Although working on the sidelines of armed conflicts, physicians are often at the centre of attention. First Do No harm: Medical Ethics in International Humanitarian Law was born from the occasionally controversial role of physicians in recent armed conflicts and the legal and ethical rules that frame their actions. While international humanitarian, human rights and criminal law provide a framework of rights and obligations that bind physicians in armed conflicts, the reference to ‘medical ethics’ in the laws of armed conflict adds an extra-legal layer. In analysing both the legal and the ethical framework for physicians in armed conflict, the book is invaluable to practitioners and legal scholars alike.
Thursday, January 29, 2015
The Goettingen Journal of International Law will dedicate Vol. 7 Issue No. 2 to the protection of the atmosphere in international law.
The atmosphere is our planet’s largest single natural resource and is vital to the survival of humankind and any life on earth. Therefore, the degradation of the atmosphere’s condition has long been a matter of concern to large segments of the international community. In 2013, the United Nation’s International Law Commission (ILC) took up this issue. Several conventions regulate atmospheric and related issues, yet there is still no coherent legal framework addressing the protection of the atmosphere. The work by the ILC will be the first attempt to derive rules from the current practice of States addressing the atmosphere’s protection. However, the work by the ILC is significantly complicated by the restrained scope of the topic, as the Commission deliberately decided not to deal with, inter alia, questions of liability, the polluter-pays principle, and the principle of precaution.
In order to foster and critically accompany the codification and progressive development of the law surrounding the protection of the atmosphere, the Goettingen Journal of International Law, one of Germany’s leading international law publications, will dedicate the second issue of its seventh volume to this topic. The Editors are therefore inviting authors to submit papers on this subject. Submissions from an international law background as well as other disciplines such as international relations, geography, earth sciences, etc. are welcome. Papers will be submitted to a double-blind peer review and should not exceed 15,000 words including footnotes.
The deadline for submissions is the 15th of July 2015. For further information, please contact the Editors at info(at)gojil.eu.
Wednesday, January 28, 2015
- Adam Feibelman, The IMF and Regulation of Cross-Border Capital Flows
- Amnon Lehavi, Unbundling Harmonization: Public versus Private Law Strategies to Globalize Property
- Jocelyn Courtney & Christodoulos Kaoutzanis, Proactive Gatekeepers: The Jurisprudence of the ICC's Pre-Trial Chambers
- Govind Persad, The Medical Cost Pandemic: Why Limiting Access to Cost-Effective Treatments Hurts the Global Poor
- Jordan J. Paust, Can You Hear Me Now? Private Communication, National Security, and the Human Rights Disconnect
- Dov Jacobs, Sitting on the Wall, Looking in: Some Reflections on the Critique of International Criminal Law
- International Law and Practice
- Patrick Dumberry, State Succession to Bilateral Treaties: A Few Observations on the Incoherent and Unjustifiable Solution Adopted for Secession and Dissolution of States under the 1978 Vienna Convention
- Guy Harpaz, When Does a Court Systematically Deviate from its Own Principles? The Adjudication by the Israel Supreme Court of House Demolitions in the Occupied Palestinian Territories
- Stephan Hollenberg, The Security Council's 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review
- Hague International Tribunals: International Court of Justice
- Andreas Kulick, Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata
- Hague International Tribunals: International Criminal Courts and Tribunals
- Jessica Almovist, A Human Rights Appraisal of the Limits to Judicial Independence for International Criminal Justice
- Astrid Kjeldgaard-Pedersen, What Defines an International Criminal Court?: A Critical Assessment of ‘the Involvement of the International Community’ as a Deciding Factor
- Michail Vagias & Janos Ferencz, Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court
States are increasingly framing their international investment agreements within larger regional arrangements. What began most prominently with the North American Free Trade Agreement in the 1990s is coming to be emulated across the globe. Over the past ten years, major regional arrangements have been adopted in Asia and Africa and more are on the way. The on-going negotiations for a Trans-Pacific Partnership Agreement (TPP), encompassing countries from Asia, North and South America portend a potentially major shift in the international investment treaty landscape. Moreover, concurrent negotiations between the European Union and the United States for a Transatlantic Trade and Investment Partnership (TTIP) raise the possibility of an agreement on rules and standards between the two largest sources of foreign direct investment.
