The outcome of a dispute may greatly depend on the rules determined to be applicable. International investment arbitration does not differ from other arbitral procedures: the principle of party autonomy is the primary rule governing the arbitration. Only in the absence of a choice of law, arbitrators are entitled to exercise a certain degree of discretion in the determination of the applicable law. But, what are the solutions adopted in the absence of such choice? What are the interactions between the different legal systems involved (i.e., domestic and international law)? Moreover, given the new European Union competence over foreign investments, can EU law be deemed applicable to the resolution of a dispute?
Saturday, April 15, 2017
- Half a Century with the International Covenants on Human Rights: Long-Term Impacts on the World: Part One
- Kaoru Obata, Overview of a Half-Century of International Covenants on Human Rights; Inter-State Cooperation as the Original Infrastructure and Autonomous Institutionalization
- Andrew Byrnes, Whose International Law Is It? Some Reflections on the Contributions of Non-State Actors to the Development and Implementation of International Human Rights Law
- Shin Hae-Bong, Toward a Holistic Understanding and Implementation of Human Rights: Development of Norms and Practice under the International Covenant on Economic, Social and Cultural Rights
- Antoine Buyse, Echoes of Strasbourg in Geneva — The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee —
- Yasuzo Kitamura, The Influence of the International Covenant on Civil and Political Rights on Prisoners’ Rights and Criminal Justice in Contemporary Japan
- Teraya Koji, The Impact of the International Covenants on Human Rights on the Rights of Foreigners in Japan
- Unilateralism and Multilateralism in Regulating Cross-Border Business Transactions: Part One
- Ralf Michaels, Towards a Private International Law for Regulatory Conflicts?
- Tadashi Shiraishi, Customer Location and the International Reach of National Competition Laws
- Keigo Fuchi, Unilateralism, Bilateralism, and Multilateralism in International Taxation
- Takashi Kubota, Financial Stability Concern of the Extraterritorial Impacts Caused by the Recent US Financial Sanctions on Foreign Banks
- Party Autonomy in Contemporary Private International Law: Part Two
- Stéphanie Francq, Party Autonomy and Regulation — Public Interests in Private International Law —
- Yuko Nishitani, Party Autonomy in Contemporary Private International Law — The Hague Principles on Choice of Law and East Asia —
- ICJ Judgment on Whaling in the Antarctic: Its Significance and Implications: Part Two
- Shotaro Hamamoto, Paradoxical Role of Experts in the Whaling in the Antarctic Case
- Japanese Digest of International Law
- Tomohiro Mikanagi & Hirohito Ogi, The Japanese Views on Legal Issues Related to Security
- Masahiko Asada, The Destruction of Japanese Abandoned Chemical Weapons in China under the Chemical Weapons Convention
- Cases and Issues in Japanese Private International Law
- Béligh Elbalti, The Jurisdiction of Foreign Courts and the Recognition of Foreign Judgments Ordering Injunction: The Supreme Court Judgment of April 24, 2014
Messenger: The Practice of Litigation at the ICJ: The Role of Counsel in the Development of International Law
International law is the law of States. They are the principal actors in international law, and it is primarily upon their consent that the international legal system is built. This is the customary starting point, upon which additional complexities are added: the role of international organizations (‘IOs’), multinational corporations or other non-state actors, and the importance of transnational networks of regulators.
This contribution seeks to identify the role of another set of actors involved in international law-making – international legal counsel – those individuals involved in providing legal advice and litigating at international tribunals. In particular, the focus will be on the most traditional of international law’s judicial institutions: the International Court of Justice (‘ICJ’). The argument is the following: beyond the orthodox accounts of law-making as dominated by States or IOs and guided by international tribunals such as the ICJ, there exists a cooperative process of law-making exercised by international legal counsel, technical assistants, and diplomats in concert with judges and secretariats of international tribunals. Together, they form a social space in which their competition is based on (implicitly) agreed rules, most of which are non-legal in nature. Such a process is to the benefit of a number of actors involved, though States are not necessarily principal among these.
- Christian Charrière-Bournazel, Libres propos sur la Turquie et l’Europe
- Béatrice Pastre-Belda, La femme dans la jurisprudence de la Cour européenne des droits de l’homme
- Charlotte Crucifix & Alice Gilot, Grève dans les prisons : pour l’instauration d’un service minimum en Belgique
- Mihaela Ailincai, Julie Arroyo, Stéphane Gerry-Vernières, Sabine Lavorel, Delphine Mardon, & Sandrine Turgis, La soft law dans le domaine des droits fondamentaux (juin 2015 – octobre 2016)
- Aurélia Schahmaneche & Mustapha Afroukh, Les demandes d’asile fondées sur la religion devant la Cour européenne des droits de l’homme : une protection à éclipses (obs/s. Cour eur. dr. h., Gde Ch., F.G. c. Suède, 23 mars 2016)
- Antoine Chopplet, Une nouvelle contribution au concept de « journalisme responsable » par la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., Gde Ch., Bédat c. Suisse, 29 mars 2016)
- Florence Benoît-Rohmer, Les cours européennes face au défi de la confiance mutuelle (obs/s. Cour eur. dr. h., Gde Ch., Avotinš c. Lettonie, 23 mai 2016)
- Stéphanie Wattier, Le Conseil d’État français suspend l’interdiction du port du « burkini » (obs/s. Cons. Etat (fr.), Ligue des droits de l’homme e.a., 26 août 2016)
- Christelle Macq, Accès différé à l’assistance d’un avocat : la Cour confirme et précise sa jurisprudence (obs/s. Cour eur. dr. h., Gde Ch., Ibrahim e.a. c. Royaume-Uni, 13 septembre 2016)
- Frédéric Krenc, À propos de la radiation de la requête V.M. par la Grande Chambre et de l’autorité du précédent arrêt de chambre constatant la violation de la Convention (obs/s. Cour eur. dr. h., Gde Ch., V.M. e.a. c. Belgique, 17 novembre 2016)
Friday, April 14, 2017
In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.
In 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In 2016, based on the Special Rapporteur’s Second Report, the Commission provisionally adopted an addition six draft articles with commentary. In this Third Report, which will be debated by the Commission during the summer of 2017, the Special Rapporteur proposes a draft preamble and seven additional draft articles, which are focused on various obligations of States with respect to the prosecution of crimes against humanity within national law. Specifically, the seven proposed draft articles address: extradition (draft article 11); non-refoulement (draft article 12); mutual legal assistance (draft article 13); treatment of victims, witnesses and others (draft article 14); relationship to competent international criminal tribunals (draft article 15); federal State obligations (draft article 16); and inter-State dispute resolution in the event of non-compliance (draft article 17).
