With Failed States—a Quest for a Solution from the Inside
- Padraig McAuliffe, From Watchdog to Workhorse: Explaining the Emergence of the ICC's Burden-sharing Policy as an Example of Creeping Cosmopolitanism
- Harmen van der Wilt, Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts
- Guiguo Wang, Consent in Investor–State Arbitration: A Critical Analysis
- Pallavi Kishore, Special and Differential Treatment in the Multilateral Trading System
Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.
Wheatley: Deliberating About Cosmopolitan Ideas: Does a Democratic Conception of Human Rights Make Sense?
One of the major theory-based problems for human rights is that they lack an agreed ontological foundation. The objective of this chapter is to consider whether it is possible to justify global human rights by reference to an application of deliberative democracy to world society, given that the relevant community of fate is the unbounded human species. Three approaches can be seen in the literature: human rights as globalized constitutional rights (the position advanced by Jürgen Habermas); human rights as global constitutional rights; and human rights as a global ethic arrived at through reasoned deliberations. This consensus literature can, though, be contrasted with work that understands human rights as the politics of dissensus – the product of outrage and emotion, not reason. Drawing on the insights from the social systems theories of Niklas Luhmann and Gunther Teubner, this work considers the implications of the dissensus literature, concluding that human rights becomes meaningful primarily as an argument against politics. The contingent and contested device of the human ‘face’, which demands inclusion in the system and complains of violations of physical and psychological integrity, allows for a global (cosmopolitan) conversation around ‘being human’ – and provides the starting point for any discussion of the idea of human rights.
- Robert French, A Public Law Perspective on Intellectual Property
- Hans Morten Haugen, How Are Indigenous and Local Communities' Rights Over Their Traditional Knowledge and Genetic Resources Protected in Current Free Trade Negotiations? Highlighting the Draft Trans-Pacific Partnership Agreement (TTPA)
- Geneviève Teil, Nature, the CoAuthor of Its Products? An Analysis of the Recent Controversy Over Rejected AOC Wines in France
- Pawarit Lertdhamtewe, The Protection of Geographical Indications in Thailand
International law skeptics have long worried that a focus on compliance with international law may overstate effectiveness — the extent to which international law induces changes in state behavior. In this essay, I argue that using compliance as the primary metric to evaluate international law risks understating its effectiveness for at least two reasons. First, noncompliance is often used as a negotiation technique. Despite the growth of international tribunals in recent decades, international law remains principally a negotiated system of law. States thus often use compliance disputes as tools to define legal obligations prospectively, rather than only or even primarily to determine responsibility retrospectively. Second, a state may use its own short-term noncompliance as part of long-term strategy to change its own behavior. Interest groups may press for a state to join an international agreement so that they can use the state’s noncompliance to push for changes domestically. Governments may also join regimes with which they know they will be noncompliant in order to gain access to foreign assistance, which can enhance compliance over time. Far from indicating international law’s ineffectiveness, when used in these two ways noncompliance indicates states’ long term commitment to working within a legal regime.
Wednesday, August 27, 2014
This article considers the relationship between international law and the UN Security Council. The practical power of the Council is constituted at the intersection of its legal framing, its political legitimacy, and the interests of powerful states. This sometimes means the Council has less power than is assigned to it by the UN Charter, but it often means that it has more. It is clear that the Council sits within the international legal system, the legal limits on its action are interpreted in light of prior Council practice, and thus the meaning of ‘compliance’ and ‘violation’ of the Charter changes over time. Some transgressions of the Charter are understood as informal amendments to it; others are seen as threats to international peace and security that impel enforcement action. This ambiguity in the law and practice of the United Nations is inherent in the idea of the ‘international rule of law’. The Council straddles the unstable boundary between international law and politics, both undermining and reinforcing the distinction between them.
- On the Philosophy of International Criminal Law
- Anja Matwijkiw, Introduction: On the Philosophy of International Criminal Law
- Peg Birmingham, Hannah Arendt’s Philosophy of Law Approach to International Criminal Law
- Samuel Moyn, Judith Shklar on the Philosophy of International Criminal Law
- Giorgio Bongiovanni, Giovanni Sartor & Chiara Valentini, Philosophy of Law and International Criminal Law: Between Peace and Morality
- Larry May, A Hobbesian Defense of International Criminal Law
- Michael Davis, Between Peace and War: The Moral Justification of State-Sanctioned Killing of Another State’s Civilian Officials
- Alejandro Chehtman, Contemporary Approaches to the Philosophy of Crimes against Humanity
- Ryan Long, Responsibility, Authority, and the Community of Moral Agents in Domestic and International Criminal Law
- Erasmus Mayr, International Criminal Law, Causation, and Responsibility
- Steve Viner, Justice and Recognizing the Rights of States
- Zachary Hoskins, Punishing States and the Spectre of Guilt by Association
- Henrik Palmer Olsen & Stuart Toddington, The End of an Era: Static and Dynamic Interpretation in International Courts
- Anja Matwijkiw & Bronik Matwijkiw, Stakeholder Applications
The International Criminal Court (ICC) sits atop a legal regime that depends heavily on national governments and institutions of criminal justice in two crucial ways. First, the ICC exercises “complementary” jurisdiction, prosecuting only when states cannot or will not do so. National courts should prosecute the lion’s share of ICC crimes. Second, the ICC will depend on the cooperation of national institutions and officials for everything from gaining custody of the accused to gathering evidence and securing witnesses. In order to play their role in the ICC system, states must enact legislation that addresses both aspects of their relationship with the ICC: complementarity and cooperation. Because implementation legislation is costly, states that enact complementarity and cooperation laws display a higher level of commitment to the ICC than those who do not. This paper tests the hypotheses that democracies and states with transitional justice mechanisms underway will be more likely to enact implementing legislation and that states that are most involved in armed conflict abroad – whether through war or United Nations peacekeeping operations – will be less likely to do so. The analysis of data from more than 150 countries employs a Heckman selection model that takes into account whether states have ratified the Rome Statute in the first place. The results strongly confirm the democracy and transitional justice hypotheses, but states involved in international wars are actually more likely to pass ICC implementing legislation.
