- Yossi Nehushtan, Offensive Expression: The Limits of Neutral Balancing Tests and the Need to Take Sides
- Alecia Johns, The Case for Political Candidacy as a Fundamental Human Right
- Daria Davitti, Refining the Protect, Respect and Remedy Framework for Business and Human Rights and its Guiding Principles
- Adamantia Rachovitsa, Treaty Clauses and Fragmentation of International Law: Applying the More Favourable Protection Clause in Human Rights Treaties
- Dimitrios Giannoulopoulos, Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries
- Alison E.C. Struthers, Human Rights: A Topic Too Controversial for Mainstream Education?
- Lisl Brunner, The Liability of an Online Intermediary for Third Party Content: The Watchdog Becomes the Monitor: Intermediary Liability after Delfi v Estonia
Friday, February 12, 2016
Jalloh & Meisenberg: The Law Reports of the Special Court for Sierra Leone. Volume III: The Taylor Case
The Special Court for Sierra Leone was established through signature of a bilateral treaty between the United Nations and the Government of Sierra Leone in early 2002, making it the third modern ad hoc international criminal tribunal. The tribunal has tried various persons, including former Liberian President Charles Ghankay Taylor, for allegedly bearing "greatest responsibility" for serious violations of international humanitarian law committed during the latter half of the Sierra Leonean armed conflict. It completed its work in December 2013. A new Residual Special Court for Sierra Leone, based in Freetown and with offices in The Hague, has been created to carry out its essential “residual” functions.
This volume, which consists of three books and a CD-ROM and is edited by two legal experts on the Sierra Leone court, presents, for the first time in a single place, a comprehensive collection of all the interlocutory decisions and final trial and appeals judgments issued by the court in the case Prosecutor v. Charles Ghankay Taylor. The Taylor case is the jewel in the crown of the SCSL, as it was the first ever trial and conviction of a former African head of state for crimes committed in a neighboring state. It is also one of a handful of such significant cases in international criminal law.
- Duu (Jason) Renn & Paul F. Diehl, Déjà vu All Over Again and Peacekeeping Reform?
- Lindy Heinecken, Are Women ‘Really’ Making a Unique Contribution to Peacekeeping?
- Rashed Uz Zaman & Niloy Ranjan Biswas, South Asian Regionalism and UN Peacekeeping Missions
- Unsal Sigri & Ufuk Basar, Assessing the Quality of Training
- Rembert Boom, Criminal Accountability of Military Peacekeepers
Thursday, February 11, 2016
In recent years, two decisive trends have occurred in the fields of international law and the history of political thought. The 'historical turn' in international law has involved students of that discipline in intense reflection on what kind of history intenational law can, and should, have. At the same time, the history of political thought has been undergoing an 'international' (or indeed a global) turn, changing its focus from questions arising from thinking of politics and polities in relation to others. As a result, international lawyers and historians of political thought have increasingly been reading each other's work, meeting each other at conferences, etc., to their mutual benefit. Nevertheless, neither turn has been methodologically very comfortable for its participants, nor have people from either discipline got together to try to think through, in any systematic way, where it is that the history o political thought and the history of international law come together, and where - and if - they must necessarily divide. What is it to do one or the other? This conference aims to address that subject by bringing together some of the most distinguished practitioners in both fields for a sustained discussion. We begin with a directly methodological opening session, and then proceed to think through the historical in international law, and the international in the history of political thought, in a series of themed conversations. Reflections and a roundtable will bring the discussions to a close, if not a conclusion.
Wednesday, February 10, 2016
Lecture given at Hebrew University offering a brief look at some jus ad bellum issues that arose in the course of 2015 particularly with reference to Syria (and Iraq). Including whether: there is a right of self-defence against armed attacks by non-State actors like the so-called ‘Islamic State’; How, assuming anticipatory self-defence is permitted, the requirement of imminence applies in the case of self-defence against a terrorist group; and, possibly what is necessary and proportionate in the case of self-defence against terrorist groups.
Tuesday, February 9, 2016
- Rachel Killean, Procedural Justice in International Criminal Courts: Assessing Civil Parties’ Perceptions of Justice at the Extraordinary Chambers in the Courts of Cambodia
- Neil Boister, The Cooperation Provisions of the UN Convention against Transnational Organised Crime: A ‘Toolbox’ Rarely Used?