The regionalization of investment treaty arrangements raises important and timely issues for policy-makers, practitioners and academics. The contributions to this volume examine the contents and character of this new generation of agreements and address the difficult questions raised by the coexistence of regional and bilateral investment treaties. In addition, the contributions in this volume investigate the motivations behind regionalization and critically ask what regionalization tells us about the future of international investment law.
Austerity measures in many European countries have led to the violation of social rights and widespread socio-economic malaise. In the case of countries subjected to conditionality imposed by external institutions for the receipt of loans, the resultant harms have highlighted responsibility gaps across a range of international institutions. Two recent legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on the right to social security brought about by austerity measures since it was only giving effect to its other international obligations as agreed with the European Commission, the European Central Bank and the International Monetary Fund (the Troika), and the concern to emerge from the Pringle case before the European Court of Justice that European Union institutions could do outside of the EU that which they could not do within the EU – disregard the Charter of Fundamental Rights in the exercise of their tasks. That the Commission and ECB were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study and drawing on EU law, international human rights law, and the law on the international responsibility of states and of international organisations, this article looks to what we can expect in legal terms and as a matter of contemporary societal expectation when it comes to having international institutions respect human rights.
How does the publicity of states’ illicit activities affect the stability of international order? What does this tell us about when enforcers of international rules publicize these states’ violations? In contrast to the conventional wisdom that transparency strengthens the normative-legal order, this paper argues that transparency often undermines it. We develop two mechanisms through which this occurs: by raising the known rate of non-compliance, and by sharpening the threat to others posed by deviance. These considerations lead enforcers of international rules to selectively publicize transgressions. Focusing on the nuclear non-proliferation domain, we demonstrate that these concerns factored heavily into American decisions to reveal or obfuscate other states’ efforts to obtain nuclear weapons. We formalize this argument and then empirically test the model’s predictions using in-depth case study analyses. We find that the U.S. failed to disclose infractions precisely when this publicity would have undermined the rules through the two mechanisms we identify.
Tuesday, January 27, 2015
Call for Papers: 15th BIICL WTO Conference
The Annual WTO Conference was originally established in 2000 through a partnership between the British Institute of International and Comparative Law (BIICL) and the Institute of International Economic Law (IIEL) at the Georgetown University Law Center, and is currently organised jointly by BIICL, IIEL, and the Society of International Economic Law (SIEL). As originally established by University Professor John H. Jackson of Georgetown, and Professor Sir Francis Jacobs, KCMG, QC, a Trustee of BIICL, the Annual WTO Conference has a longstanding affiliation with the Journal of International Economic Law, published by the Oxford University Press. The Annual WTO Conference is one of the most important and prestigious conferences addressing developments in international trade law, pursuing cutting-edge issues of interest to academics and practitioners alike.
The Annual WTO Conference has traditionally selected speakers by invitation only; this year, however, the organisers have decided to conduct a call for papers aimed at opening opportunities for younger scholars to present their research and analysis at the conference. The organizers will consider proposals, in the form of an abstract or a completed short paper, submitted on or before 28 February 2015, for inclusion on the panels being organised on the following six topics:
For further information, view the full call for papers document.
- The Revival of Export Controls and Trade Sanctions: The Russia-Ukraine Conflict and Beyond
- WTO Accession Protocols and Other Non-Treaty WTO Instruments or Texts: Legal Status and Interpretation in WTO Dispute Settlement
- Restoring the Negotiating Function of the WTO: Are there Alternatives to the Single-Speed, Single Undertaking Approach?
- Measures Pursuing Multiple Policy Objectives: The Scope of Application and Overlapping Disciplines in GATT-TBT-SPS After Seals
- The "Plain Packaging" Public Health Strategy: Tobacco Products, Alcohol, Sugary Products: What Role (If Any) For the WTO?