This article provides a systematic overview of the rules governing the end of application of international humanitarian law, or the law of armed conflict. It articulates the general principle that unless there is a good reason of text, principle or policy that warrants an exception, the application of IHL will cease once the conditions that triggered its application in the first place are no longer met. For IHL to apply, its distinct thresholds of application – international armed conflict, belligerent occupation, and non-international armed conflict – must continue to be satisfied at any given point in time. The article also examines situations in which a departure from the general rule is warranted, as well as the factors that need to be taken into account in determining the end of each type of armed conflict. In doing so, the article analyzes terminating processes and events, which generally end the application of IHL (but not necessarily all of it), and transformative processes and events, which end the application of one IHL sub-regime but immediately engage another. Finally, the article briefly looks at the (putative) armed conflict between the US and Al-Qaeda and its seemingly imminent end.
Barcelona Workshop on Global Governance
The Public and the Private in Global Governance
15 & 16 January 2015 – IBEI & ESADEgeo, Barcelona
Call for Papers
Global governance is constructed by both public and private actors. Governments have created international institutions and transgovernmental networks; companies have established selfregulatory structures; civil society and business organizations have been active in norm‐setting and monitoring. They have joined forces in various hybrid organizations, which collaborate and compete with each other, and all perform functions in the many regulatory spaces that include institutions and actors of various origins. At the same time, many privately‐created bodies claim to provide public goods, while many institutions of public origin are criticized for pursuing private gains or for being strongly influenced by private interests. As a result, the boundaries between public and private in global governance have become blurred, and the classical public/private distinction – central to structuring our understanding of domestic government – is under increasing pressure. On this background, the 2015 Barcelona Workshop on Global Governance asks how ‘the public’ and ‘the private’ are related in current structures of global governance. Key questions involve:
The Barcelona Workshop on Global Governance is a venue for the study of global governance – its structure, effects, and problems – from an interdisciplinary perspective, bringing together scholarship from international relations, law, sociology, anthropology, political theory, public administration and history. Its 3rd edition will be held on 15 & 16 January 2015 in Barcelona. Confirmed practitioner speakers include Narcis Serra (former Spanish Defense Minister and Deputy Prime Minister) and Javier Solana (former NATO Secretary General and EU High Representative for Common and Foreign Security Policy). Confirmed academic keynote speakers include Andrew Hurrell (University of Oxford) and Jonas Tallberg (Stockholm University).
- Does it make sense to maintain a distinction between public and private authority, and if so, how ought ‘publicness’ to be reformulated for the global sphere? What could take the place of the public/private distinction for structuring accounts of legitimacy and accountability in global governance?
- Do the authority and legitimacy of global governance, both normatively and sociologically, depend on the ‘publicness’ of its institutions?
- How do institutions (including privately‐created ones) generate, or seek to generate, ‘publicness’ in their rhetoric, procedures and accountability mechanisms, and with what success?
- How do private actors, both national and transnational, participate in global governance regimes? What patterns of interaction exist between privately‐ and publicly‐created institutions?
- What success can the construction of a ‘global public law’ as a law of global governance have?
The workshop is organized by ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) and IBEI (Institut Barcelona d’Estudis Internacionals).
We invite abstract proposals from interested scholars from all disciplines. Proposals should not exceed 500 words in length. Preferred format for all submissions is PDF. Please send your proposal as an attachment to email@example.com and insert “Submission: Barcelona Workshop on Global Governance” as the subject line of the message. The deadline for abstracts is 29 September 2014. All proposals will undergo peer review and notifications of acceptance will be sent out by 22 October 2014. Full papers are expected to be delivered by 8 January 2014 for circulation among participants.
Send submissions: firstname.lastname@example.org with Subject: “Submission: Barcelona Workshop on Global Governance”
Deadlines: 29 September, 2014
Notifications of acceptance: 22 October, 2014
Xavier Fernandez‐i‐Marin, ESADEgeo
Jacint Jordana, IBEI
Nico Krisch, IBEI
Angel Saz‐Carranza, ESADEgeo
Tuesday, August 26, 2014
- Special Issue: International and European Chemicals Regulation
- Elizabeth Fisher, Chemicals as Regulatory Objects
- Katharina Kummer Peiry, The Chemicals and Waste Regime as a Basis for a Comprehensive International Framework on Sustainable Management of Potentially Hazardous Materials?
- Daryl Ditz & Baskut Tuncak, Bridging the Divide between Toxic Risks and Global Chemicals Governance
- Henrik Hallgrim Eriksen & Franz Xaver Perrez, The Minamata Convention: A Comprehensive Response to a Global Problem
- Jessica Templeton & Pia Kohler, Implementation and Compliance under the Minamata Convention on Mercury
- Lucas Bergkamp & Nicolas Herbatschek, Regulating Chemical Substances under REACH: The Choice between Authorization and Restriction and the Case of Dipolar Aprotic Solvents
- Original Articles
- Chris Wold, Victoria Johnston & Benjamin Saver, Addressing the Underreporting of Methane Emissions from Natural Gas Production and Thawing Permafrost
- Akiva Fishman & Krystof Obidzinski, European Union Timber Regulation: Is It Legal?
- Case Note
- James Maurici & Alistair Mills, Regina (Buckinghamshire County Council and others) v. Secretary of State for Transport