- Manisuli Ssenyonjo & Saidat Nakitto, The African Court of Justice and Human and Peoples’ Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?
- Alicia Robinson, Challenges to Justice at Home: The Domestic Prosecution of Efrain Rios Montt
- Joanna Nicholson, Is Targeting Naked Child Soldiers a War Crime?
- Amrutanshu Dash & Dhruv Sharma, Arrest Warrants at the International Criminal Court: Reasonable Suspicion or Reasonable Grounds to Believe?
Symposium: Who Supports International Law, and Why? The United States, the European Union, and the International Legal Order
- Symposium: Who Supports International Law, and Why? The United States, the European Union, and the International Legal Order
- Mark A. Pollack, Who supports international law, and why?: The United States, the European Union, and the international legal order
- Başak Çalı, Comparing the support of the EU and the US for international human rights law qua international human rights law: Worlds too far apart?
- Martijn Groenleer, The United States, the European Union, and the International Criminal Court: Similar values, different interests?
- R. Daniel Kelemen & Tim Knievel, The United States, the European Union, and international environmental law: The domestic dimensions of green diplomacy
- Jappe Eckhardt & Manfred Elsig, Support for international trade law: The US and the EU compared
- Gráinne de Búrca, Internalization of international law by the CJEU and the US Supreme Court
Les organisations internationales, ne sont pas des super États mais ont, comme ces derniers, une constitution, une personnalité juridique propre, un système de responsabilité qu’il faut distinguer de celle de ses membres. Leur membership est généralement constitué d’États mais les organisations internationales peuvent aussi comprendre d’autres organisations internationales, voire des autorités fédérées et des personnes privées. L’accès des États aux organisations internationales et leur retrait est codifié par l’acte constitutif, mais les règles d’accès ou de retrait peuvent donner lieu à des interprétations, parfois discutables, qui résultent des options politiques de leurs membres. Les organisations produisent aussi des normes qui, dans le respect de certaines conditions, s’imposent à leurs destinataires. La personnalité juridique des organisations internationales leur permet de se comporter dans les relations internationales comme un sujet majeur de droit international apte à conclure des traités, à prendre des sanctions contre des États et des particuliers. C’est cette personnalité qui leur permet aussi de répondre des violations du droit international qui leur sont imputables. Les régimes de privilèges et immunités varient selon les organisations internationales et selon leurs titulaires (l’organisation elle-même, ses membres et leurs représentants, ses fonctionnaires et agents). Telles sont les principales questions traitées dans le présent ouvrage.
The continuing and comprehensive transnationalization of governance regimes, that is the decentering of state governments and public international organizations (IOs) through hybrid, public-private and domestic-international Actors, Norms and Processes in a vast array of regulatory fields has put both private and public lawyers on alert. While the former continue to remain skeptical with regard to governmental attempts at reclaiming control over economically sensitive areas, the latter insist on the need to strengthen and revitalize the state’s role in protecting precarious, weak interests even beyond the traditional jurisdictional confines of the nation-state. Seen from that perspective, transnational governance (TG) is an object of study as well as of hope for some, of grave concern for others, and that already from a domestic lawyer’s perspective. Meanwhile, while TG has provoked varied reactions from particularly those public international lawyers who either defend or dismiss the potential of constitutional ordering on the global level, it has also prompted responses from political scientists, who speculate about the fate of concepts and institutions that were central to International Relations, Regime Theory and debates about sovereignty. The here presented paper aims at connecting these different debates by making reference, in particular to Terrence Halliday’s and Gregory Shaffer’s proposal of “Transnational Legal Ordering”, on the one hand, and by carving out the different connotations of legitimacy which are becoming apparent in each of these debates, on the other. Against this background, the paper posits ‘transnational law’ as a methodological approach through which connections between “domestic” and “transnational” governance can be made visible and subjected to conceptual and normative scrutiny.
Palestine's request that the International Criminal Court investigate crimes allegedly committed by Israel on its territory presents the court with a major investigative and institutional challenge. To this point, the ICC has generally avoided situations where major powers strongly oppose court involvement. The prosecution's cautious selection of situations has in turn allowed for an accommodation between skeptical major powers and the court. An investigation in Palestine, which the United States and other major powers would oppose, could unsettle that fragile truce. This article considers how the situation in Palestine came before the court and analyzes several options available to the ICC prosecutor.