- Recent Developments in WTO Dispute Settlement Procedure & Jurisprudence
How do EU law and international law interact? Is the relationship between EU law and international law different from the relationship between general international law and one of its specialised legal orders, for example the relationship between international law and the law of the sea? In other words, is the question of the relationship only one about the fragmentation of international law? Are the rules of interaction between the legal orders just ‘technical’ conflict rules in this context? Or are the rules of interaction between the international and the EU legal order which has been described as an autonomous legal order, akin to rules that govern the interaction between international law and national legal orders? Elements of both the international and the constitutional paradigms are reflected in most areas of EU law. But they are particularly prominent when analysing the relationship between international and EU law, a topic that has enjoyed increasing attention in recent years. In this paper, firstly, the more formal basis for the relationship is considered by looking at the international law framework of EU law before, secondly, looking at the relationship between the two legal orders and the realities of the relationship as expressed in the status of international law within the EU legal order.
Dezalay & Garth: Constructing a Transatlantic Marketplace of Disputes on the Symbolic Foundations of International Justice
This chapter revisits earlier work by the authors on international commercial arbitration. Drawing on new historical research, it suggests that the enduring success and legitimacy of the International Chamber of Commerce and international commercial arbitration relates to the type of alliances that European professors early in the twentieth century built with American lawyers -- who themselves had built strong connections with the U.S. state and with major commercial interests. The article first presents in broad terms the strategies of internationalization (including the import and export of norms and institutions) that elite corporate lawyers sought in order to build their position through the accumulation of international legal capital built in alliance with European law professors. These strategies of internationalization played a decisive role in building international justice as a hybrid system between common and civil law around a core of legal scholars/diplomats including learned Queens Counsel and continental law professors. Second, the chapter examines how the ICC Court of International Commercial Arbitration was established in the shadow of the Permanent Court of International Justice by borrowing its public visibility and the academic legitimacy of international law. The European professors who benefitted from the establishment of the Permanent Court and related institutions in The Hague were initially relatively peripheral to the ICC, because the ICC itself was relatively marginal in the interwar period. Yet a few of them extended their academic interest to issues of private law and international disputes. Third, when European law professors were given the opportunity to intervene in commercial disputes involving oil companies, after the tide of nationalistic fights over the appropriation of profits of the oil industry, they could use the value of the symbolic foundations of international justice, as well as their early academic investment, reinvigorated through a small diaspora of continental law professors with links to both the ICC and the American Arbitration Association, such as Martin Domke. Serving as arbitrators and scholars, they could apply and codify their doctrines and gain the recognition of international commercial arbitration as quasi-autonomous from economic and political interests.
- Andrea Ott, The EU-Turkey Association and Other EU Parallel Legal Orders in the European Legal Space
- Ceren Zeynep Pirim, The EU-Turkey Customs Union: From a Transitional to a Definitive Framework?
- Katherine Connolly, Finding Space for Regulatory Autonomy in GATS Article XVII after EC – Seals: Public Services and the ‘Likeness’ of Public and Private Service Providers
Monday, January 26, 2015
This paper addresses the foundational logics of the UN Guiding Principles on Business and Human Rights, and comments on the recent decision by the UN Human Rights Council to commence treaty negotiations on this subject. As the author of the Guiding Principles, the paper reiterates the important contributions of Amartya Sen to my understanding of human rights. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights. My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Moreover, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people — and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.
- Giesela Rühl, The Protection of Weaker Parties in the Private International Law of the European Union: A Portrait of Inconsistency and Conceptual Truancy
- Mihail Danov & Florian Becker, Governance Aspects of Cross-Border EU Competition Actions: Theoretical and Practical Challenges
- Elisa Torralba-Mendiola & Elena Rodríguez-Pineau, Two's Company, Three's a Crowd: Jurisdiction, Recognition and Res Judicata in the European Union
- Lutz-Christian Wolff, Flexible Choice-of-Law Rules: Panacea or Oxymoron?
- Lena-Maria Möller, No Fear of Talāq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation
- Markus Petsche, The Application of Transnational Law (Lex Mercatoria) by Domestic Courts
- Chukwuma Samuel Adesina Okoli, Sowing the Seeds of a Future African Union Private International Law: A Review of Private International Law in Commonwealth Africa
This Article uses a rational choice analysis to simplify the increasingly complex area of international financial regulation. It proceeds by identifying four “interdependence problems” relating to harmonization of financial standards, capital requirements, bank resolution procedures, and an international lender of last resort — in which the globalization of finance creates potential benefits from regulatory cooperation between countries. It finds that interdependence problems that relate to the efficiency gains made available by cross-border financial integration are more amenable to international regulation than are efforts to reduce losses from financial instability, which will likely continue to be ineffective despite active reforms in response to the global financial crisis.