Annex I to the report contains the ten draft articles provisionally adopted by the Commission to date. Annex II contains the draft preamble and seven draft articles proposed in this report.
The 2017 Conference on Theory and International Law seeks to understand better the behaviour of those who shape international law - international and domestic judges, arbitrators, and state officials. Inspired by ground-breaking research that opens the "black box" of international decision-making, this Conference invites participants to theorise, experiment and speculate.
Some of the questions we will explore are: Do decision-makers behave rationally? Do they behave predictably?What factors may influence their decision-making? What are the roles of cognitive skills, intuition, and background, including education and political persuasion? What are the implications of these insights for choosing a method of dispute settlement for a particular case or designing a dispute settlement mechanism for future disputes? What are the implications for the conduct and procedures of international negotiations?
Mitchell & Munro: Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements
This article considers whether an international investment agreement (IIA) between two States parties can be interpreted in the light of a ‘third-party IIA’ (defined as a party’s IIA with a third State, a party’s model IIA, or an IIA between other States parties). A significant number of tribunals have been willing to interpret the IIA before them with reference to third-party IIAs, drawing inferences from differences or similarities in their texts. However, the use of third-party IIAs in this manner often reflects an erroneous application of the customary rules of treaty interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. These conclusions have significant implications for international investment law and State practice. If investment tribunals continue to look to third-party IIAs beyond the parameters of the Vienna Convention, beyond consent of the disputing parties, and beyond the common intention of treaty parties, contemporary developments in treaty drafting may have unintended or even perverse consequences.
- Social-Environmental Conflicts, Extractivism and Human Rights in Latin America
- Malayna Raftopoulos, Contemporary debates on social-environmental conflicts, extractivism and human rights in Latin America
- Joanna Morley, ‘ … Beggars sitting on a sack of gold’: Oil exploration in the Ecuadorian Amazon as buen vivir and sustainable development
- Radosław Powęska, State-led extractivism and the frustration of indigenous self-determined development: lessons from Bolivia
- Rickard Lalander, Ethnic rights and the dilemma of extractive development in plurinational Bolivia
- Marieke Riethof, The international human rights discourse as a strategic focus in socio-environmental conflicts: the case of hydro-electric dams in Brazil
- John-Andrew McNeish, Extracting justice? Colombia’s commitment to mining and energy as a foundation for peace
This chapter examines the role of the International Criminal Court in conflict prevention. To that end, it explores three sub-questions. First, what does the ICC have to do with prevention? Second, what does the Court have to do with the prevention of conflict in particular? And finally, even more specifically, what does it have to do with the prevention of conflict in Africa? In reflecting upon these questions, the chapter highlights some of the most frequent assumptions underpinning claims about the ICC and conflict prevention on the continent.
Thursday, April 13, 2017
- Fengan Jiang, Should the WTO Allow China to Impose Export Duties Designed to Combat Climate Change?
- Hao Wu, A Commentary on the Article on Expedited Shipments in the WTO Trade Facilitation Agreement
- Talat Kaya & Tolga Tuncer, The Legal Status of Pre-shipment Inspection Before and After: The WTO Trade Facilitation Agreement
- Iyan I.H. Offor & Jan Walter, GATT Article XX(a) Permits Otherwise Trade-Restrictive Animal Welfare Measures
- Ian Laird & Flip Petillion, Comprehensive Economic and Trade Agreement, ISDS and the Belgian Veto: A Warning of Failure for Future Trade Agreements with the EU?
Der Gerichtshof der Westafrikanischen Wirtschaftsgemeinschaft (ECOWAS) ist befugt, menschenrechtswidrige Urteile innerstaatlicher Gerichte zu überprüfen. Bürgerinnen und Bürger der ECOWAS-Mitgliedstaaten können den Gerichtshof anrufen und genießen dadurch Individualrechtsschutz, auch wenn nach den innerstaatlichen Rechtsordnungen mancher Mitgliedstaaten Individualbeschwerden vor den Verfassungsgerichten unzulässig sind. Kangnikoé Bado setzt sich mit den hieraus resultierenden Konflikten zwischen regionaler und nationaler Ebene auseinander.
Although originally established to address matters of regional integration only, the Court of the Economic Community of West African States has been tasked to rule on human rights violations since 2005. This has led to jurisdictional conflicts between national (constitutional) courts of ECOWAS member states and the court itself. The author analyses the relationship between the national and regional level, and develops proposals on how to overcome such legal variances.
- Austin M. Strange, Axel Dreher, Andreas Fuchs, Bradley Parks, & Michael J. Tierney, Tracking Underreported Financial Flows: China’s Development Finance and the Aid–Conflict Nexus Revisited
- Brett A. Casper, IMF Programs and the Risk of a Coup d’état
- Gustavo A. Flores-Macías & Sarah E. Kreps, Borrowing Support for War: The Effect of War Finance on Public Attitudes toward Conflict
- Eric Keels, Oil Wealth, Post-conflict Elections, and Postwar Peace Failure
- Ulrich Petersohn, Private Military and Security Companies (PMSCs), Military Effectiveness, and Conflict Severity in Weak States, 1990–2007
- Amy Pond, Economic Sanctions and Demand for Protection
- Bradley E. Holland & Viridiana Rios, Informally Governing Information: How Criminal Rivalry Leads to Violence against the Press in Mexico
- Kristian S. Gleditsch & Mauricio Rivera, The Diffusion of Nonviolent Campaigns
- Renske A. Giljam, Better BAT to Bolster Ecosystem Resilience: Operationalizing Ecological Governance through the Concept of Best Available Techniques
- Yaffa Epstein, Killing Wolves to Save Them? Legal Responses to ‘Tolerance Hunting’ in the European Union and United States
- Elena Fasoli, The Possibilities for Nongovernmental Organizations Promoting Environmental Protection to Claim Damages in Relation to the Environment in France, Italy, the Netherlands and Portugal
- Juliana Zuluaga Madrid, Access to Environmental Information from Private Entities: A Rights-Based Approach
- Amy Maguire & Jeffrey McGee, A Universal Human Right to Shape Responses to a Global Problem? The Role of Self-Determination in Guiding the International Legal Response to Climate Change
- Thoko Kaime, Countering Abuse in EU Environmental Markets: The Case for Integrated Operational Safeguards
- Nicolas Bremer, Post-environmental Impact Assessment Monitoring of Measures or Activities with Significant Transboundary Impact: An Assessment of Customary International Law
- Case Note
- Yoshifumi Tanaka, Costa Rica v. Nicaragua and Nicaragua v. Costa Rica: Some Reflections on the Obligation to Conduct an Environmental Impact Assessment
Wednesday, April 12, 2017
Call For Papers
Cyber Challenges to International Human Rights
December 11-12, 2017, Jerusalem and Haifa
The CyberLaw Program, International Cybersecurity Research Center, Hebrew University and The Cyber, Law and Policy Center Haifa University
In recent years, the digital ecosystem has become an arena for hostile cyber activities on the part of states, terror organizations and independent or semi-independent hackers, affecting the interests of individuals, organizations and states. At the same, powerful public and private entities are able to exercise broad powers of surveillance, information collection and manipulation of software and hardware, and can utilize such powers for nefarious ends. This emerging scene, which is under-regulated, creates new threats to civil liberties and human rights. Can existing international law and domestic law instruments and institutions sufficiently address the new threats to civil liberties and human rights?
