The article examines norm conflicts, defined as situations where one norm constitutes, has lead to, or may lead to a breach of another, and particularly those norm conflicts in which one of the conflicting norms is a rule of human rights law. Such instances occur more and more every day, are increasingly litigated, and can be of great political importance. For example, a human rights treaty might prohibit the preventative detention or internment of persons under any circumstances, while the UN Security Council might pass a resolution actually authorizing such detention, say in relation to suspected terrorists. What does then happen when a state's obligations under a human rights treaty conflict with its obligations under the UN Charter?
In that regard, one possible solution is that pursuant to Article 103 of the UN Charter, obligations under the Charter - including binding Security Council resolutions - prevail over conflicting treaty obligations of the UN member states. The article will explore whether the Council can displace international human rights treaties, and if so, how can such a development be curtailed or avoided. It will elaborate on various forms of norm conflict resolution and avoidance, and will discuss the recent jurisprudence of the House of Lords (Al-Jedda), the European Court of Human Rights (Behrami and Bosphorus) and the courts of the European Union (Kadi). The article thus provides a systematic overview of the impact of norm conflicts on the protection of human rights in a fragmented international legal order.
Saturday, April 4, 2009
Friday, April 3, 2009
China's success in attracting foreign direct investment (FDI) in the last decade is undisputed, and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. The second title to publish in the new Oxford International Arbitration Series is a comprehensive commentary on Chinese BITs.
Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book will provide a detailed review and analysis of China's approach to foreign investment. It will consider the current role of investment treaties in China's foreign economic policy, analyse and interpret the key provisions of the BITs, and discuss the future agenda of China's investment programme. It will look at how this investment regime interconnects with the domestic system and consider the implications for a foreign investor in China.
The process of international lawmaking is, in part, a function of both politics and the attempt to engage in legitimate norms generation. States seek power through process in the international sphere. But States also use process enable representative, transparent, and effective rules. This paper considers how we might begin to deconstruct procedural proposals involving international norm generation by taking a look at a recent controversy over the methods of work at the United Nations Commission on International Trade Law (UNCITRAL). It will consider various paradigms to assess the legitimacy claims of international norms as applied to one particular controversy and consider specifically whether proposals to regulate decision-making as well as the participation of nonmembers serve legitimacy or politics or both.
This Article explores the legality of so-called "secondary sanctions" under customary principles of international jurisdiction law. Ordinarily, when the United States imposes economic sanctions, it imposes primary sanctions only - to restrict its own companies and citizens (or other people who are in the United States) from doing business with a rogue regime, terrorist group, or other international pariah. Secondary sanctions, such as secondary trade boycotts and foreign company divestment, involve additional economic restrictions designed to inhibit non-US citizens and companies abroad from doing business with a target of primary US sanctions. Secondary sanctions have proved highly controversial, in part because of broad claims that they are illegally "extraterritorial" in purpose and effect. This Article challenges the conventional view. It suggests that a wide range of secondary sanctions measures are permissible if tailored to regulate exclusively on "terrinational" grounds - on the combined basis of territorial and nationality jurisdiction. Secondary sanctions may seldom be wise as a matter of policy, but when primary sanctions fail, secondary sanctions may be a last alternative to the use of military force. Because the use of secondary sanctions has been complicated by lack of clarity about their legality, terrinational forms of secondary sanctions should be considered as an alternative to other more legally controversial forms of secondary sanctions.
Thursday, April 2, 2009
International law develops in a fragmented way to address functional needs. This has resulted in the development of special “regimes” of norms and decision‐making procedures and accompanying international organisations. There is much scholarship about allegedly autonomous legal regimes addressing international trade, human rights, humanitarian law, environmental protection and other issues. The need to resolve conflicting norms between regimes has led to recommendations by the International Law Commission. Less attention, however, has been given to the way in which, in the default situation of diversity and concurrent activities, regimes interact, and how international law might help to shape this interaction.