A policy implication is that ambitious proposals for a legal body to centrally administer international financial regulation are unlikely to succeed, because they misstate the underlying dynamics of the interdependence problems that are specific to international finance. Instead, this Article argues that certain incremental reforms, such as international harmonization of bank resolution plans and provision of a regional lenders of last resort, provide a more promising avenue for reform.
This Article constitutes a reframing of the literature on international financial regulation, because it seeks to show that a state-centered rational choice approach can provide greater clarity and explanatory power than competing scholarship that commonly incorporates more complicated variables. In particular, the Article argues that the influential literatures on “transgovernmental networks” of regulators and the international “soft law” that they create overstate both the extent and efficacy of these mechanisms for international cooperation on finance and international law generally.
- Franco Frattini, Settantesimo Anniversario della Società Italiana per L’organizzazione Internazionale
- Articoli e Saggi
- Francesco Seatzu & Paolo Vargiu, Bilateralism, Multilateralism and the Quest for a Multilateral Investment Agreement for Sub-Saharan African Countries
- Osservatorio Diritti Umani
- Ivan Ingravallo, La tutela internazionale dei minori dopo l’entrata in vigore del Terzo Protocollo Opzionale alla Convenzione del 1989
- Note e Commenti
- Eugenio Carli, Immunità dei consoli e dei rappresentanti presso le Nazioni Unite: considerazioni a margine del caso Khobragade
- Monica Del Vecchio & Valeria Di Comite, Da Doha a Bali: il futuro dell’OMC tra nuove speranze e antiche questioni
Sunday, January 25, 2015
Tzevelekos: Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches
The paper discusses the rather thorny question of extraterritoriality in human rights protection and the effective control criterion developed by the European Court of Human Rights with a view to delimit territorially the ambit of human right obligations. By first deconstructing, and then reconstructing, the effective control doctrine, the paper defends the universalist nature of human rights protection. At the same time, it explains why and how extraterritoriality in human rights protection may lead to concurrent responsibilities on the part of multiple states for the same wrongful situation or result. Through this, the Article maps the role of effectiveness in the exercised control in extraterritorial human rights protection and develops a model for concurrent state responsibility. Considering more broadly effectiveness, the study finally argues that, next to the classic legal bases, effectiveness too may activate due diligence obligations requiring a state that is effectively linked to a wrongful situation to be proactive and protective.
The analytical basis of the Article is the distinction it makes between directly attributable wrongfulness, that is, wrongfulness caused by the state (negative human rights obligations), and responsibility for lack of diligence, that is, for failure to apply in human rights protection the positive measures that are necessary and available to the state so that it prevents or remedies wrongfulness (positive human rights obligations).
The first major argument of the study concerns the famous criterion of effective control in extraterritoriality. This part argues that, in the case of direct attribution, a state shall be responsible every time wrongful conduct is attributable to it, without regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in that case is to serve as a criterion for attribution, in conformity with the norms of the International Law Commission on state responsibility. However, in the case of extraterritorial wrongfulness for breach of the principle of due diligence, effective control does have a role to play. Effectiveness is one element among many to be taken into consideration when assessing the standards of diligence a state can — and therefore is legally obliged to — demonstrate. Because due diligence is an obligation of means, its standards are flexible and subjective in that they depend on the particular circumstances of each distinctive case.
The paper’s second primary argument relates to concurrent state responsibility. In the context of the study, concurrent responsibility is the idea that more than one states will be concurrently responsible for a single wrongful result, owing to the combination of a directly attributable to a state wrongful act that causes the result, and to the failure of one or more other states to fight that wrongful result — amounting to a breach on behalf of the second category of states of the principle of due diligence — that had been directly caused by another state or, more generally, another subject of international law or even a general situation that cannot be attributed to a particular person. Directly attributable wrongfulness and responsibility for lack of diligence interact in a complementary way, leading to the concurrent responsibility of more than one state for the same wrongful result or situation. One wrongful result, severability of the breaches of the primary obligations by several, respectively, states; this is in a nutshell the concept of concurrent responsibility. In principle, one (or more) states will be objectively responsible because of directly breaking the law, whereas, more other states may be subjectively responsible because of their failure to fight the wrongful result that has directly been caused by the former state. The model of concurrent state responsibility identified in the paper may find application in a variety of scenarios and situations that extend beyond human rights.