Monday, February 8, 2016
- Birsha Ohdedar, Loss and Damage from the Impacts of Climate Change: A Framework for Implementation
- Majid Nikouei & Masoud Zamani, The Secession of Crimea: Where Does International Law Stand?
- Matilda J. Brolin, Procedural Agreements in WTO Disputes: Addressing the Sequencing Problem
Since its inception in 1995, the World Trade Organization has prescribed numerous country-specific rules for its acceded members. Set out in WTO accession protocols, the country-specific rules elaborate, expand or derogate from the standard provisions of the WTO Agreement. Despite this practice, the precise status of the accession protocols and their relationship with the WTO multilateral agreements remain unclear. In the past decade, accession protocols have given rise to claims in more than twenty WTO disputes, most of them involving China. Due to the lack of textual guidance, WTO adjudicators have had to fill large gaps in interpreting the relationship between the accession provisions and the provisions of WTO multilateral agreements. Judicial interpretations hitherto, however, have not succeeded in clarifying such relationship. In some cases, they have led to problematic jurisprudence, creating systemic incoherence and inconsistencies in WTO law and policy.
This article provides an overview of the WTO disputes involving accession protocols, and analyzes the fraught relationship between accession protocols and WTO multilateral agreements. At the systemic level, it questions the commonly accepted legal basis for country-specific rulemaking under WTO law, and advocates the need to focus on systemic coherence in navigating between the WTO Agreement and its accession protocols. To achieve systemic coherence, it is proposed that tools of conflict rules should be utilized in interpreting the relationship between country-specific rules and general WTO provisions, and that any gaps and ambiguities in the text of accession provisions should be construed in a way that will preserve WTO’s fundamental principle of nondiscrimination. The article further addresses four specific interpretive issues: (i) how to determine the availability of general exceptions of WTO agreements to country-specific obligations; (ii) how to determine the scope of derogation from WTO provisions by the country-specific rules; (iii) relevance of accession protocols to the interpretation of WTO multilateral agreements; and (iv) relevance of the accession protocol of one member to the interpretation of the accession protocol of another member.
In the last decade, international investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests generally so difficult to achieve that it is often unclear which option constitutes ‘reform’ and which unwanted change. When political will is present, and contracting parties agree on reformed options, two particular treaty provisions, the most-favoured-nation treatment and survival clauses, can interfere with the process and become an impediment to changing the rules of the game. The most-favoured-nation treatment, a guarantee of non-discrimination present in the quasi-totality of investment treaties, can have far-reaching ramifications for newly-negotiated provisions, especially where international investment agreements confer pre-establishment rights and the clause expressly covers ‘all matters’ within a treaty. Survival clauses, a type of provision that extends the validity of an investment agreement beyond its termination, can delay the onset of the new options for an average of between five and twenty years after expiry of the treaty’s minimum period of application. The present contribution explores these two types of clause from the angle of their potential impact on reform of international investment law.
The World Trade Organization is by many accounts the most successful international organization in history. Yet it has been slow to address head-on the problems in one of the largest sectors of the global economy – energy. Indeed, fuel exports alone constitute roughly 18% of global merchandise exports, the single largest category. Historically, this reluctance to engage with energy can be explained partially by the fact that many major fossil fuel-producing nations were outside of the GATT. Today, however, most such nations are WTO members. While the WTO dispute settlement system has become an active tool for regulating government support of the renewable energy sector, active WTO regulation of the fossil fuel sector remains limited. This chapter, prepared for the Palgrave Handbook on the International Political Economy of Energy, presents an overview of WTO rules and how they apply or might apply to the energy sector. It further argues that this differential treatment between fossil fuels and renewable energy reflects a) the greater number, and the identity, of nations that aspire to be "producers" of renewable energy, and b) the expected growth in renewable energy in years to come.