Article IV of the 1909 Boundary Waters Treaty between Canada and the United States, which prohibits harmful transboundary water pollution, foreshadows the prohibition on transboundary environmental harm expressed as Principle 21 of the 1972 Stockholm Declaration. The terms of Article IV and Principle 21 are similar, as is the failure of states to comply with them. Canada and the United States have fallen short of their obligations under Article IV by establishing standards that are more specific but that states need exercise only due diligence to meet, and by failing to apply even these standards to boundary waters other than the Great Lakes. As a result, Article IV seems not only ahead of its time, but ahead of ours as well.
The London Court of Arbitration (LCIA) is one of the world's foremost arbitration institutions, with a growing annual caseload. The LCIA Arbitration Rules are among the most modern and forward-looking of the various sets of institutional arbitration rules but until now have not been the subject of in-depth study. This is the first full length and comprehensive commentary on the rules, written by two well-known and experienced arbitration practitioners. Portable and functional, this book acts as a guide and provides an indispensable resource for all involved in international arbitration under the LCIA rules.
Grouped thematically, the commentary to each rule provides 1) a description of the rule and its intended meaning 2) the provenance and history of the rule 3) the practical effect of the rule with reference to previous case law and jurisprudence and 4) a comparative look at conceptual and practical differences between each rule. Focusing specifically on how the rules of the LCIA differ from those of the ICC and the UNCITRAL, this title emphasises the international nature of the LCIA and provides the only dedicated reference to the Rules.
- Harry N. Scheiber & David D. Caron, Preface
- Seoung-Yong Hong & Jon M. Van Dyke, Introduction
- David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict
- Clive Schofield, The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation
- Jon M. Van Dyke, Disputes Over Islands and Maritime Boundaries in East Asia
- Ji Guoxing, Sino-Japanese Jurisdictional Delimitation in East China Sea: Approaches to Dispute Settlement
- Masahiro Miyoshi, Some Thoughts on Maritime Boundary Delimitation
- Seokwoo Lee, Intertemporal Law, Recent Judgments and Territorial Disputes in Asia
- Kentaro Serita, Some Legal Aspects of Territorial Disputes over Islands
- Yann-huei Song, Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China
- Ted L. McDorman, Canada-U.S. International Ocean Law Relations in the North Pacific: Disputes, Agreements and Cooperation
- Richard J. McLaughlin, Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-Deepwaters of the Gulf of Mexico
- Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System: Constraints or Complementarity?
- Helmut Tuerk, The Contribution of the International Tribunal for the Law of the Sea to International Law
- Bernard H. Oxman, The Tomimaru Case: Confiscation and Prompt Release
Wednesday, April 1, 2009
- Tu Thanh Nguyen, Patent Holders' Contractual Restrictions on Downstream Purchasers in the United States and European Union through Quanta Prism
- Deming Liu, Reflections on Lack of a Patent System throughout China's Long History
- Deepthi Elizabeth Kolady & William Lesser, Does Plant Variety Protection Contribute to Crop Productivity? Lessons for Developing Countries from US Wheat Breeding
- Brenda Pamela Mey, China, the "Intellectual Property Black Hole" Hosts the XXIX Olympiad: Measures the People's Republic of China Undertook to Secure the Protection of Olympic-related Intellectual Property Rights
Tuesday, March 31, 2009
- Alex Hinton & Saul Mendlovitz, Introductory Remarks
- Juan E. Méndez, Keynote Address
- Joyce Apsel, On Our Watch: The Genocide Convention and the Deadly, Ongoing Case of Darfur and Sudan
- Roger S. Clark, State Obligations Under the Genocide Convention in Light of the ICJ's Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
- Marcelo Raffin, Metaphysics, Politics, Truth: Genocide Practices as a Way of Deploying the Modern Paradigm
- Sheri P. Rosenberg, What's Law Got to Do with It?: The Bosnia v. Serbia Decision's Impact on Reconciliation
- William A. Schabas, Genocide Law in a Time of Transition: Recent Developments in the Law of Genocide
- John Goodman, Myths of Globalisation: Power, Legitimacy and Sovereignty
- Nina Khouri, Bird Flu, TRIPS, and the Customary International Law Doctrine of Necessity
- Tony Angelo & Ping Xiong, Free Trade Agreement between the Government of the Peoples Republic of China and the Government of New Zealand
- Sunita Patel, Superior Orders and Detainee Abuse in Iraq
- Bruce Oswald, Accountability for the Treatment of Civilian Detainees During Military Operations: Developing Principled Practice
- Treasa Dunworth, From Rhetoric to Reality: Prosecuting War Criminals in New Zealand
- Jose Bellido, Latin American and Spanish Copyright Relations (1880–1904)
- Andreas Rahmatian, Neo-Colonial Aspects of Global Intellectual Property Protection
- Rudi Moffitt, Resistance is Futile
Monday, March 30, 2009
- Thomas Cottier, Challenges Ahead in International Economic Law
- Mira Burri-Nenova, Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition
- Dominic Coppens, How Much Credit for Export Credit Support Under the SCM Agreement?
