Die Strafbarkeit juristischer Personen sollte nach Völkerstrafrecht möglich sein, weil sie in Völkerrechtsverbrechen verwickelt sind, aber – wie die Historie des Völkerstrafrechts zeigt – keine ausreichenden Instrumente zur Sanktionierung existieren. Auch jenseits des Strafrechts untersuchte zwischenstaatliche und nationale Alternativen zur Sanktionierung vermögen das Bedürfnis nach einer solchen Strafbarkeit nicht befriedigen.
Der Autor weist nach, dass eine Sanktionierung juristischer Personen als allgemeiner Rechtsgrundsatz im Völkerrecht existiert. Als Beleg dafür wurden u.a. 47 nationale Rechtssystemen untersucht. Die Vereinbarkeit der Strafbarkeit juristischer Personen mit dem Völkerstrafrecht wird schließlich anhand der Handlungs-, Schuld- und Straffähigkeit sowie anhand des Komplementaritätsprinzip diskutiert und gelöst. Abschließend entwickelt der Autor ein Strafbarkeitsmodell, welches insbesondere auf der Zurechnungstheorie basiert und ins Römische Statut integriert werden kann.
Thursday, September 3, 2015
Wednesday, September 2, 2015
In The Juridical Nature of Unilateral Acts of States in International Law Eva Kassoti explores the question of the legal nature of unilateral acts by focusing on their essential characteristics, namely unilateralism and the manifest intention to be bound. By analysing the legal and factual context surrounding the making of unilateral acts, this volume offers a list of indicators of the elements of unilateralism and manifest intention that will facilitate the determination of the existence of a unilateral juridical act in practice. Kassoti explores the legal nature of unilateral acts from the viewpoint of the theory of international juridical acts and thus, attests to the validity of this theory as a comprehensive framework for the analysis of all juridical acts in international law.
Since its establishment last year, the European Federation for Investment Law and Arbitration (EFILA) has developed into a well-known and highly regarded think-tank for the promotion of the knowledge of all aspects of EU and international investment law, including arbitration, at the European level.
EFILA endeavours to facilitate a meaningful exchange of views on relevant and timely issues vital to the development of the European internal market, in order to contribute to a more favourable investment climate in Europe and beyond.
To this end, EFILA developed a Blog platform designed to focus on the present challenges and debates that pertain to the field of international (investment) law and arbitration, EU law and public policy, as well as the dynamics of these multiple legal, political and economic spheres. The Blog will feature opinions and cover the latest developments in this field, on a weekly basis, written by eminent professionals and academics from around the world.
Furthermore, the Blog is intended to offer a common space that fosters dialogue between specialists of different views in an effective and user-friendly manner, allowing discussions to move beyond the stalemate of isolated monologues that fail to truly address the salient issues of the moment. Therefore, the Blog is meant to provide a balanced view that attempts to avoid any hegemonic assumptions.
The Blog invites guest contributors with the relevant expertise to submit their articles for the Blog.
Prof. Loukas Mistelis, Editor-in-Chief
On behalf of the EFILA Blog Editorial Board
- Lucy Richardson, Economic, Social and Cultural Rights (and Beyond) in the UN Human Rights Council
- Katrien Meuwissen, NHRIs and the State: New and Independent Actors in the Multi-layered Human Rights System?
- Louise Halleskov Storgaard, EU Law Autonomy versus European Fundamental Rights Protection—On Opinion 2/13 on EU Accession to the ECHR
- Fiona de Londras & Kanstantsin Dzehtsiarou, Managing Judicial Innovation in the European Court of Human Rights
- Merris Amos, The Second Division in Human Rights Adjudication: Social Rights Claims under the Human Rights Act 1998
- Chiara Cosentino, Safe and Legal Abortion: An Emerging Human Right? The Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence
- Léon Poffé, Towards a New United Nations Human Rights Convention for Older Persons?
In today's asymmetric armed conflicts, military agents carry out targeted killings against civilians that »take a direct part in the hostilities«. This book defines such participation for the purposes of international humanitarian, criminal and human rights law. Additionally, the general framework of the law of war is revisited, in particular under the currently frequent scenario of non-international armed conflicts. Treaty requirements for the recognition of non-state actors (degree of collectivity) are addressed and the legal ethics of a strict status-based approach in international law (combatants/civilians) is opined on. The study at hand analyzes the repertory of applicable legal texts and their authentic versions in the different official languages. It discloses existing incoherencies and gives an overview of their implementation into the national legislation of several countries. The research closes with a fictional case study. Graphs and figures are used for illustration purposes throughout the document.
