This book contains a selection of articles resulting from the Third From Peace to Justice Conference, held in April 2006 in The Hague, the Netherlands. The Conference, which was organized by the Hague Academic Coalition (HAC), focused on the current and emerging threats to international peace and security. It aimed to identify some of the most urgent new non-traditional threats and to examine whether these can be addressed within the UN Charter framework. And to the extent that they cannot, to discuss how the UN could reform in order to address these threats which are no less serious than traditional ones. Interesting views from various angles and disciplines were presented and discussed, the results of which are brought together in the three parts of this book. Together they are, notwithstanding their diversity, an interesting compilation with an unmistakable coherency.
Saturday, June 21, 2008
Friday, June 20, 2008
ICJ: Request for Interpretation of the Avena Judgment (Provisional Measures - Conclusion of Public Hearings)
At the conclusion of the oral proceedings, the parties presented the following conclusions:
For the United States:
The Government of the United Mexican States, acting on its own behalf and in the exercise of its right to afford diplomatic protection to its nationals, requests that this honourable Court issue an order indicating:
(a) that the United States, acting through all its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, take all measures necessary to ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending the conclusion of the proceedings instituted by Mexico on 5 June 2008, unless and until the five Mexican nationals have received review and reconsideration consistent with paragraphs 138 to 141 of this Court’s Avena Judgment; and
(b) that the Government of the United States inform the Court of all measures taken in implementation of subparagraph (a).
That the Court reject the request of Mexico for the indication of provisional measures of protection and not indicate any such measures, and that the Court dismiss Mexico’s application for interpretation on grounds of manifest lack of jurisdiction.
The Court will deliver its decision within the next few weeks.
A note regarding the composition of the Court for this case: At the opening of the public hearings yesterday, President Rosalyn Higgins indicated that three of the Court's judges would not sit in this case: Judges Shi, Parra-Aranguren, and Simma. Regarding the latter two, President Higgins referred to Article 24, paragraph 1, of the Court's Statute, which states: "If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President." The basis of Judge Simma's recusal is apparent, as he was Germany's co-agent and counsel in the LaGrand Case. He similarly recused himself in the Avena case. The cause for Judge Parra-Aranguren's recusal is less apparent. He was on the Court when Avena was decided and participated in that case. I am aware of no statement (or other cause) since that might disqualify him. Judge Shi's recusal is even more mysterious. President Higgins did not refer to Article 24, paragraph 1, to explain Judge Shi's non-participation. Instead, she said only that he would not sit "for reasons explained to the Court." What reasons might prevent his sitting other than those provided for under the expansive rubric of Article 24, paragraph 1? It is unclear.
- Ioanna Thoma, Confidentiality in English Arbitration Law: Myths and Realities About its Legal Nature
- Johannes San Miguel Giralt, Fixing a Hole Where the Rain Gets In: New Legal Framework in Cuba for Interim Measures of Protection in Support of Arbitration
- Martin Illmer & Ben Steinbrück, U.S. Discovery and Foreign Private Arbitration: The Foreign Lawyer’s Perspective
- Sami Kallel, Online Arbitration
- Haitham A. Haloush, The Authenticity of Online Alternative Dispute Resolution Proceedings
- Sotiris I. Dempegiotis, EC Competition Law and International Arbitration in the Light of EC Regulation 1/2003: Conceptual Conflicts, Common Ground, and Corresponding Legal Issues
Gerechtigkeit, Umweltschutz und Völkerrecht sind in Wissenschaft und politischer Diskussion derzeit wieder aktuell, aber auch jeweils für sich genommen eine Herausforderung an Rechtstheorie und -anwendung. Der Autor untersucht Verteilungsgerechtigkeit bei der räumlichen Verteilung von Umweltgütern im Völkerrecht. Die bisherige Diskussion auf internationaler Ebene drehte sich fast durchweg nur um die Verteilung von Kosten des Umweltschutzes, nicht jedoch um die räumliche Verteilung der Umweltgüter selbst. Dies steht im Gegensatz zum wachsenden völkerrechtlichen Regelungsbedarf einerseits und den technischen Möglichkeiten zur Umweltverteilung andererseits, wie das Beispiel der gezielten Regenerzeugung in China zeigt.
Ralph Czarnecki arbeitet die besonderen Schwierigkeiten für Dogmatik und Rechtsanwendung heraus, die das Völkerrecht als horizontale Rechtsordnung für die Verteilungsgerechtigkeit gerade von Umweltgütern aufwirft. Im ersten Kapitel werden die theoretischen Grundlagen der Arbeit bestimmt und die ideengeschichtliche Stellung der Verteilungsgerechtigkeit in Rechts- und Staatsphilosophie und den Wirtschaftswissenschaften untersucht. Im zweiten Kapitel lenkt der Verfasser den Blick auf das Umweltvölkerrecht und untersucht, welche Schwierigkeiten sich aus den Besonderheiten dieser Rechtsordnung und dieses Regelungsgegenstandes ergeben. Das dritte Kapitel beinhaltet konkrete Regeln des Umweltvölkerrechts auf räumliche Verteilungswirkungen sowie auf Kriterien der Verteilungsgerechtigkeit.