- David Quayat, The Forest for the Trees: A Roadmap to Canada's Litigation Experience in Lumber IV
- Benn McGrady, Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures
- Duncan B. Hollis & Joshua J. Newcomer, "Political" Commitments and the Constitution
- Hari M. Osofsky, Is Climate Change "International"? Litigation's Diagonal Regulatory Role
- Margaret K. Lewis, Taiwan's New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms
The ICTY does not merely represent a historical stage in the development of international criminal justice which can now be put aside and left to legal historians. It also has a lasting impact, due to the fact that its Rules of Procedure and Evidence are judge-made law, tested in the fire of court practice and frequently amended to take the latest developments into account. Finally, with the arrest of Radovan Karadžić, a new chapter has been opened for the Court. This volume thus provides not only an account of all the debates revolving around the proper role of international criminal justice and a contribution to the developing academic discipline of “transitional justice”; it also opens up a perspective to the International Criminal Court and asks what procedural legacy the ad hoc tribunals for Yugoslavia and Ruanda provide for the future of international criminal procedure.
- Filip De Ly & Audley Sheppard, The International Law Association (ILA) International Commercial Arbitration Committee Reports on Lis Pendens and Res Judicata
- Filip De Ly & Audley Sheppard, ILA Final Report on Lis Pendens and Arbitration
- Filip De Ly & Audley Sheppard, ILA Interim Report on Res Judicata and Arbitration
- Filip De Ly & Audley Sheppard, ILA Final Report on Res Judicata and Arbitration
- Filip De Ly & Audley Sheppard, ILA Recommendations on Lis Pendens and Res Judicata and Arbitration
- Richard D. Hill, The New Reality of Electronic Document Production in International Arbitration: A Catalyst for Convergence?
- Fatima-Zahra Slaoui, The Rising Issue of ‘Repeat Arbitrators’: A Call for Clarification
- Edward Torgbor, Constructive Dispute and Conflict Resolution: A Technique for Resolving Serious Conflicts in Africa
- Thomas W. Walsh, Collateral Attacks and Secondary Jurisdiction in International Arbitration Comment on Gulf Petro Trading Co., Inc. v. Nigerian National Petroleum Corp
Sunday, March 29, 2009
- Interview with Luis Alfonso De Alba
- Cordula Droege, Elective affinities? Human rights and humanitarian law
- Françoise J. Hampson, The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body
- Helen Duffy, Human rights litigation and the ‘war on terror’
- Marco Sassòli & Laura M. Olson, The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts
- Sylvain Vité, The interrelation of the law of occupation and economic, social and cultural rights: the examples of food, health and property
- Danio Campanelli, The law of military occupation put to the test of human rights law
- Cordula Droege, Transfers of detainees: legal framework, non-refoulement and contemporary challenges