This conference aims to bring together an international group of established and young scholars who are studying cybersecurity and its ramifications for civil liberties and human rights. The conference will offer an opportunity to present cutting-edge research addressing these issues, to introduce new projects and thought-provoking initiatives, and to promote exchange among participants that will inform their ongoing research.
PAPER SUBMISSIONS: Scholars and researchers from all disciplines are invited to propose papers in the formats detailed below. We welcome submissions from various disciplines, using a variety of theoretical and methodological approaches. Proposals may be submitted for individual presentations, full sessions, round tables and posters related to the conference theme. We also invite proposals for art exhibitions.
SINGLE SESSION PROPOSALS should include title, presenter's name, institutional affiliation, keywords (ideally drawn from the list of topics below), and an abstract of up to 200 words. Abstracts should include a general description of the topic, as well as a description of methodology and research findings, if relevant at the present stage.
PANEL PROPOSALS should include the title, participants' names and institutional affiliations, keywords, a brief description of the panel, and a separate abstract for each presentation (up to 200 words each).
ROUND TABLE PROPOSALS are suitable for informal presentations of research in progress and ongoing collaborative projects. Proposals should include title, participants' names and institutional affiliations, keywords, and an abstract not exceeding 200 words describing the research, the research methodology, findings where applicable, and questions that are emerging from the research.
ARTISTIC EXHIBITION PROPOSALS should include the title, presenters' names and institutional affiliations, keywords, and an abstract not exceeding 200 words. The Committee will consider artistic projects that are related to the conference theme.
POSTER PROPOSALS should include title, presenter's name, institutional affiliation, keywords and an abstract not exceeding 200 words. Posters should present work in progress or initial findings.
TOPICS: Suggested topics (other topics are welcome):
SUBMISSION PROCEDURE: Selected papers will be offered publication in a symposium issue of the Israel Law Review. Proposals should be submitted to the Academic Committee at firstname.lastname@example.org, with the applicant's name, affiliation, phone, and email information.
- Application of international law norms included in the Tallinn Manual to cyber operations
- Cyber-specific treaties
- Cybersecurity in the Middle East region
- Predictive policing
- Surveillance, profiling and the use of data analytics in law enforcement
- Cyber terrorism and cyber-counter-terrorism
- The role of states and international organizations in cyber security crises
- Securing rights by design
- The role of non-state actors and corporations in shaping online enforcement
The deadline for submitting proposals is 1.5.2017.
THE ACADEMIC COMMITTEE: Badi Hasisi, Deborah Housen-Couriel, Eldar Haber, Guy Harpaz, Guy Pessach, Itamar Mann, Michal Shur Ofry, Niva Elkin-Koren, Oren Gross, Simon Perry, Tal Zarsky, Tamar Berenblum and Yuval Shany
- V. G.Butkevych, The International-Legal Ideology Pre-Slavic Chiefdoms of the Ukrainian Ethnos (Part Two)
- Douglas Howland, The Limits of International Agreement: Belligerent Rights vs. Submarine Cable Security in the Nineteenth Century
- Miriam McKenna, The Means to the End and the End of the Means: Self-Determination, Decolonization, and International Law
- Notes and Comments
- V. Vasquez, Piracy in the United States Supreme Court: United States v. Palmer
- J. G. Gorman, III, United States v. Smith: The Influence of Commodore John Daniel Danels
- B.J. Forgue, The Malek Adhel and Shipowner Liability for Piracy
- R. L. Armezzani, Worcester v. Georgia and Native American Tribal Sovereignty
- W. E. Butler & V. S. Ivanenko, On the Russian Society of International Law (1880)
- Taylor J. Wolf, Samuel Crandall and Treaty-Making in the United States
- Philip Morris v. Uruguay (ICSID), with introductory note by Alejandro A. Escobar
- Case C-182/15, Proceedings Relating to the Extradition of Aleksei Petruhhin (C.J.E.U.), with introductory note by Filippo Fontanelli
- United Nations Security Council Resolution 2261, with introductory note by Christine Bell
- African Union Convention on Cyber Security and Personal Data Protection, with introductory note by Kaitlin M. Ball
- Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (Kigali Amendment), with introductory note by Eric A. Heath
International Law Weekend 2017: Call for Panel Proposals
Deadline: April 30, 2017
International Law Weekend 2017 (ILW 2017) – the premier international law event of the fall season – is scheduled for October 19-21, 2017 in New York City. The conference will be held at the New York City Bar Association (42 West 44th Street) on October 19, 2017 and at Fordham Law School (150 West 62nd Street) on October 20-21, 2017.
ILW 2017 is sponsored and organized by the American Branch of the International Law Association (ABILA) – which welcomes new members from academia, the practicing bar, and the diplomatic world – and the International Law Students Association (ILSA). This annual conference attracts an audience of more than one thousand academics, practitioners, diplomats, members of governmental and nongovernmental organizations, and law students.
The unifying theme for ILW 2017 is International Law in Challenging Times
Can international law rise to the challenge? For decades, international law has provided legal solutions to global problems through the development of substantive areas of law, court systems, and a framework for modern international relations. Now we must ask, is this post-WWII regime still relevant? Can it meet the needs of the global community? The rapidly changing global landscape will test the adaptability and dynamism of international law. Unprecedented health crises, massive refugee outflows, climate change, gender inequality and other global challenges require innovative solutions. This is an opportunity for international law to reestablish its strong connection with the global community it serves. Panels at ILW 2017 will examine current global challenges, potential solutions, and a broad range of dynamic issues in both public and private international law.