Finally, the paper attempts to chart the role of effective control, and effectiveness more generally. In addition to serving as a criterion for direct attribution (a de facto organ) in the frame of state responsibility, and as an element in determining the standards of due diligence a state must demonstrate, effectiveness has a third dimension. This dimension stems from the maxim of ex facto oritur jus (the law arises from the facts). The law arises from the facts, and reality may generate legal obligations. The existence of any type of nexus, either legal or factual, between a state and a given wrongful situation expands that state’s sphere of jurisdiction and requires it to actively fight wrongfulness–to the extent, of course, that this is possible to it, and as long as the means it chooses in that end are lawful.
Saturday, January 24, 2015
Hoffmann: Post-World War II. Hungarian Criminal Justice and International Law – The Legacy of the People's Tribunals
This contribution aims to introduce the organization and jurisprudence of a post-Second World War Hungarian special tribunal that was established to try Hungarian war criminals. Relying in part on public international law, the People's Tribunals conducted probably the very first criminal proceedings in the history of international criminal justice for the crime of aggression, convicting former prime ministers, cabinet members and members of parliament. Moreover, the Hungarian tribunals created a special category of crimes - crimes against the people - that could be seen as a domestic version of crimes against humanity.
Friday, January 23, 2015
- Rafael Leal Arcas & Ehab S. Abu-Gosh, Energy Trade as a Special Sector in the WTO: Unique Features, Unprecedented Challenges and Unresolved Issues
- Colin Picker, Comparative Legal Cultural Analyses of International Economic Law: Insights, Lessons and Approaches
- Akhil Raina, The Question of Market Access in the Field of Environmental Services: Determining and Defending its Scope
- James Nedumpura, Development Space in India’s Trade and Investment Agreements: A Fresh Look
Thursday, January 22, 2015
- Yang Guohua, China in the WTO Dispute Settlement: A Memoir
- Simon Lester, Domestic Tobacco Regulation and International Law: The Interaction of Trade Agreements and the Framework Convention on Tobacco Control
- Jean-Jacques Hallaert, Importing Growth: The Critical Role of Imports in a Trade-Led Growth Strategy
- Razeen Sappideen & Ling Ling He, Dispute Resolution in Investment Treaties: Balancing the Rights of Investors and Host States
- Jaemin Lee, State Responsibility and Government-Affiliated Entities in International Economic Law: The Danger of Blurring the Chinese Wall between ‘State Organ’ and ‘Non-State Organ’ as Designed in the ILC Draft Articles
- Md. Rizwanul Islam & Naimul Muquim, The Scope for Trade Restrictions to Address the Lack of Compliance with Fire Safety Standards in Garment Factories of Bangladesh
- Yury Rovnov, The Relationship between the MFN Principle and Anti-Dumping Norms of the WTO Law Revisited
- John B. Bellinger, III & Reeves Anderson, Tort Tourism: The Case for a Federal Law on Foreign Judgment Recognition
- Julian Arato, The Margin of Appreciation in International Investment Law
- Russell A. Miller, Germany vs. Europe: The Principle of Democracy in German Constitutional Law and the Troubled Future of European Integration
- Dawood I. Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions
- Michael N. Schmitt, “Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law
Whether and how violence can be controlled to spare innocent lives is a central issue in international relations. The most ambitious effort to date has been the International Criminal Court (ICC), designed to enhance security and safety by preventing and deterring war crimes. A key question facing the young ICC is whether or not it can deter perpetrators and reduce intentional violence against civilians in civil wars. We offer the first systematic assessment of the deterrent effects of the ICC for both state and non-state actors. We argue that the ICC can potentially deter through both prosecution and social deterrence. While no institution can deter all actors, we argue that the ICC can deter some governments and those rebel groups that seek legitimacy. We find support for this conditional impact of the ICC cross-nationally. Our work has implications for the study of international institutions and international relations, and supports the violence-reducing role of pursuing justice in international affairs.