Tuesday, September 2, 2014
This paper first traces the evolving legal status of developing countries in the multilateral trading system in the post-war years, beginning with the emergence of Special and Differential Treatment on the import side (protection of infant industries) in the 1950’s, then on the export side in the 1960’s (non-reciprocal preferences granted by developed countries on developing country exports); then the adoption of the Single Undertaking during the Uruguay Round in the 1980’s and early 1990’s; then the major fault lines that have emerged between developed and many developing countries that have largely paralyzed the current Doha Round. The paper then traces a parallel evolution in thinking in development economics in the post-war period, beginning with big push, state-led, import substitution policies in the first three post-war decades; then, in the face of disappointing results, largely superceded by the sharply opposing policy prescriptions of the Washington Consensus, with its commitment to the ubiquitous virtues of markets in the 1980’s and 1990’s; then in turn, in the light of disappointing results, largely superceded by the so-called New Development Economics which rejects universal or broadly generalizable theories of economic development and accepts that appropriate policies prescriptions will be highly country – specific, recognizing the particularities of each country’s endowments, political structure, culture and history. These shifts in thinking map closely onto the evolving role of developing countries in the multilateral trading system. The paper goes on to propose the abandonment of the single undertaking, “one size fits all approach” adopted in the Uruguay Round, and argues for a larger role for plurilateral agreements within the multilateral systems (‘coalitions of the willing’), in part as a counterweight to the dramatic recent proliferation of Preferential Trading Agreements.
- Dan Kuwali, ‘Humanitarian Rights’: Bridging the Doctrinal Gap between the Protection of Civilians and the Responsibility to Protect
- Siobhán Wills, Continuing Impunity of Peacekeepers: The Need For a Convention,
- Ezequiel Heffes, The Responsibility of armed opposition groups for Violations of International Humanitarian Law: Challenging the State-Centric System of International Law
- Miriam Bradley, International humanitarian law, non-state armed groups and the International Committee of the Red Cross in Colombia
- Silvia Scarpa, Guaranteeing the Broadest Protection to Minors in the Aftermath of Disasters: Re-Framing the International Discussion in Terms of Child Abduction, Sale, and Trafficking
- C. Nyamutata, Engaging or Shaming? An Analysis of UN’s Naming and Shaming of Child Abusers in Armed Conflict
- Federica Cristani, Challenge and Disqualification of Arbitrators in International Investment Arbitration: An Overview
- Inna Uchkunova, The Minotaur’s Labyrinth: Third State Intervention before the International Court of Justice
- Sondra Faccio, The Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine
- Fernando Lusa Bordin, Procedural Developments at the International Court of Justice
- Amedeo Arena, The Relationship Between Antitrust and Regulation in the US and the EU: Can Legal Tradition Account for the Differences?
- Marco Benatar, International Law, Domestic Lenses
- John Jupp, Legal Transplants as Tools for Post-Conflict Criminal Law Reform: Justification and Evaluation
- Vladislava Stoyanova, Article 4 of the ECHR and the Obligation of Criminalising Slavery, Servitude, Forced Labour and Human Trafficking
- Interpretation in International Law Symposium
- Daniel Peat & Matthew Windsor, An Interpretive Turn to Practice?
- David Baragwanath, The Interpretative Challenges of International Adjudication Across the Common Law/Civil Law Divide
- Andreas Sennekamp & Isabelle Van Damme, A Practical Perspective on Treaty Interpretation: the Court of Justice of the European Union and the WTO Dispute Settlement System
- Shai Dothan, In Defence of Expansive Interpretation in the European Court of Human Rights
- Jure Vidmar, Judicial Interpretations of Democracy in Human Rights Treaties
- Diane Desierto & Colin Gillespie, A Modern Integrated Paradigm for International Responsibility Arising from Violations of Economic, Social, and Cultural Rights
This chapter explores the dynamic interactions between domestic social norms and international law over trade dispute resolution. Using empirical case studies involving China, EU, US, Korea and Japan, the paper investigates how the dyadic configuration of social norms regarding preferred dispute resolution method impacts the resolution of trade disputes. It creates a new theoretical approach to understand the interfaces between domestic norms and international legal order. The theory predicts a complex development in the acceptance of non-litigious states of the current international legal order for dispute resolution.