We expect the audience to include practitioners, academics, U.N. diplomats, business leaders, federal and state government officials, NGO leaders, journalists, students, and interested citizens. We plan to have a broad array of both public international law and private international law topics in each program time slot.
The ILW Organizing Committee invites proposals to be submitted online by April 30, 2017. Panels will only be accepted through the online ILW Panel Proposal Submission Form, which is located here.
When submitting your proposal, please consider the following points.
For questions regarding ILW 2017, please contact email@example.com.
- Panel proposals may concern any aspect of contemporary international law and practice including, but not limited to, international arbitration, international environmental law, national security, cyber law, use of force, human rights, international humanitarian law, international organizations, international criminal law, international intellectual property, the law of the sea and outer space, and trade law. When submitting your proposal, please identify the primary area(s) of international law that your proposed panel will address.
- Provide the names, titles, and affiliations of the chair and likely speakers. One of the objectives of ILW 2017 is to promote dialogue among scholars and practitioners. Panels should include presenters with diverse experiences and perspectives.
- Please identify what format you are proposing for your panel. We welcome various formats, such as debates, roundtables, lectures, and break-out groups, as well as the usual practice of panel presentations.
- Please indicate whether you are an ABILA member and whether or not your panel is sponsored by an ABILA committee. Panel organizers are encouraged to include at least one ASIL member on the panel.
- We hope to offer several CLE panels at ILW 2017. The CLE accreditation is very easy. More information will be provided once panels have been selected for the conference. If asked, we encourage you to consider taking the necessary steps to qualify your panel for CLE credit.
ILW 2017 Program Committee Members:
Bart Smit Duijzentkunst
Milena Sterio (Chair)
- Special Issue: Embracing Interdisciplinarity
- Michelle Leanne Burgis-Kasthala, Introduction: How Should We Study International Criminal Law? Reflections on the Potentialities and Pitfalls of Interdisciplinary Scholarship
- Mikkel Jarle Christensen, Preaching, Practicing and Publishing International Criminal Justice: Academic Expertise and the Development of an International Field of Law
- Immi Tallgren, Come and See? The Power of Images and International Criminal Justice
- Sara Dezalay, Weakness as Routine in the Operations of the Intentional Criminal Court
- Peerce McManus, Enemy of Mankind or Just No Powerful Friends Left? Insights from International Relations about the Efficacy of the ICC
- Rosemary Grey, Interpreting International Crimes from a ‘Female Perspective’: Opportunities and Challenges for the International Criminal Court
- Christoph Sperfeldt, Rome’s Legacy: Negotiating the Reparations Mandate of the International Criminal Court
- Cynthia Banham, Alternative Sites of Accountability for Torture: The Publication of War on Terror Books as ‘Memory-Justice’
- Michelle Jarvis, The Practice of International Criminal Law. Some Reflections from an ICTY Prosecutor
Well into the second decade of the 21st century, international law continues to expand on numerous fronts. Yet seemingly intractable global problems persist, raising vital questions about the field. We often ask whether international law is achieving its goals. In this Annual Meeting, we seek to consider the normative basis of international law and how those goals are realized in practice. Does international law reflect the values of the international community? How do these values affect the practice and theory of international law? For that matter, should international law reflect the international community's values, and what constituencies ought to be considered in determining what those values are? If international law should not reflect values, why not, and what interests are served or harmed by treating this body of law as a value-neutral set of rules? What role should international lawyers play in the shaping of those values and how can the core values of our profession – in all its heterogeneity, contestation, and dynamism – be brought to bear? Through the panels and events of the 2017 Annual Meeting of the American Society of International Law, leading and emerging voices in international legal scholarship, policy, and practice will attempt to answer these urgent questions.
- Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War
- A. Peters & C. Marxsen, Editors’ Introduction: Self-Defence in Times of Transition
- O. Corten, Has Practice Led to an “Agreement Between the Parties” Regarding the Interpretation of Article 51 of the UN Charter?
- T. Christakis, Challenging the “Unwilling or Unable” Test
- I. Österdahl, Scarcely Reconcilable with the UN Charter
- S. Kawagishi, Clearing Uncertainties of the Jurisprudence of the ICJ on Self-Defence Against Non-State Actors
- P. Urs, Effective Territorial Control by Non-State Armed Groups and the Right of Self-Defence
- L. Lo Giacco, Reconsidering the Legal Basis for Military Actions Against Non-State Actors
- B. Sjöstedt, Applying the Unable/Unwilling State Doctrine – Can a State Be Unable to Take Action?
- M. Hartwig, Which State’s Territory May Be Used for Self-Defence Against Non-State Actors?
- J.A. Frowein, Article 51 and the Realities of the Present Day World
- K. Oellers-Frahm, Article 51 – What Matters Is the Armed Attack, not the Attacker
- I. Couzigou, The Right to Self-Defence Against Non-State Actors – Criteria of the “Unwilling or Unable” Test
- G. Keinan, Humanising the Right of Self-Defence
- C.J. Tams, Embracing the Uncertainty of Old: Armed Attacks by Non-State Actors Prior to 9/11
- L. van den Herik, “Proceduralising” Article 51
- A. Tancredi, Doctrinal Alternatives to Self-Defence Against Non-State Actors
- M. Wood, Self-Defence Against Non-State Actors – A Practitioner’s View
- L. Grover, Intertemporality and Self-Defence Against Non-State Actors
- C.-P. Sassenrath, Diverging Interpretations of Individual State Practice on Self-Defence Against Non-State Actors – Considerations for a Methodological Approach
- P. Starski, A Call for a Turn to the Meta-Level of International Law: Silence, the “Interregnum”, and the Conundrum of Ius Cogens
- C. Marxsen, A Note on Indeterminacy of the Law on Self-Defence Against Non-State Actors
- B. Kempen & B. Schiffbauer, Die vorläufige Anwendung völkerrechtlicher Verträge im internationalen Mehrebenensystem
- F. Capone, From the Justice and Peace Law to the Revised Peace Agreement Between the Colombian Government and the FARC: Will Victims’ Rights Be Satisfied at Last?
- B. Gogarty & P. Lawrence, The ICJ Whaling Case: Missed Opportunity to Advance the Rule of Law in Resolving Science-Related Disputes in Global Commons?
- S. Dellavalle, Law as a Linguistic Instrument Without Truth Content? On the Epistemology of Koskenniemi’s Understanding of Law
- A. Vincze, Europäisierung des nationalen Verwaltungsrechts – eine rechtsvergleichende Annäherung
Interaction between public law regulating economic crime and private investor-state dispute resolution has given rise to a significant theoretical and practical problems, which the Twenty Eighth ITF Public Conference will address. Leading arbitrators and practitioners drawn primarily from ITF members will discuss the challenges and risks related to allegations of economic crimes in international investment arbitration.