Im Ergebnis entzieht sich räumliche Verteilungsgerechtigkeit auch im Umweltvölkerrecht einer einheitlichen Definition und Anwendung. Es gibt eine Vielzahl von Kriterien, die dem nationalen Recht teilweise (noch) fremd sind. Ein rechtliches Prinzip der Verteilungsgerechtigkeit ist nicht nachweisbar.
The book offers a timely discussion on non-binding dispute settlement between States. It focuses on conciliation in a broad sense, including mediation, inquiry and non-compliance mechanisms. Variations of conciliation are included in many instruments, particularly in multilateral agreements concerning the environment, human rights, international trade and investment protection. Conciliation is also used on an ad hoc basis for the resolution of disputes between States, such as in border conflicts. Nevertheless, combining legal and political aspects, the method is rarely studied in depth in either discipline. The author argues that the lack of familiarity with conciliation both causes its popularity in treaties, as its difficulties in practice. The author proposes a new way of looking at conciliation and at its potentials and restrictions, and assesses the use and usefulness of this way of settling disputes.
One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an "effective remedy." International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This article illustrates these "remedial deterrence" effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and the former Yugoslavia - two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court's particular objectives and constraints.
Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures - like those often present in international criminal proceedings - result in severe doctrinal distortions that subvert the purpose of international courts' strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedies at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts' structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.
- Steffen Breßler, Mike Oliver Korte, Nicoletta Kröger, Felix Rollin, & Eckard von Bodenhausen, Pathologische Schiedsklauseln - Beispiele aus der Beratungspraxis
Thursday, June 19, 2008
- Symposium: Post-Conflict Studies and State-Building
- Jean d'Aspremont, Post-Conflict Administrations as Democracy-Building Instruments
- Sinclair Dinnen, State-Building in a Post-Colonial Society: The Case of Solomon Islands
- Naomi Roht-Arriaza, Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Armed Conflict Guatemala
- David Pimentel, Restructuring the Courts: In Search of Basic Principles for the Judiciary of Post-War Bosnia and Herzegovina
- John Gillespie, Towards a Discursive Analysis of Legal Transfers into Developing East Asia
- Catherine Powell, Tinkering with Torture in the Aftermath of Hamdan: Testing the Relationship Between Internationalism and Constitutionalism
- Ernst-Ulrich Petersmann (European Univ. Institute - Law), Judging Fudges: From 'Principal-Agent Theory' to 'Constitutional Justice' in Multilevel 'Judicial Governance' of Economic Cooperation Among Citizens
- Kong Qingjiang (Zhejiang Univ.), The Doctrine of Ordre Public and the Sino-US Copyright Dispute
- Krista Nadakavukaren Schefer (Univ. of Bern - Institute of European and International Economic Law), Corruption and the WTO Legal System
- David M. Trubek (Univ. of Wisconsin - Law), Robert Hudec and the Theory of International Economic Law: The Law of Global Space
- Aniekan Iboro Ukpe, Will the EU-Africa Economic Partnership Agreements Foster the Integration of African Countries into the Global Trading System?
- Caf Dowlah (City Univ. of New York - Economics), The Generalized System of Preferences of the United States: Does it Promote Industrialization and Economic Growth of the Least Developed Countries?
- Muhummad Ya'Kub A. Kadir (State Univ. of Ar-Raniry), Towards a New Paradigm of the Right to Self-Determination in the World Trading System
- Lotfi Chedly, L'arbitrage international en droit tunisien. Quatorze ans après le Code
- Olivier Blin, Les sanctions dans l'organisation mondiale du commerce
- Ghislain Poissonnier & Pierre Osseland, A qui appartiennent les îles Senkaku/Diaoyu?
- Cécile Renouard, La responsabilité sociale des multinationales spécialisées dans l'extraction des minerais et hydrocarbures
- Beat Hess, Faire face aux défis juridiques dans l'industrie de l'énergie
- Campbell Craig, The Resurgent Idea of World Government
- James Pattison, Just War Theory and the Privatization of Military Force
- Joseph H. Carens, The Rights of Irregular Migrants
- Christina Boswell, The Elusive Rights of an Invisible Population
- David Miller, Irregular Migrants: An Alternative Perspective
- Bridget Anderson, Migrants and Work-related Rights
- Marit Hovdal Moan, Immigration Policy and "Immanent Critique"
- Fionnuala Ní Aoláin, Review Essay: Expanding the Boundaries of Transitional Justice
Anton: Observations About Expanding Public Participation in the International Environmental Law-Making Process
While so-called stakeholder groups (those with Consultative Status) are usually provided reasonable access in the norm development process in international institutions - at least right up until end when state representatives exclude all others - I argue that we have not really thought enough about other modalities to further open up participation, especially to individuals and groups that do not meet (or want to comply with) requirements for consultative status. I propose that one way to open up the public space in international lawmaking is to use the standard administrative law tool of notice and comment. Under this proposal international institutions would be required to publicize, at early junctures, when normative development is being contemplated and invite public comment from the global citizenry.