- Stephan W. Schill, Editorial: Five Times Transparency in International Investment Law
- Special Issue: The Anatomy of the (Invisible) EU Model BIT
- Marc Bungenberg & August Reinisch, Special Issue: The Anatomy of the (Invisible) EU Model BIT
- Frank Hoffmeister & Gabriela Alexandru, A First Glimpse of Light on the Emerging Invisible EU Model BIT
- Marc Bungenberg, The Scope of Application of EU (Model) Investment Agreements
- Wenhua Shan & Sheng Zhang, Market Access Provisions in the Potential EU Model BIT: Towards a “Global BIT 2.0”?
- Ursula Kriebaum, FET and Expropriation in the (Invisible) EU Model BIT
- Antonios Tzanakopoulos, National Treatment and MFN in the (Invisible) EU Model BIT
- Anna De Luca, Umbrella Clauses and Transfer Provisions in the (Invisible) EU Model BIT
- Catharine Titi, Full Protection and Security, Arbitrary or Discriminatory Treatment and the Invisible EU Model BIT
- Markus Burgstaller, Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems
- Christoph Herrmann, The Role of the Court of Justice of the European Union in the Emerging EU Investment Policy
- Christian J. Tams, Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?
- Karsten Nowrot, How to Include Environmental Protection, Human Rights and Sustainability in International Investment Law?
- N. Jansen Calamita, Dispute Settlement Transparency in Europe’s Evolving Investment Treaty Policy
- August Reinisch, “Putting the Pieces Together … an EU Model BIT?”
- Jarrod Hepburn, Comparative Public Law at the Dawn of Investment Treaty Arbitration: Saar Papier Vertriebs GmbH v. Republic of Poland
- Catherine A. Rogers & Alexander Wiker, Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis
- Crina Baltag, “Denial of Benefits” Clause in Pac Rim v. El Salvador and Liman v. Kazakhstan
- Santiago Montt & Carlos Portales, Telefonica v. United Mexican States
- Cecily Rose, Circumstantial Evidence, Adverse Influences, and Findings of Corruption: Metal-Tech Ltd. v. The Republic of Uzbekistan
- Jean Ho, Unraveling the Lex Causae in Investment Claims
Monday, September 1, 2014
- Theresa Reinold, The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law
- Vassilis Pergantis, Strange Bedfellows
- Tim Dunne & Katharine Gelber, Arguing Matters
- Deon Geldenhuys, The African Union, Responsible Sovereignty and Contested States
- Maksymilian Del Mar, Legality as Relative Institutionalisation: MacCormick's Diffusionism and Transnational Legal Theory
- Anthony Robert Sangiuliano, Towards a Natural Law Foundationalist Theory of Universal Human Rights
- Christine Bell, What We Talk About When We Talk About International Constitutional Law
- Bosko Tripkovic, Judicial Comparativism and Legal Positivism
- Dezso Farkas, Re-Evaluating Shareholder Primacy in the Post-Crisis Context: A View from Comparative Political Economy
- Anthony Carty & Zhang Xiaoshi, Unequal to Equal Treaty: From the Anglo-Irish Treaty 1921 to the Belfast Agreement (Good Friday Agreement) 1998 - a Chinese Perspective
- Joshua Curtis, The ‘Economics of Necessity’, Human Rights and Ireland’s Natural Resources
- Amanda Kramer & Rachel Killean, Security Council Referrals to the ICC: A Politicised System
Conference: Tratados internacionales, Jurisprudencia y Doctrina. Análisis práctico desde el Derecho Internacional en Latinoamérica
- Jennifer Hasselgård-Rowe & Emmanuel Kabengele Mpinga, Justiciability of the Right to Health in South Africa and Switzerland through the Lens of its Normative Components
- Mohamed Elewa Badar, ElSayed M.A. Amin, & Noelle Higgins, The International Criminal Court and the Nigerian Crisis
- Ronagh JA McQuigg The European Convention on Human Rights Act 2003 – Ten Years On
- J. Ife Ogbonna, Protecting Human Rights as Public Morals under the General Agreement on Tariffs and Trade (gatt) 1994
- Triestino Mariniello, International Criminal Court: Selected Developments in 2013
- Saidat Nakitto, South Africa’s Exercise of Universal Jurisdiction
- Ilias Bantekas, The Emergence of an International Law of Sovereign Debt and Insolvency
This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.