The panellists will discuss breach of substantive national and international law obligations, particularly related to corruption and tax evasion, as a bar to jurisdiction of investment tribunals. The conference will also address the effect of economic crimes on the merits of investor-state disputes, including issues of state attribution and responsibility and the effect of domestic proceedings.
In addition, a special panel will deal with evidentiary challenges of allegations of economic crimes in investor-state disputes and will touch upon issues such as burden of proof, evidentiary privileges and freedom of information.
Tuesday, April 11, 2017
In February 2014, Uganda became the latest in a series of African countries to enact harsh anti-gay legislation. American conservative advocacy groups played a significant and well-publicized role in crafting and building support for this legislation. A large literature documents cases in which progressive transnational networks of advocates have been able to take advantage of the mechanisms of acculturation to promote domestic and global change. Over the last two decades, however, new international networks have emerged that are not dedicated to advancing the international rights agenda. Rather than linking transnational and national allies to promote human rights compliance, these organizations focus on helping domestic partners build up domestic resistance to shifting transnational norms. Domestically, these groups have raised and relied upon arguments based on American sovereignty and democracy in order to undermine the legitimacy of the international human rights regime and increase the cost to American judges and policymakers of invoking international and comparative law. Internationally, conservative legal activists and their network partners in churches, governments, and the NGO sector have adopted strategies that mimic those deployed in the U.S., working to erode the credibility of U.N. institutions and their interpretation of the human right treaties and to reshape national and subnational legal regimes to make them more resistant to influence by international human rights norms. This Article documents and describes the emergence of these networks, and examines their impact on both the theory and practice of transnational human rights advocacy.
In the 1880s, Europeans descended on Africa and grabbed vast swaths of the continent, using documents, not guns, as their weapon of choice. Rogue Empires follows a paper trail of questionable contracts to discover the confidence men whose actions touched off the Scramble for Africa. Many of them were would-be kings who sought to establish their own autonomous empires across the African continent—often at odds with traditional European governments which competed for control.
From 1882 to 1885, independent European businessmen and firms (many of doubtful legitimacy) produced hundreds of deeds purporting to buy political rights from indigenous African leaders whose understanding of these agreements was usually deemed irrelevant. A system of privately governed empires, some spanning hundreds of thousands of square miles, promptly sprang up in the heart of Africa. Steven Press traces the notion of empire by purchase to an unlikely place: the Southeast Asian island of Borneo, where the English adventurer James Brooke bought his own kingdom in the 1840s. Brooke’s example inspired imitators in Africa, as speculators exploited a loophole in international law in order to assert sovereignty and legal ownership of lands which they then plundered for profit.
The success of these experiments in governance attracted notice in European capitals. Press shows how the whole dubious enterprise came to a head at the Berlin Conference of 1884–1885, when King Leopold of Belgium and the German Chancellor Bismarck embraced rogue empires as legal precedents for new colonial agendas in the Congo, Namibia, and Cameroon.
Call for Submissions: The Relationship between International Human Rights Law and International Humanitarian Law
Special Issue on the Relationship between International Human Rights Law
and International Humanitarian Law
Guest Editors: Steven Dewulf and Katharine Fortin
The theme of this special edition of the Journal of Human Rights and International Legal Discourse is the relationship between international humanitarian law and international human rights law. This is a topic that has prompted considerable academic debate ever since the Geneva Conventions and Universal Declaration of Human rights were drafted in the late 1940s. In the early years, the debate centred on the question of whether human rights law should apply in terms of armed conflict. Now although it is generally accepted that human rights law does continue to apply in terms of armed conflict, a debate continues about when and how human rights law should apply alongside international humanitarian law. For example, scholars remain divided about the role of human rights law within the conduct of hostilities paradigm. They also remain divided about the role of human rights law on issues such as the detention and the killing of enemy fighters. There also remains uncertainty about which legal principles and rules should determine when a particular rule applies. Different institutions have approached this question in different ways. Moreover, the entire discussion also impacts on the criminal prosecution of alleged war criminals and perpetrators of other core crimes, as international criminal law borrows heavily from both IHL and human rights law.
This special edition of the journal of Human Rights and International Legal Discourse seeks to review contemporary practice on these questions. It seeks to re-visit the relationship between human rights law and international humanitarian law from theoretical, operational, international criminal law and practical perspectives. By viewing the problem from multiple perspectives, this edition seeks to capture the ‘state-of-play’ on a debate which has moved on considerably since it was last addressed in academic literature. By seeking to pin down modern perspectives on the relationship between international humanitarian law and human rights law, the edition seeks to take the debate further, clarify best practices and identify areas of consensus.
There will be 9 articles in the journal of around 5,000 words each (references included). The two first articles have been commissioned from two major scholars in the field. The first article will provide a far reaching review of some of the main issues related to the concurrent application of international human rights law and international humanitarian law. The author will provide a retrospective on the last ten years of developments in practice, and provide a view on where the relationship between international humanitarian law and international human rights law is heading in the future. The second article will focus more squarely on human rights law in armed conflict, taking a specific look at issues of detention and the right to life. We will provide selected authors with more detailed outlines of these two headline articles in August 2017 to ensure no overlap and allow a cohesive flow.
Submissions are welcomed on the following broad themes:
Other themes are also welcome.
- Which rules and legal principles should determine whether international humanitarian law or international human rights law applies in a specific situation?
- An operational military perspective on the relationship between international human rights law and international humanitarian law;
- The manner in which the relationship between international human rights law and international humanitarian law manifests itself in international criminal law jurisprudence;
- The role of international human rights law vis-a-vis international humanitarian law in special operations abroad;
- The relationship between international humanitarian law and human rights law and new methods of warfare e.g. cyberwarfare;
- Human rights law and international humanitarian law vis-à-vis a-typical conflict situations, (transnational) terrorist groups and/or transnational armed conflicts;
- The relevance of the relationship between international humanitarian law and human rights law when it comes to non-State actors, such as armed groups or transnational corporations;
- A regional perspective on the relationship between international human rights law and international humanitarian law (e.g. European Court of Human Rights);
- The role of international human rights law in the developing customary international law that applies in armed conflicts (international and non-international).
Timeline for special issue Call for papers:
Deadline for submission of abstracts: 1 July 2017
Green light for papers: 15 August 2017
Deadline for full papers: 1 December 2017
Feedback to authors: 6th February 2018
Issue delivered to publisher by editors: 24th April 2018
Publication of special issue: 15th May 2018
These dates are estimations and may be subject to change.