Jus ad bellum and jus in bello are established concepts in contemporary international law. This book is the first work to treat the origins, contents and contemporary challenges of jus post bellum. It offers new analysis and fresh thinking on one of the greatest challenges of warfare and armed force: the management and restoration of peace after conflict. Fundamental issues, such as the extraterritorial application of human rights obligations, the accountability of occupying powers and international organizations and approaches towards justice and reconciliation, are at the heart of contemporary debate. New concepts, such as the notion of responsibility to protect are gradually emerging. This book addresses these issues from a novel perspective. It identifies legal gaps and policy challenges and inquires to what extent they may be addressed under a common normative umbrella: Jus Post Bellum. The individual contributions offer guidance on shortcomings, directions and possible avenues of reform. In this way, the authors – from various disciplines, such as philosophy, legal history, political science and international law – contribute to the emerging scholarship in this field.
Wednesday, June 18, 2008
- Ulf Linderfalk, Doing the Right Thing for the Right Reason Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties
- Jill Marshall, Positive Obligations and Gender-based Violence: Judicial Developments
- Ignacio de la Rasilla del Moral, Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests
- Suresh Nanwani, Holding Multilateral Development Banks to Account: Gateways and Barriers
- Katherine Dick, Exploring the Legal Status of Non-Governmental Organisations under International Energy Treaties
Tuesday, June 17, 2008
In the period from 1793 to 1797, the United States confronted its first major foreign policy crisis after adoption of the Constitution. France was at war with Britain and other European powers. The United States' primary foreign policy goal was to maintain neutrality and avoid war with Britain and France. The executive branch formulated the broad contours of U.S. neutrality policy in 1793. Congress enacted legislation in 1794 to codify that policy in statutory form. However, the federal judiciary was centrally involved in implementing U.S. neutrality policy in the years 1794 to 1797. This article tells the story of the federal judiciary's active role in implementing U.S. foreign policy in the 1790s.
The "exclusive political control" thesis holds that the judiciary is barred from participating in foreign affairs decision-making because the Constitution grants the political branches exclusive control over foreign policy. This article demonstrates that the exclusive political control thesis is incompatible with the original understanding of the Founders. The judiciary's active role in implementing U.S. neutrality policy in the 1790s provides compelling evidence that the Founders did not endorse the exclusive political control thesis. In fact, the Cabinet officers and Supreme Court Justices of that era, most of whom were intimately involved in the process of drafting and ratifying the Constitution, reached a consensus that the judicial branch, not the executive branch, should play the lead role in deciding several of the major issues that the U.S. confronted in its effort to avoid entanglement in a European war.
Monday, June 16, 2008
Any international regime aimed at the mitigation of global climate change must solve three problems: 1) secure sufficient participation; 2) achieve agreement on meaningful rules; and 3) ensure compliance with those rules. That is, it must solve problems of participation, effectiveness, and compliance. In this paper, prepared for the Harvard Project on International Climate Agreements, we focus on the compliance problem, but with careful consideration of the first two issues. We propose a post-Kyoto Protocol compliance system that is based upon emissions trading coupled to buyer liability. Section I addresses the trade-off between participation and strictness of rules by proposing what we call an economy of esteem for climate change. Section II discusses participation. We suggest that only a cap-and-trade architecture is likely to make it politically possible to secure sufficient participation to get a climate change mitigation regime up and running. Section III analyzes the problem of compliance and argues that, contrary to the current provisions in the Kyoto Protocol, a system of buyer liability is essential. Section IV considers how institutions to assess compliance with emissions reductions could be constructed. Finally, Section V addresses potential weaknesses of our buyer liability system and provides responses to these criticisms. Throughout, we write from the standpoint of the politics of international cooperation; our policy recommendations take into account the more technocratic literatures on compliance, liability, and so forth but flow directly and primarily from our political analysis.
- Pierre Tercier, The ICC and the New Arbitration Centres in the Arab World
- Abdullah Al Faruque, Renegotiation and Adaptation of Petroleum Contracts: The Quest for Equilibrium and Stability
- Clara Picasso Achaval, Tipping the Balance towards Investors?
- Ahmed Farouk Ghoneim, To What Extent Should Egypt go Deep in Its Free Trade Area with the United States? If Any!!
- Joseph M. Senona, Trade Policy and MDG 8: Beyond the Rhetoric; Towards an Accelerated Multilateral Cooperation
- Prabhash Ranjan, International Investment Agreements and Regulatory Discretion: Case Study of India