Sunday, August 31, 2014
Giladi: A ‘Historical Commitment’? Identity and Ideology in Israel's Attitude to the Refugee Convention 1951–4
The paper examines and debunks the conventional wisdom that Israeli foreign policy incorporates a ‘historical commitment’ to the 1951 UN Refugee Convention. Particular Jewish interests and universal values, it is argued, led the newfound Jewish state to initiate the Convention, participate in its formulation, and promote its acceptance; Israel was, additionally, among the first states to sign and ratify the Convention. Against the backdrop of present-day discourse and competing perspectives on the Jewish motif in Israel's foreign policy, the paper traces the process of Israel's ratification of the Refugee Convention. Israel's attitude to the Convention, it finds, was characterised by delay, disinterest, indifference, even hostility. Moreover, neither particular interests nor universal values satisfactorily explain Israel's attitude. Rather, this attitude was the outcome of competing visions of Israel's identity and ideological interpretations of Jewish nationalism. Ideologically, the Convention validated yet at the same time also undermined Israel's particular identity as the state of refuge of the Jewish people and its ideological raison d’être in the world system. This ambivalence allowed Israeli diplomats to construct a logic of exemption under which the particularity of Israel's very existence as the state of refuge of the Jewish people represented complete performance of its universal obligations under the Convention.
Le mécanisme de règlement des différends de l’O.M.C. se distingue des autres juridictions internationales en ce qu’il comporte un ensemble sophistiqué de procédures spécifiquement et exclusivement destinées à traiter les désaccords pouvant surgir au cours de l’exécution de l’obligation qui résulte pour un Membre de la décision juridictionnelle qui déclare sa responsabilité. Leur existence même et la façon dont les organes de jugement s’acquittent de leur mission témoignent de ce que l’exécution des obligations résultant des actes juridictionnels dans l’ordre international n’échappe pas fatalement au droit. Ainsi, le système de l’O.M.C. exprime mais aussi réalise une ambition singulière en droit international : renforcer la garantie de la légalité en habilitant la juridiction à encadrer, contrôler, et, en définitive, participer à assurer l’exécution de ses propres décisions.
Saturday, August 30, 2014
The system of optional clause declarations is a unique regime of compulsory jurisdiction based on the two World Courts’ Statutes. This timely book offers a wide-ranging academic survey of the developments of that system, the theoretical and procedural aspects of the unilateral declarations of acceptance and the reservations added to these declarations.
The author critically examines those reservations which undermine the system of compulsory jurisdiction and discusses the major controversies. She considers the various aspects of compulsory jurisdiction giving special attention to the States’ practice, the Courts’ jurisprudence and both Courts’ relevant case law. The book contains a unique comparative analysis of all the declarations of acceptance made since the establishment of the Permanent Court of International Justice while also debating the shortcomings and the future of the system.
Friday, August 29, 2014
- A Century after Sarajevo: Reflections on World War I
- Ja Ian Chong & Todd H. Hall, The Lessons of 1914 for East Asia Today: Missing the Trees for the Forest
- Etel Solingen, Domestic Coalitions, Internationalization, and War: Then and Now
- Jack Snyder, Better Now Than Later: The Paradox of 1914 as Everyone's Favored Year for War
- Tanisha M. Fazal, Dead Wrong?: Battle Deaths, Military Medicine, and Exaggerated Reports of War's Demise
- Jerry Mark Long & Alex S. Wilner, Delegitimizing al-Qaida: Defeating an “Army Whose Men Love Death”
- Liam Anderson, Ethnofederalism: The Worst Form of Institutional Arrangement…?
As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing law to meet those challenges.