For submissions and questions relating to this edition please contact both:
Katharine Fortin at firstname.lastname@example.org and Steven Dewulf at email@example.com
Katharine Fortin is an assistant professor in human rights law and public international law at the Netherlands Institute of Human Rights, Utrecht University. Her book on the Accountability of Armed Groups under International Human Rights law is forthcoming with the OUP.
Steven Dewulf is professor of international, European and transnational criminal law at the University of Antwerp (Belgium). His research focuses inter alia on terrorism and the relationship between international criminal law, IHL and human rights. In addition, he practices as an international criminal lawyer.
- Michael W. Bühler & Pierre R. Heitzmann, The 2017 ICC Expedited Rules: From Softball to Hardball?
- Michael Polkinghorne & Sven-Michael Volkmer, The Legality Requirement in Investment Arbitration'
- Andrzej Olaś, May International Arbitral Tribunals Declare Laws Unconstitutional? An International and a Polish Perspective on the Issue of Dealing with Unlawful Laws
- Irene Han, Rethinking the Use of Arbitration Clauses by Financial Institutions
- Maxim Osadchiy, Emergency Relief in Investment Treaty Arbitration: A Word of Caution
- Adam J. Weiss, Erin E. Klisch, & Joseph R. Profaizer, Techniques and Tradeoffs for Incorporating Cost- and Time-Saving Measures into International Arbitration Agreements
- Paul Comrie-Thomson, A Statement of Arbitral Jurisprudence: The Case for a National Law Obligation to Publish International Commercial Arbitral Awards
- Toms Krūmiņš, Arbitration in Latvia: A Cautionary Tale?
- Paschalis Paschalidis, The Future of Anti-Suit Injunctions in Support of Arbitration After the EU Court of Justice’s Judgment in the Gazprom Case
- David P. Fidler, President Trump, Trade Policy, and American Grand Strategy: From Common Advantage to Collective Carnage
- Ernst-Ulrich Petersmann, Reforming Multilevel Governance of Transnational Public Goods Through Republican Constitutionalism?—Legal Methodology Problems in International Law
- Chios Carmody, Obligations Versus Rights: Substantive Difference Between WTO and International Investment Law
- Lukasz Gruszczynski, The WTO and FCTC Dispute Settlement Systems: Friends or Foes?
- Hsien Wu, Temporal Scope of WTO Dispute Settlement: Charting the Currents of a Turbulent Sea
- Minju Kim & Hyo-Young Lee, Looking Beyond the Doha Negotiations: A Possible Reform of the WTO Agricultural Subsidies Rules
Monday, April 10, 2017
Call for Papers: Los retos de América Latina frente a la Crisis de la Gobernanza Económica Internacional
As Israel's control of the Occupied Palestinian Territory nears its fiftieth anniversary, The Writing on the Wall offers a critical perspective on the international law of occupation. Advocating a normative and functional approach to occupation and to the question of when it exists, it analyzes the application of humanitarian and human rights law, pointing to the risk of using the law of occupation in its current version to legitimize new variations of conquest and colonialism. The book points to the need for reconsidering the law of occupation in light of changing forms of control, such as those evident in Gaza. Although the Israeli occupation is a main focal point, the book broadens its compass to look at other cases, such as Iraq, Northern Cyprus, and Western Sahara, highlighting the role that international law plays in all of these cases.
McCaffrey, Murray, & Woodhouse: Promoting Equity, Cooperation and Innovation in the Fields of Transboundary Waters and Natural Resources Management
Promoting Equity, Cooperation and Innovation in the Fields of Transboundary Waters and Natural Resources Management honours the memory and legacy of Dr. David J.H. Phillips, an extraordinary scientist, consultant and friend of the editors and contributors. He was a scientist of exceptional quality, dedicated to the practical study of aquatic environments, be they marine, freshwater or virtual. This volume contains excerpts from his meticulously researched work from a wide range of settings globally. Colleagues' essays provide insights to a man who lived life to the utmost, worked to the highest professional standards and had a unique gift in challenging situations to generate understanding and practical responses through his curiosity, remarkable ingenuity, and sheer hard work. His work opens many new paths of research and continues to inspire scientists and researchers in the fields of marine biology and pollution, fresh water issues, and conflict over transboundary water resources.
‘Unseen actors’ are central to the ‘institutional makeup’ of international courts and tribunals as registries and secretariats, law clerks and legal officers may exert varying levels of influence on the judicial process. At this conference, legal and political science scholars and members of adjudicatory institutions will consider and discuss the legitimacy of assigning ‘unseen actors’ certain roles in the judicial process as well as the implications thereof for the legitimacy of the dispute settlement mechanism as such.
The conference will examine current practices of derogation from the European Convention on Human Rights (ECHR) by Ukraine, France and Turkey as well as the United Kingdom’s proposal to derogate from the ECHR in foreign military operations. Marko Milanovic (University of Nottingham) will deliver a keynote speech and Raphaël Comte (Rapporteur of the Council of Europe) will provide a report on ‘State of emergency: proportionality issues concerning derogations under Article 15 of the ECHR’.
Ces dernières années, le désarmement nucléaire s’est retrouvé au centre de l’actualité internationale. Les événements se sont accélérés, donnant à cette thématique une visibilité et une importance sans précédent.
Ainsi, entre autres choses, la 9e Conférence d’examen du Traité de non-prolifération nucléaire de 2015 s’est terminée par un échec, laissant un goût amer à de nombreux États. Le dernier essai nucléaire nord-coréen de janvier 2016 a été suivi, en mars 2016, de l’adoption par le Conseil de sécurité de l’ONU de la Résolution 2270, qui est venue durcir les sanctions contre la Corée du Nord. En mai 2016, le Japon a accueilli la première visite d’un chef d’État américain en exercice, Barack Obama, lors d’une cérémonie dans la ville d’Hiroshima commémorant les premiers bombardements atomiques de 1945.
En octobre 2016, bien que la Cour internationale de Justice se soit proclamée incompétente dans l’affaire des Obligations relatives à des négociations concernant la cessation de la course aux armes nucléaires et le désarmement nucléaire initiée par les Îles Marshall contre des puissances nucléaires – l’Inde, le Pakistan et le Royaume-Uni –, ce cas a permis de mettre sur le devant de la scène internationale les dégâts causés par les essais nucléaires et l’impératif d’œuvrer au désarmement nucléaire.