- Joshua A. Zell, Just Between You and Me: Mutual Recognition Agreements and the Most-Favoured Nation Principle
- Ayse Kaya, Designing the Multilateral Trading System: Voting Equality at the International Trade Organization
- Gonzalo Villalta Puig & Eric D Dalke, Nature and Enforceability of WTO-plus SPS and TBT Provisions in Canada's PTAs: From NAFTA to CETA
- Rosane Nunes de Faria & Christine Wieck, Regulatory Differences in the Approval of GMOs: Extent and Development over Time
- Alexia Herwig, Too much Zeal on Seals? Animal Welfare, Public Morals, and Consumer Ethics at the Bar of the WTO
- Ming Du, ‘Treatment No Less Favorable’ and the Future of National Treatment Obligation in GATT Article III:4 after EC–Seal Products
Friday, February 5, 2016
Domestic criminal law informs the register of international criminal law, whether formally through the development of general principles of law or informally through experience and analogy. Reciprocally, international criminal law also informs the register of domestic criminal law, whether formally through incorporation of treaty and custom or, once again, informally through experience and analogy. Circulation thereby arises within the curricular sphere of penal responsibility.
Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to municipal legal practice, might international criminal law cast a somewhat longer shadow, travel a bit farther, or leave a somewhat haler legacy?
This paper considers such extracurricular effects, and related trans-judicial dialogue, by unpacking the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations (a phrase taken to mean customary international law). This project organizes itself around a survey of US federal court citations to the case-law and materials of the International Criminal Tribunal for Rwanda (ICTR). This survey quickly demonstrates that US judges who cite to ICTR work product to determine the rule of application in an ATS dispute also frequently cite to the case-law and materials of other institutions, notably the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Court (ICC), the International Military Tribunal at Nuremberg (IMT), and the American Military Tribunal at Nuremberg (AMT). Hence, this Article references these cases and materials as well. While diverse, citations to international cases and materials in ATS adjudication tend to cluster around three substantive areas: (1) aiding and abetting as a mode of liability; (2) the definition and substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability.
In light of the sharply limited capacity of international criminal courts and tribunals, domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of US courts of general jurisdiction as ‘receivers’ of international criminal law reveal broader patterns of transnational legal migration and a largely unanticipated legacy of international criminal courts and tribunals. Distortions may nonetheless arise when international norms migrate into legal practices at the national level, in particular, when they do so in cognate legal regimes. These migrations constitute national practices indicative of “comparative international law,” namely, that international legal norms may take shape differently among, and within, various national jurisdictions. While international criminal lawyers may welcome the broad diffusion of international norms, including extracurricularly from the criminal to civil context in a rich array of venues, concerns emerge should the content of the norms fragment and, thereby, weaken international law’s purported universality. The US experience is thereby instructive in terms of striking the appropriate relationship between national courts and international law. Should national courts serve as dispassionate law enforcers, as translators of law, or engaged law creators? Should international judges be mindful of the at times unforeseen afterlife of the jurisprudence they create? Obversely, the US experience also raises questions as to whether the specialized, and at times inconsistent, work-product of the international criminal courts and tribunals is even suitable for broader dissemination and incorporation at the national level.
The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim that the WTO regime serves ‘diffuse’ as opposed to ‘specific’ reciprocity. Still, WTO Members continue to routinely submit their disputes to the WTO adjudicating fora, showing through their behaviour that they would rather live in a world where punishment is curbed, than in world where punishment acts as deterrent since full reciprocity would be always guaranteed.
- La justice pénale internationale comme projet politique et sélectif
- Julien Pieret & Marie-Laurence Hébert-Dolbec, La justice pénale internationale comme projet politique et sélectif : une exploration de plusieurs zones d’ombre de la pénalité internationale
- Damien Scalia, Expérience de justice internationale pénale : perception de domination par d’anciens dominants
- Marie-Laurence Hébert-Dolbec, Towards Bureaucratization : An Analysis of Common Legal Representation Practices before the International Criminal Court
- Mélanie Vianney-Liaud, La reconnaissance timide de la responsabilité pénale des Khmers rouges
- Patricia Naftalihors, The Politics of Truth: On Legal Fetichism and the Rhetoric of Complementarity
- Éloïse Benoit, Criminalité et justice sans souveraineté dans les camps de réfugiés du HCR: des systèmes de justice parallèle à l’impunité pour le personnel humanitaire
Thursday, February 4, 2016
- Ulrike Brandl, Auslegung von Resolutionen des Sicherheitsrats: Einheitliche völkerrechtliche Regelungen oder ,,pick and choose“ aus möglichen Auslegungsregeln?