Rather than seeking to impose, up front, a new set of prohibitory rules or seeking to suspend development of autonomous weapon systems pending a comprehensive agreement on rules to govern them, international regulation of autonomous weapons systems should begin with the premise that the law of armed conflict provides an appropriate general framework. States should work to build on that framework through continually-improving interpretive standards and agreed-upon best practices. We propose a three-tiered approach to emerging automation and autonomous weapon technologies: (i) an international agreement that makes clear the applicability of baseline law of armed conflict rules and that codifies standards, practices, and interpretations that states have converged upon over a long period of actual development of systems, in tandem with discussion among states informally, and informed by sufficiently transparent and open sharing of relevant information; (ii) state-level development and inter-state discussion of weapon review practices, tailored to these specific weapons and their battlefield environments; and (iii) close coordination among weapons designers, developers, manufacturers, and military end-users of these systems, with lawyers responsible for legal weapons review, at each granular stage of design, development, and testing. The integration of these three levels can assist to appropriately and realistically shape advancing military technologies while improving adherence to core law of armed conflict principles.
As the world’s coastal states go about dividing up the ocean floor, the work of the Commission on the Limits of the Continental Shelf plays an increasingly important role. The Commission on the Limits of the Continental Shelf: Law and Legitimacy examines the Commission from two different but interrelated perspectives: a legal analysis of the Commission’s decision-making; and a study of normative legitimacy related to the Commission and its procedures. Insights into the history of the development of the concept of the continental shelf in the law of the sea are offered, including an explanation of how the institutionalized method for ascertaining continental shelf limits in the UN Convention on the Law of the Sea came into being. Through a deep-ranging analysis of the Commission and its work, the book introduces a framework for assessing best practices, and will serve as a useful reference for academics, scientists and policymakers alike.
The question of what status the precautionary principle enjoys in international law has once again reared its head; most recently in the Indus Water Treaty dispute between India and Pakistan before the Permanent Court of Arbitration, where the claim for customary status was advanced by Pakistan only to be countered by India. This paper assesses the current state of play in respect to the precautionary principle and its status in international law. The paper does this by identifying what it terms the two camps of precaution, the custom camp and the no custom camp, which find themselves on opposing sides in the debate. The paper argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In doing so the paper relies on the concepts of ‘precaution spotting’ and what is elsewhere termed the ‘rule v. standard’ dialectic. These two concepts help us understand the different claims advanced by the two camps and alert us to the fact that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.
This contribution examines the international legal relevance of the recent Crimean referendum, starting from the premise that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua non for any territorial re-apportionment. It concludes that the referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status.
- Bart Legum & Anna Crevon, An Outline of Procedure in an Investment Treaty Arbitration – Strategy and Choices
- O. Thomas Johnson & David Pinsky, Representing Claimant: Pre-Arbitration Considerations
- Jeremy K. Sharpe, Representing a Respondent State in Investment Arbitration
- Eloise Obadia & Frauke Nitscheke, The Role of the Secretariat
- Chiara Giorgetti, The Arbitral Tribunal: Selection And Replacement Of Arbitrators
- Andrea Carlevaris, Preliminary matters: Objections, Bi-Furcation, Request for Provisional Measures
- Mark Clodfelter, Written Proceedings
- Catherine Amirfar, Oral Proceedings
- Andrea Kay Bjorklund, Applicable Law in International Investment Disputes
- Rahim Moloo, Evidentiary Issues Arising in the Investment Arbitration Context
- Brooks Daly & Fiona Poon, Technical and Legal Experts in International Investment Disputes
- Neale Bergman, Transparency of the Proceedings and Third Party Participation
- Michelle Bradfield & Guglielmo Verdirame, Costs in International Investment Arbitration
- John Crook, The Award and Discontinuance of the Proceeding
- Carolyn B. Lamm & Eckhard R. Hellbeck, The Enforcement of Awards
- Veijo Heiskanen & Laura Halonen, Post-Award Remedies
Thursday, August 28, 2014
- Editorial Comments
- Sienho Yee, The Competition between and among Intrinsic and Instrumental Values in Selected Competing Visions of the World
- Agnieszka Szpak, What to Do With Failed States—a Quest for a Solution from the Inside
- Padraig McAuliffe, From Watchdog to Workhorse: Explaining the Emergence of the ICC's Burden-sharing Policy as an Example of Creeping Cosmopolitanism
- Harmen van der Wilt, Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts
- Guiguo Wang, Consent in Investor–State Arbitration: A Critical Analysis
- Pallavi Kishore, Special and Differential Treatment in the Multilateral Trading System
Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.