Direk: Security Detention in International Territorial Administrations: Kosovo, East Timor, and Iraq
What happens after a governing body is ousted during the course of armed conflict? In some cases, international organizations like the United Nations will appoint other States or itself to administer the transition of the post-conflict State to a place of lasting peace. In practice, however, this mission is hardly linear and becomes further complicated when these administrations are faced with threats to the fragile peace.
Security Detention in International Territorial Administrations examines the legal and policy questions surrounding the behavior of these post-conflict administrations. This includes discussion about apportionment of responsibility in peace support operations, norm conflict issues in UN Security Council resolutions, and requirements of international human rights law in the fulfillment of these missions. The discussion concludes with a survey of security detention practices in three recent post-conflict administrations in Kosovo, East Timor, and Iraq.
- Special Issue: Srebrenica, twenty years later
- Cedric Ryngaert & Nico Schrijver, Lessons Learned from the Srebrenica Massacre: From UN Peacekeeping Reform to Legal Responsibility
- Harmen van der Wilt, Srebrenica: On Joint Criminal Enterprise, Aiding and Abetting and Command Responsibility
- Kimberley N. Trapp, Of Dissonance and Silence; State Responsibility in the Bosnia Genocide Case
- Heike Krieger, Addressing the Accountability Gap in Peacekeeping: Law-Making by Domestic Courts As a Way to Avoid UN Reform?
- Paolo Palchetti, Attributing the Conduct of Dutchbat in Srebrenica: the 2014 Judgment of the District Court in the Mothers of Srebrenica Case
- Larissa van den Herik, Accountability Through Fact-Finding: Appraising Inquiry in the Context of Srebrenica
- Kirsten Schmalenbach, Preserving the Gordian Knot: UN Legal Accountability in the Aftermath of Srebrenica
Tuesday, September 1, 2015
- Benoit Mayer, The Applicability of the Principle of Prevention to Climate Change: A Response to Zahar
- Alexander Zahar, Methodological Issues in Climate Law
- Kerryn Brent, Jeffrey McGee & Amy Maguire, Does the ‘No-Harm’ Rule Have a Role in Preventing Transboundary Harm and Harm to the Global Atmospheric Commons from Geoengineering?
- Jolene Lin, The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment)
- Thomas Deleuil & Tuula Honkonen, Vertical, Horizontal, Concentric: The Mechanics of Differential Treatment in the Climate Regime
The international patent system walks a tightrope between harmonization and diversity. Harmonization efforts offer the benefit of uniformity, but because of diverse national interests, one size cannot fit all countries. What national flexibilities do current treaties such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) offer? Given the rise of regional trade agreements, and controversies over “fast track” negotiating authority, what flexibilities will be available in the future? This conference begins with the recent Declaration on Patent Protection and Regulatory Sovereignty Under TRIPs as a launching point to explore the proper balance between international patent harmonization and national sovereignty.
Lecture: Simpson on "Human Rights with a Vengeance: One Hundred Years of Retributive Humanitarianism" (Video)
Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.
This article offers the first analysis of EACJ, ECOWAS Court and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African sub-regional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants.
Monday, August 31, 2015
Weapons and International law: The Arms Trade Treaty gives a thorough legal and practical analysis of this important new legal instrument to regulate the global trade of the most commonly-used conventional arms.
- From the Board, Forty Years of EU Consumer Protection: Where Does It Stand Now?
- Sahir Özdemir, A Comment on the Inconsistency between the EU-Turkey Association Law and EU Secondary Legislation
- Peter Hilpold, Filling a Buzzword with Life: The Implementation of the Solidarity Clause in Article 222 TFEU
- Derek O’Brien, The Right of Free Movement within Caricom: A Step towards Caribbean ‘Citizenship’? Lessons from the European Union
- Kamala Dawar, The WTO Government Procurement Agreement: The Most-Favoured Nation Principle, the GATS and Regionalism
- Henrik Skovgaard-Petersen, Market Citizenship and Union Citizenship: An ‘Integrated’ Approach? The Martens Judgment
- Daniel Mandrescu, Access to Leniency Programme Documents Based on the Transparency Regulation: The European Commission v. EnBW Energie Baden-Württemberg AG
Hameiri & Jones: Governing Borderless Threats: Non-Traditional Security and the Politics of State Transformation
'Non-traditional' security problems like pandemic diseases, climate change and terrorism now pervade the global agenda. Many argue that sovereign state-based governance is no longer adequate, demanding and constructing new approaches to manage border-spanning threats. Drawing on critical literature in political science, political geography and political economy, this is the first book that systematically explains the outcomes of these efforts. It shows that transboundary security challenges are primarily governed not through supranational organisations, but by transforming state apparatuses and integrating them into multilevel, regional or global regulatory governance networks. The socio-political contestation shaping this process determines the form, content and operation of transnational security governance regimes. Using three in-depth case studies - environmental degradation, pandemic disease, and transnational crime - this innovative book integrates global governance and international security studies and identifies the political and normative implications of non-traditional security governance, providing insights for scholars and policymakers alike.