- Tim René Salomon, Die Anwendung von Menschenrechten im bewaffneten Konflikt: Normative Grundlagen, neue Entwicklungen und Anwendungsmodalitäten
- Beiträge und Berichte
- Sarah Leyli Rödiger & Dana-Sophia Valentiner, ,,living together“ Zum Pluralismuskonzept des EGMR unter besonderer Berücksichtigung der Burka-Entscheidung
- Le droit des organisations internationales: modèle et moteur du droit international
While political science scholarship recognizes that the effectiveness of international law often rests on its domestic implementation, relatively little attention has been given to the national legal rules that govern this process. These rules, which govern matters such as treaty-making, how treaties and custom are received and interpreted, and their status vis-à-vis other sources of domestic law, differ substantially across countries and over time. In this paper, we examine these rules and their role in shaping the state’s engagement with international law by allocating authority among political actors and institutions. We incorporate empirical insights from an original dataset, which captures in detail the domestic rules that govern the creation, implementation and interpretation of international law for 101 countries for the period 1815-2013. We contrast our data with existing proxies used in the literature, such as legal traditions, explicit constitutional provisions, and the monist-dualist classification, and show that our dataset offers more fine-grained and precise information on international law’s place in national legal orders.
Wednesday, February 3, 2016
Procedural fairness is a topic of contemporary importance that touches upon the jurisdictional powers, effectiveness and normative and institutional framework of international courts and tribunals. Increasingly prominent in practice, it features in a wide spectrum of the arbitral and judicial settlement processes, from the handling of expert evidence before the International Court of Justice and the burden and standard of proof in investor-State arbitration to the role of victims and right to a prompt and speedy trial at the International Criminal Court. The fairness of these proceedings, therefore, is a topic of fundamental importance not only to practitioners of international law (judges, counsels, registrars, NGO lawyers, legal advisers and other civil servants) but also to scholars of international law due to its implications for the key topic of international dispute settlement.
This book frames the study of procedural fairness as the identification of fundamental principles inherent to international judicial and arbitral processes. It draws together a number of pertinent issues on specific aspects of fairness (e.g. the equality of arms principle) before international courts and tribunals within a comprehensive narrative. The book brings academics and practitioners together to initiate ground-breaking research into this novel topic. It employs a comparative approach whereby contributors analyse the procedures and practices of various international courts and tribunals. It identifies patterns of commonality and divergence in the core standards of procedural fairness of international courts and develops a holistic understanding of the nature of procedural fairness and the challenges to its realisation in the international judicial system. The book concludes that, while there is no universal model of procedural fairness, nascent principles of fairness are emerging in the jurisprudence of international courts in order to resolve procedural and practical issues.
Contributors: Dr Paolo Busco, Judge Sir Kenneth Keith, Dr John Sorabji, Dr Gabriele Ruscalla, Dr Serena Forlati, Mr Raymundo Tullio Treves, Dr M I Fedorova, Dr James Devaney, Ms Catherine H Gibson, Dr Chiara Giogetti, Professor Hugh Thirlway, Brooks Daly, Hugh Meighen, Professor Chi Carmody, Oonagh Sands, Advocate General Juliane Kokott, Wolfgang Rosch, Dr Lucas Lixinski, Judge Philip Weiner, Dr Sergey Vasiliev.
- Glen Biglaiser, Hoon Lee & Joseph L. Staats, The effects of the IMF on expropriation of foreign firms
- Seok-ju Cho, Yong Kyun Kim, & Cheol-Sung Lee, Credibility, preferences, and bilateral investment treaties
- Jonas Tallberg, Thomas Sommerer, & Theresa Squatrito, Democratic memberships in international organizations: Sources of institutional design Jonas Tallberg, Thomas Sommerer…
- Todd Allee & Manfred Elsig, Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements
- Daniel Berliner, Transnational advocacy and domestic law: International NGOs and the design of freedom of information laws
This book assesses the significance of the Asian Infrastructure Investment Bank (AIIB) by examining the logic of international power and order, historic trends in East Asian international relations, the AIIB's design in comparison to 'rival' financial institutions, recent tendencies in Chinese foreign policy, and Chinese political economy.