Faisant suite à trois conférences intergouvernementales sur l’impact humanitaire des armes nucléaires, réalisées entre 2013 et 2014, en octobre 2016, l’Assemblée générale des Nations Unies a adopté à une large majorité la Résolution L.41 visant à «Faire avancer les négociations multilatérales sur le désarmement nucléaire» dans l’objectif qu’un instrument juridiquement contraignant d’interdiction des armes nucléaires soit négocié au cours de l’année 2017.
Ces divers événements récents montrent à quel point les espoirs et les défis sont nombreux dans un monde pluriel où les États, dotés et non dotés, continuent de s’opposer dans ce domaine hautement sensible.
À ce jour, en dépit d’une littérature abondante sur des points spécifiques, aucun ouvrage n’a rassemblé les différentes visions prévalant au sein de la communauté internationale. C’est à cette lacune que notre projet d’ouvrage cherche à remédier.
Nous sommes donc heureux d’initier ce projet de grande envergure et de diriger un tel ouvrage dont l’objectif sera d’être publié en français et en anglais. Afin d’atteindre la représentativité la plus large, nous le plaisir de lancer le présent appel à contributions afin de recevoir des textes d’experts exposant la vision de leurs divers pays et/ou continents.
Les propositions de contributions, ne dépassant pas 500 mots et accompagnées d’une courte biographie, sont à envoyer jusqu’au 15 mai 2017 à Mme Catherine Maia, Professeure à la Faculté de Droit et de Science Politique de l’Université Lusófona de Porto (firstname.lastname@example.org) et M. Jean-Marie Collin, Consultant sur les questions de défense et de sécurité internationale (email@example.com).
Les auteurs des contributions retenues seront contactés pour le 15 juin 2017. Les contributions finales seront attendues pour fin janvier 2018 au plus tard.
Elles devront être écrites en français ou en anglais, d’une longueur moyenne de 10 à 15 pages pages A4 (Times New Roman 12, interligne simple), notes de bas de page à la fin de chaque page (taille 10, interligne simple).
Catherine Maia (co-directeur)
Professeure à la Faculté de Droit et de Science Politique de l’Université Lusófona de Porto (Portugal), visiting professor à Sciences Po Paris et aux Universités Catholiques de Lille et de Lyon (France), directrice du Réseau Multipol – Réseau d'analyse et d'information sur l'actualité internationale (http://reseau-multipol.blogspot.com)
Jean-Marie Collin (co-directeur)
Consultant indépendant sur les questions de défense et de sécurité internationale, directeur du PNND pour la France et les pays francophones (Parlementaires pour la Non-prolifération et le Désarmement Nucléaire), vice-président IDN (Initiatives pour le Désarmement Nucléaire), chercheur associé GRIP (Groupe de Recherche et d’Information sur la Paix et la Sécurité)
In recent years, nuclear disarmament has been at the center of international news. The events have accelerated, giving this theme an unprecedented visibility and importance.
Among other things, the 9th Review Conference of the 2015 Nuclear Non-proliferation Treaty ended in failure, leaving a bitter taste to many States. The latest North Korean nuclear test of January 2016 was followed, in March 2016, by the UN Security Council’s adoption of Resolution 2270, which tightened sanctions against North Korea. In May 2016, Japan hosted the first-ever visit by an American head of State, Barack Obama, to a ceremony in the city of Hiroshima commemorating the first atomic bombings of 1945.
In October 2016, although the International Court of Justice declared itself incompetent in the case of the Obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament initiated by the Marshall Islands against nuclear powers – India, Pakistan and the United Kingdom – this case brought to the forefront of the international arena the damage caused by nuclear testing and the imperative of working towards nuclear disarmament.
Following the three intergovernmental conferences on the humanitarian impact of nuclear weapons, which took place between 2013 and 2014, in October 2016, the United Nations General Assembly adopted, by a large majority, the Resolution L.41 on “Taking forward multilateral nuclear disarmament negotiations" with the aim to negotiate in 2017 a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.
These various recent developments show that many hopes and challenges exist in a pluralistic world where nuclear-weapon States and non-nuclear-weapon States continue to oppose each other in this highly sensitive area.
To date, despite an abundant literature on specific issues, no book has gathered the different visions prevailing in the international community. This is this gap which our book project seeks to remedy.
We are, therefore, pleased to initiate this large-scale project and to edit such a book, the aim of which will be to be published in French and English. In order to achieve the widest possible representativeness, we are pleased to launch this call for papers to receive expert papers presenting the vision of their various countries and/or continents.
Proposals for contributions, not exceeding 500 words and accompanied by a short biography, are to be sent until May 15, 2017 to Ms. Catherine Maia, Professor at the Faculty of Law and Political Science of the Lusófona University of Porto (firstname.lastname@example.org) and Mr. Jean-Marie Collin, Consultant on international defense and security issues (email@example.com).
The authors of the selected contributions will be contacted by 15 June 2017. The final contributions will be expected by the end of January 2018.
They should be written in French or English, with an average length of 10 to 15 A4 pages (Times New Roman 12, single spacing), footnotes at the end of each page (size 10, single spacing).
Catherine Maia (co-directeur)
Professor at the Faculty of Law and Political Science of the Lusófona University of Porto (Portugal), visiting professor at Sciences Po Paris and the Catholic Universities of Lille and Lyon (France), Director of the Multipol Network (http://reseau-multipol.blogspot.com)
Jean-Marie Collin (co-directeur)
Independent consultant on defense and international security issues, Director of PNND for France and Francophone countries (Parliamentarians for Nuclear Non-proliferation and Disarmament), Vice-President IDN (Initiatives for Nuclear Disarmament), Associate Researcher at GRIP (Group for Research and Information on Peace and Security)
Das zwischenstaatliche Gewaltverbot steht im Zentrum der völkerrechtlichen Aufmerksamkeit. Auf bewaffnete Konflikte auf dem afrikanischen Kontinent trifft dies nur begrenzt zu. An dieses Defizit knüpft die Autorin ab der Zeitwende 1989/90 an. Dabei überschreitet sie die traditionellen Grenzen des Gewaltverbots und analysiert, inwieweit dies, v. a. durch die Fortentwicklung der Menschenrechtslehre, eine inhaltliche Änderung erfahren hat, die auch die militärische Anwendung von Gewalt im Innern eines Staates ächtet (ius contra bellum internum).