- Practical Aspects of Sanctions and Embargoes: A Comparative View
- Lorenzo Di Masi, Maurizio Gambardella, & Davide Rovetta, An Overview of EU Sanctions Case Law
- Frank Altemöller, Leadership and Management Development: Meeting the Challenges of Economic Integration
- David Leys, EU Competence in Foreign Direct Investment: Will the EU Court of Justice End the Controversy?
- Shintaro Hamanaka, The Fourth Wave of FTAs in 2015–2016?
- Stephen Golub, Ayse Kaya & Michael Reay, What were they thinking? The Federal Reserve in the run-up to the 2008 financial crisis
- Carolin Liss & J.C. Sharman, Global corporate crime-fighters: Private transnational responses to piracy and money laundering
- Erin Lockwood, Predicting the unpredictable: Value-at-risk, performativity, and the politics of financial uncertainty
- Jeffrey M. Chwieroth, Professional ties that bind: how normative orientations shape IMF conditionality
- Francesca Gambarotto & Stefano Solari, The peripheralization of Southern European capitalism within the EMU
- Dimitrios Soudis, Credit Rating Agencies and the IPE: Not as influential as thought?
- Richard W. Carney, The stabilizing state: State capitalism as a response to financial globalization in one-party regimes
Sunday, August 30, 2015
This paper considers the implications of Chiara Lepora and Robert Goodin's On Complicity and Compromise (OUP, 2013) for our understanding of international law. That volume systematizes and evaluates individuals’ ethical choices in getting (too) close to evil acts. For the law of nations, these concepts are relevant in three critical ways. First, they capture the dilemmas of those charged with implementing international law, e.g., Red Cross delegates pledged to confidentiality learning of torture in a prison. Second, they offer a rubric for understanding when a state may use coercion against certain actors, e.g., international law's rules for when one state may use force against another based on the latter's ties to terrorist acts. Third, they offer a moral grounding for many international obligations of states based on the need to avoid their own complicity in others' wrongs, e.g., by not expelling refugees to a state persecuting them or by preventing private actors from committing human rights abuses. In the case of the last two, the law reflects decisions by states about how much complicity they will tolerate – either complicity by others or complicity by the states themselves.
From the perspective of an international lawyer concerned with promoting the rule of law internationally, Lepora and Goodin's framework helps us appreciate the moral basis behind certain legal rules. To the extent we can see legal rules, international or domestic, as morally acceptable and just and not merely the product of power politics, we increase the prospects for compliance with them. A moral acceptable approach to complicity within the law can have more buy-in than a rule without such a moral grounding. Equally important, international law's approach to complicity helps our understanding of morality itself by marking some clear lines in the sand.
Saturday, August 29, 2015
- Marika McAdam, What’s in a Name?
- Tenia Kyriazi, Trafficking and Slavery
- Solon Solomon, Broadening International Criminal Jurisdiction?
- Jamil Ddamulira Mujuzi, The Right to a Fair Trial in Criminal Proceedings and the United Kingdom Courts’ Recognition of Foreign Convictions from non-EU Member States
- Hemang Sharma, Rights against Torture in Nepal
Friday, August 28, 2015
Zorzi Giustiniani: The Obligations of the State of Origin of Refugees: An Appraisal of a Traditionally Neglected Issue
Over the last two decades, the growing restrictive attitudes of Western States towards asylum-seekers have caused much ink to flow concerning the individual and collective responsibilities of the host countries in sharing the “burden.” In contrast, the role and the responsibilities of the State of origin of refugees have remained quite unexplored in legal doctrine. The present article strives to fill this gap, analysing both the content of the pertinent international norms as well as their practical relevance in situations of mass flows. In the first part, this article will analyse whether the source State can be held responsible, or liable, towards receiving countries for the refugee influx. The article will then investigate the precise scope of the country of origin’s obligations vis-à-vis its fleeing citizens, particularly with respect to return and reparations. As will be shown, the enjoyment of the refugees’ rights in this regard has been significantly limited as a result of the characterization by States of repatriation as the best durable solution.
Rojas Castro: La reconnaissance des gouvernements ibéro-américains. Histoire du droit international et histoire transnationale au xixe siècle
Cet article analyse l’impact des indépendances ibéro-américaines dans la doctrine contemporaine de la reconnaissance internationale. Ce n’est qu’après l’apparition de nouvelles nations ibéro-américaines que la légalité d’un gouvernement dépend de la seule légitimité que lui confère le peuple souverain, en dépit d’une conception longtemps dominante dans le Droit des gens, d’après laquelle cette légalité dépend du respect du principe de légitimité (c’est-à-dire, du droit de succession royal). Pour le démontrer, l’étude s’appuie sur une lecture transatlantique et de longue durée qui inclut plusieurs cas d’apparition d’entités souveraines à l’époque moderne et qui les compare avec la reconnaissance des gouvernements ibéro-américains.
- Roda Mushkat, Killing the Proverbial Two Birds with One Stone: New Ways to Expand the Comparative Law Methodological Repertoire and Enhance the Effectiveness of Inter-Jurisdictional Environmental Governance Regimes
- Mary Footer, Trade-related International Food Security and the Developing World
- Rajesh Babu, Trajectories of Investment Protection In India: An Analysis of Compensation for Expropriation
- Notes and Comments
- Billy Araujo, Regulating Services Through Trade Agreements – A Comparative Analysis of Regulatory Disciplines Included in EU and US Free Trade Agreements
- Anhad Gupta, Restructuring Incentives for Pharmaceutical Innovation
- Paul Schiff Berman, Non-state lawmaking through the lens of global legal pluralism
- Ralf Michaels, What is law beyond the state? An introduction
- Sally E. Merry, International law and sociolegal scholarship: toward a spatial global legal pluralism
- Peer Zumbansen, The constitutional itch: transnational private regulatory governance and the woes of legitimacy
- Helen Quane, International human rights law as a catalyst for the recognition and evolution of non-state law
- Oren Perez & Daphne Barak-Erez, The administrative state goes global
- Harlan Cohen, International precedent and the practice of international law
- Joel A. Nichols, Religion, family law, and competing norms
- Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The resolution of disputes in state and tribal law in the south of Iraq: toward a cooperative model of pluralism
- Nomi Maya Stolzenberg, Is there such a thing as non-state law? Lessons from Kiryas Joel
- Michael A. Helfand, The persistence of sovereignty and the rise of the legal subject
This book offers a comprehensive analysis of the International Criminal Court (ICC) and its core legal texts from a children’s rights perspective. It examines the ICC provisions and its case law, evaluating whether these meet international children’s rights standards, particularly as regards the protection of child victims and witnesses, their participation as victims in ICC proceedings and their role as beneficiaries in reparations. The author proposes recommendations that could be adopted in order to guarantee children’s rights in ICC proceedings.
- Special Issue: Development Assistance for Peacebuilding
- Rachel M. Gisselquist, Good Aid in Hard Places: Learning from ‘Successful’ Interventions in Fragile Situations
- Andrew Beath, Fotini Christia & Ruben Enikolopov, The National Solidarity Programme: Assessing the Effects of Community-Driven Development in Afghanistan
- Lamis Al-Iryani, Alain de Janvry & Elisabeth Sadoulet, The Yemen Social Fund for Development: An Effective Community-Based Approach amid Political Instability
- Heidi Tavakoli, Ismaila B. Cessay & Winston Percy Onipede Cole, Substantial but Uneven Achievement: Selected Success When Stars Align. Public Financial Management Reforms in Sierra Leone
- Rauli S. Lepistö, Rachel M. Gisselquist & Jussi Ojala, ‘Embedded’ Assistance: Finn Church Aid's Secondment in Somalia
- Laura Bacon, Liberia's Gender-Sensitive Police Reform: Improving Representation and Responsiveness in a Post-Conflict Setting
- Martin Gramatikov, Maurits Barendrecht, Margot Kokke, Robert Porter, Morly Frishman & Andrea Morales, Impact Assessment of the Facilitadores Judiciales Programme in Nicaragua
- James H. Williams & William C. Cummings, Education from the Bottom Up: UNICEF's Education Programme in Somalia
- Andrew Rosser & Sharna Bremner, The World Bank's Health Projects in Timor-Leste: The Political Economy of Effective Aid
Thursday, August 27, 2015
- Alessandro Bufalini, The Principle of Legality and the Role of Customary International Law in the Interpretation of the ICC Statute
- Gian Maria Farnelli, A Controversial Dialogue between International and Domestic Courts on Functional Immunity
- Sergey Y. Marochkin & Galina A. Nelaeva, The Changing Dynamics of International Lawmaking: Trying Heads of State for Rape and Sexual Violence
- Tomas Hamilton, Case Admissibility at the International Criminal Court
- Yoshifumi Tanaka, Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015
- Fernando Lusa Bordin, Procedural Developments at the International Court of Justice