Ein weiterer Schwerpunkt sind Interventionen durch Regionalorganisation. Hierbei wird untersucht, ob multilaterale Interventionen schon dann gewohnheitsrechtliche Akzeptanz erfahren, wenn sie entweder formell oder materiell rechtmäßig sind. Zumindest solche, die durch den UN-Sicherheitsrat autorisiert sind, können diese sog. Baugenehmigungsthese für sich in Anspruch nehmen. Doch auch ohne UN-Mandat vermögen humanitäre Interventionen regionaler Organisationen in engen Grenzen völkerrechtmäßig sein.
The prohibition of the use of force is of central interest in international law. Yet this is only partly the case with regard to armed conflicts in Africa. The author closes a gap in scholarship by analyzing armed conflicts on the continent following the historic changes in 1989/90. Thereby she goes beyond the traditional boundaries of the ius ad bellum and demonstrates, in light of the development of human rights doctrine, the existence of an already emerged prohibition of the use of military force within a State (ius contra bellum internum).
Furthermore, the book focuses on interventions by regional organizations. It divides the possible exceptions of the use of force into procedural/formal and substantive/material aspects and analyses the thesis whether a multilateral intervention is already legal when just one of these elements is lawful. This is the case with regard to interventions authorized by the UN Security Council. Furthermore, humanitarian intervention by a regional organization may under narrow circumstances proceed on lawful without a UN mandate.
- Rod Rastan, What is ‘Substantially the Same Conduct’?: Unpacking the ICC’s ‘First Limb’ Complementarity Jurisprudence
- Colton Fehr, Domestic Detention under Article 78(2) of the ICC Statute
- Symposium: Undesirable and Unreturnable? Prosecuting Non-Removable Aliens Suspected of Serious Crimes
- Joris van Wijk, David James Cantor, Sarah Singer, & Maarten Pieter Bolhuis, Foreword
- Geoff Gilbert Undesirable but Unreturnable: Extradition and Other Forms of Rendition
- Mariagiulia Giuffré, Deportation with Assurances and Human Rights: The Case of Persons Suspected or Convicted of Serious Crimes
- Joseph Rikhof, Prosecuting Asylum Seekers Who cannot be Removed: A Feasible Solution?
- Emma Irving, When International Justice Concludes: Undesirable but Unreturnable Individuals in the Context of the International Criminal Court
- Cases before International Courts and Tribunals
- Wibke K. Timmermann, Inciting Speech in the former Yugoslavia: The Šešelj Trial Chamber Judgment
- National Prosecution of International Crimes: Legislation and Cases
- Pavlos Andreadis-Papadimitriou, Assistance in Mass Murder under Systems of Ill-treatment: The Case of Oskar Gröning
- Patryk I. Labuda, The Special Criminal Court in the Central African Republic: Failure or Vindication of Complementarity?
Sunday, April 9, 2017
This article reviews the issue of attribution in WTO law, covering both the general rules regarding measures taken by governments of WTO Members and the possible violations that may arise from the conduct of non-governmental entities. Although the WTO Agreements cover mainly governmental measures, a number of provisions establish obligations for Members to ensure that non-governmental entities adopt or refrain from adopting certain conduct. Other provisions are ambiguous and could be interpreted as requiring Members to prevent conduct of private or non-governmental entities causing nullification or impairment. However, indications given by Panels and the Appellate Body suggest that finding a violation of a WTO obligation on the basis of mere omission to regulate private conduct might be controversial. WTO adjudicators seek to find support for their findings of breach in "affirmative" governmental conduct – i.e., in measures consisting of actions rather than mere omissions.
Food safety plays an increasingly important role in today’s interdependent trading relations. The existing multilateral rules embodied in the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures are increasingly being supplemented through a series of bilateral and multilateral agreements. Unlike debates surrounding intellectual property rights however, the negotiations concerning sanitary and phytosanitary (SPS) rules in preferential trade agreements are rarely analyzed in a systematic and detailed manner. The article uses the SPS Chapter negotiated for purposes of the Trans-Pacific Partnership Agreement (TPP or TPPA) as a model for the future of SPS governance and compares it to the existing disciplines under the SPS Agreement. While the future of the TPPA in its current iteration may be in doubt, the US has clearly posited its SPS Chapter as a blueprint for future SPS governance. While the SPS Chapter contains some procedural advances in SPS governance, its substantive rules – or lack thereof – are not only at odds with the existing SPS regime, but exhibit a flawed understanding of scientific enquiry and how to deal with the uncertainty inherent therein.
Nouwen & Becker: Tadić v. Prosecutor: International Criminal Tribunal for the Former Yugoslavia, 1995
Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadić v Prosecutor (1995). The chapter differentiates between two types of landmarks: signposts for other travelers, indicating the direction to be followed, or high-water points, relics of a particular moment in time. This chapter considers the significance of the Tadić case in both senses of landmark. After reflecting upon the case as a matter of diplomatic and legal history, it analyses the interlocutory appeal decided by the Appeals Chamber on 2 October 1995 as a landmark with respect to three areas of international law: general international law, international humanitarian law and international criminal law. It ends with a perspective on the significance of the interlocutory appeal for legal reasoning in international law. It concludes that in some areas the Tadić Interlocutory Appeal has been a signpost (for instance, its validation of the power of the Security Council to pursue the project of international criminal law and developments in international humanitarian law, particularly the diminishing relevance of the distinction between international and non-international armed conflict), while in others more a high-water mark (for example, as a case study in judicial law-making and legal reasoning that invokes natural law or appeals to morality to overcome perceived shortcomings in the positive law).
In just two decades, enforcement of the Foreign Corrupt Practices Act (FCPA) has evolved from a backwater of corporate and international financial crime to one of the most prominent and feared laws in those fields. What accounts for the ten-fold increase, over just 15 years, in the annual FCPA case volume produced by United States enforcers? We explain the development as arising from a confluence of independent but nonetheless symbiotic international and domestic political and economic forces. First, in the international arena, policymakers dramatically shifted their beliefs in the harms from bribery. This change and the continuous American pressure to conclude an anti-bribery treaty created a new consensus among major exporting countries to criminalize foreign bribery. This opened up new political and institutional paths to pursue the supply of foreign bribes. Second, U.S. enforcement lawyers eagerly pursued these newly available paths, propelled by political pressure and professional considerations. Third and inevitably, a large and active FCPA defense bar emerged that, perhaps ironically, helps keep primed a now steady pump of FCPA actions into the U.S. corporate enforcement system. A fourth stage has begun in which other nations, particularly in Europe, are both assisting and competing with the U.S. in the field of anti-corruption enforcement. It remains to be seen how this latest development will, over the longer haul, affect the size of the global market for anti-corruption enforcement and the U.S. share of that market.